Midland Container Corp.

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Midland Container Corp. and Printing Specialities and Paper Products, Local 409, AFL-CIO. Cases 14- CA-5801-1 and 14-CA-5801-2 May 12, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN AND KENNEDY On January 28, 1971, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled con- solidated proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Midland Container Corp., St. Louis, Mis- souri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. ' Respondent excepts to certain of the Trial Examiner's credibility reso- lutions. It is the Board's established policy, however, not to overrule a Trial Examiner's credibility findings unless, as is not the case heie, the preponder- ance of all the relevant evidence convinces us that they are incorrect. Stand- ard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). As the record and brief adequately present the issues and positions of the parties, Respondent's request for oral argument is hereby denied. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This case, heard at St. Louis, Missouri, on December 15, 1970,' pursuant to a charge filed the preceding September 4 and a complaint is- sued October 18, presents the question whether Respondent, herein called the Company, discharged two employees, James ' Except where otherwise indicated all dates herein refer to the year 1970. Craft and Stanley Lee, on September 1 and 2, respectively, because of their activities on behalf of the Charging Party, herein called the Union. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and by the Company, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Missouri corporation engaged in St. Louis in the manufacture of corrugated paper products, annually ships products valued in excess of $50,000 to points outside the State, and is an employer engaged in an activity affecting commerce within the meaning of Section 2 (6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Craft and Lee Engage in Organizing Activities and Are Discharged Shortly after working hours on Monday, August 31, Lee, Craft, and four other employees met with Union Representa- tives Herr and Voshen at a tavern opposite the Company's plant and laid plans for organizing the Company's approxi- mately 30 employees. Lee and Craft at that time received a number of blank authorization cards to be given to other employees to sign. The signed cards were to be turned in to Lee, who would forward them to the Union. At the meeting the employees present expressed some concern that if their union activity became known they might be discharged. De- spite reassurances that they were protected by Federal law, they decided to avoid letting management know that they were engaged in organizing. On Tuesday, September 1, Lee obtained two signatures to cards in the parking lot before working hours. During the day he talked to other employees about the Union. On one occa- sion that day Craft handed Lee some signed cards. This oc- curred from 20 to 50 feet away from the desk of the foreman, John Austin, who (according to Lee) was looking at the two men at the time but who (according to Austin) did not "see Craft hand Lee any union cards" or "anything that [he] might suspect were union cards." Lee also testified that dur- ing one break period that day he got into an argument with another employee over the Union and raised his voice to the extent that he "might have been overheard" by Austin, who, however, denied hearing any such discussion. Craft also handed out union cards outside the plant before the start of the working day on September 1. At that time, according to Craft's testimony, Austin was near the door and "could have seen" Craft handing out cards. A few minutes later Craft was discussing the Union with employees in the lunchroom at a time when Austin was standing a few feet away. About 3:30 that afternoon Craft, emboldened by the fact that most of the men had signed cards, approached em- ployee Stallings who was talking with Austin and a salesman, and unsuccessfully solicited Stallings to sign a union card. According to Craft, Austin "sort of smiled at me, he sort of turned his head and smiled at me when I was talking to [Stallings]." Austin testified that he neither saw nor heard of any union activity on that day or the next. Finally, Craft testified that one afternoon at the tavern 3 weeks or a month before the organizing meeting, he had mentioned to the wife of another employee, but in Austin's presence, that he (Craft) "would like to get a union in there." Austin did not directly contradict that testimony but did state that he did not re- 190 NLRB No. 67 MIDLAND CONTAINER CORP. 329 member discussing any union with Craft during July or Au- gust. The Company discharged Craft on Tuesday, September 1, about a half hour after his unsuccessful effort to obtain Stall- ings' signature on a union card. At the start of the next working day the Company discharged Lee. The union cam- paign continued, and was met by counterpropaganda from the Company, which was clearly opposed to the advent of the Union. The Union eventually won an election and was cer- tified B. The Company's Explanation for the Discharges As already noted, the Company denied having any knowl- edge of the union activities of Lee and Craft at the time it discharged them. It contends that in each case the employee was discharged for incompetence. 1. Craft had been assigned to a variety of jobs during his 1 year of employment at the Company. On several occasions he went to Foreman Austin to state that he needed to earn more money. On the last such occasion, about 3 weeks before his discharge, Craft said he had to have more money or he would quit. He was then assigned to operate the towmotor. After about a week and a half on that job, Austin told Craft that he was not performing satisfactorily in that job as he was causing too much "down time" for other employees, and suggested to him that he accept a wage cut from $3.10 per hour (the towmotor rate) back to $2.56 per hour, the rate paid on Craft's previous job. Craft agreed to the cut, but during the next week he repeatedly asked to have it restored, and Austin never gave him a definite answer. At about 4 p.m. on September 1 Austin told Craft he was dismissed. When Craft asked if he should go back to the corrugator or the slitter (his previous jobs), Austin made it clear that Craft was being discharged for "down time." Prior to this episode, no one had been discharged during the past year, except for one em- ployee who had worked at most 1 or 2 days. Craft had not be criticized for his work in his previous jobs; indeed Austin at the hearing characterized Craft as "a good worker, not bad," and admitted that on all other jobs Craft's performance was satisfactory. Other employees who had proved unsatis- factory on the towmotor had been transferred back to other jobs. Craft freely admitted that he was not handling the towmo- tor job properly, attributing his troubles with it td inexperi- ence and lack of training Austin testified that Craft's con- tinued difficulties after his first 10 days on the job showed that he would not make a satisfactory towmotor operator. Austin, after he let Craft go, operated the towmotor himself for a day or two, and then brought a man in from the shipping depart- ment to take over the job. Asked why he let Craft go, rather than transfer him to another job, Austin testified: Well, he couldn't keep up on the job that he was doing. I had put another man back on the corrugator who was working out pretty good at that time, or I thought he was, and the man had expressed his desire that he had to have more money or he would go somewhere else. I didn't want to put him back in his old job because I would have to terminate another man, and if he would quit, I would have to put another new man back there and train him. 2. Lee, who was hired in May 1970, first worked on a slitter score machine on which he experienced no problems. Shortly after the middle of July he was transferred to a corrugator machine, which the Company had just purchased from the Weyerhauser Company. The machine itself was over 20 years old, and had to be somewhat remodeled to fit into the Com- pany's operation. Its installation at the Company was super- vised by a mechanic employed by the manufacturer who instructed Lee in the operation of the machine. Early in August a gear broke on the machine, apparently because the two knives in the machine were not operating in proper synchronization. Apparently this type of difficulty was not completely unexpected or unanticipated by either the manufacturer or the prior owner, for a "spare" gear was among the replacement parts which the Weyerhaeuser people furnished the Company along with the machine. However, at the time the gear broke, the Company was not aware that it possessed a spare and therefore had a new gear made by a local machine shop. The machine continued to give Lee some trouble, and on September 1 the gear broke again. Company President Elzemeyer telephoned the mechanic who had helped install the machine. The mechanic told Elzemeyer that the knife on the machine must be running "out of time" and that the machine was not being run properly. Elzemeyer testified: "I don't remember [the mechanic's] exact words but he suggested that we might take a pretty good look at how we were handling the situation." Elzemeyer and Austin, ac- cording to their testimony, thereupon decided to discharge Lee, and so notified him when he reported for work the next morning. The machine was again repaired, this time using the spare part, and has given no further trouble.' C. Concluding Findings The question presented is whether "there is considerably more than a coincidental connection" between the onset of union activity, led by Lee and Craft, and their discharges within 24 hours thereafter. N.L.R.B. v. Condenser Corpora- tion of America, 128 F.2d 67, 75 (C.A. 3, 1942). General Counsel points not only to the timing of the discharges with respect to the union activity, but also or the fact that on the whole Lee and Craft had been acceptable employees, at least in their prior jobs, that the Company's pattern was not to discharge men but to transfer them back to work in which they had been satisfactory, that the discharges here were precipitate, not occurring at the end of a pay period, and that the Company showed itself hostile to the prospect of the employees' being organized by a union. The Company on the other hand correctly points out that union activity furnishes no protection against discharge for incompetency, and fur- ther insists that it was unaware of the union movement at the time of the discharges. As the courts have repeatedly stated, "direct evidence of a purpose to violate the statute is rarely obtainable," and "the Board may give consideration to circumstantial evidence as well as to that which is direct." See, e.g., N.L.R.B. v. Interna- tional Union of Operating Engineers, 216 F.2d 161, 164 (C.A. 8, 1954). In this case, if I were to credit the testimony of Austin and Elzemeyer that they had no knowledge of the union activity at the time of the discharges, I would dismiss the complaint. I do not, however, credit that testimony. Al- though Lee and Craft apparently made some effort, at least early in the day, not to flaunt their union activity, the record discloses that by the end of the day nearly all the employees had signed cards, some of which were returned to Craft and all of which on that same day eventually reached Lee. So much activity in so short a space of time in a small shop of 30 employees would not ordinarily go unnoticed. Cf. 2 Lee had been criticized for "down time" on the machine, but Austin agreed that only half the time was actually chargeable to Lee, and that of that half, some was unavoidable Elzemeyer did not refer to the matter at all in discussing Lee's discharge. Austin testified that he did not discuss the matter with Lee "in detail, because he knows