Bennett Packaging Co. Of Kentucky, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 602 (N.L.R.B. 1987)

602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bennett Packaging Company of Kentucky , Inc. and
Glass, Pottery, Plastics & Allied Workers
International Union, AFL-CIO-CLC and Judy
Gilmore. Cases 9-CA-23074, 9-CA-23440, and
9-CA-23209
31 August 1987
DECISION AND ORDER
BY MEMBERS BABSON , STEPHENS, AND
CRACRAFT
On 25 March 1987 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings , findings, I and
conclusions,2 to modify the remedy,3 and to adopt
the recommended Order as modified.4
i In affirming the judge's ruling denying the Respondent 's motion to
amend its answer to deny the Union's representative capacity , we note
that the ruling resulted in no prejudice to the Respondent . The judge al-
lowed the Respondent to put on evidence related to the defense con-
tained in the Respondent's motion, and the judge's decision contained a
finding related to that defense based on a full analysis of that evidence
Thus , we further affirm the judge 's finding that the Respondent's doubt
about the Union's majority status was neither held in good faith nor rea-
sonable
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Although the judge found in sec II,B,3, par 3, of his decision that the
actions of the Respondent 's plant manager in interviewing two employees
regarding an unfair labor practice charge was coercive in nature, consti-
tuting, inter alia, an implied threat in violation of Sec 8(a)(4) of the Act,
the judge did not make this finding a part of his conclusions of law, and
we note that it was not alleged in the complaint as a violation of Sec.
8(a)(4) We find it unnecessary to reach the issue whether the actions of
the Respondent 's plant manager violated Sec . 8(a)(4) because we affirm
the judge's finding that the interview violated Sec . 8(a)(1).
In affirming the judge 's finding that the Respondent constructively dis-
charged Judy Gilmore in violation of Sec 8(a)(3) and (4) of the Act, we
note that, according to credited testimony , when the Respondent inter-
viewed Judy Gilmore the day before her constructive discharge regard-
ing a charge it had just received , the Respondent reminded Gilmore that
it had been good to her in allowing her to report to work later than the
scheduled work hours because of her babysitting problems.
8 Interest will be computed in accordance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987). Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U S C. § 6621) shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
4 Although the judge found that the Respondent 's widespread miscon-
duct warranted broad cease -and-desist language, he failed to include this
language in his recommended Order We will modify the Order to in-
clude the broad cease-and -desist language . We do not adopt the judge's
inclusion of a visitatorial clause in his recommended Order In the cir-
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Bennett Packaging Company of Ken-
tucky, Inc., Somerset , Kentucky, its officers,
agents , successors , and assigns , shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
"(c) Coercively threatening employees concern-
ing their participation in the filing of unfair labor
practice charges with the Board."
2. Substitute the following for paragraph 1(e).
"(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
3. Substitute the following for paragraph 2(e).
"(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
4. Substitute the attached notice for that of the
administrative law judge.
curnstances of this case , we find such a remedial provision unnecessary,
and we have modified the recommended Order accordingly
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting the Glass,
Pottery, Plastics and Allied Workers Union, AFL-
CIO-CLC, or any other union , or engaging in con-
certed activity protected under the Act.
WE WILL NOT bypass your certified collective-
bargaining representative on matters of wages,
285 NLRB No. 80
BENNETT PACKAGING CO
hours, or other terms and conditions of employ-
ment.
WE WILL NOT coercively threaten you concern-
ing the filing of unfair labor practice charges with
the Board.
WE WILL NOT predict to employees increased
wages in the event of union decertification.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Judy Gilmore immediate and full
reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed and WE
WILL make her whole for any loss of earnings and
other benefits resulting from her discharge, less any
net interim earnings, plus interest.
WE WILL notify her that we have removed from
our files any reference to her discharge and that
the discharge will not be used against her in any
way.
WE WILL, on request, execute the written agree-
ment submitted by the Glass, Pottery, Plastics and
Allied Workers International Union, AFL-CIO-
CLC on 12 August 1986, with any inadvertent
errors omitted, give retroactive effect to its terms
and conditions, and make you whole for any bene-
fits or losses you may have suffered as a result of
our refusal to sign the agreement, plus interest.
BENNETT PACKING COMPANY OF
KENTUCKY, INC.
Carol Shore, Esq., for the General Counsel.
Charles C. Adams, Esq., of Somerset, Kentucky, and
Robert F. Houlihan, Esq. (Stoll, Keenon & Park), of
Lexington, Kentucky, for the Respondent.
