Rock-Tenn Co.

National Labor Relations Board - Board Decisions

Nov 30, 1994

315 N.L.R.B. 670 (N.L.R.B. 1994)

670
315 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
The General Counsel has excepted to the judge’s failure to make
findings of fact and conclusions of law concerning the complaint al-
legation alleging that the Respondent verbally reprimanded employee
Kathy Ellis in violation of Sec. 8(a)(3). We find it unnecessary to
pass on this issue as the finding of an additional violation would be
cumulative.
The judge incorrectly cited Firestone Steel Products Co. and
Burnup & Sims, Inc. The correct citations to these cases are 228
NLRB 1040 and 379 U.S. 21, respectively.
2 In his remedy, the judge found that the certification year should
be extended for 1 year to allow for meaningful bargaining between
the parties. In the circumstances here, we find a 6-month extension
of the certification year to be appropriate. In this regard, we note
that the certification issued February 22, 1991, that the parties held
some 15 bargaining sessions between May 20 and October 10, that
the parties made progress on contract terms during those negotia-
tions, and that there is no allegation that the Respondent bargained
in bad faith during this period. See, e.g., Suzy Curtains, Inc., 309
NLRB 1287 (1992); see also Haymarket Bookbinders, 183 NLRB
121 (1970); and Colfor, Inc., 282 NLRB 1173 (1987). We shall
modify the Order to provide for a 6-month extension of the certifi-
cation year.
Member Devaney agrees with the judge that in the circumstances
present here the certification year should be extended for 1 year to
allow sufficient time for meaningful bargaining between the parties.
Member Devaney would find that the Respondent’s unfair labor
practices both during and after the certification year would nec-
essarily have undermined the Union’s bargaining position and effec-
tively negated whatever had been achieved in the bargaining rela-
tionship up to that point. See Outboard Marine Corp., 307 NLRB
1333, 1348 (1992).
In the last paragraph of sec. II,B,4 of his decision, the judge found
that the Respondent violated Sec. 8(a)(5) by ‘‘announcing that it
would withdraw recognition at the expiration of the certification
year.’’ He failed, however, to include this anticipatory withdrawal of
recognition violation in his recommended Order. We shall further
modify the Order to include this violation.
3 Because the judge found that the Respondent lacked a good-faith
reasonable doubt of the Union’s majority status, he also found that
the Respondent violated Sec. 8(a)(5) by conditioning agreement to
an initial contract on a contract term coextensive with the certifi-
cation year. For the reasons explained below, we adopt his finding
of this violation.
Rock-Tenn Company and United Paper Workers
International Union, AFL–CIO, CLC, and Its
Local No. 907. Cases 25–CA–21739–1–2, 25–
CA–21758, 25–CA–21879, 25–CA–22003, 25–
CA–22051–2, 25–CA–22051–4, 25–CA–22051–5,
and 25–CA–22137
November 30, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On May 25, 1993, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions with a supporting brief and
an answering brief, the General Counsel filed cross-ex-
ceptions with supporting argument and an answering
brief, and the Charging Party 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 the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt his recommended Order as
modified.2
A central issue in this case is whether two employee
petitions, circulated some months apart during the cer-
tification year, furnished the Respondent with objective
evidence sufficient to support a good-faith reasonable
doubt of the Union’s majority status that justified its
otherwise unlawful announcement that it would with-
draw recognition from the Union at the end of the cer-
tification year. Finding that they did not, the judge
concluded that the Respondent violated Section 8(a)(5)
by anticipatorily withdrawing recognition from the
Union.3 Because the judge found that the Union con-
tinued in its status as the exclusive bargaining rep-
resentative of the unit employees after the certification
year, he also found that the Respondent violated Sec-
tion 8(a)(5) by refusing to furnish the Union requested
information, by refusing to bargain with the Union for
a successor agreement, and by withdrawing recognition
from the Union at the end of the certification year.
The Respondent excepts, inter alia, to the judge’s
finding that it lacked objective evidence of the Union’s
loss of majority status and to his finding that it vio-
lated Section 8(a)(5) by the conduct described above.
In support of these exceptions, the Respondent con-
tends that it was entitled to rely on both the May and
September 1991 employee petitions as objective evi-
dence of the Union’s loss of majority status and that
the judge erred in finding that such reliance was im-
proper. In this regard, the Respondent asserts that the
judge erred in finding that the May petition was
‘‘stale’’ by the time the Respondent announced its be-
lief that the Union had lost its majority support and in
finding that it had been ‘‘supplanted’’ by the Septem-
ber petition. The Respondent also asserts that the judge
erred in finding that the September petition was not
objective evidence of employee sentiment because it
was tainted by the Respondent’s unfair labor practices.
We find these exceptions without merit and, for the
reasons explained below, adopt the judge’s findings of
these 8(a)(5) violations.
The facts, as are more fully set out by the judge, are
as follows. In brief, the Respondent manufactures,
sells, and distributes recycled paperboard and related
products from its Columbus, Indiana facility. On Feb-
ruary 22, 1991, the Union was certified as the collec-
671ROCK-TENN CO.
4 Of the approximately 142 employees in the bargaining unit at
that time, 78 voted for and 57 voted against the Union. During 1991
and 1992 there were approximately 155 or 156 employees in the bar-
gaining unit.
5 All dates henceforth are between May 1991 and February 1992
unless otherwise indicated.
6 The judge found that the names of three employees, Jim West,
Derrick Watts, and Theresa Bradley, bracketed on the petition with
the notation ‘‘Carried over from back page,’’ did not appear on a
back page of the four-page petition. Therefore, the judge subtracted
their names from the petition. However, the signatures of these three
employees are, in fact, contained on the back of the second page of
the petition. For the reasons set out below, the judge’s inadvertent
error does not affect the result of our decision.
7 The petition states:
We the undersigned employees of Rock-Tenn, Columbus, In.
do not wish to be represented by the United Paperworkers Inter-
national Union. Therefor [sic] would like to request a revote
February 15, 1992. We have learned that union leaders are
searching for unfair charges so as to void this revote.
8 Three names were added as of December 6.
9 The application cards read:
I hereby request and accept membership in the United Paper-
workers International Union, AFL–CIO, CLC and do authorize
said Union, through its agents to represent me in collective bar-
gaining and enter into contracts with my employer.
tive-bargaining representative of the Respondent’s pro-
duction and maintenance employees.4 The parties
began collective bargaining on May 20, 1991,5 and
held 15 meetings through October 10. Although the
parties made some progress in negotiations, they had
not reached agreement on certain economic issues,
dues checkoff, and contract duration. As to the latter,
the Union had proposed contract terms of 1 to 3 years.
The Respondent had not responded to these proposals,
nor had it ever challenged the Union’s majority status.
Meanwhile, in late May, employee Glenda Sowders
gave Young, the Respondent’s general manager, an
employee petition dated May 23, 1991, that contained
approximately 60 signatures. The petition stated that
the undersigned felt ‘‘that it [was] not in [their] best
interest to be represented by the [Union].’’ Sowders re-
trieved the petition from Young in June and returned
it to him later that month with 80 signatures.6
A few months later, on September 24 or 25,
Sowders and fellow employee Holly Trimble discussed
the Union with Young. When Trimble stated that the
Union was in and nothing could be done about it,
Young responded that with their help, the ‘‘Union
could be taken out of here.’’ When they asked how,
Young responded that they would need to circulate a
petition for a decertification election. Young dictated
the language of the petition to Trimble.7 Trimble and
Sowders then circulated the petition both on their own
time and on worktime. In mid-October, Sowders gave
Young part of the September 25 petition. As of Octo-
ber 16, the list contained 66 names.8 Included on the
list were the names of 11 employees who had not
signed the May petition. Adding these 11 employees to
the 80 who had signed the earlier petition, Young con-
cluded that 91 employees, over half the bargaining
unit, were dissatisfied with the Union.
Relying on this ‘‘objective evidence’’ of the Union’s
loss of majority status, at the October 16 bargaining
session the Respondent for the first time conditioned
agreement on an initial contract to a term coextensive
with the certification year that ended February 22,
1992. Forrester, the Respondent’s counsel, explained
that the Respondent had evidence that the Union no
longer had majority support and that in those cir-
cumstances it would be inappropriate for the Respond-
ent to bargain with the Union beyond the certification
year. When the union representatives expressed sur-
prise at the Respondent’s position and noted that they
were getting favorable responses from employees,
Forrester responded that the Respondent’s position was
‘‘for real’’ and was based on objective evidence.
The negotiating session set for the following day,
October 17, was preceded by a rally at the plant gates.
At the negotiating session, Ferson, the Union’s spokes-
man, claimed that more employees had attended this
rally than any held previously. When Young contra-
dicted him, Ferson replied that Young had come
through the plant gates after the employees had gone
to work. Forrester then stated that recognition was
based on the election of February 1991 and that the
Respondent had concrete evidence that the Union had
lost majority support. Forrester added that the Re-
spondent would fulfill its bargaining obligation to the
extent of the law, but would not bargain beyond Feb-
ruary 22, the end of the certification year. The Union
neither asked for nor was shown the Respondent’s
‘‘objective evidence.’’ After the Respondent repeated
its offer of a 4-month contract through Febrary 22,
Ferson asked for and received the Respondent’s ‘‘final
offer’’ so that the unit employees could vote on the
proposal. On October 18, the bargaining unit employ-
ees overwhelmingly rejected the Respondent’s offer.
Immediately thereafter, Ferson and other local union
officials decided to launch a membership drive to
prove that the Union enjoyed the continued support of
a majority of the Respondent’s employees. Con-
sequently, they solicited signatures on actual member-
ship applications.9 After the Union had collected cards
from a majority of the unit employees, Ferson re-
quested the mediator to arrange another bargaining ses-
sion. When the parties met again on December 6,
Ferson had 91 membership cards in his possession. At
the December 6 bargaining session Ferson stated that
the Union had applications from a majority of the unit
employees and offered a modified contract proposal
with a 1-year term. The Respondent replied that its
October 17 offer was final. The Respondent rejected
the Union’s offer to allow a neutral third party to con-
duct a card check and insisted on its October 17 pro-
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The terms of the contract were immediately implemented. The
contract was never executed, however, due to a disagreement over
whether the Respondent changed or merely clarified certain contract
terms. The General Counsel does not contend that the failure to exe-
cute the agreement independently violated Sec. 8(a)(5).
11 At the time of filing, the decertification petition contained 85
signatures.
12 The Respondent acknowledged at the hearing that the informa-
tion that the Union sought was relevant to collective bargaining and
that it would be obligated to furnish the information under Sec.
8(a)(5) if the bargaining obligation continued beyond the expiration
of the initial contract.
13 See also R.J.B. Knits, 309 NLRB 201, 205 (1992), and Wilshire
Foam Products, 282 NLRB 1137, 1138 (1987).
posal. Following the December 6 negotiating session,
the bargaining unit employees again voted on the Re-
spondent’s final offer. They approved the contract on
the recommendation of their leadership.10
On December 9, Sowders told Trimble that it was
time to file the decertification (September 25) petition.
Sowders said that she was going to Indianapolis the
next day on an errand for Brian Bramble, her super-
visor, and that they could file the petition at that time.
Sowders and Trimble clocked in on the morning of
December 10 and then drove to Indianapolis where
they filed the petition with the Board’s Regional Of-
fice after Sowders had completed her business er-
rand.11 On their return to the Respondent’s facility,
they informed Young that they had filed the petition.
Both Sowders and Trimble clocked out at 3:30 p.m.
Although Young knew that Sowders had detoured
from her errand to file the petition and that Trimble
had accompanied her, and that both employees were
on the clock at that time, the Respondent disciplined
neither employee for performing personal business on
company time.
Also on December 10, Ferson wrote to Young re-
questing negotiations to modify the agreement set to
expire February 22. Ferson also requested that the Re-
spondent supply information regarding the wages and
fringe benefits of unit employees. Young replied on
December 18. He declined to furnish the requested in-
formation based on ‘‘clear, objective evidence’’ that
the Union had lost its majority support.12 Young added
that the Respondent would not recognize the Union be-
yond February 22. On February 22, 1992, the Re-
spondent formally withdrew recognition from the
Union.
As the judge explained, a union is entitled to an
irrebutable presumption of majority status during the
certification year; at the end of the certification year,
the presumption becomes rebuttable. See, e.g., Suzy
Curtains, Inc., 309 NLRB 1287 (1992). Thus, the Re-
spondent was precluded from challenging the Union’s
majority status during the certification year, but could
challenge that status when the certification year ended.
When the Union requested bargaining during the cer-
tification year for a successor agreement to the initial
contract, the Respondent, in essence, anticipatorily
challenged the Union’s majority status by announcing
that it would withdraw recognition from the Union at
the end of the certification year and that it would not
bargain with the Union for a successor agreement. The
‘‘test’’ to determine whether such an anticipatory with-
drawal of recognition is lawful is set out in Abbey
Medical/Abbey Rents, 264 NLRB 969, 969 (1982):
Such an ‘‘anticipatory withdrawal of recogni-
tion’’ in relation to a future contract is lawful if
and only if the employer can demonstrate that, on
the date of withdrawal and in a context free of
unfair labor practices, the union in fact had lost
its majority status, or respondent’s withdrawal of
recognition was predicated on a reasonable doubt
based on objective considerations of the union’s
majority status.13 [Emphasis added.]
Thus, the issue here is whether the Respondent’s De-
cember 18, 1991 withdrawal of recognition from the
Union ‘‘was predicated on a reasonable doubt based on
objective considerations of the [U]nion’s majority sta-
tus.’’
We find initially, in agreement with the judge, that
the May 1991 petition did not provide the Respondent
with objective evidence sufficient to support a reason-
able doubt of the Union’s majority status. We agree
with the judge that its circulation only a few days after
the first bargaining session was premature and that it
therefore cannot be relied upon as evidence of the
Union’s loss of majority support. We also find that at
the time the Respondent withdrew recognition on De-
cember 18, 1991, the May petition was stale and thus
did not accurately indicate the employees’ true senti-
ments regarding the Union. In reaching this conclu-
sion, we rely not only on the passage of time between
the circulation of the petition and the Respondent’s
withdrawal of recognition, but also on the facts that
unit employees showed their support for the Union in
the intervening time by rallying in support of the
Union on the morning of October 17 before over-
whelmingly rejecting the Respondent’s 4-month con-
tract offer on October 18 and that a majority signed
union membership cards prior to the December 6 nego-
tiating session. Although such evidence is not disposi-
tive of union sentiment, we note that although the
Union brought these displays of employee support to
the Respondent’s attention and even offered to verify
the membership cards through an impartial third party,
the Respondent chose to totally disregard such evi-
dence without any investigation. In the circumstances
here, particularly where substantial time had elapsed
between the circulation of the May petition and the
Respondent’s announced intent to withdraw recogni-
tion from the Union, we find that the Respondent was
obligated to test its ‘‘objective evidence’’ of the
673ROCK-TENN CO.
14 Because we agree with the judge that the Union continued as
the exclusive bargaining representative of the unit employees after
the certification year, we also adopt his finding that the Respondent
violated Sec. 8(a)(5) by unilaterally changing terms and conditions
of employment after the expiration of the certification year.
15 Absent a showing that a majority of unit employees support a
decertification petition, such a petition, standing alone, is not suffi-
cient to establish a reasonable doubt of a union’s majority status.
See, e.g., Barclay Caterers, 308 NLRB 1025 fn. 2 (1992); and Alex-
ander Linn Hospital Assn., 288 NLRB 103, 107 (1988), enfd. 866
F.2d 632 (3d Cir. 1989).
16 Member Cohen agrees that the Respondent violated Sec. 8(a)(5)
by insisting on a contract that did not extend beyond the end of the
certification year. In this regard, he notes that such conduct began
on October 16. Although a majority of employees had indicated in
May and June that they no longer desired union representation, the
Respondent, in September, took its own unlawful steps to oust the
Union. The Respondent dictated the language of a decertification pe-
tition, and allowed employees to circulate it during working time.
Notwithstanding these efforts, only 66 employees, a minority, had
Continued
Union’s loss of majority status by fully considering
more recent evidence to the contrary. Having failed to
do so, the Respondent cannot then rely selectively on
only part of the conflicting evidence regarding the
union sentiments of its employees. For all these rea-
sons, we find that the May petition does not constitute
objective evidence sufficient to support a reasonable
doubt of the Union’s majority support among the bar-
gaining unit employees.
We turn next to the other asserted objective evi-
dence that the Respondent relied on in withdrawing
recognition from the Union, the September 25 petition
which Trimble and Sowders subsequently filed at the
Board’s Indianapolis Regional Office on December 10
as a decertification petition. As explained above, the
Respondent suggested to Sowders and Trimble that the
employees rid themselves of the Union through a de-
certification petition, and allowed the two employees
to circulate the petition during working hours. The
judge found, and we agree, that the Respondent vio-
lated the Act by these actions. The judge also found
that during the period that the decertification petition
was circulating among the unit employees, the Re-
spondent committed other unfair labor practices which
inhibited employee support for the Union. In this re-
gard, the judge found that during this time the Re-
spondent unlawfully prohibited employees from dis-
cussing the Union on worktime, interrogated an em-
ployee about his union sentiments, and gave a written
warning to and suspended an employee because of his
support for the Union. Thus, the petition was not cir-
culated in a context free of unfair labor practices. Ac-
cordingly, we agree with the judge that the petition is
tainted and that it does not provide objective evidence
of the bargaining unit employees’ sentiments regarding
the Union.
Because we agree with the judge that the Respond-
ent lacked a reasonable doubt of the Union’s majority
support when it withdrew recognition on December 18,
we adopt his findings that the Respondent violated
Section 8(a)(5) by anticipatorily withdrawing recogni-
tion from the Union, by refusing to furnish to the
Union requested information, by refusing to bargain
with the Union over a successor agreement, and by
withdrawing recognition from the Union at the end of
the certification year.14
Finally, we also agree with the judge that the Re-
spondent violated Section 8(a)(5) by conditioning
agreement to an initial contract on a contract term co-
extensive with the certification year. As the Board stat-
ed in Suzy Curtains, Inc., 309 NLRB 1287, 1288
(1992):
Because of the special protection afforded bar-
gaining relationships during their first year, the
same standards apply to assessing the lawfulness
of an employer’s insistence on a contract duration
coextensive with the certification year as apply to
postcertification year withdrawals of recognition.
Thus, in order to find lawful the Respondent’s ad-
herence to the certification year contract duration
proposal, it has the burden of showing either that
the Union had actually lost its majority standing,
or that the Respondent held an objectively based
good-faith doubt of the Union’s majority. [Em-
phasis added.]
In the circumstances present here, the evidence estab-
lishes that the Respondent lacked a reasonably ground-
ed doubt of the Union’s majority status not only on
December 18, when it anticipatorily withdrew recogni-
tion, but also on December 6, when it conditioned
agreement to an initial contract. As explained above,
we agree with the judge that the May petition was
stale by December. Thus, on December 6, the Re-
spondent could rely only on the September 25 decerti-
fication petition as evidence of the Union’s loss of ma-
jority support. That petition, however, as we have
found, was tainted by the Respondent’s unlawful con-
duct in instigating the petition. Moreover, on Decem-
ber 6, the petition contained at most only 69 valid sig-
natures, clearly less than a majority of unit employees.
Therefore, the applicable legal analysis and the rel-
evant facts compel the finding that the Respondent
lacked a good-faith and reasonably grounded doubt,
supported by objective considerations, of the Union’s
majority status on December 6 as well as on December
18.15 In these circumstances, the Respondent could not
legitimately premise its contract duration proposal on
the Union’s supposed loss of majority support. Accord-
ingly, the Respondent acted unlawfully in conditioning
agreement to an initial contract on a contract term co-
extensive with the certification year.16
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed this petition as of October 16. The Respondent repeated its
position as to contract duration on December 6 by which time the
66 antiunion employees had grown to 69, still a minority. As of that
time, the Respondent had committed additional 8(a)(1) violations in
November. In these circumstances, the Respondent’s position was
unlawful on October 16 and on December 6.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Rock-
Tenn Company, Columbus, 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(c).
‘‘(c) Failing and refusing to bargain in good faith
with the Union by conditioning agreement to an initial
contract on a contract term coextensive with the certifi-
cation year, anticipatorily withdrawing recognition
from the Union on December 18, 1991, withdrawing
recognition from the Union at the conclusion of the
certification year, refusing to meet and bargain in good
faith with the Union without possessing a reasonable
belief based on objective considerations that the Union
no longer possesses majority support, refusing to fur-
nish the Union with information relevant and necessary
to the performance of its role as collective-bargaining
representative of the employees in the above-described
appropriate unit, and unilaterally changing terms and
conditions of employment of unit employees without
notice to or bargaining with the Union as the rep-
resentative of those employees.’’
2. Substitute the following paragraph for paragraph
2(a).
‘‘(a) Recognize and, on request, bargain in good
faith with United Paper Workers International Union,
AFL–CIO, CLC, and its Local No. 907, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate bargaining unit and
continue to do so for 6 months thereafter as if the ini-
tial certification year had not yet expired:
All production and maintenance employees of the
Employer at its Columbus, Indiana facility, but
excluding all office clerical employees, all profes-
sional employees, and all guards and supervisors
as defined in the Act.’’
3. 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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT assist, provide financial assistance to,
or encourage the filing of decertification petitions or
the solicitation of union-membership revocation peti-
tions.
WE WILL NOT threaten employees with discipline if
they talk about the Union at work.
WE WILL NOT coercively interrogate our employees
about their union membership, activities, and desires.
WE WILL NOT deny employees their Weingarten
rights, i.e., their right to the presence of a union stew-
ard when called in to the presence of a supervisor
under circumstances where they reasonably believe
they may be disciplined, and WE WILL NOT threaten
employees with discipline if they insist on their
Weingarten rights.
WE WILL NOT threaten employees that continued
union representation would be futile.
WE WILL NOT threaten employees with discipline or
discharge for engaging in union activities.
WE WILL NOT interfere with the processes of the
National Labor Relations Board by attempting to in-
duce employees to withdraw allegations filed with the
Board and to refuse to honor Board subpoenas.
WE WILL NOT discriminatorily discipline employees
for engaging in union activities or discriminatorily
deny employees leaves of absence requested in order
to engage in union activities.
WE WILL NOT fail and refuse to bargain in good
faith with the Union by conditioning agreement to an
initial contract on a contract term coextensive with the
certification year, anticipatorily withdrawing recogni-
tion from the Union, withdrawing recognition from the
675ROCK-TENN CO.
1 General Counsel’s unopposed motion to correct the transcript is
granted.
2 The unit, stipulated to be appropriate, is:
All production and maintenance employees of the Employer at
its Columbus, Indiana facility, but excluding all office clerical
employees, all professional employees, and all guards and super-
visors as defined in the Act.
Union at the conclusion of the certification year, refus-
ing to meet and bargain in good faith with the Union
without possessing a reasonable belief based on objec-
tive considerations that the Union no longer possesses
majority support, refusing to furnish the Union infor-
mation relevant and necessary to the performance of its
role as collective-bargaining representative of the em-
ployees in the below-described appropriate unit, or uni-
laterally changing terms and conditions of employment
of unit employees without notice to or bargaining with
the Union as the collective-bargaining representative of
the employees in the appropriate unit.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain in good
faith with United Paper Workers International Union,
AFL–CIO, CLC, and its Local No. 907, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate bargaining unit, and
WE WILL continue to do so for 6 months thereafter as
if the initial certification year had not expired:
All production and maintenance employees of the
Employer at its Columbus, Indiana facility, but
excluding all office clerical employees, all profes-
sional employees, and all guards and supervisors
as defined in the Act.
WE WILL make William Schonfield whole for any
losses he suffered as a result of the discriminatorily
issued suspension and WE WILL revoke the warnings
discriminatorily issued to William Schonfield and
Kathy Ellis and expunge all references to those warn-
ings and suspension from their personnel files and no-
tify them in writing that this has been done and that
evidence of these unlawful actions will not be used as
a basis of future personnel actions against them.
ROCK-TENN COMPANY
Ann Rybolt, Esq., for the General Counsel.
Larry E. Forrester, Esq. (Smith, Currie & Hancock), for the
Respondent.
Nora L. Macey, Esq. (Macey, Macey & Swanson), for the
Charging Party.
DECISION
MICHAEL O. MILLER, Administrative Law Judge. These
consolidated cases were heard in Columbus, Indiana, on Jan-
uary 25–28, 1993, based on unfair labor practice charges and
amended charges filed by United Paper Workers Inter-
national Union, AFL–CIO, CLC and its Local No. 907 (the
Union) between January 16 and September 3, 1992, and
complaints and orders consolidating complaints issued by the
Regional Director for Region 25 of the National Labor Rela-
tions Board. The consolidated complaint, issued September
29, 1992, alleges that Rock-Tenn Company (Respondent or
the Employer) violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act). Respondent’s timely
filed answer denies the commission of any unfair labor prac-
tices.
On the entire record,1 including my observation of the wit-
nesses and their demeanor, and after considering the briefs
filed by General Counsel, Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
Rock-Tenn Company, a corporation with its principal of-
fice and place of business in Norcross, Georgia, and other
places of business throughout the United States, is engaged
in the manufacture, sale, and distribution of recycled paper-
board and related products at its facility in Columbus, Indi-
ana. In the course and conduct of its business operations at
that facility, it annually purchases and receives goods and
materials valued in excess of $50,000 directly from points lo-
cated outside the State of Indiana and annually sells and
ships goods and materials valued in excess of $50,000 di-
rectly to points located outside the State of Indiana. The
complaint alleges, Respondent admits and I find and con-
clude that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background—Union Representation
On a petition filed by the Union on December 7, 1990, in
Case 25–RC–8989, an election was conducted on February
14, 1991, among Respondent’s production and maintenance
employees.2 Of the approximately 142 employees in the unit
at that time, 78 voted for, and 57 voted against, representa-
tion. The Union was certified as exclusive collective-bargain-
ing representative of those employees on February 22, 1991.
Respondent’s Columbus, Indiana plant (the plant) operates
on a three-shift basis. During 1991 and 1992, the average
complement of its production and maintenance work force,
according to General Manager Roy Young, was 155–156.
Reporting to Young at the relevant times were Department
Heads Bill Snyder (converting), Corey Carr (die cutting),
Burdett Utter (shipping and receiving), and Jerry Barnhart
(quality control). Wayne Pennington was the second-shift
converting department supervisor and Karen Haggard was
the first-shift die cutting supervisor, each reporting to his or
her respective department head. There was no plant manager
during 1991 and 1992.
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All dates hereinafter are between May 1991 and February 1992
unless otherwise specified.
4 General Counsel does not now contend that Respondent’s failure
to execute the agreement independently violates Sec. 8(a)(5).
5 When asked whether he mentioned this petition to the Union at
any time before October, Young ‘‘corrected’’ his testimony, claim-
ing that Sowders retrieved the petition from his custody in June and
returned it to him, signed by 80 employees, in August or September.
Sowders, a lead janitor and sister of Supervisor Karen Haggard, did
not corroborate Young’s corrected recollection. I find that he had
this petition in his possession, but did not disclose it to the Union,
since June.
B. The 8(a)(5) Allegations
1. Contract term and withdrawal of recognition
Collective bargaining began on May 20, 1991.3 Through
October 10, the parties met 15 times and had made some
progress toward an initial agreement. No agreements had
been reached, however, on the various economic issues,
union security and checkoff, use of contract or temporary
labor, or holidays. Although the Union had proposed terms
of 1 to 3 years for that initial agreement, the Employer had
made no counterproposal on that issue. Neither had the Em-
ployer questioned the Union’s majority status.
When the parties met on October 16, the Union presented
some revised proposals and the Employer caucused. On the
return of the management representatives, Company Counsel
Forrester proposed a contract term through February 22,
1992. He stated that management had received evidence that
the Union no longer had the support of a majority of the em-
ployees and believed that it would be inappropriate for it to
bargain with the Union beyond the certification year. After
a caucus, the Union’s representatives expressed their puzzle-
ment over the Employer’s position and noted that they had
been getting favorable responses from the employees.
Forrester reiterated the Employer’s position, stating that it
was not to be taken frivolously, that it was ‘‘for real,’’ and
was based on objective evidence that the Union no longer
represented a majority.
The meeting of October 17 was preceded by a rally at the
plant gates. When the negotiators met, the Union’s spokes-
man, Dan Ferson, referred to the rally, claiming that more
employees had shown their support than had participated in
any previous demonstration. Young contradicted him, claim-
ing to have photographs. Ferson disputed that and pointed
out that Young had come through the gate after the employ-
ees had already gone to work. Forrester then stated that the
recognition was based on the election of February 1991, that
they had concrete evidence that the Union no longer had the
support of a majority of the employees, and that the Com-
pany was fulfilling its responsibility to bargain to the extent
of the law but would not bargain for terms and conditions
of employment beyond February 22. He said that this was
not a bargaining position. The Union was not offered and did
not request to see the Employer’s claimed objective evi-
dence.
Following a caucus, the Company repeated its offer of a
4-month contract, through February 22, with all its proposals
as previously stated except that it improved its wage offer by
5 cents per hour. Ferson told management that an employee
vote was scheduled for the following day and asked for the
Employer’s offer in writing so that he could read it, ver-
batim, to the employees. The ‘‘Company Final Offer for
Agreement’’ was provided to Ferson that afternoon. In meet-
ings with each of the shifts held on October 18, the Compa-
ny’s offer was overwhelmingly rejected.
Following a December 6 meeting wherein the Employer
reiterated its final offer, that offer was again taken to the em-
ployees. At this time, they accepted it on the recommenda-
tion of their leadership. Its terms were immediately imple-
mented although that agreement was never executed due to
a disagreement over certain terms which the Union claimed
Respondent had changed and Respondent claimed it had
merely clarified.4
On December 10, Ferson wrote Young, requesting negotia-
tions to modify the agreement expiring on February 22. He
also requested personal information concerning the unit
members, their wages, and fringe benefits, so that the Union
could ‘‘intelligently and understandingly perform its duty as
sole bargaining agent.’’ Attached was a copy of the Union’s
notice to the appropriate mediation agencies. Young replied
on December 18. He declined to furnish any of the informa-
tion sought by the Union on the basis of the alleged ‘‘clear,
objective evidence that the majority of the employees here do
not want to be represented by the U.P.I.U.’’ Rock-Tenn, he
stated, would not recognize the Union as the employees’ rep-
resentative beyond February 22, 1992.
Respondent acknowledged, at hearing, that the information
sought by the Union was relevant to collective bargaining
and would be required to be furnished under Section 8(a)(5)
if the bargaining obligation continued beyond the expiration
of the initial agreement.
On February 22, 1992, the Employer formally withdrew
recognition of the Union.
2. The Employer’s ‘‘Objective’’ evidence
Young claimed that two employee petitions supported the
Employer’s good-faith doubt of the Union’s continued major-
ity status. The first (G.C. Exh. 4) is dated May 23, 1991 (just
3 days after the first bargaining meeting), on its first page.
The remaining pages, and the signatures, are undated. The
first and third pages of this petition are captioned, ‘‘We the
undersigned feel that it is not in our best interests to be rep-
resented by the United Paperworkers Union.’’ The second
and fourth pages, while numbered consecutively, are
uncaptioned.
Young testified that employee Glenda Sowders initially
gave him a copy of that petition in May, when it bore some
60 or more names. She then retrieved it from him in June,
he said, and returned a copy of it to him in that same month,
with a total of 80 signatures.5 Included among the 80 names
on Young’s copy are 3, Jim West, Derrick Watts, and The-
resa Bradley, which appear to be written by the same hand;
they are bracketed with the notation, ‘‘Carried over from
back page.’’ Only one of these names, that of Watts, appears
on the subsequent petition (G.C. Exh 5, discussed infra). His
purported signature on that petition (as number 58) is dis-
tinctly different from what purports to be his signature on the
May 23 petition (number 71), even to a layman’s eye. The
original of the petition, in evidence as Respondent’s Exhibit
5, does not contain any page, back or front, with signatures
by West, Watts, or Bradley. Also included on the May 23
petition are the names of Valerie Wheatley, discharged some
677ROCK-TENN CO.
6 Sowders denied that she gave him a copy of this petition before
December 10 although she acknowledged showing it to him. Young
claimed that when she showed it to him, he made a copy. Given Re-
spondent’s interest in ousting this Union, I find it plausible that he
would have made a copy if given the opportunity to do so.
7 For some unexplained reason, the numbering jumps from number
77 to number 87. There are no signatures numbered from 78 to 86.
8 R. Exh. 7 (for identification), a compilation prepared for this liti-
gation, purports to set forth the number of unit employees on the
two dates. It lists only those who signed one or both petitions, with
their dates of hire and termination. Neither the raw employee com-
plement figures nor the list includes any employees who may have
been hired after October 16. I sustained an objection to receipt of
that exhibit on the basis that it had not been used by Respondent
in reaching its decision respecting continued recognition. For that
reason, and in light of its self-serving nature, I adhere to that ruling.
time prior to November 18, and Gary Browning, assistant
maintenance supervisor.
On November 6, Local Union President Pat Bishop pro-
vided Young with the names of 14 employees who had been
selected and agreed to serve as union stewards. Included
among those 14 were at least 3, Tony Smith, Cliff McCrory,
and Brian Hammond, whose names had appeared on the May
23 petition. Also among those 14 were the names of Eddie
Schonfeld and Robbie Baker. Schonfeld had been named as
a steward and both had requested the presence of their stew-
ards when faced with possible discipline. Young did not dis-
count these five names from the May 23 petition at any time
in reaching his conclusion that the Union had lost its major-
ity.
Additionally, Young claimed that immediately prior to Oc-
tober 16, Sowders had given him the first page and at least
part of the second page of a second petition.6 On cross-ex-
amination, he subsequently testified that he had been given
pages one and two and part of page three. That petition
(G.C. Exh 5) was dated September 25 and bore the following
caption:
We the undersigned employees of Rock-Tenn, Colum-
bus, In. do not wish to be represented by the United Pa-
perworkers International Union. Therefor [sic] would
like to request a revote February 15, 1992. We have
learned that union leaders are searching for unfair
charges so as to void this revote.
While Young did not recall how many names were on the
September 25 petition when he first saw it, he claimed that
it included the names of 11 employees who had not signed
the May 23 petition. He added those names to the 80 on that
petition, thus contending that 91 employees had signified
their disaffection from the Union by Respondent’s October
16 demand to limit the contract term and its expression of
intent to withdraw recognition at the conclusion of the cer-
tification year.
As filed with the Labor Board in support of a decertifica-
tion petition on December 10 (discussed infra), the second
petition contains 85 names.7 Of these, 47 purport to be dated
on or before October 16, 3 are dated in the second half of
October, and 10 are dated December 9 and 10. Twenty-five
are undated. There were, at most, 66 signatures on that peti-
tion by October 16, and only 69 by December 6, if all of
the signatures which appear to have been affixed to that peti-
tion on or before those dates were to be counted.
Young added the names of additional signatories from the
second petition to those included on the first. However, he
did not subtract from the count of those signing the first peti-
tion those individuals who had signed the first but not the
second. As of October 16, there were 28 employees who had
signed the first but not the second petition; even as of De-
cember 6, when the Union offered to re-prove its majority
(discussed infra), 27 of the original signers had declined to
sign the second. Neither did Young ever subtract the names
of those who, though signing the first petition, subsequently
accepted active roles in the Union’s administration or those
who called on the Union for its assistance.
Respondent offered no evidence that anyone had compared
the signatures on the petitions with the signatures of known
employees to determine their validity. Neither was any evi-
dence offered that the lists were compared with any lists of
active unit employees on any relevant dates.
As previously noted, Young had estimated the average unit
complement as approximately 155 or 156 employees during
1991 and 1992. While he testified that there were 146 unit
employees on October 16 (of whom he believed 86 did not
support the Union) and 151 employees on December 6 (of
whom he believed 82 did not wish to be represented), Re-
spondent proffered no evidence of the unit complement on
any relevant date.8
In addition to the petitions, Young claimed to have relied
on statements made to him by numerous employees to the
effect that they had only signed union cards so that they
could vote in the election or for other reasons. He was able
to name only one such employee and it was apparent that his
conversation with that employee and any others that he may
have spoken to concerned their reasons for signing union
pledges prior to the February 14, 1991 election. Even Re-
spondent’s counsel acknowledged at the hearing that any
such conversations became irrelevant after the Union won
the election.
It is not the practice of this Union to accept memberships
or dues from unit employees before an initial contract is
signed. However, following the October 16 meeting, Ferson
and the officers of the Local discussed what could be done
to clearly establish the Union’s continued majority support.
They decided to launch a membership drive, soliciting signa-
tures on actual membership applications. Those cards read:
I hereby request and accept membership in the United
Paperworkers International Union, AFL–CIO, CLC and
do authorize said Union, through its agents to represent
me in collective bargaining and enter into contracts
with my employer.
Between October 18 and the beginning of November, ac-
cording to Ferson, 75 employees had signed, out of 143–144
on a mailing list provided by the Employer. At that point,
Ferson requested that the mediator set up another meeting
and one was scheduled for December 6.
When the parties met on December 6, Ferson had 91
membership cards in his possession and had been told of 3
more which had been signed. He introduced Kathy Ellis, the
newly elected local union president, and told the Company’s
representatives that a vast majority of the employees had at-
tended the meetings to vote on the contract and had rejected
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it. He then told them that since management had claimed that
the Union did not represent a majority, the Union had se-
cured applications for union membership from a majority of
the employees. He put forward a modified contract proposal,
calling for a 1-year contract term and the Company’s rep-
resentatives caucused.
When they returned, management’s positions remained un-
changed; its October 17 proposal was final. Ferson reiterated
that the Union could prove its majority status with evidence
of actual memberships; he read them the above-quoted lan-
guage from the membership application. Ferson offered to
permit a neutral third party to conduct a card check and sug-
gested that the mediator would be acceptable to the Union.
His offer fell on deaf ears. According to Young, the offer
was rejected because employees had told him that they had
‘‘signed cards so they could vote’’; his list of those who had
signed either petition was, to him, better evidence than any-
thing the Union could produce. Neither the fact that an em-
ployee had signed a membership application or had taken an
active role in the Union could convince him that that em-
ployee supported the Union if that employee had earlier
signed one of the antiunion petitions.
3. Other alleged 8(a)(5) conduct
In the contract agreed to by the parties, the parties had
provided for the employees to receive two breaks, of 10 min-
utes’ duration each, on each shift. One was to be taken be-
fore the meal break and one after. That, however, was not
the practice followed by the tow motor drivers. At least until
the end of April, they worked continuously, without sched-
uled breaks, taking their breaks and meals when they were
caught up. On April 30, 1992, however, Courtney Carr told
Terry Conrad and Ray Froedge, the tow motor drivers on the
third shift, that they were taking too many breaks. Hence-
forth, he told them, one driver would take his break when
the machine operators took theirs; the other would take his
when the first concluded his break. This policy, Conrad testi-
fied, was to be applied to all shifts. As far as Conrad was
able to determine, however, it was only applied on the third
shift. Inasmuch as the Employer was no longer recognizing
the Union, there was no discussion with union representa-
tives prior to Carr’s pronouncement.
4. Conclusions as to the refusals to bargain
In Suzy Curtains, Inc., 309 NLRB 1287 (1992), the Board
addressed a factual situation closely parallel to the instant
case. In the course of negotiations for an initial agreement
during the certification year, the employer had asserted an al-
leged good-faith doubt of the union’s continued majority sta-
tus and insisted on a contract duration coextensive with that
certification year. The Board stated at 1288:
A union is entitled to an irrebuttable presumption of
continuing majority status for 1 year following its cer-
tification. [Citing Brooks v. NLRB, 348 U.S. 96 (1954).]
After 1 year, the presumption becomes rebuttable.
It continued:
Once the certification year elapses, an employer may
lawfully withdraw recognition if it is able to rebut the
union’s continuing majority presumption either by es-
tablishing that the union has actually lost its majority,
or by showing that it had a reasonably based doubt as
to the union’s majority status. [Citing Guerdon Indus-
tries, 218 NLRB 658 (1975); Chet Monez Ford, 241
NLRB 349 (1979); and Robertshaw Controls Co., 263
NLRB 958 (1982).] Because of the special protection
afforded bargaining relationships during their first year,
the same standards apply to assessing the lawfulness of
an employer’s insistence on a contract duration coex-
tensive with the certification year as apply to
postcertification year withdrawals of recognition. Thus,
in order to find lawful the Respondent’s adherence to
the certification year contract duration proposal, it has
the burden of showing either that the Union had lost its
majority standing, or that the Respondent held an objec-
tively based good-faith doubt of the Union’s majority.
[Citation omitted.]
Implicit in the Board’s reference to Guerdon, Chet Monez
Ford, and Robertshaw Controls, supra, is the further require-
ment that the alleged good-faith doubt must be raised in a
context free of unfair labor practices.
The burden of proof as to these standards rests on the em-
ployer, who must meet that burden by a preponderance of
the evidence. The evidence on which it relies, moreover,
must point to an actual, rather than a speculative or conjec-
tural, loss of majority. Laidlaw Waste Systems, 307 NLRB
1211 (1992), and cases cited there. As the Board stated in
that case at 1211–1212:
It is fair to say that the Board will not find that an em-
ployer has supported its defense by a preponderance of
the evidence if the employee statements and conduct re-
lied on are not clear and cogent rejections of the union
as bargaining agent, i.e., are simply not convincing
manifestations, taken as a whole, of a loss of majority
support.
The evidence relied on by the employer must show that
a majority of unit employees have actually repudiated the
union. Mere expressions of displeasure with the union’s rep-
resentation or of a desire for another election will not estab-
lish that loss of majority. A showing that many, but less than
a majority, are disaffected, and a belief that others might also
be, is also inadequate. Suzy Curtains, supra. In addition to
showing such disaffection, the employer also bears the bur-
den of establishing the size of the unit. Laidlaw Waste Sys-
tems, supra; Phoenix Pipe & Tube Co., 302 NLRB 122
(1991).
Application of the foregoing principles to the facts of this
case compels me to conclude that Respondent has failed to
satisfy the burdens described above.
In Brooks v. NLRB, supra, the Supreme Court (348 U.S.
at 100) voiced its approval of reasoning, by the Board and
courts of appeal, that:
(c) A union should be given ample time for carrying
out its mandate on behalf of its members, and should
not be under exigent pressure to produce hothouse re-
sults or be turned out.
(d) It is scarcely conducive to bargaining in good
faith for an employer to know that, if he dillydallies or
679ROCK-TENN CO.
9 Respondent would only have to prove that 50 percent of the em-
ployees rejected the Union at an appropriate time to negate the
Union’s presumed majority status. NLRB v. LaVerdiere’s Enter-
prises, 933 F.2d 1045, 1052 (1st Cir. 1991).
10 I see no meaningful distinction between breaking off negotia-
tions and withdrawing recognition where the parties are beyond the
certification year and Respondent’s conduct here of insisting on a
contract limited to the remainder of the certification year with a stat-
ed intention of withdrawing recognition the moment that certification
year expired.
subtly undermines, union strength may erode and there-
by relieve him of his statutory duties . . . .
Here, Respondent’s principal evidence in alleging a good-
faith doubt of majority status was a petition initiated only 3
months after certification and only 3 days after the opening
of negotiations. Even assuming that that petition was signed
by a majority of the unit employees, it was so premature as
to render it irrelevant. United Supermarkets, 287 NLRB 119
(1987), enfd. 862 F.2d 549 (5th Cir. 1989).
In United Supermarkets, supra, the employer withdrew
recognition at the conclusion of the certification year, relying
in part on a decertification petition supported by 90 percent
of the unit employees which had been filed only 5 months
after certification, when, as here, bargaining had just begun.
The Board stated at 120:
Although it is true that Respondent delayed formally
withdrawing recognition from the Union until the cer-
tification year expired, it is also true that the Respond-
ent relied in part on this prematurely filed petition to
support its withdrawal. We believe that just as the peti-
tion could not raise a question concerning representa-
tion nor be acted on by the Respondent within the cer-
tification year, the Respondent cannot subsequently rely
on it to justify a more timely withdrawal of recognition.
Similarly, the court reviewed the timing of the employees’
petition and rejected it as evidence on which the employer
could rely. It stated (862 F.2d at 553):
An impatience and lack of support for the Union on the
part of employees was understandable. Thus, to give
weight to this decertification petition would defeat the
policy behind the special status given a union during
the certification year. A union needs to be given a rea-
sonable time to prove its worth to the employees with-
out added pressure from the employer. See Brooks, 348
U.S. at 100, 75 S.Ct. at 179.
These holdings of both the Board and the court, which are
equally applicable to Respondent’s actions here, stand inde-
pendent of the Board’s further finding that the decertification
petition was an unreliable indicator of ‘‘uncoerced employee
sentiment’’ in view of that employer’s as yet unremedied un-
fair labor practices.
Additionally, I would find that the circumstances of this
case preclude any weight being given to the May 23 petition.
Thus, in addition to being premature, it was supplanted by
a second petition, that of September 25. Where one petition,
which arguably attracts the support of a majority of the em-
ployees, is circulated early in the certification year and is fol-
lowed by a second which does not attract majority support,
taken after the union has begun to establish itself in the
plant, that second petition cannot be considered in addition
to the first; it must be deemed to negate it.
Moreover, assuming that it could otherwise be relied on,
Respondent has failed to establish that the May 23 petition
represented the sentiments of a majority of its unit employ-
ees. Respondent adduced no evidence that it authenticated
the signatures on that (or the subsequent) petition. Had it
done so, it would have discovered that at least three signa-
tures were not those of the named employees but had, at
best, been copied over from some other document. It would
also have discovered that at least one alleged signatory was
a supervisor. At best, then, there were 76 purportedly valid
signatures on that petition, negating the Union’s presumed
majority status only if the unit had 152 or fewer employees.9
Young estimated the average employee complement at 155
or 156 and Respondent, whose burden it was, presented no
evidence of the actual number of unit employees as of May
23, October 16, or any subsequent date.
Further, Respondent bargained from June through mid-Oc-
tober without ever alluding to the alleged loss of majority
status. In light of Respondent’s failure to authenticate the
signatures and this extended ‘‘wait-and-see’’ bargaining, in
addition to the petition’s premature nature, I must conclude
that the May 23 petition has no probative value. Quality
Hardware Mfg. Co., 307 NLRB 1445 fn. 2 (1992).
Beyond negating the probative worth of the May 23 peti-
tion, Respondent’s bargaining while supposedly possessing
evidence that the Union lacked majority support, and then in-
sisting on a limited contract term to be followed by a with-
drawal of recognition at the earliest possible date, is inde-
pendently violative of Section 8(a)(5). In Bolton-Emerson,
Inc., 293 NLRB 1124, 1129 (1989), the Board adopted the
following conclusion by Administrative Law Judge Walter H.
Maloney:
Challenging a union’s status as a bargaining representa-
tive is not a legitimate bargaining ploy. Negotiating
only so long as negotiations appear to produce desired
results and then breaking them off when they fail to do
so, under a claim that the employee representative is no
longer the true spokesman for the bargaining unit, is
both bad-faith bargaining and a bad-faith withdrawal of
recognition.10
Respondent’s alleged reliance on the September 25 peti-
tion does not improve its legal position. Viewed independ-
ently of the earlier petition (as I believe it must be), it cannot
support an anticipatory withdrawal of recognition. As of Oc-
tober 16, it contained 66 or fewer signatures; there is neither
evidence nor any contention that this represented a majority
of the unit at any relevant time. Any signatures added after
October 16 were tainted by Respondent’s insistence on the
coterminous expiration date and its threatened withdrawal of
recognition; they count for naught. Even assuming those ad-
ditional signatures should be counted, there were, at most, 69
signatures on that petition by December 6, when Respondent
refused the Union’s offer to re-prove its majority and reiter-
ated both its insistence on the limited contract term and its
intention to withdraw recognition on February 22. There is
no evidence that this represented a majority at that time or
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 They also taint the petition signed by some employees seeking
return of their membership application cards.
12 Trimble, who had been a strong supporter of the Union, had
switched her allegiance to become equally antiunion in April after
she lost a bid for union office. She voluntarily terminated her em-
ployment in December 1992 and had no apparent reason to give
false testimony helpful to the Union’s cause or harmful to that of
the Employer. Sowders testified that the language was authored by
herself and Trimble and was written out by a third employee,
Holden. She did not expressly deny Young’s involvement and
Young did not deny that the idea for and the language of this peti-
tion originated with him. I credit Trimble.
13 While Snyder denied supplying Trimble with such a list, Young
did not deny making a list available to her and I find Trimble’s
recollections more accurate. Neither Snyder nor Carr denied
Trimble’s assertions regarding the expansion of her work so as to
increase her access to other employees.
14 Running errands for the Employer was a regular part of
Sowder’s job. This trip may have been longer than most, but I can-
not find that it was assigned to her as a subterfuge so as to enable
her to file the petition.
that the unit had as few as 138 employees at any relevant
time.
Respondent sought to overcome the latter hurdle by com-
bining the two petitions to the extent that this worked to its
benefit. Even assuming, contrary to logic, that the first peti-
tion remained a valid indicator of employee sentiment after
a second was circulated, this contention avails Respondent
not. Thus, Respondent added to the names contained on the
May 23 petition those additional names found on the Sep-
tember 25 petition. It did not, however, discount from the
earlier petition the names of still active employees who did
not sign the later one. Doing so would have negated the ma-
jority claimed by Respondent. Surely, if adding one’s name
to such a petition evidences hostility toward the Union’s con-
tinued role, refraining from doing so must reasonably be in-
terpreted as evidencing support for that role (particularly
where the solicitations of signatures for that petition were as
pervasive as they were here).
Finally, in this regard, there is the matter of the Union’s
offer to prove its majority through a card check by a neutral
third party. Given the (at best) questionable validity of the
May 23 petition and the absence of anything approaching a
majority signing the September 25 petition, the Union’s offer
to demonstrate its continued majority support ‘‘should have
caused [Rock-Tenn] to move cautiously before withdrawing
recognition.’’ NLRB v. LaVerdiere’s Enterprises, supra, 933
F.2d at 1053. Here, as in that case, ‘‘[t]here is . . . no evi-
dence of any effort undertaken by the Company to unravel
the conflicting messages it had received from its employees
in order to determine the extent of true opposition to the
Union.’’ It acted at its own risk in withdrawing ‘‘recognition
in the midst of mixed signals . . . [and] lacked an objectively
based good faith doubt of majority status when it withdrew
recognition . . . in doing so, it violated § 8(a)(5) of the
NLRA.’’
Respondent justified its disregard of the Union’s renewed
assertion of majority status on the basis that employees had
allegedly told Young (apparently in reference to the
preelection union support) that they had signed cards for var-
ious reasons, not all indicating true support for representa-
tion. Respondent apparently did not consider that the signa-
tures on the antiunion petitions may have suffered from the
same alleged infirmities. There is evidence on this record
that the solicitors of the antiunion petitions told employees
whatever might be necessary in order to get them to sign
those petitions.
As discussed above, any claim of a good-faith doubt of a
union’s majority status must be raised in a context free of
unfair labor practices. As discussed in detail below, I find
such a context missing here. The unfair labor practices which
I find, including encouragement and support of the decerti-
fication activities and the prohibition of prounion conversa-
tions, preclude the existence of such a good-faith doubt.11
Accordingly, I find that by conditioning agreement on a
contract term coextensive with the certification year, an-
nouncing that it would withdraw recognition at the expiration
of the certification year, refusing to furnish information nec-
essary to the Union’s role as collective-bargaining represent-
ative, refusing to meet for negotiations for a collective-bar-
gaining agreement to replace the agreement expiring on Feb-
ruary 22, withdrawing recognition on the expiration of the
certification year and by unilaterally changing the terms and
conditions of employment of the tow motor drivers without
notice to or bargaining with the Union, Respondent has
failed and refused to bargain in good faith with the Union
in violation of Section 8(a)(5).
C. The 8(a)(1) Allegations
1. Employer support for antiunion petitions
On September 24 or 25, according to the credible testi-
mony of Holly Trimble, she and Glenda Sowders discussed
the Union with Young. When she told Young that it was in
and nothing could be done about it, he contradicted her, stat-
ing: ‘‘With your help that Union could be taken out of
here.’’ They asked how and he told them that they would
need to have a petition circulated for a decertification elec-
tion. Trimble asked how it should be worded and Young dic-
tated the language to her. Trimble and Sowders immediately
began to circulate that petition.12
Trimble circulated the September petition throughout her
workday, on both her own time and her worktime as well
as when others were working. Her activities were open and
she was never cautioned against using worktime to engage
in them. She regularly apprised Young as to the progress of
the petition drive. At one point, she told him that she did not
know the names of the new employees. He promised to leave
a list for her on his desk. Before she could get back to his
office, however, Converting Manager William Snyder
brought one to her. It identified every employee, with that
employee’s department, machine, and shift listed. After Die
Cut Manager Courtney Carr told her that employees were
questioning why she was being allowed to circulate through-
out the plant and talk to them out on the floor, Snyder ex-
panded her tasks and extended her shift in such a way as to
increase her access to the employees of all three shifts. She
used the expanded access to solicit more employees.13
On December 9, Sowders told Trimble that it was time to
file their petition with the NLRB in Indianapolis. Sowders
said that she would be going to Indianapolis on the next day
to pick up a computer part for Brian Bramble, her supervisor
in maintenance, and they would use that trip to file the peti-
tion.14 Trimble told her that she was supposed to be work-
681ROCK-TENN CO.
15 This entire incident is difficult to understand and resolve. How-
ever, noting that her timecard clearly indicates a 6:50 a.m. start and
a 3:30 p.m. conclusion to her workday, consistent with her testi-
mony, and further noting that Respondent prepared two versions of
this writeup, apparently redoing it after discovering that the first was
rife with errors (the spelling of her name, the date, and the time she
purportedly completed work on December 10), I am compelled to
credit Trimble. I find that she clocked in and was paid for the first
shift on December 10, even though Respondent knew that she had
accompanied Sowder to the NLRB office in order to file a decerti-
fication petition. The writeup, I find, was an attempted coverup.
16 Young did not deny the statement attributed to him and Sowders
only denied that Young had requested them to undertake this activ-
ity. Respondent endeavored to discredit Trimble by suggesting that
it was improbable that Young would have suggested this petition in
order to weaken the Union’s bargaining power when the contract had
already been agreed on. The statement, coming out of the mouth of
a layman, was not so improbable as to compel the discrediting of
an otherwise credible witness, at least in the absence of a denial.
17 During the circulation of this petition, one emplyee (Hall) was
observed in an apparent solicitation by a group of antiunion employ-
ees while Snyder was standing with, or near, them. Another em-
ployee (Hendershot) agreed to sign the petition after a disagreement
with her supervisor which discouraged her from signing it was re-
ported to Young by Trimble and then subsequently rectified by the
supervisor. The evidence with respect to these incidents is suspicious
but too speculative to warrant additional conclusions of management
involvement.
18 Apparently, there was no timely filed charge so alleging. See
G.C. Br. 19.
ing; Sowders suggested that Trimble tell people that she was
accompanying Sowders because of her familiarity with Indi-
anapolis. Subsequently, Sowders told Trimble that she had
spoken with Carr and that Carr had said that Trimble could
work the second shift or make some other arrangements.
Trimble objected to having to work the second shift in order
to get paid if Sowders was being paid for the day.
Trimble clocked in at about 6:50 a.m. on December 10,
shortly after Sowders. They left the plant, drove to Indianap-
olis, picked up the part, went to the NLRB Regional Office,
filed the decertification petition supported by the September
25 petition, had lunch in Indianapolis, and returned to the
plant by about 12:15 p.m. On their return, they told Young
that the petition had been filed. Young was aware that
Trimble had accompanied Sowders; he was also aware that
Sowders had been on the clock throughout the time she had
been in Indianapolis. Sowders received no discipline for de-
touring from her route and using company-paid time to file
the decertification petition. Trimble worked until 3:30 p.m.
and clocked out at that time, as did Sowders.
At the hearing, Carr contended that Trimble had worked
on the second, rather than the first shift, on December 10.
Young claimed that he had the same understanding. When a
charge was filed alleging employer support for the decerti-
fication activities, Carr called Trimble at her home and di-
rected her to return to the plant. On her return, she was given
a writeup which stated that she had actually worked on the
second shift but had failed to properly clock out even though
she told him that she had worked the first shift. To protect
herself from future discipline, she added to the writeup that
she had forgotten to clock out at the end of the second shift
and that someone else must have clocked her in at 6:50 a.m.
At the hearing, Trimble contended that the entire writeup
was phony, created to cover the fact that she had been on
the clock when she accompanied Sowders to Indianapolis.15
Within the week after she had filed the decertification peti-
tion, Trimble told Young that, to her surprise, a lot of union
membership cards were being signed. Young suggested that
if the employees petitioned to get their cards back, the Union
would have no bargaining power.16 Trimble and Sowders
drafted such a petition and circulated it.17 Young supplied
Trimble with the address to which it should be sent.
The complaint does not allege Respondent’s involvement
in the origination and circulation of the September 25 peti-
tion as independently violative of Section 8(a)(1).18 It does
allege such assistance with respect to the card revocation pe-
tition and both solicitation and encouragement of the decerti-
fication petition by providing company-paid time and trans-
portation to the employees who filed that petition. Those al-
legations are supported by a preponderance of the evidence.
An employer may not underwrite the filing of a decertifica-
tion petition by providing time off with pay and transpor-
tation for those so engaged; to do so is to provide unlawful
assistance. Lee Lumber & Building Material, 306 NLRB 408
(1992). Even if Trimble were to be discredited with respect
to which shift she had worked on December 10, the evidence
establishes that Respondent permitted Sowders to use
companytime and transportation to file the decertification pe-
tition.
Respondent contends that Young merely gave advice to
the employees concerning these petitions when it was solic-
ited of him. I have found that he went beyond that suggest-
ing, instigating, and encouraging the circulation of them. His
conduct went beyond the mere ministerial and interfered with
employee rights under Section 7 in violation of Section
8(a)(1). Central Washington Hospital, 279 NLRB 60, 64–65
(1986), and cases cited there.
2. Prohibition of ‘‘Union Talk’’
Respondent does not prohibit employees from talking
among themselves, even about nonwork-related matters,
while they are working. Such conversations are common and
commonly engaged in by supervisors as well as rank-and-file
workers.
However, on several occasions in mid- to late November,
Karen Haggard, production supervisor, directed employees
not to talk about the Union while they were working, empha-
sizing her orders with threats of discharge. The following in-
cidents are undenied.
On November 18, Kathy Ellis was picking up tallies at the
laminator takeoff when Haggard approached her. Haggard
told Ellis that ‘‘she had four complaints of me talking union
during company time and she wanted me to know if it con-
tinued, she’d have to fire me and that if Bill Snyder knew
about it right now, he would fire me.’’ When Ellis explained
that the employees were wearing black arm bands to protest
the discharge of another employee, Haggard told her that
‘‘she didn’t know who she was talking to when [she] talked
to people.’’
On that same day, Donna Glasson was called into the die
cutting office by Haggard; Pat Ross, converting supervisor
was also there. Haggard told Glasson that she had several
complaints about Glasson talking union on companytime and
accused her of stopping production. Glasson denied it, said
that several employees had asked her questions, on her own
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 General Counsel argued that Haggard’s statements were addi-
tionally violative because they created the impression that she
‘‘maintained a cadre of informants among the work force.’’ However
coercive it may be to tell an employee, in the context of threatened
discipline, that other employees are reporting on her union activity,
I cannot find that it amounts to the ubiquitous impression of surveil-
lance violation. The gravamen of such a violation is that employees
are lead to believe that their union activities have been placed under
surveillance. South Shore Hospital, 229 NLRB 363 (1977). The vol-
unteering of information concerning such activities by other employ-
ees such as is indicated here, without evidence of management solic-
itation of that information, may be reprehensible but it is not em-
ployer surveillance.
20 Swan Coal Co., 271 NLRB 862 (1984), does not stand for the
proposition asserted by Respondent. In that case, a supervisor told
a known union adherent that other employees did not appreciate his
prounion position and that he could not assure that employee’s per-
sonal safety on the job. The Board rejected the judge’s finding that
the statement created an impression of surveillance but upheld the
finding that it constituted a threat of physical harm. Nothing in that
case legitimizes a prohibition of prounion discussions among em-
ployees, even where other employees may have brought those dis-
cussions to the supervisor’s attention or complained.
time. Glasson told Haggard that she had not realized she had
talked to anyone on companytime. She asked who had com-
plained; Haggard would not tell her. At the conclusion of
this conference, Haggard told Glasson that she did not want
to hear about Glasson talking to anybody about anything that
does not pertain to work or it could cost Glasson her job.
Around the same time, David McNeelan was talking to
Tammy Holden about union-related matters while they
worked. The conversation stopped when Haggard walked by
and then resumed. Shortly thereafter, Haggard returned to
McNeelan and told him that if he wanted to talk to Tammy
about the Union, he should do so on his own time. Haggard
told McNeelan that she knew what they had been talking
about because Tammy had told her.19
Contrary to Respondent’s contentions, the law is not ‘‘well
settled that it is not an unfair labor practice for a supervisor
to warn employees about discussing union topics during
work hours.’’ In fact, the contrary is the well-settled propo-
sition of law. ‘‘An employer may not for union reasons or
in a disparate manner penalize employees for discussing the
union during working time.’’ The prohibition of such con-
versations and threats of discharge to enforce such a prohibi-
tion violate Section 8(a)(1) where, as here, employees are
permitted to talk about nonwork-related matters while they
are working. Columbus Mills, 303 NLRB 223, 229 (1991).20
3. Interrogation
Charles Denton was 1 of approximately 14 employees list-
ed as newly appointed temporary stewards in a letter given
to the Employer on November 18. On November 22, Snyder
initiated a conversation with Denton, asking, in a jovial man-
ner, what a temporary shop steward was. Denton described
the position as one who assists another employee when that
employee is disciplined. Snyder countered with, ‘‘Do you
feel comfortable with that position?’’ and went on his way.
In early January, Snyder initiated a conversation with An-
gela Spaugh. Spaugh was wearing a union button, as she had
since the election, and Snyder asked her what it meant. She
replied that she did not know. Subsequently, he came back
to her, at her machine, and asked to speak with her at some
point about why she supported the Union. She said ‘‘Okay’’
and walked off. Snyder followed her, repeating his question.
When she told him of discrimination, favoritism, and other
problems in the plant, he insisted that she had been mislead
by people in the plant.
These incidents are undenied and, under the circumstances
present here, cross the line between lawful and unlawful in-
terrogation even though the employees had openly pro-
claimed their support for the Union. Snyder was a high-rank-
ing supervisor and his remark to Denton was implicitly
threatening in nature, notwithstanding its jovial tone. His
questioning of Spaugh was persistent, continuing even after
she had twice signaled that she did not want to discuss the
matter with him. Moreover, these interrogations occurred in
the context of other unfair labor practices and union animus.
On December 9, Karen Moore, then the Union’s recording
secretary, was called over to the die cut department by
Robbie Baker. Baker was in the process of telling her about
having been timed when he went to the bathroom when,
Moore claimed, Die Cut Manager Courtney Carr walked up
and asked them what they were talking about and whether
they were talking union. Carr denied ever asking Moore and
Baker whether they were talking union.
Moore voluntarily terminated her employment at the end
of January. On her last day, Second-Shift Supervisor Wayne
Pennington called her into his office and gave her a written
warning for poor attendance, saying that it was something he
should have done 2 months earlier. He then asked whether
he had done anything to make her favor the Union. When
she described impressions of favoritism, he told her why he
did not think a union was necessary at Rock-Tenn and of his
brother’s unfavorable experiences in a union plant. Pen-
nington acknowledged having a closing interview with her
but claimed to have no recollection of what they talked
about.
Moore was a straightforward witness, no longer employed
by Rock-Tenn and lacking any reason to fabricate testimony.
However, her testimony as to Carr’s alleged interrogation
was not corroborated by Baker, who also testified but not
about this incident. Given the absence of such corroboration,
and noting that the alleged interrogation took place when
Moore was called away from her job and into Carr’s depart-
ment, and thus appeared to involve an interruption of produc-
tion, I reject General Counsel’s contention that Carr unlaw-
fully interrogated Moore and Baker in violation of Section
8(a)(1).
If all that had happened on Moore’s last day at Rock-Tenn
was a closing interview wherein a known union adherent was
questioned about the factors that encouraged her to support
the union, I would recommend that the allegation of interro-
gation by Pennington also be dismissed. The desire for union
representation frequently springs from employee perception
of employer mismanagement or abusive work practices. An
alert and intelligent manager would want to know what man-
agement might have done to provoke the union activity if
that information could be garnered in an atmosphere free of
coercion and without seeming to unlawfully promise the cor-
rection of abuses or the grant of benefits. Interviews of vol-
untarily quitting employees could be a fruitful and potentially
noncoercive source of such information. However, given Re-
spondent’s union animus, its other unfair labor practices, and
the belated and seemingly vindictive discipline assessed
683ROCK-TENN CO.
21 As noted by Respondent, the record contains no evidence sup-
porting the allegation of par. 5(a) of the complaint, alleged interroga-
tion by Mike McGinnis in September and October. Accordingly, I
shall recommend that this allegation be dismissed.
22 His recollection is similar. He told Bishop that her understand-
ing of the Union’s obligation to nonmembers was wrong and, now
that he had corrected it, any repetition of what she had said would
be considered an intentional violation of shop rules.
against Moore as she was terminating her employment, I am
compelled to find an 8(a)(1) violation in this interrogation.
Moore was still an employee and the circumstances, I find,
were indeed coercive.21
4. Threats—Weingarten rights
In early to mid-December, press operator Robbie Baker
was sent to the office by his leadman, Terry East, following
a series of arguments about his work. He was told that they
were ‘‘going to have a meeting.’’ Fearing that he was going
to be disciplined, Baker called for his union steward, Cliff
McCrory, to accompany him. When McCrory attempted to
enter the office with Baker, he was physically prevented by
East, who told him to wait outside until Wayne Pennington
arrived. When Pennington similarly required McCrory to
wait outside, Baker insisted that he had a right to have a
steward appear on his behalf. Pennington told him, ‘‘No, I’ll
decide whether you have a right to have a shop steward
come in. Find out whether we have a problem here or not.’’
Similarly, McCrory asked Pennington whether he could
participate in the meeting. Pennington told McCrory that he
could not be there until called by Pennington, that if Pen-
nington needed McCrory, he would call McCrory. Shortly
thereafter, McCrory attempted to clarify his role as steward
and told Pennington that he thought he had a right to be
present if requested by an employee. Pennington told him
that he ‘‘wasn’t allowed to be there unless I call you there
. . . . If I catch you off your job playing union steward . . .
I will clock you out. And I’ll tell anybody that in the whole
plant . . . you will be out . . . I’ll clock you out right then
. . . . This union stuff is going to go.’’
Pennington acknowledged that he initially sent McCrory
back to his work station, telling McCrory that he did not
know what the situation was until he talked with East.
McCrory, he said, was told that if he was needed by Pen-
nington, Pennington would come and get him. Pennington
also acknowledged telling McCrory not to leave his work
until told that Pennington needed him; he denied telling
McCrory that he could get in trouble ‘‘for playing union
steward.’’ He did not deny saying that the ‘‘union stuff is
going to go.’’
McCrory and Baker were both credible witnesses; I was
more favorably impressed with their affirmative testimony
than with Pennington’s denials. Moreover, I find the attitude
attributed to Pennington by these employees to be consistent
with other conduct attributed to management representatives
and with management’s generally disdainful attitude toward
the Union.
Respondent and its supervisor, contending that their ac-
tions were appropriate, entirely misperceive the thrust of
NLRB v. J. Weingarten, 420 U.S. 251 (1975). The right to
the presence of a union steward is personal to the employee;
it is not for the employer to determine whether the employee
needs the steward. It is certainly not dependent on whether
the employer needs a steward to be present. That right arises
when the employee who is called into an investigative meet-
ing with supervision reasonably believes that disciplinary ac-
tion will result from the investigation and requests the pres-
ence of a union representative.
All of the relevant factors are present here. Baker had
been engaged in a running dispute with his leadman, result-
ing in his being sent to the office. The purpose for which
he was being sent was clearly investigatory; Pennington ac-
knowledged that it was to find out if there was a problem.
Baker requested that the steward be present and that request
was repeated by the steward, McCrory. Pennington not only
denied the requests, but also threatened McCrory with dis-
cipline if he persisted in ‘‘playing union steward,’’ i.e., con-
tinued to act in a representative capacity. He also threatened
that ‘‘this union stuff is going to go,’’ a clear reference to
Respondent’s efforts to unseat the Union as the employees’
representative. It is irrelevant that no discipline resulted from
the meeting so long as the employee possessed the requisite
reasonable belief that such discipline might result.
Accordingly, I find that by denying an employee his
Weingarten right to the presence of a union steward at an in-
vestigatory interview where there was a reasonable belief
that discipline might result, and by threatening a union stew-
ard with discipline for attempting to serve an employee in his
representative capacity, Respondent has violated Section
8(a)(1).
5. Impressions of surveillance
On December 12, Carr told Pat Bishop, the Local’s union
president, that an employee had said that she had told that
employee that the Union would not represent employees in
grievance-and-arbitration proceedings if they were not union
members. As she recalled their conversation, she told him
that that was correct because the membership voted on all
expenditures. He told her that he was ‘‘tired of you guys
misleading the people and that she had to stop it or further
action would be taken.’’22
General Counsel alleged that by this exchange, Carr cre-
ated the impression of surveillance in that her future conduct
would be monitored. Carr had no business threatening a
union officer with employer-imposed discipline if she, in her
union officer capacity, misstated union obligations and bene-
fits. His remedy for such alleged misinformation was to put
forth the correct information. Carr’s conduct may have been
threatening in nature, but it was not alleged as a threat in
violation of Section 8(a)(1). It was alleged as employer cre-
ation of the impression of surveillance. As pleaded, the alle-
gation must fail. Carr made clear that an employee had told
him what she had said. I find nothing in what Carr said
which would lead an employee to believe that her union ac-
tivities had been, or would in the future be, placed under sur-
veillance. See Clark Equipment Co., 278 NLRB 498, 503
(1986); South Shore Hospital, supra. Accordingly, I shall rec-
ommend that the allegation contained in paragraph 5(i) of the
complaint be dismissed.
On the evening of December 19, after their first break,
Pennington and Snyder met with the second-shift employees.
Pennington started out by telling them that a lot of employ-
ees were calling each other names and harassing one another
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Gruhl was a thoroughly convincing and credible witness and I
find that her testimony more accurately reflects the events of both
the meeting and her conversation with Snyder than does Snyder’s.
with regard to the Union ‘‘stuff,’’ that it was hurting produc-
tivity and quality. People were complaining and they were
going to put a stop to it. As he spoke, Pennington said that
‘‘these union people are going to have to stop.’’ He hesitated
and then added, ‘‘as well as the non-union people.’’ Snyder
repeated what Pennington had said and added that if manage-
ment found out who was doing these things (harassing peo-
ple, calling people names), they would be severely punished.
Following this meeting, Barbara Gruhl, a janitorial em-
ployee, spoke with Snyder when she went into his office to
empty his trash. She told him that she agreed that everyone
should get along and pointed out that while she and her sister
disagreed about the Union, they respected each other’s opin-
ions and did not let it interfere with their relationship. Snyder
responded, telling her, ‘‘I’m tired of all this, and I tell you
there’s not going to be a union right now . . . we made sure
of that, that we have the majority of the people against the
union and . . . we’re going to put a stop to it permanently
. . . those that are causing all these problems are going to
be severely punished, I’ll see to it personally myself.’’
Snyder continued, talking about both productivity and the
quality of work being done. Gruhl agreed and pointed out to
him that Glenda Sowders, who had been very active in the
antiunion campaign at work, had been leaving her own work
on the day shift uncompleted. The burden of that unfinished
work, she said, was falling on her on the second shift. Sny-
der attributed her added work to Eddie Schonfeld; she dis-
puted him, noting that Schonfeld’s work had improved fol-
lowing a disciplinary layoff (discussed infra). Gruhl said that
she had complained to Bramble about Sowders not doing her
job and been told that that was what she, Gruhl, was there
for. After that, she told Snyder, she just kept her mouth shut.
Snyder replied, ‘‘Well, that’s the way it should be . . . we’re
going to just stop it all.’’23
Counsel for the General Counsel contends that by the fore-
going statements, Snyder threatened union adherents with
discipline. I agree. Snyder’s ire was clearly directed at those
who were continuing to support the Union, not its opponents;
that is clear from his repeated references to ousting the
Union and his glossing over of Gruhl’s complaint about
Sowders. Those same references unlawfully conveyed the
sense that not only was it risky to continue to support the
Union, but that it was futile, a useless endeavor. Manage-
ment, he emphasized, was going to oust the Union. Cannon
Industries, 291 NLRB 632, 637 (1988).
D. William Schonfeld
The 8(a)(1) and (3) allegations
On November 6, the Union notified Respondent as to who
its temporary shop stewards would be on each shift. One of
those so designated was William Schonfeld. On that same
day, Schonfeld, who had not previously revealed his union
sympathies, also distributed a handbill outside the plant, be-
fore work, seeking more signatures on the Union’s member-
ship cards.
In midmorning, his supervisor and longtime acquaintance,
Brian Bramble, told Schonfeld that he had seen Schonfeld
and he ‘‘thought it was pretty silly and stupid of [him] stand-
ing out handbilling for a union that he did not think will ever
come in.’’ Schonfeld told Bramble that he had been on his
own time.
On the following day, Bramble gave Schonfeld a written
warning, purportedly for standing around in the tow motor
shop, not doing his job. The written warning referred back
to a verbal warning of August 6 and directed him to see
Glenda Sowders, the lead janitor, when he ran out of work.
Schonfeld’s janitorial job required him to go into the tow
motor shop where he emptied trash receptacles, checked and
charged the sweeper, and assisted the mechanics. He was
emptying the trash barrels when Bramble disciplined him.
Bramble did not describe any poor work performance by
Schonfeld; he only identified the warning which he had
given Schonfeld and asserted that it was for poor work per-
formance.
In mid-November, Bramble called Schonfeld into his of-
fice. Schonfeld asked Bramble if he had done anything
wrong and said that if he was in trouble, he would like to
have a union steward. Bramble told him that if he insisted
on having a steward, they would go up to Mr. Young’s of-
fice where Schonfeld could push for a steward and Bramble
would seek his termination or a 3-day layoff. On Bramble’s
assurance that he would not get in trouble, Schonfeld accom-
panied Bramble into the latter’s office. Once there, Bramble
told Schonfeld that ‘‘he really felt like [Schonfeld] was
messing up when [he] was talking to the union people, and
[Bramble] felt like if [Schonfeld] would just get away from
the union people that everything would be fine.’’
Bramble claimed to have no recollection of any occasion
when Schonfeld requested the presence of a union steward;
he denied telling Schonfeld that they would go to Young’s
office and talk about discipline if he insisted on a steward.
He did not deny telling Schonfeld that he believed Schonfeld
was ‘‘messing up’’ by talking to union people and suggest-
ing that he should get away from them.
On December 5, Schonfeld got into an argument with
Sowders and Trimble; he had been told they were complain-
ing to management about him. His argument with Trimble,
in particular, got loud and heated; she cursed him out. He
told them to mind their own business. Gary Browning, assist-
ant maintenance supervisor, told the two women to go on
about their jobs but took Schonfeld to the office. Browning
commiserated with Schonfeld about the name calling, told
Schonfeld that he was doing fine, and said that he should
just do his job. However, he also said he would have to tell
Bramble about the incident the next day.
On December 6, Schonfeld was called to Bramble’s office;
Browning was present. Bramble told Schonfeld that he was
due for a 3-day layoff and Schonfeld asked whether it had
anything to do with his argument with Trimble. Bramble said
that that had ‘‘helped’’ but that he ‘‘just felt like [I] needed
off . . . for not doing [my] job.’’ Bramble cautioned
Schonfeld, saying that ‘‘he felt like if I would just come
there, if I would get away [from] the union situation and
come there and do my job I wouldn’t have a problem there.’’
There was no identification of what work he had failed to
do.
Bramble testified that he issued the suspension based on
information which Browning had given him (purportedly in
writing) to the effect that Browning had seen Schonfeld
685ROCK-TENN CO.
24 Gruhl’s testimony that Schonfeld had been neglecting his work,
or performing it inefficiently, to some extent before this layoff and
showed improvement thereafter is scant support for the proposition
that the layoff was motivated by specific misconduct or poor work.
standing around the laminator and in other places where he
had no work responsibilities, ‘‘harassing the employees’’ and
had had several talks with him. Bramble ‘‘did not know the
exact issues.’’ Browning did not testify and no writing from
him concerning this event was proffered.24
On November 7, following the written warning, Schonfeld
had relinquished his position as a shop steward. In February
1992, he quit his job. He attributed both actions to the pres-
sure he was getting at work about his union activity.
In May, Schonfeld called Bramble and asked for his assist-
ance in securing a current forklift driver’s license. At Bram-
ble’s suggestion, he came to the office where Bramble told
him that his license would be renewed if he would sign a
paper to ‘‘straighten out all this union bull shit.’’ At Bram-
ble’s direction, Schonfeld wrote out and signed a statement
to the effect that he had not intended to file unfair labor
practice charges, that he did not feel that he ‘‘was done
wrong,’’ that he had the 3-day suspension coming, that the
Union had pressured him into filing charges, and that he did
not wish the charges to go any further because they ‘‘are not
true.’’
Subsequently, Schonfeld was subpoenaed to testify on be-
half of the General Counsel in this proceeding. He called
Bramble to ask what he should do in view of the statement
he had previously given Bramble. Bramble, he said, told him
to call and try to cancel the subpoena.
The hearing was rescheduled after Schonfeld received the
first subpoena. He received a new subpoena in early January
1993. At about that same time, he also heard that Sowders
was ill and that there might be an opening in the mainte-
nance department. He called Bramble, asked about the possi-
bility of a job, and told Bramble that he had again been sub-
poenaed. Bramble told him that his chances of being hired
would be improved if he would cancel his appearance, that
the ‘‘sooner [he] got the union situation taken care of’’ the
better chance he would have. Shortly before the hearing,
Bramble called him in order to find out whether he was
going to appear. Schonfeld told Bramble that he was going
to honor the subpoena and Bramble concluded the conversa-
tion, stating that they would see each other at the hearing.
Bramble, who described himself as a ‘‘big brother’’ to
Schonfeld, denied much of the foregoing, at least in general
terms. He did not deny telling Schonfeld that he should
avoid the union supporters. He claimed that Schonfeld had
initiated all of the discussions concerning the subpoenas and
the pending charges. Schonfeld, Bramble testified, asked
what he could do ‘‘to set the record straight’’ and volun-
teered to write a letter to the Labor Board. However, with
the exception of some minor confusion with respect to dates
and whose handwriting is on the retraction letter, Schonfeld’s
testimony was consistent and convincing. I am compelled to
find that Bramble, considering himself to be a big brother or
mentor to the less articulate and perhaps intellectually infe-
rior Schonfeld, sought by ridicule and discipline to persuade
the latter to cease his union activities, and, failing that,
sought to persuade Schonfeld not to testify against the com-
pany and himself.
Thus, I find that Bramble unlawfully threatened Schonfeld
with discipline if he persisted in requesting the presence of
a union steward when called to the office. I further find that
Bramble, in violation of Section 8(a)(1), attempted to cause
Schonfeld to retract allegations and testimony given to the
Board and sought to discourage him from complying with
subpoenas issued by counsel for the General Counsel. Such
interference with the vindication of statutory rights is viola-
tive of Section 8(a)(1). Clark Equipment Co., 278 NLRB
498, 519 (1986); Firestone Steel Products Co., 228 NLRB
1039, 1043 (1977).
General Counsel has alleged that the November 7 warning
and the December 6 suspension were motivated by
Schonfeld’s union activity and therefore violate Section
8(a)(3). I must agree. The warning followed immediately on
the heels of Schonfeld’s first open union activity, activity
which had been noted and derisively commented on by the
supervisor who issued that warning. The 3-day suspension,
though coming after Schonfeld had withdrawn from his stew-
ard’s position, was issued after, and in part because, he had
argued with two of the most openly antiunion employees. It
was accompanied by the ‘‘big-brotherly’’ advice that every-
thing would be better if Schonfeld would just stay away from
the union situation. Most significantly, these disciplines were
issued almost cavalierly, with no investigation or expla-
nation. In neither case did Bramble question Schonfeld, even
when he was suspending his ‘‘little brother’’ for conduct al-
legedly occurring while Bramble was away from the plant,
conduct about which Bramble knew little. Moreover, this
record is barren of affirmative evidence supporting either ac-
tion. Respondent offered nothing but Bramble’s conclusion
that conduct had occurred which warranted such discipline.
General Counsel has established a prima facie case of
antiunion motivation; Respondent has failed to sustain its
burden of showing that the same (or any) discipline would
have issued even in the absence of union or protected activ-
ity. Wright Line, 251 NLRB 1083, 1089 (1980), approved by
the Supreme Court in NLRB v. Transportation Management,
462 U.S. 393, 400–403 (1983).
E. Katherine Ellis and Patricia Bishop
The 8(a)(3) allegations
On January 15, Kathy Ellis, the then union president, told
her supervisor, Karen Haggard, that she had been asked to
appear at the NLRB Regional Office on the following day
to answer a charge filed by the Company. Haggard said
‘‘Okay.’’ However, when Ellis returned, Haggard asked
whether she had received a subpoena, saying that unless Ellis
had a subpoena she would have to take a point for absentee-
ism. Ellis said that she did not know that a subpoena was
required. She subsequently asked to see her absenteeism
record; it stated: ‘‘1–16–92—Union business, 0 point if sub-
poena gets brought in, 1 point if not brought in.’’ Similarly,
her absentee calender was marked ‘‘Union’’ for January 16.
On March 20, Ellis was issued an attendance counseling for
having 3.5 accumulated absentee points, including one point
for the January 16 absence. The record of that counseling
states, for that date, ‘‘Union, No subpoena.’’
Ellis was entitled to a leave of absence, for union business,
pursuant to the parties’ collective-bargaining agreement. Hag-
gard testified that she did not consider the implications of
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Haggard contended that Ellis had said that she was going to
‘‘court on union business’’ and was told, before she left, that she
would have to produce a subpoena in order to avoid being charged
a point for absenteeism. That was why, Haggard claimed, she did
not consider the contract. I credit Ellis who had no reason to tell
Haggard that she was going to ‘‘court’’ when she had a perfectly
valid reason for a legitimate and excused absence. I note that Hag-
gard did not apply the contract and revoke the point when she
learned that the union business did not involve a court appearance.
26 Haggard claimed that employees Karen Hendershot, Tammy
Perkins, and Brian Keller had told her that Ellis ‘‘was up to some-
thing,’’ that she was showing the operators parts for which Brinker
had allegedly been sent home and stirring them up. Haggard’s testi-
mony was not corroborated by the operators who testified,
Hendershot and Denton. Both testified that Ellis merely looked at the
parts they were producing, questioned whether such dings as were
on them were normal, circled those dings, and set them aside. There
was no interruption of their work. I credit Ellis as so corroborated.
that contract when deciding to give Ellis the absenteeism
point.25
Moreover, Respondent’s attendance policy provides for
one point to be assigned for each absence except ‘‘for ab-
sences provided for in the Employee Handbook or other pub-
lished policies.’’ The collective-bargaining agreement must
be considered such a ‘‘published policy.’’ By insisting on a
subpoena to justify an absence for ‘‘union business’’ (par-
ticularly where it had permitted the use of companytime and
transportation to file a decertification petition), by denying
Ellis an excused absence to which she was entitled for union
business, and by assessing a disciplinary point against her, I
find that Respondent has discriminated against Ellis because
of her union activity in violation of Section 8(a)(3).
On May 29, 1992, Ellis and Pat Bishop submitted requests
for 2-day leaves of absence, for union business, scheduled
for June 1 and 2. Young denied their requests, asserting that
Respondent did not give leaves of absence for less than 7
days. According to Young, absences of less than 7 days may
be excused under a separate policy. He also justified his de-
nial on the basis that the Employer no longer recognized the
Union and there was no collective-bargaining agreement. The
employees were not told that their requests would be granted
under any other procedure.
I have previously found that Respondent was obligated to
continue recognizing the Union beyond the expiration of the
certification year. Thus, it cannot defend against this allega-
tion on the basis that there was no union. To refuse a request
on that ground is prima facie discriminatory. Moreover, Re-
spondent has failed to sustain its burden of proving that the
leave request would have been denied even if it were not for
union business. Wright Line, infra. Young’s reliance on a
rule limiting the use of leaves of absence to absences of 7
days or more is unsupported by Respondent’s employee
handbook. The leave-of-absence provision found there is not
so limited, it merely refers to occasions when an employee
finds it necessary to request time off from work and allows
for leaves of up to 30 days and longer. Accordingly, I find
that by denying the requests of Ellis and Bishop for leaves
of absence for union business, Respondent had discriminated
against them in violation of Section 8(a)(3).
The morning of August 27, 1992, had begun with a meet-
ing wherein Supervisor Karen Haggard stressed the impor-
tance of quality production. Later that morning, Dallas
Brinker, the senior cut-to-size machine operator, was sent
home, purportedly for intentionally stacking damaged prod-
uct. The employees told Kathy Ellis that they were upset and
concerned because of that operator’s long seniority and the
fact that this had not happened before. After the morning
break, Ellis, whose job involved going to each machine to
keep records and check quality, went to each of the opera-
tors, took samples of their work, circled where the machine
fingers had dented the product, asked whether those dents or
dings were normal, and put the pieces aside.
At 9:30 a.m., Haggard called a meeting of the cut-to-size
operators and asked Ellis to attend. Haggard was angry. She
showed the operators the parts for which Brinker had been
sent home and accused Ellis of taking other product to the
operators and telling them that they would be sent home for
producing that quality of work. She told Ellis that it was not
Ellis’ job to question her discipline or to cause confusion on
the floor by threatening people’s work. Both during and after
the meeting, Ellis tried to explain what she had done; Hag-
gard wasn’t listening.26 Ellis said that the Union had a role
in such matters and Haggard stated that she did not feel that
she had to come to Ellis each time she disciplined someone.
That afternoon, Haggard took Ellis into Snyder’s office.
Ellis was told that employees had complained to Snyder that
she had threatened the operators that they would be sent
home for running what was acceptable work. Snyder told her
that she had no right to do that and that if she had a problem
on the floor or with any of the employees, she was to come
to them. It was not her business, he said, to go around and
talk to operators, causing confusion on the floor and under-
mining the supervisor. He gave her what he described as a
severe writeup. It stated:
Written warning. For causing confusion on the produc-
tion floor by putting samples of production on machine
and informing employees that if they do this they will
be sent home. Sample Kathy put on machine is not
sample of the questioned quality problem. Kathy was
told this can’t happen, that it only causes confusion to
others and they in turn are very upset about it. Violates
work rules 12 [making false or malicious statements
concerning the company, its employees or its products].
She refused to sign it. She left the meeting without mention-
ing that she believed that she was engaged in permissible
union activity. Snyder made no mention of the Union.
Ellis believed that it was her responsibility as the Union’s
president to investigate such matters and that it was permis-
sible for her to do so as long as it did not impede her work.
When initially confronted by Haggard, Ellis made it clear
that she was acting in her union capacity. Haggard would
hear none of it, protesting that she did not have to come to
Ellis each time she disciplined an employee; she rejected or
ignored the Union’s role.
Even assuming that Haggard and Snyder actually believed
that Ellis had acted improperly, the discipline must be found
violative. There is no probative evidence supporting Re-
spondent’s contention of impropriety. Neither Haggard nor
Snyder witnessed Ellis talking to the operators. The only pro-
bative evidence in this record as to what Ellis did is that
given by Ellis, Hendershot, and Denton; it does not support
687ROCK-TENN CO.
27 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.
Haggard and Snyder’s accusations. At best, Respondent is in
the position of mistakenly believing that Ellis had engaged
in misconduct in the course of union activity. ‘‘Section
8(a)(1) is violated if it is shown that the [disciplined] em-
ployee was at the time engaged in a protected activity, that
the employer knew it was such, that the basis of the [dis-
cipline] was an alleged act of misconduct in the course of
that activity, and the employee was not, in fact, guilty of that
misconduct.’’ Burnup & Sims, Inc., 379 U.S. 346, 347
(1964). The quoted language accurately describes the situa-
tion here and I so find.
CONCLUSIONS OF LAW
1. The Union is the exclusive collective-bargaining rep-
resentative of the employees in the following collective-bar-
gaining unit which is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All production and maintenance employees of the Em-
ployer at its Columbus, Indiana facility, but excluding
all office clerical employees, all professional employ-
ees, and all guards and supervisors as defined in the
Act.
2. By assisting, providing financial assistance for, and en-
couraging the filing of a decertification petition, by assisting
and encouraging the solicitation of a union-membership rev-
ocation petition, by threatening employees with discipline if
they are caught talking about the Union at work, by coer-
cively interrogating employees about their union member-
ship, activities, and desires, by denying employees their
Weingarten rights, i.e., their right to the presence of a union
steward when called in to the presence of a supervisor under
circumstances where they reasonably believe they may be
disciplined, by threatening employees with discipline if they
insist on their Weingarten rights, by threatening employees
that continued union representation would be futile, by
threatening employees with discipline or discharge for engag-
ing in other union activities, and by interfering with the
Board’s processes by attempting to induce employees to
withdraw allegations filed with the Board and to refuse to
honor Board subpoenas, the Respondent has engaged in un-
fair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
3. By discriminatorily disciplining employees for engaging
in union activities and by discriminatorily denying employees
leaves of absence in order to engage in union activities, the
Respondent has violated Section 8(a)(3) and (1) and Section
2(6) and (7) of the Act.
4. By failing and refusing to bargain in good faith with
the Union during the certification year, by insisting on a con-
tract term coextensive with the certification year, by with-
drawing recognition from the Union at the conclusion of the
certification year and thereafter refusing to meet and bargain
in good faith with the Union without possessing a reasonable
belief based on objective considerations that the Union no
longer possessed majority support, by refusing to furnish the
Union with information relevant and necessary to the per-
formance of its role as collective-bargaining representative of
the employees in the above-described appropriate unit, and
by unilaterally changing terms and conditions of employment
of unit employees without notice to or bargaining with the
Union as the representative of those employees, Respondent
has violated Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily suspended an em-
ployee, and discriminatorily assigned absenteeism points and
warned employees because of their union activity, it must
make that employee whole for any loss of earnings and other
benefits for the period of the suspension and it must expunge
all references to that suspension and to the discriminatorily
issued warnings and absenteeism points from its records and
it must notify the employees that this has been done.
The Union was certified in February 1991; bargaining
began on May 20. I have found that at all times, Respondent
had failed and refused to bargain in good faith with the
Union, culminating in its insistence on a contract term coex-
tensive with the certification year and with the withdrawal of
recognition on the expiration of that certification year. The
Union and the employees have been entirely deprived of the
benefits of the certification year. Accordingly, I must rec-
ommend that the certification year be extended for a full year
in order to provide the Union with a sufficient period of time
for the bargaining process to have a chance to succeed.
Because of the serious nature of the violations and Re-
spondent’s egregious, widespread, and long-continuing mis-
conduct, demonstrating a general disregard for the employ-
ees’ fundamental rights, I find it necessary to issue a broad
order requiring the Respondent to cease and desist from in-
fringing in any manner on rights guaranteed employees by
Section 7 of the Act. Hickmott Foods, 242 NLRB 1357
(1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Rock-Tenn Company, Columbus, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Assisting, providing financial assistance for and en-
couraging the filing of decertification petition, assisting and
encouraging the solicitation of a union-membership revoca-
tion petitions, threatening employees with discipline if they
are caught talking about the Union at work, coercively inter-
rogating employees about their union membership, activities,
and desires, denying employees their Weingarten rights, i.e.,
their right to the presence of a union steward when called
in to the presence of a supervisor under circumstances where
they reasonably believe they may be disciplined, threatening
employees with discipline if they insist on their Weingarten
rights, threatening employees that continued union represen-
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 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.’’
tation would be futile, threatening employees with discipline
or discharge for engaging in other union activities, and inter-
fering with the Board’s processes by attempting to induce
employees to withdraw allegations filed with the Board and
to refuse to honor Board subpoenas.
(b) Discriminatorily disciplining employees for engaging
in union activities and discriminatorily denying employees
leaves of absence in order to engage in union activities.
(c) Failing and refusing to bargain in good faith with the
Union, insisting on a contract term coextensive with the cer-
tification year, withdrawing recognition from the Union at
the conclusion of the certification year, and thereafter refus-
ing to meet and bargain in good faith with the Union without
possessing a reasonable belief based on objective consider-
ations that the Union no longer possesses majority support,
refusing to furnish the Union with information relevant and
necessary to the performance of its role as collective-bargain-
ing representative of the employees in the above-described
appropriate unit and unilaterally changing terms and condi-
tions of employment of unit employees without notice to or
bargaining with the Union as the representative of those em-
ployees.
(d) In any other manner interfering with, restraining, or co-
ercing 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) Recognize and, on request, bargain in good faith with
United Paper Workers International Union, AFL–CIO, CLC,
and its Local No. 907, as the exclusive collective-bargaining
representative of the employees in the following appropriate
bargaining unit and continue to do so for 1 year thereafter
as if the initial certification year had not expired:
All production and maintenance employees of the Em-
ployer at its Columbus, Indiana facility, but excluding
all office clerical employees, all professional employ-
ees, and all guards and supervisors as defined in the
Act.
(b) Make William Schonfeld whole for any losses he suf-
fered as a result of the discriminatorily issued suspension and
revoke the warnings discriminatorily issued to William
Schonfeld and Kathy Ellis and expunge all references to
those warnings and suspension from their personnel files and
notify them in writing that this has been done and that evi-
dence of the unlawful actions against them will not be used
as a basis of future personnel actions against them.
(c) Post at its facility in Columbus, Indiana, copies of the
attached notice marked ‘‘Appendix.’’28 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.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.