Paperworkers Local 710 (Stone Container)

National Labor Relations Board - Board Decisions

Jul 31, 1992

308 N.L.R.B. 95 (N.L.R.B. 1992)

95
308 NLRB No. 19
PAPERWORKERS LOCAL 710 (STONE CONTAINER)
1 The Respondent Union has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In agreeing with the judge’s conclusion that the Respondent Union
violated Sec. 8(b)(1)(A) through statements made to employees
Briscoe and Kish in the course of soliciting them for membership,
we find it unnecessary to rely on the judge’s speculation that the so-
licitation stemmed from a financial need on the part of the Union.
Member Oviatt finds that the judge’s acknowledged speculation is
helpful in understanding this case and he would permit the judge to
express his opinion concerning the motive underlying the Union’s
unlawful conduct.
We note that the first sentence in sec. III,B, par. 8, of the judge’s
decision should read, ‘‘Dear does not recall any such conversation
. . . .’’
1 Sec. 14(b). Nothing in this Act shall be construed as authorizing
the execution or application of agreements requiring membership in
a labor organization as a condition of employment in any State or
Continued
United Paperworkers International Union, Local
#710 and Stone Container Corporation. Case
27–CB–2945
July 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 17, 1991, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent Union filed exceptions and a supporting
brief and the General Counsel filed an answering brief.
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,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Paperworkers Inter-
national Union, Local #710, Denver, Colorado, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
Chet Blue Sky and Michael J. Belo, for the General Counsel.
Lynn Agee, of Nashville, Tennessee, for the Respondent.
Alex V. Barbour (Jenner & Block), of Chicago, Illinois, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Denver, Colorado, on July 18, 1991,
on a complaint issued by the Regional Director for Region
27 of the National Labor Relations Board on March 26,
1991. The complaint is based on a charge filed by Stone
Container Corporation (the Employer) on January 30, 1991.
It alleges that United Paperworkers International Union,
Local #710 (Respondent or the Union) has committed certain
violations of Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act).
Issues
At the hearing, I granted the General Counsel’s motion to
amend the complaint in two ways. First, I permitted it to de-
lete subparagraphs 5(c), (d), (e), and (f). Second, I permitted
it to add subparagraph 5(i). As amended the complaint al-
leges, and Respondent denies, that Respondent has restrained
and coerced certain of Respondent’s nonunion employees by
threatening them with loss of employment if they did not be-
come members on the Union’s winning a so-called ‘‘closed
shop’’ election and by telling an employee that if he testified
against the Union at this hearing, his place of employment
would no longer be a very pleasant place to work.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties have
filed briefs which have been carefully considered. Based on
the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits the Employer is a corporation engaged
in the manufacture of corrugated paper boxes at its facility
in Denver, Colorado, where it annually sells and ships goods
valued in excess of $50,000 to points and places outside Col-
orado. Accordingly, Respondent admits and I find the Em-
ployer to be an employer engaged in commerce and in an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits it is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and the Employer have had a collective-bar-
gaining relationship for about 6 years. Their most recent col-
lective-bargaining contract expired on March 1, 1991. Nei-
ther it nor the previous agreement contained a union-security
clause and no form of compulsory union membership has
been in effect. During the summer and fall of 1990, Re-
spondent’s officials came to believe that an important provi-
sion for the successor agreement was a union-security clause
of some kind.
The State of Colorado, under the authority of Section
14(b) of the Act,1 has chosen to allow union-security clauses
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
territory in which the execution or application is prohibited by State
or territorial law.
2 In pertinent part, Sec. 8–3–108(1) reads: ‘‘It is an unfair labor
practice for an employer . . . to:
(c)(I) Encourage or discourage membership in any labor organi-
zation . . . except that an employer shall not be prohibited from
entering into an all-union agreement with the representatives of
his employees in a collective bargaining unit if such all-union
agreement is approved by the affirmative vote of at least a ma-
jority of all employees eligible to vote or three-quarters or more
of the employees who actually voted, whichever is greater, by
secret ballot in favor of such all-union agreement in an election
provided for in this paragraph (c) conducted under the super-
vision of the director [of the Division of Labor of the Depart-
ment of Labor and Employment].
Sec. 8–3–104(1) defines the term ‘‘all-union agreement’’ as ‘‘a con-
tractual provision between an employer . . . and a collective bar-
gaining unit representing some or all of the employees of the em-
ployer . . . providing any type of union security and compelling an
employee’s financial support or allegiance to a labor organization.
‘All-union agreement’ includes, but is not limited to, contractual pro-
vision for a union shop, a modified union shop, an agency shop . . .
a modified agency shop, a prehire agreement, maintenance of dues,
or maintenance of membership.’’
3 All of Respondent’s officers about whom there was testimony are
employed by the Employer. I infer that none are actually employed
by the Union, but come from the Employer’s bargaining unit.
in collective-bargaining contracts only after it has conducted
a secret ballot election where a majority of the bargaining
unit has voted in favor of such a clause. Even in that event,
however, the actual inclusion of such a clause in the agree-
ment is left to the bargaining strength of the parties. More-
over, that statute does not limit the contracting parties to any
specific type of union-security clause. See the Colorado
Labor Peace Act, Colo. Rev. Stat. (1986) § 8-3-104 and
§ 108.2
The parties have stipulated, and the evidence shows, that
Respondent filed a petition with the Colorado Department of
Labor and Employment for a so-called ‘‘all-union’’ election
under that statute on January 9, 1991. The Employer did not
offer any opposition to the petition and on January 24 an
election was ordered. The election was conducted on Feb-
ruary 14. The outcome of the election is not germane to the
issues here, but the employees did vote in favor of authoriz-
ing Respondent to negotiate for a union-security clause in the
new contract. It is against this background that the alleged
unfair labor practices took place.
B. The Conduct
Briscoe: Michael Briscoe is a machine operator who has
worked for the Employer for about 10 years. He is not a
member of the Union. He testified that Respondent’s vice
president, Bob Welpton, spoke with him at his machine on
a September 1990 afternoon. Welpton is also employed by
the Employer.3 Briscoe says Welpton asked him if he was
ready to join the Union. Briscoe replied that he was not.
Welpton then said, according to Briscoe, ‘‘It [is] going to be
a closed shop pretty soon, and . . . [You] could join the
Union now for $10 or so, but when they close it, [you will]
have to pay $100 to join.’’ Briscoe then reports that Welpton
said he’d have to join the Union when (the shop became)
closed or he’d lose his job. Briscoe asked how Welpton
could do that, and Welpton relied he ‘‘could do like he want-
ed to do.’’ He could ‘‘charge what he wanted to charge and
do it like he wanted to do it.’’
A second conversation occurred between Briscoe and
Welpton in early January 1991 in the breakroom. Welpton
offered Briscoe a union card and asked again if he was ready
to join. Briscoe once more declined saying he was not ready.
Welpton then said, ‘‘[T]he election is coming up pretty soon
and [you] don’t have much time . . . it is going to cost
[you] a lot more to join if [you] wait until [you are] forced
to join.’’
Both Welpton and Recording Secretary Scott Dear testified
that Respondent, sometime in the summer of 1990, had
begun to take steps to raise its initiation fee from $10 to $41.
Dear said the Union voted on August 11, 1990, to approve
the increase. Even so, it never was put into effect due to op-
position from the Union’s International representative who
found it procedurally defective.
Welpton at one point said he ‘‘may have’’ have had a con-
versation with Briscoe about initiation fees while operating
under the belief that the initiation fees were going to be in-
creased. Later, he was more positive that he had spoken to
Briscoe ‘‘at least once’’ about it. His recollection is not very
strong, but thinks it may have occurred the Monday after the
vote to increase the initiation fees, i.e., August 13, 1990.
Whenever it was, he says Briscoe asked him the amount of
the initiation fee. He told Briscoe it was $10. Briscoe then
asked if the Union had had a meeting to raise them. Welpton
replied ‘‘Yes, to $41.’’ He says he may have told Briscoe
it could go as high as $110.
Welpton denies telling Briscoe that he would have to pay
an initiation fee at that time to avoid a higher fee later. He
said that their conversation was ‘‘not like that.’’ In addition,
he says he did not use the phrase ‘‘closed shop’’ in the con-
versation. He says, in reference to the state election, he used
the phrase ‘‘union security agreement,’’ a phrase he had
heard used by the state official with whom the union officers
had spoken.
He also testified, unlike Dear who said he had, that he
made no effort to try to solicit members before the state elec-
tion. He said employees sometimes come to him to ask about
joining, but he made no special effort in that regard. He says
he is not even certain who is and who is not a member. He
does agree that the Union would be better with more mem-
bers. Dear, on the other hand, readily agreed that before the
state election he solicited nonmember employees to join and
thought that the other officers had, too, although he doesn’t
know what steps the others, such as Welpton, took in this
regard. I find Welpton’s denial on this point somewhat odd.
He even keeps union cards in his locker.
Kish: Edward Kish is also a production worker for the
Employer. He has been so employed for about 8 years. Al-
though a member after the Union first became the employee
representative, he became disenchanted and resigned after
about a year. Union Recording Secretary Dear is a coworker.
Kish testified that in late December 1990 or early January
1991, while they were having lunch and discussing music,
Dear changed the subject to the union initiation fee. He told
Kish that the fee had gone up to $160. When Kish asked
why, he explained that the fee hadn’t changed since the
union had been voted in. Kish opined that the $160 fee was
‘‘ridiculous’’ and ‘‘not right.’’ According to Kish, Dear went
on, ‘‘When it’s a closed shop, if you don’t join the Union,
97PAPERWORKERS LOCAL 710 (STONE CONTAINER)
4 The reference to the election strongly suggests the conversation
occurred in December 1990 or January 1991.
5 Lang and Dear are long-time friends. They have known each
other since high school in 1978 and socialize together.
6 In some respects Kish was not an ideal witness. He was nervous
to excess, inarticulate, overeager, and quick to interpret. Even so, his
recollection is supported by both employee and union witnesses.
There is no reason to discredit him on the basis of his demeanor.
you will be out the door.’’ Kish asked, ‘‘Just like that? Isn’t
there a time I have to make a decision?’’ Both agree that
Dear did not know if there was some sort of grace period.
Kish does not recall any such conversation in December
or January, but does say that something similar occurred in
August or September 1990. He says Kish came to him after
speaking to another employee, Rod Crow. Kish claimed
Crow had told him ‘‘if the the vote passed and he refused
to join, he’d be out the door.’’4 Kish wanted to know if
Crow was right. Dear said he explained: The Company
would have to agree to the vote; if an all-union agreement
was reached, Kish would have to pay union dues; there
would be a certain amount of time Kish would be allowed
in which to join (though Dear didn’t know the length of the
grace period); if he didn’t, he would be disqualified by the
Union and the Company would have to terminate him.
Dear denies using the term ‘‘closed shop’’ and specifically
denies telling Kish that when the shop became ‘‘closed’’ he
would be out the door. At one point he said he could not
recall the expression ‘‘closed shop’’ being used in the plant.
Yet, at another, he admitted he had heard the term used
there.
Dear also says, probably in the same conversation, Kish
told him he’d heard the initiation fee was going to $160. He
says he told Kish that the increase was to $41 and that it
could not go higher than $120. He denies telling Kish that
he needed to pay the $10 fee now, before it became a
‘‘union’’ or ‘‘closed’’ shop or he would have to pay the
higher fee.
On June 27, 1991, about 3-1/2 weeks before this hearing,
Kish and Dear had a conversation in the locker room during
a shift change. Although the record is not clear regarding
what triggered the conversation, I infer that Kish had either
just received a subpoena or had been notified that he would
have to testify at this hearing. He wanted to explain himself
to Dear, and recalls saying something to the effect that he
hoped Dear wouldn’t blow (his being a witness) out of pro-
portion. He remembers fellow employee John Lang, who had
just come in, interrupted saying he (Lang) had gotten out of
the Union because it was full of shit. Kish explained to the
somewhat mystified Dear5 that others felt the same way, de-
scribing as an example one Darrell (last name unknown) who
had ‘‘been suckered into the Union’’ for fear of having to
pay a higher initiation fee later.
As this uncomfortable conversation came to an end, Kish
says Dear told him, ‘‘Anybody who testifies against the
Union, it’s not going to be a very pleasant place to work.’’
Lang corroborates Kish quoting Dear as saying, ‘‘I’d hate to
have to be put in the position of testifying against [either the
‘people’ or the ‘Union,’ he is not sure which] and then still
having to work here.’’ This remark so upset Kish that he told
his supervisor about it. At the supervisor’s suggestion he also
told the plant manager.
With respect to the June 27 locker room remarks, Dear’s
version is not all that different. He recalls it in somewhat
better detail, but ultimately agrees that he said, ‘‘I personally
would not want to be in that situation,’’ explaining, ‘‘I
would hate to go down there and testify against people that
I was going to have to work with.’’ Later, in response to
Kish’s dismay that others might get angry over someone
looking out for his job, Dear agreed that was unfortunate, but
both knew that ‘‘stuff happens to people’s stuff down there.’’
When Kish asked if anything would happen to him, Dear re-
plied, ‘‘No. I’m not threatening you or anything else. I’m not
saying anything would happen ’cause I don’t know if any-
thing would. I’m just saying I personally would not want to
have to deal with that.’’ In fact, Kish agrees that Dear him-
self would not have committed the type of ‘‘stuff’’ (mis-
conduct) being referred to, i.e., automobile vandalism. Even
so, the remark was hardly limited to that level of mis-
behavior. Kish, who may be overly sensitive,6 already be-
lieved he had been the victim of ‘‘messages’’ such as earlier
being unnecessarily bumped by Dear while walking through
the plant.
IV. ANALYSIS AND CONCLUSIONS
Although the case presents some credibility problems, I do
not think they are difficult. The entire matter occurred
against the backdrop of the Colorado ‘‘all-union’’ election.
Although it may be true that the State does not require a
‘‘showing of interest’’ comparable to that required by the
National Labor Relations Board in its administration of elec-
tions, and therefore Respondent was not under any outside
pressure to obtain additional memberships, I think it is clear
that the Union nonetheless believed it was important to make
a strong showing in the state-conducted election. If nothing
else, that might be considered a show of strength when it
came time to actually negotiate the clause. To that end, I find
that both union officials, Welpton and Dear, made efforts to
solicit nonmembers to join. I know that Welpton denied
making any special efforts in this regard, but I cannot credit
his testimony. Union officials are always on the lookout for
new members; that is their job. The election was an addi-
tional reason to seek them out. Dear certainly did; I doubt
Welpton would be any different. Moreover, given the fact
that the election did not begin to materialize until late De-
cember 1990, I regard Dear’s testimony that his first con-
versation with Kish occurred as early as August to be in
error. I find that all his discussions occurred in December or
afterwards. Indeed, Dear’s own testimony so suggests, de-
spite his assertion that the incidents occurred earlier.
Therefore, I find Briscoe’s testimony that Welpton was so-
liciting his membership to be credible. In that circumstance,
Welpton’s denial must be regarded as evasive. But why?
There is nothing inherently improper about a union officer
soliciting an employee to join a union. Does he, despite his
claim of ignorance, know that a closed shop is illegal? Did
he, with that knowledge, nonetheless use the phrase to coerce
a reluctant Briscoe to join? And then, knowing that was im-
proper, did he attempt to conceal his act behind a denial
claiming ignorance? I tend to think so.
Similarly I find Kish’s testimony regarding Dear’s effort
to solicit him to also be credible and Dear’s purpose to be
the same as Welpton’s. Indeed, I think the Union’s abortive
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The State’s use of the phrase ‘‘all-union agreement’’ may have
been part of the confusion. One way to interpret the term ‘‘all-
union’’ is that all employees must be union members. That may very
well equate, in the minds of some, to a ‘‘closed shop.’’ The statute
makes it clear that ‘‘all-union’’ means no such thing, but the short-
hand which has arisen suggests to me that such confusion may have
contributed to the situation here.
effort to raise the initiation fee supports a motive to press
nonmembers. If the Union had come to believe that increased
initiation fees were needed to offset some financial need, and
if, as happened, that increase was aborted, the financial need
would still exist. An obvious way to try to meet that need
would be to increase the membership. If the need were ur-
gent, the union officials might well deem it necessary to re-
sort to coercion. I recognize that some of this is speculation
on my part, but I doubt it is far wrong. Clearly this Union
deemed it necessary to resort to high pressure. Why else
would its officials resort to a claim that the state election
would require membership on ‘‘closed shop’’ basis?
The only other possibility is that these officials were so ig-
norant of the law prohibiting closed shops that they somehow
became entangled in terminology which they did not under-
stand. Indeed, neither Welpton nor Dear was able to properly
define the terms. It may be, as I observed at the hearing, that
this is all the result of a massive misunderstanding, not only
of what the state election would provide, but what sorts of
compulsory membership one might obtain on the electorate’s
authorizing such a clause. Maybe they thought the expression
‘‘closed shop’’ was the same as ‘‘union security clause’’ or
‘‘union shop’’ or ‘‘agency shop’’ or ‘‘maintenance of mem-
bership.’’ If so, this entire proceeding could have been avoid-
ed by some education.7
But, all these are special terms of art. All are forms of the
generic phrase ‘‘union security.’’ One, the closed shop, was
declared illegal by the Taft-Hartley Act in 1947. See Section
8(a)(3) and Section 8(b)(2) of the Act. Indeed, Colorado law
does so as well. The others are all lawful. Even so, none of
the other forms of compulsory unionism requires union
membership as defined by any union’s constitution. Com-
pelled membership is really only a duty to pay the uniform
periodic dues and fees as described in Section 8(a)(3) of the
Act. An employee is free, however, to join the union as a
constitutional member if he and the union so agree.