more, I guess, about the corrugator than I do " I find that the "down time" matter played no part in the discharge of Lee 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A. 1, 1966). There is evidence that Austin had ample opportunity to see and hear what was going on,' culminating in Craft's solicita- tion of Stallings virtually under Austin's nose. As the Antell case teaches, the smallness of the plant alone does not make the case for General Counsel, but is a factor which counts in the balance when all the other circumstances (such as union animus, reasonableness of the assigned ground for discharge viewed in the light of past practice, etc.) are examined. Particularly in Craft's case, the circumstances attending the discharge tend to discredit the explanation proffered by the Company. Undoubtedly Craft was not doing well on the towmotor. But there is no convincing reason for terminating his services abruptly on a Tuesday afternoon because of that fact. Others had been tried and found wanting in that job, and had been returned to other work. The reason assigned for treating Craft differently is that he had expressed a need to earn more. Yet on the day of his discharge he appeared ready enough to return to one of his former jobs. Also, only a few days before when Craft asked for a restoration of a wage cut, Austin said merely that he had not spoken to Elzemeyer about it, but gave no hint that Craft's job was in jeopardy. The Company points to nothing on Craft's last day of work which would explain why he was terminated in midafternoon, on a Tuesday, rather than being transferred to other work or at least continued to the end of the pay period. In short, upon considering all the circumstances, I find that Craft's union activity was a motivating factor in his discharge. In Lee's case, unlike Craft's, the Company can and does point to a specific event which it urges led to his precipitate discharge. Certainly Lee's union activity did not require that the Company suffer repeated breakage of its machinery. But here again analysis shows the Company to have acted in unusual haste. Apparently breakage of the gear in question was not entirely unexpected by the manufacturer, who fore- handedly supplied a replacement gear. All the manufacturer's representative said, on being informed of the breakage, was that the Company "might take a pretty good look at how [it was] handling the situation." Acting on this observation from the mechanic, who had not examined the machine after the gear broke and who never talked to Lee about it, the Com- pany immediately discharged Lee without any further in- quiry and without ascertaining his version of the problem. If Lee's case stood alone, the evidence might be insufficient to raise more than a suspicion that the connection between his union activity and his discharge a day later was more than coincidental. But in the light of the finding as to Craft, it seems reasonable to infer that Lee, whose role in the union movement was even more prominent than Craft's, was, like Craft, the victim of the Company's hostility to the Union. Cf. Terry Industries of Virginia, Inc., 167 NLRB 872, 876, enfd. 403 F.2d 633 (C.A. 4, 1968), cert. denied 394 U.S. 918. THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practices and that it offer to reinstate Craft and Lee with backpay computed in accordance with the for- mulas set forth in F W. Woolworth Company, 90 N .RB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The record discloses that Craft at the time of his discharge was being paid at the rate he had earned on the corrugator rather than at the towmotor rate and that he was not a satisfactory towmotor operator. The order requiring reinstatement will therefore require only that he be reinstated to a job bearing a rate of pay comparable to that being paid for the job on the corruga- tor. Upon the foregoing findings of fact, conclusions of law, and the entire-record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' ORDER The Respondent, Midland Container Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Printing Specialties and Paper Products, Local 409, AFL-CIO, or any other other labor organization, by discharging or in any other manner discriminating against employees in regard to their hire or tenure of employemnt or any terms or conditions of employ- ment. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Offer immediate and full reinstatement to Stanley Lee and James Craft to their former jobs, or, if these jobs no longer exist, to substantially equivalent jobs, without preju- dice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discharge or refusal of reinstatement, all in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant at St. Louis, Missouri, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's representative, CONCLUSIONS OF LAW The Company, by discharging Stanley Lee and James Craft because of their union activity, engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. ' Austin testified that he made continual rounds of the plant . Cf. Mary Chess, Inc., 145 NLRB 1200, 1204, and cases there cited at In. 3. ' In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. ' In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NA- TIONAL LABOR RELATIONS BOARD." MIDLAND CONTAINER CORP. shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.6 ' In event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer reemployment to Stanley Lee and James Craft and WE WILL pay them for losses they suff- ered as a result of our having discharged them in Sep- tember 1970. WE WILL not discharge or otherwise discriminate against any employee because of his activity on behalf of 331 Printing Specialties and Paper Products Local 409, AFL-CIO. WE WILL not in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to join or assist that Union or any other union. MIDLAND CONTAINER CORP. (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named in- dividuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167.