Koch Label Co

National Labor Relations Board - Board Decisions

Jun 15, 1992

307 N.L.R.B. 909 (N.L.R.B. 1992)

909
307 NLRB No. 142
KOCH LABEL CO.
1 The Respondent’s motion to substitute a correct p. 3 of its excep-
tions is granted.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We will modify the judge’s
recommended Order and substitute a new notice that more closely
conforms to the violation.
1 All dates herein are in 1991 unless otherwise specified.
Koch Label Company, Inc. and Graphic Commu-
nication Local 117-C, a/w Graphic Commu-
nications International Union. Cases 25–CA–
21113 and 25–CA–21113–2
June 15, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On January 28, 1992, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Koch
Label Company, Inc., Evansville, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Threatening to discharge or otherwise dis-
cipline employees if the Union files or otherwise pur-
sues a grievance against the Respondent because of
previous discipline of employees.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten to discharge or otherwise dis-
cipline employees if the Union files or otherwise pur-
sues a grievance against us because of previous dis-
cipline of employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
KOCH LABEL COMPANY, INC.
Walter Steele, Esq. and Theofilos Galoozis, Esq., for the
General Counsel.
Jon D. Goldman, Esq. (Kahn, Dees, Donovan & Kahn), of
Evansville, Indiana, for the Respondent.
Raymond N. Larson, of Piqua, Ohio, and Arthur Oldham, of
Evansville, Indiana, for the Charging Party.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
on a charge filed on January 28, 1991,1 in Case 25–CA–2113
by Graphic Communications International Union Local 117–
C (the Union), and a charge in Case 25–CA–21113–2 filed
by the Union on January 30; the Regional Director for Re-
gion 25 of the National Labor Relations Board (the Regional
Director) issued a complaint on March 12 alleging that Koch
Label Company, Inc. (the Respondent or the Company) had
violated certain provisions of the National Labor Relations
Act, 29 U.S.C. § 151 et seq. (the Act). The Company filed
a timely answer denying the commission of any unfair labor
practices.
Pursuant to notice contained in the complaint, as supple-
mented by orders of the the Regional Director on May 9 and
30, a hearing was held before me at Evansville, Indiana, on
June 5 and 6, at which all parties were represented and had
the opportunity to present testimony and documentary evi-
dence, to examine and cross-examine witnesses, to make mo-
tions and offers of proof, and to argue orally. After the con-
clusion of the hearing, the Company and the General Coun-
sel filed briefs, which have been carefully considered.
Upon the entire record, including my observations of the
witnesses, and their demeanor, I make the following
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The details of this incident are not important to the issues in this
case.
3 Thacker said that she was not so concerned about Hodge, even
though Hodge and her husband were separated and she had obtained
a restraining order against him.
4 He did not get the letter then, because they had to change some
wording, but he did get it later.
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation existing under and by vir-
tue of, the laws of the State of Indiana. At all times material
it has maintained its principal office and place of business
at Evansville, Indiana, where it is engaged in the manufac-
ture sale and distribution of labels. During the 12 months just
prior to the issuance of this omplaint, the Company sold and
shipped from its Evansville facility goods valued in excess
of $50,000 directly to points outside the State of Indiana.
The complaint alleges, the answer admits, and I find that the
Company is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Hodge—Simms Incident
The Company and the Union have had contractual rela-
tions for so many years that no one could remember just
when they began.
Linda Thacker, a guillotine (paper cutter) operator, was the
chief steward at the plant from March 1989 to March 1991.
Early in 1991, the Company and the Union were engaged
in bargaining for a new collective-bargaining agreement.
Thacker was elected as one of the members of the bargaining
committee.
As chief steward, Thacker was called in whenever an em-
ployee was to be disciplined. On January 12, Thacker was
working with an employee named Debbie Hodge. During a
lunchbreak Hodge left the plant and went to lunch with an
employee named Scott Simms, who was not working that
evening. When Hodge and Simms arrived back in the park-
ing lot they were met by Hodge’s estranged husband, who
apparently assaulted her. She was able to get away, and es-
caped into the plant. According to Thacker, however, the
husband made several calls to Hodge, who was very upset,
crying, and unable to work for the rest of the shift. Eventu-
ally she was sent home. We have no evidence in the record
directly concerning this incident, but suffice it to say that
management took it very seriously, because of the possibility
of people being hurt, as well as the disruption of production
in the plant.2
On Monday, January 14, Thacker was called in to meet
with Supervisors Mike Meyer and Tom Woodward. They
told her about their concerns over the incident, and indicated
that Simms and Hodge were going to be disciplined by
means of a final warning. Thacker replied that she thought
the purnishment was too harsh. She said that all Simms did
was to pick up someone for lunch, and he was really not in-
volved in the incident.
Later that day Thacker was called into the office of Mike
Clark, senior vice president of administration. Clark told her
that he was very upset with the position she had taken on
the Simms matter. They discussed it and finally Clark told
her that if she persisted in her position he could just termi-
nate Simms and they wouldn’t have to go through all this.
