Alton Box Board Co.

National Labor Relations Board - Board Decisions

Nov 18, 1965

155 N.L.R.B. 1025 (N.L.R.B. 1965)

ALTON BOX BOARD COMPANY CONTAINER DIVISION 1025
Board there declined jurisdiction upon a, finding that the true
employer of the employees involved was a racetrack operator, and
refused to view the guard services apart from those of the business
of the employing industry.
Finally, with respect to AGVA's contention (3) above, it is well
settled that a labor organization, when acting as an employer vis a vis
its own employees, is an employer within the meaning of Section 2 (2)
of the Act, and subject to the Board's jurisdiction.14 This is so
regardless of the industry which it services and regardless of whether
or not the Board has statutory jurisdiction over that industry.15
In view of the above, we find that it will effectuate the policies of
the Act to assert jurisdiction over the Respondent herein, both in its
capacity as an employer and in its role as a labor organization.16
Accordingly, we shall. deny the Respondent's motion to dismiss the
complaint herein and remand the case for further proceedings on the
merits thereof.
[The Board denied the Respondent's motion to dismiss the com-
plaint; and remanded this case to the Regional Director to arrange
a hearing before a Trial Examiner, who shall prepare a Decision and
Recommended Order.]
14 Office Employees International Union , Local 11 ( Oregon Teamsters ) v. N.L.R.B., 353
U.S. 313; Laundry, Dry Cleaning and Dye House Workers' International Union Local 26
et al., 129 NLRB 1446, footnote 2.
15 Air Line Pilots Association International, et al., 97 NLRB 929 (the Board asserted
jurisdiction over the association as an employer even though the industry which it serviced
was subject to the Railway Labor Act).
16 We do not share AGVA' s apprehension that chaos and disorder in the variety enter-
tainment field must necessarily flow from our Decision herein . For, we cannot accept
AGVA's premise that it must have complete freedom from the operations of the Act to
maintain order , stability, and responsibility in collective bargaining on behalf of variety
artists.
Alton Box Board Company Container Division and Paul D.
Hirsch . Case No. 14-CA-3599. November 18, 1965
DECISION AND ORDER
On August 30, 1965, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices as alleged and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Decision and a. sup-
porting brief. Respondent has filed a brief in support of the Trial.
Examiner's dismissal.)
1 No exception was taken to the Trial Examiner's disposition of Respondent ' s position
based upon the existence of a contractual grievance-arbitration procedure.
155 NLRB No. 94
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 [lllenibers 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 the case, including the
exceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.2
[The Board adopted the Trial Examiner's Recommended Order
dismissing the case.]
9 Without reaching the Trial Examiner's analysis of Burnup d Sims, we adopt his dis-
missal of Hirsch 's case for the reason that the General Counsel has failed to sustain his
burden of establishing the unlawful motive for the discharge as alleged.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer at St. Louis, Mis-
souri, on May 24 through 27, 1965, pursaunt to a charge filed March 8 and com-
plaint issued April 16, 1965. The issues litigated were whether Respondent , herein
sometimes called the Company, violated Section 8(a)(1) and (3) of the Act, by
unlawfully suspending, discharging, and refusing to rehire the Charging Party (Paul
D. Hirsch); and whether Respondent independently violated Section 8(a)(1) by
certain acts of interference , restraint , and coercion . Respondent denied the com-
mission of the alleged unfair labor practices.
The parties appeared and were afforded full opportunity to be heard, to examine
and cross -examine witnesses , and to introduce relevant evidence. Briefs were filed
by the General Counsel and the Respondent. Upon the entire record,' the' briefs,
and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT ; THE LABOR ORGANIZATION INVOLVED
Respondent , an Illinois corporation , is engaged in the business of fabricating and
manufacturing paper products at its plant in Highland, Illinois, the only location here
involved. It annually manufactures and ships from its Highland facility products
valued in excess of $50,000, to points outside Illinois. It annually receives goods
and materials at its Highland plant from points outside Illinois valued in excess of
$50,000. Upon these facts , I find, as Respondent admits that it is engaged in com-
merce within the meaning of the Act, and that it will effectuate the policies of the
Act to assert jurisdiction herein.
