Federal Paper Board Co., Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 30, 1973206 N.L.R.B. 681 (N.L.R.B. 1973) Copy Citation FEDERAL PAPER BOARD CO., INC. 681 Federal Paper Board Company , Inc. and Atlanta Print- ing Specialties & Paper Products Local Union # 527, affiliated with Southeastern Printing Special- ties District Council S-7, subordinate to Internation- al Pressmen & Assistants' Union of North America, AFL-CIO. Cases 10-CA-10035 and 10-CA-10081 mitted certain allegations but denied that it committed any unfair labor practices. After the trial, the General Counsel and Respondent filed briefs which have been carefully con- sidered. Upon the entire record herein, and consideration of the beefs and from my observation of the demeanor of the witnesses as they testified, I make the following: October 30, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On June 21, 1973, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Federal Paper Board Com- pany, Inc., Thomaston, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was tried in Thomaston, Georgia, on May 15, 1473, pur- suant to charges filed on March 9, 1973, and April 5, 1973, a complaint issued thereon by the Regional Director for Region 10 on April 20, 1973, an amended charge dated April 24, 1973, and a consolidated complaint, issued by said Regional Director, on April 26, 1973, alleging that Respon- dent independently violated Section 8(a)(1) by coercively interrogating employees concerning their union activities, and by threatening employees with reprisals because of their union activities, and Section 8(a)(3) by refusing to hire a job applicant, James Williams, because he was related to a union supporter.' In its duly filed answer, Respondent ad- FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Respondent is a Georgia corporation, with an office and plant located at Thomaston, Georgia, where it is engaged in manufacturing paper board. During the past calendar year, a representative period, Respondent sold and shipped fin- ished products valued in excess of $50,000 directly to cus- tomers located outside the State of Georgia. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Atlanta Printing Specialties & Paper Products Local Union # 527, affiliated with Southeastern Printing Specialties Dis- trict Council S-7, Subordinate to International Pressmen & Assistants' Union of North America, AFL-CIO, herein re- ferred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background For the past 7 years, the Charging Union has been en- gaged in an, as yet, unsuccessful organization drive among Respondent's Holly Spring employees. Dating back to 1966, there -have been three elections involving said employees, and as of the date of the hearing, a fourth was scheduled for May 24, 19732 The bulk of the alleged misconduct which forms the basis of the instant complaint occurred in mid-March 1973.3 The General Counsel adverts to no evidence that a history of unfair labor practices exists at the plant or that Respondent engaged in any unlawful conduct with respect to past orga- nizational campaigns. The record contains little evidence bearing upon the nature of the more recent campaign, but it does appear that the Union, by mail, sent Mr. Kenneth ' At the hearing, the Respondent's unopposed motion to strike certain, allegations, of the complaint, as to which no evidence was adduced, was granted. The stricken allegations consisted of an instance of interrogation attributed to Supervisor 'Bonnie =Burgess, an expression by Weaver as to -the futility of employee organization allegedly made in cenjunotion with,prom- ises of benefit, and solicitation of surveillance and antiunion activity by emzployees attributed to both Weaver and Burgess. Although there is some controversy as to; whether the Union's organiza- tion campaign was an,ongoing venture over the past 7 years, or whether it most recently commenced again in the fall of L972, I am satisfied that it had a resurgence in the latter part of 1972 3 Unless otherwise indicated all dates refer to 1973. 206 NLRB No. 100 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johansen, Respondent's plant manager a notification dated March 15, 1973, indicating that certain employees, 41 in all, whose signatures were affixed to that document, had desig- nated the Union. It further appears that, on or about March 19, 1973, the Union circulated a leaflet expressing prounion propaganda and also bearing the signatures of the 41 em-, ployees. Respondent concedes that, following distribution of this literature, various supervisory officials, namely, Plant Superintendent Douglas Weaver, Night Superintendent Bill McClain, and Shipping Department Supervisor Gene Dor- sey 4 participated in discussion with certain employees whose signatures appeared on the above-mentioned docu- ments. Those conversations and another related to the al- leged discrimination against applicant Williams, a few days