Western Wirebound Box Co.

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 748 (N.L.R.B. 1971)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Wirebound Box Co . and International Wood-
workers of America Local Union 3 -3, AFL-CIO.
Case 36-CA-1923
June 29, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On February 19, 1971, Trial Examiner Irving
Rogosin issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Counsel
and the Charging Party filed limited exceptions to the
Trial Examiner's Decision and supporting briefs, and
the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record of the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner as modified below.
' In adopting the Trial Examiner's dismissal of the complaint alleging the
unlawful discharge of employee Andnola, we rely solely on the fact that the
evidence fails to establish that Respondent's action was motivated by oppo-
sition to the Union Further, in adopting the Trial Examiner's conclusion
that the Respondent did not unlawfully lock out its employees, we so find
on the facts of this case and deem it unnecessary to consider or pass on his
holding that the work stoppages by employees constituted unprotected ac-
tivity
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner : The complaint , issued
June 24, 1970, alleges that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the Act.'
' References herein are as follows the General Counsel, unless otherwise
stated, his representative at the hearing, Western Wirebound Box Co., Re-
spondent, the Company, or the Employer; International Woodworkers of
America, Local Union 3-3, AFL-CIO, the Charging Party, or the Union;
the National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519,
29 U S.C Sec 151, etseq.), the Act The original charge was filed and served
191 NLRB No. 126
Specifically, the complaint, as amended at the hearing,
alleges that (1) on or about July 11, 1969, Respondent dis-
charged Stephen Sellery, and constructively discharged Rich-
ard Zielony and Everett Alexander; on or about July 31,
1969, discharged Roger Andriola, and has, since the respec-
tive dates, failed or refused to reinstate said employees be-
cause of their union membership and activities; and, on Sep-
tember 5, 1969, constructively discharged Robert Majure, by
imposing more onerous working conditions on said employee
between July 11, 1969, and September 5, 1969, in retaliation
for his union activities; (2) since about August 4, 1969, has
refused, in specified respects, to bargain collectively with the
Union as the duly certified exclusive representative of all
employees in an appropriate unit, including truckdrivers; and
(3) on August 8, 1969, and September 5, 1969, dis-
criminatorily locked out employees because they had engaged
in a previously announced work stoppage in an attempt to
persuade Respondent to bargain with the Union respecting
hours, wages, and working conditions, thereby violating Sec-
tion 8(a)(1), (3), and (5) of the Act.
Respondent's answer admits the jurisdictional allegations
of the complaint, the supervisory status of William W. Oliver,
as superintendent, until his death in May 1970, and of Ray-
mond J. Martin, as agent and supervisor of Respondent, and
the status of the Union as bargaining representative of its
employees, "as required by law," but denies the remaining
allegations.
Hearing was held before the duly designated Trial Exam-
iner on September 22, 23, 24, 25, and 29, 1970, at Portland,
Oregon. All parties were represented by counsel, were
afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce oral and documentary evi-
dence relevant and material to the issues, to argue orally and
file briefs and proposed findings of fact and conclusions of
law. The parties declined to argue orally, preferring to file
briefs. Pursuant to an extension duly granted, briefs were filed
by the General Counsel and Respondent on November 20,
1970. None of the parties has filed proposed findings of fact
and conclusions of law. By memorandum, dated October 9,
1970, the General Counsel withdrew his objections to the
receipt in evidence of certain of Respondent's exhibits (19, 22,
and 22-A), consisting of compilations or summaries of origi-
nal business records, after having been granted additional
time to inspect and compare the summaries, but reserved the
right to argue the weight of such evidence. On October 19,
1970, Respondent filed a motion to admit in evidence Re-
spondent's Exhibit 26 for identification, purporting to consti-
tute an accurate summary of Respondent's business records,
previously marked Respondent's Exhibit 19 for identifica-
tion, consisting of a photocopy of Respondent's Exhibit 22,
with the addition of data incorporated from Respondent's
Exhibit 19. The motion, together with copies of Respondent's
Exhibit 26, having been duly served on the other parties, no
objections thereto having been made, and Respondent's coun-
sel having represented that the General Counsel has adopted
the same position as to the admission of this exhibit as he as
with respect to Respondent's Exhibits 22 and 22-A, Re-
spondent's motion is hereby allowed, and Respondent's Ex-
hibit 26 for identification is hereby received in evidence, and
so marked.2
on August 14, 1969, the amended charge, on June 24, 1970.
2 In his brief, the General Counsel challenges the accuracy of Respond-
ent's Exhibit 22, based on the discovery of a single minor inaccuracy,
refusing to be bound by the summaries, and maintaining that it is not
"incumbent upon him" to examine and compare "hundreds of cards" with
the summaries, as he has admittedly declined to do, to "prove their unrelia-
bility " On the issue of admissibility of compilations or summaries of original
WESTERN WIREBOUND BOX CO.
Upon the entire record in the case, the undisputed evidence
or a reconciliation of conflicts in the testimony, and based on
the appearance and demeanor of the witnesses, and the briefs
of the parties, which have been carefully considered, the Trial
Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and it
is hereby found that, at all times material herein, Western
Wirebound Box Co., Respondent herein, has been a corpora-
tion organized under the laws of the State of Oregon, with its
plant and offices in Portland, Oregon, engaged in the manu-
facture and sale of wooden containers, consisting of wire-
bound boxes, primarily for the fruit and vegetable industry.
During the year preceding issuance of the complaint, Re-
spondent sold and shipped products valued in excess of S 100,-
000 directly to customers located outside the State of Oregon.
It is, therefore, found that Respondent is, and at all times
material herein has been, an employer engaged in commerce
and in operations affecting commerce, within the meaning of
Section 2(2), (6), and (7) of the Act, and the jurisdictional
standards of the Board.'
II THE LABOR ORGANIZATION INVOLVED
International Woodworkers of America, Local 3-3, AFL-
CIO, the Union herein , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent has discriminated in regard to the
hire and tenure of employment of named employees because
of their union membership or activities to discourage mem-
bership in the Union, by discharging Stephen Sellery, on
about July 11, 1969, and constructively discharging Richard
Zielony and Everett Alexander, on the same date; discharg-
ing Roger Andriola, on July 31, 1969, and thereafter refusing
to reinstate said employees; constructively discharging Rob-
ert Majure, on September 5, 1969, and by imposing more
onerous working conditions on said employee between July
I1 and September 5, 1969.
2. Whether the allegation of the constructive discharge of
Robert Majure on September 5, 1969, is barred by Section
10(b) of the Act."
3. Whether Respondent has refused to bargain collectively
in good faith with the Union, since August 4, 1969, as the
exclusive bargaining representative of all its employees in an
appropriate unit, including truckdrivers, by:
business records, where, as here, the underlying records have been produced
at the hearing and made available for inspection and cross-examination, see
Baker Machinery Co, 184 NLRB No 39, where the Board adopted the
rationale of Trial Examiner Allen Sinsheimer, Jr.
' The Board has previously asserted jurisdiction against this Respondent
in Western Wirebound Box Co, 145 NLRB 1539, enfd 356 F.2d 88 (C.A.
9). Subsequent to the Judgment of the Court of Appeals, enforcing the
Board's Order, a backpay hearing was held before Trial Examiner Herman
Corenman and, on January 27, 1971, the Board issued its Decision and
Order adopting, without modification, the findings, conclusions, and recom-
mendations of the Trial Examiner (188 NLRB No. 28). As requested by the
General Counsel, official notice has been taken of these cases, as well as of
the case designated as International Woodworkers ofAmerica, Local Union
3-3, AFL-CIO (Western Wirebound Box Co.), 144 NLRB 912
4 During the hearing, Respondent was granted leave, without objection,
to amend its answer to please Section 10(b) as an affirmative defense to
Majure's alleged constructive discharge.
749
(a) Engaging in individual negotiations with truckdrivers
and, after the Union's protest, refusing to discontinue in-
dividual negotiations and to acknowledge the Union as exclu-
sive bargaining representative of said employees, and institut-
ing unilateral changes in wages and working conditions
affecting said employees.
(b) Whether truckdrivers, though not specifically included
in the description of the appropriate unit, and not employed
at the time the Union acquired majority status, are, neverthe-
less, to be regarded as part of the appropriate unit.
(c) Whether truckdrivers automatically became unit em-
ployees as and when they became employed by Respondent,
giving rise to a duty on the part of Respondent to bargain
with the Union with respect to these employees.
4. Whether Respondent discriminatorily locked out its
production employees on August 8 and September 5, 1969,
because they had engaged in a work stoppage to persuade
Respondent to bargain with the Union.
B. Background
Although the Company has recognized the Union as exclu-
sive bargaining representative of its production and mainte-
nance employees at least since 1961, and has engaged in
collective-bargaining negotiations, the parties had not arrived
at a contract as of the date of the hearing.' One June 11, 1962,
during contract negotiations, the employees went on strike,
causing a cessation of operations. Various incidents occurring
during the strike prompted the filing of an unfair labor prac-
tice charge by the Company against the Union, which re-
sulted in a finding of violation of Section 8(b)(1)(A), and the
issuance of a cease-and-desist order by the Board.' The plant
resumed operations in Cobter 1962 with strike replacements
while the strike and picketing continued. On May 17, 1963,
a complaint was issued, based on charges filed by the Union
on October 8, 1962, and May 1, 1963, alleging that Respond-
ent had failed to bargain in good faith by refusing to supply
certain economic data, in violations of Section 8(a)(5) of the
Act, thereby causing an unfair labor practice strike. On Feb-
ruary 6, 1964, the Board, adopting the findings, conclusions,
and recommendations of Trial Examiner Wallace E. Royster,
with certain additions and modifications, sustained the alle-
gations of the complaint, and ordered reinstatement with
backpay for eligible strikers. On January 19, 1966, the Court
granted enforcement of the Board's order.' Between May 5
and 8, 1970, the backpay hearing was held before Trial Exam-
iner Corenman, who issued his supplemental Decision on
August 28, 1970, which was adopted by the Board on January
27, 1971, (188 NLRB No. 28).
According to the findings of the Trial Examiner, adopted by the Board,
in International Woodworkers ofAmerica, Local Union 3-3 (Western Wire-
bound Box Co.), 144 NLRB 912, contractual relations had existed between
the parties for 15 years prior to the expiration of the last contract on June
1, 1962. Under that agreement, the Company recognized the Union as
exclusive bargaining agent of "all employees retained by the Employer
except full-time supervisory and office employees."
6 International Woodworkers of America, Local Union 3-3, supra. The
charge in that case was filed on October 25, 1962, and the complaint issued
on December 18, 1962. Hearings were held on various dates between Janu-
ary 29 and February 20, 1963, before Trial Examiner Martin S. Bennett and
his decision was issued on May 2, 1963 The Board's decision issued Sep-
tember 30, 1963
' See fn 3.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discrimination in Regard to Hire and Tenure of
Employment
1. Contentions
These allegations are based upon the discharges , actual, in
the cases of Stephen Sellery and Roger Andriola, and con-
structive, with regard to Richard Zielony, Everett Alexander,
and Robert Majure because of their union or concerted acti-
vites. With the exception of Sellery a pallet-maker who
worked in the warehouse, all the others were classified as
tieboys or bundlers.
Concerning the tieboys, the General Counsel contends
that, after they manifested their advocacy of the Union, Re-
spondent changed its method of operation so that each of
them was, in effect, required to perform by himself a job
which had previously been handled by two men as a team. As
a result of this action, the job became so arduous and onerous
that Zielony, Alexander, and Majure were compelled to quit
their employment. Respondent contends that the job of
tieboy has traditionally been performed by one employee;
that there was no change in the job after the advent of these
employees; and that, in any event, there is no evidence that
Respondent discriminated against them. Regarding Andri-
ola, the contention is that Respondent discharged him be-
cause of his union convictions and his identification with
Majure, one of the principal union advocates, rather than, as
Respondent contends, because of its dissatisfaction with An-
driola's work. In Sellery's case, the General Counsel contends
that he, like Majure, was a leading union activist in the plant,
and that he was discharged for that reason rather than for
tardiness in returning to his work station after a rest period,
as Respondent asserts.
2. Respondent's operation
Production of fruit and vegetable containers is largely a
seasonal operation , fluctuating with the harvesting seasons in
particular geographical locations, principally, the midwest,
California, Arizona, Oregon and Washington. The containers
are shipped, for the most part, to the users in the field, with
little or no accumulation of inventory at Respondent's plant.
The peak season generally begins in April, rising gradually
until it reaches its height in mid-July. Production then starts
to decline, and the slack period continues until late Septem-
ber. It begins to rise there after, continuing through October,
November and December, and by January begins to slacken
again, with the slack season continuing through March. Be-
tween mid-June and mid-August 1969, Respondent em-
ployed about 90 production employees, excluding mainte-
nance employees and truckdrivers, declining to about 60, by
mid-September.
In the manufacture of wirebound shipping containers, Re-
spondent utilizes nine wirebound machines, six of which are
"mat" machines and three "end" machines. Of the mat ma-
chines, two are used for the manufacture of industrial con-
tainers of 72 inches capacity, not actually involved here, and
the others, of 48 inches capacity.
The manufactured product consists of flattened wooden
containers or mats, made of plywood in various degrees of
thickness, measuring Y, inch to'' inch, and sometimes,' inch.
The term "mat" is used to denote the four flat sections of the
container, without the end pieces. The mat machines stitch
the wire through the four slats of veneer or plywood. When
this operation has been performed, the mats proceed on a
conveyor belt to the end of the assembly line, where a female
employee, known as an "ender," on each side of the line,
inserts an end, and then "nests" the mats in bundles of ten,
resulting in a stack about 20 inches wide, 38 inches to 45
inches long, depending on the size of the mats, and about 6
inches thick.' The enders then slide the completed stack along
a steel top table to the end of the line, where the tieboy is
stationed. It is his job to tie the mats with wire by means of
a tying machine. After tying the bundles, the tieboy cuts the
wire and repeats the operation on the opposite side of the
stack, using a tying machine located on the other side. He
then removes the stack or bundle of mats from the table,
places it on a pallet situated at the end of the table, repeating
the entire operation until he has accumulated a stack of two
piles, each containing ten bundles, to a height of about 10 feet,
including the pallet. This completes his function in the opera-
tion . He then procures another pallet and repeats the entire
procedure. The pallet, containing the two piles of bundles, is
removed by a lift truck operator to the loading dock, and
stacked with other containers brought to the area, enclosed
in a steel band for loading on trucks, if shipment is made by
truck, or left unbanded, if shipment is to be by rail.
The average number of mats produced by each machine is
about 4,000, sometimes less than 3,000 and, occasionally, as
many as 5,000 , per day. Based on an average of 4,000, this
would amount to 400 bundles per day for each machine, or
50 mats per hour, requiring the tieboy to handle somewhat
less than one bundle per minute. An ordinary stack of ten
mats weights between 45 and 55 pounds, depending on
whether the mats are made of wet (green) or dry wood.
3. Alleged discriminatory treatment of tieboys
The gravamen of the General Counsel's case, insofar as the
tieboys are concerned, is that, although in its normal opera-
tions Respondent customarily assigned two boys, working as
a team, to each mat machine, beginning on July 11, 1969,
after the tieboys involved in this proceeding manifested their
advocacy of the Union, Respondent required them to work
at that job singly rather than in pairs, thereby creating such
an onerous condition as to render them incapable of perform-
ing the job without exerting themselves to the point of ex-
treme physical exhaustion. On the other hand, Respondent
maintains that the job has traditionally been performed by
one tieboy at each machine, not only at its plant, but in the
industry generally, except during periods where an ex-
perienced tieboy has been assigned to train newly hired em-
ployees for that job. The testimony on this issue is in sharp
conflict. Witnesses on behalf of Respondent uniformly tes-
tified in support of its position on this issue.'
8 This operation relates only to fruit and vegetable containers, the only
product which is "tied," and not the large industrial containers, consisting
of mats 72 inches wide and 10 feet to 14 feet long, which, because of their
unwieldy nature, may require two or three men to handle Although tieboys
sometimes handle industrial containers , this does not involve a tying opera-
tion
' Among these were Raymond J. Martin, president, treasurer, and gen-
eral manager , who joined the Company in 1964, Maurice O'Connell, vice
president, secretary, and plant superintendent, who succeeded William W
"Walt" Oliver, deceased, as superintendent, John Verbout, supervisor of
truckdrivers, who had worked at the plant as a tieboy for 6 or 8 months in
1947, and had performed the job by himself; and Maintenance Mechanic
William H. Smith, continuously employed in the wirebound box industry
since 1948, a former production superintendent, who had trained tieboys at
other plants. According to these witnesses, the job of tieboy has traditionally
been performed by one employee , except during training periods lasting
from 4 days to 2 or 3 weeks, depending on the aptitude, skill, and effort of
the trainee. In response to an inquiry by Trial Examiner, however, Smith
testified that since March 1969, when he was first employed by Respondent,
he observed two tieboys working together "for the most part," other than
on occasions when one tieboy was training a newcomer Although afforded
an opportunity to pursue this line of inquiry, none of the parties elected to
do so. This testimony was contrary`to that of Respondent's other witnesses,
as well as his own testimony elsewhere , and it is possible that the witness
may have misunderstood or been confused about the questions put to him
WESTERN WIREBOUND BOX CO.
The General Counsel's witnesses, on the other hand, nota-
bly Vena Thompson and Helfred Peterson, both former long-
time employees of Respondent, and members of the Union's
Negotiating and Grievance Committees, as well as the tieboys
who testified, maintained that with rare exceptions the job of
tieboy was performed by two employees working together.
Thompson admitted, however, that shortly before the strike
in 1962, Respondent brought an efficiency expert into the
plant to determine whether the job could be performed by one
man, and that it had been established that this was feasible
only with regard to the handling of containers-made of light
material, but that if they were made of heavy material,_pre-
sumably alluding to industrial or commercial containers,
which, because of their shape and size, were unwieldy, two
tieboys would be assigned to handling such containers at each
machine.
Thompson further testified that when the striking em-
ployees returned to work, two tieboys were working at each
machine, except in the case of tieboys who had been on strike.
These were required to work singly. In fact, according to her,
strikers who had not even previously worked as tieboys were
assigned to tying by themselves. Although Thompson tes-
tified that from 1966 to 1969, two tieboys were assigned to
each machine most of the time, there was no showing that this
did not occur during training periods necessitated by the
inordinate turnover in the job.
Peterson generally corroborated Thompson's testimony,
conceding, however, that prior to the strike, one tieboy was
used at each machine when handling lighter containers or
when there was a shortage of help, but testified that two men
were used to handle the larger containers because they were
too unwieldy for a tieboy to handle alone on a continuous
basis. Like Thompson, she testified that it was impossible for
a single tieboy to keep up with the containers as they came
off the assembly line, and that if a tieboy were left to work
alone, the operators "usually ended up with boxes all over the
floor."" She admitted that during the summer of 1969, she
might have observed tieboys other than Majure working
alone, though for only relatively short periods of 5 or 10
minutes.
In support of its position that, with the exceptions noted,
the job of tieboy has customarily been performed by one
employee at each machine, Respondent introduced certain
statistical data. These included a seniority list covering the
period June 13 to August 11, 1969, showing the extent of
turnover among tieboy employees, together with summaries
compiled from original business records. The seniority list
contains the names of 89 employees, as of June 13, 1969, with
those of 80 additional employees hired between that date and
August 11. As shown by the deletions on this list, 89 em-
ployees, at least 23 of them tieboys, were terminated during
this period. Thus, as Respondent employed no more than 90
persons at any given time, the rate of turnover for all em-
ployees was nearly 100 percent.
The summaries, compiled from the daily work cards, pre-
pared for purposes of internal cost accounting, make it possi-
ble, according to Respondent, to determine from the clock
numbers appearing on the cards the number of tieboys work-
ing at each machine, taking into account training or learning
periods, since all machine operators are women. Employees
performing ending or tying work (designated on the compila-
tion as "ending" or "learning") are listed on separate cost
cards and about 60 percent of their time is devoted to tying.
by the Trial Exmainer
10 In such situations, Thompson testified, the late Superintendent Oliver
and Foreman Verbout personally assisted the tieboys when they appeared
to be falling behind
751
Tying work recorded on the cards which is not charged to a
particular machine is referred to as "learning," and demon-
strates, according to Respondent, that tieboys ordinarily
work alone unless they,are "learning," when their time is not
"cost-coded" to a particular machine. Respondent maintains
that, assuming that all the time spent by persons listed on the
cost cards as engaged in "ending" or "learning" was spent on
the tying operation, and allocating that time to the machines
in operation, the balance would represent the amount of time
the tieboys worked singly.
According to another summary prepared by Respondent,
during April and May 1969, despite substantial turnover and
training; tieboys generally worked separately. As a conse-
quence of turnover and seasonal demands, 53 new employees
were hired in June, of whom 11 were tieboys, and 51, in July,
of whom 14 were tieboys. Beginning in June with the hiring
and training of new employees, it is evident that tieboys did
not regularly work alone. By July, tieboys were working
alone with increasing frequency until the slack season, when
they started to work alone regularly. Furthermore, Respond-
ent contends, since "learners" and "enders" worked only
about 60 percent of their time as tieboys, the amount of time
actually spent by tieboys working separately should be in-
creased by two-thirds over the amount shown in Respond-
ent's summary.
Although the statistical evidence may not be altogether
conclusive, it furnishes sufficient corroboration of Respond-
ent's position that, generally speaking, the job of tieboy has
been performed by a single employee at each production
machine, and that instances in which two men serviced a
machine occurred for the most part during training periods.
The fact that two tieboys appeared to be working together so
frequently is undoubtedly attributable to the extremely high
rate of turnover on that job.
It may be conceded at the outset that the tie job, the
starting job for inexperienced male employees, with a wage
rate of $1.83 an hour, was strenuous, perhaps even grueling,
with little respite, except for rest and lunch periods or hurried
trips to the drinking fountain. Oddly enough, Majure, who
complained more bitterly than the other tieboys who testified,
of the unrelieved rigors of the job, testified that he had sought
employment at the plant because he was looking for hard
manual labor so that he could "get in good physical condi-
tion."" Obviously, the job would have been less strenuous if
it were performed by two men operating as a team. But the
issue is not whether the job was so arduous as to require two
tieboys working together to discharge its function, but
whether, under Respondent's method of operation, the job
has ordinarily been performed by two men and whether, after
the tieboys manifested their predilection for the Union, Re-
spondent, as an act of retaliation, compelled them to work
alone on a job previously performed by teams of two, thereby
creating onerous working conditions. The preponderance of
the reliable and probative evidence falls to establish that prior
to July 11, 1969, the work of tieboys was consistently per-
formed by two men working as a team. On the contrary, the
weight of the evidence supports the conclusion that, except
during training periods, the work of the tieboy, onerous as it
may have been, was performed by a single tieboy working
alone at each mat machine. The burden of complainants'
grievance on this score appears to be that because of the
" According to Maintenance Mechanic Smith, however, the tieboy job
at Respondent's plant was no more difficult than at other plants where he
had worked, except at Machine # 1 (previously designated as Machine #0)
which, because of its location, afforded inadequate space in which the tieboy
could swing the mats around on the table during the tying operation, making
it necessary for him to walk around the table to tie the other end.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strenuous nature of the job, Respondent should regularly
maintain two tieboys at each station. Such a grievance is more
properly a subject for collective-bargaining negotiations be-
tween the parties rather than a vehicle for a claim of discrimi-
nation. Indeed, the subject was raised after July 11, 1969, by
the Union Grievance Committee in a meeting with Superin-
tendent Oliver." There was no contention or showing that
Respondent informed tieboys when they were hired that the
job called for two men at each station or that the subject of
what the job entailed was even discussed, and the evidence
fails to establish that the manner in which the tieboy job was
performed was materially altered during their employment.
