Gulf Container Corp.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gulf Container Corporation and International Brotherhood of Pulp, Sulphite and Papermill Workers , AFL-CIO. Case 15- CA-776. November 3, 1966 DECISION AND ORDER On August 2, 1966, Trial Examiner Paul Bisgyer issued his Deci- sion in the above-entitled proceeding , finding that the Respondent had not engaged in unfair labor practices as alleged in the com- plaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief and the Respondent filed a brief in support of the Trial Examiner 's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings , conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order and dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all the parties represented, was heard before Trial Examiner Paul Bisgyer on June 2 and 3, 1966, in New Orleans, Louisiana, on the complaint of the General Counsel and the answer of Gulf Container Corpo- ration, herein called the Respondent.' In issue are the questions ( 1) whether the Respondent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, discharged employee Errol M. Joseph for threatening an employee with violence in the course on concerted activities, although Joseph was actually not guilty of such conduct; (2) assuming that Joseph had threatened the employee, whether this reason was only a pretext to conceal the Respondent's true antiunion motivation so that the discharge violated Section 8(a)(3) and (1) of the Act; and (3) whether the Respondent interfered with, restrained, or coerced employees in violation of Section 8(a)(1) of the Act by authorizing an employee to conduct a meeting for the purpose of polling employees regarding their desires for union representation. At the close of the hearing the parties waived oral argument. Thereafter, briefs were received from the General Counsel and Respondent. 1 The complaint is based on a charge filed on February 4, 1906, by International Brother- hood of Pulp, Sulphite and Papermill Workers, AFL-CIO, a copy of which was duly served on the Respondent by registered mail on or about February 7, 1966. 161 NLRB No. 70. GULF CONTAINER CORPORATION 735 Upon the entire record, and from my observation of the demeanor of the wit- nesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Louisiana corporation with its principal place of business in New Orleans, Louisiana, where it is engaged in the manufacture and sale of corrugated boxes. In the regular course and conduct of its business , the Respondent annually purchases materials and supplies valued in excess of $50 ,000, which are shipped directly to its plant in Louisiana from sources outside the State. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. I further find that the nature and extent of the Respondent's operations warrant the Board's assertion of jurisdiction. II. THE LAROR ORGANIZATION INVOLVED The Respondent concedes, and I find, that International Brotherhood of Pulp, Sulphite and Papermill Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section -2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The evidence 1. The Union's appearance at the plant; representation proceedings Arnaud N. Dufrechou,2 the Respondent's president, first learned of the Union's interest in the Respondent's employees shortly after January 3, 1966,3 when he received a letter from the Union. On January 11, Errol M. Joseph and 8 other employees out of a total complement of 17 employees signed cards authorizing the Union to represent them as their bargaining agent. On January 14, the Union filed with the Board's Regional Office a representation petition (Case 15-RC-3285) pursuant to which a secret election was conducted on March 11. The Union lost the election by a vote of seven to eight with Joseph, who had been previously discharged under circumstances described below, casting a challenged ballot which did not affect the results. 2. Polling of employees with respect to desires for union representation On or about January 20, shortly before 7 a.m., the beginning of the workday, employee Charlie Deshotel asked Plant Superintendent Rawlin M; Carter whether he had heard a rumor that a union was organizing the plant. According to Carter, he replied in the negative and Deshotel thereupon requested permission to hold a meeting of employees "to get the straight of the thing." Carter granted this request and proceeded to assemble all but one of the employees, Clyde Givens, who was on the road, informing them that Deshotel wanted a meeting. After assembling the employees, Carter briefly stated to the group that he heard that employees were trying to bring a union into the plant. He further stated that he had no objection to a union but, if it got in, the plant would be run strictly as a union shop with all rules being observed' Carter then turned the meeting over to Deshotel and departed. Deshotel initially explained to the employees that President Dufrechou had advised him that if he (Dufrechou) definitely knew that the employees wanted a 2 Known to employees as Mr. Duke. 3 Unless otherwise Indicated, all dates refer to 1966. 