Mid-States Gummed Paper Co.

In the Matter Of MID-STATES GUMMED PAPER COMPANY and INTERNA- TIONAL BROTHERHOOD OF PULP, SULPHITE & PAPER MILL WORKERS, LOCAL 332 Case No. C-754.-Decided February 16, 1939 - Gummed Paper Manufacturing Industry--Interference, Restraint, and Coer- cion: charges of, not sustained-Discrimination: charges of, not sustained. _Mr. Jack Evans, for the Board. Pope & Ballard, by Mr. Merrill Shepard, of Chicago, Ill., for the respondent. Miss Valeria Brodzinski, of Cleveland, Ohio, for the Union. Mr. Victor A. Pascal, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On January 18, 1938, International Brotherhood of Pulp, Sulphite end Paper Mill Workers, Local 332, herein called the Union, filed ,charges with the Regional Director for the Thirteenth Region (Chi- cago, Illinois) alleging that the Mid-States Gummed Paper Company, Chicago, Illinois, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the -meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 25, 1938, the National Labor Relations Board, herein called the Board, by the said Regional Director, issued its complaint against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act. On April 25, 1938, copies of the complaint and notice of hearing were duly served,upon the respondent and the Union. Thereafter, the respondent filed its answer, verified April 29, 1938, denying that it had engaged in unfair labor practices as alleged in the complaint. Pursuant to notice, a hearing was held in Chicago, Illinois, on May 5 and 6, 1938, before Gustaf B. Erickson, the Trial Examiner 11 N. L. R. B., No. 32. 354 MILL-STATES GUl4MED PAPER COMPANY ET AL. 355 duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner filed an Intermediate Report dated June 20, 1938, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (3) and (4) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from engaging in the unfair labor practices and, affirmatively, offer full reinstatement with back pay to Myrtle Jacob, who, the complaint alleged, had been discriminatorily discharged. Exceptions to the Intermediate Report were filed by the respondent on July 20, 1938. On August 2, 1938, the respondent filed a motion requesting the Board to consider as part of the record in this pro- ceeding the testimony given by Mrs. Jacob at pages 53 to 66, both inclusive, of the record in a prior proceeding before the Board in- volving the respondent and the Union brought pursuant to Section 9 (c) of the Act.' The respondent's motion is hereby granted and the said testimony is hereby made part of the record in this proceeding. On August 2, 1938, the respondent also filed a brief in support of its exceptions which has been considered by the Board. Pursuant to notice, a hearing was held before the Board on October 13, 1938, in Washington, D. C., for the purpose of oral argument. Counsel for the respondent and a representative of the Union appeared and participated in the oral argument. The Board has reviewed the exceptions to the Intermediate Report and, save as they are incon- sistent with the findings, conclusions, and order set forth below, they are hereby sustained. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation with a factory and warehouse in Chicago, Illinois, and sales offices in New York, Cleve- 'Matter of Mid States Cunimed Paper Company and Int'l Brotherhood of Pulp, Sulphide and Paper Mill Workers, Chicago, Local 332, 5 N L R. B 7 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD land, St. Louis, and San Francisco. It is engaged in coating paper and fabric with glue or a similar material and distributing these products in the form of cloth and paper tape and paper in flat-sheet form. During the period from January 1 to September 30, 1937, the re- spondent's purchases of raw materials amounted to approximately $1,500,000, 89 per cent of which were received by it from sources out- side the State of Illinois. During the same period, its sales were in excess of $2,000,000, 72.2 per cent of which were shipped to destina- tions outside the State of Illinois. The percentages relative to ship- ments to and from points in interstate commerce for the period end- ing September 30, 1937, were approximately the same up to and including the date of the hearing. II. THE ORGANIZATION INVOLVED International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local 332, is a labor organization affiliated with the Amer- ican Federation of Labor, admitting to its membership all produc- tion and maintenance employees of the respondent, excluding clerical and supervisory employees. III. THE ALLEGED UNFAIR LABOR PRACTICES Myrtle Jacob was hired by the respondent on November 9, 1930, at a wage of 25 cents an hour and, at first, worked at sorting paper that had been returned to the respondent because of defects. In about 1932 Mrs. Jacob was assigned to work in the laboratory, her duties consisting of testing paper and filing. Her initial wage was increased from time to time, the last increase in the latter part of 1937 being to 