In fact, as will presently be seen, Majure admittedly worked
alone prior to July 11, when his union activity first became
manifest.
Turning to the specific cases of alleged discrimination, the
evidence reveals the following:
1. Richard Zielony
Richard Zielony, a University of Notre Dame junior and
varsity football player at the time of the hearing, was hired
on June 6, 1969, as a tieboy.13 He quit his job on July 11,
somewhat more than a month later. During the first 2 weeks
of his employment, he received training from two different
tieboys who quit Respondent's employ not long afterward. In
the third week, Zielony worked alone for about an hour at a
time on two or three occasions. On the last day of his employ-
ment and the previous afternoon he worked alone.
Soon after he started his job, he inquired among the em-
ployees as to whether there was a union in the plant or any
interest in organizing one. He learned that, although there
were union members in the plant, there had been no recent
activity. Zielony discussed this with Robert Majure, who
procured authorization cards from the union committee-
women.
13 On about July 16, 1969, Committeewomen Thompson and Peterson
presented a grievance on behalf of Majure and the other tieboys to Superin-
tendent Oliver According to Thompson, she asked Oliver how it happened
that Mature was the only tieboy who was tying alone He told her, "Mr
Martin is chewing my butt out because I've got two tie-up boys on those
machines " Peterson interjected, "But I beg to differ with you, we just come
down by the machine, and there's two tie-up boys to every machine except
the one Roberts' [Majure's] on " Thompson further testified that for the rest
of the afternoon, two tieboys continued to work at all the machines, except
the one at which Majure was stationed Next day, however, Oliver started
some of the tieboys working by themselves. This practice did not continue,
however, because, according to her, the tieboys were not able to keep up and
some of them walked off the job. In fact, Thompson maintained, "[e]ven
with two boys, it was hard to keep tie boys." Significantly, there is no
indication that the grievance committee at this or any other meeting charged
that the Company had taken the action against the tieboys in reprisal for
their union activity. For aught that appears, whatever action was taken was
for reasons of business expediency. Thompson conceded that she did not
pursue the grievance even though she believed that the procedure was still
in effect (notwithstanding the expiration of the labor contract) because the
committee met with both Martin and Oliver regarding grievances, and
attempted to have them resolved. Admittedly, the grievance committee did
not request a meeting with Martin on the subject, while conceding that
Martin never denied the committee the right to meet with him on the subject
of grievances, although, according to her, the parties could never reach
agreement, and there was no recourse from his decision. Thompson, who
had been in Respondent's employ for more than 23 years, and active in the
Union since the 1950's, voluntarily quit on July 28, 1969; Peterson, who had
been employed nearly 19 years, also an active unionist, terminated her
employment in late August 1969.
" Plant Manager Martin was himself a Notre Dame alumnus and his
nephew was also a member of the football team This apparently led to
Zielony's employment at the plant .
On Thursday, July 10, the day before Zielony quit his job,
Mature gave him three or four cards, one of which he gave
to a female employee, whose identity he could not recall. At
about 1 o'clock that afternoon, Superintendent Oliver as-
signed Zielony, who had been working with another tieboy,
to work alone for the rest of the day. Next morning, Friday,
July 11, Zielony started working with another tieboy. After
5 or 10 minutes, Oliver assigned them each to work at sepa-
rate machines. After working by himself several minutes,
Zielony observed that a single tieboy was working at all by
one of the five or six machines in operation that morning.
According to Zielony, except for intervals of perhaps a few
minutes, he had never observed tieboys working singly.
Zielony admitted that because he was vexed at the develop-
ment, he worked at a slower pace, lagging behind in his work,
and then speeding up as the mats began to pile up. During
this interval, Oliver spoke to Zielony at his work station, and
gave him some "friendly hints" about stacking the mats.
Although Oliver had previously instructed Zielony to line up
all the mats perfectly, he told him not to worry about it, to
just get them tied and placed on the pallet. On this, or another
occasion, probably the same day, Oliver told Zielony that the
Company was disappointed in him because he was not per-
forming according to the standards they expected of him.
Oliver made some suggestions about his stacking the mats
and gave him a "pep talk." Martin himself also spoke to
Zielony the same morning, making similar comments.
Zielony conceded that, although the work was hard, he was
able to keep and even get ahead somewhat. In fact, noticing
that another tieboy, Everett Alexander, a deaf mute, working
at another machine, was having difficulty keeping up with the
machine and "really hurting," Zielony helped him out when-
ever his own work permitted."
By noon, Friday, July 11, while Zielony and Alexander
were eating their lunch, both men had decided to quit their
jobs. Zielony testified, "I couldn't see working this ?way] for
the money, and I was just-it was really ridiculous working
there like this, and Everett-I wasn't sure whether he would
leave or not, you know. He was really hurting bad, and so I
[made a gesture inviting Alexander to leave]." The two men
finished their lunch, went to the plant office, and notified the
secretary there that they were leaving.i5
Upon the basis of this evidence, the General Counsel con-
tends that Zielony was constructively discharged by having
been subjected to oppressive and onerous work because of his
union or concerted activities. To begin with, the union ac-
tivity in which Zielony engaged was relatively trivial. He had
discussed the Union with employees, received authorization
cards from Majure, and had handed a card to an unidentified
female employee. Unlike other union adherents in the plant,
he admittedly did not wear a union button. Moreover, the
only evidence of company knowledge of his union activity
was his testimony that Majure handed him the union cards
in front of the main office, where Superintendent Oliver was
standing at the time. Zielony concluded from this that Olivei
must have seen the incident " unless he was blind." Later
when Zielony handed a card to the female employee, before
11 According to Zielony, Alexander's hands were bleeding slightly an(
covered with bandaids, and because the loaded pallets were not remove(
promptly, Alexander found it necessary to carry stacks of mats a distant
of 10 feet or more for loading on other pallets, while the mats were backin,
up on the machine and table. Alexander, who was able to communicate wit]
other similarly handicapped employees, by sign language , or with othe
employees by writing on a pad, was not called as a witness.
" Zielony, who was 6 feet tall and weighed 210 pounds, testified that h
was tired and perspiring profusely at the time, even though he was in "prett
good shape" to start with. He qualified this by saying that he was nc
excessively tired, but that it was "tiring work."
WESTERN WIREBOUND BOX CO. 753
having noticed Oliver, he turned and saw him some 10 or 15
feet away, looking in Zielony's general direction. Since Oliver
has since deceased, Zielony's testimony stands uncon-
tradicted. Nevertheless, this evidence is insufficient to sustain
the burden of proof required to establish Respondent's
knowledge of Zielony's union activity. In any event, assuming
Respondent was aware of or suspected Zielony's union ac-
tivity, the evidence does not support a finding of constructive
discharge.
Zielony admitted that he had been criticized by Superin-
tendent Oliver. Plant Manager Martin testified that Oliver
had reported to him that he was "very unhappy" with
Zielony, who worked by fits and starts and that, although he
appeared capable of handling the job, was not doing so de-
spite earlier warnings. At Olivers's suggestion that, since
Martin had personally given Zielony his job, he might wish
to discuss the matter with him so that Oliver would not have
to terminate him, Martin talked to Zielony, and told him that
he "either had to make up his mind that he was going to do
the job, or that he was going to'have to leave." A day or two
later, Martin notified Zielony that Oliver had reported that,
although Zielony had improved briefly after Martin's talk
with him, he had started to fall behind again, causing the
halting of the machine.
It is evident from Zielony's own testimony that he was not
so much concerned with the rigors of the job or that, in his
view, he was, in effect, being required to do the work of two
tieboys, as that he considered that he was not receiving wages
commensurate with the work he was doing. To quote
Zielony, "I couldn't see working as hard as I was ... at the
pay scale." Zielony discussed this with Martin and asked him
whether he considered it "normal" for a tieboy to be working
by himself. Martin replied that was the way tieboys had
always worked. Zielony countered. "That's ridiculous; you
know, this is too hard for what you're paying people to do this
-for one person to do it," and that the job "was hard
enough" for two men. Zielony expressed similar views to
Superintendent Oliver, and conceded that after Oliver first
assigned him to work as tieboy alone, he told him that he
"wasn't going to do this by myself for what he was paying
me." Oliver rejoined, "Well, if you're not, well, then, you're
fired." Zielony resumed his work but when Oliver returned
later, Zielony had stopped working and was sitting down,
allegedly because the machine had broken down, resulting in
a piling up of mats. Oliver returned after the machine had
restarted, discovered that Zielony was not tying, and told him
that the other tieboy, whom he had assigned another task,
would return in about 5 minutes. Zielony started working
again until the other tieboy returned.
The day before Zielony quit, Oliver reported to Martin that
Zielony had driven into the company parking lot at high
speed, nearly injuring a watchman and two female employees.
After reproving Zielony, Martin told him that Oliver had
again complained that Zielony had not been doing his job.
Martin said that he would either have to do his work or quit,
otherwise he would have to instruct Oliver to terminate him
at the close of the shift. When Zielony reiterated that he did
not feel the job paid enough, Martin reminded him that the
subject had been discussed before, that that was the rate for
the job, that it had been historically performed by one man,
and that Zielony was, physically capable of performing the
job. Zielony agreed but said that he did not intend to work
on that job at those wages. Martin stated that he would be
willing to have Zielony continue until he found a better pay-
ing job, but that he would have to make up his mind then and
there, and that if he was not prepared to do the work, he
should quit, if he did not want the Company to terminate
him. As has been seen, Zielony decided to quit. His separation
notice gave as the reason for quitting, "Too little money."
2. Everett Alexander
Everett Alexander, the deaf mute, was hired as a tieboy on
June 5, 1969, after learning that the Company had employed
other employees with similar handicaps. With Zielony, he
quit on July 11. For all but 2 days, he worked regularly 8
hours a day until noon of the day he quit. As has already been
stated, he was not called as a witness. The evidence concern-
ing him was elicited primarily through Zielony and Martin.
No evidence was offered as to his union membership, sympa-
thies, or activity. There was no showing that he signed a
union card or wore a union button. Martin categorically
denied knowledge of any union activity or sympathies on
Alexander's part, and there is nothing in the record to sup-
port a finding of such knowledge on Respondent's part.
Zielony testified that Alexander was required to work
alone as a tieboy and, because of his slight physique, was
unable to keep up with the workload. Alexander's hand, on
at least one occasion, was cut and bleeding from the wire used
in tying the mats. As has been related, Zielony often went to
Alexander's aid whenever his own work permitted. It should
be noted that Alexander, like other tieboys, had worked alone
prior to July 11. Since, so far as the evidence reveals, he had
engaged in no union activity, there is no basis for concluding
that Respondent intensified his duties or made his job more
onerous because of any such activity. Any possible inference
of discrimination against him must be predicated upon the
supposition that Respondent had linked Alexander with in-
dividuals who were known or suspected union adherents, an
inference not supported by the record.
3. Roger Andriola
Roger Andriola, a University of Southern California stu-
dent, was hired as a tieboy on July 22, 1969, and worked at
that job with another tieboy until July 28, when he was
assigned to work alone. He was discharged on July 31, 1969,
under circumstances presently related.
