Ferguson-Lander Box Co.

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1615 (N.L.R.B. 1965)

FERGUSON-LANDER BOX CO. 1615
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731, if they have any questions concerning this notice or
compliance with its provisions.
Ferguson -Lander Box Co. and Printing Specialties & Paper
Products Union Local 415, AFL-CIO. Case No. 13-CA-6227.
April 13, 1965
DECISION AND ORDER
On September 10, 1964, Trial Examiner Sidney Sherman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices alleged in the complaint and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. The Respondent filed
exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in this case, and finds merit in certain of the Respondent's
exceptions. Accordingly, the Board hereby adopts the Trial Exam-
iner's findings, conclusions, and recommendations only to the extent
that they are consistent herewith.'
1. The Trial Examiner concluded that the following rule which
is in effect at the Respondent's plant is violative of Section 8(a) (1)
because it restricts the right of employees to solicit on behalf of
unions during nonworking hours :
"REASONS FOR REPRIMAND AND/OR DISCIPLINARY
ACTION
* *
5. Soliciting or collecting contributions at any time without the
approval of supervisor."
i We find, in agreement with the Trial Examiner , that the Respondent, by interfering
with the administration of, assisting , contributing support to, and dominating the Shop
Committee , has violated Section 8 ( a) (2) of the Act . We further agree with the Trial
Examiner ' s general statement , in footnote 13 of his Decision , to the effect that, where
employers assist, contribute support to , dominate , or interfere with the administration
of labor organizations , decisions which affect employees are often made by management
alone, in contrast to situations in which the labor organization exists independently of
such unlawful employer conduct.
151 NLRB No. 158.
1616 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
The Respondent contends that the rule does not and was not in-
tended to apply to union activities and that it is directed only to
soliciting for the purpose of collecting other types of contributions
on company premises at any time, working time included. The
record indicates in this connection that the employees so understood
this rule and that they were also aware of another, albeit an oral,
rule which prohibited union solicitation during the employees' work-
ing time. Accordingly, as rule No. 5 was neither intended to apply,
nor understood by employees as applying, to union solicitation or
other union matters, we do not find the rule to be violative of Section
8(a) (1) ; and we shall dismiss those allegations of the complaint
pertaining thereto.
2. The Trial Examiner has concluded that the Respondent vio-
lated Section 8(a) (3) by suspending employee Waters for soliciting
on behalf of the Union during working time. The Trial Examiner
reasoned that, inasmuch as employee Hankins was not disciplined
for soliciting contributions for a fellow employee who was ill, the
suspension of Waters for union solicitation during worktime consti-
tuted disparate treatment which was motivated solely by the fact
that Waters was soliciting on behalf of the Union.
The Hankins' incident occurred more than a year prior to Waters'
solicitation and consequent suspension under consideration here. This
single, year-old instance involving Hankins is insufficient basis in
our opinion for concluding that Respondent discriminatorily main-
tained or otherwise disparately applied its solicitation rules against
Waters. Cf. The Win H. Blocle Company, 150 NLRB 341. We
shall, accordingly, dismiss those allegations of the complaint respect-
ing Waters' suspension.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order, the Order recommended by the Trial Examiner, and
orders that the Respondent, Ferguson-Lander Box Co., Aurora,
Illinois, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, with
the following modifications and deletions.
1. In paragraph 1, subparagraphs 1(a) and 1(b) are deleted;
subparagraphs 1(c) and 1(d) are redesignated as subparagraphs
1(a) and 1(b) 2
2 The notice is similarly modified by deleting the first and third indented paragraphs,
each beginning with the words "WE WILL NOT."
FERGUSON-LANDER BOX CO. 1617
2. In paragraph 2, subparagraphs 2(a) and 2(b) are deleted;
subparagraphs 2(c), 2(d), and 2(e) are redesignated as subpara-
graphs 2(a), 2(b), and 2(c) 3
IT IS IIEREBY FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations not found
herein.
3 The notice is similarly modified by deleting the last indented paragraph, beginning
with the words "WE WILL "
ORDER GRANTING MOTION
May 20, 1965
On April 13, 1965, the Board issued its Decision and Order 1 in
the above-entitled proceeding, finding that the Respondent had en-
gaged in certain conduct which was violative of Section 8(a) (2)
and (1) of the Act and ordering the Respondent to cease and desist
therefrom and to take certain affirmative action to remedy the said
violations. The Board further found that the Respondent had not
committed an independent violation of Section 8(a) (1) of the Act,
as alleged in the complaint herein, and had not discharged an em-
ployee in violation of Section 8 (a) (3) of the Act, also as alleged
in the complaint herein. The complaint was dismissed with respect
to the latter two allegations.