After this Thacker intended to consult with Arthur Oldham,
president of Local 117–C, but she had not done that before
she was called into Meyer’s office the next day. Meyer and
Woodward were there and they showed Thacker the letters
which they were going to present to Simms and Hodge.
Thacker looked the letters over, and told Meyer and Wood-
ward that they should drop the whole Simms case. She had
found that Simms had not even come into the plant or the
grounds to pick up Hodge, but had met her down the street.
Thacker’s feeling was that Simms had done nothing wrong,
had no control over Hodge’s husband, and should not be dis-
ciplined in the matter.
At that point either Woodward or Meyer called Clark, who
came to Meyer’s office. Thacker repeated her request that
they drop the Simms discipline, but Clark refused. There was
some further discussion and Clark finally said that if Thacker
‘‘challenged him on it,’’ he might as well just terminate
them.’’3 Clark then left, and Simms was called in to receive
his disciplining letter.4
Thacker was concerned about the effects of her pursuing
a grievance on the matter. She told Simms that she would
rather fight a letter than his termination. She then discussed
the matter with Oldham and Raymond N. Larson, Inter-
national representative of the Graphic Communications Inter-
national Union, who was in Evansville in connection with
the contract negotiations. Larson told Thacker to file the in-
stant case with the National Labor Relations Board. She filed
the charge, but never did file any grievances on either
Hodge’s or Simms’ cases.
Mike Clark’s testimony on these issues differed in minor
respects from Thacker’s, but they were in substantial agree-
ment on the fact that Clark did tell her that if she pursued
the matter, he ‘‘might as well terminate’’ the two employees.
B. The Alleged Individual Bargaining
At the beginning of the negotiations between the Company
and the Union on January 7, the Company presented the
Union with a proposal to change from the current 8-hour
shifts to some kind of 12-hour 7-day-shift system for em-
ployees. The mechanics of these kinds of proposals are com-
plex and hard to understand. The evidence here does not go
into detail as to the proposal, but it was made, and rejected
by the Union. The Company then asked the Union for sug-
gestions, ideas or counterproposals on the 12-hour issue, but,
so far as the record shows, none were forthcoming. The par-
ties stipulated that the negotiations began on January 7,
lasted through nine sessions, and concluded on February 8.
The contract was ratified by the Union on February 9.
Sometime in January, according to the testimony of em-
ployee Donna Garrett, she had a conversation with Helen
Clark, Mike Clark’s wife, who was then employed in the
bargaining unit. Garrett asked Helen Clark why the Company
was so insistent on the 12-hour-day proposal, and asked
911KOCH LABEL CO.
5 This is taken directly from Donna Garrett’s testimony. Clark’s
version is substantially the same. Julie Ann Werne also testified, but
her testimony was rather vague, shifting, and inconsistent with the
testimony of Garrett and Clark, which I credit.
6 The fact that Carley did not testify does not give rise to any in-
ferences. There is no indication that Carley was not available to the
General Counsel under subpoena, as well as to the Company so his
failure to appear would not lead to an inference that he would have
testified, if he had appeared, in a way contrary to the Company’s
position. As far as what he said to Dennis, I found her testimony
to be credible and I have no problem finding that Carley did say
what she testified that he said.
7 The employee witnesses did testify that they thought Carley was
connected with management, but none could specify what that con-
nection was. Neither Carley, nor any of the employees in the quality
assurance department were called to testify here.
8 Blackstone, Commentaries, Vol. 1, Book 1, Ch. XVIII No. 472.
Helen Clark to find out from her husband if ‘‘something else
can’t be done; why won’t he listen to other suggestions.’’
Helen Clark said she would ask Mike about it.
Mike Clark testified that his wife told him that ‘‘Donna’’
had asked him about the 12-hour proposal, and whether he
would listen to suggestions. Now Mike Clark knew that one
Donna Steele was a member of the Union’s bargaining com-
mittee, and, while he was puzzled that she was not aware of
what the Company had said during negotiations, that they
were willing to listen to any suggestions or proposals on the
12-hour issue, he thought it might be helpful if he talked to
Donna Steele about the matter. He consulted with Company
President Robert Skau and Attorney Jon Goldman. The next
day, or a day later, Mike Clark went looking for Donna
Steele, but found that she was not in the plant. He then
talked to his wife, who told him that the questioner was not
Donna Steele but Donna Garrett. Clark again checked with
Skau and Goldman, and it was decided to go ahead and talk
to Garrett.
Clark approached Garrett at a cutter where she was work-
ing and he asked her if she wanted him to answer her ques-
tions at the time. She said she did. Clark then asked her to
come up to an area where employees Diana Schenk and Julie
Werne were working, so, as Clark put it, ‘‘we are not ac-
cused of doing something that we should not be doing.’’
