Park Tissue Mills, Inc

PARK TISSUE MILLS, INC. 379 CONCLUSIONS OF LAW 1. Haberle Engineering and Manufacturing Co., Aurora, Ill., is engaged in, and at all times material herein has been engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Association of Machinists, District 108, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. [Recommendations omitted from publication.] Park Tissue Mills, Inc. and Frost White Paper Mills, Inc. and Textile Workers Union of America, AFL-CIO. Case No. 2-CA-54432. December 11, 1958 DECISION AND ORDER On August 29, 1958, Trial Examiner Arthur E. Reyman issued his Intermediate Report in this case, a copy of which is attached hereto, finding that the Respondents had not violated the National Labor Relations Act, as amended, and recommending that the complaint be dismissed in its entirety. Thereafter, the Charging Party filed excep- tions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. On May 29, 1957, a charge was filed by Textile Workers Union of America, AFL-CIO (hereinafter sometimes called the Union), against Park Tissue Mills, Inc., and Frost White Paper Mills, Inc., as employers. The charge asserted that on or about May 13, 1957, the employers had engaged in and were engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Thereafter, on January 31, 1958, the General Counsel of the National Labor Rela- tions Board, on behalf of the Board, by the Regional Director for the Second Region, issued a complaint and notice of hearing against Park Tissue Mills, Inc., and Frost White Paper Mills, Inc., naming these corporations "Respondent herein." Each of the two corporations filed timely answers to the complaint, effectively 122 NLRB No. 60. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denying allegations contained in the complaint that it had violated or was con- tinuing to violate Section 8(a)(1) and (3) of the Act.' The complaint in substance asserts that the "Respondent, through its agents ..." since February 1957 has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the rights guaranteed in Section 7 of the Act z by (a) interrogating employees concerning their activities on behalf of "and sympathy in the Union"; (b) threatening employees with discharge or other reprisals because of their membership in, or their assistance or support of, the Union, or their concerted activities for the purpose of collective bargaining or other mutual aid or protection; and (c) promising a wage increase to an em- ployee if he would assist it in its discriminatory and antiunion activities. It fur- ther is alleged that one Edwin J. Browne was, on or about May 13, 1957, dis- criminatorily discharged from his employment by Park Tissue Mills, Inc., because he had joined or assisted the Union or had engaged in "other concerted activities for the purpose of collective bargaining or other mutual aid or protection." On the issues framed by the complaint and the answers thereto, this matter came on to be heard before the duly designated Trial Examiner at Newburgh, N.Y., on June 24, 1958, the hearing being closed on June 26. At the hearing, the General Counsel and each of the Respondents were represented by counsel, and a repre- sentative of the Union, the Charging Party, entered an appearance on its behalf and participated therein on the first day. Full opportunity was accorded each party to call witnesses on its behalf, to examine or to cross-examine each witness called, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Upon the whole record herein, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT CORPORATIONS Park Tissue Mills, Inc., and White Frost Paper Mills, Inc ., are, and at times material hereto have been , corporations duly organized under and existing by virtue of the laws of the State of New York, having principal offices at 305 Fifth Avenue in the City of New York and a common place of business in Salisbury Mills in the State of New York, where they maintain and operate a plant and are now and have been engaged at said places in the manufacture , production, process- ing, sale, and distribution of paper tissue and related products . During the year preceding the issuance of the complaint herein the Respondents, as an integrated business operation and in the course and conduct of their business operations, have caused to be manufactured, produced, processed , sold, and distributed at the plant in Salisbury Mills, products valued at in excess of $250,000, of which products valued at in excess of $50,000 were shipped from said plant in interstate commerce 'It is contended by the General Counsel that the corporate Respondents constitute a single employer, because they are affiliated businesses with a principal office in New York City and a common place of business in Salisbury Mills, N.Y., "with common officers, ownership, directors, and operators and constitute a single business enterprise" ; counsel for the Respondents, at hearing, said that it is conceded "that they are joint employers." 