Andriola first applied for a job at the plant a week earlier,
on July 15. Told that there was no work available for him that
day, but that he might check back later, he filed an employ-
ment application. He did not leave the plant immediately but
stopped to observe the tieboys at work. Among them, he
recognized Robert Majure, whom he had known previously,
and noted that Majure was working at the end of a machine
by himself while two men were working at other machines.
Andriola returned a week later, was hired, and assigned to
work with Majure. According to Andriola, he worked with
Majure "as a team," in contrast to what Andriola had ob-
served the week before, when Majure was working alone.
After working with Mature the morning of his first day,
Andriola was transferred to another machine, working with
another tieboy, two machines away from Majure's work sta-
tion. For the remainder of the week, Andriola worked at the
machine with another tieboy. The following Monday, Super-
intendent Oliver assigned Andriola to work by himself. Soon
afterward, Andriola pinned a union button to his shirt collar.
There is no intimation that Oliver noticed that Andriola was
wearing a union button and Andriola admitted that Oliver
did not comment on it.
There were no "major changes" in his work assignments
thereafter, and he continued to work as a tieboy by himself.
A day or two later, he was assigned the additional task of
ink-stamping a number-on his stacks, while they were on the
pallets but his principal job, that of tieboy, remained un-
changed. He continued tying by himself for the remainder of
that week.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Andriola admitted that beginning with the second week of
his employment , Superintendent Oliver began to criticize his
work, and testified that the criticism "escalated the better [he]
got." During the first week, Oliver had been "quite friendly"
and helpful , but the second week, "about an hour after [he]
put the union button on," Oliver became critical and very
irked with him. According to Andriola , whenever Oliver
walked by, he told him "for no apparent reason ," that if his
work did not improve, he need not return . Andriola testified
that this was the first morning he had been assigned to work
alone, and this, despite the fact that he had been unable to
keep up his end of the job while he was still working with
Majure only a week earlier . According to Andriola, he was
doing well, though he conceded that he was not keeping up
with the machine, and that, except for Majure , none of the
other tieboys who were working alone were able to do so.
That was the first time, Andriola testified , that Oliver became
"rather nasty" and, reddening perceptively , told him that if
he did not do better , he need not come back.
Two days later , an "inspector," identified at the hearing as
O'Connell , foreman at the time, who, Andriola believed, had
been deliberately watching him from a short distance , criti-
cized him for not having his stack properly lined up with the
pallet . Andriola asked the man whether he wanted him to
realign the stack, but was told that there was no time and was
ordered back to the machine. About 10 minutes later , Super-
intendent Oliver , who, according to Andriola , had been ob-
serving him a short distance away, told him that his stack was
"completely off," adding that it would not do and would have
to be restacked. As Andriola started to comply, Oliver told
him that there was no time for that , and ordered him back
to his station . Andriola admitted that he was criticized by
both men for not having his stacks properly aligned and for
not working fast enough.
By Thursday of that week , however, according to Andri-
ola, he was no longer receiving any criticism . Nevertheless,
Oliver discharged him that day. Oliver summoned him to his
office and, while he was distributing paychecks, handed him
his, and told him that he need not return. Asked why , Oliver
said, in effect, that Andriola was not doing well enough.
Andriola asked Oliver to be more specific , pointing out that
he had done his best day 's work yet that day, that he had
made "perfect stacks" all day , had finally "mastered the job,"
and "beat[en] the machine for the entire day." He also told
Oliver that, while inspecting the area, Martin himself had
complimented him on his work , and that he had received no
criticism the entire day. Oliver remained adamant, reiterating
what he had said . Andriola left Oliver 's office and, when he
saw Martin , related what had occurred, and asked him why
he had been terminated . Martin ventured that Oliver must
have given him a good reason and suggested that they talk to
Oliver . Martin questioned Oliver , in Andriola 's presence, as
well as O'Connell's, as to the reason for Andriola 's termina-
tion . Oliver declared that Andriola had not been working fast
enough . Pointing to the last stack he had completed that day,
which he regarded as one of his best , Andriola asked what
was wrong with it , remarking that it was an unusually wel-
laligned stack , compared with stacks made by other tieboys.
Martin agreed but stated that he was only in the area infre-
quently, and that it was the responsibility of the supervisors
to make decisions regarding the quality of the work of
tieboys. Martin asked O'Connell whether Andriola had been
keeping up with the machine, but the record does not disclose
O'Connell 's response . Andriola directed Martin 's attention to
a stack a short distance away, made by Chris Jasper, which
he compared unfavorably with his own , and asked why the , ,
other tieboy was not being discharged. After comparing the August 15, 1969 , to return to college
two stacks , Martin told Andriola that it looked as though
Jasper would be fired as well."
Andriola, 5' 10" tall , weighing about 170 pounds, and in
good physical condition , testified that the job of tieboy work-
ing alone, was the hardest he had ever had . He admitted,
however , that he at no time complained to Martin , or to any
other management representative that the job of tieboy re-
quired two men , and that he never registered a complaint to
that effect.
Andriola's union activity consisted of discussions with em-
ployees during lunch periods , distributing union buttons to
tieboys and other employees , and wearing a button, some-
what less than the size of a quarter, on his work shirt . Accord-
ing to Andriola, the day he first wore his union button at the
plant, only about five employees , including Majure, himself,
and several women , wore buttons in the area in which he
worked . He also testified that while he was employed at the
plant, other employees, both men and women, though not
always the same individuals , wore union buttons. He
conceded , however, that neither Oliver nor O'Connell actu-
ally observed his union activities and that he did not know
whether either of the men was aware of them . As to whether
Oliver or any other management representative ever called
attention to the union button he was wearing, Andriola tes-
tified , "Not verbally." While he was discussing his termina-
tion with Martin, however, Andriola noticed him looking at
his union button ; although Martin made no comment. Nei-
ther Martin nor any supervisory employee made any refer-
ence to the fact that Andriola or any other employee was
wearing a union button . According to Andriola, he did not
believe that management was actually aware of his activity
during the lunch period , although he assumed that Oliver
probably knew that Andriola and Majure were friends. An-
driola also supposed , from the fact that Oliver appeared to be
looking in their direction when Majured handed him a union
button, that Oliver was aware of his union sympathies.
According to Andriola , in contrast to some employees who
wore union buttons in the plant during this period, he never
removed his button while at the plant. Andriola maintained
that it was not until after he started wearing his button that
Oliver "became hostile," although Oliver never made men-
tion of it, despite the fact that Oliver had occasion to speak
to him several times a day.
Assuming, in Andriola's favor, that Oliver was, indeed,
aware of his union activity before his discharge, no satisfac-
tory explanation was offered as to why Majure , who was far
more active, and others who also wore union buttons were
not discharged or otherwise disciplined . Of course, it has been
alleged that Majure was constructively discharged some 2
months later, as discussed hereinafter, but it is undisputed
that he took the initiative in terminating his employment.
Granted that , during the summer months , Respondent was
in its peak season and contending with substantial turnover,
it seems unlikely that it would have retained Majure in its
employ if it were bent on eliminating the most active union
adherents.
4. Robert Stanley Majure III
Robert Majure , 23 years of age and a substitute teacher,
working toward a permanent teaching job at the time of the
hearing, sought employment with Respondent in response to
a newspaper advertisement . As mentioned earlier, he was
looking for hard manual labor in order to "get in good physi-
cial condition ." With Stephen Sellery , he applied for work on
as will later appear16 Jasper was not discharged, but quit voluntarily on
WESTERN WIREBOUND BOX CO. 755
June 4, 1969, and was assigned as a tieboy, working with
another tieboy during his training period. According to Ma-
jure, from then until July 11, he never worked alone, except
for brief periods when the other tieboy left to go to the drink-
ing fountain or for some other momentary reason.
Soon after Mature and Sellery were hired, as a result of a
discussion with Janet Magruder, a girlfriend of Sellery's,
about the physical hardship of the job, they decided that a
union was needed at the plant. They were obviously unaware
that there was already a union in the plant. After Magruder
contacted the Union, they met with a representative that
night. He counselled them to "become good workers," ob-
serve punctuality, obey orders without complaining, and
become acquainted with their fellowworkers.
On Wednesday morning, July 9, Majure and Sellery ob-
tained authorization from Committee Members Thompson
and Peterson, as instructed by the union representative. Dur-
ing the noon hour, they discussed the Union with several of
the employees and later that afternoon furnished them with
authorization cards. Several employees signed cards at Maju-
re's home that evening.
Next day, July 10, Majure supplied some cards to Margaret
Shields, an "end" girl. During the lunch period, Majure
spoke about the Union to a group of the younger employees,
who usually ate their lunch at Machine # 3 or # 4. Among
this group were Mary Ann and Judy Martin, daughters of
Respondent's president, who were employed at the plant.
When they tried to dissuade the others from joining the
Union, Majured called some of them aside and, whenever
they were persuaded to accept a card, Majure procured some
cards from Sellery and passed out four cards, two to two male
employees, including,Zielony and two to females. According
to Majure, Superintendent Oliver observed him engaging in
this activity. Zielony had agreed to recruit employees for
membership, and, according to Majure, he was handing
Zielony some cards when he observed Oliver walking by.
Majure also testified that the Martin girls asked him if he was
unionizing by himself and he replied that he was not, that
Sellery was also engaging in that activity. Several minutes
later, Sellery reported to Majure that the Martin girls had
referred to Sellery, as the "passive one, because [he] was a
sociology major," and to Majure, as "the active one because
[he was] a political science major."
On Friday morning, July 11, Majure was working at Ma-
chine #0 with Chris Jasper. After about an hour, Oliver
ordered Jasper to work out in the yard, which the Company
had planned to asphalt. Later, Majure learned from Jasper
that Martin had told him that the job of tieboy was a one-man
job. Jasper did not return,to the tieboy job that morning,
although, according to Majatre, the Company never resur-
faced the yard as long as he was employed there. Majure
continued to work alone until noon. During the lunch period,
Majure talked to employees about the Union at the same
place where they usually congregated and collected signed
cards. As will presently be seen, Sellery was discharged soon
after the end of the lunch period.
Shortly afterward, Superintendent Oliver approached Ma-
jure at his work station, where the assembly line had come
to a halt. According to Majure, this had resulted either from
a breakdown in the machine or the delay by the forklift
operators in removing the accumulated stacks. Majure admit-
ted, however, in his testimony, that the machine might have
been stopped for his benefit because that was^the only time
he recalled that the machine had ever stopped while he was
tying by himself. Oliver warned Majure that if the machine
ever.stopped again because of him, hewould be through at
the plant, and that if he was unwillingY to do the work,, he
shouldleave.,.Malure did not take issue=with Oliver, fearing
he might be fired. He continued in Respondent's employ,
however, until early in September, when he terminated his
employment.
Majure testified that from July 11 to September 5, he
worked by himself, except when training a newly hired
tieboy, as in the case of Andriola. According to Majure, he
worked with Andriola for no more than 3 hours, when Ma-
jure was left to work alone. No tieboy was regularly assigned
to work with Majure, and he received aid only on a temporary
basis when a tieboy voluntarily offered to help him out. Ma-
jure further maintained that throughout his employment he
was the only worker who tied by himself regularly. Turnover
among tieboys, Majure testified, was "fantastic," many leav-
ing after only a few days. Majure conceded that Jasper had
remained in Respondent's employ for an appreciable length
of time, but contended that he had observed Jasper tying with
other tieboys on "numerous occasions." This could have
been, however, while Jasper was training newly hired tieboys,
though Majure did not draw this distinction. Although
breakdowns of the machines were not uncommon, requiring,
according to Majure, the constant attention of the mechanic,
the lines on which he worked operated fairly constantly.
Moreover, he explained, his job rendered increasingly ardu-
ous because Respondent had changed from using dry wood
to green or wet wood in the manufacture of mats, thereby
increasing the weight of the load and making it increasingly
onerous for a tieboy to work alone.
