International Paper Co., 280 (1993)

International Paper Company and United Paperworkers International Union, AFL-CIO, CLC. Cases 11-CA-14781 and 11-RC-5803

November 23, 1993

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH

The issue presented in this case is whether the Respondent committed various violations of Section 8(a)(1) and (3) during the course of an election campaign and, whether the election should be set aside and a second election directed.1

The National Labor Relations Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,

findings,2 and conclusions3 as modified below and to adopt the recommended Order as modified.4

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Paper Company, Raleigh, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following as paragraph 2(a).

   ''(a) Provide employees Richard Davis and Carly Brooks with the opportunity for the second week of training which was unlawfully curtailed at its Clinton, Iowa plant.''

2. Substitute the attached notice for that of the administrative law judge.

   [Direction of Second Election omitted from publication.]

   CHAIRMAN STEPHENS, dissenting in part.

   I join my colleagues in their disposition of all issues except for their adoption of the finding that the Respondent violated Section 8(a)(3) and (1) with respect to its calling employee Carly Brooks and Richard Davis back to the Raleigh plant before they had completed a projected 2 weeks of training on a color lithographic press at the Respondent's plant in Clinton, Iowa. I would find that, even assuming that the Gen-

   1 On November 5, 1992, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief.

   2 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188

   F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

   3 The Respondent excepts to the judge's finding that Dan Carson ''was placed in a position by Respondent wherein it could reasonably be inferred that he was speaking on behalf of management.'' We find merit in this exception. The record is devoid of evidence establishing Carson's duties, his job location, or even whether he was employed by the Respondent. Under these circumstances, we do not find that the General Counsel has established that Carson's questioning of employee Harry Zechman violated Sec. 8(a)(1), and we reverse this finding of the judge. See Detroit Plaza Hotel, 267 NLRB 1030, 1040 (at sec. 2,a) (1983).

   The judge found that the Respondent violated Sec. 8(a)(3) and (1) of the Act by curtailing the 2-week training course of employees Carly Brooks and Richard Davis at the Respondent's sister facility in Clinton, Iowa, in response to union activity that they engaged in while at that facility. The Respondent defended by asserting that the recall of Brooks and Davis was necessary in order to appease a union which represented some of the employees at the Clinton facility. That union allegedly threatened to file a grievance over the performance of bargaining unit work by Brooks and Davis in connection with their training. In rejecting this defense as pretextual, the judge noted that the Clinton union had no apparent contractual basis to object to ''mere observation'' by Brooks and Davis of the lithographic printing process. We disavow this statement by the judge in light of Brooks' testimony that his training in Clinton involved the handling of machinery, which constitutes the performance of unit work. However, based on the judge's additional reasons for rejecting the Respondent's defense, with which we agree, we affirm his finding of a violation. That is, even though Brooks and Davis performed some unit work at Clinton, and even if a union at Clinton objected thereto, we agree with the judge that this was not a reason for the Respondent's recall of Brooks and Davis. See sec. III,B, Analysis of the judge's decision.

   In finding that the Respondent violated Sec. 8(a)(1) by its supervisors' monitoring of employees Zechman, Sant, and Stephens, the judge credited these employees' testimony over that of the Respond-ent's witnesses. However, with respect to the 8(a)(1) findings regard-

   ing the monitoring of employees Moore and Andrews by Supervisors Godwin and Clayton, as reflected in his Conclusion of Law 8, the judge failed to make credibility findings regarding the conflicting testimony of the General Counsel's and the Respondent's witnesses. Because a finding of a violation with respect to the monitoring of Moore and Andrews would be cumulative to the other 8(a)(1) monitoring violations, which we affirm, and would not affect the remedy ordered herein, we find it unnecessary to pass on this allegation and we shall not remand the case to the judge for the purpose of making further credibility determinations.

   The Respondent asserts that the judge's finding of unlawful monitoring affected, at most, only 7 employees and, therefore, as there were over 160 employees who voted in the election, the judge erred by finding that a ''majority'' of the prounion supporters were monitored. Contrary to the Respondent's interpretation, we interpret this statement by the judge as referring not to the overall unit complement, but rather to the five-man ''core support group for the Union,'' which the judge identified in sec. III,B of his decision as consisting of employees Brooks, Henderson, Stephens, Zechman, and Andrews. However, since we have found it unnecessary to pass on the monitoring allegation with respect to Moore and Andrews, the judge's statement that a majority of the prounion employees were monitored is no longer correct. Nevertheless, for the other reasons stated by the judge, we agree with his finding that this conduct and the other unlawful conduct involved here interfered with the conduct of the election.

   4 Although the judge found that the Respondent violated Sec. 8(a)(3) and (1) by curtailing the 2-week training course of employees Carly Brooks and Richard Davis, he inadvertently omitted from his recommended Order and notice affirmative language requiring the Respondent to offer Davis the opportunity for a second week of training. We modify the judge's recommended Order and the notice to provide for this remedial relief.

   eral Counsel made out a prima facie case of discrimination, the Respondent established a Wright Line1 defense that it would, in any event, have sent Brooks and his fellow trainee, Richard Davis, back to the Raleigh plant before the 2 weeks was up for a lawful reason,

   i.e., because the management at Clinton had been informed that a representative of one of the two incumbent unions at the Clinton plant was contending that letting Brooks and Davis work on the litho press there was ''in outright violation of the [Clinton union] contract.'' That contract permitted only ''members of the bargaining unit'' to perform ''work under the jurisdiction of the Union,'' and the record clearly shows that Brooks and Davis were doing unit work in the course of their training.

   APPENDIX

   NOTICE TO EMPLOYEES

   POSTED BY ORDER OF THE

   NATIONAL LABOR RELATIONS BOARD

   An Agency of the United States Government

   The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

   Section 7 of the Act gives employees these rights.

   To organize

   To form, join, or assist any union

   To bargain collectively through representatives of their own choice

   To act together for other mutual aid or protection

   To choose not to engage in any of these protected concerted activities.

   WE WILL NOT interrogate you concerning your union activities and those of your fellow employees.

   WE WILL NOT threaten you with ruining your future or with loss of future opportunities with us because of your engagement in union activities.

   WE WILL NOT curtail training sessions or opportunities because of your engagement in union activities.

   WE WILL NOT follow you or more closely monitor you because of your engagement in union activities.

   WE WILL NOT withhold your paychecks until the end of your shift or engage in repaging you in order to harass you because of your union activities.

   WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

   WE WILL make available and offer to employees Richard Davis and Carly Brooks the additional week

   of training at our Clinton, Iowa plant which we unlawfully curtailed.

   INTERNATIONAL PAPER COMPANY

   Patricia L. Timmins, Esq., for the General Counsel.

   Gardner G. Courson, Esq. (Glass, McCullough, Sherrill &

   Harrold), of Atlanta, Georgia, for the Respondent. Nancy L. Logan, Representative, for the Charging Party.

   DECISION

   STATEMENT OF THE CASE

   LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on May 5 and 6, 1992, at Raleigh, North Carolina. The hearing was held pursuant to a report on objections, direction, order consolidating cases, and order rescheduling hearing made and entered by the Regional Director for Region 11 of the National Labor Relations Board (the Board) consolidating Cases 11-RC-5803 and 11-CA- 14781 for hearing, ruling, and decision by an administrative law judge. In his report on objections the Regional Director determined that pursuant to a Stipulated Election Agreement approved on October 15, 1991,1 a secret-ballot...