A.P.W. Products Co., Inc., 25 (1960)

Docket Number:01-CA-03354

, by United Papermakers and Paper-workers, AFL-CIO, herein called Union. On December 29, 1960, the General Counsel issued a complaint premised on the charge , and A.P.W. Products Co.,

Inc., herein called Respondent, filed an answer on January 6, 1961. A hearing on complaint and answer was held in Brattleboro, Vermont, before the duly designated' Trial Examiner on February 14 and 15, 1961.


The complaint alleges and the answer denies that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discharged on November 11, 1960, and refused to reinstate thereafter, Bernice Dagan, employed at its Brattleboro, Vermont, plant, because she joined or assisted the Union and engaged in other concerted activities for the purpose of collective bargaining and other mutual aid or protection.

Respondent, General Counsel, and the Charging Party were represented at the hearing. All parties were afforded an opportunity to be heard, to introduce evidence, to make oral argument, and to file briefs. Counsel for all parties filed briefs after the close of the hearing.


  1. THE BUSINESS OF RESPONDENT Respondent, a New Hampshire corporation, with a principal office and manufacturing plant in Brattleboro, Vermont, is engaged in the manufacture , sale, and distribution of paper products. Respondent in its answer admits the allegation of General Counsel's complaint that annually it ships from its plant in Brattleboro,

    Vermont, to points outside the State of Vermont products valued in excess of $50,000, and receives at Brattleboro from points outside Vermont products valued in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction will effectuate the purposes of the Act.

    1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act.

    2. THE UNFAIR LABOR PRACTICES A. General background The Respondent has manufacturing plants in Ashland and Hinsdale, New Hampshire, and Union, New Jersey, as well as at Brattleboro, Vermont. While it does not have collective-bargaining relations with the Union for employees at the Brattleboro plant, it does bargain with the Union with respect to employees at its Hinsdale and Union plants, and bargains with the Pulp and Sulphite Workers International Union with respect to employees at its Ashland plant. When it operated plants at Albany and Warrensburg, New York, it bargained collectively with the Union on behalf of the employees of these plants . Walter H. Riley, International representative of the Union, who has acted on behalf of the Union since 1957 in connection with its duties as collective-bargaining representative of employees at the Hinsdale plant, testified that there have been no unfair labor practice charges or arbitration cases involving that plant while he has represented the Union there.

    Respondent's plant at Brattleboro is a relatively recent operation . It employs approximately 70 hourly wage employees. The Union began organizing activity there on October 19, 1960. It forwarded a letter dated November 1, 1960, to Re spondent's Brattleboro plant, in which it stated that it represented a majority of the employees at this plant, and requested Respondent to bargain collectively with it on behalf of these employees. This letter was received on November 2, 1960.

    1. The discharge Bernice Dagan was discharged on November 11, 1960, at or about 3 : 30 p.m., the end of the day shift. At that time she received a check for a week's earnings in the amount of $40.63. Mrs. Dagan testified that her supervisor, Robert McGrath, plant foreman, sent a note to her at or about the end of the shift to the effect that he would like to see her in his office alone, and that upon her going to his office and telling him she had found his note on her timecard, he told her that Mr. Kahn and Mr. Baum and himself had arrived at the conclusion that her interests were not with or for the Company, and for that reason A P.W. Products Company and her were going to part company. Frank Kahn is production manager of Respondent's Brattleboro plant and Seymour Baum is its vice president . Dagan also testified that McGrath agreed with her that there was nothing wrong with her work, and that she had been absent only 1 day, had not been tardy, did her work as well as any other operator, and had top production.

    Bernice Dagan began work for Respondent on September 20, 1960, on the day shift, 7 a.m. to 3:30 p .m. She began as a trainee on a task connected with the operation of a machine converting paper to paper towels . After 3 days, she was given a day-shift assignment connected with the operation of a semiautomatic lowfold banding machine converting paper to paper napkins. There she remained until discharged on November 11. The napkins came out of the machine on trays with a marker at every 200 of them. Dagan's job was to take each 200 and put them in a box. The boxes were placed on a side conveyor leading to the main conveyor. Mrs. Irene Rogers had a similar assignment connected with a machine of the same type and purpose located 30 to 40 feet from the machine at which Dagan was working. Rogers placed her boxes of napkins on the main conveyor.

    Francis Shallow, also on the day shift, performed tasks connected with the operation of three machines converting paper to paper towels. These machines were located near Dagan's machine. When Dagan and Shallow were at their respective job locations, they were facing each other.

  2. General Counsel's case General Counsel and the Charging Party contend that the reason McGrath gave Dagan on November 11, 1960, for her discharge, namely, that her interests were not with or for the Respondent, discloses that Dagan was discharged for joining and assisting the Union and engaging in other conduct for mutual aid and protection when appraised against evidence of record they assert shows union and other concerted activity in October and November 1960, the Respondent's awareness or knowledge of this organizational and concerted activity and Dagan's participation in it, a disclosure by an alleged supervisor that Respondent was watching Dagan with a view to firing her because of her union and other concerted efforts, and an animus on the part of Respondent with respect to the organizational and other concerted activity that could result in a discharge of an able employee, like Dagan, who participated in such activity.

  3. Respondent's defense Respondent does not seriously dispute Dagan's testimony of what McGrath said to her when he discharged her on November 11. It contends, however, that General Counsel has not made a prima facie case, and, therefore, should not prevail. It supports its contention by attacking the credibility of Dagan and Wesley Garfield, two of General Counsel's three witnesses, and by the position that even if the testimony of these two witnesses on direct and cross-examination was credited, it fails to support the allegation of a discriminatory discharge. The only affirmative evidence Respondent offered was brief oral testimony of an employee dealing with the handwriting in the upper left hand corner of the check Dagan was handed when discharged on November 11; this check of November 11 and a check Respondent in error sent to Dagan on November 17, 1960; a schedule of bonuses effective October 31, 1960, for employees like Dagan; and the Union's letter to Respondent of November 1, 1960, claiming that it represented a majority of Respondent's employees and requesting collective-bargaining negotiations. With the exception of the Union's letter, this evidence relates to Dagan's credibility. The Union's letter was offered in support of Respondent's position that its officials in their statements to assembled employees on November 2, 1960, displayed no antiunion animus, but on the other hand showed an effort to refrain from discussing or placing in effect a bonus program or other programs which might tend to impede the organizational efforts of the Union.

  4. Evidentiary findings It is undisputed that at the beginning of the lunch period on October 19, 1960,

    International Representative Riley passed out union handbills at the door of the plant which was an employee entrance and exit. Attached to the handbill was a union authorization card and an addressed envelope bearing in some instances Riley's home address in Webster, Massachusetts, and in others the address of the Union's Regional Office in Springfield, Massachusetts. Also undisputed is the evidence that Frank Kahn, Respondent's production manager, saw Riley passing out the handbills, after Plant Foreman McGrath reentered the plant to draw Kahn's attention to Riley's activity. McGrath had taken a handbill before reentering the plant. Likewise undisputed is the testimony of Riley that Kahn called him into his office and ordered him off the premises. No probative evidence was offered to show that Riley could not have distributed the handbills at or near the entrance to Respondent's property.

    Riley and Dagan testified that Riley then proceeded to Respondent's parking lot...

To continue reading