The Charmin Paper Products Co.

National Labor Relations Board - Board Decisions

Nov 17, 1970

186 N.L.R.B. 601 (N.L.R.B. 1970)

CHARMIN PAPER PRODUCTS CO.
The Charmin Paper Products Company and United
Papermakers and Paperworkers , AFLr-CIO. Cases
14-CA-5391 and 14-RC-6280
November 17, 1970
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 1, 1970, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practice conduct alleged in the complaint
and recommending that the complaint be dismissed in
its entirety, and that the objections to the election be
overruled, as set forth in the attached Trial Examin-
er's Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief. The Respondent filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision,
the exceptions and the briefs, and the entire record in
these cases, and hereby adopts the findings,
conclusions,' and recommendations 2 of the Trial Ex-
aminer, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed.
As all the objections have been overruled, and as the
Petitioner in Case 14-RC-6280 has failed to secure a
majority of the valid ballots cast, we shall certify the
results of the election.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
votes cast in the election has not been cast for United
Papermakers and Paperworkers , AFL-CIO , and that
said labor organization is not the exclusive bargaining
representative of the employees in the unit found
601
appropriate within the meaning of Section 9(a) of the
Act.3
I Notwithstanding abundant testimony to the contrary, the Trial
Examiner was persuaded to accept the Respondent 's version of numerous
alleged violations of Section 8(a)(1) of the Act . Among these were the
granting of two general wage increases and additional overtime pay
benefits prior to the election . Moreover, the Respondent developed a
system of individual and private conferences between employees and their
immediate supervisors during which , a group of employees testified, the
supervisors interrogated , coerced , and threatened the employees with
regard to the Union's organizational activity.
Because the Trial Examiner's findings and conclusions are based, almost
exclusively, upon his broad credibility finding that , "The demeanor of
Respondent 's witnesses was uniformly impressive . The Union's chief
witness appeared to be motivated by a fanatical drive to make a case
against Respondent," we are constrained to find that his findings and
conclusions are not contrary to the preponderance of all the relevant
evidence. Accordingly, we will not disturb the Trial Examiner's
recommendations in this case . Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3).
2 As the Trial Examiner failed to include the certification of election
results in his recommendations, this has been added herein as indicated
infra.
3 The appropriate unit was found to be "All production and
maintenance employees including plant clericals and laboratory clerks who
were employed during the payroll period ending October 19, 1969, but
excluding office clerical and professional employees, guards and
supervisors as defined in the Act."
TRIAL EXAMINER'S DECISION
REPORT ON OBJECTIONS
BERNARD J. SEFF, Trial Examiner: This proceeding tried
before me at Cape Girardeau, Missouri, on April 14, 1970
and April 15,1 with all parties present, involves a
complaint2 pursuant to Section 10(b) of the National Labor
Relations Act, as amended, (herein called the Act), alleging
that Charmin Paper Products Company (herein called the
Respondent or Company), in the course of an organization-
al campaign by United Papermakers and Paperworkers,
AFL-CIO (hereinafter called the Union), interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act. Respondent by
its answer admitted certain allegations of the complaint but
denied the commission of any unfair labor practices.
Consolidated for trial with the unfair labor practice
proceeding were objections to the election by conduct
affecting the results of an election conducted among
Respondent's employees on November 21, For reasons
hereafter stated, I find and conclude that the evidence does
not sustain the allegations of the complaint and that,
accordingly, no remedial order should issue . As the events
forming the basis for that conclusion concerned actions
taken by the Respondent before the election petition was
filed (prior to September 26, 1969, the date the petition was
filed) these actions cannot be considered in passing on the
objections to the election.
At the trial the parties were represented by their
respective counsel, and were afforded full opportunity to
' All dates in this decision refer to 1969 unless otherwise . stated.
2 Issued on January 28, 1970 on a charge filed on, December I and
thereafter consolidated with Case No. 14-RC-6280• which involves
objections to an election conducted by.the Board on November 21 which
election was lost by the Union . The Union filed timely, objections on
December 1.
186 NLRB No. 89
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to file briefs.
Oral argument was waived. Briefs have been submitted by
the General Counsel and the Respondent which have been
duly considered.
The General Counsel filed a Motion to Conform the
Pleadings to the Proof on May 1, 1970. Respondent filed no
objections to the Motion and it is hereby granted.
Upon the pleadings, stipulations of counsel, evidence,
including my observation of the demeanor of the witnesses,
and the entire record in the case, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Charmin Paper Products Company, a wholly owned
subsidiary of Proctor and Gamble Company is, and has
been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the
State of Ohio. At all times material herein, Respondent has
maintained an office and place of business in the City of
Cape Girardeau, in the State of Missouri, herein called the
Respondent's place. Respondent maintains other plants in
the States of Pennsylvania and Wisconsin. Respondent is,
and has been at all times material herein, engaged in the
manufacture, sale, and distribution of Pampers and related
paper products. Respondent's plant located at Cape
Girardeau, Missouri, is the only facility involved in this
proceeding.
During the year ending October 23, 1969, which period is
representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered at its Cape Girardeau plant, paper and
other goods and materials valued in excess of $50,000, of
which goods and materials valued in excess of $50,000 were
transported and delivered to its plant in Cape Girardeau,
Missouri, directly from points located outside the State of
Missouri. During the same period Respondent, in the
course and conduct of its business operations, manufac-
tured, sold, and distributed at its Cape Girardeau plant,
products valued in excess of $50,000 which were shipped
from said plant directly to points located outside the State
of Missouri.
Respondent is and has been at all times material here an
employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
II. THE UNION
United Papermakers and Paperworkers, AFL-CIO,
herein called the Union, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent 's Cape Girardeau plant was under construc-
tion when Respondent began hiring employees on April 7.
Employees remained in training sessions within the City of
Cape Girardeau until they were moved into the newly
completed plant in the country in June. When the events in
question occurred, the Charmin plant was quite new. The
first employees were hired beginning in early April, 1969
and were trained at a temporary location in downtown
Cape Girardeau. The move to the new plant began in June
and production on a limited basis did not commence until
July. At the time of the election on November 21, 1969, the
plant employed a complement of about 220 production and
maintenance employees. By the time of the hearing in
April, 1970 the number had approximately doubled. There
were, at the time of the election, about 25 team managers.
From April throughout the remainder of the year and on
into 1970 the plant was in a start-up and expansion period.
Respondent initially had the critical problem of attempting
to attract a substantial number of potentially qualified
employees. As stated in Respondent's brief, training costs
per employee ran as high as $3,000 to $4,000 and it was
therefore necessary to keep abreast of the wage scales of
competitors in order to attract and retain workers. Pursuant
to this wage policy and based on survey information, wage
rates were increased in June, 1969. Employee benefits were
increased by the addition of a holiday in September and by
certain improvements in the insurance coverage.
It is also pointed out in Respondent's brief that the Union
started its organizing efforts at a very early date and in fact
the organizing efforts commenced even before the Compa-
ny began to function in Cape Girardeau. It is significant to
point out that the Union campaign was conducted openly
and without fear of reprisal. Union adherents among the
employees wore Union buttons at work and solicited and
passed out Union literature in the plant. It should be
emphasized that during the course of the hearing partisan
Union witnesses freely admitted that they were not
harassed, interrogated, threatened, or penalized in any
manner during the campaign and through the election. In
fact all of the witnesses who testified received one or more
promotions from the time they commenced their employ-
ment until the time of the hearing.
The General Counsel in his brief starts off initially with
the statement that the Respondent committed numerous
violations of Section 8(axl) of the Act. Among the
violations alleged were two general wage increases.
Respondent granted employees additional overtime pay
benefits, made favorable comments about its wage
increases, and engaged in a widespread campaign of
interrogation and threats that employees would lose certain
benefits in case of unionization. Additionally, the General
Counsel in his brief alleges that the Respondent injected a
racial issue into the Union and election situations,
threatened to withhold benefits for bargaining purposes in
the case of unionization, gave employees the impression of
surveillance of their Union activities, suggested that an
employee was denied promotion because of his Union
activity, asked employees to remove Union insignia, and
told employees that Respondent's wage system would not
work in the event of unionization.
B. Respondent's Alleged Unlawful June Wage
Increase
The General Counsel takes the position that when the
CHARMIN PAPER PRODUCTS CO. 603
Respondent set its first wage rates for its new Cape
Girardeau plant in December 1968 that the rates were
established as explained by the Company as the result of a
survey taken prior to the establishment of the rates. The
Union representative, Woodall, contacted the Respondent
in the first week in April. Respondent opened its
employment office in Cape Girardeau in the middle of
February. Newly hired employees were placed in a training
program in rented facilities in downtown Cape Girardeau.
Plant Manager Bowman testified that some employees
went to the new plant on June 19 but the general move into
the new plant took place July 14-16. Until mid-July, the
bulk of the employees were still in the process of being
trained.
The record shows that Bowman set forth the Respon-
dent's policy as follows: "We pay wages and benefits that
are equal to or better than the average of the major
companies in the local area where our people might work if
they didn't work for us, and regional paper converting
plants." It is not denied that the Respondent granted a
general across-the-board wage increase on June 24. The
General Counsel points out that this wage increase was
given only 2 months after the opening of the plant at a time
when the Union was already present and before the
Respondent had commenced production. Bowman testified
that the June wage increases were granted on the basis that
the survey of December, 1968, was by that time already 7
months old and had been made from a distant point,
Respondent's home office in Cincinnati, and many changes
had occurred in the area.
The General Counsel argues that the Respondent's use of
the survey as the basis for granting wage increases should
not be allowed to obscure the fact that its June increase was
unlawful. In the view of the General Counsel the changes
that occurred since the December, 1968, survey are
ascribed to the fact that the Union arrived on the scene very
early at Respondent's Cape Girardeau plant. General
Counsel points out that a large and sophisticated Company
like Respondent would not reasonably set wage rates based
on an unreliable survey such as Bowman characterized the
December, 1968 survey. General Counsel goes on to point
out that Respondent uses the survey and the companies
included in it as a pretext to Justify unlawful wage increases
designed to thwart Union organizational activity. This
conclusion of the General Counsel is predicated on his
interpretation of the following facts:
A company in Jackson, Missouri, was included in the
survey but it had less than 100 employees and Bowman
said that by June, 1969 Respondent had only approxi-
mately 112 employees. Respondent added West Vaco to
the survey even though at the time West Vaco was
added it had only 3 employees. The General Counsel
points out that West Vaco still isn't an operating
company.
Furthermore, the General Counsel emphasises that
the Respondent has kept Marquette Cement Company,
which Company is engaged in an entirely different line
of business from Respondent, in the survey even though
at present Marquette has only a little over 100
employees. General Counsel states that the Respondent
has kept Potlatch Forest Company in the survey even
though Bowman admits that he does not know whether
the skills required by Respondent or those required by
Potlatch have any relation to each other.
From Bowman's testimony the General Counsel
takes the position that the alleged reliance of Respon-
dent on the survey is a sham . He points out that
Respondent eliminated the Jackson Plant with 100
employees from its survey, supposedly because it was
too small in comparison with Respondent-which at
that had approximately 100 employees. But it added the
West Vaco plant , at a time when it had only 3
employees , and West Vaco is still not in production. It
retained Marquette Cement in the survey , even though
Marquette's employment force has fallen from 300 to
approximately 100, almost the same number as the
Jackson plant which was thrown out of the survey.
From this information the General Counsel states that the
Respondent uses and manipulates the survey in the
companies covered by it as a cloak under which it can hand
out wage increases at such times as Union organization
efforts appear to be promising. According to the General
Counsel the biggest single change in the entire situation
from September , 1968 to June , 1969 was the early arrival of
the Union at Respondent 's door, drawing from the
Respondent the reaction of the manipulation of its survey
results so that it could grant an across-the-board wage
increase to a group of employees who were still in training
and had not even gone into production . It is further
underscored that Plant Manager Bowman did not deny
that the wage increases had any more than coincidental
relationship to the actual opening of production in the
plant. This action appears to the General Counsel to be an
afterthought but he argues that it does not serve the
Respondent as a reliable cover for its wage increase, since
beneath the transparent cloak of the talk about a survey can
readily be seen the skeleton of a wage increase unlawfully
granted only to thwart the organizational efforts of the
Union which had arrived sooner than Respondent might
have contemplated. The General Counsel asked a rhetorical
question , "Why else give raises to employees who hadn't
produced a thing to that point?" Allegation 5A, sets forth
that on some date in June, 1969, the employer granted wage
increases for the purpose of influencing employees against
the Union. The record is barren of any testimony or any
other evidence to support this allegation . The only fact that
is not disputed is that there was an increase in wage rates
announced in June 1969, effective June 23. According to
Respondent the evidence affirmatively shows that the
increase was made for business reasons. The Company first
started hiring people in February, 1969, for the new plant at
Cape Girardeau. The hiring rates for personnel hired
between February and June were established in December
1968.
The rates established in December were based on a
survey made by the Company's home office in Cincinnati
which office had no direct information concerning the local
conditions prevailing at Cape Girardeau. When the plant
manager Bowman came on the job he testified that he
found flaws in the survey in that it had included companies
which were not comparable and should not have been
included. Furthermore Bowman pointed out that the survey
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was also 7 months out of date by June, 1969. It was further
pointed out that the employer was under the necessity of
recruiting and retaining qualified employees and for this
reason it was imperative that the wage rates be brought in
line with companies competing for employees operating in
the same geographical area. Respondent takes the position
that this increase was in accord with the announcement on
April 22 that "It is our intent to consider wage adjustments
no later than July of this year."
There is a further allegation in the complaint, 5C, that the
employer granted wage increases in September for the
purpose of influencing employees against the Union. Once
again there is no evidence in the record to support this
charge. The General Counsel sought to evaluate this wage
increase as a suspicious act by reference to the April 22
memorandum, which states , inter alia:
It is our intent to consider wage rate adjustments in the
spring of each year, about April, and to consider benefit
adjustments in the fall of the year, about September.
However there is other language in this memorandum
and the Respondent points out that the General Counsel
does not seem to understand the working of the Employer's
wage policy which is designed to keep abreast with wage
competition in the area and region in which the plant is
located. In support of this argument the Respondent states
that the April memorandum leads off by making a
preliminary statement, as follows:
In establishing our wage rates and benefits, we have
taken into consideration all known changes at several
companies in the community. We shall continue to
review this matter and will make adjustments when our
information indicates it is right to do so.
The Respondent further points out that the June memoran-
dum also states that: "wages will be adjusted again when
our information indicates that it is right to do so."
Plant Manager Bowman's explanation for the September
24 increase is based on the necessity to maintain wage rates
at a level sufficiently high to attract potentially good
employees. Furthermore Respondent points out that the
explanation given by Bowman is unchallenged by any
evidence appearing in the record. In further explanation of
the September 24 increase Respondent states that when the
benefits survey was made in the fall, wage rate information
was obtained from the survey companies as well as the
general situation. This survey data showed two companies
in the survey had made or were making wage increases
which were not anticipated when the June survey was
made. The record indicates that Marquette C. had
concluded a 2-year contract with increases substantially in
excess of the 6 percent estimated in June; that West Vaco
was informing applicants for employment that it was going
to grant a 17 cents per hour increase before January 1970.
Respondent offers this information as an explanation of the
reason why the increase in September was granted. It points
to a memorandum that appears in the record which
contains the following statement:
Several unexpected and significant changes (in survey
companies) have occurred which we could not antici-
pate last June, so we are adjusting our wages
accordingly.
Respondent argues that the employer follows a wage policy
based on keeping competitive with a selected list of nine
companies in the area or in regional converting plants. The
normal operation of this system called for wage adjust-
ments when wage survey information indicated it was right
to do so. According to the Respondent the wage survey
information indicated it was "right" to do so in June, and
again in September. Respondent argues that in view of the
heavy recruiting in progress and the need to obtain and
retain qualified employees, the employer was required, as a
matter of business survival, to keep abreast of the wage
survey companies competing for the same types of
employees.
Respondent argues that in the absence of any contrary
proof it cannot be found that these wage increases were
coercive or unlawful under the Act. The fact that union
organization was in progress from the very beginning of the
plant is not evidence of unlawful motivation, particularly
when affirmative evidence of business reasons for the
increase is offered. In support of this position Respondent
cites Fairchild Camera v. National Labor Relations Board,
406 F.2d 581, 69 LRRM 2900; Logan Co., 171 NLRB No.
83, 68 LRRM 1141; Brearley Company, 163 NLRB No. 84,
64 LRRM 1474; Sheboygan Sausage, 156 NLRB 1490, 61
LRRM 1299.
The Company then argues persuasively that an employer
could never grant a wage increase while an organizer was
on the scene if what has been stated above were not true.
Respondent then emphasizes that it is noteworthy that
increases such as these have to be approved by the home
office of the Company in Cincinnati, Ohio, and that
requests for that approval were made about September 1.
The increase was announced on September 24 and the
petition was not filed until September 26. Respondent then
emphasizes in its brief that the Board has recently held that
an employer "has the legal duty to proceed as he would
have done had the Union not been on the scene." In
support of this argument attention is called to the Gates
Rubber Company, 182 NLRB No. 15, 74 LRRM 1049. In
that case the Board held that it was an unfair labor practice
for an employer during the pendency of an election to
withhold an increase in wages that would otherwise have
been granted. This ruling negates the drawing of any
adverse inference from the fact that the increases were
given during a union organizing campaign, which began
when the first employees were hired, even before the plant
had been opened.
C. Interrogation
The Employer had divided its unit employees into teams
which consist of 1 team manager and 14 employee team
members. The team rooms are located on a floor above the
production area where the team manager conducts daily
meetings with his 14 member team at which meetings a
variety of work-related topics are discussed. It is also the
team room where most of the "one-to-one" interviews are
conducted.
Respondent describes the so-called one-to-one meetings
as a managerial innovation. The gravamen of the complaint
targets around statements or comments attributed to some
team managers, one department manager , and one black
CHARMIN PAPER PRODUCTS CO.
training specialist. The complaint alleges as per se unfair
labor practices the following;
(a) Asking an employee why she favors the Union. (b)
Asking an employee how he felt about the Union. (c)
Asking an employee what issues were causing employ-
ees to want the Union. (d) Telling an employee he is
talking too much and when asked if this meant talking
about the Union, replying, "Not exactly". (e) Giving an
"impression" of surveillance. (f) Asking an employee
why he wanted time off to attend an NLRB hearing to
which he was not subpoened. (g) Making favorable
references to existing wage rates. (h) Stating an opinion
that the company could not operate under its present
wage system if unionization would result and compel it
to function under a union seniority system. (i) Granting
periodic wage increases to employees. (j) Telling an
employee that Veteran's benefits could be lost under the
type of seniority usually required in union contracts.
It was corroborated by the Union witness that the one-to-
one meetings took place on a daily basis at the beginning of
the shift and the discussions that took place in these
meetings concerned themselves with routine questions
about the job. In some instances the employees themselves
brought up the subject of unions. Whenever this occurred
free interchanges of opinion took place completely free
from threats or any suggestions of coercion. The atmos-
phere surrounding these meetings did not in any case create
fear or reprisals and the Union witnesses were comfortable
in the exchanges that took place. For example an employee
said that early in November Team Manager Popp spoke to
him alone in the team room. He asked the employee "How
do you feel about the Union, are you for it or against it?"
The employee replied that he had not yet made up his mind.
Popp went on, "Has the Company done anything to cause
you to have doubts?" Popp then went on to say, "I have
pamphlets and information about the Union you can look
at whenever you want to. You have a right to vote whatever
way you choose."
It is difficult to imagine a more innocuous conversation
or one less calculated to convey any anti union animus.
Despite the fact that the complaint enumerates 28 separate
allegations of unfair labor practices, viewed superficially a
first impression might be that the Respondent engaged in
wholesale violations of the Act. Evaluation of the testimony
of the witnesses for the General Counsel shows however
that there is no substance to the allegations.
For example, the complaint sets forth that Respondent
created the impression of surveillance. This is based on the
testimony of employee Markhart. He testified that in June
or July he "and two or three other guys," one of whom was
Baugher, were standing outside the Colonial Inn near the
intersection of an interstate highway and saw supervisor
Fogler driving down the highway. Markhart thought that
Fogler looked at the group but admitted that Fogler kept
on driving. Markhart stated he wouldn't say Fogler looked
"right at us but towards us." Later on while Markhart, Ray
Baugher, Don Clifton, and Ray Smith were standing
around in the plant talking during work time Fogler said:
"You are not at the Colonial Inn. Break it up." There is no
other testimony on the matter of surveillance or creating
the impression of surveillance. Fogler testified that he
605
frequently drove by the Colonial Inn to visit his service
station. He denied that he saw Markhart or that he made
any reference to it again. This flimsy thread was sought to
be woven into evidence that the Company engaged in
creating the impression of surveillance. Note that there is
not even a suggestion that Fogler had any idea why they
were there or that a union meeting had been or was going to
be held in the Colonial Inn. The comment made by Fogler
in the plant would appear to have been "small talk". No
finding or inference that the Company was engaged in any
unfair labor practices from the allegation concerning
surveillance can be drawn from the evidence in the record.
Fogler allegedly asked an employee why he wanted to
attend an NLRB hearing. Employee Baugher testified that
the NLRB scheduled a hearing on the election petition for
October 21 or 22. Fogler told Baugher that a Union official
named Bob Coomer phoned and asked that Baugher be
allowed to attend this meeting . Fogler replied that he could
not authorize the day off unless Baugher asked for it.
Fogler asked why he wanted to attend. Baugher replied he
wanted to see how an NLRB hearing was conducted. He
was granted the time off. The entire incident concerning
Baugher and his desire to attend the NLRB hearing is
trivial and not worthy of extended discussion.
The complaint takes two paragraphs to set forth a series
of alleged conversations involving an employee, Mrs.
Nelson, and a black training specialist named Thompson
which were offered to show that Respondent was engaged
in racial discrimination. Team leader Pollard told Thomp-
son that Norma Nelson felt she was being discriminated
against in promotions. Thompson, who is black, felt that it
would be well if he could arrange an audience with Nelson
so that she could ventilate her feelings after which he felt
the situation would be clarified. He secured permission
from Green, who is Nelson's team manager , to speak to her.
Nelson apparently resented the fact that she was being
talked to by a black man who was not her regular
supervisor and this seemed to her to carry unfavorable
racial overtones.
A meeting was arranged with the permission of Green.
According to Nelson, Thompson opened the conversation
talking about a union in Bogalusa , Louisiana where when
the union came in there they laid off all the blacks.
Thompson then said, "Norma, I don't think you would
want that to happen here." She replied, "No, I wouldn't."
Thompson then told her that he knew she had been going to
all the union meetings . She said she had because she knew
nothing about unions and went to find out what the union
had to offer as compared with what Charmin had to offer.
Nelson then said Thompson told her about the layoff of the
blacks at Bogalusa and that if the union was voted in there
would not be any blacks in the union. "If there are blacks
then, he says, the ones that they hire in will be more white
than they are black. In other words, he meant they would
be a Tom." In addition he said he understood I had some
grievances with the plant and that he wished I would come
to him instead of Green. Nelson testified she asked him
why. He said he was a black man and that is what he was
there for. Nelson rejoined, "I think that is a bad policy of
the plant has you there just for the blacks to come to, and
Bill Green being white, he is over me, I feel I should be able
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to go to him and explain to him what I want to do. He said,
well, some of the other blacks had grievances that had
talked to him and he wanted to know if I thought a meeting
with the blacks would help. I told him I didn't know, but
maybe it would. He suggested having it at the Holiday Inn
or the plant and he asked about having it at my home."
Apparently the idea of a meeting of blacks with Thompson
died aborning because no such meeting ever took place.
Thompson testified that he knew Nelson both in the plant
and socially having met her with black groups which were
meeting on civil rights issues . Initially, in the course of
Thompson's conversation with Nelson she opened the talk
by saying she knew what he was going to talk about and
said, "I am going to tell you like I told Bill Green, I am for
the union." Thompson then testified that the conversation
turned to the union and he mentioned that he knew a few
things he felt she should consider. He said he attended
college in Grambling, Louisiana and some students whose
parents worked in Bogalusa had to drop out of school
because their parents were forced out of work as the result
of the strike that took place at the plant. Thompson
categorically denied that in his talk with Nelson he said that
if the union was voted in there would not be any blacks in
the union and if they are they will be more white than
black. Thompson said he never spoke to Nelson again.
From the above recital General Counsel in his brief
argues that Thompson's recital, in speaking about his
experience at Grambling College and tying this in with his
statement that the advent of a union at Bogalusa caused the
layoff there of black employees, constituted a threat that
unionization would jeopardize the jobs of other black
employees at Charmin. Such an inference from the facts
detailed above is neither reasonable nor is it supported by
the record. It should be noted that Nelson is a dedicated
member of the NAACP and appeared to be hypersensitive
on the subject of racial discrimination. If Thompson's
recital of the facts in Bogalusa was not misrepresented by
him it is not violative of the Act. As between the versions of
this conversation given by Thompson and Nelson I credit
Thompson whose calm testimony was more convincing
than the story told by Nelson.
The complaint alleges that Respondent granted general
wage increases in June and September and thereafter made
favorable references in speeches and in letters to its
employees calling their attention to these raises. There is no
dispute about these facts nor is there any question that the
Union, in its propaganda, told the employees it would
improve their wages and other benefits if chosen at an
NLRB election. Nowhere in Respondent's communica-
tions, either written or oral, were there any threats of
reprisal or promises of benefit made to its employees. The
Company's actions in these regards were not violative of
the Act.
General Counsel states that when a wage increase was
granted to employees on September 24, just two days before
the Union filed a petition with the NLRB, such wage
increase was made by the Company during the critical
period and as such was violative as per the adjudicated
cases under the Act. The case law on this point is clear:
changes in wages or working conditions made after a
petition is filed do fall within the principles enumerated in
well established Board law. But the fact of the matter is that
Respondent in the case at bar granted its wage increase two
days before the date the Union filed its petition. There is no
showing on the record that Respondent learned of the
Union's intention to file a petition and then `jumped the
gun".
The complaint further alleges that the Respondent
committed unfair labor practices when it communicated to
its employees that its present method of granting individual
wage increases would have to be discontinued if the Union
became the representative of its employees. The Company's
present method is based entirely on merit and it explained
that under union contracts individual increases are usually
based on seniority. In support of this statement the
Company pointed to a contract it now has with the same
union in one of its other plants where increases are in fact
based on seniority. It is not disputed that the contract
presently in force at its other plant does predicate
individual wage increases on seniority. Nowhere does the
record show that the facts as presented to its employees by
the Respondent are not an accurate factual presentation. In
further explanation of its position the Company stated that
if the Union did become the representative of its employees
the present wage progression plan would have to be
changed to incorporate the principles of seniority. The
General Counsel argues in his brief that by its position on
wages Respondent was in fact threatening to take away its
wage plan and thus threatening its employees with the loss
of wage increases if they chose to be represented by the
Union. The Company did not announce an intention to
refuse to bargain with the Union if its organizational efforts
were successful but on the contrary it stated that it would
bargain with the Union on this point. I know of no cases in
which the Board has held that a Respondent would be in
violation of the Act based on the facts enumerated supra.
The record is devoid of evidence that in any of its
statements the Company threatened its employees with
threats of reprisal or promises of benefit unless the
employees rejected representation by the Union.
The testimony of the approximately 11 supervisors was in
direct contradiction to certain of the statements made by
the witnesses for the Union. However in the posture of the
case it hardly seems necessary to made extended credibility
findings.
In any case even if the testimony of the Union's witnesses
was to be credited the statements which were advanced as
evidence of illegal interrogation attributed to Respondent
were within the protection of the free speech provision of
the Act and were not violative of the law. The demeanor of
Respondent's witnesses was uniformly impressive. The
Union's chief witness appeared to be motivated by a
fanatical drive to make a case against Respondent.
Raymond Baugher, who is the employee referred to
earlier in this decision, had asked for permission to absent
himself from the plant in order to attend the NLRB hearing
on the petition for an election filed by the Union. Baugher
was given permission to attend the hearing. Baugher asked
his team leader, Pollard, if it was true that "if we went union
that we would be denied our Veteran's benefits?". Pollard
allegedly replied that he did not know what would happen
at Cape Girardeau but that when the Mehoopany,
CHARMIN PAPER PRODUCTS CO. 607
Pennsylvania, plant of the Respondent voted for the Union
the unionized employees were no longer eligible for
Veteran's benefits. When Baugher was in St . Louis after the
hearing he paid a visit to the Veteran's Administration to
check on the question of possible loss of benefits if the plant
went union. The Veteran's official in charge of Charmin's
veterans program told Baugher "there was no way that a
union could give or take away veteran's benefits." It is
interesting to point out in this connection that Baugher
applied for and received Veteran's benefits. It would seem
in view of these facts that Baugher knew of his own
knowledge and experience that the election of the Union
could have no effect on the receipt or denial of Veteran's
benefits.
It should also be pointed out that even though Baugher
complained that he had been criticized in one-to-one
meetings that his interest and the quality of his job had
fallen off. Baugher upon being told this stated on the record
that he had been praised only a short time before the
complaint was made about his work and he could only
account for the remarks made by his supervisor as
reflecting Respondent's displeasure with him because of his
well known activities on behalf of the Union.
Pollard testified that when Baugher asked him why he
had not been promoted sooner he replied: "I told him it had
been because he did very poorly on the test and because he
had not been a good performer during that period of time."
Pollard went on that he had had a discussion with
Willgrubs about Baugher. He told Willgrubs that Baugher's
performance had not been good, that "Ray (Baugher) had
taken the basic maintenance test and scored very poorly on
the test and showed a lack of technical knowledge to
become a mechanic."
There is another significant aspect of the testimony of
Baugher. He testified that he was in a maintenance
assignment and was trying to qualify for the job of basic
mechanic. His job rate was $2.76 and the rate paid the
mechanic was $2.92. In order to qualify Baugher had to
pass a written mechanic's test. He took the test and scored
59 on the first test . He admitted on the stand that he had
deliberately flunked the examination. The next time he
took the test he made 92. Shortly after passing he was
promoted. Baugher said he was not promoted because of
his union activities. Baugher testified that team manager
Willgrubs told him "the only conclusion he could come to
that my union activities had kept me from getting a raise
Baugher's testimony that he had deliberately flunked the
written examination was peculiar to say the least. I made
him my witness to seek clarification of what he had said.
TRIAL EXAMINER: Did you testify yesterday that you
deliberately failed to pass the first written examination?
WITNESS: Yes, Sir.
TRIAL EXAMINER: If this is so, by deliberately failing,
you penalized yourself in terms of holding off a wage
increase, is that correct?
WITNESS: Yes sir, I suppose so.
TRIAL EXAMINER: Why would you do that?
WITNESS: Simply because, sir, in our training and
through our training we were advised that these tests
were merely to show you and your team manager what
you needed to brush up on as far as maintenance is
concerned. It had little or nothing to do with your
qualifications.
TRIAL EXAMINER: Isn't the determination as to
whether the test had to do with qualifications something
that is made normally by the company?
WITNESS: I suppose so, sir.
WITNESS: Yes, sir, I had been badgered so much that
at that time the test didn't make much difference to me.
They told me they didn't make the difference in your
qualification and I needed to prove it to the people.
Everyone was upset over these tests. They didn't think it
was fair that we had to take these tests.
From the quoted portion of the transcript which appears
supra it is clear that Baugher acted as though he had a
mission in life to prove the tests were not important. It was
not in his province to make such a determination. When an
individual deliberately fails a test and takes a financial
penalty for this act he seems to be behaving in an abnormal
fashion and thereby marks himself as a zealot. Cool
objectivity and accurate testimony are not the habilments
normally worn by fanatics. I do not credit Baugher's
testimony in any respect not corroborated by other
witnesses who are not out to "make a case".
The record contains testimony about an episode that took
place at Markhart's shop to the effect that team manager
Fogler told two employees that employees would lose
veteran's benefits if the plant was organized. The three men
involved in this incident were admittedly well lubricated
with many beers. Fogler categorically denied having made
any remarks about veteran's benefits. In any case since the
determination regarding such benefits was exclusively
within the sole control of the Veteran's Administration and
beyond the reach of Respondent any conversation, under
these circumstances, could not be violative of the Act. The
matter concerning Markhart's shop is too trivial to merit
extended discussion.
The complaint contains allegations to the effect that
plant superintendent both addressed letters on October 29
and November 3, 12, and 17 and made a number of
speeches to the employees. The short answer to such
allegations can best be expressed in the Regional Director's
conclusion to the Union's objections to the election:
There is nothing in any of these letters by which the
Employer threatened to take any action detrimental to
employees if Petitioner were to become the collective
bargaining representative of the employees.
Further there are allegations that various supervisors asked
employees how they felt about the Union; an employee was
asked why she believed the employees needed a union;
what issues were causing employees to want a union; on
another occasion a Company supervisor allegedly told an
employee that he was talking too much and after that the
employee asked if he was talking too much about the
Union, the supervisor said "Not exactly." Nowhere was it
proved that the employees were prohibited from union
activities or that any threats were made or that an
atmosphere of coercion was created or that Respondent
entertained any antiunion animus. Strapping away the
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separately stated allegations which appear in the complaint
it is clear that the Company did not engage in any activities
violative of the Act.
Objections to the Election
The objections to the election were as follows:
(1) That the Company threatened and interrogated
individual employees with reprisals if they voted for the
Union.
(2) The employer made promises of benefits to destroy
the Union 's majority.
(3) Respondent distributed and posted on bulletins false
and misleading information at a time and in a manner
which did not allow the Union time to deny and
disprove them.
(4) The Company threatened employees with loss of
benefits and earnings.
(5) Respondent in its letter to employees and their
families threatened employees.
(6) Respondent provided the Union with an inaccurate
eligibility list.
(7) Respondent employed the racial issue in order to
destroy the Union majority.
The Regional Director dismissed objections 3, 5 and 6. The
objections 2, 4 and 7 were found to have raised material
and substantial matters and a hearing was directed to take
testimony on these and on "Other conduct not specifically
alleged."
The subject matter of objections 2, 4 and 7 has been dealt
with in detail supra . In a word no credible evidence to
support these objections was adduced by the General
Counsel . The employer made no promises of benefit
designed to undermine the Union 's majority . No employees
were threatened with the loss of earnings or other benefits.
No efforts were made by Respondent to destroy the
Union 's majority by the injection of racial issues . In point
of fact the Company did not introduce racial issues into the
situation . Further amplification of the material encom-
passed in the enumerated objections upon which a hearing
was ordered beyond the matters analyzed and disposed of
in the body of the instant decision would be repetitious and
would serve no useful purpose . It is recommended that the
objections to the election be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the alleged
unfair labor practices.
4. The objections to the election are without foundation
in fact. They should be dismissed and the result certified
that the Union was not selected as the collective -bargaining
representative of the Respondent 's employees.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its
entirety.