Fay Paper Products, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1980

248 N.L.R.B. 997 (N.L.R.B. 1980)

FAY PAPER PRODUCTS, INC. 997
Fay Paper Products, Inc. and United Paperworkers
International Union, AFL-CIO. Cases
1-CA-15813 and 1-RC-16155
April 14, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On November 15, 1979, Administrative Law
Judge Thomas A. Ricci issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Fay Paper
Products, Inc., Norwood, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the election in
Case -RC-16155 be, and it hereby is, set aside and
that the matter be remanded to the Regional Direc-
tor for Region 1 to conduct a second election in
accordance with the direction set forth below.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In the absence of exceptions, we adopt pro forma the Administrative
Law Judge's findings that in a conversation the day before the election in
Case I-RC-16155 statutory supervisor Bill Grady asked employee
Samuel Villages what the latter thought the outcome of the election
would be, and that Grady did not ask Villegas whether he personally fa-
vored the Union.
I Although the Administrative Law Judge found that Respondent en-
gaged in conduct which warrants setting aside the election in Case 1-
RC-16155, he did not so provide in his recommended Order. According-
ly, we shall order said election be set aside and shall direct the Regional
Director for Region I to conduct a second election at a time he deems
appropriate
248 NLRB No. 144
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: This is
a consolidated proceeding, joining a complaint case with
a representation election petition. In Case -CA-15813,
the General Counsel issued a complaint against Fay
Paper Products, Inc., herein called the Respondent. The
complaint issued on May 2, 1979, based upon a charge
filed on March 21, 1979, by United Paperworkers Inter-
national Union, AFL-CIO, herein called the Union. The
issues raised by the complaint are whether the Respon-
dent committed a number of coercive acts during a self-
organizational campaign by its employees in violation of
Section 8(a)(1) of the Act. The Union filed a petition re-
questing a Board election in Case -RC-16155, and an
election in that case was held on March 16, 1979. The
valid votes counted showed 23 in favor and 23 against
union representation. The Union then filed objections to
the election, charging that the Company had engaged in
conduct which improperly interfered with the election,
and requesting that the results therefore be set aside and
a new election held. Upon investigation the Regional Di-
rector directed that a hearing be held on the objections.
Because the two proceedings touch essentially upon
the same conduct by the now Respondent Employer, the
Regional Director consolidated the two cases for a single
hearing. The hearing was held at Boston, Massachusetts,
on September 11, 1979. All parties participated, and
briefs were filed by the General Counsel and the Re-
spondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fay Paper Products, Inc., a Massachusetts corpora-
tion, maintains its principal office and place of business in
the town of Norwood, Massachusetts, where it is en-
gaged in the manufacture, sale, and distribution of statio-
nery and related paper products. In the course of its
business it annually receives goods and materials valued
in excess of $50,000 which are shipped to its plant direct-
ly from out-of-state sources. It also annually ships fin-
ished products valued in excess of $50,000 directly to lo-
cations outside the State. I find that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Paperworkers International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
FAY PAPER PRODUCTS, INC.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The Respondent has about 48 employees in the bar-
gaining unit involved in this case. After some organiza-
tional activities among these employees, the Union wrote
a letter, dated January 26, 1979, advising the Company
of such activities and demanding recognition as bargain-
ing agent. On January 26, 3 days later, it filed its petition
with the Board for an election. The Respondent con-
cedes it received the demand letter early in the morning
of January 29, a Monday. Almost 2 weeks later, on the
afternoon of Friday, February 9, nine employees found
raises paid to them in their paychecks. These checks
were for the work performed during the week of Janu-
ary 29 through Friday, February 2. The complaint al-
leges this was the Respondent's technique for influencing
the employees away from their prounion resolve, and
therefore a multiple violation of Section (8)(a)(1) of the
Act.
The Respondent also gave a surprise raise to nine
other employees on election day, March 16. These
checks were distributed at 4 p.m., in the usual fashion,
for work performed the preceding week. Clearly the bal-
loting was over, for all the voting took place between 2
and 3 p.m. While the complaint calls the grant of these
raises also unlawful, it was not clear at the hearing
whether the theory of illegality argues improper pay-
ment to induce antiunion votes, or improper payment as
reward for antiunion votes.