thereafter, involving Weaver and employees Davis, James Prater, Jr., and Bobby Bankston are the basis for almost all of the allegations in the complaint that Respondent inde- pendently violated Section 8(a)(1) by engaging in coercive interrogation and threats. B. Interference, Restraint, and Coercion 1. The circulation of the union leaflet; management's reaction thereto On March 19, the above-described leaflet was passed out. During that afternoon employee Melvi Fagan, whose signa- ture appeared on that document, was_working, when her machine jammed. Weaver, the plant superintendent, called her off to the side, told her he knew her personally, and asked why she had signed with the Union. Fagan described her reason as based on her interest in job status and her objection to certain working conditions including women being required "to pull out jams." Weaver, being of the opinion that her complaints were "serious," felt that the plant manager should hear of them first-hand. He therefore asked Fagan if she would report these conditions to Plant Manager Johansen. She did so; the conversation with Plant Manager Johansen was limited to her complaints about shop conditions and the Union was not referred to.' Under the circumstances, since Fagan was aware that Weaver knew that she had signed the leaflet circulated that day, I do not find that this questioning either tended to create the impression or was designed to reveal whether or not Fagan was a union member. On the other hand, judging from the entire discussion, I find that Weaver's solicitation of the reasons behind Fagan's union support, having been fol- lowed by a request that she report her grievances to the plant manager, occurred under conditions tending to imply to Fagan that Weaver viewed her complaints favorably. The solicitation of grievances under such circumstances consti- tutes a form of interrogation which tends to unlawfully impede the exercise of Section 7 rights, and I find that Respondent thereby violated Section 8(a)(1) of the Act 6 4 The complaint alleges, the answer admits, and I find that Weaver, Mc- Clain, Dorsey, and Ed Wilson (cutting department foreman), are agents of Respondent and supervisors within the meaning of the Act. s Based upon a composite of testimony of Weaver and Fagan which is not the subject of significant conflict 6 See e .g Associated Mills, Inc, 190 NLRB 113. Employee Alton Harris and his immediate supervisory, McClain testified to an encounter they had on the day after the leaflet was distributed? Thus, McClain called Harris to the stock area, where he, in effect, asked Harris his reasons for union affiliation.8 Harris answered by indicating that he needed better insurance. Apparently, to defend against this assertion, McClain took Harris to his office where he showed the latter a pamphlet concerning the Company's existing insurance program. Harris also testified, but with- out contradiction, that at some point during this conversa- tion, McClain (quite obviously, as an argument against union affiliation) related his experience in another job where, as a pressman in an organized shop, he quit because accused of taking work away from another craft when he himself attempted to replace a blade after the die he was working with broke. Harris further testified that McClain also said that if the Union happened to get into the shop, a cutback in available work for Harris, would necessitate Harris' being sent home. McClain does not deny this aspect of Harris' testimony and it is credited .9 In my opinion, the validity of McClain's questioning of Harris is subject to analysis corresponding fully to the issue arising from similar allegations based on almost contempo- raneous conversations between (1) Weaver and employees James Parker, Archie Snead, and Horace Cleveland and (2) Archie Snead and Shipping Supervisor Gene Dorsey. Ac- cordingly, my conclusions as to the alleged unlawful inter- rogation based on the McClain-Harris conversation will be discussed, infra. In the Dorsey-Snead confrontation, which occurred on March 19, Dorsey, referring to the leaflet, told Snead he was surprised to see his name on it, and asked him why he was for the Union and whether he had anything against the Company. The conversation ended with Snead responding that he signed as a means of getting more money and that he had nothing against the Company.10 In another incident occurring at the close of work on March 19, 1973, Weaver engaged Horace Cleveland, Archie Snead, and James Parks in a conversation at the time- clock.ll Weaver then had the leaflet in his hand which bore 7 As for the timing of this incident, I credit McClain. Harris initially testified that this occurred on March 20, which would be the day after the leaflet's distribution. On cross-examination, however, Harris indicated that the conversation took place on the same day as, and before, the leaflet was distributed I find on the basis of demeanor, and the pattern of conduct revealed through the testimony of other witnesses with which McClain's testimony conforms, that McClain is the more credible of the two witnesses on this point. 