Joseph E. Finley, Esq., of Baltimore, Maryland, for the
Charging Party Union.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. On
charges filed 24 April 19861 by Glass, Pottery, Plastics &
Allied Workers Union, AFL-CIO-CLC (the Union), and
on charges filed 12 June by Judy Gilmore, the General
Counsel issued complaints on 23 May and 24 July, con-
solidated for hearing by an order dated 1 October. Hear-
ing was held before me at Somerset, Kentucky, on 3 and
4 December. Briefs and reply briefs were filed on behalf
of the General Counsel, the Charging Party-Union, and
ennett Packaging Company of Kentucky, Inc. (Re-
spondent), the last brief being filed 6 March 1987.
' All dates are in 1986 unless otherwise noted
603
The issues iii this matter are whether Respondent (1)
told employees wages would be increased if the Union
were decertified, (2) unilaterally dealt with employees
rather than their bargaining agent in granting bonuses,
(3) coercively interrogated and threatened employees re-
garding participation in filing an unfair labor practice
charge, (4) constructively discharged an employee par-
ticipating in filing an unfair labor practice charge by
changing working hours, and (5) refused to execute an
agreed-on collective-bargaining agreement,, all in viola-
tion of Section 8(a)(1), (3), (4), and (5) of the National
Labor Relations Act (the Act).
On the entire record of the case, and from my obser-,
vations of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a manufacturer of corrugated boxes at a
facility near Somerset, Kentucky. It admits it is, and I
find it to be, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union has since 28 May 1985 been the Board-cer-
tified bargaining agent of a work unit consisting of "All
production and maintenance employees, including ware-
house employees, shipping and receiving employees, and
truckdrivers employed by the (Respondent) at its Somer-
set, Kentucky facility," with the usual exclusions. Unless
otherwise specified, persons referred to as "employees"
are members of the unit, which consisted at pertinent
times of 19 members, working 2 shifts. Terrell Gibson
was their supervisor, and Steven Keck their general
manager, both supervisors and agents of Respondent
within the meaning of the Act.
IT. UNFAIR LABOR PRACTICES
A. The Testimony
Respondent has been in operation since about early
1985. Following a brief strike, its first collective-bargain-
ing agreement was effective from 12 August 1985
through 11 August 1986.
Prior to March 1986, morning starting time was 7:30
a.m., but at the request of employees and as had been
done the previous year, it was changed to 6:30 a.m. in
mid-March. Employee Gilmore, who was unable to
report for work that early because of child-care require-
ments, had been given a leave of absence while the earli-
er starting time was in effect during 1985 and had re-
turned to work in the fall when the later time had been
resumed, was permitted by Gibson to report for work at
7:30 a.m. instead of at 6:30 a.m., with the agreement of
Butch Whitehead, who worked in tandem with her on a
single machine. In mid-April, Whitehead was transferred
to a betterjob on the second shift.
About 2 April, while Gibson was holding a regular
production meeting of employees, Keck passed through
the room and was asked if there was anything he wanted
to say to the employees. Keck said that he did, and his
exact language is a matter of dispute. Leonard Dalton, an
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee and president of the Local Union , testified that
Keck said, "If we decertified the union some of us would
be making $20,000 or more a year in four or five years,"
and also that "it didn 't make any difference whether we
had a union or not , that we wouldn 't make any more
money ." Butch Whitehead , then a union member, the
off-loader on the machine Gilmore operated , later a ma-
chine operator on the second shift , who voluntarily left
Respondent's employ in August, testified that Keck had
said "that he wasn 't going to mention it , but as long as
he was there, he would and, then , he started to talk
about the union . . . . He said that if we would decertify
the union that we could be making $20,000 to $25,000 a
year in three or four years ." Gibson, called by Respond-
ent, answered negatively to leading questions on direct
examination regarding Keck's words , as follows:
Q. Well, did he specifically make a statement
during the course of the meeting saying to the em-
ployees, as a whole, "If you will decertify the
Union , then some of you will be making $20,000
four or five years from now?"
Q. Did he make any promises that you can recall,
in any way, in reference to any statements he made
concerning decertification?
Q. Did he make any threats in the event decertifi-
cation did not occur?
Roger Phillips, an employee, testified that Keck had, as
on other occasions , spoken only about the growth and
potential of the Respondent and the opportunity for em-
ployees to earn up to $20,000 a year, that it mattered not
to him whether there was a union , and had made no
statement regarding decertification . Phillips also testified
that Keck had, as previously, spoken of the possibility of
future employee ownership of Respondent . Phillips' testi-
mony was in substance confirmed by employees Reyn-
olds, Ard , Silvers, and Nicely.
Keck himself testified that the primary reason he went
to the meeting of 2 April was "because that previous
week, and particularly the couple of days there right
before that meeting , I was getting bombarded by people
having questions about decertifying the Union . People
were coming into my office. There were a lot of rumors
going around the plant."? Keck continued, however, to
deny he had connected any wages to decertification, stat-
ing that he only discussed future potential of wages and
of employee ownership of Respondent.
The following day, about 3 April, Gilmore and White-
head spoke to Gibson about a wage increase for White-
head. Gibson responded that it would be illegal because
of the collective -bargaining agreement , but later gave
each of them their timecards and told them each to enter
3 hours of overtime, which he could give them as a
bonus. When questioned , Gibson stated he had given
2 On cross-examination Keck stated that it was he who had raised the
issue of decertification at the meeting , and that he had discussed certifica-
tion at perhaps three other employee meetings, in response to employee
questions . The only employee witness other than Whitehead and Dalton
to testify regarding Keck's mentioning decertification was Nicely, who
testified that Keck told all the employees in the breakroom about the de-
certification petition being denied-which would have been sometime
after 3 July.
bonus payments to Silvers and Strickler . Gilmore men-
tioned this to union officials, who on 24 April filed an
unfair labor practice charge for allegedly unilaterally
granting employee bonuses, and for making an offer to
employees to decertify the Union.
The charge arrived at Respondent's facility by mail
about 28 April. Keck angrily brought Gilmore and
Dalton to his office with Gibson. There Keck stated that
he was extremely upset, that the charges made him "look
like a liar" or worse, and told the employees that they
could be sued for slander . Keck told them that he had
been "good" to them, and he wrote the following state-
ment by hand , which he had Gilmore and Dalton sign:
Leonard Dalton and Judy Gilmore agree that I
have told them "you will not make any more
money or any less money if they have a union or
not.,,
At Keck's request, Gilmore added in her own writing
that she had been told by Gibson that "he had done the
same thing [referring to the bonuses] . He did not say
what the statement3 said."4 Neither Gilmore nor Walton
was given any assurances against reprisals or of contin-
ued employment if they refused to sign or add to the
statement.
Later that day Keck approached other first- and
second-shift employees and asked them to sign a type-
written statement, dated 28 April, agreeing with the fol-
lowing:
I have told all employees on a repetitive basis,
when the question arises, that they will not make
any more or any less money if they have a union or
if they do not have a union . I also have told them
that their benefits would not change depending on
whether we had a union or not. I have made the
comment that potentially you can make $20,000 a
year or more. All people should know based on the
previous statements the union affiliation does not
determine their income.
Steve Keck , General Manager
There were 14 employee signatures , including that of
Whitehead , who testified that he signed the affirmation
because the statement was true, but that the statement
did not correctly reflect Keck 's oral comments at the 2
April meeting.
That evening , Whitehead, who was on the second
shift, phoned Gibson regarding a production problem.
Gibson directed him to have all four second -shift em-
ployees vote on whether first shift should start at 6:30 or
7:30 a . m., even though it would not affect the 4 p.m. to
midnight hours for the second shift . The results of the
vote were to be left on a table when the second shift
ended . The vote was unanimously for a 7 :30 a.m. starting
time.
The next day, 29 April, Gibson announced to the first
shift that there would be a vote, by ballots placed in the
a The ULP charge
' That such payments were made "all the time "
BENNETT PACKAGING CO.
suggestion box, for a permanent starting time. Keck testi-
fied that the results of that tally were inconclusive, and
they were not announced. Keck then went personally to
each employee to note their choice. Keck declared that
the vote had been a 9-to-9 tie, though he did not explain
how that could be with 19 employees, and that he voted
to break the tie, establishing 6:30 a.m. as the ` permanent
starting time. Gilmore was permitted to waive notice,
and resigned at the end of that day.
Thereafter, employee Nicely believed that the majority
of the unit no longer wanted representation by the
Union. He testified that he canvassed the employees and
determined this was so, and about 4 June contacted the
Board's Cincinnati Field Office. Unfortunately, he was
inadvertently misadvised that a decertification petition
had to be filed between 30 and 60 days, rather than be-
tween 60 and 90 days, before the current collective-bar-
gaining agreement expired. Therefore, when he filed a
decertification petition about 3 July, it was rejected as
untimely. A, second petition, filed about 13 August, the
day the prior contract expired, was also rejected as
having a deficient "showing of interest" in that it called
for an election rather than expressing that the 10 signa-
tors no longer desired to be represented by the Union. A
revised showing of interest was thereafter submitted, but
the petition was dismissed on 9 October because of the
pendency of this proceeding.
In the interim, the collective-bargaining agreement was
scheduled' to expire on 11 August. The Union gave
timely notice of desire to negotiate, and the mutually ac-
ceptable date of 7 August was set for the first session.
The Union was primarily represented by Babcock, and
the Respondent by Keck and Adams. At the first session,
the Union presented its first proposal, noting requested
changes in the expiring contract and permitting the other
articles to remain unchanged. It was agreed that contract
language, i.e., noneconomic matters, would be discussed
first, and that economic matters would be discussed
thereafter.
Keck testified that another agreement on "ground
rules" made the first day was that "after we had negoti-
ated that we would go over and make sure we were in
agreement. We would go over a final draft to make sure
there's no question about the points." Adams agreed-to
this understanding, testifying that "my understanding
was that we would take the contract article by article,
and we would seek to reach an understanding, which ap-
parently to each side would be acceptable, and then we
would, of course, have a final review of the contract.
And if it was suitable in all respects, why then it'd be
executed." Keck testified that on the first day of negotia-
tions, Babcock agreed with Keck's statement that "it was
a tentative agreement" and, as show[ in Kick's hand-
written notes that on the second day of negotiation Bab-
cock agreed "it is a tentative agreement." Keck also tes-
tified on recross-examination, by me, that at the opening
of the first day of negotiations, Babcock stated any
agreement would have to be ratified by membership.,
On the second day of negotiations, 8 August, the par-
ties met again, and the Respondent submitted its first
written proposals. Little progress was made, and negotia-
tions were adjourned over the weekend.
605
On Monday, 11 August, the parties met again , togeth-
er with a Federal mediator. The Union submitted its
second written proposal and negotiations continued. In
the late afternoon Babcock asked Respondent how much
time should be set aside to discuss economics. Adams re-
sponded that before economic matters could be consid-
ered, language items had to be concluded. Babcock's tes-
timony was that "Mr. Adams said `We're about as far as
we can go on language.' And I said 'Is this your last lan-
guage proposal?' And he said `Yes.' And I said `Are you
telling me that you're not willing to negotiate language
any further?' And he looked at me and he said `Our posi-
tion is firm.'"
This left economic issues, and Respondent offered, for
the agreed-on 3-year period, no wage increase the first
year, and 5 cents per hour the second and third years.
The Union caucused, and returned with a proposal of in-
creased wages at 50 cents per hour in each of the 3
years. Keck responded with an offer of 5 cents for each
of the first 2 years and 10 cents for the third year, plus 2
cents additional to the shift differential figures, which he
stated was Respondent's final offer. Adams' testimony re-
garding the negotiations at this point are as follows:
And then, the offer was changed to 5 cents per
hour first year, 5 cents per hour second year, 10
cents per hour third year. And we indicated we
were making a final offer on the other provisions
that were on the table, in accordance with our earli-
er proposal. And then, following this, is the note
that I made that Mr. Babcock stated he was going
to take the company's offer to the membership to-
morrow evening.
Babcock requested a written 24-hour extension of the
contract, which was expiring that midnight, but Adams
declined, pointing out that by its terms the existing con-
tract continued in force during negotiations. The Union
again caucused, and Babcock then told Adams that the
Union would hold a ratification meeting that very night,
and asked where Adams could be reached to inform him
of the results.
Keck then asked how the Union could possibly gather
all 19 unit employees for a vote on such short notice,
and Babcock told him that only 7 unit employees were
union members, 2 of whom were at the negotiation al-
ready, so that only 5 others had to be contacted. Neither
Keck nor Adams made any response.
The membership ratified Respondent's final offer, and
Babcock attempted to reach Adams at home by phone.
Being unable to do so, he sent Adams a telegram at 9:30
p.m., stating, "The contract was ratified." Babcock,
Dalton, and Smith, the union negotiators, saw Keck later
that night at a restaurant and also orally advised him that
the contract had been ratified.
5 Movement from language to-economic matters may have been at the
suggestion of the Federal mediator In any event, on examination Adams
was asked "Well, Mr Keck did say that the company had submitted its
final offer on language, didn't he," and responded, "I think at some point
in time he did "
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Adams, who had been at the courthouse law library,
returned Babcock's calls about, 11:30 p.m. Babcock told
him that the contract had been ratified, but Adams re-
sponded that his research led him to question whether
Respondent was bound to contract with a union whose
membership comprised less than a majority of the unit.6
Babcock responded that he believed the parties had a
contract and that he would present a copy to Keck for
execution the following morning.
