Crown Corrugated Container, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1959

123 N.L.R.B. 318 (N.L.R.B. 1959)

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties stipulated that the head butchers were not supervisors
and would include them. However, the record shows that the head
butchers may, in emergency situations, discharge helpers in the meat
department. As the record is inadequate to determine whether or
not they are supervisors, we permit the head butchers to vote but
direct that the Board agent challenge their ballots.
Accordingly, we find that the following employees of the Em-
ployer constitute a unit appropriate for the purposes of collective
bargaining within Section 9(b) of the Act: All meat department
employees, including regular part-time employees, at the Employer's
Illinois and Indiana stores, but excluding grocery department em-
ployees, guards, professional employees, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
'Crown Corrugated Container , Inc. and William V. Long and
George W. Tompkins. Cases Nos. 6-CA-1203 and 6-CA-1251.
March 24, 1959
DECISION AND ORDER
On October 24, 1958, Trial Examiner Louis Plost, issued a report
to the Board on dismissal of the complaints in the above-entitled
proceedings, a copy of which is attached hereto. Thereafter the
General Counsel filed exceptions to the report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
It appears that at the end of the testimony in these proceedings,
Respondent moved to dismiss the complaints, on the merits, which
motion was forthwith granted by the Trial Examiner, with a state-
ment, that he would, in due course, issue a Report on the dismissal
with his findings of fact and conclusions. In the instant Report, he
has made findings of fact and conclusions, including findings on
credibility of witnesses. We will treat the Report as an Inter-
mediate Report and Recommended Order and make the initial de-
cision herein.'
The Board has reviewed the rulings of the Trial Examiner on the
hearing and finds that no prejudicial error was committed and the
rulings are hereby affirmed except as follows :
The General Counsel has excepted to the rulings of the Trial
Examiner, refusing to allow the General Counsel to impeach the
' See N.L.R .B. v. Elkland Leather Company, Inc., 114 F. 2d 221 ( C.A. 3), enfg. 8 NLRB
519, cert. denied 311 U.S. 705 , wherein it was held that an Intermediate Report is
advisory only.
1 23 NLRB No. 42.
CROWN CORRUGATED CONTAINER, INC. 319
credibility of Francis S. Gerhard, a witness for Respondent, on the
basis of prior felony convictions, and the subsequent refusal of the
Trial Examiner to allow an oral offer of proof as to the convictions
and finally to the refusal of the Trial Examiner to incorporate the
written offer of proof into the rejected exhibit file. We find merit
in the exceptions and that all three rulings were erroneous.
Section 10(b) of the Act in part provides that any unfair labor
practice proceeding :
... shall, so far as practicable, be conducted in accordance
with the rules of evidence applicable in the district courts of
the United States under the rules of civil procedure for the
district courts of the United States, adopted by the Supreme
Court of the United States pursuant to the Act of July 19,
1934, (U.S.C. title 28, secs. 723-B, 723-C).
That the credibility of a witness under the rules of evidence
applicable in the district courts of the United States may be im-
peached by showing he has been convicted of crimes is well estab-
lished. The Board has long recognized this rule. In N.L.R.B. v.
Baldwin Locomotive Works, 128 F. 2d 39, (C.A. 3), the court held
that counsel may show convictions for felonies or misdemeanors
amounting to crimen falsi in accordance with a well recognized rule
of evidence. Citing United States v. Montgomery, 126 F. 2d 151,
(C.A. 3). In American Laundry Machinery Company, 45 NLRB
355, and American Aircraft Manufacturing Company, 70 NLRB
1132, the Board has applied this rule.z We therefore hold that the
General Counsel should have been permitted to impeach the credi-
bility of Gerhard by proof of prior felony convictions.
We are of the further opinion that, under Rule 43(c) of the Fed-
eral Rules of Civil Procedure,3 the Trial Examiner should have
' But ef. Efco Manufacturing Inc., 111 NLRB 1032, 1034 (violation of fishing law) and
Martel Mills Corporation, 118 NLRB 618, 632 (conviction for operating a public nuisance
and cruelty to animals ) where the Board held that convictions for crimes not involving
moral turpitude are not admissible-that only convictions for felonies or misdemeanors
amounting to crimes falsi are admissible . Also compare Tulsa Boiler and Machinery
Company, 23 NLRB 846 ( 1940 ), where the conviction occurred in 1925, the Board hold-
ing it too remote and American Aircraft, supra, where the conviction occurred 6 years
before the hearing and the Board refused to credit the testimony of the impeached wit-
ness. In the instant case the record shows felonies from 1949 to 1952 , State and Federal,
on which the witness either pleaded guilty or was found guilty and sentenced . The last
conviction was in the United States District Court for the Eastern District of Louisiana,
in April 1952, for a violation of National Motor Vehicle Theft Act and on his plea of
guilty, the witness was sentenced to imprisonment for a period of 4 years.
I "RECORD OF EXCLUDED EVIDENCE. In an action tried by a jury, if an objec-
tion to a question propounded to a witness is sustained by the court, the examining attor-
ney. may make it specific offer of what he expects to prove by the answer of the witness.
The court may require the offer to be made out of the hearing of the jury. The court may
add such other or furtliar statement as clearly shows the character of the evidence, the
form in which it was offered, the objection made, and the ruling thereon. In actions tried
without a jury the same procedure may be folowed, except that the court upon request
shall take and report the evidence in full, unless it clearly appears that the evidence is
not admissible on any ground or that the witness is privileged."
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitted the General Counsel to make an offer of proof as to the
convictions and upon the rejection thereof, the Trial Examiner
should have filed the subsequent written offer of proof in the rejected
exhibit file as a rejected exhibit. Section 43(c) of the Federal Rules
provides for perfection of the record of excluded evidence and
enables a party whose evidence is excluded to show by offer of proof
what was expected to be proved by the witness and to indicate the
purpose for which the excluded evidence is offered. As the Fifth
Circuit has stated :
A party is entitled to put in the record a fair statement of
excluded evidence to permit review of the challenged ruling.'
We therefore hold that the Trial Examiner erred in refusing to
allow the General Counsel to make an oral offer of proof on the
record and in his subsequent refusal to allow the written offer to be
placed in the rejected exhibit file. Accordingly, we shall receive
the offer of proof and the documents attached thereto and shall
consider them as part of the record herein.5
Though we have held that the Trial Examiner was in error, Rule
61 of the Federal Rules of Civil Procedure set forth below 6 provides
that error in excluding evidence is not grounds for a new trial if the
error does not prejudice the substantial rights of the parties. There-
fore an offer of proof under Rule 43(c) enables us to determine not
only whether a ruling excluding evidence was erroneous but also
whether the error, if any, was prejudicial.7
We hold the error in refusing to allow the impeachment of Ger-
hard and to receive the offer of proof was not so prejudicial as to
warrant either a remand of this proceeding, or a hearing de novo,
because, even assuming Gerhard's testimony is discredited and re-
jected, we nevertheless find that the evidence in the record is insuffi-
cient to establish the unfair labor practices alleged in the complaint."