Local 1215, United Paper Workers and Paper Makers, AFL-CIO, herein called
the Union or Local 1215, is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issues
The issues here presented are (1) whether Respondent discharged employee Hirsch
because be was a vigorous union steward or because he had instigated and led a
walkout in violation of the no-strike collective -bargaining agreement ; and (2)
' As corrected by my order dated July 19, 1965, and a stipulation by the parties executed
August 4, 1965 , which is hereby approved . At the hearing, I granted General Counsel's
motion to correct the name of Respondent to read as it appears In the caption.
ALTON BOX BOARD COMPANY CONTAINER DIVISION 1027
whether Respondent's questioning of employees, through its attorney, in order to
ascertain responsibility for the walkout-without affording those employees union
representation-constituted interference, restraint, or coercion.
B. Background; contractual relations between Respondent and the Union
Respondent, a nationwide manufacturer of paper board products, has 43 plants,
of which 33 are organized. Its Highland, Illinois, plant is 1 of 14 in the container
division, manufacturing corrugated containers. William Randle is production man-
ager and director of industrial relations of that division and Warren Beeson and Vin-
cent Jakel are manager and superintendent, respectively, of the Highland plant.
The plant employed between 175 and 180 employees on February 5, 1965, of whom
30 worked in the "miscellaneous" and diecutting department (hereafter referred to
as the miscellaneous department) under Foreman Jack Lutz.
Of the 14 plants in the container division, II are unionized. Local 1215 has
represented the Highland production employees since 1951. Except for initial "ten-
sions" in 1951, relations between the Company and the Union have been amicable.
No prior unfair labor practice charges have been filed against the Highland plant
in the 17 or 18 years of the plant's existence.
The collective agreement between the Union and the Company contains a
grievance-arbitration clause. Successive steps are provided for processing grievances
-the first two through lesser company officials, and union stewards. Higher mana-
gerial and union officials are called in for steps 3 and 4. The contract provides that
if still unresolved in step 4, the-
Grievance shall be submitted to a Board of Arbitrators consisting of one (1)
member chosen by the Company and one (1) member chosen by the Union ....
If these two arbitrators are unable to agree or make an award, they shall
mutually agree to the appointment of a third impartial member of arbitration
The decision of the majority of the Board of Arbitrators . . . . shall be
binding upon both parties to this Agreement ....
Nothing herein shall prevent any employee from presenting his grievance in
the manner guaranteed to him by present or future law.
Respondent and the Union have over the years processed numerous grievances under
this clause, including disputes relating to working conditions.
Article 17 of the contract contains a no-strike, no lockout clause. Under that
article, "The Union agrees there shall be no strike or other concerted stoppage of
work by the employees or any concerted slowdown or concerted interruption of
operations by employees during the term of this Agreement." The article further
provides, "Employees violating this article shall automatically cease to be employees
of the Company."
C. The February 5 work stoppage
The miscellaneous department employees work in two shifts: 7 a.m. to 3:30 p.m.
and 3:30 p.m. to midnight-under different foremen. The shifts rotate each week
so that employees under Foreman Lutz, for example, would work 1 week on the
day shift and the succeeding week on the evening shift. The record shows, and I
find, that employees on Lutz's shift had complained about having to work "short
shifts" (i.e., less than a normal 8-hour day) and "short weeks," claiming discrimi-
nation in favor of the opposite shift.3 During the 1964-65 winter months, the Lutz
shift worked on several Fridays until 10 p.m. instead of midnight. This situation was
the subject of a grievance filed by a group of employees on January 25, 1965, claim-
ing that the "entire shift was sent home at 10 p.m." the previous Friday. Hirsch,
the union steward, took the grievance up with Lutz. The grievance was "satisfacto-
Another issue raised by Respondent is whether the Board should decline jurisdiction
in this case because Hirsch failed to exhaust his "administrative remedy" under the
grievance-arbitration clause of the collective agreement. Without objection by General
Counsel, I granted Respondent's motion at the hearing to dismiss the allegation in the
complaint that Respondent also violated Section 8(a) (1) by directing an employee to
attend a union meeting.