The following morning Babcock went to Respondent's
facility, where he spoke to both union and nonunion em-
ployees regarding the contract. Keck came by, and in
the face of comments by the nonunion unit workers as to
the inadequacy of the wage increase, stated that Re-
spondent might be able to do better.
Babcock presented Keck with a -copy of the new
"agreement," which consisted of looseleaf pages to re-
place pages of the expired contract, with those portions
that had been changed underlined for identification.
Keck took the document, but refused to sign it for two
reasons: first, as stated by Adams, he was not certain
whether he had to contract with a union whose member-
ship was less than a majority of the unit and, second,
that there never had been final agreement. In Keck's tes-
timony he stated that on the last day of negotiations:
We didn't have an agreement. We had or-after
several conversations about it, we had a final offer,
and the union never responded, if they accepted or
rejected that. Russell Babcock never responded to
our offer.
Adams, on the other hand, gave as his reasons why the
purported agreement was not signed, first, that he was in
doubt whether the Respondent was required to contract
with the Charging Party Union because of the number of
its member unit employees and, second, later because he
believed the form given to Keck did not conform to
what had been agreed, though he never contacted the
Union regarding the second ground.
Respondent's answer to the complaint involving failure
to execute the contract, dated 16 October, specifically
admitted paragraph 8 of the consolidated complaint,
which had alleged that "the Union by virtue of Section
9(a) of the Act, has been and is now, the exclusive repre-
sentative of all the employees in the Unit for the pur-
poses of collective bargaining with respect to rates of
pay, wages, hours of employment and other terms and
conditions of employment:" On the first day of hearing,
3 December, Respondent moved the acceptance of an
amended answer, denying paragraph 8. I rejected the
amendment as being untimely and, as within my discre-
tion, without adequate reason being given for its accept-
ance.
6 Adams' precise testimony is that he told Babcock, "Well,.we have
been looking at some legal decisions, and we're not sure where we are
And as I had mentioned to him earlier I again said , I feel that at this
point you do not represent a majority of the people in the bargaining
unit , and we were going to continue looking at this before any further
decision is made " However, I find no indication that Respondent raised
this issue any time before this phone conversation.
B. Discussion
1. Wage increase dependent on union decertification
As is so frequently the case, testimonial credibility
here must be given to either the officer of the Charging
Party Union, on the one hand or, on the other, to man-
agement personnel and individuals who are still em-
ployed by Respondent and, who, by supporting decertifi-
cation attempts, have displayed union animus. I find in
favor of the credibility of Babcock, the union officer. Of
great weight is the fact that he is supported by the testi-
mony of Whitehead, who is no longer employed by Re-
spondent, having left voluntarily, and that Babcock, still
an employee, leaves himself liable to the ' wrath of his
employer. In addition, Keck admits attending the meet-
ing and raising the issue of decertification because decer-
tification was on his mind, though there is no testimony
that in early April there was in fact a bombarding of
questions from employees, rumors, etc. I believe that
Keck, having used the carrot of future high wages and
possible employee ownership of Respondent to raise
morale and increase production, also attempted to use
that same carrot of high wages to propel the wagon of
decertification, a violation of Section 8(a)(1) of the Act.
2. Unilateral grants of bonuses
It is admitted that Respondent gave bonuses to select-
ed individuals, through awarding unearned overtime pay,
and that the Union was not permitted to negotiate this
bonus system. Respondent argues that the bonuses were
awarded for superior work. Because Gibson "explained"
to Gilmore and Whitehead that he was prevented from
raising Whitehead's pay by the collective-bargaining
agreement immediately prior to giving them both bo-
nuses, it can be said that Respondent must have realized
such bonus grants made unilaterally were also an unfair
labor practice, in violation of Section 8(a)(5) of the Act,
by failing to bargain collectively and in good faith with
its employees' representative union.
3. Coercive interrogation and implied threats of
reprisal
When Keck received the first charge in this matter,
submitted to the Board by Babcock, a union officer not
employed by Respondent, Keck immediately turned to
Dalton, the employee union officer, and Gilmore, who
had been the Union's poll watcher at the original elec-
tion, as the individuals to blame. He asked no questions
.and interrogated no one. What he did do, however, was
to tell them that, if he wished, he could bring legal
action against them for slander. He repeated this to other
employees as well. In addition he had them sign what he
apparently considered an exculpatory statement, without
advising them that their refusal to do so would not result
in reprisals or loss of employment. A majority of the
other employees were also asked to sign an exculpatory
statement, but there is nothing in the record as to the
conditions under which that was done.