In making our findings herein, we therefore disregard Gerhard's
testimony and statements, in to to.
The Board has considered the report of the Trial Examiner, the
exceptions and briefs, and the entire record as it now stands, and
adopts the findings, conclusions, and recommendations of the Trial
4 Pennsylvania Lumberman's Mutual Fire Insurance Co. v. Nicholas , 252 F . 2d 504.
5 We have discussed these procedural matters-the impeachment of witnesses and offers
of proof for the future guidance of Trial Examiners and all parties to unfair labor
practice proceedings.
9 "Rule 61. No error in either the admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or omitted by the court or by any
of the parties is ground for granting a new trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect in the proceeding which does
not affect the substantial rights of the parties."
7Hofman v. Palmer, 129 F. 2d 976 (C.A. 2), affd. 318 U.S. 109.
8 Geilich Tanning Company, 122 NLRB 1119.
CROWN CORRUGATED CONTAINER, INC. 321
Examiner only insofar as they are consistent with our findings, con-
clusions , and order as herein set forth.
Respondent has been engaged in the manufacture of corrugated
boxes, shipping containers, and related products since November
1955. At the time relevant herein, it employed about 30 employees,
of whom approximately 20 were on a day shift, with the remainder
on the 3 :30 p.m. to 12 midnight shift. In the spring of 1956, Norman
West, international representative of the Pulp, Sulphite and Paper-
mill Workers Union, AFL-CIO, approached Julius Sheps, Re-
spondent 's president, relative to organizing the employees. As
Respondent had about five employees at that time, it was agreed to
defer any organizational drive and West stated he would come back
6 or 7 months later, to recheck the situation. In the fall of 1956,
West came back and found Respondent was still not in full operation
and had only about 10 employees. Again it was agreed to defer any
attempt to organize until a full complement was employed. At this
meeting, Sheps stated to West that he realized "he was going to
have a union"; "that he had a carpenter's union at another plant
with which he was connected"; that he knew West's union "was a
good union in the paper box industry"; and that "if he was going
to be organized, he should have a union that knew his [Sheps']
business." 9
In the summer of 1957, West called President Sheps who told
him Respondent now had a normal complement of approximately 30
employees. West thereupon went to the plant to discuss the matter
with Sheps. At this meeting West stated he would now proceed to
organize the employees and Sheps told him that anytime West
would come to him with proof that the Union represented a majority
of the employees, Respondent would recognize the Union. West
thereafter, on or about August 17, 1957, appeared at the plant to
distribute union cards and pamphlets. He made several visits to the
plant within the next few days, generally accompanied by some other
union representative. The distribution of the union literature took
place in the company yard without interference by the Respondent.1°
According to West, employees Pence and Robinson, his organizers
at the plant, returned 22 signed cards by August 27. On August 27,
West wrote Respondent stating he had a majority and requesting
recognition. President Sheps received the letter either on the 27th
or 28th and in the evening of the same day, turned it over to Harry
Pollock, his attorney, instructing him to contact West the next
morning and make the necessary arrangements for recognition of
9 The above is based upon the credited testimony of west and Sheps.
39 The last visit of west was on August 27, at which time it appears that when west
and his associate, Lasick, were distributing literature in the Company's yard, a severe
thunderstorm broke and Sheps invited them into his office out of the rain.
508889-60-vol. 12 3-2 2
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. Pollock called West the following morning and West
went to Pollock's office. At this meeting, Pollock stated he was
authorized to grant recognition if West would show him proof of
majority. West then stated he no longer had the cards as he had
turned them over to the Pittsburgh Regional Office of the Board,
in support of a petition for representation in 6-RC-2006, filed by
the Union August 27 (unpublished). Attorney Pollock thereafter
agreed to a consent election. The election was conducted in Sep-
tember, the Union was certified October 3, 1957, and the parties
entered into a contract. It is against this background that the
motivation for the discharges of Long and Tompkins must be
judged."
William Long was hired by Respondent about July 15, 1957, and
discharged August 31. He was a general laborer on the night shift
and worked at bundling (tieing up cartons) and assisting in the
loading of trucks. About August 27, Gerhard, utility and machine
setup man on the shift, on instructions from Vice President Leonard,
in charge of production, asked Long if he would be willing to work
on the slitter, a machine used to cut cartons. Long said he was
satisfied with his current job and that he did not think he was
capable of operating the machine. Gerhard reported this to Leonard.
On Saturday, August 31, the three officers of the Company at their
weekly production meeting discussed Long's attitude and decided to
let him go, "as he was satisfied to do a woman's work, bundling, and
appeared not to desire self-improvement-that in a small plant they
could ill afford to spend time and money on him where it would not
result in advancement for Long or benefit for the Company." 12
Gerhard was instructed to tell Long at the end of his shift that he
was discharged.
George W. Tompkins was hired August 26, for the night shift and
laid off August 31. For the first 2 days of his employment he worked
as a general laborer. After Long refused a transfer to the slitter,
Tompkins agreed to try it out. On August 29 and 30, he was in-
structed by the then operator Mizikar (who was leaving on August
31), and on the following day he operated the machine by himself.
On Saturday, August 31, Wolpert, an officer of Respondent, passed
through the shop and noticed Tompkins operating the slitter. He
observed "that it was an awkward operation because it was a right-
hand guide machine and Tompkins was left handed." Wolpert
called President Sheps and Leonard to observe the operation and
after discussion, they agreed that inasmuch as it was a hand fed
machine as opposed to a mechanically fed machine it could not be
successfully operated by Tompkins. Gerhard was instructed to
" Radio Oj7ieers' Union etc. v. N.L.R.B ., 347 U . S. 17, 43.
^^ This fact is found upon the credited testimony of Sheps.
CROWN CORRUGATED CONTAINER, INC. 323
notify Tompkins of his termination. This he did at the end of the
shift. When Tompkins asked the reason, Gerhard stated it was on
orders from Leonard. Subsequently Tompkins saw Leonard who told
him he was laid off because of lack of orders and because he, Tomp-
kins, could not successfully operate the machine.
The record shows that West gave Long several union applications,
one of which Long signed and mailed to the Union. Long, on or
about August 27, gave two applications to Tompkins, requesting him
to give one to Myers the night watchman. Tompkins did so, though
he never signed his own card. Long also testified that during lunch
hours he urged the employees in his group to join the Union, and
that it was a general discussion in which everyone was discussing
the Union. This is the sum total of the union activities of Long
and Tompkins. Union Representative West saw Long but once,
when he gave him some applications, while Myers could not identify
Tompkins as the person who gave him an application card. It is
undisputed that Pence and Robinson were the employee organizers.
The General Counsel alleges that Long and Tompkins were dis-
charged for union activity and bases his case solely upon alleged
questioning by, and statements of, employee Gerhard to these two
employees. 13 It is the General Counsel's position that Gerhard was
a supervisor within the meaning of Section 2(11) of the Act.
The Trial Examiner found Long was not a credible witness as to
these statements and questioning of Gerhard and credited Gerhard's
denials as to them. Because we have decided not to accept any of
Gerhard's testimony, we have examined the testimony of Long and
Tompkins and find that it is, independent of Gerhard's denials, self-
contradictory and not credible. We therefore adopt the Trial Exam-
iner's ultimate findings as to their credibility, noting that he relied
in part on their demeanor as witnesses.'4
We further agree with the Trial Examiner that the General
Counsel has failed to prove, by a preponderance of substantial evi-
dence that Gerhard was a supervisor within the meaning of the Act.
The facts clearly show that Gerhard, at best, was a lead man on the
night shift, doing physical labor over 95 percent of his time, loading
and unloading trucks according to a written diagram supplied him
by the day foreman. Gerhard, in performance of his duties as a
utility man, also made minor repairs to machines and did a limited
amount of setup work. It is clear that the night shift was engaged
in routine, repetitive work requiring little or no supervision, each
machine operator having his work orders affixed to his machine, the
sequence of which orders could not be varied except on instructions
from the day foreman who, after leaving at 6 p.m. for supper, came
These are set forth in detail in the Report and are accordingly not repeated herein.
i' Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 495, 497.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to the plant to observe operations. In the absence of the fore-
man, Gerhard transmitted telephonic directions to the employees
and he was no more than a conduit between the supervisors and the
employees, routinely directing them.15
Nor do we believe that the General Counsel has proved that re-
gardless of whether Gerhard was a supervisor, he was in such "a
strategic position to translate to subordinate employees the policies
and desires of management" so that Respondent was chargeable for
his acts. The very statements alleged to have been made by Gerhard
belie the "strategic position" theory because they were directly con-
trary to company policy. At a time when Respondent was appar-
ently using every legal effort to reach a recognition agreement,
Gerhard, if Long is to be believed, was warning the employees to
keep secret their union activity. Assuming however, the statements
were made and that Gerhard told Long that the discharge was con-
nected with union activity, we find that the record herein completely
refutes the claim that the employees were discharged for such a
reason and that any statements to the contrary by Gerhard were, at
most, expressions of unfounded personal opinion.
It is well established that Section 8(a) (3) of the Act does not
infringe or impair the normal exercise of the right of an employer
to discharge his employees but is directed solely against the abuse
of that right by interfering with, restraining, or coercing employees
in their right to self-organization under Section 7 of the Act.1e The
relevance of the motivation of an employer in discharging an em-
ployee has been consistently recognized by this Board and the Court."
To infer a discriminatory motivation for the discharges herein,
would, in our opinion, be contrary to the undisputed facts.
On the entire record herein, we find that the General Counsel has
failed to prove affirmatively by a preponderance of substantial evi-
dence that Respondent discriminatorily discharged Long and Tomp-
kins. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaints.]
'b Park Drug Company, 122 NLRB 878.
The General Counsel contends that Gerhard was a supervisor within the purview of our
decision in Brighton Manufacturing Company , Inc., 122 NLRB 220, where among other
factors we found that when there was only one supervisor for a two-shift operation, the
employee in question responsibly directed the operations of the night shift and was
therefore a supervisor. We are of the opinion that the record 'facts in the instant case
differ from those in Brighton. In that case, neither the day foreman nor any other
officer of the Company was present during the night shift and the alleged supervisor made
job assignments a substantial part of his time. In the instant case, supervisors were
present during the night shift and Gerhard did physical labor almost 100 percent of his
'time. In Brighton, we found the employee in question "ordered" the employees, was re-
sponsible for their obedience to working rules, and effectively recommended the discharge
of two employees. These factors are not present here. In addition, the record shows
that at least one employee on the night shift received substantially more, per hour, than
Gerhard, the alleged supervisor.
14 Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 187.
17 Radio Officers' Union etc. v. N.L.R.B., 347 U.S. 17, 43.
CROWN CORRUGATED CONTAINER, INC. 325
REPORT TO THE BOARD ON DISMISSAL
The above matter was opened on August 12, 1958, at Greensburg, Pennsylvania,
by Trial Examiner Alba B. Martin who received the formal documents but due
to the illness of the General Counsel then adjourned the hearing to September 8.
On September 4, the matter was assigned to Trial Examiner Plost. Hearing opened
at Greensburg, Pennsylvania, on September 8 and continued through September
12. A record consisting of 710 pages was made, exclusive of exhibits. The proof
as to jurisdiction is in order.
Case No. 6-CA-1203
The record discloses that on November 21, 1957, William V. Long filed a charge
in the office of the Board's Sixth Region alleging that on August 31, 1957 (almost
3 months previously) the Crown Corrugated Container, Inc. (Respondent) had
discriminatorily discharged him, in violation of the National Labor Relations Act,
as amended, 61 Stat. 136 (Act), because of his membership in, and activities on
behalf of International Brotherhood of Pulp, Sulphite and Paper Mill Workers,
AFL-CIO (Union). It should be noted that the Union did not file the charge
on behalf of Long, nor was it a party to the instant proceedings. This charge was
docketed by the Region as Case No. 6-CA-1203.
On January 8, 1958, George W. Tompkins filed a charge with the Sixth Region
of the Board alleging that he had been discriminatorily discharged by the Respond-
ent in violation of the Act because of his activities on behalf of the Union. The
discharge occurring on August 31, 1957, more than 4 months before the charge
was filed. The Union did not file the charge nor was it a party to the instant
proceedings. This charge was docketed as Case No. 6-CA-1251.
Under date of July 23, 1958, the Sixth Region of the Board (Pittsburgh, Penn-
sylvania), issued a consolidated complaint, in the two cases (6-CA-1203 and
6-CA-1251 ) alleging in effect that the Respondent had discriminatorily discharged
Long and Tompkins and had engaged in certain other unlawful conduct, all vio-
lative of Section 8(a)(1) and (3) of the Act.
Unlawful conduct and knowledge of the union activities of employees was
attributed to one Francis Gerhard alleged to be a supervisor within the meaning
of the Act.
No unlawful conduct was alleged nor was any attempt made to show such con-
duct by any other person than Gerhard.
Norman West testified without contradiction that he is an International repre-
sentative of the Union; that in mid-August 1957, he began an organizational
effort among the Respondent's employees by "hand billing" the plant, the "hand
bills" he distributed consisted of a leaflet to which was attached an application
for union membership, self-addressed to the Union's Pittsburgh office; that on
the day he distributed the handbills at about 3:30 p.m. he learned that the second
shift employees could best be contacted at 8 p.m. which was their dinner hour
and accordingly made a second trip to the plant that day at about 7:30 p.m. and
contacted various of the second shift employees. He testified:
One of them was Mr. Long and the other one was Nettie Mitchell. And I
give them a handbill with a card attached to it. Long asked me what he
could do to help me organize this plant. I told him that if he would get
me some authorization cards signed-they already had the address-just drop
them in the box and they would come to me. And I went back to my car
and got him some more cards and give them to him. He got some and so
did Nettie Mitchell.
West further testified this was the first time he ever saw Long and did not see
him again prior to August 31 (the day Long was discharged).