8 Harris is discredited insofar as he asserts that he was questioned as to his union membership. I believe that at the time of this incident McClain was fully aware of Harris' union sympathies, and am satisfied that it is unlikely that he would question Harris in this regard. Furthermore, here again, the version of the conversation which I credit is the more plausible when consid- ered against the events as described by the other witnesses for both the General Counsel and Respondent. 9 These final remarks attributed to McClain are not alleged in'the com- plaint to constitute independent unfair labor practices. Nor does the General Counsel make any such argument in its brief. Accordingly, I do not consider the presence of this evidence as a basis for such litigation . However, if such issues were before me, I would find that McClain's remarks were in the nature of legitimate antiunion argument and protected by Section 8(c). 10 Based on a composite of the testimony of Snead and Dorsey. Although Dorsey does not specifically admit or deny that he asked Snead why he was for the Union, I am satisfied and find that he did so. 11 I credit Weaver's version of this incident Cleveland did not testify. FEDERAL PAPER BOARD, CO., INC. 683 the, signature of these three employees. Parks, apparently, under the impression that the leaflet was not in the form he signed, asked Weaver how the latter thought it would be used.12 Weaver replied that he thought that the Union was trying to use the signatures as a basis for creating a band- wagon effect, and that if successful in getting a majority, it was possible that the Union could come into the plant with- out an election. Although Weaver's testimony includes a denial that he asked directly why employees were for the Union, I am satisfied that he did raise the issue at least to Snead, and within earshot of Cleveland. Snead answered, stating that he wanted better wages. Cleveland then in- formed Weaver that he was told by the Union that he should be making $1.60 more per hour. Weaver laughed and said that would be completely out of line, and, in addition, made some computations, explaining that the plant must operate at a certain level of profit to remain competitive. He further stated that if the total payroll exploded by the per- centage figure that Horace Cleveland was talking about, it would be impossible to operate the plant. Finally, Weaver stated that this explosion in wages would get to Mr. Kenne- dy, Respondent's president, and he would not go along with it. The complaint alleges that by Weaver's questioning Cleveland, Parks, and Snead, by McClam's questioning of Harris, and by Dorsey's questioning of Snead as to the reasons behind their union support, Respondent engaged in coercive interrogation in violation of Section 8(a)(1). I find that these allegations are not substantiated. As I understand Board precedent, the questioning of em- ployees, who previously have openly declared their union membership to management, concerning their reasons for jointing the Union, does not constitute a per se violation of the Act.13 Accordingly, the totality of the circumstances must be scrutinized to determine whether solicitation of such information would have a tendency to impede employ- ees in the exercise of their statutory right to join, form, or assist labor organizations. I do not find this to be the case here. The interrogation in issue occurred at a time when em- ployees knew that management had learned of their openly declared union affiliation- Unlike the questioning of Melvi Fagan, which I have heretofore found to have been unlaw- ful, no action was taken by Weaver, Dorsey, or McClain that tended to suggest that the responses of the employees would be aired by and favorably received by management.14 Nor did the questioning occur ? , a context of widespread or serious unfair labor practices, or under conditions which could reasonably be considered as coercive. Instead, the atmosphere in the plant, despite prolonged efforts at organi- zation by the Charging Union, was one of open discussion and debate of the issue, without fear of intimidation. It is true that the complaint alleges an independent 8(a)(1) violation based on a threat of plant closure imputed to Weaver during the conversation with Cleveland, Parks, and Snead. However, I shall recommend dismissal of this allega- tion; for, it is apparent from the credited testimony, that this was not the equivalent of an unconditional threat of plant closure on unionization," but an unambiguous, argumenta tive retort tailored to meet specifically Cleveland's represen- tation as to what the Union had told him in an obvious effort to elicit his vote. This statement by Weaver amounted to the type of argument that the Board has permitted as legitimate campaign dialogue.16 