Atlanta Blue Print & Graphics Co.,

National Labor Relations Board - Board Decisions

Aug 24, 1979

244 N.L.R.B. 634 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlanta Blue Print & Graphics Co. and Printing Spe-
cialties and Paper Products Union No. 527-AFL-
CIO. Case 10-CA-14151
August 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 29, 1979, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 brief
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Atlanta Blue Print &
Graphics Co., Atlanta, Georgia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Productr. Inc.. 91 NLRB 544
(1950), enfd. F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing his findings.
DECISION
BERNARD RIES, Administrative Law Judge: This matter
was heard in Atlanta, Georgia, on April 5, 1979. The com-
plaint alleges that Respondent violated Section 8(a)(3) of
the Act on November 8, 1978, when it discharged 13 em-
ployees; violated Section 8(a)( 1) on that same day by creat-
ing an impression of surveillance of the union activities of
employees and by threatening employees with discharge for
engaging in those activities; and violated Section 8(a)(5) of
the Act on that same day by refusing to recognize and bar-
gain collectively with Printing Specialties and Paper Prod-
ucts Union No. 527 AFL-CIO (the Union).
Briefs have been filed by the General Counsel and Re-
spondent. Having given careful consideration to the entire
record.' my recollection of the demeanor of the witnesses,
and the briefs, I make the following findings, conclusions,
and recommendations.'
I. THE DISCHARGE OF 13 DRIVERS ON NOVEMBER 8, 1978
Respondent, engaged in the production of blueprints and
other reproductions, employs about 110 workers. It had 13
truckdrivers in its employ in November 1978. On Novem-
ber 6, seven of the drivers, led by driver Claude Arp, met
with James Parker, an organizer for the Union. and ex-
ecuted authorization cards and a petition designating the
Union as their exclusive bargaining representative: the fol-
lowing evening, three more drivers did the same.
On November 8, in the morning, Parker and another
union representative went to Respondent's place of business
and attempted to present the petition to Respondent's pres-
ident, Eugene Miller. Miller rejected their demand for rec-
ognition, saying that he would have to consult his attorney.
Parker credibly testified that, in the course of conversation,
Miller "told me that he could fire all thirteen drivers today
and hire thirteen more tomorrow."' The organizers left and
went to the Board's Regional Office to file the cards and the
petition.
Claude Arp testified that on November 8 the dispatcher,
Kenneth Carter,4 called him into his office in mid-afternoon
and said "there was some funny stuff going on, like it was
back in 1972." Arp asked what he meant, and Carter said
"union." When Arp said that he knew nothing about it,
Carter asked, "You did sign that card, didn't you?" Arp
said he did, as did nine others. Subsequently, Vice President
Ray Norris joined the conversation:
[Norris] said that didn't anybody know anything about
this-this union but Ken Carter, myself and Mr. Miller
and that's the way they were going to keep it.
And while Mr. Norris was in there, he said that-I said
that. well, they can just come up here, you know, and
just fire you and that would be all there would be to it.
And he said-well, he said, we could fire you quicker
with the union than we could without one. Said, if I
wanted to fire you, I'd just follow you around the block
and come back and fire you.
At that point Arp left the office. During the conversation
Norris had locked the door and prevented some other driv-
ers from entering the office.
Employee Ronnie Lee Abraham, an impressive witness,
testified that, while he was standing outside the locked of-
I Certain errors in the transcript have been noted and are hereby cor-
rected.
2 The pleadings establish that the assertion of jurisdiction by the Board is
appropriate and that the Union is a statutory labor organization.
3 Miller testified that there was "something said about that." However, he
said that since he had already decided to discharge all the drivers. "it was a
comment rather than a threat." He concedes he did not, however, tell Parker
that the decision had already been reached. While the issue of when the
decision was made will be discussed more fully below. I will note for now
that I find Parker's version more credible-that Miller said "could." not
"would."