Both Garrett and Clark agreed that he told the employees,
in answer to Garrett’s question, that the Company could do
something about the 12-hour proposal, that he had indicated
that to the Union but the Union had not responded. He con-
cluded by telling the employees that if they had any sugges-
tion he was willing to listen, but they should take it to the
Union and tell them to talk to him about it.5
In another incident, employee Peggy Dennis testified that
a neighbor of hers, Mike Carley, spoke to her about the 12
hours proposed. The conversation was in mid-January, but
Dennis was not asked whether it happened at the plant or in
their neighborhood. She said that she did not recall whether
she or Carley brought up the subject of the negotiations, but
she did say that Carley asked her how she felt about the
‘‘twelve hours.’’ She replied that she was tired when she had
to work overtime and that she felt that some of the older
women would not be able to work a 12-hour shift. Carley
told her that there were other ways of scheduling the 12
hours, that the Company needed this type of scheduling to
expand and grow, and asked her to ‘‘talk it up to the other
employees.
Carley did not testify6 and, while this testimony was
somewhat vague, I find that the talk did happen, and that
Carley did urge Dennis to talk up the Company’s position
among the other employees.
The complaint here alleges that Carley is a ‘‘Technical
Manager, quality Assurance Department,’’ and that he is a
supervisor and agent of the Company. This allegation was
denied by the Company in its answer. Mike Clark testified
that Carley is a quality control technician whose primary du-
ties are to monitor the type and quality of incoming raw ma-
terials, inks and papers and such, and the quality of outgoing
labels produced by the Company. He is a salaried employee,
earning $40,000 a year at the time of this hearing, and re-
porting to the head of the Company’s quality assurance de-
partment, Alan Bartnik. Carley receives benefits which are
reserved to nonbargaining unit employees, including both
managerial and supervisory employees, but also clerical em-
ployees. There is no evidence here that Carley exercises any
of the supervisory indicia set out in Section 2(11) of the Act.
Indeed, the testimony of Mike Clark, as well as that of em-
ployee witnesses Dennis, Garrett, Werne, and Thacker, gives
clear indications that Carley does not exercise any of these
statutory functions.7
Nor is there any evidence that Carley was an agent of
management, or acted so as reasonably to give the impres-
sion that he was a representative of, or spoke for, manage-
ment.
I cannot find in these circumstances that Carley was a su-
pervisor, or a manager, or that he appeared to employees to
be an agent of management.
C. Analysis
I appreciate the fact that this Company and this Union
have maintained a relationship since a ‘‘time whereof the
memory of man runneth not the contrary;’’8 and the facts
shown here that the relationship between Clark, the vice
president for administration, and Linda Thacker, the Union’s
chief steward, was a comfortable, easy, long time, relation-
ship. However, even in these circumstances, neither one
party nor the other is entitled to use the relationship to at-
tempt to diminish the statutory rights of the other. Here
Thacker and Clark are in agreement on the key words used
by Clark—if Thacker persisted (on behalf of these employ-
ees, and the Union) then he might as well terminate Simms
and Hodge. It doesn’t matter whether he would have done
it or not. Thacker, who, as I have noted, knew Clark well
said she believed he would have fired Simms and Hodge. In-
evitably such a statement interferes with the right of employ-
ees and I find that Clark’s statement is a violation of Section
8(a)(1) of the Act. American Freightways Co., 124 NLRB
146 (1959).
I do not feel the same way about the additional allegation
that Clark acted in violation of law in his conversation with
Garrett, Werne, and Diane Schenk in mid-January. Clark’s
version of the conversation as substantially corroborated by
Donna Garrett, seems to me to be both logical and credible.
The question then comes, whether Clark’s comments to
these three women, in and of themselves, show an intent to
frustrate the bargaining process or to avoid the Company’s
bargaining obligation. I do not believe that those remarks, as
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
reported by Garrett and Clark himself show that to be the
case. Clark’s attitude was noncoercive. He ‘‘fully acknowl-
edged the Union’s rightful role as the employees’’ statutory
bargaining representative,’’ and there was no suggestion that
the employees ‘‘abandon their Union and negotiate for better
terms’’ with the Company. United Technologies Corp., 274
NLRB 609 (1985). Rather, Clark’s conduct indicates a sensi-
tivity to the relations between the employees and their
Union, and I find that his only purpose was to foster under-
standing and consideration for the employees, emphasizing
that these employees should talk to their bargaining rep-
resentative.
I do not find this to be a violation of Section 8(a)(1) or
(5) of the Act. United Technologies, supra.
With respect to the Carley incident, I find that, even if
Carley is found to be a supervisor and agent of the Company
in this context, his remarks to Peggy Dennis, that he felt that
12-hour shifts were important to the Company, and that she
should talk about the issue to other employees did not violate
Section 8(a)(1) or (5), United Technologies, supra.
IV. THE REMEDY
Having found that the Company has violated Section
8(a)(1) of the Act, I shall recommend that it cease and desist
therefrom.
CONCLUSIONS OF LAW
1. The Respondent, Koch Label Company, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Graphic Communication Local 117–C, a/w
Graphic Communication International Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By threatening to discharge employees Hodge and
Simms if the Union pursued contractual grievance procedure,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. The Respondent has not engaged in any other unfair
labor practices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Koch Label Company, Inc., Evansville,
Indiana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge or otherwise discipline em-
ployees if the Union proceeds to file grievances over other
lesser disciplinary action.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate these policies of the Act.
(a) Post at its facility in Evansville, Indiana, copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.