The Mead Corp.

CHATFIELD PAPER CORPORATION Chatfield Paper Corporation, A Division of The Mead Corporation and Dairy Employees Union, Cincinnati, Northern Kentucky and Hamilton Local No. 98, AFL-CIO. Case 9-CA-4314 June 26, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On February 26, 1968, Trial Examiner Morton D. Friedman issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a brief in support thereof. 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 Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner 's Decision , the Respondent's excep- tions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Chatfield Paper Cor- ' We agree with the Trial Examiner's conclusion that the 14 layoffs here involved were violative of Section 8(a)(3) and ( f ), and would not have oc- curred but for the closely spaced and consecutive protests that certain working conditions were contrary to an agreement between Respondent and the Union Although Respondent contends that the layoffs had been previously contemplated because of economic considerations, we reject this contention , as did the Trial Examiner , noting that nothing was done to effectuate such action until after the protests, and that Plant Manager Crawford 's statement , contemporaneously with one of the protests, to the effect that Respondent was carrying the employees despite its adverse economic position indicates that up to that point Respondent did not in- tend to effectuate the layoffs , even if considered We shall conform the Trial Examiner 's recommended remedy to his Order by revising the second paragraph of The Remedy section of his Deci- sion to change " earned " to "lost " so that it reads "sum of money equal to that which each would have lost." etc. 307 poration, A Division of The Mead Corporation, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on June 16, 1967, by Dairy Employees Union, Cincinnati, Northern Kentucky' and Hamil- ton Local No. 98, AFL-CIO, herein called the Union, the Regional Director for Region 9 of the National Labor Relations Board, herein called the Board, issued a complaint on September 5, 1967, on behalf of the General Counsel of the Board, against Chatfield Paper Corporation, A Division of The Mead Corporation, herein called the Respon- dent, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.) herein called the Act. In its duly filed answer to the aforesaid complaint, the Respondent, while admitting certain of the al- legations thereof, denied the commission of any un- fair labor practices. Pursuant to notice, a hearing was held before me in Cincinnati, Ohio. All parties were represented and afforded full opportunity to be heard, to in- troduce relevant evidence, to present oral argu- ment, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Coun- sel and the Respondent. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of the demeanor of each of the wit- nesses testifying before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT Respondent, an Ohio corporation, is engaged in the manufacture and sale of paper and paper products at various locations in the State of Ohio and other States of the United States. Only Respon- dent's operation located at 4980 Spring Grove Avenue, Cincinnati, Ohio, is involved in this proceeding. During the 12 months immediately preceding the issuance of the complaint herein, a representative period, Respondent purchased and had shipped directly to its place of business in the State of Ohio, from points outside the State of Ohio, materials, goods, and products of a value in excess of $50,000. It is conceded, and I find , that Respondent is an employer engaged in commerce as defined in Sec- tion 2(2) of the Act. It is further found and con- cluded that it will effectuate the policies of the Act 172 NLRB No. 47 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to assert jurisdiction over the Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED It is conceded, and I find, that the Union is a labor organization as defined in Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Issue The complaint alleges, and the answer denies, that the Respondent on June 15, 1967, discrimina- torily laid off 14 employees because of activities on behalf of the Union and to discourage membership in the same. As more fully developed at the hearing and in the briefs of the parties, the General Counsel alleges that the employees were laid off by the Respon- dent's plant manager as reprisal for their urging and processing an informal grievance over working con- ditions after the plant manager's position regarding the grievance was overruled by a higher official of the Respondent. On the other hand, the Respondent maintains that the decision to lay off the employees was made before the processing of the grievance; that the decision was necessitated by economic conditions; and that the processing of the grievance did not figure in any way in the decision to lay off the em- ployees. The Respondent frurther contends that the employees were not engaged in protected activity in advancing the so-called grievance. Thus, the principal issue , simply stated, is whether the Respondent laid off the employees in- volved because they engaged in protected con- certed or union activity or whether the layoff was motivated solely by lawful economic considera- tions. B. The Events The Respondent is engaged , at the facility in- volved herein, in the converting of paper, basically from rolls to sheets and from large to small sheets. These converting operations are performed for the purpose of furnishing to the ultimate users the size and type of paper the user requires. Many of the Respondent's customers are job printers and periodical publishers. Among