St. Regis Paper Co.

ST. REGIS PAPER CO. 661 St. Regis Paper Company and Marcella Brendle. Case 14-CA-5607 August 16, 1971 DECISION AND ORDER On October 1, 1970, Trial Examiner George L. Powell issued his -Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint, and recommending that the complaint be dismissed m its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations only to the, extent consistent herewith. Respondent posted a notice on the plant bulletin boards announcing that on April 10, 1970, the plant would be closed to allow maintenance men and machine adjusters to service the machines. Brendle, a machine operator. for 12 years, the last 9 years' of which she has been a union member in good standing, complained to -Heinrich, another machine operator with 19 years' seniority, who was also a union member in good standing, on at least two occasions the day preceding the planned shutdown that the adjustment and maintenance work should have been done during the preceding weeks when the work was slow. While the two were discussing the planned shutdown at the 3 p.m. coffeebreak, Woodrow Wilson,' secretary and treasurer of the ' Union,l walked up to them while on his way to the' monthly union-management discussion meeting. They told him about their dissatisfaction with Respondent's planned shutdown. In addition to the above reason for complaint, they also told him that they felt it was unfair because "we need our money just like they [the cleanup crew] do," and the Respondent could do the adjustment and mainte- nance work on a Saturday. Wilson, according to the credited testimony, stated "he was tired of listening to us bitch all of the time and he was sick of it, and with that he walked out of the door." Shortly after their conversation with Wilson each employee was requested to report separately to the personnel office where the above-mentioned meeting was taking place. Present - at this, -meeting were: Thornsberry, personnel manager; . Smith,, superin- tendent; Wilson, secretary and treasurer of the Union; Mathieny, shop steward; Battaglia,.-shop steward; and Thiedke, president-of the Local Union. According to the credited testimony, Thorsberry told Brendle, and then -later- in- a separate interview, told Heinrich, that they were called as a result of their complaining to Wilson about the scheduled Friday closing. Thornsberry insisted that if they had a complaint they should use the grievance procedure rather than just complain. Wilson concurred with Thornsberry and pointed out that the present com- plaint was groundless because Respondent was acting within the scope of the management rights clause of the contract. Thornsberry also told Heinrich that she had more seniority than a machine adjuster and that he would give her that adjuster's job,on Friday, but, if she could not perform the job she would be discharged.2 Heinrich immediately protested that she knew nothing about that type of work and could not perform the work which would be expected of her. ;,, The Trial, Examiner' concluded that the incidents involved herein constitute nothing more than a request by the Respondent that-two employees, at the suggestion- of the union representative, attend the normal monthly grievance meeting in order to resolve their complaints. He reasons further, that in light of the fact that neither employee chose to file a grievance,' even though she was well aware of the procedures for doing so, both Union and manage- ment have the right to tell these employees to either file a grievance or shut up. Consequently, he recom- mends that the complaint be dismissed in its entirety since the facts do not support the finding of Section 8(a)(1) violation. We disagree. Clearly the discussion between Bren- dle and Heinrich and their subsequent complaints to Wilson were protected concerted activities within the meaning of Section 7.3 The ensuing request to report to the union-management discussion group to air their discontent is, in and of itself, not an objectiona- ble response to the employees' ungrieved complaints. However, the comments by Thornsberry to Heinrich regarding her assignment to replace an adjuster with the clear possibility of her being discharged if she improperly performed work which she was not able to perform constituted, in our opinion, a threat of discharge in retaliation for engaging in -protected 1 International Brotherhood of Bookbinders, Local 209. testimony but only failed to consider it, and as it is a statement similar to 2 According to the testimony of Brendle , which the Trial Examiner fails that made to Heinrich, we credit this testimony. to consider, Thornsberry also told her that "he would bring the people ,in ' Meinholdt Manufacturing Inc.Hydra-Tool Company, Inc., 183 NLRB that was doing the complaining and if they couldn't do the work, they No. 129. See also Northern Metal Company, 175 NLRB No. 145 and H. C. would be terminated: 1 As the Trial Examiner did not discredit this Smith Contnrction Company, 174 NLRB No. 180. 192 NLRB No. 87 662 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD concerted activity. A, similar threat was made,,to Brendle . -Our dissenting colleagues in their conclusion sug= gest.that the-unlawful conduct found by the- majority is of :such "miniscule controversy" that it doesknot warrant, our consideration. -,However,, the,approach taken-by, our colleagues in this matter may be, self - defeating-_.,for,'r by, - ignoring 1 he small scale z ,and individual violations of.the Act, we may encourage ;an increase in the number and severity ofythe violations of this, Act which, we are, charged to enforce. Indeed, morethan two centuries ago,, Blackstone observed-., -Of-alt-the-parts of a law, the most eff ectual is, the vindicatory;,for itis but lost labor to say,,Do this, or avoid that unless . we also, declare This shall be ,- the consequence of yournon-compliance. , -, iBut,apart^fromthe foregoing,, it is plain to, us that even a, single: victim of a small-scale violation of the, Act. (which, exceeds de.. minimis) is entitled to the Board's attention., If we agree with Mill, that ."the worth,- of a state, in„the long run, is the, worth-of the individuals composing it," it cannot 'be otherwise: Indeed, several,, circuit courts , have insisted` that in order,for,,the Board properly to carryout its duties in enforcing ,the Act, it is, required, to provide an appropriate remedy,, in all instances where it, has determined that, unfair; labor practices: have, been committed. International Woodworkers{ of America, Local. 3-710 ; [Long l ake Lumber,Co.] v. N. LR B., 380 17.2& ,628, 630, 631 {C.A.D.C.,,1967); see also Eiehleay Corp:; v.. N.LR.B., ;206, F.2d 799, 805 (C A. 3, 1953); International Union, United Automobile, Workers y. N.L R B., 427-F.2d 1330,1332-33 (CA. 6,1970).,. In Judge Edgerton',s dissent inp Cash v. U. -S., 261 F,.24 731 (C.A.D.C_, 1958), where he concluded that indigent criminal defendants were entitled, to, appeal ate public expense-the-position'subsequently taken by the Supreme Court in Gideon v. Wainwright, ;372 U.S. 335 (1962-he,r,easoned: dome, haveurged that , courts, Government counsel ,,ando' counsel for poor defendants, should not be burdened with appeals, that are not Likely, for succeed. To this there are several answers. The United States can afford to let :poor defendants. take, 'criminal appeals that the rich could take. It cannot afford to do otherwise. We think that-the same principles apply to the Board's work.-It is not 'for us first to,divine; -asour,colleagues seem to urge,- whethertile number of employees involved or the importance of the subject matter causes the :case" to- be, 'worthy or', our consideration- before admitting` it to our processes. Accordingly we find that Thornsberry's, threat- of 4, In the event that the Board's -Order is enforced by,a Judgment of a United States Coui4 off Appeals, the words in the notice reading "Posted by Order of the National Labor Relaations Board" shall be changed , to, read discharge ".to Heinrich and Brendle, because ,,_,of- their protected concerted activity violated Section 8(a)(1). - ORDER Pursuant to Section '10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, St. Regis Paper Company, St. Louis, Missouri,, its officers, agents,-succe'ssors, and assigns, shall: 1. Cease and desist from:- (a) 'Threatening its employees with discharge for engaging in, the discussion among themselves of their wages, hours, and conditions of employment. (b) In any other 'like'or related manner interfering with, restraining, or' coercing its employees in the exercise of their right to ' self-organization,' to' form 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 protec- tion. ` 2. , 'Take the following affirmative action which,will effectuate the policies of the Act: (a) Post at its place of 'business in St Louis, Missouri, 'Copies of the attached nonce` marked "Appendix."4' Copies of said 'notice, on forms provided; by the Regional Director for ' Region, 14, after being duly signed by', espondent's authorized. r`epresentati`ve,, shall be posted by Respondent imme- diately upon receipt thereof, and be maintained by' -it for 60 consecutive.- days thereafter, in conspicuous places,,, including all places where notices to employ- ees are customarily, posted. Reasonable steps shall be taken by "the "Respondent to msure'that said notices are not altered, defaced, or covered by +any ' other material: (b) 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. CHAIRMAN MILLER AND MEMBER KENNEDY, dissent ing: , 'Tike the Trial Examiner,, we can find no morein this record than an_,hone§t effort- by a Company and and a Union to require a chronic complainer to utilize the orderly processes of 'the `collective' agreement for processmgbona fide employee complaints. The majority, it seems to us, . strains, to reach its contrary result by reading' a threat of retaliatory action into, remarks to which the Trial Examiner, who heard and evaluated all of -the evidence, attached no significance. Those remarks to employee Heinrich "Posted- pursuant to' a judgment of the United States Court of, Appeals enforcing an order of the National Labor Relations Board.' ST. REGIS PAPER CO. 663 consisted of pointing out to,,her that the only job available on Friday to which her seniority-entitled her was an' adjuster's, job, which she could claim if she wished. Obviously the Employer's representative did not believe that th_ eemployee had sufficient qualifica- tions to, perform that job, and, equally obviously, he was not desirous that she claim ajob which she could not perform .merely to allow hen to attempt to secure pay for, a day on, which she would not otherwise be scheduled to work. Thus, she was warned that, ,if she could not perform the work competently, she would be discharged. Almost simultaneously with this conversation, the complaining employee was again.' advised of her right to file a grievance, although