2 The pertinent provisions of the Act, in relation to the allegations of the complaint, are as follows : RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3). UNFAIR LABOR PRACTICES SEC. 8. (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7; e • • s s s s (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : . . . . PARK TISSUE MILLS, INC. 381 directly to places within States of the United States other than the State of New York. During the year above mentioned the Respondents, in the course and con- duct of their business operations, caused to be manufactured, produced, processed, sold, and distributed at and from said plant, products valued at in excess of $250,- 000, of which products and services directly related to national defense, valued at in excess of $100,000, were manufactured, produced, processed, sold, and distrib- uted or furnished pursuant to contract or subcontract with various branches of the: Government of the United States, including its military forces. The Respondents are, and at all times material hereto have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, is and during the times material hereto has been a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union, through Jack Campbell, its business agent for Mid-Hudson Valley Joint Board, began organizational efforts among the employees of the Respondent Companies on or before November 6, 1956. Meetings were held in November, 20 or 30 employees attending the first meeting. Among the active supporters of the Union was Edwin J. Browne. Some 45 employees were employed in the unit being organized by the Union. On November 21, 1956, the employees went on strike; on that day they called a 2-hour walkout and at the end of the 2 hours Campbell and a committee representing the employees called at the office of the then president, Norstrand, and requested recognition of the Union as bargaining representative for the employees. Recognition was refused. A picket line was established and maintained for at least 3 days, when strikers started to return to work. Employees were called back from time to time after the abortive strike, 'Browne being reinstated to his former job on January 17, 1957. The Union has never been recognized by the Respondent Companies. According to Allen T. Schultz, president of both companies at the time of the hearing herein, a collective- bargaining agreement is in existence between the two companies and Orange County Paper Workers Association. According to statements of counsel, it appears that this case was preceded by a charge and amended charge bearing two case numbers, 2-CA-5175 and 2-CA- 5523. The Trial Examiner is further advised by counsel that these cases involved charges of violations of Section 8(a)(1) and 8(a)(3) of the Act, that a settlement agreement dated September 24, 1957, disposed of these charges, and that other charges of violations of Section 8(a)(2) and 8(a)(5) were dismissed by the Regional Director; that an appeal was taken by the Charging Party or Parties, appealing from both the settlement agreement and the dismissal, and that the whole matter was disposed of when the General Counsel sustained the agreement and denied the appeal from the dismissal.3 B. The alleged discriminatory discharge of Browne Edwin J. Browne was first employed by Park Tissue Mills during the latter part of July 1956, and was an employee of that company until his employment was terminated by his discharge on May 13, 1957. During the times he was at work, he was a tube machine operator. In early November 1956, he was approached by a representative or representatives of the Union, at which time he became a member. On November 21, 1956, the employees of the Mills, some 45 or more in number, employed within the unit claimed by the Union, went out on strike. Browne joined the picket line set up that day. The strike was an unsuccessful one from the point of view of the Union, since it failed to obtain recognition from the Company. After about the third day of the strike most of the employees returned to work. An approximate 26 employees did not return until December 10 when they all reported for work in a group. They reported to Floyd W. Palmer, super- 3 As noted above, the charge upon which this proceeding is based was filed May 29. 1957. The Trial Examiner permitted testimony herein, as background evidence, concerning the initiation of union organizing efforts in November, the calling of the strike and the setting up of the picket line, together with the activities of Browne and other employees in support of the concerted activities of the employees. He refused to take affirmative testi- mony regarding the merits or the issues involved in the prior cases. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intendent of the Mills, and through their committeeman informed Palmer they were ready to go to work, to which Palmer replied that he could not hire them all in a group but would hire them back one at a time. According to the testi- mony of Browne, the employees' agreement with the Union was to go in as a group or not to go in at all, so they walked out. By letter dated January 15, 1957, addressed to Browne, from the Company, he was notified as follows: Will you please report for work as soon as possible. If, for any reason, you cannot do so at once we would appreciate your advising us accordingly. Thank you. Yours very truly, PARK TISSUE MILLS, INC. STANTON KNOEPFLE. P.S. Please come in at 2 P.M. Browne returned to work on January 17, 1957, and worked at his old job as a tube machine operator until May 13, 1957.4 The tube or tubing machine is used in the manufacture of cores and tubes for tissue paper and paper toweling. The tubes are made from what is called chip- board, a heavy sheet of 18-point paper, slitted to approximately 21/2 inches wide, in rolls. There are two of these rolls mounted on the tubing machine, and they are wound around a mandril, 11/2 inches in diameter, by means of a belt. One of the rolls, as it is on a roll, picks up glue. As the two ribbons are wound to- gether, they are glued, and they travel down the mandril for a distance of ap- proximately 12 feet, to another part of the machine, called the cutoff. Several saws are mounted on this machine and as the tube travels by, the saws are timed to cut the tubes to the exact length for the rolls of toilet paper or towels as the case might be. Towel tubes are cut longer than toilet paper tubes or cores. After the tubes are cut they are caught in a trough and fall into a large bin roughly 20 feet square by 8 feet deep. The manufacture of these tubes or cores is the first step in the completion of the manufacture of the rolls of tissue paper or paper toweling. One machine is used in this operation. One man can operate the tube machine. Two men ordinarily are employed in the operation on separate shifts: one shift runs from 7 a.m. to 4 p.m. and the other shift runs from 2 p.m. until 11 p.m. Under the operation, there is a time which requires the work of two men; this occurs in the overlap of shifts from 2 until 4 o'clock in the afternoon. (It is con- ceded that one man could handle the whole operation of transporting the chip- board across the mill on the first floor and finally getting up to the second floor; however, it was shown that this would be an inefficient operation.) After the after- noon shift man comes in at 2 o'clock, one of the two men brings the chipboard on a flat truck from across the mill over to the tube room where it is hoisted from the first floor to the second floor by means of an electric hoist. One man con- tinues to operate the tube machine, and he also pulls in the rolls as they come up on the hoist and sends the hoist back down to the man on the lower floor. This operation usually takes about 2 hours. The men employed in the tubing room alternate shifts by the week-that is, one man works the morning shift 1 week and the afternoon shift the following week. During the times material hereto, particularly the period January 17 through May 14, Raymond C. Cooper was the other man employed in the operation of the tube machine. It appears that after his employ and up until he returned to work on January 17, Browne had been considered a fairly competent tube machine operator, although Stanton Knoepfle, supervisor, testified that there had been some discussion be- tween him and Browne in the prior months as to Browne's inability to follow in- structions with respect to calling Knoepfle when he was having trouble with the machine. Knoepfle also testified that Browne, during the early part of November, spent a great deal of time sitting down rather than working at his machine. Dur- ing the month or approximate month prior to Browne's discharge, Superintendent Palmer, President Norstrand, and Supervisor Knoepfle discussed Browne's job per- formance. Knoepfle said that they discussed his failure to produce or make as many tubes, by far, as Cooper; that Browne did not seem to improve his work at the machine with lapse of time; that Browne was accustomed to take time off for reasons of his own, with consequent possibility of shortage of finished tubes; and 4 Unless otherwise specifically noted, all dates hereinafter mentioned are for the year 1937. PARK TISSUE MILLS, INC. 383 that he had received complaints from Cooper that because Browne took so much time off, Cooper often was required to work as much as 12 hours a day. In summary, according to Palmer, management felt that Browne had had am- ple time to learn, that his interests seemed to keep him away from his job a great deal, and that he should be replaced. On Monday, May 13, Cooper worked from 7:05 a.m. to 4:01 p.m., the morning shift. Browne reported to work at about 2 o'clock that day. At about 5:30 p.m., Knoepfle observed Browne turning off the heat and the motors and preparing to close the tubing room; according to Knoepfle, he asked Browne why he was shut- ting down, to which Browne replied that he had to go to a meeting. Knoepfle remonstrated, pointing out that the bin was not half full and that "we are de- pending on you to make the tubes." Browne replied he was sorry, but he had to go to a meeting. Knoepfle then went into the office, located on the same floor, where he found Superintendent Palmer and President Norstrand. He reported his difficulty with Browne to them and was instructed by them to inform Browne that if he did not stay on the job he would be discharged. Ordinarily Browne would have worked another 5 to 6 hours until the bin was full. Upon receiving instructions from Norstrand and Palmer, Knoepfle informed Browne of the decision; Browne came into the office and Knoepfle gave him a check for the amount of wages due him. The record is abundantly clear that the subject of the retention of Browne in the employ of the Company had been discussed by members of management prior to May 13, and that it had been decided that if someone could be obtained to replace him, to be instructed in the use of the tubing machine, they would termi- nate his employment. It seems clear enough from the testimony of Knoepfle and Palmer that it had not been previously decided to terminate the employment of Browne on May 13, but that it was simply Browne's refusal to continue at work on that day that brought the matter to a head and caused management at that time to decide to discharge him forthwith.5 As noted, the Employer freely conceded that a decision to replace Browne had been made at least 1 week before his actual discharge. James Lybolt was em- ployed by Park Tissue on May 13 and worked on that day from 8 a.m. to 2: 03 p.m. He was employed as a tube machine operator and on that day worked with Cooper, who was assigned the task of breaking him in on the tube machine. Lybolt worked some 11 days thereafter, when he quit. He was instructed by Knoepfle to leave the job at about 2 o'clock on May 13, at which time Browne was supposed to report for work. The General Counsel seems to contend that because Lybolt reported for work on the very day that Browne was discharged, that Browne's dis- charge was premeditated and that the Employer had planned to discharge Browne at the end of the day. The facts, however, are at variance with this theory.6 It seems clear enough that Browne joined the Union, was on the picket line, and was not recalled to work until January 17. Any inference that he was dis- criminated