I find that Respondent did not violate Section 8(a)(1) by the statement concerning a possible close down. On balance, and considering the foregoing, and the fact that the Union was a general topic and the subject of free and open discussion in the plant, it is my opinion that the supervisory attempts to elicit the reasons why Harris, Parks, Snead, and Cleveland had signed the leaflet would be taken by these employees, as a casual, nonsystematic personal effort on the part of certain supervisors to combat union propaganda. Where employees are questioned as to their reasons for joining a union, and where, as here, the sole objective conveyed to them through the entire conversation is no more than that management representatives are seek- ing to refute union representations or promises through le- gitimate propaganda, I see these conversations as typical of the temperate and noncoercive everyday dialogue between employees and supervisors as to the pros and cons of union- ization, which this Act does not condemn. The fact that in the course of such a discussion, a prounion employee is questioned as to the basis for his position, should not auto- matically taint the legitimacy of management's participa- tion therein . In sum, since, through the conduct in issue, employees would not assume that the questions were a de- vice whereby management sought to elicit their union lean- ings, and as the conversations were otherwise -free of coercion,17 I shall recommend dismissal of the 8(a)(1) alle- gation based on the questioning of Harris, Parks, Snead, and Cleveland. Parks' testimony was a bareboned account , outlining statements that would substantiate the allegations of the complaint , but reflecting an almost com- plete lack of recollection for the context in which they were made. Archie Snead, on direct examination , simply testified that Weaver asked hun why he was for the Union , making no reference to other comments , including a threat of closedown, attributed by Parks to Weaver. On examination by me Snead did testify to matters generally corroborative of Parks. On balance, I believe that there is no real inconsistency between Weaver's version and that of Parks and Snead; but I regard the former's as being a more complete account, which places certain superficially coercive statements in a context which permits fair evaluation. The General Counsel offered no rebuttal of Weaver's testimony on this regard , and I find it entirely credible. 12 Parks testified that he thought he remembered that Weaver asked him if he signed the leaflet . In view of the vagueness of this testimony and the hazy recollection of Parks apparent from his testimony as a whole, I do not re4ard this portion of his testimony as worthy of credence. 3 See e.g. Flight Safety, Inc, 197 NLRB 223. 2. Weaver's statements concerning the application of James Williams The complaint alleges that Weaver, in violation of Sec- tion 8(a)(1), threatened employees that Respondent would not hire job applicants related to employees who supported the Union. This concerns the effort of James Williams to 14 Cf. The Miller press, 197 NLRB 574. 15 Cf. Crown Laundry & Dry Cleaners, 160 NLRB 746, relied upon by the General Counsel , where the threats found unlawful were not predicated upon unreasonable union demands or assertions, as in the instant case, but state- ments of reprisal based upon employee organization. 16 See e.g. B.F. Goodrich Footwear Company, 201 NLRB 353, Birdsall Con- struction Company, 198 NLRB No. 20. 17 Cf. American United Inns, Inc. d/b/a/ Ramada Inn, 201 NLRB 431. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtain employment with Respondent which later proved fruitless, and which is the subject of an 8(a)(3) allegation. Williams is the nephew of Bobby Bankston, an employee of Respondent and known union supporter. Following Wil- liams' formal appearance at the plant and application for a job on March 15, he received no response from Respondent. On or about March 21, 1973, Bankston, Alton Harris, James Prater, Charlie Montgomery, and certain other employees were on their afternoon break in the canteen. Weaver ap- peared, and at some point a discussion ensued between him and Bankston, portions of which are in conflict . Harris, though called as a witness by the General Counsel was not examined as to this incident. Of the remaining individuals present, only Bankston, Prater, and Weaver testified in this regard. Prater's recollection of this incident was limited to his assertion that Weaver said that "he wasn't for anybody that was for the union . And it wasn't his intention to hire anyone that had anything to do with the union." Weaver and Bank- ston, on the other hand, gave more definitive accounts. Both agree that the conversation opened with an interchange between Weaver and another employee, Montgomery, con- cerning,reported favoritism that was practiced in the plant. According to Bankston, Weaver then addressed the other