48 cents an hour. Mrs. Jacob joined the Union in August 1937 and was an active worker in its behalf. She solicited membership in the organization, was a member of its bargaining and grievance committee, and had served as its financial secretary since 1937. In October 1937, Mrs. Jacob and other members of the Union's committee met with Ferdi- nand W. Humphner, the respondent's vice president in charge of manufacturing, for the purpose of negotiating a contract. As Humphner doubted the Union's majority and refused to enter into bargaining negotiations, the Union filed a petition with the Board requesting certification as the employees' exclusive bargaining repre- sentative. At the hearing on the Union's petition on December 2, 1937, several employees, including Mrs. Jacob, gave testimony in behalf of the Union. She testified concerning her duties as financial secretary, the Union's membership among the employees, and as to MILL-STATES GUMMED PAPER COMPANY ET AL. 357 other matters.' Following the election held on February 15, 1938, pursuant to the Board's Direction dated February 1, the Union was certified as the employees' exclusive bargaining representative on March 17. Thereafter the Union and the respondent entered into a contract for the period from March 29, 1938, to June 30, 1939, and from year to year thereafter, subject to termination or modification upon written notice by either party 30 days before its termination date. In about August 1937 the Union initiated an active organizational campaign at the respondent's plant. Within a week or two after the Union had begun to hold secret meetings, Mid-States Gummed Paper Employees Association, Inc., an unaffiliated labor organization herein called the Association, was organized at the plant and commenced soliciting membership among the employees. Jack Reimer, an em- ployee in the packing department, sought to induce employees to join the Association and to deter them from membership in the Union by threatening them with discharge or other acts of discrimination. However, it does not appear that the respondent's officers or other supervisory employees authorized or sanctioned Reimer's threats or had otherwise participated in the campaigns of the rival labor organizations. Before the Union instituted its membership campaign among the employees, Humphner said to Mrs. Jacob, "Are you with me, Myrtle?" Mrs. Jacob answered, "Sure" and Humphner replied, "I am not kidding, I mean this." Mrs. Jacob interpreted these remarks as re- ferring to her prospective union activity. There was no other show- ing of the circumstances under which these remarks were made. While the significance of this conversation is not free from doubt, in the absence of such other showing, we are of the opinion that Humphner's equivocal statements should not be construed as an ex- pression of his hostility to the Union or an attempt to deter Mrs. Jacob from activity in its behalf. After Mrs. Jacob had testified at the Board hearing, Humphner found her talking in the laboratory with Rose Gabrys, the Union's corresponding secretary, during their lunch period. Upon Humph- ner's inquiring as to the subject of their conversation, Mrs. Jacob told him that they were talking about union affairs. Humphner there- upon stated that he had been reprimanded for allowing the Asso- ciation to receive its mail at the plant and informed them that they were not permitted to "talk on company premises." While the pro- priety of a prohibition against union discussion during a lunch period is questionable, we are of the opinion that Humphner here was apply- 2 This testimony is included in the matter incorporated in the record of this proceed- ing pursuant to the respondent's motion referred to above. 164275-39-vol. xi-24 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing a uniform policy to deter the rival labor organizations from con- ducting their affairs within the plant but was not attempting to interfere with Mrs. Jacob's activity in behalf of the Union. As early as October 1937 Humphner knew that Mrs. Jacob was an active protagonist of the Union as she served on its committee which then met with him to negotiate a contract. Nevertheless, in the latter part of October or in November, the respondent increased her wage to 48 cents an hour. Mrs. Jacob testified that "business conditions had been going down evidently since the first of August" and that she had not asked for an increase in her wage. According to Mrs. Jacob, about a week after she had testified before the Board on December 2, 1937, her working hours were decreased at Humphner's order from 45 to 40 a week, thus decreasing her earnings proportionally although the working hours of none of the other laboratory employees were then reduced. The record shows no such reduction either in her hours or in the hours of the other girls in the flat-sheet department at that time. It appears, furthermore, that at no time during the period between the weeks ending November 27, 1937, and January 15, 1938, did