On April 16, 1965, Respondent filed a motion to modify order,
requesting that the Board modify subparagraph 1(b) of the Order
herein by replacing the phrase "In any other manner" with the
phrase "In any related manner". The Respondent contends that
such a modification, which narrows the Order, is justified in view of
the fact that it was found to have committed only "a technical Sec-
tion 8 (a) (2)" violation.
The Charging Party has filed a letter agreeing to the modification
requested by the Respondent. The General Counsel has not com-
mented upon the motion.
The Board, having duly considered this matter, has concluded
that Respondent's motion has merit and should be granted.
IT IS HEREBY ORDERED that subparagraph 1(b) of the Order herein
be modified as follows:
Delete the phrase "In any other manner" and substitute therefor
the phrase "In any related manner" .2
IT IS FURTHER ORDERED that the Decision and Order, as printed,
shall appear as hereby modified.
1 151 NLRB 1615
9 The notice is similarly modified by striking from the penultimate indented paragraph
the words "in any other manner" and substituting therefor the words "In any related
manner".
783-133-66-vol. 1 5 1-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
The original charge herein was served on or about February 19, 1964, the com-
plaint issued on May 19, and the case was heard before Trial Examiner Sidney Sher-
man on July 14 and 15. The issues litigated involved alleged violation of Section
8(a)(3), (2), and (1) of the Act. Respondent and the General Counsel filed briefs
after the hearing.
Upon consideration of the entire record,' I adopt the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Ferguson-Lander Box Co., herein called Respondent, is an Illinois corporation,
and is engaged at its plant in Aurora, Illinois, in the manufacture of boxes and
related products. During the past year, Respondent shipped goods valued at more
than $50,000 from it Aurora plant to out-of-State points, and received goods worth
more than $50,000 at such plant from out-of-State points.
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
IT. THE LABOR ORGANIZATIONS INVOLVED
It is not disputed, and I find, that Printing Specialties & Paper Products Union
Local 415, AFL-CIO, herein called the Union, is a labor organization within the
meaning of the Act.
As related below, Respondent controverts the General Counsel's claim that an
organization, herein called the Shop Committee or the Committee, is a labor orga-
nization within the meaning of the Act. For reasons discussed below, it is found
that the Shop Committee is such an organization.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section 8(a)(2) and (1) of the
Act by dominating, interfering with the administration of, and assisting, the Shop
Committee; that Respondent violated Section 8 (a) (1) of the Act by maintaining in
effect, and enforcing, a rule against solicitation; and that Respondent violated Section
8(a)(2), (3), and (1) of the Act by suspending Waters because of his union
activities.2 The answer admits the suspension of Waters, but denies all the other
allegations of the complaint.
A. Sequence of events
Most of the events here relevant occurred against the background of two election
campaigns involving the Union. On September 28, 1962, the Union filed with the
Board its first petition for a representation election. The election, held on Novem-
ber 23, 1962, was lost by the Union .3 A second election petition, filed on February 11,
1964, resulted in an election on March 20, which was also lost by the Union.
Objections by the Union to that election were still pending at the time of the instant
hearing .4
In December 1961, at a plant meeting of Respondent's day-shift employees called
by Respondent's president, Morris, employee Rhodes proposed the formation of an
employee committee, as a vehicle for conveying to top management suggestions by
employees regarding improvements in working conditions. Morris reacted favorably
to this proposal and promised to submit it to the night-shift employees and did so at
a plant meeting held later the same day. At that meeting, he endorsed the proposal
on the ground that such a committee would facilitate communication between
management and labor.
'After the hearing Respondent filed a motion to correct the transcript of testimony
taken herein . General Counsel joined in this motion , and, in turn , moved to make addi-
tional corrections . Both motions are hereby granted and are received in evidence as
Trial Examiner 's Exhibits Nos. 1 and 2 , respectively.
2 The complaint also alleged a violation of Section 8(a) (1) in Respondent ' s admonition
of employees not to associate with Waters However, in his brief , General Counsel con-
cedes that the evidence does not support this allegation and it will not be further considered
3 Case No 13-RC-8933 The Union' s objections to the election were overruled in
January 1963
'Case No 13.
FERGUSON-LANDER BOX CO. 1619
On January 16, 1962, as a result of a plantwide election, about 10 employees were
chosen to serve as members of the Committee, and it has met more or less regularly 5
since that time, the latest such meeting having been held in January 1964. All
meetings are held on company time and premises.
In July 1962 Respondent formulated a set of plant rules governing the conduct of
employees, which rules were distributed to the employees on February 11, 1963,
in the form of a statement of "Company Policy." Included in these rules was one
relating to solicitation, to be discussed in more detail below.
On February 11, 1964, Waters was suspended from work for 1 week, allegedly for
soliciting on behalf of the Union on company time.
B Discussion
1. The 8(a)(2) issues
Respondent conceded at the hearing, and I find, that the Shop Committee's meet-
ings are held and publicized on company time and property; that Respondent has
participated in determining the number of employee representatives on the Commit-
tee and the length of their term of office; and that Respondent permits, and encour-
ages, the election of committee members during working hours, prepares the ballots
to be used in such elections, and supervises the counting of the ballots.
There is, moreover, no dispute that: Respondent determines when the Committee
shall meet, management representatives, including President Morris, are present at
all meetings of the Committee; minutes of the Committee's meetings are prepared
by Morris, from notes taken by him, only employees of Respondent are eligible to
serve on the Committee; each Committee member is elected by the employees in a
particular department, and may serve only so long as he himself is assigned to that
department
It is clear from the foregoing that Respondent contributes support to the Commit-
tee, by lending it the use of Respondent's premises and other facilities in connection
with the conduct of elections, and by providing the Committee with typewritten
minutes of its meetings.6
I find, moreover, that Respondent has since October 30, 1963,7 interfered with
the administration of, and dominated, the Committee. In so finding, I have considered
the following:
(a) The background evidence recited above showing that, although the formation
of a shop committee was first suggested by an employee, Respondent welcomed this
suggestion and advocated the organization of such a committee, participated in deter-
mining the structure of the Shop Committee, and, while permitting employees to vote
for representatives on the Committee, at no time afforded them an opportunity to
vote for or against the establishment of such a Committee.
(b) The fact that the Committee meets only when so directed by Respondent.
(c) The fact that no meetings are held unless management representatives are
present, thereby precluding the members of the Committee from meeting to discuss
questions of policy or strategy, free from the inhibiting presence of management.
i The Committee normally meets once a month to consider any employee suggestions
submitted since the previous meeting. Ilowevei, if no such suggestions have been sub-
mitted, there is no meeting,
,'See McCulloch Jlotois Corpoiatioir, 120 NLRB 1709 Piince Macaroni, Manufacturing
Co, 138 NLRB 979 While Respondent also contributes support to the Committee by
peimitting its meetings to be held on company time and property, Section 8(a) (2) sanc-
tions such assistance where, as heie, the only meeting, invoked aie conferences with
management.
Section 10(b) of the Act bars any violation finding based on Respondent's participation
in the formation of the Committee, in December 1961. However, such action, and other
events outside the 6-month period of limitations prescribed by Section 10(b), may be
treated as background, providing a basis for evaluation the events which occurred within
that period McCulloch 11/otoos Corporation, supra, Herheit D 1'onnp, d/b/a llarfrees-
Soro Pure Milk Co , 127 _NLRB 1101 , Thompson Raino Wooldridgc, Inc. (Doge Television
Division), 132 NLRB 993
7 That is the date which antedates by 6 months the service upon Respondent of the
second amended charge, which contained the only allegation of a violation of Section
8(a)(2) of the Act Under Section 10(b) of the Act, the Board is bailed lions finding
any such earlier s iolation See preceding footnote
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) The fact that the tenure of office of committee members is terminable by
discharge, both matters within Respondent's control.8
(e) The fact that the Committee exacts no dues or initiation fees and hence has
no funds of its own, thereby rendering it dependent upon Respondent's largesse for
the facilities necessary to its existence as an organization.9
In view of all the foregoing elements of actual, and potential, control of the Com-
mittee by Respondent, it is difficult to see how the Committee can function as an effec-
tive, independent representative of the employees rather than as an agency subservient
to the interests of management.'°
Respondent contends, however, that no violation of Section 8(a)(2) may be found
here because the Committee is not a "labor organization" within the meaning of
Section 2(5) of the Act. That subsection defines a labor organization as "any
organization . employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or part, of dealing with employ-
ees concerning grievances, labor disputes, wages, rates of pay, hours of employment
or conditions of work."