employees, asking if any one else had anything to say. Bank- ston spoke up, asking what Weaver asks of a person who comes to Federal Paper Board for a job. Weaver said that all he asks is that "they be there and do the job." Bankston then said that Foreman McClain had promised his nephew a job and when the nephew came in to check on it, and informed Weaver that Bankston had recommended him, Weaver replied that "a bad person" had made the recom- mendation. Weaver admitted to Bankston that these were his words to the nephew, and when Bankston asked, why, Weaver accused Bankston of just going around keeping the "union s-t . . . stirred up." Bankston asked if that was why Weaver did not lure his nephew to which Weaver re- plied in the affirmative, stating "I would be a fool to hire your nephew knowing you are for the Union ... your nephew would be for the Union too." According to Weaver, following his conversation with Montgomery, Bankston, caught his attention, stating "I un- derstand that you wouldn't hire my nephew because you think I am involved in union activity." Weaver admits to` responding ". . . why should I hire a man knowing that it would be a union vote." Bankston then turned to other employees, asking them if they heard what Weaver said. At that point, Weaver having second thoughts, retracted by telling Bankston that "the union thing doesn't predicate our hiring practices." I credit Weaver's account of this conversation, but find that his initial remark tended to leave the employees with the impression that- Respondent was inclined to give consid- eration to the union issue on matters of employment,18 and iP I was more favorably impressed with Weaver's demeanor than that of Bankston. Weaver's testimony was forthright and direct, even as to certain matters unfavorable to the defense. On the other hand, I was not impressed with Bankston'v demeanor and I wasdoubtful as to his capacity for. recollec- tion of specifics . In my opinion, the faulty recollection of Prater , inherent on the face of his testimony, makes his account of the incident useless in assess- ing the versions given by Weaver and Bankston. that the effects of this statement, being a spontaneous reac- tion, would not necessarily be neutralized by Weaver's sub- sequent explanation to the contrary. Accordingly, though I believe the issue to be "borderline," I find that Respondent by the remark that it would not hire the relative of a union supporter, coerced and restrained employees in violation of Section 8 (a)(1) of the Act. 3. Miscellaneous interrogation The complaint alleges an additional instance of 8(a)(1) interrogation placed in mid-November 1972, some 4 months prior to and having no direct connection with the other events in issue here. Thus, according to the testimony of Alton Harris, he was routinely checking load tickets in the office of Cutting Department Foreman Ed Wilson on November 17 or 18, 1972, when the latter asked him, while they were alone, about some union meetings including one held the night before. Wilson also asked Harris whether he had signed a card; Harris indicated that he had. Wilson denied ever asking Harris whether he had signed a card, but his testimony as to the conversation he had with Harris concerning the Union appears limited to an entirely different incident than that to which Harris makes refer- ence. According to Wilson, employees Harris, Bankston, and James Waynewright were talking, apparently about the Union, when he said "why don't you ask Alton [Harris] about it. He says he has signed a card. He goes to union meetings." According to Wilson that was the sum total of the discussion. I credit Harris, since I do believe that the conversation which he testified to, occurred. There is no specific denial in Wilson's testimony , of such a conversation concerning the Union. Furthermore, I regard it as entirely probable that it was through this incident, that Wilson acquirred knowl- edge of Harris ' execution of a card and attendance at union meetings. Accordingly, and as this questioning of an em- ployee concerning his union activity and membership was not conducted pursuant to reasonable safeguards , assur- ances against reprisal, and for any legitimate objective, I find that Respondent thereby violated Section 8(a)(1) of the Act. C. The Alleged Discrimination The complaint alleges that James Williams applied for employment on or about March 20, 1973, and that Respon- dent violated Section 8(a)(3) by refusing to hire Williams because he was related to and recommended by an employ- ee who was sympathetic towards and active on behalf of the Union. James Williams is the nephew of Bobby Bankston, a known union supporter. He is a young man of 19 years, with a sixth grade education and was not shown to have any special skills or qualifications for employment. From the record, all that appears with respect to, his employment record, since he left school, is that he held two jobs, One, with the