In interviewing Gilmore and Dalton, Keck made a
great point of having been "kind" to them, by giving
Gilmore a bonus of several hours of unearned overtime
BENNETT PACKAGING CO. 607
pay, by giving Dalton a supposed bonus by paying him
for lawn work done outside the scope of his regular em-
ployment, and by cooperating with Gilmore on her start-
ing time during the seasonal change, which will be fur-
ther discussed hereunder.
In any case, it is clear that Keck's actions were coer-
cive in nature, constituting an implied threat both against
the union officer and Gilmore, and against all other em-
ployees who might consider filing a charge with this
Board. As such, they were clearly in violation of Section
8(a)(1) of the Act. Since by the same acts Respondent
discriminated against employees whom it believed re-
sponsible for the filing of unfair labor practice charges, it
also violated Section 8(a)(4) of the Act.
4. Constructive discharge
There is here no claim that Respondent did not have
the right to regulate the starting times of its shifts wheth-
er for good cause, for bad cause, or for no cause at all.
This was a management right not made subject by the
existing bargaining agreement to negotiation with the
Union. 'What is charged, however, is that Respondent
changed its starting time for the specific purpose of dis-
comforting Gilmore with the knowledge that it would
require her to leave her employment, thus constituting a
constructive discharge, and that it was accomplished in
order to interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of the Act. I
believe that such has been proven to have been the case.
As seen before, Gilmore was coerced and threatened
by Keck to give an exculpatory statement. As part of
that coercion she was "reminded" of Respondent's
"kindness" in giving her a bonus and in working with
her on her starting time, a clear threat that she could or
would be punished for past or future union activities. By
implementing its threat to a constructive discharge, Re-
spondent made clear to all other employees the conse-
quences of union activity or of filing a charge with this
Board.
In addition, the matter of having employees vote on
the starting time was clearly a facade. The "vote" was
instituted the same day Keck received a copy of the
Union's charge, for which he blamed Gilmore. It was
started with second-shift employees, who had no interest
in the operating hours of the first shift. It was continued
with a secret ballot, the results of which Respondent
never acknowledged. The vote was then taken by Keck
personally, so that each employee was aware that Keck
knew how they voted. It resulted in a tie vote, which is
interesting when there are 19 employees.
Respondent argues that the change in hours was based
purely on valid business reasons, and not on displeasure
with Gilmore's union activities. Respondent claimed a
drop in production, but in fact gave Gilmore and the
others "bonuses" for outstanding production during that
same period,. The very employees claimed to have com-
plained about special provisions for Gilmore, specifically
Nicely, Silvers, and Phillips, testified that in fact they
had not complained to Respondent for that cause.
Based on the record as a whole, I find that Respond-
ent constructively discharged Gilmore on 3 April in vio-
lation of Section 8(a)(1) and (3) of the Act.
5. Failure to bargain in good faith and to execute
agreement
a. Duty to bargain with the Union
Though my discretionary rejection of Respondent's
amended answer that denied the Union 's representative
capacity withdrew the issue of duty to bargain from the
proceeding , the following discussion is presented for
three purposes : one, to avoid remand should my ruling
be reversed ; another, to buttress some credibility deter-
minations , infra; and another, as part of the basis for de-
terminations , supra.
Statutory and decisional law, as well as Board policy,
were well stated in Terrell Machine Co., 173 NLRB 1480,
1480-1482 (1969), which is worth extensive quotation
here:
It is well settled that a certified union, upon expi-
ration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues. . . . The prima facie
case may be rebutted if the employer affirmatively
establishes either (1) that ... the union in fact no
longer enjoyed majority representative status;3 or
(2) that the employer's refusal was predicated on a
good-faith and reasonably grounded doubt of the
union's continued majority status. As to the second
of these, i.e., "good faith doubt," two prerequisites
for sustaining the defense are that the asserted
doubt must be based on objective evidence consid-
erations and it must not have been advanced for the
purpose of gaining time in which to undermine the
union.
[A] showing as to employee membership in, or
actual financial support of, an incumbent union is
not the equivalant of establishing the number of em-
ployees who continue to desire representation by
that union.
To be of any significance, the evidence of dissatis-
faction with a validly recognized incumbent Union
must come from the employees themselves, not
from the employer on their behalf.