Respondent's position is that the Committee does not exist for the purpose of
"dealing with" the Respondent, but merely serves as a "conduit" for transmitting
to management suggestions by individual employees regarding, inter alia, improve-
ments in working conditions. This contention assumes that the phrase "dealing with"
denotes something more than bringing employee complaints to the attention of man-
agement. The Board has, however, held that the mere "presentation to manage-
ment" by an employee committee "of employee `views,' without specific recommenda-
tions as to what action is needed to accommodate those views, constitutes `dealing'
with management under Section 2(5)." 11 Moreover, here there is ample evidence
that the members of the Committee were expected to, and did, make recommenda-
tions to management with regard to the subject matter of the employee suggestions
presented at the committee meetings. Thus, Morris admitted that he solicited the
views of the committee members with regard to the merits of an employee proposal
for a more liberal vacation policy, and his testimony indicates that his procedure was
typical of committee proceedings.12
Indeed, if the Committee's only function had been, as Respondent contends, to
transmit to management employee suggestions, it is not clear why the same purpose
would not have been as well served by simply posting a suggestion box in the plant.
This would have saved all the time and expense involved in electing, and meeting
with, committee members.13
Upon consideration of all the foregoing circumstances, I find that the Shop Com-
mittee is a labor organization, and that Respondent violated Section 8(a)(2) and
(1) of the Act by contributing financial support to, by dominating, and by interfering
with the administration of, the Committee.
OMcCulloch Motors Corporation, supra, Harold W Koehler, et al, d/b/a Koehler's
Wholesale Restaurant Supply, 139 NLRB 945
9 Yale Upholstering Company, Inc, 127 NLRB 440; Thompson Ramo Wooldridge, Inc .
supra, at 1006.
10 Indeed , the situation is well summarized in Respondent's own brief as follows "The
Shop Committee has no semblance of existence apart from Respondent's participation in
every function. It has . no design of its own, no platform, and no voice of its own "
11 Thompson Ramo Wooldridge, Inc, 132 NLRB 993; Certain-Teed Products Corporation,
147 NLRB 1517.
la Thus, Morris acknowledged, in effect, that whenever an employee proposal was
presented at a committee meeting, he would reach a decision after listening to the argu-
ments pro and con.
la In its brief, Respondent appears to contend, further, that the Committee is not a
labor organization because (1) it has no existence independent of the will of Respond-
tnt, (2) the members of the Committee do not caucus among themselves and so do not
act in concert with each other, (3) all decisions are made by management alone IToir-
-ever, as to (1), this is a common attribute of employer-dominated organizations As
to (2), while such concerted action is desirable, there is nothing in the Act's definition of
a labor organization that requires it As to (3), this is true, in the case of independent
unions as well as employer-dominated organizations The ultimate decision to change
working conditions is normally made by management alone. Joint decisions by manage-
ment and labor are the exception rather than the rule on our industrial scene.
FERGUSON-LANDER BOX CO. 1621
2. The no-solicitation rule
The complaint alleges that Respondent violated Section 8(a)(1) of the Act by
maintaining in effect and enforcing the rule on solicitation, referred to above. As
already noted, this rule was promulgated in February 1963, as part of a collection
of plant rules, and is still in effect. In its present form,14 it forbids "soliciting or
collecting contributions at any time without the approval of supervisor." Accord-
ing to Morris, the rule is not aimed at the solicitation of union cards but only at the
solicitation, and collection, of contributions. However, when first promulgated on
February 11, 1963, the rule contained a comma after "soliciting." 15 Thus punctu-
ated, the only proper construction of the rule, grammatically speaking, was that it
regulated (1) all soliciting, including, necessarily, solicitation of union cards and (2)
the collection of contributions. From the foregoing, it may be inferred either that
the foregoing comma after "soliciting" was a typographical error, which was cor-
rected in later publications of the rule, or (2) that the comma was inserted by design
but was later omitted either through inadvertence or design. Moreover, even if one
disregards the foregoing confusing change in punctuation, and looks only at the cur-
rent version of the rule, to the ordinary employee, not conversant with the refinements
of English grammer, it would be far from clear that the rule had no application to
solicitation of union cards, and, absent any effective disclaimer by Respondent of any
such intention,16 such an employee would have no assurance that, whatever its proper
construction, the foregoing rule was not in fact intended by management to apply to
the solicitation of such cards.17 Finally, it is clear, in any event, that, even if one
gives the rule only the meaning imputed to it by Respondent's witnesses at the hear-
ing-namely, that it applied only to the solicitation or collection of moneys-the rule
would, on its face, limit (1) solicitation of any union membership applications which
contained, as is frequently the case, a pledge to pay dues and initiation fees,18 and
(2) the actual collection of such dues and fees. Both such limitations would in them-
selves violate Section 8(a)(1), insofar as they applied to such solicitations or
collections when made on the employees' own time.