them is the Hennegan Company whose cut-paper requirements are so ex- acting as to size that the Respondent , after, at some time in the past, spoiling an order of paper by not trimming to the exact specifications, refused to trim for Hennegan unless the latter's own employees came into the Respondent's plant to trim on the Respondent 's trimming machines. At the time this necessity arose, the Respondent already had a bargaining agreement with the Union covering the shop employees, and, in order to over- come the Union's objections to Hennegan's em- ployees working in the Respondent's shop with machines usually manned by the Union's members, entered into an oral agreement with the Union whereby Respondent's employees were permitted to stand by their machines while Hennegan's em- ployees operated the same with the Respondent paying its employees for standing by at the same rate as the employees would have earned had they actually been operating the machines. The only machines involved were trimmers of which there were two at all times herein involved. Additionally, Hennegan normally sends in only one crew of three men to operate one trimmer so that it only uses one trimmer at a time. The Respondent's own trimmer crews took turns standing by and the Hennegan employees alternate the trimmer used so that Respondent's trimmer crews may alternately get equal standby time. It would also seem that it was not customary for any of the Respondent's em- ployees to work with any of the Hennegan em- ployees, none of whom were members of the Union. It should also be noted that the use of the Respondent's trimmer by Hennegan was and is sporadic, sometimes occurring as little as once a month and at times as often as several times a week. As adverted to above, the Union has for a number of years had a bargaining relationship with the Respondent which has been set out in yearly written bargaining agreements, the latest of which was in effect at the time of the events herein. As- signed by the Union to service this contract was Business Agent Frank Wurzelbacher. During the early part of June 1967,' a complaint arose among the Respondent's employees unrelated to the events herein except to the extent that Wurzelbacher was assigned by Union President James Luken to check out the complaint. As the result of this instruction, Wurzelbacher visited the Respondent's converting division plant at approximately 9 to 9:30 a.m. on the morning of June 15. Shortly after arriving and letting Respon- dent's plant manager, Riley T. Crawford, know he was there, Wurzelbacher went to the coffee, or em- ployees', room of the plant where he found three employees, Marvin Vest, James Coker, and John Hogeback. Upon asking the three what they were doing there, Wurzelbacher's attention was directed to the no. 2 trimmer which, he observed, was being operated by two Hennegan employees. While Wurzelbacher stood talking to the three employees who were thus standing by, Foreman Walter Davidson approached and instructed em- ployee Coker to go over to the trimmer being operated by the Hennegan employees and stack ' All dates herein , unless otherwise specified, refer to 1967 CHATFIELD PAPER CORPORATION 309 paper for them. At that Wurzelbacher interrupted saying, "No, he don't stack paper for Hennegan. Our contract states he does not work with any em- ployees of any other group. He works with our own men and nobody else." Davidson objected to Wurzelbacher's contention and, as a result, Plant Manager Crawford was called. The matter was discussed and argued with the result that Crawford finally capitulated but stated, in effect, that he was not happy about it.2 This discussion with regard to Coker continued until a few minutes before the end of the morning coffeebreak which took place between 9:50 and 10 a.m. At the end of the discussion, and just before the end of the coffeebreak, Wurzelbacher walked back into the shop and stood and talked to em- ployee Lawerence Kelhofer who was operating the no. I trimmer with two other employees. Kelhofer asked Wurzelbacher why the paper being trimmed by the Hennegan employees was not being trimmed on the machine that Kelhofer was working on. Kel- hofer claimed that the day before the Hennegan employees had also worked on the other machine and that it should have been the turn of the Kel- hofer crew to stand by. Wurzelbacher answered to the effect that he did not know why this was being done but that he would have to ask Crawford. About that time , Crawford emerged from the of- fice and, in the company of Davidson, approached Kelhofer and asked the latter why only two skids of paper had been trimmed on the no. 1 trimmer by the Kelhofer crew. An argument ensued as to how many skids were actually completed since starting time that morning , and during the argument and in the heat thereof, Kelhofer asked Crawford why the Hennegan crew was not trimming at Kelhofer's machine . Crawford started to explain to Kelhofer that the paper being trimmed would not readily fit or be fed into Kelhofer's trimmer for which the other trimmer was better adapted. Then, Crawford reminded Kelhofer that Crawford was running the plant and that he was triying to keep the men at work and, in effect, doing them a favor because things were very slow with the Respondent. With that Kelhofer asked Crawford why, if things were that bad, had Crawford hired three summer em- ployees. With this remark, Crawford threw up his hands and stated "That's it. From Grant down you're on layoff." Grant was another employee who worked at Kelhofer's trimmer and who at that mo- ment was walking by. After this remark by Crawford, Crawford turned to Wurzelbacher and stated that he was going to call the employees who were going to be laid off into his office and that Friday would be their last day and that he was going to give them a choice of taking a week's vacation or a layoff. Wurzelbacher then proceeded to Crawford's office, and the em- ployees were individually thereafter called in, and asked whether they wished to take a vacation or a layoff. Most of the men chose a layoff.3 After the 14 employees involved were asked about their choice, written notices of layoff were prepared and were given to the men the following day, June 16, at the end of the day's work. Thereafter, all of the 14 employees, with the excep- tion of employees Grant and Hogeback, were laid off for a period of 2 weeks, with Grant and Hogeback being laid off for only 1 week. Both Crawford and Mark McShurley, Respondent's secretary-treasurer, testified that the layoffs were economic and had been discussed earlier in the week.4 C. Concluding Findings As heretofore particularized, counsel for the General Counsel maintains that the layoff was brought about by the activities of the employees in protesting working conditions and by Crawford's precipitous reaction to such protest. In lieu of a finding that the layoffs resulted solely by reason of the foregoing, counsel for the General Counsel also contends that even if the layoffs were due to a fal- loff in business and were contemplated by the Respondent's management, the layoffs were ac- celerated as recrimination for the protests. The Respondent, of course, maintains the layoffs were motivated solely by economic considerations. I do not agree and I find merit in the General Counsel's basic premise. Conceding that business was down and that the Respondent might have been contemplating a possible layoff, nothing was done to effectuate such a move until after the incidents of the morning of June 15 heretofore detailed. First came the Coker ' From credited portions of the testimony of Wurzelbacher and Coker. both of whom placed the incident as having occurred before the Kelhofer incident related elsewhere in this Decision . In relying on the Wurzelbacher and Coker versions as to the time of the occurrence, I especially note that their versions concur with the office memorandum made by Wurzelbacher the same day as the events related , and which I received in evidence as valid past recollection recorded . It is immaterial whether Delaplame, the Respondent's vice president , was present at that time and overruled Craw- ford's initial decision that Coker had to stack for Hennegan , or whether Delaplaine came to the plant at a later time as testified by Crawford and Davidson it is sufficient that I find that Crawford ultimately conceded, be- fore the Kelhofer incident, that Coker did not have to stack for the Hen- negan employees From credited portions of the testimony of Wurzelbacher , Kelhofer, and Coker Although Crawford and Davidson both admitted that Crawford stated to Kelhofer that he was doing his best to keep the men on the job, both denied that Crawford said , "That's it. From Grant down you're on layoff," or any words to that effect. However , since Crawford admitted that he was not happy with the settlement of the Coker affair, I find that in the context of the alleged statements and from my observation of all of the wit- nesses the Wurzelbacher, Kelhofer, and Coker versions of what occurred at that time are the more reliable 4 For reasons hereinafter set forth , I do not find it necessary to spell out the details of the facts related by the Respondent's witnesses comprising its economic defense , nor do I set forth the evidence with regard to the February layoff or the Grant suspension which occurred sometime earlier than the events with which we are here concerned 310 DECISIONS OF NATIONAL incident wherein Plant Manager Crawford was either persuaded to reluctantly accede or was or- dered by Delaplaine to accede to Wurzelbacher's argument that the Respondent 's employees could not work with the Hennegan men. Then, close on the heels of this incident came the clash with em- ployee Kelhofer, wherein, after some goading by Kelhofer, who insisted it was his crew's turn to be on standby, Crawford understandably reached the end of his patience; stated he was running the shop; threw up his hands; pointed to Grant, the first man to come into his vision; and stated, "That's it. From Grant down you're on layoff," or words to that ef- fect. Then, this understandable exhibition of frustra- tion or temper having been fully displayed, Craw- ford stormed into his office and for the first time called the men in to ask each if he wanted a vaca- tion or a layoff. As further indication that the layoff had not been contemplated, at least for that time, are two items which cannot be ignored. The first is Crawford's statement to Kelhofer and Wurzelbacher to the ef- fect that Respondent had been carrying the men despite the letup in business. This statement shows that up to that point the Respondent did not intend to effectuate the layoffs, even if considered. The second item, which adds strength to the conclusion derived from the first, is the fact that written layoff notices were not made up until after the incident and Crawford's apparent loss of emotional equilibrium. Thus I conclude that but for the closely spaced and consecutive incidents concerning Coker and Kelhofer on the morning of June 15, the layoff of the 14 employees would not have occurred. Accordingly, I find that the layoff announced on June 15 was an almost spontaneous reaction by Crawford to the protest by Wurzelbacher and Kel- hofer, as representatives of the Union, to working conditions in the plant. Whether the protests were, in fact, meritorious is beside the point. They