On August 8, as will later appear, the production em-
ployees engaged in a work stoppage which Majure helped
plan and in which he participated.
Describing in vivid detail the duties of the tieboy, Majure
left no doubt that he and others working on the job alone
considered it strenuous and physically exhausting. Referring
to Zielony, the football player, Majure testified that during
the first rest period of the Friday morning Zielony was as-
signed to work alone, he was "sweating like a pig," told
Majure that he "couldn't take it," "especially for such little
wages," that it was "just absolutely absurd," and that he
intended to quit. Majure commiserated with him, and
warned, "That's just what they want you to do; so, try to keep
it up."
Majure further testified that by the end of the day his back
ached and his feet were often numb due to the weight he had
been required to handle. In addition, he claimed, because the
forklift operators were laggard in bringing him empty pallets,
he was often required to fetch his own, making it necessary
for him to carry them over his head or drag them on the
ground from "half way across the factory" to his work sta-
tion. While working, he was obliged to keep "hopping," al-
though he tried to make a joke of it, but the physical effort
was sometimes "excruciating" and,the fatigue intense. So
much so, he testified, that,he would-often call in sick 1 day
a week in order to keepxwith his job.).Without minimizing
the physical hardship which Majure claimed to have endured,
it might be observed that he did not possess anything like the
physique or stamina of his football player fellow workers, and
that this undoubtedly contributed to his difficulties:
Significantly, Jasper, a Klamath Falls college student,
hired as a tieboy on June 16, 1969, less than 2 weeks after
Majure, testified that, after a training period of about 3 weeks,
he worked- alone as a tieboy, except when he was training
another tieboy."
During his own training period, Jasper was assigned to
work with Majure. As already mentioned, he had been work-
ing with Majure part of the morning of July 11, when Super-
" Although served with a subpena by the General Counsel, he was not
called as a witness in his case, but testified in Respondent 's case.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Oliver detailed him and another tieboy to what
Jasper described as general cleanup work. Jasper was later
returned to his tying job, although he could not -recall
whether he worked by himself the remainder of the day. He
testified, however, that he continued to work at the tieboy job
by himself. He admitted that job was arduous, particularly
during hot weather, but that he did not ordinarily experience
any difficulty keeping up with the job, commenting, " ... if
you wanted to sit around and loaf, you know, you had prob-
lems keeping up, but if you worked at it pretty good, you
could do it." Although he admitted that he was in good
physical condition, having also played football, he conceded
that on some days he found it necessary to rest during his
lunch period. He testified, however, that, although Majure, as
well as other tieboys, were able to handle their jobs working
alone, they all experienced -some difficulty occasionally. He
was not told when he was originally hired whether he would
be working alone or with another tieboy.
Jasper left Respondent's employ voluntarily on August 15,
1969, preparatory to returning to college. He returned to
work at Respondent's plant in the summer of 1970, as a wire
boy, and later worked on a hopper making cleats. He again
left in mid-August. Jasper conceded that he was a friend of
Martin's and his family, and that he could probably expect
a job at the plant in the summer if he did not succeed in
obtaining more lucrative employment elsewhere.
Martin denied any knowledge of Majure's union activity
prior to August 7, about a week after a union leaflet soliciting
membership was circulated at the plant. The leaflet listed
Manure's name and telephone number, with those of Commit-
teewoman Thompson and Peterson, as persons to contact for
those who wished to join or obtain further information about
the Union. Mature, however, claimed that Oliver had seen
him passing out union buttons or cards. In any case, it is
conceded that Respondent was aware of Majure's union in-
volvement at least as early as August 7.18,
Assuming that Respondent was fully aware of Majure's
union activity, including his role in connection with the work
stoppage on August 8, later discussed, this evidence proves
too much, for it demonstrates that, despite Majure's extensive
union activity, and, even assuming that Respondent was hos-
tile or antagonistic toward the Union,, despite its continued
recognition, Respondent took no steps to terminate Majure.
On the contrary, the separation was actually as a result of
Majure's decision to quit.
The evidence is altogether insufficient to justify a conclu-
sion that Respondent either required Majure to work as a
tieboy by himself or that it burdened him with more arduous
or onerous conditions in retaliation for his union activity.
Conceivably, Majure may have worked alone to a greater
extent than other tieboys during July and, August, the peak
season , because of his greater experience and the high turn-
over, except when he was admittedly training newly hired
tieboys. But this was equally true of Jasper. Furthermore,
there was no showing that when he terminated his employ-
ment, he claimed that he was, quitting because of the onerous
conditions which Respondent had imposed upon him al-
legedly because of his union activity.
" Further evidence was given by Margaret Shields, a University of Ore-
gon sophomore, hired as an end girl on June 9, 1969, that on July 10, Mature
gave her four or five authorization cards, two of which she handed to female
employees in plain view 'of Superintendent Oliver. According to her undis-
puted testimony, she rode to work with the two Martin girls, and on July
10, she accidently dropped some union cards in the Martin driveway. Next
day, the Martin girls returned the cards to Shields It may reasonably be
assumed that the Martin girls reported this to their father, although there
was no showing that this included information that Mature was involved in
the union activity.
It is significant that, in a mimeographed leaflet addressed
to his fellowworkers, issued on September 11, almost a week
after he quit, in which he exhorted the employees to remain
steadfast, he declared, "I have done what I can as an em-
ployee of Western Wirebound for our cause," and concluded,
"I am ending my employment at Western Wirebound. But
Forest Pool [Business Agent] and Steve Sellery and your
Committee will remain to handle any future difficulties or
challenges that arise." Majure returned to Reed College,
where he completed his academic work, and received his
degree on October 10, 1969, which suggests that his real
reason for leaving Respondent's employ was his desire to
complete his scholastic training rather than any fancied griev-
ance against his employer.
Considering the evidence with regard to the individual
tieboys alleged to have been discriminated against, and the
nature of Respondent's overall operation, especially insofar
as it affected tieboys, it is found that the allegations that
Respondent constructively ' discharged Zielony, Alexander,
and Majure, by changing its method of operation, on and
after July 11, 1969, to require a single tieboy to perform the
job previously done by two tieboys, as a means of reprisal for
engaging in union or concerted activities, has not been estab-
lished by the preponderance of the reliable and probative
evidence." Moreover, it is found that the job of tieboy has
traditionally been performed at Respondent's plant, and in
the industry in general, by a single tieboy, except during
training periods, and for relatively short periods, depending
upon normal business exigencies. Whatever complaints
tieboys, or their representative, may have had regarding the
onerous nature of their work tasks, such complaints would
have more properly been channeled through the medium of
collective bargaining.
With regard to Andriola, it is further found that he was
discharged because of dissatifaction with his work rather than
for discriminatory reasons based on his union or concerted
activities.
5. Stephen Sellery
Stephen Sellery applied for employment at the plant with
Majure on June 4, 1969, as a result of a newspaper advertise-
ment. Sellery was hired as a pallet maker. His meeting with
the union representative, in the company of Majure and Ma-
gruder, has already been mentioned. Reference has also been
made to their procuring union cards from the committee-
women in the plant. Sellery and Majure kept the cards in a
common lunch sack.
During the next 2 days, Sellery spoke to employees in the
warehouse, located in a separate building about 25 yards from
the production building, and distributed six or eight cards to
warehousemen at the coke machine, on the loading dock, and
in the parking lot.
" It should be noted that, although the original charge, filed on August
14, 1969, included an allegation that Respondent had discriminated against
Majure and other tieboys by "discriminatory excessive work assignment,"
the constructive discharge of Majure was not alleged until the amended
charge, filed June 24, 1970. Since Mature did not actually quit until after the
filing of the original charge, it could obviously not have been alleged in that
charge. In view of the disposition of the allegations relating to Mature, it is
unnecessary to decide whether, since the amended charge was filed more
than 6 months after the alleged constructive discharge, these allegations are
barred by Section 10(b) of the Act. However, in view of the timely filing of
the original charge, which fairly apprised Respondent of the nature of the
claim, this would not furnish a ground for dismissing the complaint with
respect to him Cathey Lumber Company, 86 NLRB 157, 159-160.
WESTERN WIREBOUND BOX CO. 757
During lunch, Majure told Sellery that Zielony needed
some cards. Sellery took out about half a dozen cards from
the sack and handed them to Majure, who turned them over
to Zielony. According to Sellery, Superintendent Oliver was
packing in the aisle between the machines and Oliver's office,
and presumably observed the activity. During the lunch
period, Friday, July 11, Sellery was at one of the machines
near the center of the factory opposite Oliver's office, talking
about the Union to some female employees, including the
Martin girls. About halfway through the lunch period, Ma-
jure suggested that they speak to the girls at Machine #0.
Majure and Sellery went to that machine, where Shields,
Cathy Lohbeck, and other employees had been assigned.
Normally, a warning signal is sounded 5 minutes before the
end of the lunch period , and a final signal , 5 minutes after-
ward. The persons in the group were eating their lunch and
talking, and no one, Sellery included, appeared to have heard
the warning signal. When the final signal sounded, Shields
appeared startled, and the girls leaped up and began working
at their machines. When Sellery questioned whether that had
been the final signal , Majure remarked that he assumed it
was. collecting his lunch sack and soft dunk can, Sellery
started back to the warehouse. He had taken four or five steps
when he ran headlong into Superintendent Oliver. As Sellery
came to a halt, Oliver rebuked him with the remark, "We
don't pay people not to be at their work place after break;
punch out." Sellery told Oliver that he was going right back
to work, and that he had worked 5 minutes past the signal
for the rest period that morning because he had not heard it.
Oliver retorted that Sellery was always late, that the Com-
pany could not put up with it, and ordered him to go home.
Sellery offered no protest, testifying that he did not regard it
worth "quibbling about," and merely said that he was sorry,
that it would not happen again, and that he would like to go
back to work. Oliver refused and told him to go home.
Sellery went to the timecard rack where he discovered that
his card was missing. He reported this to Oliver and told him
that he could not punch out. Oliver told him not to worry
about it and that he would punch him out. Sellery started for
the warehouse to get his sweater and make his farewells to his
fellow employees. En route, he encountered Oliver, who or-
dered him to leave, that he had no business being on the
grounds. When Sellery said that he had just gone back to say
goodby to his fellow workers, Oliver again ordered him to
leave. Sellery told him that he would have to return to pick
up a passenger who rode with him. Oliver acceded but told
Sellery not to come "past the gate" and Sellery left.
Although Sellery denied that he had ever been late return-
ing to work after the lunch recess and testified that he had
never been criticized on that account, he conceded that on
one occasion Oliver had warned him about returning to work
late after a rest period. This occurred on a hot afternoon,
when Sellery and other employees, who had been loading
trucks, were sitting inside the gate, between the dock and the
factory, with a hyster driver and dock worker, a minute after
the signal had rung for the end of the rest period. Oliver
approached them and ordered the men to go back to work.
Sellery also testified that he had no recollection of being
warned about arriving late in the morning or leaving early in
the afternoon, but conceded that the warehouse employees,
in contrast to the production employees on the assembly line,
may have been less punctual in reporting for work. In his own
case, however, since he drove to work with Majure, whose
work as a tieboy was more closely related to the assembly
line, Sellery claimed he reported on time. He admitted, how-
ever, that the warehouse forklift operator apparently a lead-
man, and a warehouse supervisor in the yard , had criticized
Sellery and other warehouse employees for leaving work too
early in the afternoon. The supervisor told Sellery that he did
not mind, but that Oliver had complained to him about it. On
the other hand, according to Sellery, the leadman had insisted
that the warehouse employees put away their tools before
quitting time, at 4-o'clock and, on several occasions, took
away Seller's tools 5 minutes before quitting time, once even
unplugging the air supply to Sellery's staple gun.