There is also evidence of interrogation and veiled
threat of reprisal.
B. The February Raises
The nine unannounced raises given to individuals on
February 9 were based on merit, according to manage-
ment. Also, as John Steele testified (the general manager
who had to make the final decision as to whether they
should or should not be granted), the final decision to
grant these raises was made before anyone on behalf of
management knew anything about the union movement.
Given the total circumstances-including the timing, the
unprecedented character of so many "merit" raises on a
single day, and the inherent implausibility of Steele's ex-
planation-I do not believe his testimony. I find, instead,
all things considered, that the Respondent gave these
nine raises at that time in order to weaken the self-orga-
nizational activities generally.
Steele started his defense testimony by saying that the
established system is for the supervisor to recommend
raises and that his recommendations always go to
Steele's office the first thing Monday morning, together
with the supervisor's full report of exactly how many
hours each and every employee has worked the week
before. These records are checked by Steele then and
there, both the timecard summaries and the recommen-
dations for raises. Upon approving the recommendations,
Steele then sends the supervisor's reports to another lo-
cation, where a computer works on the wage totals,
adding in the raises decided upon. The paychecks-for
the previous week-are then returned from the computer
back to the work plant, where they are distributed at 4
p.m. on Friday.
Turning to the case at hand, Steele said that on
Monday morning, January 29, the superintendent, Len
Schermerhorn, at 8 o'clock placed the usual records on
his desk, payroll and nine recommendations for a raise.
As he was starting to give them his usual checkover,
Steele, as he said, was called to the office of Vice Presi-
dent Hoffman, who showed him an unopened letter and
asked him to open it. Hoffman did not testify, and why
he should leave a letter bearing the Union's name on the
outside unopened until Steele arrived remains an unan-
swered puzzle. Steele continued that when he opened the
letter it was the first moment anyone in management
knew anything about the Union in this plant. Up to this
point, the story is pat: decision made before knowledge
of union activity, ergo, no possibility of illegal motive.
The trouble with this story is that, while Steele later
that morning forwarded the timecard payroll records to
the computer, he did not do anything about the raises.
Instead, he never did send the raise data to the computer
until the following Monday morning, February 5. Why
did he so depart from his firmly established practice?
The general manager's explanation for this is that when
the two company officials read the Union's letter, "It
was quite a shock.. .. I was completely taken by sur-
prise by this Union petition.... I must have just over-
looked it [the recommended raise report]." It was an un-
convincing explanation. Schermerhorn worked another
week for the Company and then left. He did not testify,
so that Steele's statement stands as purely self-serving
and entirely uncorroborated.
There is more. Bill Grady was then assistant to Super-
intendent Schermerhorn and took over as regular super-
intendent on February 2, a Friday. It was 3 days later,
on Monday, February 5, that raises to be paid on Febru-
ary 9 are normally recommended by the then superinten-
dent. But Grady, who certainly knew about the union
activity by that time, said, at the hearing, he knew noth-
ing about the raises paid on February 9. But he also said
something else. He said he instituted an innovative
system of 30 days' probation to be followed by a merit
raise. He also said that Schermerhorn had been unpopu-
lar with the employees:
Q. Let me ask you if you know in your experi-
ence as an assistant to Lenny Schermerhorn, was he
liked by the employees?
A. I don't think he was at all.
Grady also admitted he thought Schermerhorn's methods
had been "unjust," and that he tried "to correct these in-
justices." I find, on the total record, that the Respondent
decided upon the February 9 raises after learning of the
filing of the Union's election petition. The inference is
fully warranted that its purpose then was to restrain the
employees' movement towards the Union. It matters not
whether the activity be called an outright gift to influ-
ence the election, or simply a departure from past prac-
tices, favorable to the employees. Either way, it was a
violation of Section 8(a)(l) of this statute for the Respon-
dent to have given these nine raises.
FAY PAPER PRODUCTS, INC. 999
It is a fixed principle of Board law that an employer
may not depart from its established practices in the
method of remunerating employees during the pendency
of an election petition. This is precisely what Superinten-
dent Grady, who took office after the union campaign
started, did here. Oneita Knitting Mills, Inc., 205 NLRB
500 (1973). Indeed, where mass raises such as these
follow so quickly upon the start of a union movement,
there is a "presumption of impropriety." Idaho Candy
Company, 218 NLRB 352 (1975). See also N.L.R.B. v.