she was frankly advised by her,, Union, that-the Respondent's decision to shut down on the Friday in question was, in the Union's view, not a,violation of the agreement. The remarks ,to employee Brendle were, in our view, even more insignificant and were properly disregard- ed by the Trial Examiner. We, like the Trial Examiner, are unable to find in the tale of this miniscule controversy any violation of our Act. APPENDIX NOTICE 'To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An -Agency of, the United States Government WE WILL_ NOT threaten our employees with discharge if they engage in the discussion among "themselves of their wages, hours, and conditions of 'employment. WE WILL NOT in any ' other 'like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form 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 of protection. All our employees are free to `become or remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization. ST. REGIS PAPER COMPANY L '(Employer) Dated By (Representative) (Title) This is an official notice and must-not-be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and most not be altered, defaced, or covered by any otherrna.terial. Any questions concerning this notice or'}compliance with its provisions-may be-directed to the-'Board's Office, 210 North 12th Boulevard, St. Louis, Missouri 63102, Telephone 314-622-4167. TRIAL, EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. PowELL, Trial Examiners This trial' arose on the charge filed by Marcella Brendle, herein called Brendle, that her employer, St. Regis Paper,Company (herein called Respondent), was interfering with her ' rights `to engage in concerted activity - protected under" Section'- 7 " of the National Labor Relations Act, as amended, ;herein called the Act, in violation of Section:-8(aXl), of the'Act.:Brendle filed her charge on May 11, `1970. In dde `'course, the Regional Director for Region . 14-issued the Complaint and Notice of Hearing on June"30;1970. Respondent denied the commission of any unfair labor practices. The case came on to be heard before me in St. Louis, Missouri, on August 12, 1970. The-parties were present, were represe'nted,,'and had full opportunity to beheard by examination and cross- examination of witnesses . They could present oral argu- ment and file briefs. e A brief ,was filed by the General Counsel on, September 2, 1970. Respondent,, did not file a brief but instead argued the case orally on the- record. Based one the_,entire -record of evidence, my observation of the witnesses as they testified,1 and after due consideration .of the ,arguments and-brief, I find, for the , reasons. hereinafter set forth, that the ,General Counsel has failed to establish the alleged violations by a preponderence of the evidence and I will recommend that the complaint be dismissed in its entirety. The motion made by Respondent's counsel at the conclusion of `the trial to dismiss-the complaint is hereby grante FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION , Respondent is and has been,at all times material herein a Missouri corporation -engaged in -making, selling,, and distributing envelopes ' and related products, with' its principal office and -place of business ,in -the City' of " New York, New York; with.-its place of business in St . Louis, Missouri, being the only facility involved in-this-proceed- ing. As admitted by Respondent, I find the-jurisdictional facts as stated in the complaint'vi'paragtaph 2 to be true and I conclude and find that Respondent is' an employer engaged" in commerce within -the'meaning of Section 2(2), (6) and (7) of the Act. 1 Cf. Bishop and Malco, Inc. 159 NLRB 1159, 1161. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE LABOR ORGANIZATION INVOLVED and tired of their "bitching" and left them to"attend the The International Brotherhood- of Bookbinders, Local 209, herein called the Union, is, as admitted by Respon- dent,'a labor organization within the meaning of Section 2(5) of the Act. M. THE ' ALLEGED UNFAIR LABOR PRACTICES The gravamen' of the complaint , as amended at the trial, is set out in paragraph 5 as follows: Since on or about April 9, 1970, and continuing to date, Respondent has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7` of the Act,-by engaging in the following acts and conduct at Respondent's St. Louis place of business: A. On or about April 9, 1970, Personnel Manager Thornsberiy threatened an employee with discharge if the employee continued to complain to other employees and to the Union about a temporary shutdown of operations. B. On or about April 9, 1970, Personnel Manager Thornsberry told an -employee to tell other employees that Thornsberry had threatened that employee with discharge if that employee continued to complain to the Union and to other employees about a temporary shutdown of operations. C. On or about April 9, 1970, Personnel Manager Thornsberry threatened an employee with discharge for comiplainiug, in concert with another employee, and to the Union, that there was going ' to be a temporary shutdown of operations. D. On or about April 9, 1970, Personnel Manager Thornsberry told an employee, in 'order to discourage protected concerted and Union activities, that Thorns- berry was tired of the female employees ' complaints about working conditions and that this employee should tell the female employees to stop complaining. The Evidence The Respondent has had collective-bargaining agree- ments for many years with the Union, the present one of which has a management rights clause and a step-by-step grievance procedure leading to final arbitration. In April,2 Respondent posted a notice on the ' bulletin boards that the plant would be closed down for a day to permit maintenance men and machine adjusters to service the machines. Brendle, a machine operator "about 12 years" and a member ,in good standing of the Union for some 9 years, complained to her fellow machine operator, Mrs. Heinrich,'during break periods that she didn't see why Respondent had to shut down for a day at this time when it could have done any necessary adjusting during the preceeding weeks when the work was slow.,Mrs. Heinrich agreed and the two took their complaints to Woodrow Wilson, secretary and treasurer of the Union, as he visited the, plant on April 9, 1970. In addition to the above, Brendle told Wilson ". . . we, need our money just as bad as [the clean-up crew] need theirs." Wilson told them he was sick regular monthly meetings held to,bring-up grievances and issues arising out of working conditions. Shortly thereafter, Brendle was asked to report to the-personnel office where the meeting was, taking place. Wilson earlier, had brought up the fact that Brendle and Mrs. Heinrich complained to him every time he visited the plant and that he was sick and tired of hearing from them, that theyseemed'to be causing a problem to, both the Union and Respondent and suggested that they be brought °in and -asked if they had a grievance. Present , at this union management discussion group were: Thornsberry, personnel manager; Smith,. superin- tendent; Wilson, secretary and treasurer of the Union; Mathieny, shop steward; Battaglia, ,shop steward; and Thiedke, president of the Local Union. According to the credited testimony of Thornsberry, he told Brendle (and Mrs. Heinrich who was later called into the'meeting), that she was called as a result of her complaining to Wilson about the work schedule for Friday. The employee's right to use the grievance procedure was told : both women. Wilson pointed out that Respondent, could do what it, did (close down the plant for maintenance and adjustment) under the management rights clause of the contract (a copy of which each employee had).'Ishornsberry insisted that the grievance ' procedure be followed and that groundless complaints be stopped. Thornsberry told Heinrich (according to Heinrich) that she had more seniority than a machine adjuster had and that he could give her the job of adjuster in the adjuster's place on Friday but that if she couldn't perform his job, she would be discharged. She told him she could not do that type of work,, and it was not offered to her. Brendle did not file a grievance although she knew how to do so as some 5 years earlier she had filed'a' grievance which was ruled in her favor. Thornsberry told her the grievance procedure must -be followed. Likewise, Heinrich did not file . a grievance. There were no threats made, and they were not told they could not talk among themselves at their own breaktimes. Finally, there was evidence that Brendle and Mrs. Heinrich were complaining loudly . enough to be overheard by at least one other employee Discussion and Concluded Findings I find merit in the argument of Respondent's Counsel that this case boils down to the calling down- of two employees at the request of the union representative, to attend the monthly discussion meeting to resolve a potential grievance in the interest of peaceful harmony. No grievance was filed yet these employees had lived under a contract with the Union for years, and they were told they could file a grievance and knew how it was-done. There was no prohibition made against discussions on their own time and no threats of discharge if they complained to others. There is no evidence of a failure of fair representation by the Union or of antiunion or anticollective action conduct by Respondent which might tend to interfere with the Section 7 rights of the employees. The ultimate policies of the Act of guaranteeing employees the rights to freely 2 All data are in 1970 unless otherwise noted. ST. REGIS PAPER CO. engage in collective bargaining have been satisfied in this case in that there is a binding collective -bargaining agreement being fairly administered for all the evidence shows. If this employee does not wish to follow this agreement she, in effect, would engage in minority or wildcat action which could subject her to severe disciplinary actions none of which took place here. The national labor policy '... extinguishes the individual employees' power to order his own relations with his employer and creates a power vested in the chosen representative to act ' the interests of all employees." '1 LKB. v. Allis-Chalmers d^lfg. Co., 388 U.S. 175, 180, (1967); 87A Supreme Court Reporter 2001, 2006. It,appears that these employees were interested only in complaining about a management decision over which neither theynor their union had any 665 control Surely unions and management can, tell such employees to file, a grievance or shut up. I find that the General Counsel has not met the burden of proof and I will recommend that the complaint be dismissed ,in its entirety. Cf.N;LRB. v. Shop Rite Foods, Inc., 171 NLRB No 196; enforcement denied in part on August 21, 1970 in 430 F.2d 786. (C.A. 5). RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the complaint bedismissed in its entirety.