At the Employer’s place of business, there was at the time
of this hearing, no form of compulsory union membership.
It was an ‘‘open shop’’ and will continue to be so until such
time as a lawful union-security clause becomes a part of the
collective-bargaining contract.
That is as it should be, for Section 7 of the Act protects
the right of employees to refrain from union activity as well
as protects the right to engage in it. The only limitation on
that right to refrain from union activity is in circumstances
where the employer and the union have entered into a collec-
tive-bargaining contract which requires the employee to pay
as a condition of continued employment some sort of fee in
return for the collective-bargaining services which the union
performs. The nature of the fee is regulated by Section
8(a)(3) and Section 8(b)(2) and (5) of the Act.
Section 8(b)(1)(A) of the Act prohibits unions from re-
straining or coercing employees in the exercise of their right
to refrain from union activity. This is so even in the absence
of any form of compulsory payments to a union. The re-
straint and coercion which that section prohibits may be sub-
tle or even unlikely to succeed. The test for a violation of
that section is whether the union’s statements reasonably
tend to have a coercive effect and does not depend on its ac-
tual effect on listeners. Steelworkers Local 5550 (Redfield
Co.), 223 NLRB 854, 855 (1976); Clothing & Textile Work-
ers Local 990 (Troy Textiles), 174 NLRB 1148 (1969).
I find that Respondent’s officials Welpton and Dear told
employees Briscoe and Kish some falsehoods designed to
convince them to join the Union. Specifically, I find they
told them that there would shortly be imposed a closed shop
system at the Employer’s business; that they would be re-
quired to join the Union and if they did not do so, they
would be discharged. In addition, Welpton and Dear said to
avoid that circumstance, the employees should join the Union
now, while the initiation fee was low, only $10, because if
they waited, the dues would be substantially increased. I
credit both Briscoe and Kish that the two union officers said
that fee would be in excess of $100.
It is true that both Briscoe and Kish had doubts whether
any of those remarks were true. In that sense they did not
believe what they were being told. They knew that the Union
could not obtain their discharge without the Employer’s co-
operation. Even so, the remarks unsettled and confused them.
The remarks were untrue and had the tendency to confuse
not only the easily confused such as Kish, but anyone else.
Welpton and Briscoe were union officials who supposedly
had greater knowledge about employee obligations than rank-
and-file employees. Such employees could only look on their
assertions as coming from persons with expertise. In creating
apprehension, by actively misleading them, Dear and
Welpton took advantage of their station. Clearly that had the
reasonable tendency to coerce these two employees in their
right to refrain from Section 7 activity; to refrain from join-
ing the Union when there was no legal obligation to do so.
The Board has said, looking at the legislative history of
Section 8(b)(1)(A), that the Congressional intent was to pro-
tect the Section 7 right to refrain from union activity and to
prevent coercion aimed at persons who wished to exercise
that right. In Teamsters Local 420 (Gregg Industries), 274
NLRB 603, 604–605 (1985), the Board noted comments by
the cosponsors of the bill, Senators Ball and Taft. Both said
the purpose behind the bill was to prevent and prohibit
unions from coercive organizational tactics such as charging
employees higher fees or dues if an employee does not join
when first asked. That case relies on Maritime Union, 78
NLRB 971 (1948), enfd. 175 F.2d 686 (2d Cir. 1949), de-
cided shortly after the section’s enactment, and which ob-
serves that Congress wanted to eliminate, among other
things, ‘‘the use by unions of threats of economic action
against specific individuals in an effort to compel them to
join.’’
Clearly, Respondent’s use of the ‘‘closed shop’’ language,
coupled with the threat of increased fees as described here
falls within the precise concern of the Congress. Indeed, Troy
Textiles, supra, presented a fact pattern almost identical to
this one. There, an employer in a right-to-work State, had an
open shop collective-bargaining contract. When it announced
it was being sold, some union officials told the employees
who had never joined the union, that the buyer would not
retain them as employees unless they did so. As here, there
were skeptics who did not believe it. They knew it would
99PAPERWORKERS LOCAL 710 (STONE CONTAINER)
8 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.
9 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.’’
take the buyer’s cooperation. Moreover, as the sale had not
yet been completed there was nothing urgent. The trial exam-
iner observed that ‘‘the union agents’ very purpose in mak-
ing the statements was to create among the employees some
degree of apprehension for their jobs because of lack of
union membership, an apprehension from which Congress, in
enacting Sections 14(b) and 7 of the Act, intended that these
particular employees be entirely free.’’ The Board affirmed
the trial examiner’s finding of a violation of Section
8(b)(1)(A). Likewise, I, too find such a violation. See also
Hotel & Restaurant Employees Local 2 (Zim’s Restaurants),
240 NLRB 757, 761 (1979).
With respect to the allegation that on June 27, 1991, Dear
coerced Kish regarding his testimony in this hearing, I find
that he did. There is really very little in dispute here. Kish
and Lang’s testimony is not really denied by Dear. He sim-
ply puts it in a different light, turning the incident into his
personal opinion. It is true that Kish began the conversation,
an apparent effort to ameliorate the personal differences he
perceived being triggered by the hearing. Yet, there was sim-
ply no need for Dear to refer to any sort of reprisal, intended
or not, mild or strong. Whether he said Kish’s testimony
would mean that it would not be a pleasant place for Kish
to work any more or whether he said he personally would
not want to be in Kish’s situation, is not important. Either
version constitutes a subtle threat and an effort to dissuade
Kish from testifying. Compare Firestone Steel Products Co.,
228 NLRB 1040 (1977). There Respondent’s lawyer jokingly
told an employee, ‘‘Well, if I was you, I’d keep my nose out
of it [an NLRB hearing].’’ The Board found that despite the
jocular nature of the remark it nonetheless interfered with the
employee’s right under Section 7 to give testimony before
the Board. Likewise, Dear’s remark had the tendency to co-
erce Kish with respect to his giving testimony. Redfield Co.,
supra at 855. Again, the test is not whether the coercion was
strong or subtle, nor whether it succeeded. The test is wheth-
er the remark had a reasonable tendency to restrain or coerce
an employee from vindicating a protected right—to give tes-
timony to the Board about facts constituting an alleged unfair
labor practice. Dear’s remark, under either version, reason-
ably tended to do so.
THE REMEDY
Having found Respondent to have engaged in certain vio-
lations of Section 8(b)(1)(A) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies
of the Act. I shall not, however, accept the General Coun-
sel’s request that Respondent be ordered to advise employees
of the existence of financial core membership or that fees
and dues may be less than required under Respondent’s con-
stitution and bylaws. See Communications Workers v. Beck,
487 U.S. 735 (1981). That should be considered only where
compulsory union membership is lawfully in place but has
been abused. I regard the request as premature.
Based on the foregoing findings of fact and the record as
a whole, I make the following
CONCLUSIONS OF LAW
1. Stone Container Corporation is an employer engaged in
commerce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent, United Paperworkers International
Union, Local #710, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. In September and late December 1990 and early Janu-
ary 1991, Respondent, acting through its officials Bob
Welpton and Scott Dear, restrained and coerced the Employ-
er’s employees within the meaning of Section 8(b)(1)(A) of
the Act by threatening them with loss of employment and
higher initiation fees if they did not become members of Re-
spondent.
4. On June 27, 1991, Respondent, acting through Dear,
violated Section 8(b)(1)(A) of the Act by coercing an em-
ployee not to testify in this proceeding before the National
Labor Relations Board.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, United Paperworkers International Union,
Local #710, Denver, Colorado, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Threatening the employees of Stone Container Cor-
poration with loss of employment and higher initiation fees
if they do not become members.
(b) Coercing employees not to testify in proceedings be-
fore the National Labor Relations Board.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its office and bulletin boards in Denver, Colo-
rado, copies of the attached notice marked ‘‘Appendix.’’9
Copies of the notice, on forms provided by the Regional Di-
rector for Region 27, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Stone Container Corporation,
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if willing, at all places where notices to employees are cus-
tomarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten employees with loss of employ-
ment and higher initiation fees if they do not become mem-
bers.
WE WILL NOT coerce employees from testifying in pro-
ceedings before the National Labor Relations Board.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
UNITED PAPERWORKERS INTERNATIONAL
UNION, LOCAL #710