4 Conceded to be a statutory supervisor.
244 NLRB No. 105
634
ATLANTA BLUE PRINT & GRAPHICS CO.
fice, he could hear Norris say to Arp something like. "[W]e
could fire you quicker with a union than we could without
a union and that wasn't what you wanted." Norris denied
that he had discussed "labor relations, labor affairs, union
organizing with anyone that day" and that he had made the
statement attributed to him by Arp and Abraham. But he
did recall saying to Arp, in Carter's office, with, he "be-
lieve[s]," Carter present, during the "week of the termina-
tion." that "I could follow any driver around the block and,
you know, have enough to dismiss them on." He did not
explain the circumstances under which he made such a
statement.
Dispatcher Carter testified that he knew of no union ac-
tivity on November 8 and did not talk to Arp that day. He
did recall an occasion when he came back from a hunting
trip and, sensing that "things just didn't seem normal."
"called Claude in the office and asked Claude what was
going on." Carter also recalled that Norris told Arp. in the
locked dispatch office, that he could "follow a driver
around the block and have enough on him to discharge
him," but he did not "believe" that this occurred on No-
vember 8.
It is clear, based on the partial admissions by Carter and
Norris, the mutually corroborative testimony of Arp and
Abraham, and the circumstances, that Carter did indicate
to Arp that he knew Arp had signed a card5 and that Norris
told Arp that it would be easier to fire him with a union
than without one. I do not believe, however, that the first
statement, as alleged in the complaint, "created the impres-
sion of surveillance of ... employees' union activities." Arp
testified that he had earlier on November 8 seen Parker
enter the building to make a demand for recognition. He
consequently was aware that Carter's reference to his hav-
ing signed a card was based not on surveillance but on the
information brought to Respondent's attention by the
union agent.
I do find, however, that Norris' statement to Arp, clearly
suggesting that unionization might increase his chances of
being discharged, constituted a threat in violation of Sec-
tion 8(a)(l) as alleged.
About 5 p.m. on November 8 Carter. by radiophone,
called all the drivers into the office. He handed them typed
separation notices, all 13 notices giving as the reason for
discharge, "Continuous overall delivery and service prob-
lems which has caused the loss of customers."
Benjamin Chambers, one of the discharged employees.
testified that when he returned to the facility on November
9 to turn in his uniforms, dispatcher Carter told him that
"maybe if I forgot about the union, he would talk to Mr.
Miller about trying to get me back on." Carter denied using
this language, saying that he told Chambers only, "I'm
sorry things happened the way they did, Joe. I said, maybe
later on down the road if you want to come back, get in
I Norris' admission that he told Arp during "the week of termination." in
Carter's office, that he "could follow any driver around the block and, you
know, have enough to dismiss them on." is most convincing evidence that
Arp was accurate in testifying that the union effort was being discussed on
November 8 (Arp had been expressing concern about the ease with which an
employee could be fired, a possibility which, as we shall see. was looming
large in his mind at that time). Since Carter was surely present. this alone
clearly discredits his testimony that he knew nothing of the union organizing
until the following day
touch with me and I'll see if I can work something out." I
found Chambers a most credible witness: although Carter
made a good personal impression. I consider his testimony
generally unreliable in a number of areas. I credit C'ham-
bers.
Although the complaint does not allege that this state-
ment was violative. it clearly would tend to coerce and re-
strain Chambers in the exercise of his right to belong to a
union. Since the matter could not have been more thor-
oughly litigated. I find that Respondent, through Carter.
violated Section 8a)( I) by the statement to Chambers on
November 9.
Respondent offered the following explanation for the
mass discharge. According to President Miller. since Jul or
thereabout, the company had been receiving increasing
complaints about poor delivery service and driver miscon-
duct. In August a substantial customer named Cooper Car-
ry Associates. Inc.. had threatened to withdraw its business.
and Respondent had set up a special log to keep track of
that account.
On October 13, evidently as a joke, Arp had delivered.
along with other items, a package containing a soiled diaper
to Cooper Carry.? Miller was furious. and told Vice Pres-
ident to investigate and "just find out [whol it is or just fire
every driver we have." Thereafter. Miller fruitlessly ques-
tioned Arp, and he says he then told Carter. in Arp's pres-
ence, "I want all thirteen drivers fired within thirty days
unless we find out who was involved.'" After Arp left. Miller
said he reduced the time limit to "two or three weeks."