3 The employees are paid by hourly rates. The record indicates additional dissatisfaction
on the Lutz shift because that shift allegedly "had to work harder." It is evident that
some employees attributed these conditions to Lutz and as a result disliked him "as a.
foreman."
212-809-66-vol. 155-66
1028 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
rily" settled at the second stepr on February 3, upon Plant Superintendent Jakel's
promise that the Company "will make every effort to keep the hours equal between
the shifts whenever it is possible.
On the morning of Friday, February 5 , 1965,4 Plant Superintendent Jakel wrote
out his production "instructions" to various departments , including the miscellane-
ous department , in accordance with customary practice . That department was
directed to "run until 10 p.m.," to "clean up" while running the machines, and to
"have everyone out at 10 p .m."; and the baler and shredder were specifically directed
to be sent home at 10 p.m.
It is undisputed that shortly after commencement of the evening shift (3:30 p.m.),
Foreman Lutz made the rounds to tell employees that the department would close
at 10 p.m . In issue is whether Lutz also told them that they had the option to leave
at 8 p.m . without other notice to management . Admittedly , at no time in the past
had Lutz afforded such option to employees . Lutz would customarily make the
rounds , individually inform the employees of the short shift, and invite those desir -
ing to leave before 10 p.m. to so "volunteer." Employees volunteering to leave
before 10 p.m. would later in the shift request permission from Lutz , who would
make a record of those receiving it.
The record shows that all but 2 of the 3 .0 miscellaneous department employees
left the plant at the 8 p.m. lunch break on Friday , February 5. According to Respond-
ent, 12 had received permission to leave 10 p.m. while 16 had not. Among those
receiving permission to leave at 8 p.m. were Hirsch and Douglas. Hirsch (then
union steward ), and Douglas (a former steward of the miscellaneous department)
had driven to work together that day (February 5 ). Hirsch testified that en route
they discussed leaving early because he wanted to butcher a hog early the next day
(Saturday ). Around 4 p .m. he asked Lutz "What the situation was going to be that
night, if he was going to send any men home, or if we were going to work the full
eight hours ." Hirsch testified that Lutz replied , "I could either go home at 8, or I
would be sent home at 10. " According to Hirsch , Lutz also said that the depart-,
ment "would run until 8, and after 8:30 there would be clean up." Douglas like-
wise quoted Lutz as telling him "that the plant was going to shut down at 10 o'clock
and to go home at 8 if we wanted to ." Although Douglas admitted full knowledge
that he "needed permission to go home at 8" and stated that it was for that reason that
he asked for it, Hirsch indicated that none was needed and that he requested per-
mission only "as a matter of courtesy to the Company."
Other General Counsel witnesses who requested and received permission to leave
at 8-Haar, Iberg, and Davis-also testified that Lutz told them they could leave at
either 8 or 10 p.m. On cross-examination Haar admitted that Lutz had mentioned
"that some had volunteered to go home at 8," giving "an approximate number"
(he could not recall whether "it was 13") who "had volunteered ." Iberg conceded
that when he asked Lutz for permission to leave early , Lutz "had a pad and pencil
[in his hands] and he wrote down something" as Lutz "normally" did in the past
when soliciting volunteers . Davis testified that although Lutz "said that everybody
was going home at 10," he added that "anyone who wanted to volunteer to go home
at 8 could go ." Davis , admitted so volunteering later in the shift.