However, Respondent contends, and Morris so testified, that the subject matter
of union solicitation was specifically covered by an oral rule, announced to two
employees-Waters and Johnson-in September or October 1962,19 and shortly there-
after to all the employees, at a plant meeting, which rule was to the effect that employ-
ees might engage in such solicitation on their own time but not on working time. Both
Waters and Johnson disputed Morris' testimony that he had orally informed them
of such a rule. However, certain evidence relating to the circumstances under which
Waters was suspended on February 11, 1964, tends to support Morris' foregoing
testimony regarding his oral explication of the rule to Waters. As related in more
detail below, on February 11, 1964, Morris suspended Waters for a week because of
his alleged solicitation for the Union during working time. In informing Waters of
this suspension, Morris read a prepared statement in which he recited that he had
admonished Waters in the fall of 1962 against union solicitation during working
hours, and Morris' testimony that, when this was read to him, Waters acknowledged
that he had been so admonished, is partially corroborated by two supervisors, although
denied by Waters. Further, in a "News Letter" to employees, signed by Morris,
dated February 20, 1964, to which is attached a copy of Morris' foregoing statement
to Waters of the reason for his suspension, reference is again made to the fact that
Waters had been instructed in 1962 not to solicit during working time.
11 See General Counsel's Exhibit No. 4.
15 See General Counsel's Exhibit No 5.
16 While, as found below, such a disclaimer was publicized in a "News Letter" to em-
ployees of February 20, 1964, such action, as explained below, had only limited efficacy
as a gloss on the foregoing rule.
17 See Shawnee Industries, Inc., 140 NLRB 1451, 1471. Even Morris confessed that he "at
one point" thought that the foregoing rule applied to union solicitation, thereby suggest-
ing that this was the original purpose of the rule or that Morris, himself, was for a
time confused as to its actual scope
11 While Morris denied that he would construe the rule as applying to such solicitation,
there is nothing in the text of the rule to negate such a construction Moreover, such
construction by Morris is at odds with his own prior views as to the scope of the rule.
See preceding footnote.
19 The Union was at that time conducting its first organizational campaign at the instant
plant.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, particularly the partial corroboration of Morris' testimony
that on February 11, 1964, Waters admitted the earlier admonition against solicitation
on company time, I am inclined to credit Morris' testimony as to his conversation
with Waters in the fall of 1962. However, as none of the employee witnesses who
testified on the point was able to confirm Morris' testimony that he soon thereafter
announced at a plant meeting the Respondent's policy of permitting union solicitation
on employee time but not on company time, as Respondent failed to adduce any
corroboration of such testimony, and, as Morris omitted any reference to such a
plantwide announcement from his February 1964 statement to Waters and the subse-
quent "News Letter," I do not credit his testimony that such an announcement was
made. Moreover, even if I were to credit such testimony, such an ephemeral, oral
explication of the employees' right to engage in union solicitation on their own time,
whatever impression it might have made on the employees who heard it in the fall of
1962,20 could hardly be regarded as effectively neutralizing the equivocal written rule
promulgated about 4 months later, and which has ever since been embodied in the
plant rules systematically distributed to new employees. Indeed, if anything, the
normal presumption would be that the later, published rule superseded the prior,
oral one, to the extent that there was any conflict between the two. While it is true
that the "News Letter" of February 20, cited above, made it clear to all those then in
Respondent's employ that they were not forbidden to solicit for a union on their own
time, and that for such employees any equivocation in the plant rule may be deemed
to have been effectively neutralized, there is no evidence or contention that such
"News Letter," or the substance thereof, was communicated to anyone who entered
Respondent's employ after March 5, 1964.21 On the other hand, it is conceded that
each such employee was handed a copy of the foregoing plant rule, which, without
the gloss of the "News Letter," was reasonably calculated to convince even the most
sophisticated employee that he would be acting at his peril if he engaged in any form
of union solicitation, even on his own time, without first obtaining the permission
of his supervisor, and particularly so if he was contemplating obtaining pledges, or
payment, of union dues or fees.
It is found therefore that by maintaining the foregoing rule in effect, the
Respondent violated Section 8(a)(1) of the Act.
3. The suspension of Waters
The complaint alleges that on February 11, 1964, Respondent suspended Waters
because of his union activities , thereby violating Section 8(a)(3), (2 ), and (1) of
the Act.
At the hearing, Morris testified that he suspended Waters because of a report that
Waters, while at work, had solicited another employee, Lorenz, to sign a union card.
Lorenz testified that early in the morning of February 11, during worktime, Waters
asked the witness to sign a union card and that he promptly reported this to his lead-
man, Porto, who later returned with Supervisor Unick and asked Lorenz if he was
sure that he had been asked to sign a card. Porto confirmed that he received Lorenz'
report, adding that he, in turn, related the incident to his supervisor, Unick, who
referred him to plant manager, Brown, who instructed him to verify Lorenz' report;
and that the witness did so by questioning Lorenz and reported the result to Brown.
Brown's version was that: Unick first notified him of the the Waters-Lorenz incident,
as reported to Unick by Porto; Brown promptly summoned Porto, and instructed
him to verify the matter with Lorenz; Porto soon returned with the news that Lorenz
had reiterated that Waters had solicited him to sign a union card ; Brown thereupon
reported the matter to Respondent 's vice president , Potts, who accompanied him to
President Morris; the witness thereafter again asked Porton to verify Lorenz' report;
and later in the morning it was decided to suspend Waters. Potts confirmed that the
report of the incident was transmitted through him to Morris. Morris testified, ini-
tially, that the incident was reported to him by Brown, who verified it by having Unick
interview Lorenz. However, in a subsequent appearance on the stand, Morris asserted
that about 11 a.m. on February 11, Potts related the incident to him, as reported by
Brown or Unick; that Morris asked Potts to obtain verification; that this request was
transmitted from Potts to Porto, via Brown and Unick , and Porto 's verification was
20 That it was not , in any event , lasting, is clear from the employee testimony at the
hearing.
The "News Letter" was posted on the plant bulletin board from February 20 to
March 5
FERGUSON-LANDER BOX CO. 1623
reported to Morris by the same route. However, later in his testimony, Morris
attributed to Unick, rather than Porto, the ultimate verification interview with Lo-
renz, but finally professed uncertainty on this point
Waters admitted a conversation with Lorenz in the morning of February 11, dur-
ing worktime, in the course of which reference was made to the signing by Lorenz
of a union card. However, according to Waters, it was another employee, Plemmons,
who broached the matter to Lorenz, and Waters' part in the conversation was limited
to an affirmative answer when Lorenz asked him if he had heard about the Union,
and an inquiry as to what Lorenz thought about the Union. Waters' version was cor-
roborated in the main by Plemmons,22 who admitted, however, that he was not
present during the entire conversation between Waters and Lorenz.
Lorenz denied that Plemmons was present at any time during the foregoing
incident.
As already noted, there were some discrepancies in the testimony of Respondent's
witnesses regarding the details of the Waters-Lorenz incident, but such discrepancies
were not so serious that they might not be accounted for by the vagaries of memory.
Moreover, I was favorably impressed by the demeanor of Lorenz, Brown, and Porto,
and believe that they were in the main sincere and candid witnesses. As to Waters,
I have already refused to credit his denial of any admonition by Morris in 1962
against soliciting for the Union on company time, and Plemmons, as already noted,
was admittedly not present during the entire conversation between Lorenz and
Waters.23
Accordingly, I have resolved to credit the testimony of Lorenz that be was solicited
by Waters during working time on February 11, and the testimony of Respondent's
other witnesses that the incident was ultimately reported to Morris, who sought veri-
fication thereof in the manner related by him. Nevertheless, I am constrained to find
that the suspension of Waters was discriminatory. In so finding. I have been
influenced by the following considerations.
Employee Hankins testified that in the spring of 1963 (after the promulgation of
the plant rule against collection of contributions) 24 he made a collection in the plant
during working time for a fellow employee; that he did not obtain permission to do
so from his supervisor; that he received contributions on that occasion not only from
employees but also from management personnel, including Morris; and that he was
not reprimanded therefor. Assuming that, as Respondent contends, there was a
general , unwritten rule against union solicitation during worktime, or that (as found
above) Waters, at least, was informed of such a rule in 1962, the question remains
why Waters' breach of this rule, involving only the accosting of a single employee,
resulted in an elaborate investigation by Respondent's chain of command, and imme-
diate disciplinary action, whereas Hankins' breach of the printed rule relating to con-
tributions, involving a general, plantwide solicitation of employees and supervisors,
did not even elicit any comment from any of the supervisors, including Morris, him-
self 25 The question arises also why, despite all the insistence by Morris and his
supervisors upon "verification" of the Lorenz-Waters incident, such verification was
limited to merely asking Lorenz to repeat his version of the incident, and no attempt
was made to obtain Waters' version, or to determine whether there were any other
employees who had witnessed the incident or were involved therein. The verification
as However, Plemmons asserted that Waters merely shrugged his shoulders when Lorenz
asked him about the Union, thereby apparently contradicting Waters' testimony that
he responded to such inquiry by asking Lorenz what he thought about the Union.
23 See , also, preceding footnote as to the conflict between Plemmons and Waters. In
any case, even if one credits Waters' own testimony, his inquiry of Lorenz as to his
union sentiments , in the context of Plemmons' reference to the signing of a union card by
Lorenz, might well be regarded as tantamount to solicitation of Lorenz to sign such a card.
21 Hankins testified also to several unauthorized collections made in 1962, before the
rule was promulgated . There was no contradiction of Hankins' testimony, as related in
the text, above, and I credit it.
5 In its brief Respondent contends that there is no evidence that it was aware that
Hankins had not received permission from his supervisor to solicit. However, since under
the rule Hankins was required to obtain permission from his supervisor, it seems fair to
infer that that individual at least was aware that Hankins' solicitation was unauthorized.
No attempt was made by Respondent to rebut such inference or to explain why Hankins'
large-scale solicitation was not even commented upon, while Waters' relatively limited
activity became the subject of investigation and reinvestigation by Respondent's entire
hierarchy, culminating in his suspension.
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure followed conveys the impression that Respondent was attempting merely
to create the appearance of an objective investigation, while studiously avoiding any
inquiry which would be likely to elicit any evidence in conflict with Lorenz' report.
Upon consideration of all the foregoing circumstances, including the disparate
treatment of Hankins on the one hand and Waters on the other, I am convinced that
Respondent's suspension of Waters was prompted primarily by the union aspect of
his activity, rather than by any concern over its possible disruptive effect on produc-
tion, and I find that, by such discriminatory administration of its no-solicitation policy
in the case of Waters, Respondent violated Section 8(a) (3) and (1) of the Act.26
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1), (2), and (3) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having also found that Respondent discriminatorily suspended Waters, I will rec-
ommend that Respondent be required to make him whole for any loss of pay suffered
as a result of discrimination against him by payment to him of a sum of money equal
to the amount he would have earned from the date of his reinstatement, less his net
earnings during that period. Interest at the rate of 6 percent per annum shall be
added to such backpay.
It having been found that the Respondent interfered with the administration of,
assisted, and dominated the Shop Committee, I will recommend that the Respondent
be required to cease and desist from such conduct and to withhold recognition from,
and to disestablish, such Committee
As the unfair labor practices committed by the Respondent are of a character
striking at the root of employee rights safeguarded by the Act, it will be recommended
that the Respondent cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I adopt the following-
CONCLUSIONS OF LAW
1. Printing Specialties & Paper Products Union Local 415, AFL-CIO, and the
Shop Committee at Respondent 's plant are labor organizations within the meaning
of the Act.
2. By discriminating in regard to the tenure of employment of Thomas Waters,
thereby discouraging membership in the Union , the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
3. By maintaining in effect a plant rule which is calculated to inhibit employees
from engaging , during nonworking time, in the solicitation of other employees to
sign union cards and in the solicitation or collection of union dues , fees, or assess-
ments, Respondent has violated Section 8 (a) (1) of the Act.
4. By interfering with the administration of, assisting , contributing support to,
and dominating the Shop Committee , the Respondent has violated Section 8(a) (2)
and (1 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, it is recommended that Respondent, Ferguson-Lander Box
Co., Aurora, Illinois, its officers, agents, successors, and assigns, shall:
26 See Standard Manufacturing Company, 147 NLRB 1608
As it would not affect the remedy, I do not deem it necessary to decide whether, by
the suspension of Waters, Respondent also violated Section 8(a)(2) of the Act.
FERGUSON-LANDER BOX CO. 1625
1. Cease and desist from.
(a) Discouraging membership in Printing Specialties & Paper Products Union
Local 415, AFL-CIO, or any other labor organizations of its employees , by dis-
criminating in regard to their hire , tenure, or any other terms or conditions of
employment.
(b) Maintaining in effect a plant rule which is calculated to deter employees from
engaging , during nonworking time, in the solicitation of other employees to sign
union authorization cards, and in the solicitation or collection of union dues, fees,
or assessments.
(c) Dominating , and interfering with the administration of, the Shop Committee
at Respondent 's plant or any other labor organization of its employees , and assisting or
contributing support to such Committee or any other labor organization of its
employees.
(d) In any other manner interfering with , restraining , or coercing its employees
in the exercise of their right to self-organization , to form, join , or assist a labor orga-
nization , including the above Union, to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purposes of collective
bargaining , or other mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment , as authorized
by Section 8(a)(3) of the Act, as modified by the Labor Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action , which is deemed to effectuate the policies
of the Act:
(a) Make Thomas Waters whole in the manner set forth in the section of the Trial
Examiner 's Decision entitled "The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Withdraw and withhold all recognition from the Shop Committee at Respond-
ent's plant as the exclusive representative of its employees for the purpose of dealing
with the Respondent concerning grievances , wages, hours , or other conditions of work,
and completely disestablish said organization of its employees.
(d) Post at its plant in Aurora Illinois, copies of the attached notice marked
"Appendix." 27 Copies of said notice, to be furnished by the Regional Director for
Region 13 , shall, after being duly signed by Respondent's representative , be posted by
it immediately upon receipt thereof and be maintained by it for a period of 60 con-
secutive days thereafter in conspicuous places, including all places where notices
to employees are customarily posted . Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered , defaced , or covered by any other
material.
(e) Notify the Regional Director for Region 13, in writing, within 20 days from
the date of the receipt of this Trial Examiner 's Decision, what steps the Respondent
has taken to comply herewith 28
27 If this Recommended Order is adopted by the Board, the words "a Decision and Order"
in the notice shall be substituted for the words "the Recommended Order of a Trial
Examiner." In the further event that the Board's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
29 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Printing Specialties & Paper Prod-
ucts Union Local 415, AFL-CIO, or any other labor organization, by discrimi-
nating in regard to hire, tenure of employment, or any other term or condition
of employment of any of our employees.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT assist, dominate, or interfere with the administration of the
Shop Committee at our plant or any other labor organization of our employees.
WE WILL NOT maintain in effect a plant rule which is calculated to deter
employees from engaging, during nonworking time, in the solicitation of other
employees to sign union authorization cards, and in the solicitation or collection
of union dues, fees, or assessments.
WE HEREBY withdraw all recognition from and completely disestablish the
Shop Committee at our plant as the representative of our employees for the pur-
pose of dealing with us concerning grievances, wages, hours, or other conditions
of work.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to join the said Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities, except to the extent
that such rights may be limited by the proviso in Section 8(a)(3) of the Act
as modified by the Reporting and Disclosure Act of 1959.
WE WILL make Thomas Waters whole for any loss of pay suffered as a result
of the discrimination against him.
FERGUSON-LANDER Box Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 881 U. S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or
compliance with its provisions.
Knare M. Andonoff , d/b/a Grish Andonoff Company and S. B.
Ervin . Case No. 31-CA-5894-1. April 13, 1965
DECISION AND ORDER
On December 24, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled case, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions to the
Decision and a brief in support of the exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial Examiner's
'In footnote 12 of the Decision, the Trial Examiner inadvertently found that certain
Incidents occurred on April 19, 1964. The date should read April 9, 1964, and is hereby
corrected.
151 NLRB No. 159.