Rest periods at the plant, according to written instructions,
which newly hired employees are required to sign, take place
at 10 a.m. and 2 p .m. During the morning rest period , a signal
is sounded at 10:05 a.m., when the employees are required to
start back for their work stations . When the next signal is
sounded , 5 minutes afterward , the employees are required to
start working again . The same procedure is followed with
regard to the afternoon recess. The warning signal for the end
of the rest period is sounded at 2:25 and the final signal at 2:30
p.m. This procedure also applies to the lunch period, the
warning signal at the end of the lunch period being sounded
at 12:25 with the final signal at 12:30.
Sellery admitted that he was aware of this policy and that
he had signed a copy of such a statement. He acknowledged
that employees were extremely punctual about being at their
work stations when the final signal sounded, and testified that
they were, in fact, generally early, arriving at their posts
before the final signal. As has been seen, Sellery usually ate
his lunch with other employees in the factory rather than in
the warehouse where he worked. Admittedly, Sellery did not
return to his work station before the final signal was sounded,
although others in the same group , who were closer to their
posts in the factory, were able to do so. Sellery appears to
contend that the warning signal was not, in fact, sounded,
either because of a malfunction in the signalling apparatus or
because it simply was not audible . There appears to be no
dispute, however, that all the employees heard the final signal
at 12:30. No evidence was offered of any malfunction in the
signalling device which operated on a timeclock , and accord-
ing to Respondent, there had been no occasion to have the
system repaired at any prior time. While it may have been
difficult to hear the signal when the machines were in opera-
tion, it is undisputed that the machines were not in operation
during the lunch period. Indeed, a witness for General Coun-
sel, testified that, despite the fact that she had difficulty in
hearing the signal in the area she worked, she was never late
in returning to her work station . It, thus, appears unlikely
that the 5-minute warning signal was not actually sounded.
It is more probable that the group of employees , engrossed,
as they apparently were, in union discussion , may not have
heard the warning signal.
The issue , however, is not so much whether the warning
signal was actually sounded and Sellery failed to hear it, or
whether it failed to function due to mechanical difficulty, but
whether, as Respondent maintains , it terminated Sellery
solely because of his failure to observe the warning signal,
which prevented him from being at his post in the warehouse
when the final signal sounded , or whether Respondent seized
on this dereliction as a pretext to discharge an employee
because of his union activity.
Respondent contends that Martin was not even aware of
Sellery's union activity until August 1969, nearly a month
after his discharge , when his name appeared on a union lea-
flet. Prior to his discharge , his union activity had consisted
of soliciting union membership and distributing union cards
and buttons. Sellery conceded that , as far as he was aware,
Martin never observed him distributing cards, although he
contended that the late Superintendent Oliver had observed
him and Majure, at a distance of some 35 feet, distributing
cards during a lunch period. According to Sellery, however,
although Oliver was in the vicinity on several occasions, while
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was conversing with employees, Sellery was not looking in
Oliver's direction and, as Sellery himself put it, "I didn't
spend my time paying attention specifically to Mr. Oliver
because I was aware that the union activity was protected,
and it didn't matter to me whether or not he saw."
Respondent argues that in Sellery 's case, as with the other
alleged discriminatees, there is an absence tf.disc_riminatory
motive, especially when considered iii' light, of the fact that
Respondent did not discharge or otherwise, discriminate
against Committeewomen Thompson -- and 'Peterson, the
Union's official representatives at the plant, or_take,similar
action against Majure, who was- certainly as active, if not
more so, than Sellery. Significantly, it developed during Mar-
tin's cross-examination by the.Charging Party, that Ronald
Baumgardner, a former chairman of the Union's grievance
and negotiating committees, had been discharged after sev-
eral warnings for leaving his machine a minute early." Of
course, with regard to the commiteewomen and' Majure,
there was no showing that any of them had afforded respond-
ent any cause for discharge. Besides, as to the,twowomen, in
view of their outstanding role as:union representatives, and
their long tenure as employees, it is unlikely that Respondent
would have resorted to a stratagem to eliminate them, even
if it were shown that Respondent was hostile or antagonistic
to the Union, which the record fails to establish: In any event,
it is well established that the failure of an employer to dis-
charge all union sympathizers is of, no probative value in
demonstrating that the discharge which was,made was not
discriminatorily motivated.2'
It may be assumed that Respondent was actually aware of,
at least suspected, that Sellery was an active union advocate.
The record, however, discloses no actual evidence of union
animus, notwithstanding that, since the expiration of the last
labor contract in 1962 and a prolonged and bitter strike, the
parties have not yet reached agreement. Respondent has,
nevertheless, continued to recognize, and negotiate with the
Union, both before and after the Board's Decision and Order,
and the mere inability or failure of the parties to reach agree-
ment, is insufficient in itself to establish Respondent's opposi-
tion or hostility to the Union.22
It is undisputed that Sellery committed an infraction of the
published rules regulating rest and lunch periods. Nothing in
the rules, however, provides a penalty for infraction of the
rules, such as layoff or discharge, with or without' prior warn-
ing. Although Sellery admitted that he had been Warned on
at least one occasion about returning to his post late after a
rest period, there was no showing that he was warned, on this
or any other occasion, that he risked discharge if he failed to
observe the Company rules. On the occasion which resulted
in his discharge, Sellery could not have been more than a few
minutes ' late, when Oliver peremptorily discharged him for
this' relatively minor infraction, without affording him an
opportunity to explain. Admittedly, Respondent was con-
fronted with a large turnover of employees and Sellery had
demonstrated himself to be a competent and satisfactory
worker. Under these circumstances, Oliver's precipitate ac-
tion'renders Respondent's motivation suspect. An employer
may, of course, discipline an employee for infraction of com-
pany rules, with or without prior warning , even where no
penalty is prescribed in the rules themselves , provided only
that the employer is not motivated by a purpose proscribed
by teh Act. Moreover, the fact that the discipline imposed
may have been drastic in light of the relatively minor infrac-
tion, does not, in itself, establish a discriminatory motive. It
goes without saying that Sellery's union affiliation and activi-
ties would not insulate him against the consequences of any
misconduct.
Finally, in resolving the issue of discrimination , the ab-
sence of union animus may well be the determining factor in
establishing lack of discriminatory motive.
Upon the basis of the foregoing , and upon the entire
record , it is hereby found that the allegation that Resondent
discriminatorily discharged Sellery to discourage member-
ship in the Union , has not been sustained by the preponder-
ance of the reliable and probative evidence on the record as
a whole."
D. The Refusal To Bargain
1. The appropriate unit and majority representation
The complaint alleges„ and Respondent's answer admits,
that the following unit is, and at all times material herein has
been, appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees employed at Respondent's Portland, Ore-
gon, operation, excluding office clerical employees,
guards, watchmen, professional employees, and super-
visors as defined in the Act.
The complaint further alleges that, at all times since 1961
to date, the Union has been the exclusive representative of the
employees in the unit above-described, by virtue of Section
9(a) of the Act, and has been recognized as such representa-
tive by Respondent.
Respondent's answer admits that it has recognized the
Union as the bargaining representative of its employees, "as
required by law," and denies the remaining pertinent allega-
tions.
The allegations with regard to the refusal to bargain, how-
ever, relate solely to Respondent's truckdrivers.
It is undisputed that the Union never claimed to represent
the truckdrivers and made no demand for recognition as to
them until August 5, 1969. Prior to November 1964, Re-
spondent had never employed truckdrivers but utilized the
services of common carriers. Neither the contract which ex-
pired in 1962, nor any of the previous contracts, had con-
tained such a job classification. In November 1964, for the
first time, Respondent acquired a truck by lease, and hired a
driver. A second truck was leased in November 1967; a third,
in June 1968, and a fourth, in April 1969' Respondent hired
additional truckdrivers to operate those trucks. In January
1969, Respondent purchased three trucks, and in April 1969,
purchased the three trucks, which it' had previously leased.
Respondent then operated six trucks, all with sleeper 'cabs,
each carrying two drivers, making a normal complement of
twelve drivers, plus two relief drivers, to enable it to maintain
2° There was no showing that any grievance or unfair labor practice
charge was filed on Baumgardner 's behalf
" See Santa Fe Drilling Company, 171 NLRB No 27, and cases cited
at fn. 56 enfd Santa Fe Drilling Company v. N.L.R.B., 416 F.2d 725 (C.A
9), remanded in part on other grounds , supplemental decision , 180 NLRB
No 160, order denying motion for reconsideration of the Board 's supple-
mental decision and order , 183 NLRB No. 44.
'= According to Martin's undisputed testimony , Respondent met with the
Union for purposes of negotiation on seven occasions in 1965 , one, in 1966;
two, in 1967, three , in 1968, and once in 1969 , prior to August 5.
There has been some suggestion that a contributory motive for Sel-
lery's discharge may be found in the fact that he filed a claim with the
Oregon Workmen 's Compensation Board for injuries sustained at the plant
on July 2, 1969, while Sellery was operating a portable Skil saw. This
resulted in an inspection of the plant on July 11, 14, and 15, 1969, by safety
inspectors of the Accident Prevention Division of the Workmen's Compen-
sation Board. The request for a hearing on the claim was later withdrawn
and the proceeding was dismissed Despite the coincidence of timing of
Seliery's discharge, on July 11, 1969, there is insufficient evidence to estab-
lish that the filing of the claim, followed by the safety inspection, were
contributing factors in the discharge of Sellery
WESTERN WIREBOUND BOX CO. 759
twelve drivers on the road , on an around-the-clock basis, 6 or
7 days a week , as necessary.
Respondent concedes that, at all times since first hiring its
own drivers , it has unilaterally established the rates of pay,
wages, hours of employment , and other conditions of employ-
ment for truckdrivers , based upon Martin 's previous experi-
ence with other companies in dealing with over -the-road driv-
ers, by checking prevailing rates in the industry , both on a
mileage and hourly basis and on what he regarded as sound
management practices. These terms and conditions of em-
ployment were instituted with the hiring of the first driver
and the decisions were made solely by the Company.
It is admitted that at no time , up to and including August
4, 1969, did Respondent notify the Union of the hiring of
truckdrivers or afford it an opportunity to negotiate with
regard to their wages , hours of work , or other terms and
conditions of employment . It is equally true that, despite the
fact that union committeemen were employed at the plant
during this period , and that trucks purchased by the Com-
pany, identified as company trucks by a legend appearing
thereon , put in and took off from the plant with regularity.
Nevertheless , at no time prior to August 5, 1969, did the
Union notify Respondent that it claimed to represent the
truckdrivers or demand recognition as their representative.24
The General Counsel and the Union contend , however,
that it was Respondent 's duty to notify the Union and afford
it an opportunity to bargain , prior to November 1964, when
it hired its first driver , thereby changing its method of opera-
tion from utilizing common carriers to employing its own
truckdrivers . It is also argued that, because Respondent at no
time sought to exclude truckdrivers from the unit in any of
its contract proposals to the Union during the entire period
of 1964 to 1969, it automatically acquiesced in their inclu-
sion . This both begs the question and amounts to a bootstrap
argument.
2. The status of the Union as majority representative of
the truckdrivers
The Union contends, however, that it was under no duty
to demand recognition as representative of the truckdrivers
because it already had been duly designated as exclusive bar-
gaining representative of all Respondent 's employees, with
the conventional exclusions , and that this had been confirmed
by the Board, in adopting the Trial Examiner 's Decision in
the refusal -to-bargain case enforced by the Court.ZS The com-
position of the unit was not in issue in that case, and the
finding of the unit based , in substance, on the description
contained in the last contract , was a mere formality , essential
to the finding of what may fairly be regarded as a technical,
though , nonetheless , unlawful refusal to bargain by reason of
the failure to furnish the Union with certain economic data.