Exchange Parts Company, 375 U.S. 405 (1964).
C. The March 16 Raises
As stated above, the voting in the election took place
between 2 and 3 p.m. on Friday, March 16. At 4 o'clock,
again as always, paychecks were distributed for work
performed the previous week. And again nine employees
found raises in their pay. Considered as a whole, this
record does not warrant a finding that by giving these
raises the Respondent either committed an unfair labor
practice or wrongfully interfered with the election.
There are several reasons for this conclusion. To start
with, the employees who received the raises did not
know they were going to get them until they looked at
their checks after the balloting was all over. Twice, on
the record, the General Counsel conceded the employees
did not know, in advance of that moment, that they were
going to receive them.' Of the nine employees involved
only two appeared as witnesses at the hearing. Robert
Cummings said that, at the beginning of March, Grady,
the superintendent, told him: "I put in for a 25 cent raise
for you." A week later, about March 9, not having re-
ceived the raise, Cummings asked Grady "why?" and
was told he would receive it the next week. Kevin
McDonough said that 2 or 3 weeks before the election
the superintendent told him "I'll just see what I can do
about getting you a raise," and he answered, "OK, thank
you."
It is one thing for an employer to promise raises before
a Board election; such conduct, depending upon the cir-
cumstances, may well be viewed as an intended tech-
nique for buying "no" votes. And perhaps Grady's state-
ment to these two men amounted to such improper con-
duct. But when raises are given after the voting has
ended and the results are known, and they come as a sur-
prise to the recipients, I do not see how it can be argued
they had a retroactive influencing effect upon the voting,
or even had been intended for such purpose. Indeed, at
From the transcript:
Q.... Are you saying that some people were told, were first
told that they were getting raises at 4 o'clock on the day of the elec-
tion after the election had been completed. Is that what you're
saying?
Mr. McDonough: Yes, your honor. The General Counsel con-
cedes that point.
Q. Is it your statement of fact that a number of employees were
first told-they didn't know they were going to get raises; they first
were told by the company at 4 o'clock after the election was fin-
ished that they were getting the raise. Is that what you're stating?
Mr. McDonough: That's correct.
the close of the hearing, the General Counsel even ad-
mitted this could not be.
Q. [By the Administrative Law Judge] I heard
stress on the fact that these raises were given 30
minutes after the voting ended. It is a theory of the
General Counsel that the reason why they gave the
raises was to reward them for not having chosen
the Union?
Mr. McDonough: No, your honor. No, sir.
Clearly all the paychecks, including those with the
raises, had been made out before the voting started. It
follows the raises cannot be viewed either as an intended
inducement, or as a reward for the way the employee
voted; i.e., in a way which did not establish the Union as
bargaining agent.
But even assuming, by some devious reasoning which
eludes me, it could be said the Respondent in some
manner violated the statute by those March 16 raises, it
would mean commission of a further unfair labor prac-
tice precisely like that found in the February 9 group
raises. Both the conclusions of law and the recommend-
ed order to issue in this proceeding would therefore
remain exactly the same. I therefore make no finding that
by granting these raises the Respondent violated the stat-
ute.
D. Further 8(a)(1) Violations
Bart O'Connor was hired on or about February 8. He
testified that, as he was having lunch one day, about the
beginning of March, Superintendent Grady came to him
and asked "what I was thinking on the election, which
way was I going to go, if I was going to vote for the
Union or if I was going to vote against the Union."
O'Connor answered he was not yet decided. He contin-
ued to testify that Grady then told him "that if the
Union did get into Fay Paper, and like my job was over
on the envelope machine, if they ever ran out of paper
for some reason, instead of putting me on another job,
they would have to send me home."
Grady gave a different version of this conversation.
He said it was O'Connor who first mentioned rumors
about a union and asked him, Grady, what was it all
about. Grady added all he told the man was to ask that
question of a union representative. As to changes in
work assignment, Grady said all he told O'Connor was
that he could not assign anyone else to help the employ-
ee when he needed help. Grady denied talking about
what might happen were O'Connor to run out of work
on his particular machine. But Grady also recalled that
when another employee expressed the view that where
there is a union a man must be paid even if there were
no work on his particular machine, he told the man that
in the superintendent's view when there is no work on a
man's particular machine, he gets no pay.