3 "Majority representative status" means that a majority of em-
ployees in the unit wish to have the union as their representative
for collective-bargaining purposes
In the case at hand, the unit operated as an open shop,
the dues from union members being checked off and de-
ducted by Respondent from wages. Respondent knew at
all times, from the dues checkoff, how many unit em-
ployees were union members. Keck testified he knew
that a majority of unit employees were not union mem-
bers sometime between the end of November 1985, and
February or March 1986. Adams testified he "had the
knowledge that [he] gained from [Keck] over a period of
several months that the checkoff, the union checkoff had
always been . . . seven, eight, somewhere along there;
less than 50 percent of the employees in the plant at that
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time." In addition , the other counsel for Respondent,
Houlihan , argued at one point that Keck had a good-
faith doubt of the majority support for the Union from
his knowledge that decertification petitions had been
filed . As we have seen , those petitions were filed about 3
July 'and 13 August, well before the filing of Respond-
ent's answer admitting the Union 's representative capac-
ity. If one wishes to go further back in time one can look
to Keck's testimony that before the meeting of 2 April
the plant was abuzz with rumors of decertification.
It can thus be seen that well in advance of the start of
negotiations , through the point when a final offer was
accepted , and up until the point when Respondent was
requested to sign a hard copy of the agreement, Re-
spondent 's knowledge that , in their open-shop, union
membership was less than a majority of employees did
not interfere with Respondent 's de facto recognition of
the Union as the unit's bargaining representative.
b. Actual loss of majority status
Though the record does not reflect a specific date on
which ' union membership fell below a majority of the
number of employees in the unit , or even whether it ever
actually constituted such a majority, union membership is
not the controlling factor. The issue is whether a majori-
ty of unit employees supported representation by the
Union, not whether they are union members and, as we
have seen, the evidence of this must come from the em-
ployees themselves and not from Respondent 's unsup-
ported statements .7 The burden of proof on this point is
on Respondent and it has not been sustained.
c. Good faith reasonable doubt of union majority
I reject the argument by Respondent that its doubt of
union majority was held in good faith or was reasonable.
The claim - was not raised until , as found ' below, full
agreement on the collective-bargaining agreement had
been reached, though the claim was based on informa-
tion known to Respondent all through the bargaining
process. "Once final agreement on the substantive terms
was reached , and regardless of the status of any written
instrument incorporating that agreement , the Respondent
was not free to refuse to bargain even if then [sic] had
lawful grounds for believing that (the Union) had subse-
quently lost its majority status."8
Further, as found , infra and supra, Respondent en-
gaged in unfair labor practices prior to and after agree-
ment, completely tainting any defense of good faith or
reasonableness . See Choctawhatchee Electric , 274 NLRB
595 (1985 ), particularly fn. 2. Respondent granted bo-
nuses without union knowledge , made promises of bene-
fits for union decertification , discriminatorily discharged
an employee, and even stated , to nonunion employees,
after agreement on a new contract had been reached,
that it was willing to pay higher wages . All of this, in-
tentionally in my opinion , so denigrated the Union in the
eyes of the unit employees as to destroy any concept of
4 Signatures to the rejected decertification petition were dated 25 and
26 August , after Respondent's alleged good -faith doubt . They are also
not to be considered for reasons set forth below.
8 North Bros Ford, 220 NLRB 1021 , 1022 ( 1975).
lawful good-faith bargaining by, or reasonableness of
action of Respondent.
d. Whether agreement was reached
There is first a credibility issue whether "ground
rules" included an agreement that once all terms of the
contract had been agreed on, it would still be necessary
to go over each clause before full and final agreement
occurred . I find that this was not the case. Babcock's
only agreement on point was that the contract was sub-
ject to "ratification," which was clearly a reference to
union membership ratification.
Keck 's testimony was that at the end of negotiations
"We didn't have an agreement . We had a-after several
conversations about it, we had a final offer, and the
union never responded , if they accepted or rejected that.
Russell Babcock never responded to our offer ." I find
this preposterous. Respondent made admitted , specific
final offers on both language and economics . While the
Union 's timely acceptance was not engraved in stone, it
was transmitted by Babcock in a telegram to Adams, by
Babcock in a phone call to Adams, and by Babcock,
with others orally face to face to Keck . I am not certain
what else Keck expected in the way of response. While
technical rules of contract law do not necessarily control
all decisions in labor-management cases, the normal rules
of offer and acceptance are generally determinative to
the existence of a collective-bargaining contract. In this
matter, such an agreement was in fact reached.
e. Refusal to execute
Respondent's first reason for refusing to execute a hard
copy of the agreement after it had been reached was that
it did not believe it was required to bargain with the
Union, an excuse disposed of above. It then added that
no agreement had been reached , an excuse also disposed
of above. It then argued that the copy provided to it dif-
fered from the terms of its offer that the Union had ac-
cepted. The Board has held that, "Turning to the issue of
whether the errors contained in the written contract jus-
tify the Respondent 's refusal to execute it, we note that
generally inadvertent errors do not `excuse a complete
refusal to execute an agreement previously reached.' .. .