Four General Counsel witnesses-Kritz, McDonald , Feltrop, and Wolz-left at
8 p.m.; according to Respondent , without advance permission . Kritz and Wolz
admitted at the hearing that they were specifically instructed to work until 10 p.m.
Kritz testified that "the rest of the department up there went home, so I went home
too." Feltrop testified that Lutz had informed him and two other employees that
"we could go home at 8 o'clock if we wanted to and everyone was going to go home
at 10. " 5 He acknowledged, however, that "you normally ask permission " to leave
before the end of the shift , stating that never before had he left without permission,
and explaining that in this instance he "just took it for - granted" that he had permis-
sion. McDonald testified to the same effect that "I figured I had permission." 6
The impending departure at 8 p.m. was a subject of discussion among the employ-
des. Thus, Douglas, who operated a dolly that night (hauling loads from one part
of the plant to another ), admitted stopping in the aisle and telling employees that
Unless otherwise stated, all date references are to 1965.
The two other employees-Kapp and Mersinger-did not testify . As hereafter noted,
Kapp gave the Company a sworn statement after the walkout , ( February 9) conceding
that he "did wrong" by leaving before 10 p.m.
B As noted hereafter , McDonald acknowledged to Union President Wall , on the very
evening of February 5, that Hirsch "started" the "walkout" at 8 p.m. in protest against
the short shifts they had been working.
ALT'ON•BOX BOARD COMPANY CONTAINER DIVISION 1029
the department would close at 8 p.m.7 Feltrop testified that Haar (who also oper-
ated a dolly) asked him if he was leaving at 8 p.m. Hirsch, admitting he talked
the matter over with other employees, stated it was just "general conversation ....
call it nosey, or whatever you want;" and denied requesting or directing anyone to
leave early. Hirsch admitted telling employee Wolz that "if he wanted to leave that
he could leave and that all he had to do was to go to the foreman and request per-
mission to leave at 8 o'clock and he would be permitted to go home." 8 Hirsch and
several other employees (Douglas, Haar, and Iberg) testified that the 8 p.m. exodus
was also discussed in the restroom. According to Hirsch, he met Harold Meskill
and several other employees there around 7 p.m. Hirsch testified:
He [Meskill] asked me what I though about all of the men going home at 8
o'clock ... I replied to Harold that I didn't think that that was going to solve
anything on this shortage of work and, furthermore, as a steward, I could not
advise him to go home and I did not want anything to do with it if they did
walk out.
* *
I told Harold myself that as a steward he knew that anyone that walked out of
the plant without permission could be dismissed. He agreed with me on it.
When 8 p.m. arrived, the employees lined up at the timeclock to leave. Hirsch
testified that at the time of leaving he heard employee Kapp yell out to another
employee (Holtgrave), "Come on, Easy, let's clock out." Employee Davis indi-
cated that she heard someone "hollering" something similar. McDonald indicated
that he saw 12 to 20 people in line near the timeclock. Hirsch admitted that when
he clocked out he "knew something out of the ordinary was going on." 9
Hirsch and Douglas left together at 8 p.m. and drove directly to a neighboring
tavern where they met about five other employees. In a discussion about Foreman
Lutz, one of the employees in the group there remarked, "I'll bet his ulcers are
really kicking up now." Hirsch and Douglas stayed at the tavern for approximately
2 hours.
Jakel testified that there was enough work left in the miscellaneous department, at
8 p.m. for all 16 employees who left without permission and that the Company had
to transfer employees from another department to finish miscellaneous department
work.