Howell Home Hotel, Atlanta, Georgia, where he worked as a janitor from August 1969 until January 1970. FEDERAL PAPER BOARD CO., INC. 685 A second with Beaudry Ford, Atlanta, Georgia, where he worked from February 1, 1972, to January 29, 1973, as a new car "get ready" man. From his application for employ- ment, it appeared that Williams did not work between Janu- ary 1970 and February 1972, and when questioned, on cross-examination as to what he was doing in the interim, Williams merely replied: "I don't know ... I probably wasn't working anywhere." Williams had no direct contact with the Employer until March 15, 1973. Prior to that time, however, it appears that his uncle, Bankston, brought him an application, which he filled out and gave to Bankston to take back to the Compa- ny. Bankston testified that, in mid-February, he gave this application to Bill McClain. Although McClain did not re- call receipt of same, or that he gave the application to Bank- ston initially, an application dated February 26, 1973, bearing Williams' name, was discovered in a supervisor's desk in the production area some time after the unfair labor practice charge involving Williams was filed. That applica- tion contained no references. After turning this application over to Bankston, and re- ceiving nothing from the Respondent, Williams went to the plant on March 15. It is noted that this was the only occa- sion on which Williams had direct contact with Respondent's officials or made an appearance at the plant. At that time, Williams entered the employees' entrance to the plant and ran into Weaver, who stopped him and asked whether he could help Williams. Williams said that he was looking for Weaver. Weaver then identified himself. Wil- liams told Weaver that Bankston told Williams to come over and see Weaver and he could get a job. Weaver told Williams that Bankston was a poor recommendation, but directed Williams to the personnel office where he could make application.19 Apparently, when Williams arrived at the personnel of- fice, Williams mentioned the earlier application that he had given Bobby Bankston. An effort was made to find that application. When the search proved unsuccessful, Williams agreed to fill out another. He was informed that this appli- cation would be good for 30 days. After completing the new application, Williams left the premises, did not again hear from the Company, and never returned to the plant or otherwise inquired as to the status of his application .20 The main thrust of the General Counsel's case with re- spect to Williams, as I view the record , rests upon Weaver's 19In connection with the statement by Weaver that Williams had a poor recommendation , the Respondent adduced evidence to show that Bankston's work record was marginal. On the basis of the written warnings issued to Bankston which are a part of this record, and my favorable impression of Respondent's witness who testified to his work deficiencies , I find that Bankston's work record was less than desirable and that he was regarded as a subpar employee by his superiors. Therefore I do not regard the "poor recommendation" remark as based upon Bankston's union activity. 20 The foregoing is based essentially on a composite of the testimony of Weaver, Williams, and McClain . The latter was engaged in a conversation with Weaver when Williams entered the plant on March 15. A conflict exists as to whether Weaver personally escorted Williams to the personnel office or merely gave the latter directions as to how to get there . I find the former to have been the case since I believe it unlikely that Weaver would have stopped what he was doing to accommodate Williams and insure his arrival at the personnel office. It is more probable, that Weaver would have given the easily conveyed instructions , as both he and McClain testified . Ldiscredit Williams in this regard. March 21 comment to Bankston to the general effect that he could not hire another union vote. Otherwise the record contains no affirmative proof supporting the General Counsel's claim that Respondent would have acted favora- bly upon the Williams' application had he not been the nephew of a known union adherent. No effort was made to establish that Williams was possessed of special qualifica- tions or that Respondent was in dire need of manpower during times material, nor has any other evidence been offered that would suggest that Williams was a preferred prospect for employment. At the same time, Williams did not impress me personally, and from his testimony and employment application Williams' work experience and ref- erences are less than attractive. In addition, a serious ques- tion is raised as to his employment potential by the absence of any sensible explanation for the 2-year break in his em- ployment history. The evidence simply fails to support affir- matively any reasonably based inference that Respondent would have hired Williams under any circumstances. 