The Board has found that such errors do not indicate
lack of agreement between the parties and the need for
minor alterations in the agreement does not relieve the
parties of the obligation to execute the contract agreed
to." Fashion Furniture Mfg., 279 NLRB 705, 705-706
(1986). This final excuse for failing to execute the agree-
ment thus also fails, and Respondent 's refusal is clearly a
violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By constructively and discriminatorily discharging
Judy Gilmore on 29 April because of her participation in
the filing of an unfair labor practice charge, Respondent
engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(a)(1), (3), and (4) and
Section 2(6) and (7) of the Act.
2. By bypassing the Union and dealing directly with
employees in unilaterally granting bonus payments, Re-
BENNETT PACKAGING CO 609
spondent engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(5) and
Section 2(6) and (7) of the Act
3. By coercively threatening employees concerning
their participation in the filing of an unfair labor practice
charge, Respondent engaged in an unfair labor practice
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
4 By predicting to employees increased wages in the
event the Union certified as bargaining agent were de-
certified, Respondent engaged in an unfair labor practice
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act
5 By refusing to execute an agreed-on collective-bar-
gaining agreement on 12 August, Respondent engaged in
an unfair labor practice affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act
The Respondent, having discriminatorily constructive-
ly discharged Judy Gilmore, it must offer her reinstate-
ment and make her whole for any loss of earnings and
other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less
any net interim earnings, as prescribed in F. W Wool-
worth Co, 90 NLRB 289 (1950), plus interest as comput-
ed in Florida Steel Corp., 231 NLRB 651 (1977) 9 Be-
cause of Respondent's widespread misconduct, demon-
strating a general disregard for the employees' funda-
mental rights, I find it necessary to issue a broad order
requiring Respondent to cease and desist from infringing
in any other manner on rights guaranteed employees by
Section 7 of the Act.10 For the same reasons I find it
necessary to include the provision of visitatorial rights
for the General Counsel in matters of enforcement.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edit
ORDER
The Respondent , Bennett Packaging Company of Ken-
tucky, Inc., Somerset , Kentucky , its officers , agents, suc-
cessors, and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Glass, Pottery, Plastics and
Allied Workers International Union , AFL-CIO-CLC, or
any other union
9 See generally /sis Plumbing Co, 138 NLRB 716 (1962)
10 Hickmott Foods, 222 NLRB 1357 (1979)
11 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(b) Bypassing the certified bargaining representative in
dealing with employees on matters concerning hours,
wages, or other terms and conditions of employment
(c) Coercively threatening any employee about union
support or activities.
(d) Predicting to employees increased wages in the
event of union decertification
(e) In any like or other manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request, execute the written agreement submit-
ted by Glass, Pottery, Plastics and Allied Workers Inter-
national Union, AFL-CIO-CLC on 12 August 1986,
with any inadvertent errors omitted, give retroactive
effect to its terms and conditions, and make its employ-
ees whole for any benefits or losses, if any, they may
have suffered as a result of its refusal to sign such an
agreement within a reasonable time after the same was
proffered to the Respondent for signature, with interest
to be computed as set forth in the remedy section of this
decision.
(b) Offer Judy Gilmore immediate and full reinstate-
ment to her former job or, if her job no longer exists, to
a substantially equivalent position, without prejudice to
seniority or any other rights or privileges previously en-
joyed, and make her whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section
of the decision.
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against her in any way
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(e) Post at its facility in Somerset, Kentucky, copies of
the attached notice marked "Appendix "12 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply For the purpose of deter-
mining or securing compliance with this Order, the
12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board , or any of its duly authorized representatives , may dure . Such discovery shall be conducted under the su-
obtain discovery from the Respondent , its officers , pervision of the United States court of appeals enforcing
agents , successors , or assigns, or any other person having this Order and may be had on any matter reasonably re-
knowledge concerning any compliance matter, in the lated to compliance with this Order, as enforced by the
manner provided by the Federal Rules of Civil Proce- court.