D. The Company's investigation of the work stoppage-Saturday, February 6
1. The management meeting
On his return from an out-of-town trip around 11 p.m. on Friday, February 5,
Plant Superintendent Jakel was informed on the telephone by Personnel Manager
Foehner that all but two of the miscellaneous department employees had left the
plant early, 16 , without permission. Jakel immediately went to the plant and met
with Foehner, General Foreman Stone, and Miscellaneous Department Foreman
Lutz. He also telephoned Plant Manager Beeson in St. Louis, acquainting him with
this development. Jakel told Beeson that he had "very little information to go on"
and was "at a complete loss to understand why there had been a walkout." When
Beeson inquired about the seriousness of the situation and whether "he felt this
7Douglas named three employees to whom he spoke, indicating that he took it upon
himself to notify them of the impending shutdown because no one had apprised them
thereof. One of the employees in question-Kritz-testified that when he asked Douglas
if another employee (McKelly) was leaving early, Douglas, replied that McKelly would do
so if Kritz did.
8 Elaborating on these remarks, Hirsch testified that shortly before '8 p.m. he went over
to Wolz and asked him whether he was "going to go home or . . going to stay," Wolz
answered that "he was going to stay," whereupon Hirsch said that could go home "if he
would tell the foreman." Hirsch testified that Wolz then said that "Lutz hadtold him
to work until 10. Then I replied back to him that if he wanted to go home at 8, due to
the fact that he was sick," Lutz would excuse him. In a prehearing affidavit of March 8,
Hirsch denied talking to Wolz., On cross-examination; explaining this and other dis-
crepancies between his affidavit and testimony, Hirsch said, "I thought in my own mind
that they were true, and since that time I have been thinking the situation over, and
there are several little things that have come to my mind where I may have been
mistaken."
8 Hirsch put it this way in his prehearing affidavit: "They [the Company] would have
to be awful stupid not to know that something out of the ordinary was going on."
1030 DECISIONS OF NATIONALLABOR RELATIONSBOARD
thing had a tendency to. spread," Jakel could give no answer . Beeson thereupon
instructed Jakel for arrange a meeting with "our entire management group at High-
land" for 8 a.m. the next day (Saturday ): and a later , meeting at 1 . 1 a.m., with union
officials . Both Union President Wall and Hirsch were contacted that night.ao In
his telephone talk with Jakel, Hirsch denied knowledge of the cause of the walkout.
At 8 a.m ., Saturday , the entire management staff gathered in Beeson 's office.
Present were all shift foremen, including Lutz and his coforemen on the day shift
in the miscellaneous department. .William Randle, production , manager and direc-
tor of industrial relations of Respondent 's container division , also attended. All
plant personnel were asked to recall "the happenings of the previous day" in order
to ; give those present a complete picture. _ Lutz reviewed the events of Friday, pre-
pared a statement, and produced a list identifying those who had received permis-
sion . %,. ave at 8 p.m. ,, and those who had not. Randle testified that he recalled
Pe s asking Lutz "about the work load for that particular night, what hours the
depart Sent was supposed to work , instructions [from] the superintendent as to what
hours were to be worked . . . who were the volunteers and what reasons did they
give for wanting to volunteer to go home early ." Beeson testified, "We felt that
: anything as serious as a plant walkout would have to be severely dealt with." After
discussion , it. was decided to suspend, pending further investigation , the 16 employees
"who walked off the job without permission ." Beeson cleared this ' decision with
Company Counsel, as well as with his superior divisional vice president.
2. The meeting and discussions with the Union ; suspension of employees
pending further investigation
Around 11 a.m., the Company met with the union committee as previously sched-
uled. According to Beeson ; management still had "very little information" to go
on but enough to conclude that "there had been some hanky-panky" warranting
action. Beeson started the meeting by - expressing his "hurt feelings " over the walk-
out and then explained "the seriousness of the situation ." He claimed that the walk-
out was "in direct violation of our contract" and "warned the Union against any
further spread of this walkout ; Monday morning ." In the course of the meeting,
Beeson announced management 's decision to suspend the 16 employees 'whom it
found to have left without permission , pending further investigation ." 11 Hirsch
spoke up, explaining that "all this was a misunderstanding " and protesting the Com-
pany's decision. The Company adhered to its position and "invited " union repre-
sentatives "to sit in" on the