The following day Miller testified that he wrote a memo-
randum on the subject which he placed in Carter's person-
nel file. The document, in evidence as Respondent Exhibit
I, is handwritten on a yellow, legal-size sheet of paper. It
reads:
10-13-78
Memo to Kenny Carter's Personnel File
Subject: Continued Delivery Problems and ('ooper-
Carry Incident
Ray Norris. Kenny C('arter and I met in my office on
the above date concerning the Cooper-('arry incident
and discussed the continued late deliveries. various re-
ports of complaints from customers on delivery. traffic
tickets and other delivery problems. After about 30
minutes of discussion we called Claude Arp in since he
was the delivery person involved in the Cooper-Carr
incident. Claude Arp was questioned in detail on his
involvement in the Cooper-Carry incident.
Kenny was told to find all responsible people in-
volved in this problem along with solving all other de-
livery problems within two or three weeks or to dismiss
all of his present drivers and replace them with an en-
tire new group.
On October 30 Cooper Carry informed Respondent that
it was withdrawing the account from Respondent and as-
signing it to a competitor. Respondent was told that al-
though service had improved for a while after the threat
6 Arp denied any knowing part in the episode. characterizing himself s as n
innocent dupe.
635
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made by Cooper Carry in August, it had deteriorated again
in recent weeks. According to Miller, Cooper Carry even
refused to consider a proffered price decrease, citing the
serious service and delivery problems.
7
Loss of the account caused Miller, he testified, to think
about firing all the drivers.
8 He reasoned that prior repri-
mands had not been effective, and he thought that a group
discharge might make "an impact on the industry" which
Respondent served. He explained his decision not to dis-
charge all the drivers immediately on October 30 as fol-
lows:
Well, frankly, I was too upset at that time to fire them
because of the nature of the-one account like that
could be the downfall of our business. Because it could
spring over to the other accounts.' And so that's the
reason I didn't do it then-I didn't do it the following
Wednesday. Because I wanted to think it over....
Miller testified that he continued to consider the matter
and, in a November 7 meeting with Vice President Norris,
he reached the decision to fire all the drivers the next day,
the very day, as it turned out, that the union demand was
made. Miller said that he recognized that letting all the
drivers go would be unfair to some of them, "but we had to
make an impact. We had to discipline all the drivers at the
time and I felt like that was the way to do it. And I felt like
they have proven that was the way to do it. We have most
of our drivers back now. They do a better job than they did
before."
Asked why he did not affect the decision on November 7,
the day he reached it, Miller said that the appropriate day
for discharge is Wednesday, the last day of the payroll pe-
riod, and Wednesday fell on November 8. The record
shows, however, that driver Columbus Williamson was dis-
charged for "not being able to do the job" and "getting too
many parking tickets," on November 7. Miller's testimony
implies that he was not aware of this discharge by dis-
patcher Carter at the time it occurred. He further testified
that "to [his] knowledge," Carter did not become aware of
the decision to terminate the drivers until around 5 p.m. on
November 8, although Miller "talked to him several times
during the day."
Norris testified that he "believe[d] it was the day prior
to" November 8 that he and Miller discussed the dis-
charges, an action he thought advisable.
Miller said that as of the time of the group discharge, he
'On October 31. Miller wrote a letter to Cooper Carry, expressing his
distress at the loss of the account caused by "problems you have encountered
with Atlanta Blue's delivery and turnaround." and expressing the hope that
the relationship could someday be resumed.
I Although Miller testified that he was "shocked" and "Inlever been so
mad in all my life," Respondent's marketing manager. Randy Hunter. who
has seen Miller "very upset." said that. in evaluating the loss of the account,
Miller was "more upset really than angry, just concerned." Vice President
Norris testified that he "wouldn't say [Miller] was upset."
9 At another point Miller explained that. before the loss of Cooper Carry.
Respondent had 10 large customers, each apparently accounting for about 5
percent of Respondent's business. The other 50 percent was provided by
8.000 customers. Because of the size of the latter group, he said, it was
impossible to gauge the impact of the loss of one prime customer on that
group-- many of them might stop doing business with Respondent without
explanation.
had not "formulated any opinion at all with regard to who
[he] would hire to replace." He said that his "plan" was that
"as the disciplinary action had taken effect and they came
back and requested their job and agreed to do a better job
for Atlanta Blue, as we had openings, we'd bring them
back." Nothing was said to the drivers about this possibil-
ity.
It was not until "first thing on the morning of the 9th"
that Miller "informed my sales force I wanted them to drive
the trucks that day." On that day, there were salespeople
and "miscellaneous management people" driving the vehi-
cles. No newspaper advertisement for new drivers appeared
until November 9. "That Friday night we hired eleven ...
new employees" and on Monday morning hired two more.
Stanton Baker, one of the drivers discharged on Novem-
ber 8 for "Continuous overall delivery and service problems
which has caused the loss of customers," had only been
employed since November 7.
Respondent says on brief: "Counsel for General Coun-
sel's theory of the case is beautifully simple: the impetus for
the Company's discharge of all drivers was a response to
the Union's demand for recognition." That theory is not
only beautifully simple, but it is also eminently correct. If it
were not for the earnest and lengthy brief filed by Respon-
dent, I would be content to let the facts set out above
indeed, merely the uncontested facts-speak for themselves.
However, Respondent's prolonged insistence that it acted
only out of legitimate motives deserves some comment.
The discharge by a busy employer of all 13 of' its
truckdrivers on the afternoon of the day on which a union
makes a demand for recognition probably itself establishes
aprimafacie case of unlawful conduct. When there is added
the simple fact that the employer has made no effort at that
point to hire any replacements for the drivers. the burden
on the employer to rebut the claim of unlawfulness be-
comes, in the absence of some emergency situation, almost
insuperable. There are, however, two facts which have in-
duced Respondent to make the effort here. One is that, at
the time of the dirty diaper caper, President Miller did refer
to discharging all the drivers'
0 and the other is the interven-
ing loss of the Cooper Carry business. In the light of all the
evidence, however, the assertion that the October 13
"threat" was revitalized by the loss of business on October
30. and was translated into action by a decision made on
November 7, is revealed to be pure sham.
Whether there was or was not an upswing in driver mis-
behavior and inadequate performance beginning in the
summer of 1978 is difficult to tell; the "horribles" paraded
by Respondent's witnesses relating to that period constitute
01 I believed very little of what Miller, an unimpressive witness, testified.
While Carter seemed a more reliable individual. I refuse to credit certain
matenal portions of his testimony, such as that he. the dispatcher, a con-
ceded supervisor, was told nothing of the decision to terminate his entire and
only group of employees until he was instructed to do so at 5 p.m. on No-
vember 8, and that he did not even know of the union demand at that time.
If I had to depend on the testimony of Miller and Carter, I would not find
that any earlier reference had been made to firing all the drivers. But Arp
testified, in connection with the soiled diaper incident. that Miller "said I can
fire all thirteen drivers to get the right one and then Kenny spoke up and said
there ain't no use in doing that." Accordingly. I find that Miller did make
such a statement around October 13.
636
ATLANTA BLUE PRINT & CGRAPHICS CO
a relatively short procession.' Dispatcher Carter testified.
however, that whenever a driver could he identified as
being a miscreant (and there were instances when no such
identification could be made), Carter did no more than give
a verbal reprimand to the offender. The record shows that
not even a simple written warning, much less a suspension,
had been given the 13 drivers who were discharged on No-
vember 8. From this lack of visible reaction, it is reasonable
to infer that Carter, who had presided as dispatcher over
Respondent's drivers for 12 years. did not detect the pres-
ence of a rising tide of anarchy.'2
Miller testified, however, that Cooper Carry had threat-
ened to remove its account in August. and the record con-
tains no contradiction of that statement. The complaint was
said to be "delivery problems," but the system Respondent
then set up to meet the asserted problems suggests that the
difficulties lay as much in Respondent's in-house operations
as in its actual delivery work." Miller's October 31 letter to
Cooper-Carry, expressing regrets about the withdrawal of
the account, similarly refers to "the problems you have en-
countered with Atlanta Blue's delivery and turnaround."
The latter term, as Miller explained it, refers to "the time
we pick up their drawing-the original-until we turn it
around at our plant and get it back to them." Since Miller.
when questioned. could not point to any measure he had
taken after October 31 to combat the "turnaround," as op-
posed to the "delivery" problem, he persisted in arguing
that what the Cooper Carry manager had sub silentio been
saying was that the "real" reason for termination of the
account-the "meat of the problem"-was the diaper inci-
dent: at the same time Miller conceded that the Cooper
Carry representative had not mentioned the diaper episode
on October 30- "he's too much of a gentleman for [that]."'4
Miller's claim that he gave orders to Carter on October
13 to get to the bottom, so to speak, of the diaper mystery.
not to mention resolving the rash, as it were, of other deliv-
ery problems, is enveloped in a fog of confusion. Arp, as
noted, testified that Miller said he could "fire all thirteen
drivers to get the right one." Miller at first testified that he
told Carter, in Arp's presence, that he wanted "all 13 driv-
ers fired within 30 days unless we find out who was in-
volved." Then, when Arp had left the office, Miller "said
I There is testimony that at unspecified times some employees used trucks
for personal purposes. One driver was reported to have purchased mari-
juana, others were said to have sold marijuana, a truck was seen speeding in
front of a house and another on a highway. trucks were reported to be seen
regularly where they did not belong, drivers were seen not attending to busi-
ness, a driver tned to eat at another employer's cafeteria, an unsecured table
fell off a speeding truck, a driver refused to unload a piece of furniture
because the customer would not assist him, a driver ras seen eating fiood
while making a pickup, and drivers were rude.
12 Carter knew how to deal with inadequate employees; he fired Columbus
Williamson on November 7 for "not being able to do the job, getting too
many parking tickets."
I "(We'll1 set up a log in our dispatching office and my dispatcher will
keep track of every call that comes in and keep track of when the merchan-
dise got in the house and also when it was delivered back to you." Marketing
Manager Hunter conceded that "the delivery department's not the only de-
partment in the whole company that might have made an error."
, Of course. i the dirty diaper was the "meat of the problem," the sym-
bolic slaughtering of Arp, the only employee who regularly serviced Cooper
Carry, might have seemed a sufficient resolution. Miller finally said that he
did not know that the Cooper Carry official even "knew about the diaper
incident."
the same thing to Mr. Carter right there. that I wanted to
get to the bottom of it: I wanted to know who was in-
volved." In subsequent examination. counsel for the Gen-
eral ounsel asked Miller when Carter knew that the driv-
ers would be dismissed, and Miller answered. "He knes on
the 13th. I told him that we would dismiss them in thirt,
days if- ." General Counsel interposed. "Oh. in thirt, days.
Okay. Not in two or three weeks as yoUr memo mentions'""
Miller answered. "No."
The fact is, however, that Miller's handwritten memoran-
dum dated October 13 states. "Kenny was told to find all
responsible people involved in this problem along with sol -
ing all other delivery problems within two or three weeks or
to dismiss all of his present drivers and replace them with
an entire new group." But despite Miller's affirmation to
the General Counsel that the deadline had been 30 days,
not 2 or 3 weeks, when I sought further clarification. Miller
then imparted the unclarifying fact that he had said 30 days
in Arp's presence and changed it to 2 or 3 weeks once Arp
had left the room; that, of course, contradicts what Miller
had said to counsel for the General Counsel. A deposition
given by Miller on February 20 in a Section 10(i) proceed-
ing makes no mention of any time limit at all. Vice Pres-
ident Norris said only that "it was left at this meeting that
we were to, you know. try to find out the details of it."
Carter testified, contrary to Miller's occasional testimony
about 2 or 3 weeks, that Miller had given him "thirty days"
to "find out who was involved in delivering that dirty dia-
per to Cooper Carry." He did not remember anything being
said about "solving all other delivery problems" within the
space of a few weeks, an undertaking which he would have
recalled since it "would have been an unheard of task
within a thirty-day to three-week period."
The memorandum rested in Carter's personnel file (if it
did) unknown to Carter: he never saw it: "I don't look in
my personnel files." It is my strong intuition that the memo-
randum was prepared solely for purposes of the present
litigation, and not on the date shown on it. It is written in
hand by the president of a company employing 110 people.
who rather grudgingly admitted that his secretary does
type. It reads as if it were written for the benefit of someone
other than Carter or company personnel. It was obviousl'
unnecessary. It was purportedly placed in Carter's person-
nel file, which makes no sense at all. It is at variance in two
important respects with what, according to Carter. was said
to him by Miller.
Carter testified that he did absolutely nothing as a result
of the meeting of October 13. He "left it solely on Arp'sl
shoulders and his responsibility to get with me within the
thirty-day period and tell me who actually packaged the
diaper...." He made no further report to Miller. However.
although the memorandum states that "Kenny [Carterl"
was to resolve all the delivery problems within 2 or 3 weeks
or "dismiss all his present drivers." Miller himself. sans any
report from Carter about his progress. made a decision on
November 7 to put the plan into action.
Carter testified to his "shock" upon hearing this decision,
and one might imagine that to be an appropriate response.
There were, after all, as Carter put it. "some good men" in
there. Of the four discriminatees who testified. Arp had
worked for Respondent on four occasions, or a total of
637
I) ('ISIONS ()OF NAI()ONAL LABOR RELATIONS BOARD
about 11 out of 14 years: Rise twice, for a total of about 5
years and 7 months: ('hambers twice. for a total of 2 years
and 3 months: and Ronnie Abraham thrice, for a total of
more than 2 years.
Despite the apparent value of retaining at least some sea-
soned employees. however. Miller testified that it was his
decision to ire the entire force of drivers for two reasons -
to have an impact on the men and to have an impact on the
industry. As !o, the first impact, although Miller. as de-
scribed. seemed to treat the discharges as a form of tempo-
rary suspension." he made no effort to inform the drivers
that if they behaved themselves, they could return. After
the discharges, only those drivers who had requested rein-
statement were reemployed. and then only after the depar-
ture of replacements.'"
As to the second impact, the record does not disclose
what Respondent's clients may have thought of this dra-
matic change of personnel, but Carter's testimony shows
that it made quite an immediate impact. as might be fore-
seen, on Respondent's operation. With salesmen and man-
agement personnel pressed into service, first to make pick-
ups and deliveries, and then to train the replacements hired.
it took "approximately a week" to get delivery service back
to normal, during which period there were "unusual de-
lays" and things were "pretty strenuous" and "really hec-
tic." Presumably, the clients were impressed.
The claim that the decision to fire all drivers was made
on November 7 is an embarassingly fraudulent assertion
when the lack of preparation for such an event--the com-
plete elimination of the delivery services, referred to by
Miller as the "critical" element of the operation--is consid-
ered. Miller and Norris swore under oath that they reached
this decision on November 7, but they also say they did not
even notify dispatcher Carter about this momentous change
until the evening of November 8. As of that time, Miller
had not "formulated any opinion at all with regard to who
[he] would hire to replace" the dischargees. Although, had
he started on November 7. Miller would have had a little
lead time to make arrangements, it was not until the "first
thing on the morning of the 9th" that Miller told the sales-
men that he wanted them "to drive the trucks that day." If
the decision had indeed been made on November 7. one
would assume that newspaper ads for replacements would
have appeared on November 8, they did not in fact appear
until November 9.'7
Miller said that the men were not fired until November 8
because that was the last day of a payroll period and thus
the sensible time for discharging employees; but Columbus
Williamson was discharged on November 7. although his
case required no immediate action. Williamson's replace-
ment, Stanton Baker, worked for 2 days before he, like the
other 12 drivers, was fired for "Continuous overall delivery
and service problems which caused the loss of customers." a
rather grievous sin to lay on the head of a 2-day employee
15 "We had to discipline all the drivers at the time and I felt like that was
the way to do it. And I felt like they have proven that was the way to do it.
We have most of our dnvers back now. They do a better job than before."
6t Until March 15, when Respondent, having faced facts, sent reinstate-
ment offers to five unreinstated employees.
7Compare Miller's testimony that he chose not to fire the drivers on
October 30 "because he] thought it would be an overreaction."
who was then immediately replaced by a recruit nearly as
new.
But enough. I might only mention in passing union orga-
nizer Parker's credited testimony that Miller told him "he
could fire all thirteen drivers today anti hire thirteen more
tomorrow," Arp's credited testimony that Norris said "we
could fire you quicker with the union than we could with-
out one," and Chambers' credited testimony that Carter
said to him, "maybe if I forgot about the union. lie would
talk to Mr. Miller about trying to get me back on." Even
without the evident animus and motive revealed b these
statements, the evidence here can only add up one way. I
conclude. therefore, that the mass discharge on November 8
was not the natural resolution of a series of problems which
had arisen in the past, but was, rather, an abrupt reaction to
the Union demand for recognition. By discharging the driv-
ers on November 8, 1978. Respondent violated Section
8(a)(3) and (1) of the Act.
II. T'HE 8(A)(5) ALLE(iAIION
All of the elements necessary to finding a violation of
Section 8(a)(5) and issuing a bargaining order are present
here.
The complaint alleges that Respondent's truckdrivers
constitute an appropriate unit for the purpose of collective
bargaining. At the hearing Respondent agreed. The record
shows that as of the time of the demand. 10 of the 13 driv-
ers in the unit had signed valid union authorization cards.' s
I see no need to dwell at length on whether. within the
meaning of N.L.R.B. v. Gissel Packing Co.. Inc., el a/.. 395
U.S. 575, 614 (1969), the unfair labor practices found here
"have the tendency to undermine majority strength and im-
peded the election process." Although four of the employ-
ees were rehired, upon application and after their replace-
ments had left, by the end of 1978, three more had to wait
until January 1979 and three others until March; the other
three have not yet returned, although offers were finally
made to them on March 15. The likelihood that these chas-
tened employees, or newly hired ones, would be willing to
openly support the Union prior to an election, or in the
polling booth, seems dim, not only because of the lasting
impact of the massacre of November 8. but also because of
the lingering effect of Norris' threat, now well publicized by
this proceeding, that it would be even easier to discharge
them with a union than without one.
All the ingredients having been established, I conclude
that Respondent violated Section 8(a)(5) on and after No-
vember 8, 1978, by refusing to recognize and bargain with
the Union, and that entry of a bargaining order is an appro-
priate remedy.
CON(LUSIONS OF LAW
1. Respondent, Atlanta Blue Print & Graphics Co.. 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.
'1 On the evening of November 8 the remaining three drivers executed
authorizations.
638
A II.ANIA B UE PRINT & GRAPHICS CO.
2. Printing Specialties and Paper Products Union No.
527 AL ('10. hereinafter "the Union." is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. B discharging Ronnie ee Ahraham. Claude Arp.
John R. ('rittenden. Erling M. Rise. Norris Shirley, Sulton
Saleem. Gregory I.. Mitchell. Mike E. Abraham. Benjamin
Chambers. Eddie Eaves. Tommy Reynolds. Robert Wil-
liams. and Stanton Baker on November 8. 1978, Respon-
dent has discriminated against the aforementioned employ-
ees in violation of' Section 8(a)(3) and ( I ) of the Act.
4. By threatening reprisals against employees for sup-
porting or selecting a union: and by attempting to coer-
cively dissuade employees from supporting a union. Re-
spondent has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed them
under Section 7 of the Act, in violation of Section 8(a)( I) of
the Act.
5. All truckdrivers employed by Respondent at its At-
lanta, Georgia, location, excluding all other employees.
guards. and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. At all times material herein, since at least November
8, 1978, the Union has been the exclusive collective-bar-
gaining representative of the employees in the above-de-
scribed unit within the meaning of Section 9(a) of the Act.
7. By refusing. since November 8. 1978, and at all times
thereafter, to recognize and bargain with the Union as the
exclusive representative of its employees in the appropriate
unit set out above, Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The effect of the aforesaid unfair labor practices is of
such a nature as to warrant entry of a remedial order direct-
ing and requiring Respondent to recognize and bargain
with the Union as the representative of the employees in the
above-described unit.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
It is appropriate that Respondent be required to reinstate
the 13 aforementioned employees, if Respondent has not
already done so, to the positions from which they were dis-
charged on November 8, 1978, with all seniority, rights, and
privileges, and to make them whole for any loss of earnings
which they may have suffered, with backpay to be com-
puted, with interest." in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), Isis Plumbing & Heating
Co., 138 NLRB 716 (1962). and Florida Steel Corporation,
231 NLRB 651 (1977).2
19 I defer to the Board the request made b counsel for the General Coun-
sel for an increase in the prevailing measure of interest.
I stated at the hearing, without objection. that I would not pass upon the
question of whether there had been proper reinstatement offers to the em-
plo) ees.
I shall further recommend that Respondent be required
to recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the above-
described appropriate bargaining unit.
Provision will also be made for the posting of an appro-
priate notice to employees.
Upon the foregoing findings of act. conclusions of law.
and the entire record in this case, and pursuant to Section
10(c) of the Act. I hereby issue the following recommended:
ORDER 2'
The Respondent, Atlanta Blue Print & Graphics Co., At-
lanta. Georgia. its officers, agents. successors, and assigns,
shall:
I. ('ease and desist from:
(a) Discouraging membership in Printing Specialties and
Paper Products Union No. 527 AFL-CIO. or any other
labor organization. by discriminating against anN of its em-
ployees in regard to hire or tenure of employment or any
term or condition of employ ment.
(b) Threatening reprisals against employees for support-
ing or selecting a union: and coercively dissuading emplox-
ees from supporting a union.
(c) Refusing to bargain collectively with Printing Spe-
cialties and Paper Products Union No. 527 AFI.CIO, as
the exclusive bargaining representative of the employees in
the following unit:
All truckdrivers employed by the Respondent at its
Atlanta, Georgia. location,. excluding all other employ-
ees, guards. and supervisors as defined in the Act.
(d) In any other manner interfering with, restraining. or
coercing employees in their right to self-organization. to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of mutual aid and protection as guaranteed in Section
7 of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Ronnie Lee Abraham. Claude Arp. John R.
Crittenden, Erling M. Rise, Norris Shirley, Sulton Saleem.
Gregory L. Mitchell, Mike E. Abraham. Benjamin Cham-
bers, Eddie Eaves. Tommy Reynolds. Robert Williams, and
Stanton Baker immediate and full reinstatement, if Respon-
dent has not already done so, to their former positions or, if
such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Upon request, recognize and bargain with Printing
Specialties and Paper Products Union No. 527 AFL CIO,
as the exclusive collective-bargaining representative of the
employees in the bargaining unit described above with re-
spect to wages, hours, and other terms and conditions of
1 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National I.ab)r Relations Board. the findings.
conclusions. and recommended Order herein shall, as pros ided n Sec 102.48
of the Rules and Regulations. be adopted b the Board and become its
findings. conclusions, and Order, and all objections hereto shall be deemed
waived for all purposes
639
I)E('ISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, and if an understanding is reached, embody
such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(d) Post at its place of business in Atlanta, Georgia, cop-
ies of the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's repre-
sentative, shall be posted by 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. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the allegation of the com-
plaint not found supported in the foregoing decision be,
and it hereby is, dismissed.
22 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional 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 that we
violated the National Labor Relations Act, and has ordered
us to post this notice and to keep our word about what we
say in this notice.
WE WILL NOT discriminate against employees for
supporting or selecting a union.
WE WILL NOr threaten employees fir supporting or
selecting a union.
WE WILL NOT coercively persuade employees to give
up their support for a union.
WE WI[.L NOT in any other manner interfere with.
restrain, or coerce our employees in the exercise of
their right to form, join, or assist unions, to bargain
collectively through representatives of their own choos-
ing, to engage in other mutual aid or protection, or to
refrain from such activities.
WE WIL.L. offer Ronnie Lee Abraham, Claude Arp,
John R. Crittenden, Erling M. Rise, Norris Shirley.
Sulton Saleem. Gregory L. Mitchell. Mike E. Abra-
ham, Benjamin Chambers, Eddie Eaves, Tommy
Reynolds, Robert Williams, and Stanton Baker imme-
diate and full reinstatement to their former jobs, or
similar jobs, if their former jobs no longer exist. with-
out prejudice to their seniority and other rights and
privileges, and WE WILL make them whole, with inter-
est, for losses they may have suffered as a result of our
discrimination against them.
WE WILL, upon request, bargain collectively with
Printing Specialties and Paper Products Union No.
527-AFL-CIO with respect to the wages, hours, and
other terms and conditions of employees in the follow-
ing appropriate unit:
All truckdrivers at our Atlanta, Georgia, location,
excluding all other employees, guards, and supervi-
sors.
ATANTA BLUE PRINT & GRAPHICS CO.
640