against because of the lateness of his recall to work must be discounted in view of the fact that other employees out of the 26 who were refused reinstate- ment in a group on December 10 were not reinstated until after Browne' s recall. There can be no doubt but that the Employer was aware that Browne was an ad- herent of the Union. If it is assumed that Palmer and Knoepfle saw him on the picket line, and if it is assumed that the Company knew, as Browne testified, that he was accustomed to gossip with the girls on the first floor when he was working 6 The Trial Examiner accepts the testimony of Knoepfle to the effect that he instructed Browne a number of times that when Browne had trouble on his machine to come to Knoepfie immediately instead of making a lot of broken or bad tubes ; that Browne "couldn't seem to be in the habit of doing that" ; that Inoepfle asked Browne to let him know in the event of trouble because Iinoepile was in the building and could adjust the machine promptly without waste of material in the form of bad tubes. Knoepfle testified that Cooper, the other regular tubing machine operator, did not need help in the adjust- ment and the running of the machine. Cooper testified, among other things, that he was accustomed to adjust the machine for Browne and that Browne consequently was able to operate alone during his shift or a part of the shift when Cooper was not present, without trouble. The Trial Examiner discredits this testimony of Cooper in its entirety; the testimony of Knoepfle, a credible witness, proves the contrary. a Lybolt said that when he was hired, he was asked if he would join the Union ; on cross-examination he had no recollection of telling the attorney for the Company on January 29, 1958, that there was no mention of the Union at the time he was hired, and then on redirect said that Roy Miller, an employee, spoke to him about the Union. The Trial Examiner can find no basis for a determination that this constituted interroga- tion of this employee at the time he was hired. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the hoist or transferring material from the warehouse to the hoist, and if it be conceded. that his work at times was passable, even then there is a failure of proof to show animus against Browne by his employer because of his interest in or concerted activities on behalf of the Union. The testimony of Browne himself completely demonstrates the right of man- agement to discharge him for cause. During the month.of December 1956, and before his recall to work, Browne had been appointed to fill a vacancy existing on the Orange County Board of Supervisors. Orange County is said to have 37 supervisors, each of whom is rep- resentative. of a ward, such as in Newburgh which has 9 supervisors, 1 for each ward. The Board meets on the second Friday of each month. Its meetings usu- ally began, according to Browne, about 1 o'clock in the afternoon and its busi- ness may be concluded in an hour or two, or more. Browne's compensation as a supervisor amounted to $800 per year which included the 12 monthly meetings. Browne served on two committees of the Board, the civil defense committee and the tax equalization committee. These committees met whenever the chairman called a meeting, which might have been for 9 or 10 o'clock in the morning on any day of the week, or at such other time as the chairman might determine. For these committee meetings, Browne was compensated at the rate of $6 a meeting plus $4 mileage or a total of $10 each meeting. Browne conceded on direct examination that committee meetings had some effect • on his being able to get to work on time; for example, he said, if he had a meet- ing at 10 o'clock in the morning and he was due to begin work at 7 o'clock that would have an effect but in such case he would arrange with Cooper or with Roy Miller, who sometimes worked on the tube machine in the absence of either Cooper or .Browne, to substitute for him "and work that hour for me, and I would make .it up to him." In no case was Knoepfle or Palmer advised by Browne that he would, be late by reason of attendance at a board or committee meeting; accord- ing to him, each such arrangement was worked out with either Miller or Cooper. In this respect, Browne testified further, "I would tell Cooper, `well, I have got a meeting on next Wednesday. I have got to be out at Goshen at 10 o'clock. Will .you come in early for me? I may be an hour late. Will you hold on until I come?" Well, it would probably be two hours or an hour and a half and he would say, yes. And if he said no, I would get hold of Roy Miller and ask him if he -could do it. If Roy couldn't do it, then Cooper worked.... but in no instance, to my recollection, were the machines shut down due to my tardiness."7 The record is clear that Browne was rather pragmatic in his effort to return to work on the days the board of supervisors met. For example, on February 8 he was due to work at 2 p.m. and reported at 8:14 p.m.; on March 8 he started work at 7:08 a.m. and clocked out at 12:29 p.m.; on April 12 he was due to report at 2 o'clock and clocked in at 9:20 p.m. On the latter date he worked 1 hour only, clocking out at 10:19.8 On May 10, he punched in at 7:23 a.m. and left at 12:09 p.m. He gave another curious explanation for having worked approximately 41h hours that day. He said he had been bothered with an infected foot and wanted .to go to the doctor. He said he had told Cooper that he was due in at 2 o'clock and instructed him to come in at 1 o'clock and Roy Miller woud work between 12 and 1 so that Browne could get away at 12 o'clock to see the doctor. Upon inquiry he said that he could not see the doctor after 4 o'clock because the doctor's hours were from 2 to 4 and that he (Browne) had no intention of seeing him at 9 o'clock. He testified further in this respect: Q. Then, as I understand your testimony, even though you could have seen the doctor at night, you decided on your own to quit at 12:09 to see your doctor? A. Yes. Because I should have seen him a week before. 7It should be noted that Browne's regular hourly rate of pay was $1.25 per hour. The morning shift was a 9-hour shift and the evening shift was at least 10 hours, according to the number of cores or tubes needed for the next day's operation. 8 Browne gave a curious explanation as to why he worked only 1 hour that night. He said that he had made arrangements on that particular day with Cooper to take over; that when he came in about 9 :20 he went upstairs and looked in the .bin and the bin was empty. "And I figured if Cooper, which happened quite often, Cooper would fool around and stick me in the morning. I would come in, and there would be nothing in the bin." Asked what he meant by Cooper fooling around he said he meant that Cooper was fooling around with a woman employee in the plant. He said that when he found the bin empty be punched out and went home in disgust. On that day Cooper worked from 4 :10 in the morning until 4 :10 In the afternoon, a period of 12 hours. PARK TISSUE MILLS, INC. 385 Q. And you- A. But the job was more important, because I was filling in for Ray Cooper. Q. Fine. Now we understand each other. Your condition was so acute that you had to see him immediately; as a matter of fact, you were able to wait a whole week? A. Until it got to the point where I was afraid of getting blood poisoning and then I had to go, job or no job. In connection with his committee meetings, it was shown that on April 1 he came to work at 3 o'clock and quit at 6:15 p.m.; on April 17, he reported at 2:54 _p.m. rather than 2 o'clock. During the period March 1 to the time of his dis- charge on May 13 there were 25 days during which Browne was assigned to the night shift; on 14 of those days he reported in at least a half hour late. He ex- plained this attendance record by saying that there is a possibility of having a flat .tire which would take a half hour to fix and that he was interested in politics and had meetings to attend. Contrary to the testimony of Knoepfie and Palmer, Browne said that neither one ever complained to him about leaving his job early or com- plained to him about the short hours he worked. His philosophy appears to be contained in this answer in response to questions concerning his tardiness, "I wasn't hurting the firm, as long as that machine kept running. I don't think the firm would object, as long as they got production.... Yes, I knew my hours. But if I made arrangements with my coworker, and he was agreeable, I am sure the firm wouldn't object." 9 Jack Campbell, a union business representative, sent out a letter to all members of the Union dated May 7 calling for a meeting of the membership for May 14. Browne testified that after receipt of this letter, he put it in a side pocket of his jacket, hung it up just before he started to work on May 13, and when he donned his jacket at the end of the working day, the letter was missing. From this, the Trial Examiner assumes he is asked to draw an in- ference that someone got that letter into the hands of management and that man- agement knew that Browne had been notified of the Union's meeting for the fol- lowing Tuesday night. The Trial Examiner can draw no inference of company knowledge of Browne's union activities from this reported incident. Cooper, the other regular tube machine operator, was employed by Park Tissue in the summer of 1956 and worked until May 14, 1957, when he voluntarily left • the employ of the Company. He was a member of the Union and was on strike for about 3 weeks before being recalled to work. He said that as he was driving near his home he passed Mr. Palmer, that they stopped on the road and Palmer asked him when he was going to return to work. According to Cooper, the fol- lowing conversation took place: I noticed that there was his car, and as I was driving down. So I figured he was down there to see me; so I stopped. And he went by, and he noticed that I stopped, and he backed up. He asked me how I was, and every little thing like that. Then he got around to saying, asking me if I thought about coming back to work. And he told me that the only one they had at that time to operate the machine was Roy Miller. And-Gee, its hard to remember. He asked me if I would come back. Then I started to ask him about the, if I did, what the feelings would be. At that time I was asking him how they felt about the-how the insiders felt about the outsiders. And he said there was no hard feelings. Then I asked him, if I come back will I get a raise. And he says, possibly, but at this time I can't he said he can't guarantee it. But he said, "possibly in the very near future you probably will." Then again I asked him I told him I would come back on the basis that in the very near future I would get a raise. And it was at that time that I asked him if Browne was coming back or if he was back because I wasn't sure, as I haven't been out to the picket line in days. And that's the time when he told me, Browne, they don't need Browne. And if Browne did come back it would be just for a short time. So I asked him, I told 6 On cross-examination it was shown that Browne's name is listed in the 1958-59 tele- phone directory, Newburgh, as an exterminator and fumigator giving the telephone number of his home; that he was listed under his own name and also as County Chemical Company. He claimed that his son, George, was running the business, such as it was, and that he took no active part in it. The partnership is registered as Edwin J. and George Browne. In view of the ultimate findings herein, the Trial Examiner feels it unnecessary to decide whether or not Edwin J. Browne was active in this business or, as he claims, inactive. However, his demeanor on cross-examination is another instance of his attempts to evade and equivocate in the face of facts later admitted by him. 505395-59-vol. 122-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that I would come back, with a raise, and that I wouldn't work no 10, 12, 13 hours a day, because if that was the way it was going to turn out, I would leave. And he says, "well, we'll have Roy Miller to fill in and help you out, and then if we do bring Browne back, we'll try and get rid of him. If you help us a little bit, I will see that you get another little raise." At that time I told him I would be back, and I did come back that following Monday. I came back on Monday. Subsequent to his return to work, Cooper testified concerning certain conversa- tions he is supposed to have had with Palmer and Knoepfle. One in particular was that he had asked Knoepfle if Browne had called about being late, and Knoepfle said no, as far as he knew that he might have called Palmer; that Knoepfle told Cooper to go in and see Palmer, which Cooper did. According to Cooper, Palmer called Browne some foul names, "he told me he is running back and forth too much, he is going to too many meetings, he is seeing these poli- ticians, he is talking too much about the union, with these politicians, that's no good for the Company, it's no good for us. Browne is looking for a soft job, a steward's job or something like that, I don't know." He said Palmer went on to say, "It would be better for you, better for everyone down stairs, if we didn't have Browne around." He said at another time Palmer made what he character- ized as nasty remarks about Browne; for example, he said that on one day Palmer came in and asked him if he had gone out to the road and whether he had seen a union man "out there," to which Cooper replied, "No, I haven't been out. I haven't been out since I came in." Whereupon Palmer asked him, "Do you know him? He is handing out leaflets out there." Later that day Palmer, according to Browne, told Cooper that if Browne came in with a leaflet "then we'll get him the hell out of here. He is only going to cause you trouble, the people down- stairs, and he is not going to, in the long run we are going to end up having to shut down the plant." Another time, according to Cooper, Palmer told him that Raymond Devitt was president of "this inside union" and instructed him to go down and sign "this paper"; that Cooper did not see Devitt that day and on the following day was instructed to meet Devitt on a corner at lunchtime; that he did so, got in Devitt's car, drove around the block and "signed the paper" which appears to have been an application for membership in the Orange County Work- ers Association. Cooper did not read it. The alleged conversation with Palmer concerning Devitt seems to have occurred prior to the discharge of Browne. Cooper also said that Palmer at one time suggested that if he, Cooper, com- plained against Browne, Palmer would have an excuse to fire Browne; Cooper later on cross-examination said Knoepfle was the one that said he ought to com- plain about Browne, and then later changed his testimony to say that either Palmer or Knoepfle told him to have Roy Miller to complain to Palmer about Browne, which would give Palmer a reason to discharge Browne. The variances in the testimony of Cooper with respect to these several conversations, his vague and evasive testimony concerning them on cross-examination, lead the Trial Ex- aminer to form the conclusion that most of these conversations, or the substance thereof, as reported by Cooper were merely figments of his imagination, or dis- tortion of something which Palmer or Knoepfle may have said to him during the ordinary course of work at the mill, or both: Cooper's testimony with respect to his relationship with Browne at work is en- tirely confusing and contradictory. He first attempted to build Browne up by say- ing he was a good worker, that he was a much better worker than Roy Miller, the third man who sometimes operated the tube machine, and that he thought that Browne turned out good production and never had trouble with the machine. Then Cooper gave testimony to the effect that he complained frequently to Knoepfle and Palmer concerning the long hours he had to work because of Browne's ab- sences and tardinesses. On one occasion, according to him, "I told Stanton that when 5 o'clock comes I am going home. In fact, I would tell him that every time that Browne would be late, that I wouldn't stay until Browne came in; you know what I mean? I would tell him, Browne is going to be here at 6:30, 7. That I am going home at 5. 1 don't care what, I am going home at 5.00." 10 On cross- examination, Cooper denied he had told Attorneys Steinberg and Siegal and Su- pervisor Knoepfle that he had told Knoepfle he would quit unless Browne were fired; he did not remember that he told these three men that if he were the em- 10 As example of long hours worked by Cooper , the following appears in the record : February 8 worked from 6 :10 a.m . for the following 12 hours ; march 8, from 12 :21 p.m. and the following 1 1 hours ; on April 12 from 4 :10 a.m . and the following 12 hours ; and May 10 from 2 :08 p.m. and the following 12 hours. See appendix attached hereto. PARK TISSUE MILLS, INC. 387 ployer Browne would have been fired a long time ago. In this connection the following stipulation was entered into between counsel: Mr. STEINBERG: For the Respondents, I should like to call upon General Counsel to concede that if Mr. Siegal were to take the stand, that he would testify that he had a conversation with Mr. Cooper, in the presence of Mr. Knoepfle and Mr. Steinberg, and that Mr. Cooper said that, for some time, he had been complaining about Browne; that Cooper stated that if he were the employer he would have fired Browne a long time ago; that Cooper de- livered an ultimatum to Knoepfle, demanding that Browne be fired, and if he wasn't fired that he would quit; and that in response to that, Knoepfle told Cooper that he had talked to a man who they would try to break in as a replacement. Mr. GRIFFIN: General Counsel will stipulate that as Mr. Steinberg has pre- sented it, that if Mr. Siegal took the stand he would testify in substance as to what Mr. Steinberg said he would testify to. On the basis of so much of the testimony of Browne and Cooper as may be credited and not contradicted by themselves, and on the basis of credible testi- mony given by Palmer and Knoepfle," it appears clear that the reasons advanced by the Employer as a basis for the discharge of Browne are amply supported by the record. Browne, as a member of the board of supervisors, obviously was in- terested more in the activities of that body than in his job, and consequently his usefulness as an employee to the Company was considerably impaired. The Com- pany is correct in maintaining that Cooper was highly dissatisfied with the fact that he was required to work long hours because of frequent tardiness and fre- quent short days put in by Browne and complained not once but many times of this condition to his supervisor; that Browne's work, while passable, did deteriorate, and it is uncontradicted that he wasted time and materials while on the job, par- ticularly beginning sometime about a month prior to his discharge. Nor can the Trial Examiner find that Browne's union activities had anything to do with his discharge. No employer animus has been shown with respect to his union activi- ties, and the Trial Examiner simply disbelieves the statements attributed to Palmer by Cooper regarding the Company's anxiety to get rid of Browne because of his union activities. C. Alleged interrogation of employees Raymond Yorke was employed by Frost White in 1936 or 1937 and worked for Park Tissue after the year 1948. He became interested in the Textile Workers Union around November 1, 1956. Yorke testified that around November 1 he was called into the management office by Palmer and in the presence of President Norstrand and Secretary Schultz was asked why he had picked the Textile Work- ers to be a representative; or why did he go to the Textile Workers Union instead of some other union?; or why couldn't they have a company union? He thought Schultz said that he would not have any three-way bargaining in his office. He said.that at another time, after the first meeting reported by him, Palmer "came down to me and asked me why I wanted to break the mill. He said that the Union would break his company. And in an angry form, he said, `I didn't think you would do that."' To this, the witness said that he replied that as far as the Union was concerned, "that was my opinion, and he could have his own." Yorke was discredited as a witness on cross-examination. First he admitted that his memory was hazy as to the conversations reported by him. Then again in connection with previous convictions for crime, he had to be pressed severely to even remember that he had been convicted, not once, but several times. The Trial Examiner does not believe any part of the testimony offered by Yorke. Clyde O'Neal, an employee of Park Tissue since 1946, testified concerning a meeting of the Union in November 1956 (apparently the first organizing meeting) at which 20 or 30 other employees were in attendance. He said that about a half hour after the meeting he, together with Joe Rogul, identified as a foreman under Knoepfle, went to see President Norstrand at Superintendent Palmer's home or of- fice adjoining the mills. Mr. Norstrand is said to have asked about the meeting and Rogul told him "it looks like it's in," whereupon Norstrand said "why did you pick on the Textile?" O'Neal could recall nothing else that was said at this meeting. The Trial Examiner can make no finding on the basis of this isolated informa- tion even if the conversation as reported by O'Neal is a correct recollection of what transpired. 11 Supervisor Knoepfle is handicapped by a severe impairment of hearing. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel has failed to sustain the burden of proof, and the com- plaint therefore should be dismissed. Motions of the Respondent To Dismiss as Stated at the Hearing At the hearing, counsel for the Respondent moved to dismiss paragraph 9, Sub - paragraphs (a) and (b) of the complaint for lack of proof. The motion is hereby granted. CONCLUSIONS OF LAW 1. The Respondents, Park Tissue Mills, Inc., and Frost White Paper Mills, Inc., are, and at all times material hereto have been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Textile Workers Union of America, AFL-CIO, is and during the times mate- rial hereto has been a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents above named have not been and are not now in violation of the National Labor Relations Act, as amended, as set forth in the complaint herein. [Recommendations omitted from publication.] APPENDIX SHIFTS AND TIME WORKED Day Date 1957 BROWNE COOPER , In Out In Out Friday------------- -- March 1------- 4:25 p.m ------ 12:00 p.m ----- 7:19 a.m------- 4:00 p.m. Monday--------------- March 4______ Absent-------- ---------------- 2:04 p.m ------- 11:10 p.m. Tuesday -------- ------- March 5------- 7:08 a.m ------- 4:11 p .m ------- 2:01 p.m ------- 5 2:30 a.m. day____________ March 6- ------ 7:22 a.m ------- 4:03 p .m ------- 9 p.m ------- 1: 1:00 a.m. Thursday------------- M arch 7------- 7:43 a.m ------ 4:13 p .m ------- 2:04 p .m ------- 8:29 p.m. Friday---------------- March 8------- 7:08 a.m ------- 12:29 p.m ------ 12 :21 p.m ------ 11:30 p.m. Monday_______ ________ March 4:10 p.m ------- 2 :07 a.m______ 7:05 a.m _______ 3:52 p.m. Tuesday --------------- -Al arch 12 ------ 2:08 p.m------- 1:00 a.m------- 7:03 a.m ------- 3:51 p.m. Wednesday------------ March 13______ 2:34 p.m ------- 12:48 a.m------ 7:09 a.m------- 4:01 p.m. Thursday------------- March 14 ------ 2:20 p.m ------- 11:44 [).in ------ 7:10 a.m------- 3:27 p.m. Friday_______ _________ March 15______ 3:17 p .m ------- 1:00 a.m------- 7:15 a .m------- 3:34 p.m. Monday --------------- March 18______ 7:04 a.m------- 3:42 p.m ------- 2:01 p.m ------- 4:00 a.m. Tuesday ---- ----------- March 7:09 a.m------- 4:14 p.m------ 1:59 p.m . ------ 1:30 p.m. Wednesday------------ March 20______ 7:17 a.m ------- 4:47 p.m------- 2:05 p.m ------ - 10:30 a.m. Thursday------------- March 21 ------ 7:18 a.m------- 4:31 p .m ------- 2:10 p.m ------- 10:00 p.m. Friday--- ------------- March 22------ 1:50 p .m ------- 9:01 p.m------- 7:03 a.m------- 4:00 p.m. Monday____ ___________ March 25 ---- -- 2:15 a.m ------- 2:35 p.m ------- 7:05 a.m -______ 3:55 p.m. Tuesday --------------- March 26 ------ 2:41 p.m ------- 1:08 a.m------- 7:06 a.m----- -- 3:50 p.m. Wednesday------------ March 27_..___- 2:20 p.m ---- --- 12:30 a.m ------ 7:08 a.m ------- 4:05 p.m. Thursday _____________ March 28______ 2:34 p.m - ------ 12:20 a.in ------ 7:07 a.m------- 4:04 p.m. Friday________________ March 29 ------ 3:27 p.m ------- 12:51 a .m------ 7:05 a .m. 4:01 p.m. Monday--------------- April 1-------- 3:00 p .m------- 9:15 p.m ------- 7:05 a.m------- 4:00 p.m. Tuesday--------------- April 2-------- 3:05 p.m------- 9:05 p.m ------- 7:13 a .m-----__ 4:01 p.m. Wednesday ____________ April 3 -------- 2:44 p.m ------- 12:06 a.m------ 7:05 a.m ------- 3:36 p.m. Thursday _____________ April4-------- 3:30p .m.______ 12:31a .m------ 7:00a.m------- 4:01 p.m. Friday-- -------------- April 5-------- 2:21 p.m ------- 12:00 p.m ------ 7:00 a.m._____- 4:00 p.m. Monday_______________ April 8-------- 2:25 p.m ------- 12:20 a.m------ 8:06 a.m------- 3:55 p.m. Tuesday--------------- April 9-------- 7:10 a .m------- 4:09 p.m ------- 2:26 p.m ------- 2:30 a.m. Wednesday------------ April 10_______ 7 :24 a.m------- 3:52 p.m ------- 2 :11 p.m ------- 12:00 p.m. Thursday_____________ April 11 ------- 7:11a.m ------- 4:08p .m------- 2:03p .m------- 12:00 p.m. Friday________________ April 12------- 9:20 p.m ------- 10:20 p.m ------ 4:10 a .m------- 4:00 p.m. GArnrdav ------ Anril 13 --- ---- 6:45 a .m------- 12:01 p.m ------ CALLAHAN-CLEVELAND, INC..- SHIFTS AND TIME Wo1 D--Continued 389 Day Date, 1957 BROWNE COOPER In out in Out Monday--------------- April 15 ------- 4:26 p.m------- 12:56 a.m------ 7:00 a.m------. 4:04 p.m. Tuesday--------------- April 16------- 2:42 p.m ------- 1:03 a.m------- 6:02 a.m------. 4:01 p.m. Wednesday ------------ April 17 ------- 2:54 p.m------- 12:04 a.m------ 7:00 a.m------. 4:02 p.m. Thursday------------- April 18 ------- 2:02 p.m ------- 12:39 a.m ------ 7:08 a.m ------_ 4:00 p.m. Friday---------------- April 19 ------- 2:49 p.m------- 12:06 a.m-----. 7:04 am ------- 8:55 p.m. Monday--------------- April 22------- 7:29 a.m------- 3:84 p .m ------- 2:12 p.m....... 1:80 a.m. Tuesday--------------- April 23 ------- 7:18 a .m------- 5:00 p.m------- Absent ..------ Wednesday------------ April 24 ------- 7:34 a.m------- 1:15 a.m------- ----- do......... Thursday------------- April 25------- 1:58 p.m------- 10:00p.m------ -----do--------- Friday ---------------- April 26------- 7:29 a.m------- 4:18 p.m------- -----do--------- Monday--------------- April 29 ------- 7:28 a.m------- 4:28 p.m ------- ----- do--______- Tuesday--------------- April 30------- 7:21 a.m------- 4:55p .m------- ----- do......... Wednesday------------ May 1-------- 7:14 a.m------- 4:51 p.m------- -----do--------- Thursday------------- May 2--------- 7:86 a.m------- 5:08 p.m ------- ----- do_--__-__- Friday---------------- May 3-------- 7:39 a.m------- 4:31 p.m------- -----do--------- Monday--------------- May 6-------- 7:21 a.m------. 3:32 p.m ------- 1:59 p.m ------- 3:32 a.m. Tuesday -------------- May 7-------- 7:37 a.m------- 3:59 p.m ------- 2:12 p.m------. 2:83 a.m. Wednesday------------ May 8-------- Absent-------- ---------------- 9:26 a .m------- 5:24 p.m. 'Thursday------------- May 9-------- 2:27 P.m ------- 10:33 p.m...... 7:10 a .m------- 3:85 p.m. Friday---------------- May 10 ------- 7:23 a.m------- 12:09 p.m ------ 2:08 p.m------- 2:30 a.m. Monday--------------- May 13------- 2:22 p.m ------- 6:00 p.m ------- 7:05 a.m------- 4:01 p.m. Callahan-Cleveland, Inc. and Retail, Wholesale and Department Store Union, District 65, AFL-CIO, Petitioner. Cape No. 8-RC 815f. December 11, 1958 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES On July 9, 1958, pursuant to a Decision and Direction of Election issued on June 9, 1958,1 an election was conducted under the direc- tion and supervision of the Regional Director for the Eighth Region among the employees in the unit found appropriate by the Board. At the conclusion of the election, the parties were furnished with a tally of ballots. The tally showed that of approximately 8 eligible voters 5 voted for and 3 against the Petitioner. On July 16, 1958, the Employer filed objections to the conduct affecting the results of the election. The Regional Director investi- gated the objections and, on September 25, 1958, issued and served upon the parties his report, a copy of which is attached hereto. The Regional Director found the objections to be without merit and rec- ommended that they be overruled, and that the Petitioner be certified 1120 NLRB 1355. 122 NLRB No. 56.