West testified that on August 27, 1957, he filed a petition for representation
of the Respondent's employees in the office of the Sixth Region of the Board and
on the same day sent a letter to the Respondent requesting recognition; that at
the time he filed the petition in the Board's office he also submitted 22 signed
"application cards" to substantiate the Union's claim to representation; that "on
the next day [after filing the petition] or the day after that" he received a tele-
phone call from the Respondent's attorney who offered to recognize the Union
on a card check; that on the same day he and the Respondent's attorney visited
the Board's office and discussed the matter with a representative of the General
Counsel.
Harry Pollock, the Respondent's attorney testified without contradiction, that
on August 29, 1957, the day after the Respondent received the Union's request
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for recognition, he telephoned and later met with West and offered to recognize
the Union on a card check; ,that he and West then called at the Board's office,
the same day, and agreed to a consent election under Board auspices.'
As indicated above the General Counsel contends that Francis S. Gerhard was
at the time material herein a supervisory official whose knowledge and acts are to
be attributed to the Respondent, however, in the considered opinion of the Trial
Examiner, the evidence clearly shows that Gerhard was merely a channel of
contact between a very limited group of the Respondent's employees and the
actual supervisors of the plant; that he could exercise no independent judgment
as to the work performed in the plant nor exercise any real authority over em-
ployees to whom he merely conveyed instructions given him by the real supervisor
of the plant.2
Assuming, arguendo, that the General Counsel's contention as to Gerhard's
supervisory status is correct, the final finding on all the evidence would be the
same, as will be shown later herein.
With respect to Gerhard's supervisory status Long (the alleged 8(a)(3) in
6-CA-1203) testified that Gerhard was "shipper and receiver" on the second
shift. He testified:
Q. Would he do any other work besides shipping and receiving?
The EXAMINER: I don't know what shipping and receiving means. If you
are going to go through Gerhard's work again, get it in by specific things that
he did and did not by-
Mr. WEINTRAUB: All right.
What did you ever observe Mr. Gerhard doing?
The WITNESS: He give me my check, that is one thing.
By Mr. Weintraub:
Q. He what?
A. He give me my pay check, that was one thing.
Q. Yes.
A. And we would load-he would load trucks with us.
Q. Yes.
A. And if there would be a special order or something, he would set a
machine up and cut it out himself.
Q. Yes.
A. He would bundle it and ship it out.
Q. Did he train employees on their jobs?
A. Not always-I don't know.
Q. Well, did he show you what to do?
A. Yes, he showed me how to bundle, how to tie the knot and bundle.
Mr. POLLOCK: How to what?
The WITNESS: To tie the knot when they bundled the bundle.
The EXAMINER: How long did he instruct you in that?
The WITNESS: Well, it doesn't take very much to learn that work.
The EXAMINER: I asked you, how much time did he spend teaching you
about those knots?
The WITNESS: About twenty minutes.
The EXAMINER: About twenty minutes? All the time you worked there
he taught you knots for twenty minutes?
The WITNESS: Yes, sir.
The EXAMINER: What else did he teach you?
The WITNESS: That is all.
Long testified that he was discharged on August 31, 1957, after having been in
the Respondent's employ for some 6 weeks, his work being tying up bundles and
helping to load and unload trucks.
With respect to his membership in, and activity on behalf of, the Union Long
further testified that organization of the Union among the Respondent's employees
began "around the middle of August 1957"; that his first contact with the Union
was through Norman West, the Union's representative who was distributing litera-
ture in the Company's parking lot. Long testified:
L The Union withdrew its original petition and filed an amended petition changing the
requested unit . The election was held . The employees designated the Union . A contract
was entered into between the Respondent and the Union.
2 For a discussion of status of lead employees of limited authority see Brotherhood of
Boilermakers v. N.L.R.B., 259 F. 2d 957 (C.A., D.C.), and cases cited therein.
CROWN CORRUGATED CONTAINER, INC. 327
It was dinnertime, and we usually ate out on the dock, where it was cool,
and we seen Norman West up in the parking lot with another fellow, and
he motioned for us to come up. So Nettie Mitchell and I walked up to
him, and he gave us a pamphlet stating what the union had to offer.
Long, corroborated by others, fixed "dinner time" for the second shift, on
which he worked and which consisted of about 10 employees, to be at 8 p.m.
Long clearly sought to create the impression that he talked to West and was
given cards to distribute while in the presence of other employees, but finally
admitted that only he and Mitchell were present when he talked to West but that
the others "wasn't there yet."
Long admitted that he met West on only two occasions, once when he was
given the union cards above referred to and again when a representation election
was held in the plant.
Long testified that on the same day he received the application cards from
West he distributed them among the second shift employees. He testified:
The EXAMINER: And did you distribute cards any other time than that one
day?
The WITNESS: No.
The EXAMINER: Just that one time?
The WITNESS: Just that one time.
The EXAMINER: That was the same day that they were given to you?
The WITNESS: Yes, sir.
The EXAMINER: Thank you.
He named the employees to whom he gave cards as being "Jack Mizikar, Lillian
Hope, Pete Banashak, George Tompkins-and myself."
He also explained he confined his distribution to only these employees:
Because Frank and John were going to dinner, and Norman West had tried
to talk to them and give them cards, and they kept going on for dinner and
I knowed there was no use there. And Nettie Mitchell had her own, and I
figured that she rode with Helen Wingrove and that night would give her a
card.
As to those to whom Long allegedly distributed the Union's application cards,
Banashak was not called. Charles J. Mizikar, a young man who quit his employ-
ment with the Respondent on or about August 31 to attend college testified that
he was given two union cards; he testified that Long "never handed me a card
and asked me to sign" and further testified that he did not remember "whether
he [Long] asked you to sign a card without handing you a card?" Mizikar also
testified that Long suggested he sign a union card but "I can't tell you all the
details but I can say at dinner time, as he had said, everyone talked about unions";
that Long "advised every one to sign" a card but that the request was not addressed
to him "personally" and that during these conversations "he may have handed
them [cards] to others, but he did not hand one to me."
Clearly the young witness sought to be all things to all men. His testimony
does not corroborate Long's testimony that he gave a union card to Mizikar or
asked him to sign one.
Lillian Hope, to whom Long claims to have given a union application card
testified:
Q. Did you know Mr. Long in August of 1957?
A. I knew him when I came to work, yes.
Q. Did he ever discuss union matters with you?
A. No.
Q. Did he ever give you a union card?
A. To the best of my knowledge, I have never had a union card, no.
Long testified that the day after he received the Union's application card from
West he mailed it to the Union in Pittsburgh
Long's direct testimony indicated that he "distributed cards" only on the first
day he received them from West, which was according to West, "about two weeks"
before August 27, the day the 9(c) petition herein referred to was filed, however,
on redirect examination he "amended" his testimony to be that he also distributed
cards on August 27 fixing the date by the fact that George W. Tompkins and
William Myers started to work that day; that he gave two union application cards
to Tompkins "because he was a new man on that day," and that:
I told him that one was for him, and one he was to give Myers on the third
shift.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The affidavit which Long made at the time he filed the charge in 6-CA-1203,
on November 21, 1957, a scant 3 months after the events related therein 3 and
which came into the record by virtue of the Ra-Rich ruling, (120 NLRB 1444)
reads inter alia:
That same evening I started getting the employees to sign cards. I did this
only during the dinner hour. I signed a card myself and I gave cards to
Martin Banashak, William Myers, and two employees called George and
Pete, I forgot their last names. The employee called George took a number
of the cards I had and passed them out among other employees. (Emphasis
supplied.)
From other references in the document it is clear that "George" refers to George
W. Tompkins.
The second affidavit 4 made by Long on April 4, 1958, 4 months after the first
and 7 months after the event reads:
The day I gave union cards to George Tompkins was Tuesday, August 27,
1957. I did this before we started work, on second shift. I gave him two
cards, one for himself and one for Bill Myers. The reason 1 gave George
a card for Myers was that they both worked at the 'back of the building, and
I was working on the taper at the front of the building.5
On the entire record considered as a whole and from his observation of the
witness, the Trial Examiner cannot be persuaded that Long's testimony to the
effect that he distributed the Union's application cards to any of his fellow em-
ployees relates anything other than sheer fabrication. The Trial Examiner be-
lieves that it is fair to infer that at the time Long asked Union Representative
West for the Union's applications and offered to "help" he was merely throwing
an anchor to windward and thereafter did no more than sign a card and join in
the general discussion regarding the Union which was going on in the plant.
Long testified that at 5 p.m. on August 28, 1957, Gerhard came to him and
asked him, "How would you like to take a job on the slitter."
The "slitter" was a machine used for scoring and cutting cardboard.
Long testified that after Gerhard's inquiry:
I told Frank I was satisfied and didn't think I was capable of running the
slitter.
Q. Did Mr. Gerhard make any reply to this?
A. Yes, he told me that was all right; he would get someone else.
Q. And what happened then?
A. He immediately walked away.
Long further testified that at around 7 p.m., of the same day, Gerhard again
came to him and asked "what the hell did you give Myers the union card for" to
which, according to Long, he replied "that I didn't."
In his November 21 affidavit 6 Long avers that Gerhard asked why he gave the
union card to Myers, "While I was at work Tuesday, August 27," and on "the
next night Foreman Gerhard asked me if I would take another job on the slitter."
It should be noted that this places the inquiry before Myers received the card.
In his second affidavit, dated April 4, 1958,7 Long reverses the dates, averring
that "I gave the union cards to George Tompkins was Tuesday August 27, 1957,"
and that he was offered the slitter job on Wednesday, August 28.
The necessity for the "correction" is obvious.
Long further testified that at 10 minutes before midnight of Saturday, August
31, 1957 (midnight being the end of his shift), Gerhard called him aside and
said "Bill I would like to talk to you," then continued, "Bill, I hate to do this.
You was one of my best workers, but they told me to lay you off."
According to Long:
Then I asked Frank if it was over the union cards, and he said he wouldn't
say, and then-so I gave him my bundling glove and the twine knife and I
walked towards the time, where they keep the time cards, and Frank was
Respondent's Exhibit No. 1.
Respondent's Exhibit No. 2.
s The Trial Examiner will discuss the testimony of Tompkins and Myers at a later
point herein.
6 Respondent's Exhibit No. 1.
7 Respondent's Exhibit No. 2.
CROWN CORRUGATED CONTAINER, INC. 329
walking alongside me, and he asked me if George had anything to do with
these union cards. And I told him, "He did, that he was the one gave Myers
the union card." (Emphasis supplied.)
In his November 21, 1957, affidavit Long avers:
A few minutes before quitting time Foreman Gerhard told me that I was
being laid off. He said "They told me to lay you off." I asked him why
and he said he did not know. We walked together to the time clock and
he said to me "Did George have anything to do with those cards." I told him
"Yes" but he said no more. (Emphasis supplied.)
In his April 4, 1958, affidavit Long avers:
The day Francis Gerhard asked me to take a job on the slitter was Wednes-
day. I think now it was the same evening, Wednesday that Gerhard asked
me about giving a card to Myers. I believe he asked me about the card
about half an hour before he asked me to take the slitter job. I denied giving
Myers a card, but I did not tell him that George had passed the card to
Myers. [Emphasis supplied.]
We thus have three versions of the same event from the witness upon whose
testimony the General Counsel bases his case.
The more one studies the three versions, the more is revealed.
Long further testified that as he was leaving, Gerhard "told me to tell Ed. Pence
to keep quiet or he was going to get the same thing."
Francis S. Gerhard testified that he knew in August that there was an effort
made to organize the employees in the plant.
Various witnesses testified that the matter of union organization was being dis-
cussed freely among the employees from the first appearance of Union Repre-
sentative West.
With respect to the offer of the job on the slitter as made to Long, Gerhard
testified:
Q. What did you tell him?
A. I told him that Mr. Leonard wanted him to work on the slitter.
Q. And did he accept or refuse?
A. He refused.
The record is clear that Robert J. Leonard is a vice president of the Respondent
and was in charge of the operations in the Respondent's plant in August 1957.
According to Gerhard upon Long's declining the job on the slitter:
I just told him I would tell Mr. Leonard what he said.
Gerhard testified that at the time of Long's discharge "I told him that Mr.
Leonard told me to lay him off"; that "he asked me why, and I told him he would
have to see Mr. Leonard."
Gerhard specifically denied that Long asked him "if his discharge had anything
to do about union cards." Gerhard further testified:
Q. Did you ever ask Mr. Long, while he was at work, why he gave a
union card to Myers?
A. No, sir.
He denied that he asked Long whether Tompkins had anything to do with the
circulation of union cards. He denied making any statement to Long to the effect
that Ed Pence should keep quiet or "he was going to get the same." With respect
to any conversation with Long after he had delivered the discharge order to him,
Gerhard testified:
I walked out on the dock and Bill says, he says, "I know why I was fired."
He says, "I was fired because of the union."
I says, "No, you weren't."
That is all the conversation I had with him.
As between Long and Gerhard the Trial Examiner credits Gerhard.
Gerhard seems to have spoken strictly in character, as one delivering a dis-
tasteful message from a superior to a man he had originally helped to get the
job from which he was being discharged.. He impressed the Trial Examiner as
a reliable witness. On the contrary Long's testimony was self-contradictory,
liberally sprinkled with volunteered, self-serving wholly irrelevant statements of
such a nature as to create the impression with the Trial Examiner that Long con-
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sidered he was well versed in the legal requirements necessary to make out a case
for himself and in lieu of evidence sought to use his knowledge for his advantage
by means of volunteered statements , self-serving declarations , and testimony which
can be characterized only as deliberate distortion and outright fabrication. That
portion of Long's testimony quoted herein , in the opinion of the Trial Examiner,
is typical and an accurate gauge of his credibility , therefore as Long did not
impress the Trial Examiner as a reliable witness, while Gerhard did, as between
the two witnesses the Trial Examiner credits Gerhard and finds his account of
the incidents surrounding Long's discharge to be the accurate version thereof.