Moreover , it should be noted that the Board Decision was
issued February 6, 1964. Respondent did not hire its first
truckdriver until November 1964, at the earliest . What the
General Counsel and the Union are saying , in effect, is that
truckdrivers , though not hired until long after the expiration
of the contract , defining the appropriate unit , are, by virture
of the use of the word all, automatically included as an
24 As has been noted elsewhere , between 1965 and August 5, 1969,
Respondent had some 14 meetings with the Union , presumably at the plant
(see fn.). It seems incredible that the union officials would not have discov-
ered on their visits to the plant that Respondent was operating its own trucks
with its own drivers . This suggests that the Union did not demand recogni-
tion as their agent or request negotiations on their behalf because it did not
consider that it represented them.
25 Western Wirebound Box Company, 145 NLRB 1539 , enfd 356 F.2d
88 (CA 9).
integral part of the comprehensive unit . Stated differently, it
is contended that the truckdrivers constituted an accretion to
the original unit . The unfortunate use of the word all in the
description of the unit is by no means determinative of the
issue. The question must be decided on whether the truck-
drivers, in fact and law, constituted an accretion to the origi-
nal unit.
To begin with , there was no intimation that when the
parties negotiated the last collective-bargaining agreement,
Respondent had contemplated hiring truckdrivers . Nor, was
there any showing that the Union had any reason to believe
the Respondent would eventually do so. The issue is not
unique, and the Board has had occasion to establish the cri-
teria essential to establish whether an accretion has taken
place. In making such a determination , the Board has consid-
ered broadly whether the new group could constitute a sepa-
rate, appropriate unit. And this principle would apply even
though a unit of all employees would be equally appropriate.
Prior to 1962 , the Board had followed a policy of automati-
cally including truckdrivers in a comprehensive unit of em-
ployees, in situations in which the parties were in disagree-
ment as to the appropriate unit , and no union was seeking to
represent the,truckdrivers . Beginning with the Koester case,26
however , the Board "decided to abandon the blanket policy
of including truckdrivers in more comprehensive units and to
return to the approach of predicating their union placement
in each case upon a determination of their community of
interest."
In making its determination, the Board stated:
In our evaluation we shall consider , among others, the
following factors : (1) Whether they have related or di-
verse duties, mode of compensation , hours, supervision,
and other conditions of employment ; and (2) whether
they are engaged in the same or related production pro-
cess or operation , or spend a substantial portion of their
time in such production or adjunct activities . If the inter-
ests shared with other employees is sufficient to warrant
their inclusion , we shall include the truckdrivers in the
more comprehensive unit . If, on the other hand, truck-
drivers are shown to have such a diversity of interest
from those of other employees as to negate any mutality
of interest between the two groups , we shall exclude
them.27
The Board noted in Koester that there was no history of
collective bargaining with respect to truckdrivers ; that the
parties were in disagreement as to whether truckdrivers
should be included in the production and maintenance unit
requested; and that no labor organization was seeking to
represent the truckdrivers separately . The Board concluded
that the truckdrivers were "functionally engaged in the trans-
portation of the Employer 's product rather than its
production ; in performing these duties truckdrivers are sub-
ject to regulations affecting both their hours and working
conditions not experienced by plant employees; they thereby
spend practically all of their working time away from the
plant and have little if any contact with the bakery employees;
and there is no interchange between plant employees and
truckdrivers," and found that the interests of truckdrivers
were dissimilar from those of production and maintenance
employees and excluded them from the more comprehensive
unit.
The relevant factors in the instant case amply demonstrate
that a separate unit of truckdrivers would be appropriate.
Thus:
26 E. H. Koester Bakery Co., Inc, 136 NLRB 1006
27 136 NLRB 1006, 1011.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) There is no history of collective bargaining with respect
to the truckdrivers either separately or as part of an overall
unit. Since late 1964, when Respondent first began hiring
truckdrivers, it has unilaterally determined their hours,
wages and terms, and conditions of employment.
(2) Truckdrivers are functionally engaged in the transpor-
tation of Respondent's product rather than its production.
(3) In the performance of their duties truckdrivers are
subject to rules affecting both their hours and working condi-
tions not shared by production employees.
(4) Truckdrivers spend practically all of their working time
away from the plant and have little if any contact with the
production employees. There has been virtually no inter-
change between truckdrivers and plant employees and none
of the drivers has previously been employed as a production
employee.
(5) Truckdrivers are compensated, in the main, on a mile-
age basis except on short runs, in contract to production
employees who are compensated at an hourly rate of pay.
(6) Truckdrivers are under the separate supervision of the
foreman and dispatcher, reporting directly to him except
during his infrequent absences.
Applying these criteria to the facts of this case, it must be
concluded that a separate unit of truckdrivers would be ap-
propriate." Under the circumstances, it appears that, at the
very least, the truckdrivers should have been entitled to an
opportunity for self-determination.
It follows that the truckdrivers did not constitute an accre-
tion to the existing unit of production employees and the fact
that Respondent may have been obligated to bargain with the
Union concerning the production unit did not automatically
require it to bargain with the Union as the exclusive repre-
sentative of the truckdrivers as well , unless it were shown that
the Union actually represented a majority of the truckdrivers,
prior to August 5, 1969, and made a demand for recognition.
The fact that Respondent agreed to recognize the Union as
bargaining agent of the truckdrivers on August 5, 1969, and
stipulated at the hearing that a unit which included truck-
drivers, as well as production and maintenance employees,
would constitute an appropriate unit , may not be applied
retroactively to satisfy the requirements, both as to the appro-
priate unit including truckdrivers and the Union's majority
status prior to August 5, 1969. It was not until that date, at
the very earliest, that the Union claimed to represent truck-
drivers as part of the comprehensive unit and demanded
bargaining rights as their exclusive representative.
As of August 4, 1969, Respondent employed a total of 14
or 15 truckdrivers, including relief drivers. It was stipulated
that sometime during the week prior to August 7, eight truck-
drivers joined the Union.
The allegations of the refusal to bargain are based solely on
the ground that "on or about August 4, 1969, Respondent
"made unilateral wage and working condition changes in
regard to the truckdrivers at various times during the six
months preceding the filing of the charge." Without deciding
whether all the truckdrivers had been afforded an adequate
opportunity for self-determination, it is undisputed-that the
Union did not make its demand for recognition and request
bargaining on behalf of truckdrivers until the day after Re-
spondent allegedly instituted unilateral changes in working
conditions,
" See also Drexel Enterprises, Inc., 180 NLRB No. 67, Safeway Stores,
Incorporated, 175 NLRB No 146; Teamsters, Chauffeurs, Helpers and Taxi-
cab Drivers Local 327, etc. (American Bread Company), 170 NLRB No. 19,
Arkley Lumber Co., 169 NLRB No. 159, is particulary apposite. See also
Sterilon Corporation, 147 NLRB 219, 221.
In view of the foregoing findings, it is unnecessary to decide
whether the conduct in which Respondent engaged did, in
fact, establish a change in working conditions. However, to
remove any doubt on this score, the facts regarding this issue
are detailed. Early in 1968, the truckdrivers requested that
their employer reduce the terms and conditions of their em-
ployment to writing. When, by the spring of 1969, this had
not been done, the drivers raised the question with Verbout,
their supervisor and dispatcher, and requested a meeting with
Martin. Such a meeting was arranged. Frank Wilson, one of
the drivers, asked Martin whether the Company ever in-
tended to do anything regarding their request. Martin told
the men that the Company was still working on it, and asked
them if there was anything they wanted included in the docu-
ment. They said there was not but, that they might think of
something later. From time to time, until about August 1,
various drivers asked Verbout whether the Company in-
tended to produce such a document. Verbout told them that
he would check with Martin. On about August 1, Martin
finally prepared a three-page, single-space, legal-sized
memoradum, bearing the following heading:
WESTERN WIREBOUND BOAC COMPANY TRUCK DRIVER'S
INSTRUCTION, COMPANY POLICY AND AGREEMENT
On the last page of the document, a place was provided for
the signature of the driver, though not of the Company. Some
40 or 50 mimeographed copies were prepared and turned
over to Verbout. Verbout was planning to leave on his vaca-
tion the following day, and turned the copies over to Assis-
tant Plant Superintendent O'Connell, identifying the docu-
ment as the one which the truckdrivers had been requesting.
Verbout advised O'Connell that as most of the truckdrivers
would be arriving over the weekend, he could have each
truckdriver sign a copy of the document. The following Mon-
day, August 4, O'Connell distributed copies of the memoran-
dum to the drivers.
According to Verbout, who had supervised the drivers
continuously since the first driver was hired, the document
contained no new terms or conditions of employment. Al-
though the drivers were quite understandably concerned with
obtaining an increase in their mileage rate, the principal con-
troversy related to compensation for loading and unloading.
The mileage rate provided for in the memorandum was 9
cents a mile, on over-the-road hauls, to be divided equally
between them if two drivers operated a- sleeper cab truck. On
round trips of less than 300 miles, compensation was to be at
an hourly rate of $2.765.
Under the terms of the memorandum, "Tying down and
untying time is included in the 9¢ per mile and is not paid
separately." With regard to loading and unloading, the con-
troversial issue, the memorandum provided: "When our driv-
ers actually do load or unload, they will be paid a maximum
of 2 hours for loading and 2 hours for unloading on trucks
# 58, # 72, and # 73. On trucks # 1, # 2, and # 3, they will
be paid when they actually load and unload only, 3 hours
loading and 3 hours unloading. Any time spent in addition
to the hours allowed herein is considered a part of the pay-
ment on the mileage basis. If for some reason or other, there
are extenuating circumstances, which should be given consid-
eration by the company to determine whether they will pay
hours in addition to those stated above, they are to be turned
in to the company and the company will decide whether or
not the additional time requested will be paid. If the company
decides that the hours and time are not justified, then it is
agreed that it will not be paid. The company, therefore, will
be the sole judge as to whether the extra time over and above
the above-listed hours will be paid. It should here be clearly
understood that the above loading and unloading hours will
WESTERN WIREBOUND BOX CO. 761
be paid on the basis only of the drivers doing the loading and
unloading . If they do not do the loading and unloading, there
will be no loading and unloading allowance or amount paid.
If the loading or unloading is done actually by the drivers and
takes less than the 2 or 3 hours, depending upon the truck,
the company will pay only the actual hours spent in loading
and unloading . The above hours are, therefore , meant to be
maximum hours and not minimum hours."
Respondent contends that this memorandum established
no change in working conditions but merely codified the
terms and conditions of employment, as well as rules and
regulations governing the work of truckdrivers , which had
been in existence from the time Respondent first hired truck-
drivers. It is evident , however, that allowance for loading and
unloading time had been a bone of contention between the
drivers and the Company.
Respondent maintains that the 2-hour limit on compensa-
tion for loading and unloading had been in effect since 1964,
when it first began leasing trucks ; the 3-hour limit, since
Respondent began purchasing sleeper trucks in January 1969.
That the conditions were not actually changed by the agree-
ment , is apparent from the testimony of Harold "Red" Ge-
rulf, a former truckdriver, who was no longer in Respond-
ent's employ at the time of the hearing. Gerulf testified that
when he started working for Respondent in June 1969, he was
told by other drivers that there was a 2 -hour limit on loading
an unloading, regardless of the time actually consumed.
James R. Jones, a truckdriver who was still in Respondent's
employ at the time of the hearing, corroborated Gerulf's
testimony . Both men testified that, although they were some-
times paid for more than the customary allowance , this was
solely at Respondent's discretion, and, at least, half the re-
quests for compensation for additional loading time were
rejected by Respondent.
When O'Connell submitted copies of the memorandum to
the truckdrivers for signature , they asked O'Connell if it was
compulsory for them to sign . Gerulf, who was scheduled to
make a run that afternoon , refused . According to Gerulf,
O'Connell told him to sign it or "go home," so he left." The
other drivers also refused to sign. After discussing the matter
with Oliver , it was decided to await Martin 's return, and
O'Connell told the drivers that, in the meantime , they need
not sign the memorandum . O'Connell testified that Gerulf
was still there when this occurred , and remarked that he
thought O'Connell had terminated him. O'Connell retorted
that , if anything, Gerulf had quit.
The drivers left, and Gerulf and some of the others then
contacted the Regional Office of the Board , and learned that
there was already a union in the plant . " The drivers com-
municated with the Union , and a meeting was arranged for
the following day, August 5, at the plant between Martin and
Union Representatives J. D. Carter and Don Downing,
which Committeewoman Peterson , some of the drivers, and
O'Connell attended . The union representatives announced
that they were representing the drivers and a discussion en-
sued regarding the memorandum or so-called policy state-
ment, which the drivers had been requested to sign the day
before, as well as Gerulf's alleged discharge." When Martin
1' In O'Connell 's version , when Gerulf refused to sign the agreement, and
asked him whether he should "go home, " O'Connell told him that the
decision was up to him
30 This substantiates the conclusion that the truckdrivers had not previ-
ously considered the Union their bargaining agent.
31 During this meeting, the Union also demanded a general wage increase
of 12'/ percent for all employees. After discussing the economics of the
situation , and Respondent's alleged competitive disadvantage with regard to
employers in the industry in the South , Martin rejected the demand.
observed Gerulf in the yard outside the plant, he suggested
that he be invited in to give his version of what had occurred.
The matter of the memorandum and Gerulf 's separation were
then amicably resolved . Martin agreed that the drivers would
not be required to sign , and that Gerulf could return to his
job. He declined the offer , however , having decided to accept
other employment.
Martin sought assurance from the Union that there would
be "no cessations of operations " in the future without follow-
ing the grievance procedure which had existed with regard to
production employees under the expired contract. Under this
procedure , grievances were handled at the first step between
the union grievance committee and the immediate supervisor
and, if they failed to agree, a formal grievance meeting was
held by the union committee and the supervisor , with Gen-
eral Manager Martin , who made the final determination.
After some veiled strike threats, by the drivers , and a re-
joinder by Martin that the Company had arranged for rail-
road cars, and would continue to make shipments whether or
not the trucks were "tied up," there was general consensus
that the grievance procedure would be followed in the future.
The complaint alleges that Respondent has continued to
refuse to bargain with the Union , at all times since on or
about August 4, 1969 . Outside of what has been related, there
is no support in the record for this allegation. The record does
establish that Respondent did not challenge the Union's right
to represent the truckdrivers , at the meeting of August 5; that
it bargained in good faith with the Union on that date; and
that the Union has not since requested another meeting for
negotiations on behalf of the truckdrivers. As will presently
appear, the Union did, however , meet with Respondent on
August 8, 1969, the same day on which , as will also appear,
the production employees engaged in a work stoppage, for
purposes of collective bargaining.
To sum up , it is clearly apparent, from the foregoing
findings, that the Union did not, at least prior to August 5,
1969, represent the truckdrivers , as part of the comprehensive
unit, and Respondent was, therefore , under no obligation to
bargain with the Union with respect to them . Moreover, the
evidence fails to establish that the terms and conditions of
employment , contained in the so-called "Agreement," which
Respondent initially asked the truckdrivers to sign, were
materially different from those which had prevailed for at
least 6 months prior thereto. Even if the agreement had
effected unilateral changes in terms and conditions of employ-
ment, Respondent was under no obligation to notify the
Union or afford it an opportunity to negotiate regarding such
changes, if any, since the Union was not then the exclusive
bargaining agent of the truckdrivers . The record further es-
tablishes that since August 5, 1969 , Respondent has agreed
to recognize and bargain with the Union on behalf of the
truckdrivers , as part of the comprehensive unit, without ques-
tioning the Union 's majority with regard to them , and that
since said date Respondent has at all times stood ready to
bargain in good faith with the Union on behalf of truckdriv-
ers.
It is, therefore, found , for all the reasons stated, and upon
the entire record , that Respondent has not, at all times since
on or about August 4, 1969 , failed and refused to bargain in
good faith with the Union on behalf of the truckdrivers as
part of the comprehensive unit of Respondent 's employees.
E. The Work Stoppages-the Alleged Lockouts
On Friday , August 8, 1969, about 2 : 30 p.m., immediately
after the last rest period , 40 or 50 production employees
engaged in a work stoppage which Majure helped plan. Ma-
jure had proposed a "button day " and "surprise work stop-
page" and , as employees reported for work , they were pre-
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented with union bulletins and buttons which many of them
wore at work. During the afternoon rest period, bulletins
were also distributed, announcing that there would be a "sur-
prise birthday party and work stoppage in honor of Mr.
Martin,"32 to take place immediately after the end of the rest
period. According to Majure, the bulletin announced that the
duration of the work stoppage was to be 15 minutes, but the
evidence reveals that this was not known to Respondent, and
that no management representative saw this bulletin until
later that evening. According to plan, employees were to stop
work concertedly a minute after the whistle sounded signal-
ing the end of the rest period.
At the appointed time, Majure walked off the job, and was
followed by some 32 employees, shutting down the plant. The
group congregated in the "doghouse" or lunchroom, situated
across from the plant. Meanwhile, the union representatives
were meeting with Martin, apparently oblivious to what was
going on. Superintendent Oliver telephone Martin, informed
him that some of the employees had not returned to work
after the rest period, and were having a party in the lunch-
room, and asked for instructions. Martin directed him to go
to the lunchroom and notify the employees that the signal for
their return to their work stations had sounded and to order
them back to work. Oliver carried out Martin's instructions
and told the group that there was work available for those
who wished to work and that those who did not return were
to leave the plant. None of these employees returned to work.
During the meeting with Martin, the union representatives
made no mention of the work stoppage, they themselves hav-
ing had no advance notice of such action. Visibly disturbed,
Martin asked the union representatives about the possible
duration of the stoppage. They pleaded ignorance.
Oliver again telephone Martin to report that none of the
employees had returned to work, and Martin instructed him
to send them home for the remainder of the day, but to inform
them that the gate would be open on Monday. Oliver com-
plied, though it is not altogether clear whether he told them
that,the gate would be open on Monday. Be that as it may,
the plant was in operation that day, and substantially all the
employees who had engaged in work stoppage returned to
work without hindrance.
A second work stoppage occurred on Friday afternoon,
September 5, 1969, immediately after the final rest period of
the day, as in the previous stoppage. Again, unions buttons
and leaflets were distributed and black arm bands were worn
by employees. That morning, Majure had brought to work a
picket sign, urging a work stoppage, which he kept under his
work table. Martin conceded that he saw the sign while he
was in the vicinity. Directly after the final rest period, Majure
paraded in the plant, displaying the picket sign, and some
nine or ten employees followed him to the "doghouse."
Again, Oliver ordered them to return to work or leave the
plant. They left the plant. As has been related elsewhere,
Majure terminated his employment the same day.
On this occasion, Martin was away from the plant for the
afternoon and when he returned Oliver reported what had
occurred and told Martin that he had sent home the em-
ployees who had engaged in the work stoppage.
The following Monday, the plant resumed regular opera-
tion and all the employees, except for Majure, who ter-
minated his employment that day, returned to work.
On the basis of this substantially undisputed testimony, the
General Counsel contends that Respondent, on both occa-
sions, discriminatorily locked out the employees who had
engaged in the work stoppages.
" It was not, in fact, Martin's birthday and the reference was apparently
intended as a wry joke
It should be noted that on each of the days on which the
employees engaged in the work stoppage, the shift ended at
4 p.m., and as the stoppage occurred immediately after the
end of the rest period at 2:30 p.m., there remained approxi-
mately an hour and a half of the workday, rendering it diffi-
cult, if not impossible, to reassign work crews to achieve any
appreciable production. O'Connell did testify that Respond-
ent was able to put in to operation two machines for the last
half hour of the day. The 40 or so employees who stated on
the job were utilized in tying bundles and cleanup and normal
work was not resumed until the following Monday in each
instance. Moreover, as Respondent points out, at the time of
the first work stoppage, the union representatives were meet-
ing with Martin, and had agreed not to engage in any stop-
pages without first resorting to the grievance procedure.
It is well settled that concerted activity, such as that in
which the employees engaged on August 8 and September 5,
is tantamount to a partial or "quickie strike," which is un-
protected by the Act.33
In enforcing the Board's Decision in Kohler, the Court
said:
If the men had voted to strike and, pursuant thereto, had
quit their jobs until their demands had been met by the
Company, the Company would have been faced with a
protected, concerted action for a change in their working
conditions. But the men could not insist on remaining at
work on their own terms and conditions. . . . 34
Under somewhat similar circumstances, the Board held:
We find that the partial strike called by the Union
from its very inception was the sort of activity which,
although concerted, is not , as against the action taken by
Respondent, entitled to the protection of the Act. The
vice in such a strike derives from two sources. First, the
Union sought to bring about a condition that would be
neither strike nor work. And, second, in so doing, the
Union in effect was attempting to dictate the terms and
conditions of employment. Were we to countenance
such a strike, we would be allowing a union to do what
we would not allow any employer to do, that is to unilat-
erally determine conditions of employment. Such a re-
sult would be foreign to the policy objectives of the Act.
'35
In view of the foregoing conclusions, it is unnecessary to
decide whether, as contended by Respondent, its action in
sending the participants home for the remainder of the day
was wholly justified as a "purely defensive action."36
It is, therefore, found that Respondent did not, by its ac-
tion, on August 8 and September 5, 1969, discriminatorily
lock out its employees or otherwise discriminate against
them, as alleged in the complaint, and it will be recommended
that these allegations be dismissed.
Having found that Respondent has not engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act, as alleged in the complaint, it will be recom-
mended that the complaint be dismissed in its entirety.
33 See International Union, U.A. W., A.F. of L., Local 232 v Wisconsin
Employment Relations Board, 336 U S 245. See also N.L.R.B. v Kohler
Co., 220 F.2d 3 (C.A. 7), enfg . 108 NLRB 207; C. G. Conn, Ltd v N.L.R.B,
108 F.2d 390, 397 (C.A. 7); Valley City Furniture Co., 110 NLRB 1589;
Honolulu Rapid Transit Co., 110 NLRB 1806
3' 220 F.2d 3, 11.
33 Valley City Furniture Co., 110 NLRB 1589, supra.
36 Citing , International Shoe Co., 93 NLRB 907; Betts Cadillac Olds,
Inc., 96 NLRB 268; N.L.R.B. v. Truck Drivers Local Union No. 449 (Buffalo
Linen Co.), 352 U.S 818; WillametteAssociation of Plumbing and Heating
Contractors, 125 NLRB 924. Cf First National Bank of Omaha, 171 NLRB
No. 152. See, also, American Ship Building Co. v N.L.R.B., 380 U S 300.
WESTERN WIREBOUND BOX CO.
Upon the basis of the foregoing findings of fact and upon
the entire record, the Trial Examiner hereby makes the fol-
lowing:
CONCLUSIONS OF LAW
1. Western Wirebound Box Company, Respondent herein,
is, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Woodworkers of America, Local Union
3-3, AFL-CIO, the Union herein, is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed at Respondent's Portland, Ore-
gon, operations, excluding office clerical employees, guards,
watchmen, professional employees, and supervisors, as
defined in the Act, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since August 5, 1969, and at all times material herein,
the Union has been, and is now, the exclusive bargaining
763
representative of all the employees in the appropriate unit
described above, for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. Respondent has not engaged, and is not engaging in,
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (5) of the Act or in any unfair labor practices alleged
in the complaint.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
ORDER
The complaint is dismissed in its entirety.
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.