4I find that Carter was not entirely candid in his testimony that he told Deshotel that he was unaware of the Union's appearance at the plant, especially in view of his admission that President Dufrechou had previously informed him of the Union's interest in organiz- ing the employees Moreover, I do not credit his denial that lie knew at that time the purpose of this meeting or that he made any statement there before turning over the meeting to Deshotel 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union that this fact would spare him the expense of $ 1,500 to fight itb Deshotel thereupon proposed that the employees vote a signed ballot for or against the Union to ascertain their desires. Because of Joseph's objection to identifying the votes, it was agreed that ballots would not be signed . Before the balloting, Deshotel expressed his opposition to the Union , asserting that the plant was too small and referring to the Respondent's kindness in throwing parties for the employees, and giving them turkeys on Thanksgiving and Christmas bonuses. Apparently, some sentiment was also expressed by an employee in favor of the Union . A secret poll was then held which showed that nine employees favored the Union and eight opposed it. Included in the latter figure was a negative vote which it was presumed would have been cast by the absent employee were he present . After announcing the results, Deshotel declared that "that's what you want. That's the way it's got to be," but insisted that he would not join the Union . On this note, the meeting, which ran over into working time, ended.6 3. The verbal exchange between employees Joseph and Charrier On January 21, about a day or so after employees were polled regarding their union preferences, employee Bobby Charrier suggested to Joseph that the employ- ees get together informally in the plant during the lunch hour to discuss the ques- tion of union representation . Such a meeting, with some 10 employees being pres- ent, was held and lasted about 10 minutes . Only Charrier and Joseph participated in the discussion while the other employees listened . Reading from a collective- bargaining agreement which was in effect at a Weyerhaeuser box plant when he was employed there in previous years, Charrier expressed the view that union terms and conditions of employment would work to the serious disadvantage of the Respondent's employees. Joseph, an outspoken union adherent ,- took issue with Charrier, arguing the advantages of union representation . This led to certain remarks Joseph purportedly made which resulted in his discharge at the close of the workday. As is not unusual in cases of this type , witnesses to the occurrence gave different versions. Charrier, who was no longer in the Respondent 's employ at the time of the hearing, testified as a witness for the Respondent that , after stating to the group that he did not care to join the Union , Joseph answered him that "If we didn't join, that we could get our heads blown off. And my car blown up, and I'd never know who did it." Charrier further testified that , without directing his reply to anyone in particular he declared that "whoever did it had better do a good job." On cross-examination, Charrier described this incident in these words: "I told him [Joseph] I wasn't going to join the union and he said, `Well, if you don't join, don't be surprised if bullets don't bust your head wide open when you walk out the door or find your car burned up . . . [and] you'd never know who did it.' I told him that whoever did it had better do a good job." According to Willie Hogan, the employee who subsequently reported the incident to the Respondent , during the course of the verbal exchange between Charrier and Joseph, Charrier asked, "[W]ho in here could go to the front for a union if some- thing would go wrong in the union.7 So . . . [Joseph ] said that's a change you have to take .... [Joseph ] told . . . [Charrier], `You could walk out the door and bullets will start flying around your head.' 8 .. . [Charrier] said he wouldn't think nothing like that would happen to him." When cross-examined by the General 6 Dufrechou denied telling this to Deshotel or any employee , although he testified that employees were aware from what they learned during an earlier representation election that it would cost the Respondent about $1 ,500 to oppose the Union 6 The foregoing findings are based principally on the combined testimony of employees Errol Joseph , Edgar Collins, Carver Grant, and Willie Hogan. Whatever testimonial vari- ances and contradictions there are , they relate to matters not particularly important or controlling in resolving the issue presented by the pleadings. ' On cross-examination , Hogan described this episode , as follows: In the course of their discussion concerning the good and bad features of a union , Charrier asked Joseph, "If something would come up in the plant now who would have to go front for you in the union?" Joseph replied that he did not need anybody "to go front for him." 