I credit O'Connor. I find that Grady in fact questioned
him about his union sentiments, and thereby violated
Section 8(a)(1) of the Act. I also find that by telling him
his conditions of employment would be prejudiced in the
event of union representation, he effectively threatened
him with retaliation were he to vote in favor of the
FAY PAPER PRODUCTS, INC
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in the imminent election, and thereby committed a
further violation of Section 8(a)(l).
Another employee, Samuel Villegas, spoke of a talk he
had with Grady the day before the election. His first
version of this incident is that Grady asked him "if I
knew any way which I was voting in the election,
whether it would be the Company or the Union." Asked,
on cross-examination, to repeat the story, he testified as
follows:
Q. Now would you say again what are the exact
words that Mr. Grady used?
A. Well, he asked me if it was going to be the
Company or the Union, if I knew which way I was
going, whether it would be the Company or the
Union.
Q. He didn't say to you, "How are you going to
vote," did he?
A. Not that I recall, no.
Whatever it was that the superintendent asked, Villegas'
answer appears clearly in his prehearing affidavit. "I told
him I was sure it wasn't going to be the Company be-
cause I knew what I was fighting for, me and my
family."
Grady testified all he asked the man was which side he
thought would win the election the next day. Consider-
ing Villegas' entire testimony, I cannot find Grady really
asked whether he personally favored the Union. Not
only did the employee admit the supervisor did not ask
the critical question in so many words, but the answer he
gave, as shown in the affidavit, supports the idea he was
only asked what he thought the outcome might be. I do
not think the witness' final statement at the hearing, that
he "understood" Grady to be saying something other
than what he literally articulated, justifies a contrary
finding.
There were received into evidence very comprehen-
sive company records spanning the 15-month period
before the March 1979 election; they show in detail the
hiring and termination date of every employee and every
single raise given, with exact date and amount. The Gen-
eral Counsel argues that several other raises, that is, in
addition to those explained above, were also a departure
from the old system of raises. It may well be, were the
entire chart studied minutely, that one or two other
raises did not fit into the established pattern of the past,
although I am not sure such would be the result of a
study. But all it would amount to would be perhaps an-
other instance or so of the type of unfair labor practice,
and interference with the election process, already found.
Again, the ultimate findings and recommended order
would not change. I therefore think it pointless to be-
labor the matter at this point.
Case -RC-16155
In view of the unlawful raises given by the Respon-
dent Employer after the filing of the Union's election pe-
tition, and the illegal interrogation and the threat of re-
prisal, I find there has been improper interference with
the Board's election process, and that therefore the re-
sults of the last election must be set aside. In keeping
with established practice, a new election will be held
when, in the judgment of the Regional Director, the time
is appropriate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section I, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. By granting wages to employees during the penden-
cy of a representation election proceeding, by question-
ing employees concerning their sentiments, and by
threatening to curtail work opportunities in order to
induce employees away from their prounion resolve, the
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(l) of
the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and of the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2
The Respondent, Fay Paper Products, Inc., Norwood,
Massachusetts, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Granting raises to employees during the pendency
of a representation election petition, questioning employ-
ees concerning their union sentiments, or threatening to
curtail work opportunities for the purpose of inducing
employees away from their prounion resolve.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist United
Paperworkers International Union, AFL-CIO, or any
other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Norwood, Massa-
chusetts, copies of the attached notice marked "Appen-
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
FAY PAPER PRODUCTS, INC. 1001
dix."3 Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed
by its representatives, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
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, after a
hearing, that we violated the Federal law by engaging in
illegal coercive conduct towards our employees:
WE WILL NOT grant raises to employees during
the pendency of a representation election proceed-
ing.
WE WILL NOT coercively interrogate our em-
ployees concerning their union sentiments.
WE WILL NOT threaten to curtail work opportu-
nities for the purpose of inducing our employees to
abandon any prounion resolve.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
join or assist United Paperworkers International
Union, AFL-CIO, or any other labor organization,
or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities.
FAY PAPER PRODUCTS, INC.
FAY PAPER PRODUCTS, INC