1 Furthermore, there is no credible evidence in the record that other applicants of like qualification were newly hired after Williams' application 22 Indeed the only evidence ad- duced to this effect in support of the complaint was through the testimony of Bobby Bankston, who asserts that he re- calls three individuals having been hired after Williams filed his application. They were Willis Joe Reed, Walter Johnson, and Louis Searshie. All worked on different shifts from that of Bankston, and the basis for his knowledge of their em- ployment was his observation of them reporting to work at shift changes. On cross-examination, Bankston showed a lack of clear knowledge as to the specific dates and circum- stances under which these individuals were hired. He did not testify that any of these individuals were hired by Bill McClain, who, according to Bankston, had been given Wil- liams' application dated February 26 .21 21 Louise Gaddy, Respondent's personnel clerk, took Williams' application on March 15 , as is the usual practice under Respondent's hiring procedure. According to her testimony , which I credit en tots, when an application is filed she grades it and then files it in one of two separate files. Those with acceptable,or good.grades go into a "likely prospect" file, and others into an "alphabetical" file. There is no chance of favorable action on-an application in the "alphabetical" file at tunes when applications are on hand in the "likely prospect" file. At the time Williams applied, and thereafter, the Company received about 100 new applications, with about 45 on hand in the "likely prospect" file. Williams' application was ultimately located in the "alphabeti- cal" file, and I find that it was placed there originally by Gaddy after she received it an completed form from Williams on March 15 , and graded it pursuant to uniformly applied considerations. 22 Although Respondent concedes to hiring about five employees since March 15, this offers little solace to the General Counsel, for there is no evidence as to the nature of the jobs filled, nor a showing as to the qualifica- tions of all those selected for hire. Considering the absence of such proof, the serious question in my mind as to whether Williams' record indicates that he presented agood risk as an employment prospect , and the credited testimony of Mrs. Gaddy as to her rating of his application,'I am unwilling to assume that Williams was qualified for any of these jobs. 23 Gaddy credibly testified that under the hiring practice at the plant, almost exclusive discretion is vested in the foremen . Thus, when a vacancy exists in a department, the foreman , will come to her, and obtain about three applications from the "likely prospect" file, conduct interviews and make a choice. Gaddy acknowledged that it was possible for a foreman to take applications directly and hire without using the file in the personnel office This exception to the usual procedure is an explanation of the additional applications found by McClain in the desk used by several supervisors, when he located the February 26 incomplete application made on behalf of Wil- Continued 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In any event, any assumption of discrimination that may be made on the basis of this evidence is negated by Weaver's credible testimony that these individuals were not preferred arbitrarily over Williams. Thus, according to Weaver, Willis Joe Reed was hired on March 12, 1973, a date in advance of Williams' application for employment. Walter Johnson was'initially hired on September 12, 1972, but subsequently was absent for a 2-week period and the Company assumed he had quit. However, after 3 weeks, Johnson returned, requested reinstatement, and after explaining his absence, was reinstated with full seniority in early March or April 1973? Searshie was hired on April 1, 1973, following a phone call from his employer, a local veterinarian, who indicated that due to a change in his business he was going to have to terminate Searshie. Weaver was informed by the veterinarian that Searshie worked regularly, and had an aptitude for mechanics. On this recommendation, and be- cause of Respondent's need for employees with a mechani- cal aptitude, Weaver passed the information on to McClain, who hired Searshie. Based on the foregoing, I find that the record is lacking in evidence that Respondent disparately hired individuals, following Williams' application, to avoid the hiring of an equally qualified relative of a known union member. Against this background, I do not find that Weaver's March 21 statement to Bankston was an admission of im- proper motivation. In my opinion this unlawful expression is insufficient to supplant the missing elements in the Gener- al Counsel's case. The alleged discriminatee was not shown to be a desirable applicant for employment, and there is no competent proof that a position was available following his application to which he