Although in the opinion of the Trial Examiner the record clearly shows that
the General Counsel 's contention Long was discharged because of his membership
in, and activities on behalf of , the Union cannot ( a) be premised on the Respond-
ent's union animosity directed against Long because he was a union "hot shot,"
actively engaged in an unwanted union organizational campaign , or premised (b)
the "fact" that one of the Respondent 's supervisors disclosed the discriminatory
motive to Long at the time of his discharge , however, although the Trial Examiner
has found that Long did nothing of unusual or notable importance in the Union's
organizational effort and that the Respondent disclosed no discriminatory motive
to him yet if it appears that the Respondent with or without any reasonable cause
believed that Long had engaged in protected union activity and discharged him
therefore with or without disclosing its illegal motive to him, the Respondent
would have engaged in conduct violative of the Act.
Julius Sheps the Respondent 's president testified that Charles J. Mizikar who
operated the "slitter" machine informed the Respondent that he was quitting to
go to college ( this was corroborated by Mizikar ) and it was necessary to replace
him, preferably while Mizikar could still train his replacement . It was decided
to offer the job to Long. That after Long refused the job:
At our officers' meetings , which are held either Thursday evenings or Saturday
afternoon , it was brought up for discussion that Mr. Long did not wish to
take a promotion to a more skillful job of running the slitter , and it was
decided among the officers that in view of the small plant that we had, we
could ill afford to have anyone
-who would be satisfied to do a menial job of bundling which normally was
the work of women. We could not see where whatever money and time that
was spent in attempting to keep him on the payroll would result in any
advancement for him, or benefit for the company, if he was satisfied with
what he was doing at the rate of $1.10 an hour.
Considering the size of the Respondent 's plant, and the fact that its principal
stockholders actively operated it the explanation is understandable.
Conclusion as to the Alleged Discriminatory Discharge of William V. Long
In order to arrive at a conclusion that the Respondent discharged Long dis-
criminatorily the Trial Examiner must infer, largely on Long's discredited testimony,
that the Respondent which showed no hostility toward union organization, and
offered to recognize the Union on a card check the day following its receipt of the
Union 's claim of majority status , mailed to the Respondent on August 27, and
whose attorney on the same day visited the Board's Regional Office together with
the Union 's representative and agreed to enter into a consent-election agreement,
which was delayed until September 13, because the Union filed an amended 9(e)
petition changing the unit first claimed , and which is not alleged to have engaged
in any unfair labor practice or union hostility except that alleged on the strength
of Long's 8 testimony, suddenly abandoned its correct attitude, not by conduct
directed against the Union but directed against Long. Why? To punish a "union
agitator ," who in fact did not produce one witness to his claimed union activity?
To intimidate its employees whose Union it had already offered to recognize?
The Respondent fulfilled its offered agreement to recognize the Union, the
Union won its election , obtained a contract but did not file a charge in behalf of
Long.
In the opinion of the Trial Examiner the Regional Office "was took."
Clearly the General Counsel did not sustain any of the allegations as to
6-CA-1203 by evidence.
e A]so Tompkins ' testimony , later discussed.
CROWN CORRUGATED CONTAINER, INC. 331
Case No. 6-CA-1251
As found hereinabove George W. Tompkins was first employed by the Re-
spondent on Monday, August 26, 1957, and discharged at the end of the week
Saturday, August 31, 1957. On January 8, 1958, he filed a charge as an individual
in Region six of the Board alleging that the August 31, 1957, discharge was
discriminatory.
At the hearing Tompkins testified on cross-examination:
As of August 31, 1957 to the present day, I don't even-I didn't even know
they had a union in there until yesterday, I found out that they had a union
in there.
He further testified he did not sign an application card for the Union, but gave
such a card to William Myers at Long's request.
Although the Trial Examiner does not credit Long's testimony, Tompkins'
version of his delivering an application card to Myers at Long's request should
be examined.
Tompkins testified he was hired on Monday, August 26, 1957, and started work
the same day at 3:30 p.m. being taken to his job directly from the office after
being hired; that he loaded and unloaded trucks during the entire shift; that on
Tuesday (August 27) his second day in the plant, Long, whom he then knew only
as "Bill";
He gave me two union cards and he says, "One is for you. Fill it out and
send it in. And," he says, "the other one, give it to Myers."
that Long then told him where he would find Myers. According to Tompkins:
So I went about my work, and that, and then I came out, and Myers was
sitting on the loading dock, and I gave it to him. I said, "Hey, Myers, Bill
gave me this to give to you."
He says, "What is it for?"
I said, "I don't know exactly. It is about the union, getting the union in
here of something. I don't know too much about it," I said, "and if you
don't understand it," I said, "see Bill."
He said, "Oh, yeah, I know what it is. Thanks a lot."
Tompkins admitted that he did not know Myers, that Myers began work at
midnight when Tompkins' shift ended, and when he allegedly handed him the
card "that is the only time I seen him."
William Myers testified he was employed as a janitor by the Respondent from
August to November 1957, working from "midnight till 7 a.m.," being ordinarily
alone in the plant during these hours; that at a time fixed only as "during the
month of August 1957" he was given "an application to the union" by one of the
employees whom he no longer remembered; that he did not know Tompkins
during his employment by the Respondent.
Tompkins testified further that on Wednesday night (August 28) Gerhard asked
him if he would be willing to work on the slitter; that he first asked Gerhard
"what is the slitter" and after being told it was a machine to cut and score paper
agreed to try the job.
Almost in the next breath after having testified that when he was offered the
job on the slitter on Wednesday, which by the way he called a "slotter" at several
points in his testimony, Tompkins testified that on his second day of employment
by the Respondent "I was a helper on the slotter."
The Trial Examiner wishing only to correct what seemed an inadvertent error
as to the day asked:
The EXAMINER: That was on a Wednesday?
The WITNESS: No, sir, on a Tuesday.
Further questioning developed that being a "helper on the Blotter" meant only that
Tompkins carried material away from the machine. He testified:
The EXAMINER: You mean you took it off after it was, after-when it was
finished it came out of the machine and then you took it off?
The WITNESS: Yes, sir, off the conveyer.
The EXAMINER: You picked it off the conveyer and put it somewhere else?
The WITNESS: Yes, sir.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tompkins testified that on Wednesday, his third day, "I was on the slitter," that:
Well, I was taught how to change the blades and how to set up the machine
for the various orders, and I also caught the cardboard after it came through
the machine and put it on the pallet.
The Trial Examiner then asked:
How much time was spent in teaching you how to set up the machine?
Tompkins' actual training on the machine on Wednesday was "a couple of hours,"
and as for operation:
The WITNESS: I ran a few pieces of cardboard through.
The EXAMINER: How many pieces do you mean by a "few"?
The WITNESS: Maybe ten or twelve.
The EXAMINER: How long would that take?
The WITNESS: I wouldn't say even a minute.
The record is somewhat confused at this point as to time, it may be interpreted
to be that the above work was done Thursday, Long's fourth day in the plant.
However, he testified that on the fifth day of his employment in the plant he
worked on the slitter with Mizikar who was his instructor "until about 10 p.m."
and thereafter until midnight "I was on my own" but admitted that Mizikar
"watched every move I made."
Tompkins testified that on Saturday, his last day with the Respondent, "I was
strictly on my own, I ran 3 inch door strips."
Tompkins testified in detail regarding the operation of the slitter, Gerhard's
control over its operations, and its operators, and as to the procedure "always"
used.
The Trial Examiner at this point questioned Tompkins as follows:
The EXAMINER: Now, I don't want to seem that I am cross-examining this
witness but I want the record right. You worked there one week?
The WITNESS: Yes, sir.
The EXAMINER: And when you say there "always" was, you are only
speaking of what you know?
Mr. WEINTRAUB: That is all he can testify to.
The EXAMINER: From Wednesday, Thursday and Friday, isn't that right?
The WITNESS: That is all I can say.
The EXAMINER: All right, I just want to be sure.
Tompkins further testified:
Well, the records-I mean, the orders was on this clipboard and we always
worked from the ones on the top, then the next and the next. But if there
was any variation, or any orders to be pulled from the bottom or in between
to go out before all the rest, Mr. Frank Gerhard would notify us.
* * * * * *
The EXAMINER: Did that happen during the day? (Thursday)
The WITNESS: Well Mr. Frank Gerhard-
The EXAMINER: Just answer the question. Did he come during that day,
Thursday? That is the day that you worked on that machine. Did he come
there and pull any of those out from the bottom and tell you,to change it?
The WITNESS: He told Mr. Mizikar.
The EXAMINER: He did?
The WITNESS: Yes, sir.
The EXAMINER: And when you were working the machine alone, as you
say, on the last day, did he do it to you?
The WITNESS: No, Sir, because we was on the one order.
It is quite understandable that Tompkins would try to picture his employment
with the Respondent as important as possible, but the sum of his testimony is that
he was employed as a laborer, given an opportunity to work on a machine, received
some 2 or 3 hours' training during which he operated the machine under close
supervision and then operated it alone during a single day.
It is also natural that Tompkins adopted the General Counsel's contention as to
Gerhard's status but here he attempted much more than the slanting of testimony.
Tompkins further testified that after 8:30 p.m. Thursday (August 29) Gerhard
volunteered the following advice to him:
CROWN CORRUGATED CONTAINER, INC. 333
By Mr. Weintraub:
Q. What did Mr. Gerhard say to you?
A. He told me that it is best to don't say anything about getting the union
in here, and that, because there was trouble before and some of the fellows
lost their jobs. Just who it was, I don't know, who lost their jobs.
The EXAMINER: Did he say "I don't know who lost their jobs," or is that
your own observation?
The WITNESS: That is my own observation.
The EXAMINER: All right. That portion of the witness' statement, to the
extent that he said "I don't know who lost their jobs," may be stricken.
Tompkins then continued:
By Mr. Weintraub:
Q. Mr. Tompkins.
A. Yes, sir.
Q. Did he say anything further?
A. Yes, sir.
Q. What did he say?
A. He says, "As for me," he says, "I am in favor of the union getting in
down here but due to my position 1 cannot say anything."
Q. Was anything more said at that time?
A. Not to my knowledge; no, sir.
According to Tompkins, "just before quitting time" Saturday, August 31, he
was told by Gerhard that he (Tompkins) was being laid off.
The Trial Examiner will condense the very meticulously detailed conversation
between the two men as Tompkins allegedly recalled it.
It should be said that Tompkins throughout his testimony remembered the
minutest details of conversations, of which only the bare outlines have been cited
herein.
According to Tompkins after being told of his layoff Tompkins asked the reason
and was told "you know." He again asked for an explanation, Gerhard's reply
again was "you know why." On a third questioning, as Tompkins was leaving,
according to the witness after quite a voluble exchange Gerhard told him Long
was also being discharge and:
I says, "Who is Long?"
He says, "Bill, that works on the taper," and he pointed to the taping
machine. Then it dawned on me about the union card I had given Mr. Myers.
I said, "Was it about getting the union or something in here, union activities?"
He says, "Yeah, that is it."
He said, "Mr. Leonard told him, and the order probably came from Mr.
Sheps."
Tompkins testified further that just before he left he had another conversation
with Gerhard which closed as follows:
"Well," he says, "you guys ain't the only ones." He said, "Ed Pence will be
getting it next if he don't watch out."
Gerhard testified he told Tompkins that Leonard had instructed him to tell
Tompkins he was being laid off; that Tompkins asked the reason and he replied
Tompkins would have to see Leonard; he denied making any statements to Tomp-
kins to the effect that the discharge was in any manner due to his activity on
behalf of the Union.
In order to credit Tompkins as to the statements attributed to Gerhard in the
various conversations Tompkins recalled in such minute detail, the Trial Examiner
must first be persuaded that Gerhard, to whom no antiunion or prounion bias or
conduct was attributed by any other employee, and who was at least in sight of
the road to success in the Respondent's plant, would go out of his way to warn a
stranger who had been in the plant some 3 days not to "say anything about getting
a union in here, because there was trouble here before and some of the fellows
lost their jobs." Especially so since the record is clear that the Respondent Company
was organized and "started fresh" in November 1955, that it did not reach a total
of 30 employees until August 1957, that no previous attempt at union organization
had been made among the employees, and that Gerhard started to work for the
Respondent in May 1956 and'should have been conversant with the plant's labor
relations history. The Trial Examiner must also be persuaded that Gerhard would
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have told the new employee that he (Gerhard) was strongly in favor of union
organization of the employees and that finally when delivering the discharge notice
would have told the 6-day employee that his discharge was because of this em-
ployee's union activity and then carefully pointed out that the order probably
came from Mr. Sheps, the Respondent's president.
Had Gerhard been privy to the Respondent' s meetings with Union Representa-
tive West he would have known that on the day he allegedly warned Tompkins
not to say anything about getting a union, the Respondent had offered to recognize
the Union on a card check.
The Trial Examiner is surprised that so armed with the statements made to him
by Gerhard, the Charging Party, Tompkins, waited from August 31, 1957, until
January 8, 1958, to file a charge alleging his discriminatory discharge.
Despite Tompkins' amazing memory for the minute details of his conversations
with Gerhard as above related the Trial Examiner is not at all persuaded.
On cross-examination Tompkins testified that sometime after his discharge he
returned to the plant and talked about his discharge to Vice President Leonard.
He testified:
I asked him, I said, "Sir," I said, "I was laid off Saturday evening. Frank
Gerhard told me that I was laid off."
He said, "Well?"
I says, "I understand it was about getting this union going." I says, "Is
this the reason?" I pulled out the union card, out of my pocket.
He said, "What is that?"
I said, "The union card that was given to me."
He said, "No," he says, "it wasn't that."
I says, "Then what is the reason?" I says, "What is the reason I was laid
off?"
He said, "Lack of orders. And," he says, "when you don't have orders
coming in you don't have work for the men, and when you don't have work
for the men you have to leave some go by."
The Trial Examiner fails to understand Tompkins' motive in keeping the union
application card, allegedly given him by Long on August 27, until after his discharge
on August 31 when admittedly he did not sign it and apparently had no intention
of doing so.
Tompkins would have one believe that after having been strongly warned against
any show of union sympathy by his alleged supervisor on August 28, he still did
not dispose of the card although the alleged supervisor told him employees had
been discharged for union sympathy.
However, Tompkins' detailed testimony with respect to his conversation with
Leonard does not spell out an unfair labor practice or even show union animus.
He admitted that Leonard denied that union activity had anything to do with the
discharge and stated to him:
that he has nothing against the union and some day the union will come in
here, and you cannot stop progress.
On cross-examination Tompkins was asked:
Now, Mr. Tompkins, while you were there talking with Mr. Leonard did you
not say to Mr. Leonard that you were afraid that your wife would think you
were lazy and did not want to work, and ask if it was okay for your wife to
call him with respect to the reason for your discharge?
Tompkins admitted making the request but added that "my wife did not call him."
Tompkins after his cross-examination by Respondent 9 was recalled by the
General Counsel for redirect testimony. On redirect examination Tompkins
seemed more certain and was quite detailed as to his conversation with Leonard.
He testified that "I pulled out the union card" and:
I says, "It is a union card which was given to me to be signed, and I did not
send it in, but I understand there is union activities going around the plant
and at one time there was a man by the name of Tom tried to get a union in
down here.
9 The Trial Examiner permitted the cross-examination to go outside the direct testimony
giving the witness to the Respondent "for all purposes."
CROWN CORRUGATED CONTAINER, INC. 335
He repeated the conversation at a later point as follows:
The WITNESS : I said, "That is a union card that was given to me, to be
signed, filled out, and sent in." I said, "I did not fill it out. I did not send
it in. I says, "I had no reputation to get-try to get a union in down there,
but I understand there is a man somewhere down here by the name of Tom
that tried to get the union in down here , and I am not the man."
He says , "No, it is not about the union."
I said, "Well, that is the way I understand Mr. Gerhard told me."
He further testified that he asked Leonard if he might be recalled and that:
He told me, he says , "In the first place, I don 't think you can handle the
machine, and in the second place , I don 't think you can keep up with the
work."
The Respondent did not call Leonard to deny Tompkins ' testimony. It was
hardly necessary.
There is much more testimony by Tompkins , with which the Trial Examiner
will not burden this Report . Suffice to say the testimony , while on irrelevant
matters, clearly shows the unreliable character of the witness.
One contradiction bears noting . Tompkins , who so clearly recalled casual
conversations and remarks in meticulous detail , testified he executed two affidavits
for the General Counsel . The General Counsel 's representative at the hearing
stated on the record that his file showed but one.
Under the Act the Respondent could have discharged Tompkins ( and Long)
for any reason whatever , or for no reason at all except for concerted activity, union
membership or activity on behalf of a union.
If Tompkins ( or Long ) was discharged in violation of the Act , the Respondent's
motive could have been but one of two reasons ( 1) in order to thwart the forma-
tion of a union of its employees , or (2) to punish employees engaging in such
organizational activity.
The record shows that before Tompkins ( or Long ), was discharged the Re-
spondent had offered to recognize the Union on proof of majority, had not in any
manner combatted employee organization , and is not alleged to have done so,
(b) the Respondent had no knowledge of any union activity on the part of Tomp-
kins (or Long ) for the good and sufficient reason that neither Tompkins nor
Long engaged in any such activity.
The Respondent advanced the following reason for Tompkins ' discharge.
Melvin Wolpert, a vice president of the Respondent, testified that President
Sheps after going through the plant on Saturday , August 31 , asked Leonard and
himself to come into the plant and:
Mr. Leonard and I went out into the plant, and what we saw was-as I
recall, that was the first day that Mr . Tompkins actually ran this machine,
after being partially trained by Mr. Mizikar , and it was a rather awkward
operation . It is a right -hand guide machine, and at that time it was noticed
that Mr. Tompkins was left-handed , and Mr. Sheps asked me and Mr.
Leonard, "Does it make any difference ? Can a left-handed man do this?
And can he do it?"
The answer would be sure, but he couldn't do it efficiently , couldn't get
the proper speed from the machine . It is a hand -fed machine as compared
to most other machines in the plant that are mechanically fed. And in order
to hand-feed this machine with a right-hand guide , it should be done with a
right-handed person . I have never seen a left-handed slitter operator since 1
have been in the business.
President Sheps testified that after noting that Tompkins was not adept on the
slitter:
I felt that it was not to our interest in the matter of good business to let him
continue . And the officers of the company discussed that also, and Mr.
Leonard was-who was then the plant foreman-was instructed to discharge
Mr. Tompkins.
Tompkins ' testimony that Leonard told him that "I don't think you can handle
the machine" tends to corroborate the Respondent.
At the close of the hearing the Trial Examiner was of the opinion that the
complaint was not sustained by the evidence . The proof , in the opinion of the
Trial Examiner failed completely to in any way show any unfair labor practice
as alleged.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In dismissing the complaint at the hearing the Trial Examiner stated inter alia:
Ordinarily a Trial Examiner just says, "Motion reserved." But there comes a
time when a Trial Examiner can't do that. I am not going to comment on
the evidence at this time, and I am not going to comment on the law at this
time. I will do all of that fully and in detail when I issue the report, because
I will issue the report.
Crown Drug Company and . Retail Clerks International Associa-
tion , Local 782, AFL-CIO, Petitioner . Case No. 17-RC-2783.
March 04, 1959
DECISION AND CERTIFICATION OF RESULTS
OF ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on September 23, 1958, under
the direction and supervision of the Regional Director for the Seven-
teenth Region among the employees in two agreed-upon voting
groups. The results were as follows : In voting group A, with ap-
proximately 216 drug store employees as eligible voters, 181 valid
votes were cast, of which 65 were in favor of, and 114 were against,
the Petitioner, and 2 were challenged. In voting group B, with ap-
proximately 10 pharmacists as eligible voters, 2 valid votes were cast
for, and 7 against, inclusion in the same bargaining unit with the
employees in voting group A; and 1 valid vote was cast for, and 7
against, separate representation by the Petitioner.
On September 26, 1958, the Petitioner timely filed objections to
conduct affecting the results of the election. In accordance with the
Rules and Regulations of the Board, the Regional Director con-
ducted an investigation of the objections and, on December 4, 1958,
issued and served on the parties his report on objections. In his
report, the Regional Director concluded that the objections lacked
merit and recommended that they be overruled. On December 8,
1958, the Petitioner filed timely exceptions to the Regional Director's
report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
Upon the basis of the entire record in this case, the Board finds the
following :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
123 NLRB No. 44.