con- stituted informal processing of grievances, a legit- mate union activity. The layoff having been effectu- ated as recrimination therefor, the effect was to chill the interest of the employee-members of the Union in lawful union activity. The layoff was, therefore, discriminatory and violative of Section 8(a)(3) and (1) of the Act. In view of this conclusion I find it unnecessary to consider whether the Respondent was, in fact, in an unfavorable economic position. Nor do I need to consider, as urged by counsel for the General Counsel, that the earlier layoff of February 1967 constituted background for the June layoff. Additionally, even if the protest and grievance processing by Kelhofer was not union activity, it LABOR RELATIONS BOARD constituted protected concerted activity, even though the act of a single employee.5 Reprisal for the processing of such grievance is a violation of Section 8(a)(1) of the Act, and the remedy would be the same as for a violation of Section 8(a)(3) of the Act.6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. By laying off its employees because of the em- ployees' union activities, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that Respondent has discrimina- torily laid off the employees whose names are set forth in Appendix B hereof, for engaging in pro- tected union activity, but the Respondent having reinstated them, I shall recommend only that the Respondent make them whole for any loss of earnings they may have suffered by payment to them of a sum of money equal to that which each would have earned from the date of the layoff to the date of the reinstatement, less earnings during said period, said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 per- " Enduro Metal Products Co., Inc., 160 NLRB 1411; Top Notch Manufac- turing Company , Inc, 145 NLRB 429. " See Enduro Metal Products Co., Inc., supra. CHATFIELD PAPER CORPORATION cent per annum . (Isis Plumbing & Heating Co., 138 NLRB 716). Upon the foregoing findings of fact and conclu- sions of law and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Chatfield Paper Corporation, A Division of The Mead Corporation, its agents, officers, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Dairy Em- ployees Union, Cincinnati, Northern Kentucky and Hamilton Local No. 98, AFL-CIO, or in any other labor organization, or discouraging employees from pursuing grievances with regard to their working conditions, by laying off said employees, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights of self-organization, to form labor or- ganizations, to join or assist Dairy Employees Union, Cincinnati, Northern Kentucky and Hamil- ton Local No. 98, AFL-CIO, or any other labor or- ganization, to bargain collectively with representa- tives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Make whole each of the employees listed in the attached Appendix B for any loss of earnings each may have suffered by reason of his layoff in June 1967, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its plant and offices at 4980 Spring Grove Avenue, Cincinnati, Ohio, copies of the at- tached notice marked "Appendix A. "7 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by its representative, shall be posted by Respondent im- 7 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 311 mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board. After a trial in which all sides had the chance to give evidence, the Trial Examiner found that we violated the National Labor Relations Act and or- dered us to post this notice to show you that: WE WILL NOT lay off any of our employees if they present any grievances to us with regard to their working conditions or other terms or conditions of employment. Nor will we dis- criminate against you in any way because you joined or favor Dairy Employees Union, Cin- cinnati , Northern Kentucky and Hamilton Local No. 98, AFL-CIO, or any other labor or-, ganization. WE WILL NOT in any other manner interfere with, restrain , or coerce you in the exercise of your rights to organize yourselves to form, join, or help unions, to bargain as a group through a representative you choose, to act together for collective bargaining or other mutual aid or protection or to refuse to do any and all of these things except to the extent permitted by Section 8(a)(3) of the National Labor Rela- tions Act. Since the Trial Examiner found that we laid off employees in June 1967 because some of you engaged in submitting grievances to us with regard to your working conditions, WE WILL offer the said employees laid off, as set forth in Appendix B hereof, full restitution of all moneys each may have lost in earnings as a result of such discrimination, including interest at 6 percent per annum. You and all our employees are free to become or remain, or refrain from becoming or remaining, members of any organization except to the extent " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 9 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provided in Section 8(a)(3) of the National Labor notice or compliance with its provisions, they may Relations Act. communicate directly with the Board's Regional Dated By CHATFIELD PAPER CORPORATION, A DIVISION OF THE MEAD CORPORATION (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this Office, Room 2407 Federal Office Building, 550 Main Street , Cincinnati, Ohio 45202, Telephone 684-3686. APPENDIX B The following are the employees who were laid off and to whom backpay is to be given in ac- cordance with the Recommended Order. Clifton Grant Lawrence Kelhofer John Hogeback James Cresap Lawrence Bailey Charles Clements Orville Dick Paul Heal Don Linzy James Coker Wayne Doehiman John Crawford James Bell James Klus