was entitled to be preferred, or, indeed, to which he was equally suited with those hired for such jobs. I regard this failure of proof to be fatal to the General Counsel's case. I am unwilling to base a finding of discrimination, where no actual loss of employment has been established, solely on the basis of an ill-advised expres- sion of hostility in the course of one of many discussions between supervisors and employees especially where the statement was made in response to an accusation, in a con- text otherwise free of serious unfair labor practices, and under conditions which, to the undersigned, create substan- tial doubt as to whether Weaver actually was possessed of an intention of discriminating against job applicants who were related to supporters of the Union. Accordingly, I find that the General Counsel has not established by a prepon- derance of the evidence that Respondent violated Section 8(a)(3) by its refusal to hire Williams. hams. I credit McClain's denial that he ever promised Bankston a job for his nephew, and I further find that McClain was under no obligation to act on' the incomplete application of Williams dated February 26. Finally, it is my opinion that no effective application by Williams was made until March 15, 1973. 24 Johnson was called as a rebuttal witness on behalf of the General Coun- sel, and testified , contrary to Weaver, that in seeking reinstatement he gave no explanation to Weaver for his absence. I was not impressed with Johnson's demeanor and considering the probabilities, I find it unlikely that Respondent having also previously fired Johnson, on one occasion, would have reinstated him without good reason . I credit Weaver. III CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of the Act. 3. Respondent has violated Section 8(a)(1) of the Act by interrogating Melvi Fagan as to her reasons for supporting the Union and Alton Harris as to his union membership and activities under conditions interfering with, restraining, and coercing them in the exercise of their Section 7 rights, and by threatening employees that it would not hire relatives of union supporters. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not violated Section 8(a)(3) by refus- ing to hire James Williams. 6. Except as specifically provided herein, Respondent has not violated Section 8(a)(1) of the Act. IV THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER25 Respondent, Federal Paper Board Company, Inc., Thom- aston, Georgia, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their union member- ship, union activities, or reasons for supporting the Union, in a manner violative of Section 8(a)(1) of the Act. (b) Threatening employees that itwould not hire the rela- tives of union supporters. (c) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of their right to self-organization, to form, j om, or assist the Atlanta Printing Specialties & Paper Products Local Union #527, affiliated with Southeastern Printing Specialties District Council S-7 subordinate to International Pressmen & Assis- tants' Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. FEDERAL PAPER BOARD CO., INC. 687 all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: '(a) Post at its Thomaston, Georgia, plant copies of the attached notice marked "Appendix." 26 Copies of said no- tice, on forms to be provided by the Regional Director for Region 10, shall, after being duly signed by a representative of Respondent, be posted by it immediately upon receipt thereof and be maintained by it for a period of at least 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 26 In the event the Board 's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National 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." union supporters will not be hired. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Atlanta Printing Specialties & Paper Products Local Union #527, affiliated with Southeastern Printing Specialties District Council S-7, subordinate to Inter- national Pressmen & Assistants ' Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. All of our employees are free to join, or refrain from joining Atlanta Printing Specialties & Paper Products Local Union # 527, affiliated with Southeastern Print- ing Specialties District Council S-7, subordinate to In- ternational Pressmen & Assistants' Union of North America, AFL-CIO, or any other labor organization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NoT question employees as to their union membership and activities or as to their reasons for joining a union in a manner interfering with, re- straining, or coercing them in the exercise of their rights to form, join, or assist labor organizations. WE WILL NOT threaten employees that relatives of Dated By FEDERAL PAPER BOARD COMPANY, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Peachtree Building Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760. Copy with citationCopy as parenthetical citation