'On cross-examination , Hogan quoted Joseph as saying, "Bobby , you walk out that door, bullets liable to fly at , our head " GULF CONTAINER CORPORATION 737 Counsel, Hogan,9 testified at first that he did not know whether Charrier was talk- ing about a strike just before Joseph made the "bullet" remarks. However, in answer to a followup question, he testified that Charrier told Joseph that "if they would have*a union and have a strike he was still going to come to work," 10 and that this statement was made just before Joseph "told ... [Charrier] that if he- did, he might walk out that door and find bullets flying around his head." Different accounts of this episode were given by the General Counsel's witnesses, Joseph, Carver Grant, and Edgar Collins, all of whom denied that Joseph threat- ened Charrier with violence. According to Joseph, after Charrier expressed his reasons for his opposition to the Union, Charrier warned employees that "you all are going to be taking a chance by getting the union in here." It would be taking- a chance on losing out on everything." Joseph further testified that he replied,, "Bobby, life is a chance or a gamble . . . . You may walk outside and get hit by a stray bullet or get run over by an automobile." With that observation, he testi- fied, he left the group to return to work. Although denying that he had threatened- Charrier, Joseph forthrightly testified that several of the employees who were pres- ent at the meeting told him that Charrier answered by stating, "you better do a good job of it." Grant's testimony was to the effect that Charrier pointed out the disadvantages that employees would suffer if the plant were organized; that he then cautioned that "you all are taking a big chance for a union"; that, in reply, Joseph com- mented, "You take a chance when you walk on the street; you might be hit by a stray bullet, or hit by a car"; and that this elicited Charrier's remark that "whoever it is, they better do a good job." Lastly, Collins, who had quit the Respondent's employ sometime before the- hearing, supplied his recollection of the incident: After Joseph voiced disagreement with Charrier that the Union would not personally benefit him (Joseph), Joseph added that he still believed that a union was good for the employees and that in 2 or 3 weeks the Union would get into the plant and he would get top salary for his job as tape operator. At' that point, Charrier declared, "I don't care exactly what you guys do. [A]s far as myself, I'm going to work whether the union's in here or not. I'm against the union. You all can do anything, fight me or turn my car over or anything. I know one thing. It's that you guys are going to lose out." To this Joseph replied, "Regardless of whether we lose out or not, life is nothing but a gamble. You're taking a chance either way you go. For instance, you could walk outside and get hit by a stray bullet. Life is nothing but a chance." I would be less than candid were I to presume to determine the exact words uttered by Joseph and the context in which they were used. Although there are significant variances in the testimony, the witnesses, whose demeanor I have care- fully considered, impressed me as individuals not disposed deliberately to falsify testimony to support a predetermined result. On the contrary, the variances, in my opinion, are attributable to familiar human frailties of observation, comprehension, and memory. However, whatever the words Joseph actually uttered, and regardless of his intent, I am persuaded from a careful evaluation of the evidence that his remarks were reasonably susceptible of being understood, as it evidently was by at least some of the listeners, as a threat of bodily harm to Charrier for his opposi- tion to the Union. Thus, it' is quite clear that Charrier so interpreted Joseph's remarks when he retorted, in substance, that whoever undertook to carry out the threat had "better do a good job." Indeed, although admittedly informed by several employees concerning Charrier's last remark, there is no evidence of any effort by Joseph to set Charrier right that a threat was not intended. Moreover, employee Hogan thought the implication of violence in Joseph's statements serious enough to report them to management. Accordingly, I find that, whether or not intended as threats, Joseph's remarks were reasonably susceptible of such an interpretation. 9 While testifying, Hogan was slow in recollecting events. However, I do not believe that his delay in answering questions was for the purpose of fabrication. 10 As will later be discussed, Hogan mentioned the strike remark when he reported the incident to the Respondent. Charrier and Joseph, on the other hand, denied that a strike was mentioned in their discussion 11 Hogan denied hearing Charrier say that employees would be taking a chance on bring- ing a union into the plant. 264-188-67-vol. 161-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Joseph's discharge 12 Approximately 2 hours after the foregoing union discussion, Hogan reported to Plant Manager Carter the verbal exchange that occurred between Joseph and Charrier in the presence of other employees. Thereupon, Carter spoke to Charrier at his machine to verify Hogan's report. In substance, Hogan and Charrier informed Carter that, in the course of a union discussion and in response to Charrier's announced purpose to continue working during any strike that might be called, Joseph declared that, if he did, bullets would fly around his head when he walked out the door of the plant or uttered words to that effect. About 15 minutes later, Carter transmitted this information to President Dufre- chou, who promptly arranged to interview separately Hogan and Charrier in his office. In the ensuing conversations, Hogan and Charrier described the union dis- cussion that took place between Charrier and Joseph in the presence of other employees, with Charrier expressing his opposition to the Union and Joseph argu- ing its advantages. Among other things, Hogan and Charrier told Dufrechou that, when Charrier stated that, if a strike were called, he would not support it but would continue working, Joseph, in effect, asserted that Charrier would be liable to get a bullet in his head or have his car wrecked. Dufrechou thereupon summoned Joseph to his office. Dufrechou apparently opened the conversation with a reference to Joseph's prior employment with the Respondent, which resulted in his termination for repeatedly causing disturbances in the plant, and his reemployment the previous October when he assured Dufre- chou he had mended his ways. Dufrechou then confronted Joseph with the accusa- tion that he had threatened Charrier that he was liable to get a bullet in his head.13 Joseph denied the charge, asserting that his remarks were not intended to convey that idea and suggesting that Dufrechou speak to the other employees who attended that meeting. Dufrechou stated that he saw no reason to make any further inquiries and rejected the suggestion. He then called Joseph's father on the telephone and advised him that Joseph had reverted to his former conduct, that he had threat- ened an employee, and that he (Dufrechou) could no longer tolerate such conduct and was obliged to discharge him. Refusing to accede to the request of Joseph's father to defer action, Dufrechou handed the telephone to Joseph who told his father that he was actually being terminated for union activity. Dufrechou then resumed his telephone conversation and categorically denied that union activity prompted his decision. While Joseph was on the telephone, Dufrechou advised Vice President Cochran of his decision and asked him to have the office employee prepare a final check for the day's work due Joseph. It appears that a few minutes before Joseph was paid his regular weekly wages. After the completion of the telephone conversations, Dufrechou told Joseph that he was discharged and to wait in the lobby for his final check which he received shortly thereafter. At some point during these events, Dufrechou had consulted his attorney. At the hearing, Dufrechou insisted that the only reason for discharging Joseph was his threat of violence to Charrier and that the treatment thus accorded to him was the same as that given to two employees who had previously been terminated for making similar threats 14 at times when no union was engaged in organizing the plant. In addition, Joseph, who had an earlier period of employment with the "The findings in this section are based on a synthesis of the testimony of emplovees Hogan and Joseph, President Dufrechou. Plant Superintendent Carter, and Vice President Fletcher T Cochran Except in one respect, the testimonial discrepancies relate to minor matters which do not convincingly establish that the reason asserted for Joseph's discharge was concocted There is a serious conflict, however, between the testimony of Carter and Dufrechou that, before Joseph's discharge, they interviewed Charrier concerning the threat in question, and Charrier's denial that he had been interviewed Considering all the facts and circumstances surrounding the dischaige, I am persuaded that the prob- abilities support the Carter and Dufrechou testimony and I accordingly credit it 13 Joseph admitted that, although Dufrechou did not identify the two informants, he knew one of them was Charrier 14 One of these employees was discharged in June 1965 for threatening a supervisor. About a month later, this employee was involved in a widely publicized slaying. The other employee was terminated earlier for threatening an employee with a hammier and for cursing the Respondent's president and a supervisor when they confronted hint with the accusation. GULF CONTAINER CORPORATION 739 Respondent that lasted until November 1964, admitted that he was also separated at that time for repeatedly causing disturbances in the plant and that when he asked Dufrechou to rehire him in October 1965, Dufrechou agreed to give him another chance to see how it would work out. Joseph further testified that he was rehired at an hourly rate which was 10 cents less than the rate the Respondent paid him at the time of his first discharge with the understanding that the 10 cents would be restored if he produced and did not cause any disturbance. Although Joseph received the wage increase a few weeks before his discharge, Dufrechou testified he did not merit it because he had reverted to his former pattern of behavior. If Dufrechou's appraisal of Joseph's conduct in this respect does not suffer from exaggeration, which I firmly believe it does, the Respondent at least concedes that it was not the reason for the discharge. B. Concluding findings 1. With respect to Joseph's discharge It is the General Counsel's position that Joseph, in fact, did not threaten Char- rier and, as Joseph was engaged in protected concerted activity at the time he made the innocuous remarks, his discharge for this reason violated Section 8(a)(1) of the Act under the Burnup and Sims principle,15 regardless of the Respondent's good-faith belief that Joseph had threatened Charrier. In the. cited case, A he Supreme Court held: § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the. discharge was an alleged act of misconduct in the course of that activity; and that the employee, was not, in fact, guilty of that misconduct. The Court observed that, were it not so, "[a] protected activity acquires a pre- carious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith." However, I find this principle inapplicable to the facts of the present case. For, as I have found above, whether or not so intended, Joseph's statements to Charrier during the course of union discussion, in whatever form they were expressed, could reasonably be understood as a threat of violence and therefore lost the protection the Act would otherwise afford his concerted activity. In these circumstances, I find that Joseph's discharge for threatening an employee did not interfere with, restrain, or coerce Joseph or other employees in the exercise of their statutory rights in violation of Section 8(a)(1) of the Act. Alternatively, the General Counsel urges that, even if a threat is found, the Respondent seized upon it as a pretext to get rid of the most outspoken union advocate and therefore Joseph's discharge was discriminatory within the meaning of Section 8(a)(3) of the Act. I find this contention not sustained by the evidence. It is true that Joseph was the Union's most vocal supporter. However, this activity certainly, by itself, does not establish that it dictated his discharge par- ticularly where, as here, the record is barren of any evidence of hostility or resentment toward the Union on the Respondent's part, much less of a purposeful campaign to defeat it by any means, lawful or unlawful. Indeed, Joseph's dis- charge for threatening an employee was not an exceptional reaction by the Respondent to misconduct of this type. On prior occasions, before the advent of the Union, the Respondent had taken similar punitive measures against employees guilty of comparable acts. Admittedly, Joseph himself had previously been separated for causing disturbances in the plant. No doubt this case is not entirely free of suspicious circumstances, such as the Respondent's refusal or failure to conduct a fuller inquiry into the accusation directed against Joseph, and the fact that Joseph was granted the promised increase a few weeks before his termination. However, suspicion is not a permissible substitute for evidence. In sum, I conclude that the General Counsel has failed to prove by a prepon- derance of the credible evidence that Joseph's discharge was motivated by anti- union considerations. For this reason and as I have found that Joseph was not terminated for engaging in a protected concerted activity, I recommend dismissal of the pertinent allegations of the complaint. 16N.L.R.B. v. Burnup and Sins, Inc., 379 U.S. 21, 23. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. With respect to the polling of employees The General Counsel contends that the Respondent violated Section 8(a)(1) of the Act by authorizing employee Deshotel to hold a meeting in the plant at which employees were polled as to whether or not they desired to be represented by the Union. The Respondent, on the other hand, denies that it was responsible for what transpired at this meeting. I have previously found that this meeting was called by Plant Superintendent Carter at Deshotel's request; before turning the meeting over to Deshotel, Carter assured the employees that he had no objection to a union being in the plant; after Carter left the meeting, Deshotel told the employees that President Dufrechou had informed him that if he (Dufrechou) knew that employees wanted a union, it would spare him the expense of fighting it; and thereafter, a secret election was conducted in which a majority cast ballots in favor of the Union. I agree with the General Counsel that the Respondent was responsible for the poll thus conducted. On the other hand, I find that polling of the employees in an atmosphere free of even the slightest suggestion of threats of reprisal or promises, of benefit or other unfair labor practices, as was the situation here, was neither calculated to, nor had the necessary effect of , frustrating employees in exercising their guaranteed rights within the meaning and intent of Section 8(a)(1) of the Act. Accordingly, I recommend dismissal of these allegations of the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings and upon the entire record of the case, I recommend that the complaint issued herein against the Respondent Gulf Con- tainer Corporation be dismissed. Tom's Monarch Laundry & Cleaning Company, Inc. and Laundry and Dry Cleaning Workers Local Union No. 56 and Amalga- mated Clothing Workers of America, AFL-CIO, and Local No. 319, Amalgamated Clothing Workers of America, AFL- CIO. Case 25-CA-2296. November 3, 1966 DECISION AND ORDER On March 23, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Exam- iner's Decision. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 161 NLRB No. 69.