Mrs. Jacob work for more than 381/4 hours a week and that during this period her working hours were substantially the same as those of the girls in the flat-sheet depart- ment. The respondent contended that Mrs. Jacob was an employee of the flat-sheet department performing inspection work, and that she was assigned to work in the laboratory for the reason that the testing instruments she employed in her work were located there. The record supports this contention. Mrs. Jacob was the only em- ployee in the laboratory who received an hourly wage, the others being paid on a salary basis, and, unlike other employees, her duties in the laboratory were confined to inspection and did not include experimental work. Her foreman was Henry Ridenour, foreman of the flat-sheet department, although she was also subject to the super- vision of Keith Williams, the chief chemist in the laboratory. We find that Mrs. Jacob was in fact an employee of the flat-sheet depart- ment and that the respondent did not discriminatorily reduce her working hours after she testified on December 2, 1937. On January 5, 1938, Mrs. Jacob, who for a number of years had been subject to relatively mild and infrequent epileptic seizures, ac- cording to her testimony, "had an attack in which I went into a sort of a `spell."' The next day Louis Nelson, foreman of the tape de- partment and Humphner's assistant, told Humphner of the occurrence and was instructed to secure written statements s from the witnesses 3 The statements were admitted in evidence as probative only of the fact that they were obtained, but not as probative of their contents, since those who gave the state- ments did not testify. MILL-STATES GUMMED PAPER COMPANY ET AL. 359 to the attack. Such statements were obtained and on January 10 Nelson delivered them to Humphner, who took them to Dr. Miller, the respondent's physician. On January 11, Dr. Miller wrote the respondent a letter concerning the medical aspects of Mrs. Jacob's case.4 The respondent discharged Mrs. Jacob on January 17, 1938, maintaining that, in accordance with Dr. Miller's letter dated January 11, it considered that her epileptic attacks constituted a hazard both to herself and to other employees in the factory. Since 1930 or 1931, Mrs. Jacob had sustained approximately five or six such attacks in the factory, one of which had occurred in Ridenour's presence. She had been taken home on one or two such occasions by Al Lapp, foreman of the gumming department. Lapp did not testify at the hearing. Ridenour denied that Mrs. Jacob had sustained an attack in his presence, which denial we do not credit. During this period, Humphner had given Mrs. Jacob per- mission to arrive late at the plant so that she might receive treat- ment at a hospital. He admitted that in about 1936 it had been reported to him that Mrs. Jacob had fainted and that subsequently he asked her how she was feeling. Both Humphner and Ridenour denied that, prior to January 6, 1938, they had known that she was subject to epileptic seizures. We find that, prior to January 6, 1938, Humphner, Ridenour, and Lapp knew that Mrs. Jacob was suffering from some type of physical disability, but the record does not reveal that, prior to January 6, 1938, any of the respondent's supervisory officials knew that she was subject to epileptic attacks. Upon the entire record, we find that the respondent has not dis- criminated in regard to the tenure of employment or any term or condition of employment of Myrtle Jacob for the purpose of dis- couraging membership in a labor organization, has not discharged or otherwise discriminated against Myrtle Jacob because she has given testimony under the Act, and has not interfered with, re- strained, or coerced its employees in the exercise of the rights guar- anteed them in Section 7 of the Act. We will, therefore, dismiss the complaint. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, Mid-States Gummed Paper Company, Chicago, Illinois, occur in commerce, within the meaning of Section 2 (6) of the Act. 4 Dr. Miller's letter was admitted in evidence as probative only of the fact that such a letter had been written but not as probative of its contents , as Dr. Miller did not testify. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. International Brotherhood of Pulp, Sulphite and Paper Mill Workers, Local 332, is a labor organization, within the meaning of Section 2 (5) of the Act. 3. By discharging Myrtle Jacob, the respondent has not discouraged membership in a labor organization, thereby engaging in an unfair labor practice, within the meaning of Section 8 (3) of the Act. 4. By discharging Myrtle Jacob, the respondent has not discrimi- nated against an employee because she has given testimony under the Act, thereby engaging in an unfair labor practice, within the meaning of Section 8 (4) of the Act. 5. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in an unfair labor practice, within the meaning of Section 8 (1) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed.