St. Regis Paper Co.

National Labor Relations Board - Board Decisions

Aug 16, 1971

192 N.L.R.B. 661 (N.L.R.B. 1971)

ST. REGIS PAPER CO. 661
St. Regis Paper Company and Marcella Brendle.
Case 14-CA-5607
August 16, 1971
DECISION AND ORDER
On October 1, 1970, Trial Examiner George L.
Powell issued his -Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed m its entirety. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief.
The Board has reviewed the rulings of the Trial
Examiner" made at the hearing 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 brief, and
the entire record in the case , and hereby adopts the
findings, conclusions, and recommendations only to
the, extent consistent herewith.
Respondent posted a notice on the plant bulletin
boards announcing that on April 10, 1970, the plant
would be closed to allow maintenance men and
machine adjusters to service the machines. Brendle, a
machine operator. for 12 years, the last 9 years' of
which she has been a union member in good standing,
complained to -Heinrich, another machine operator
with 19 years' seniority, who was also a union member
in good standing, on at least two occasions the day
preceding the planned shutdown that the adjustment
and maintenance work should have been done during
the preceding weeks when the work was slow. While
the two were discussing the planned shutdown at the 3
p.m. coffeebreak, Woodrow Wilson,' secretary and
treasurer of the ' Union,l walked up to them while on
his way to the' monthly union-management discussion
meeting. They told him about their dissatisfaction
with Respondent's planned shutdown. In addition to
the above reason for complaint, they also told him
that they felt it was unfair because "we need our
money just like they [the cleanup crew] do," and the
Respondent could do the adjustment and mainte-
nance work on a Saturday. Wilson, according to the
credited testimony, stated "he was tired of listening to
us bitch all of the time and he was sick of it, and with
that he walked out of the door."
Shortly after their conversation with Wilson each
employee was requested to report separately to the
personnel office where the above-mentioned meeting
was taking place. Present - at this, -meeting were:
Thornsberry, personnel manager; . Smith,, superin-
tendent; Wilson, secretary and treasurer of the
Union; Mathieny, shop steward; Battaglia,.-shop
steward; and Thiedke, president-of the Local Union.
According to the credited testimony, Thorsberry told
Brendle, and then -later- in- a separate interview, told
Heinrich, that they were called as a result of their
complaining to Wilson about the scheduled Friday
closing. Thornsberry insisted that if they had a
complaint they should use the grievance procedure
rather than just complain. Wilson concurred with
Thornsberry and pointed out that the present com-
plaint was groundless because Respondent was acting
within the scope of the management rights clause of
the contract. Thornsberry also told Heinrich that she
had more seniority than a machine adjuster and that
he would give her that adjuster's job,on Friday, but, if
she could not perform the job she would be
discharged.2 Heinrich immediately protested that she
knew nothing about that type of work and could not
perform the work which would be expected of her.
;,, The Trial , Examiner ' concluded that the incidents
involved herein constitute nothing more than a
request by the Respondent that-two employees, at the
suggestion - of the union representative, attend the
normal monthly grievance meeting in order to resolve
their complaints. He reasons further, that in light of
the fact that neither employee chose to file a
grievance,' even though she was well aware of the
procedures for doing so, both Union and manage-
ment have the right to tell these employees to either
file a grievance or shut up. Consequently, he recom-
mends that the complaint be dismissed in its entirety
since the facts do not support the finding of Section
8(a)(1) violation.
We disagree. Clearly the discussion between Bren-
dle and Heinrich and their subsequent complaints to
Wilson were protected concerted activities within the
meaning of Section 7.3 The ensuing request to report
to the union-management discussion group to air
their discontent is, in and of itself, not an objectiona-
ble response to the employees' ungrieved complaints.
However, the comments by Thornsberry to Heinrich
regarding her assignment to replace an adjuster with
the clear possibility of her being discharged if she
improperly performed work which she was not able to
perform constituted, in our opinion, a threat of
discharge in retaliation for engaging in -protected
1 International Brotherhood of Bookbinders , Local 209. testimony but only failed to consider it, and as it is a statement similar to
2 According to the testimony of Brendle , which the Trial Examiner fails that made to Heinrich , we credit this testimony.
to consider, Thornsberry also told her that "he would bring the people ,in ' Meinholdt Manufacturing Inc.Hydra-Tool Company, Inc., 183 NLRB
that was doing the complaining and if they couldn't do the work, they No. 129. See also Northern Metal Company, 175 NLRB No. 145 and H. C.
would be terminated : 1 As the Trial Examiner did not discredit this Smith Contnrction Company, 174 NLRB No. 180.
192 NLRB No. 87
662 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
concerted activity. A, similar threat was made,,to
Brendle
. -Our dissenting colleagues in their conclusion sug=
gest.that the-unlawful conduct found by the- majority
is of :such "miniscule controversy" that it doesknot
warrant, our consideration. -,However,, the,approach
taken-by, our colleagues in this matter may be, self -
defeating-_.,for,'r by, - ignoring 1 he small scale z ,and
individual violations of.the Act, we may encourage ;an
increase in the number and severity ofythe violations
of this, Act which, we are, charged to enforce. Indeed,
morethan two centuries ago,, Blackstone observed-.,
-Of-alt-the-parts of a law, the most eff ectual is, the
vindicatory;,for itis but lost labor to say,,Do this,
or avoid that unless . we also, declare This shall be
,- the consequence of yournon-compliance. , -,
iBut,apart^fromthe foregoing,, it is plain to, us that
even a, single: victim of a small-scale violation of the,
Act. (which, exceeds de.. minimis) is entitled to the
Board's attention., If we agree with Mill, that ."the
worth,- of a state, in„the long run, is the, worth-of the
individuals composing it," it cannot 'be otherwise:
Indeed, several,, circuit courts , have insisted` that in
order,for,,the Board properly to carryout its duties in
enforcing ,the Act, it is, required, to provide an
appropriate remedy,, in all instances where it, has
determined that, unfair; labor practices: have, been
committed. International Woodworkers{ of America,
Local. 3-710 ; [Long l ake Lumber,Co.] v. N. LR B., 380
17.2& ,628, 630, 631 {C.A.D.C.,,1967); see also Eiehleay
Corp:; v.. N.LR.B., ;206, F.2d 799, 805 (C A. 3, 1953);
International Union, United Automobile, Workers y.
N.L R B., 427-F.2d 1330,1332-33 (CA. 6,1970).,.
In Judge Edgerton',s dissent inp Cash v. U. -S., 261
F,.24 731 (C.A.D.C_, 1958), where he concluded that
indigent criminal defendants were entitled, to, appeal
ate public expense-the-position'subsequently taken
by the Supreme Court in Gideon v. Wainwright, ;372
U.S. 335 (1962-he,r,easoned:
dome, haveurged that , courts, Government counsel
,,ando' counsel for poor defendants, should not be
burdened with appeals, that are not Likely, for
succeed. To this there are several answers. The
United States can afford to let :poor defendants.
take, 'criminal appeals that the rich could take. It
cannot afford to do otherwise.
We think that-the same principles apply to the Board's
work.-It is not 'for us first to,divine; -asour,colleagues
seem to urge,- whethertile number of employees
involved or the importance of the subject matter
causes the :case" to- be, 'worthy or', our consideration-
before admitting` it to our processes.
Accordingly we find that Thornsberry's, threat- of
4, In the event that the Board's -Order is enforced by,a Judgment of a
United States Coui4 off Appeals, the words in the notice reading "Posted by
Order of the National Labor Relaations Board" shall be changed , to, read
discharge ".to Heinrich and Brendle, because ,,_,of- their
protected concerted activity violated Section 8(a)(1).
- ORDER
Pursuant to Section '10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
St. Regis Paper Company, St. Louis, Missouri,, its
officers, agents,-succe'ssors, and assigns, shall:
1. Cease and desist from:-
(a) 'Threatening its employees with discharge for
engaging in, the discussion among themselves of their
wages, hours, and conditions of employment.
(b) In any other 'like'or related manner interfering
with, restraining, or' coercing its employees in the
exercise of their right to ' self-organization,' to' form
labor organizations, 'to, bargain collectively through
representatives of their own choosing,'and to engage
in other` concerted 'activities, for the purpose of
collective bargaining or other mutual aid' or protec-
tion.
` 2. , 'Take the following affirmative action which,will
effectuate the policies of the Act:
(a) Post at its place of 'business in St Louis,
Missouri, 'Copies of the attached nonce` marked
"Appendix."4' Copies of said 'notice, on forms
provided; by the Regional Director for ' Region, 14,
after being duly signed by', espondent's authorized.
r`epresentati`ve,, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by' -it
for 60 consecutive.- days thereafter, in conspicuous
places,,, including all places where notices to employ-
ees are customarily, posted. Reasonable steps shall be
taken by "the "Respondent to msure'that said notices
are not altered, defaced, or covered by +any' other
material:
(b) Notify, the Regional Director'for Region 14, in
writing, within 20 days from the date of this Order,
what "steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER AND MEMBER KENNEDY, dissent
ing: ,
'Tike the Trial Examiner,, we can find no more in this
record than an_,hone§t effort- by a Company and a
Union to require a chronic complainer to utilize the
orderly processes of 'the `collective' agreement for
processmgbona fide employee complaints.
The majority, it seems to us, . strains, to reach its
contrary result by reading' a threat of retaliatory
action into, remarks to which the Trial Examiner, who
heard and evaluated all of -the evidence, attached no
significance. Those remarks to employee Heinrich
"Posted- pursuant to' a judgment of the United States Court of , Appeals
enforcing an order of the National Labor Relations Board.'
ST. REGIS PAPER CO. 663
consisted of pointing out to,,her that the only job
available on Friday to which her seniority-entitled her
was an ' adjuster's, job, which she could claim if she
wished. Obviously the Employer's representative did
not believe that th_ eemployee had sufficient qualifica-
tions to, perform that job, and, equally obviously, he
was not desirous that she claim ajob which she could
not perform .merely to allow hen to attempt to secure
pay for, a day on, which she would not otherwise be
scheduled to work. Thus, she was warned that, ,if she
could not perform the work competently, she would
be discharged.
Almost simultaneously with this conversation, the
complaining employee was again.' advised of her right
to file a grievance, although she was frankly advised
by her,, Union, that-the Respondent's decision to shut
down on the Friday in question was, in the Union's
view, not a ,violation of the agreement.
The remarks ,to employee Brendle were, in our view,
even more insignificant and were properly disregard-
ed by the Trial Examiner.
We, like the Trial Examiner, are unable to find in
the tale of this miniscule controversy any violation of
our Act.
APPENDIX
NOTICE 'To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An -Agency of, the United States Government
WE WILL_ NOT threaten our employees with
discharge if they engage in the discussion among
"themselves of their wages, hours, and conditions of
'employment.
WE WILL NOT in any ' other 'like or related
manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-
organization, to form labor organizations, to
bargain collectively through representatives of
their"-own choosing, .and to engage in, other
concerted activities for the purpose of collective
bargaining or other mutual aid of protection.
All our employees are free to `become or remain, or
to refrain from becoming or remaining, members of
the above-named or any other labor organization.
ST. REGIS PAPER
COMPANY L
'(Employer)
Dated By
(Representative) (Title)
This is an official notice and must-not-be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and most not be altered,
defaced, or covered by any otherrna.terial.
Any questions concerning this notice or'}compliance
with its provisions-may be-directed to the-'Board's
Office, 210 North 12th Boulevard, St. Louis, Missouri
63102, Telephone 314-622-4167.
TRIAL, EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. PowELL, Trial Examiners This trial' arose on
the charge filed by Marcella Brendle, herein called Brendle,
that her employer, St. Regis Paper, Company (herein called
Respondent), was interfering with her ' rights `to engage in
concerted activity - protected under" Section '- 7 " of the
National Labor Relations Act, as amended
, ;
herein called
the Act, in violation of Section:-8(aXl), of the'Act.:Brendle
filed her charge on May 11, `1970. In dde `'course, the
Regional Director for Region . 14-issued the Complaint and
Notice of Hearing on June"30;1970 . Respondent denied the
commission of any unfair labor practices . The case came on
to be heard before me in St. Louis, Missouri, on August 12,
1970. The-parties were present, were represe'nted,,'and had
full opportunity to beheard by examination and cross-
examination of witnesses . They could present oral argu-
ment and file briefs.
e
A brief ,was filed by the General Counsel on, September 2,
1970. Respondent,, did not file a brief but instead argued the
case orally on the- record . Based one the _,entire -record of
evidence, my observation of the witnesses as they testified,1
and after due consideration .of the ,arguments and-brief, I
find, for the , reasons. hereinafter set forth, that the ,General
Counsel has failed to establish the alleged violations by a
preponderence of the evidence and I will recommend that
the complaint be dismissed in its entirety. The motion made
by Respondent's counsel at the conclusion of `the trial to
dismiss-the complaint is hereby grante
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION ,
Respondent is and has been,at all times material herein a
Missouri corporation -engaged in -making, selling,, and
distributing envelopes ' and related products, with' its
principal office and -place of business ,in -the City' of " New
York, New York ; with.-its place of business in St . Louis,
Missouri, being the only facility involved in-this-proceed-
ing. As admitted by Respondent, I find the-jurisdictional
facts as stated in the complaint'vi'paragtaph 2 to be true
and I conclude and find that Respondent is' an employer
engaged" in commerce within -the'meaning of Section 2(2),
(6) and (7) of the Act.
1 Cf. Bishop and Malco, Inc. 159 NLRB 1159, 1161.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. THE LABOR ORGANIZATION INVOLVED and tired of their "bitching" and left them to"attend the
The International Brotherhood- of Bookbinders, Local
209, herein called the Union, is, as admitted by Respon-
dent,'a labor organization within the meaning of Section
2(5) of the Act.
M. THE ' ALLEGED UNFAIR LABOR PRACTICES
The gravamen' of the complaint , as amended at the trial,
is set out in paragraph 5 as follows:
Since on or about April 9, 1970, and continuing to
date, Respondent has interfered with, restrained and
coerced its employees in the exercise of rights
guaranteed in Section 7` of the Act,-by engaging in the
following acts and conduct at Respondent 's St. Louis
place of business:
A. On or about April 9, 1970, Personnel Manager
Thornsberiy threatened an employee with discharge if
the employee continued to complain to other employees
and to the Union about a temporary shutdown of
operations.
B. On or about April 9, 1970, Personnel Manager
Thornsberry told an -employee to tell other employees
that Thornsberry had threatened that employee with
discharge if that employee continued to complain to the
Union and to other employees about a temporary
shutdown of operations.
C. On or about April 9, 1970, Personnel Manager
Thornsberry threatened an employee with discharge for
comiplainiug, in concert with another employee, and to
the Union, that there was going ' to be a temporary
shutdown of operations.
D. On or about April 9, 1970, Personnel Manager
Thornsberry told an employee, in 'order to discourage
protected concerted and Union activities, that Thorns-
berry was tired of the female employees ' complaints
about working conditions and that this employee
should tell the female employees to stop complaining.
The Evidence
The Respondent has had collective -bargaining agree-
ments for many years with the Union, the present one of
which has a management rights clause and a step-by-step
grievance procedure leading to final arbitration.
In April,2 Respondent posted a notice on the ' bulletin
boards that the plant would be closed down for a day to
permit maintenance men and machine adjusters to service
the machines. Brendle, a machine operator "about 12
years" and a member ,in good standing of the Union for
some 9 years, complained to her fellow machine operator,
Mrs. Heinrich,'during break periods that she didn't see why
Respondent had to shut down for a day at this time when it
could have done any necessary adjusting during the
preceeding weeks when the work was slow.,Mrs . Heinrich
agreed and the two took their complaints to Woodrow
Wilson, secretary and treasurer of the Union , as he visited
the, plant on April 9, 1970. In addition to the above, Brendle
told Wilson ". . . we, need our money just as bad as [the
clean-up crew ] need theirs." Wilson told them he was sick
regular monthly meetings held to,bring-up grievances and
issues arising out of working conditions . Shortly thereafter,
Brendle was asked to report to the-personnel office where
the meeting was, taking place . Wilson earlier, had brought
up the fact that Brendle and Mrs. Heinrich complained to
him every time he visited the plant and that he was sick and
tired of hearing from them, that they seemed'to be causing
a problem to, both the Union and Respondent and
suggested that they be brought °in and -asked if they had a
grievance.
Present , at this union management discussion group
were : Thornsberry, personnel manager ; Smith,. superin-
tendent ; Wilson, secretary and treasurer of the Union;
Mathieny, shop steward; Battaglia, , shop steward; and
Thiedke, president of the Local Union. According to the
credited testimony of Thornsberry, he told Brendle (and
Mrs. Heinrich who was later called into the'meeting), that
she was called as a result of her complaining to Wilson
about the work schedule for Friday. The employee's right
to use the grievance procedure was told : both women.
Wilson pointed out that Respondent, could do what it, did
(close down the plant for maintenance and adjustment)
under the management rights clause of the contract (a copy
of which each employee had).'Ishornsberry insisted that the
grievance ' procedure be followed and that groundless
complaints be stopped. Thornsberry told Heinrich
(according to Heinrich) that she had more seniority than a
machine adjuster had and that he could give her the job of
adjuster in the adjuster's place on Friday but that if she
couldn't perform his job, she would be discharged. She told
him she could not do that type of work,, and it was not
offered to her.
Brendle did not file a grievance although she knew how
to do so as some 5 years earlier she had filed'a' grievance
which was ruled in her favor. Thornsberry told her the
grievance procedure must -be followed. Likewise, Heinrich
did not file . a grievance. There were no threats made, and
they were not told they could not talk among themselves at
their own breaktimes. Finally, there was evidence that
Brendle and Mrs. Heinrich were complaining loudly
.enough to be overheard by at least one other employee
Discussion and Concluded Findings
I find merit in the argument of Respondent's Counsel
that this case boils down to the calling down- of two
employees at the request of the union representative, to
attend the monthly discussion meeting to resolve a
potential grievance in the interest of peaceful harmony. No
grievance was filed yet these employees had lived under a
contract with the Union for years, and they were told they
could file a grievance and knew how it was-done. There was
no prohibition made against discussions on their own time
and no threats of discharge if they complained to others.
There is no evidence of a failure of fair representation by
the Union or of antiunion or anticollective action conduct
by Respondent which might tend to interfere with the
Section 7 rights of the employees. The ultimate policies of
the Act of guaranteeing employees the rights to freely
2 All data are in 1970 unless otherwise noted.
ST. REGIS PAPER CO.
engage in collective bargaining have been satisfied in this
case in that there is a binding collective -bargaining
agreement being fairly administered for all the evidence
shows. If this employee does not wish to follow this
agreement she, in effect , would engage in minority or
wildcat action which could subject her to severe disciplinary
actions none of which took place here. The national labor
policy '... extinguishes the individual employees' power
to order his own relations with his employer and creates a
power vested in the chosen representative to act ' the
interests of all employees." '1 LKB. v. Allis-Chalmers d^lfg.
Co., 388 U.S. 175, 180, (1967); 87A Supreme Court
Reporter 2001 , 2006. It,appears that these employees were
interested only in complaining about a management
decision over which neither theynor their union had any
665
control Surely unions and management can, tell such
employees to file, a grievance or shut up . I find that the
General Counsel has not met the burden of proof and I will
recommend that the complaint be dismissed ,in its entirety.
Cf.N;LRB. v. Shop Rite Foods, Inc., 171 NLRB No 196;
enforcement denied in part on August 21, 1970 in 430 F.2d
786. (C.A. 5).
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, it is
recommended that the complaint bedismissed in its
entirety.