SCHWARZ PARTNERS PACKAGING, LLC, D/B/A MAXPAK

National Labor Relations Board - Unpublished Board Decisions

Aug 29, 2012

12-RC-073852 (N.L.R.B. Aug. 29, 2012)

1
NOT INCLUDED IN PGB
BOUND VOLUMES Lakeland, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SCHWARZ PARTNERS PACKAGING, LLC
D/B/A MAXPAK
Employer
and Case 12-RC-073852
UNITED STEELWORKERS INTERNATIONAL
UNION
Petitioner
DECISION AND DIRECTION
The National Labor Relations Board has considered
objections to an election held March 15, 2012 and the hearing
officer’s report recommending disposition of them.1 The election
was conducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 39 for and 38 against the Petitioner,
with 2 challenged ballots.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.3

1 All dates herein are in 2012.
2 In the absence of exceptions, we adopt pro forma the hearing
officer’s recommendation to overrule the Union’s challenges to
the ballots of Richard Whiting and Abner Rivera.
3 The Employer argues that the recess appointments of Members
Griffin and Block were not properly constituted and that the
Board therefore lacks a quorum to act. For the reasons set
2
The Board has reviewed the record in light of the
exceptions4 and briefs and has adopted the hearing officer’s
findings5 and recommendations only to the extent consistent with
this Decision.
For the reasons set forth in the hearing officer’s report,
we adopt his recommendations to sustain the Union’s Objections 5
and 11.6 In so doing, we find that the evidence adduced in
support of either objection, considered individually or
cumulatively, would warrant setting aside the election.7

forth in Center for Social Change, Inc., 358 NLRB No. 24 (2012),
we reject this argument.
4 In the absence of exceptions, we adopt pro forma the hearing
officer’s recommendations to overrule Union Objections 1, 3, 4,
6, 8, and 10, and the Employer’s Objection. We further adopt
the hearing officer’s recommendation to approve the Union’s
withdrawal of Objections 2 and 9.
5 The Employer has excepted to some of the hearing officer’s
credibility findings. The Board’s established policy is not to
overrule a hearing officer’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us
that they are incorrect. Stretch-Tex Co., 118 NLRB 1359, 1361
(1957). We have carefully examined the record and find no basis
for reversing the findings.
6 Having adopted the hearing officer’s recommendations to sustain
these objections, we find it unnecessary to pass on the hearing
officer’s further recommendation to sustain Objection 7. In
addition, we do not rely on the hearing officer’s citation to
PPG Aerospace Industries, 355 NLRB 103 (2010), a two-member
Board decision.
7 In adopting the hearing officer’s recommendation to sustain
Objection 5, we do not rely on his finding that Supervisor Greg
Bryant engaged in objectionable conduct by predicting that the
3
With regard to Objection 11, we find no merit in the
Employer’s contention that Converting Superintendent Doug
Stewart’s comments regarding the Union, which the hearing
officer found objectionable, occurred outside of the critical
period. First, the hearing officer credited employee Sonja
Phillips that, “a couple of days before the election,” Stewart
told her that he would have already discharged her if she were
represented by the Union. We find no basis for overruling the
hearing officer’s decision to credit Phillips’ testimony.
Next, the hearing officer credited testimony that Stewart
told employees, during several mandatory meetings, that a union
would make it easier for him to fire people. The hearing
officer found, based on the record as a whole, that all of these
meetings took place during the critical period. Indeed, all of
the relevant exhibits refer to meetings being held from mid-
February through March 15.
We are not persuaded by the Employer’s arguments that
Stewart’s first meeting with employees occurred on January 26,
before the Union filed its petition on February 6. The
Employer’s January 26 letter to employees, on which it relies,
merely states that the Employer was aware of the union campaign;
the letter contains no indication that a meeting was held that

plant might close. There is insufficient evidence to establish
that Bryant made this comment during the critical period.
4
day. The Employer also cites testimony from employee Donnie
Robinson that the Employer held its first meeting on January 26.
Contrary to the Employer, we find that Robinson’s uncredited
testimony is insufficient to overcome the hearing officer’s
well-supported finding that Stewart made his objectionable
comments in meetings conducted during the critical period.8
DIRECTION
It is directed that the Regional Director for Region 12
shall, within 14 days from the date of this Decision and
Direction, open and count the ballots of employees Richard
Whiting and Abner Rivera. The Regional Director shall then serve
on the parties a revised tally of ballots, including the count
of the ballots named above. If the revised tally shows that the
Petitioner received a majority of the valid votes cast, the
Regional Director is directed to issue a certification of
representative. If the revised tally shows that the Petitioner
did not receive a majority of the valid votes cast, the Regional
Director shall set aside the election and order a new election,
at such time as the Regional Director deems appropriate.
Dated, Washington, D.C., August 29, 2012.

8 In any event, the hearing officer appeared to credit testimony
by employee Waldemar Ortiz that Stewart repeated the same
statement during two or three weekly meetings. Even assuming
that Stewart initially made the comment before the Union filed
the petition, the record makes clear that subsequent iterations
occurred during the critical period.
5
________________________________
Mark Gaston Pearce, Chairman
________________________________
Richard F. Griffin, Jr., Member
________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD