Budget Marketing, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1979

241 N.L.R.B. 1108 (N.L.R.B. 1979)

D). tCISIONS OF NATIONAL LABOR RELATIONS BOARD
Budget Marketing, Inc. and Des Moines Printing and
Graphic Communications Union, Local No. 86, af-
filiated with International Printing and Graphic
Communications Union, AFL-CIO. Case 18-CA-
5746
April 24, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPIHY
On January 9, 1979, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions 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, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section IO(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 as modified be-
low, and hereby orders that the Respondent, Budget
Marketing, Inc., Des Moines, Iowa, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
I. Insert the following as paragraph 2(a):
"(a) Offer William Speakar and William Holin im-
mediate and full reinstatement to their former jobs, or
if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and
make them whole, with interest, for any loss of earn-
ings they may have suffered by reason of Respon-
dent's unlawful conduct as outlined in 'The Remedy'
portion of this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and brief adequately prexent the issues
and positions of the parties.
2 In affirming the Administrative Law Judge's finding of an 8(aX I) viola-
tion regarding the discharge of supervisor Speakar. Member Murphy relies
on Miami Coca Cola Bottling Company d/b/a Key IWest Coca Cola Bottling
Company. 140 NLRB 1359 (1963)., rather than Fairview Nursing Home, 202
NLRB 318 (1973), cited by the Administrative Law Judge.
APPEND IX
NoI(lcE To EMPIl)YIEES
POSTID) BY ORIDER 01: HLE
NAIIONAIL LABOR RELAlIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to give evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, as amended, and has ordered us to
post this notice. We intend to abide by the following:
WE Wi.L NOT layoff, discharge, or otherwise
discriminate against employees because of their
union activities.
WE WILL.. NOT discourage membership in the
Union, or in any other labor organization, by
discriminating against employees with regard to
their hire and tenure of employment or any
terms and conditions of employment.
WI WIll. NOI, in any other manner, interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed by Section 7 of the
Act.
WE WIlt offer William Speakar and William
Holin immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and WE WILL make
them whole, with interest, for any loss of pay
they suffered as a result of our discrimination.
BU)(rirl MARKI IIN;G, INC.
DECISION
SIAI'EMENI OF IE CASE
PiUl. W. SAUtNDERS Administrative Law Judge: Based
on a charge filed on March 20. 1978, by D)es Moines Print-
ing and Graphic Communications Union, Local 86, affili-
ated with International Printing and Graphic Communica-
tions Union, AFL CIO, herein the Union. a complaint was
issued on April 27, 1978, against Budget Marketing, Inc.,
herein Respondent or Company, alleging violations of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended. The General Counsel and Respondent filed briefs
in this matter.
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINC,s OF FAC(I
I. ItIE BUSINESS OF RESPONI)ENI
Respondent is an Iowa corporation, and at all times ma-
terial herein, has maintained an office and place of business
241 NLRB No. 174
I 8
BUDGET MARKETING, INC.
in Des Moines, Iowa. Respondent is engaged in several fac-
ets of interstate sales of multiple magazine subscriptions, in
printing, in publishing, and in related services. During the
year ending December 31. 1977, the period representative
of its operations during all times material herein, Respon-
dent, in the course and conduct of its business operations,
performed services valued in excess of $500,000, and of
which services valued in excess of $50,000 were performed
in and for various enterprises located in states other than
Iowa; during the same period Respondent purchased, and
caused to be transported and delivered at its Des Moines,
Iowa, facility, goods and materials valued in excess of
$50,000, and of which goods and materials valued in excess
of $50,000 were transported and delivered to its facility in
Des Moines, Iowa, directly from points located outside the
State of Iowa.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that on or about February 2, 1978,
Respondent's Vice President and Manager of Printing Ser-
vices, Brian Woolever, interrogated an employee concern-
ing employee attitudes toward unionization.' It is further
alleged that on February 10, 1978, Respondent discrimina-
torily discharged William Speakar and William Holin.
William Speakar was hired by Respondent in September
1976, and worked continuously until his discharge on Feb-
ruary 10, 1978. The jobs Speakar engaged in included cam-
era work, typesetting and pasteups in Respondent's prepa-
ratory department.' It appears that in June 1977, Speakar
was designated by Respondent as service coordinator and
his compensation was increased to $220 per week.
William Holin was hired in August 1977, and for a few
weeks worked for Sarcone; but in September 1977, he be-
gan working full time for Respondent in their preparatory
department. Holin operated the camera and cutter, and
also did some stripping and platemaking. Holin testified
that Brian Woolever was his supervisor.
I' appears from this record that on or about January 22
or 23, 1978, Speakar discussed the possibility of joining the
Union with William Holin and Nana Smith, employees in
the preparatory department, and both indicated their inter-
' Woolever testified that he is the vice president and general manager of
Sarcone Publishing, Inc., herein called Sarcone. However, this record reveals
that Sarcone is a wholly owned subsidiary of Respondent and, at the present
time, both Sarcone and Respondent conduct their business operations in the
same building with open access to each other; Sarcone does the printing jobs
for Respondent, and in such respects their operations are generally interre-
lated. Moreover, Woolever admitted that he is on the payroll of Respondent,
and that he also considered himself as supervising one of the alleged discrim-
inatees herein-William Speakar who worked for the Respondent. Clearly,
Woolever is at lest an agent of Respondent and, as such. Respondent is
responsible for his conduct and statements.
2 For purposes here, there were four people in this department-Speakar,
Holin, Nana Smith, and Elaine Watkins. The preparatory department is the
only facility involved in this proceeding.
est in the Union. On January 25, 1978, Speakar, Holin, and
Smith went over to the union hall after work in Holin's car,
and talked with Union Business Representative Ronald
Montgomery.' Montgomery apparently mentioned some of
the benefits the Union could offer, and at this time, autho-
rization cards were signed by Speakar, Holin, and Smith.
The parties again went to the union hall on February 1,
1978, and at this second meeting with Montgomery, it was
decided to go ahead with their organizational plans.
On February 2, 1978, Business Agent Montgomery called
Brian Woolever and informed him that a majority of the
employees in the preparatory department of the Respon-
dent had expressed the desire for the Union to represent
them, and also informed Woolever that this call was to be
considered as a request for recognition. Later the same day,
Woolever returned the call and informed Montgomery that
he would have to talk with John Krohn, the Respondent's
Vice President. The next day Montgomery informed Krohn
by letter that employees had requested the Union to repre-
sent them. Krohn and Montgomery then had a meeting to
discuss the matter, but this was subsequent to the two dis-
charges here involved.
On the afternoon of February 2, 1978, Brian Woolever
approached Speakar and inquired if he knew Montgomery,
and then asked it it was true that Speakar wanted the
Union to represent him. Speakar replied in the affirmative,
but then assured Woolever that Elaine Watkins, also an
employee in the department, was completely unaware of
their activities, but that William Holin and Nana Smith felt
as strongly about joining the Union as he did.,
On or about February 3, 1978, Speakar also had a con-
versation with Respondent's Vice President and Marketing
Director Charles Donly. Donly inquired if Speakar was
happy with his job, and if he liked what he was doing.
Within a very short time thereafter, Speakar was again
called up to the office by Donly and, on this occasion,
Woolever was present. Donly informed Speakar that in
their future plans they would be looking for bigger and
more prosperous jobs, that Woolever would be in the field
selling more, and as a result Speakar would possibly assume
additional responsibilities.
Donly testified that on February 10, 1978, he called a
conference to talk about the marketing report Woolever
had turned in, and that on this occasion he, Woolever, and
Speakar also discussed whether they had adequate equip-
ment and production facilities to meet demands of their
future business expectations. Donly stated that after these
areas were explored, he then discussed the personnel in the
preparatory department and went over each employee. He
testified that when they came to Holin, he remembered a
prior question by Woolever inquiring as to why Holin had
been hired in the first place, and discussions then followed
as to his capabilities. Donly stated that they then all con-
cluded that Holin's performance was under the level of
' It appears that Lee Burke also participated in this conversation. Burke is
an employee of Sarcone. Sarcone is a union shop and has a bargaining
contract with the Union.
Woolever admits talking to Speakar about his call from Montgomery,
but maintains that he did so because Montgomery used the phrase "offset
preparatory department" and stated that he was attempting to find out to
what Montgomery was referring. He denied making any inquiry as to Holin
and Smith.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
competence of the other people in the department, and tes-
tified that Speakar also concurred in this conclusion.
Speakar testified that in updating the people in the pre-
paratory department on this occasion, Donly and Woolever
started with him, and he was then informed by Donly that
he was doing a "fine job" and they "couldn't ask for any-
thing more." Further, in the appraisals of Smith and Wat-
kins it was also agreed they were both doing good work in
all respects, but, in their appraisal of Holin, Donly stated
that he could not give him a raise, and told Speakar that he
wanted him to go downstairs and terminate Holin. Speakar
then informed and explained to Donly and Woolever that
when Holin first started working in the preparatory depart-
ment he was "a little slow," but as time went on had
"caught on to the job" and was now making only normal
mistakes that anyone would make, and further told them
that he could not discharge Holin as it was not his job.
Donly replied by telling Speakar that his failure to follow a
"direct command" from management would result in his
own termination; once again Donly told Speakar to dis-
charge Holin, but once again Speakar replied that he
"couldn't do it." Donly then stated, "We'll have to termi-
nate you." After calling Vice President Krohn and discuss-
ing the matter with him, Donly had Respondent's Person-
nel Director Jo Ann Butler come to his office, and informed
her that Speakar was being terminated for "failure to fire
Bill Holin." Speakar was asked to leave the premises imme-
diately and Butler saw to it that he did so, and since
Speakar had refused to fire Holin, Donly then directed
Woolever to discharge Holin.
Respondent contends that the discharge of Holin was
based solely on his incompetent performance and that there
is substantial evidence in this record to support his termina-
tion.
Brian Woolever testified that he discussed Holin's work
performance with Speakar on at least two occasions, and
the first time it was in reference to the Iowa Food Dealer
publication.s Woolever stated that a customer complained
to him about this ad, and the mistake in the ad occurred in
the camera room as a small coupon was added and then it
is "stripped" into the larger negative; but in this instance, a
copy was "opaqued out in the process of stripping in the
ad." Woolever also testified that at this time Holin was
operating the camera in the preparatory department, and
because of the error they had to rerun the ad in the next
issue without charging.
Woolever also testified as to a job for an independent
school district in Des Moines. He stated that after they
started running the job they discovered it had not been put
together properly so that the page numbers did not back up
correctly, and the page numbers were actually "chopped
off."6 Woolever stated that in order to correct the error they
had to stop the press, take the plates off, remask and reburn
the plates, and then put it back on the press. He further
testified that on this job Holin did the "masking up" im-
properly.
Woolever further testified as to a job for the Elbon News-
letter on or about December 7, 1977, and said that nor-
mally a job of this nature should take no more than 5
1 See Resp. Exh. 7.
6 See Resp. Exh. 8.
hours: but this particular job took additional time because
the plates were improperly made and it was the responsibil-
it) of Holin to make them.7
There was also a banker's printing job to which Wool-
ever testified. lie stated that on this job they were supposed
to print the price effective January 16, 1978, but that Holin
had masked out the price list and "reshot" the letterhead,
and as a result the plate had to be remade.
Woolever stated that there was another incident again
involving a Iowa Food Dealer job for the January issue,
and that a note on the job ticket revealed as follows, "Press
idle considerable time due to remaking of plates." Wool-
ever testified that again two plates were spoiled, and that
while he could not state for sure that Holin made these
plates, he was "reasonably certain" that Holin did the cam-
era work and "masked up" the negatives, and the error
occurred in the masking and camera process.
Final Conclusions
Speakar and Holin were in a proposed bargaining unit of
four individuals, as previously stated, and on February 2,
1978, the Union notified Respondent that a majority of the
employees in their preparatory department had asked the
Union to represent them and wanted recognition. Later the
same day, Speakar was questioned by Woolever concerning
his activities for the Union, and the credited testimony
shows that at this time Speakar admitted his activities, and
then also informed Woolever of the involvement of Nana
Smith and William Holin.? Furthermore, Holin had driven
Speakar and Smith to the union hall on two occasions, and
had later returned them to Respondent's parking lot. Wool-
ever also was informed that Watkins was in no way in-
volved in union activities, and, therefore, management
could reasonably conclude, by the simple process of elimi-
nation, that the people participating in union activities were
Smith, Holin, and Speakar.
I am convinced that union activities triggered the dis-
charge of Holin. This record shows that Holin had passed
his 90-day probationary period by November or early De-
cember 1977, and the errors he initially committed were
generally routine in nature and, for the most part, occurred
during his probationary period as Speakar stated; but, nev-
ertheless, during this period he had met the approval of
management. Respondent's Personnel Director Jo Ann
Butler even agreed that Holin had not been called in for
any disciplinary reasons other than for common and rou-
tine mistakes occasionally made by all employees.
As to Respondent's Exhibit 7, the ad for Iowa Food, it
seems that the only error attributed to Holin in this ad
appeared in the word "communication"--the last three let-
ters were "opaqued" out. Woolever said that he also re-
ceived an additional complaint of this ad because of imper-
7See Resp. Exh. 9.
8 See Resp. Exh. I I.
9 The credibility resolutions in this report have been derived for the rea-
sons given herein, and from a review of the entire testimonial record and
exhibits with due regard for the logic of probability, the demeanor of the
witnesses, and the teaching of N. L R. B. v. Walton Manufacturing Company &
Loganille Pants Co., 369 U.S. 404 (1962). All testimony has been reviewed
and weighed in light of the entire record.
1110
BUDGET MARKETING, INC.
fection of the film, but then admitted that he did not believe
this was any fault on the part of Holin, and stated that the
only expense involved in rerunning the ad was the press
time and the price of the paper. With regard to the ad
involving the independent school district of Des Moines,
Woolever admitted that the alleged mistake does not show
up on Respondent's Exhibit 8, since they did not have suf-
ficient copies of the finished piece to submit at the hearing,
but stated the "sell price" was $2,304.45, and the "net
price" was $1,672, and that the error contributed to the
difference in these two figures, but then admitted that there
was a piece of"framework equipment" that was not work-
ing properly. This particular job came into the shop on
September 26, 1977, and Woolever testified that normally
such jobs are completed within a month and then agreed,
assuming such a time schedule was correct, that this job
could possibly have been done within Holin's 90-day pro-
bationary period. With regard to the Elbon Newsletter,
Woolever admitted that he could not ascertain from Re-
spondent's Exhibit 9, the job ticket, as to who ran this job,
but testified that he "believed" it was Holin as he occasion-
ally was in the shop talking with the printing foreman, and
Holin normally made the plates for the Elbon Newsletter.
On voir dire examination as to the banker's printing job,
Woolever admitted that the error was caught before this job
was run on the press, and also admitted that the total cost
for remaking the plate was less than $25 and that this job
could have been done in December 1977. Turning to Re-
spondent's Exhibit II, on examination by the General
Counsel, Woolever admitted that he did not know who
made the plates on this job, but that "he believed" the error
was in the camera work and that Holin was working with
the camera at the time in question.
As pointed out, other than routine criticism in efforts to
correct the errors of a new employee, there is no evidence in
this record of any real warnings given to Holin about his
work, and at least a few of the incidents complained of
occurred during his probationary period.
In the final analysis, the evidence in this record reveals
that Respondent wasted little time in embarking upon its
efforts to frustrate, neutralize, and undermine the organiza-
tional efforts of its employees. As pointed out, on February
2, 1978, following the telephone conversation wherein Busi-
ness Representative Ronald Montgomery requested recog-
nition, Speakar's immediate supervisor, Brian Woolever,
approached Speakar, told him of his conversation with
Montgomery, and asked Speakar if it was true that he
wanted the Union to represent them. Speakar replied that it
was true. The next morning Vice President Donly called
Speakar into his office and asked him if he was happy with
his job, and later the same day, Respondent again called
Speakar into its office where Donly told Speakar of their
plans for the future.
Speakar and Holin both testified that on the morning of
February 10, 1978, they were summarily discharged, or-
dered to punch out immediately, and then ceremoniously
escorted out of the plant by Personnel Director Jo Ann
Butler. Speakar, who was the first person discharged, asked
if he could return to the plant at a later time to pick up his
personal belongings. Butler denied this request, ordered
Speakar to immediately pick up all his belongings, and in-
sisted upon escorting Speakar out of the plant in full view
of Respondent's other employees. Less than an hour later
that same morning, Respondent discharged Holin and es-
corted him out of the plant in the same manner. As further
indicated by the General Counsel, there is no evidence. nor
does Respondent contend, that any precipitous or unex-
pected event had occurred, that any crisis or serious con-
frontation had taken place, or that there was any legitimate
basis from the summary manner in which Speakar and
Holin were discharged and "drummed out" of the plant.
Respondent contends that William Speakar is a supervi-
sor within the meaning of the Act, and that Speakar's su-
pervisory status is an absolute defense to his discharge.
Speakar, however, maintains that he was not a supervisor
and testified that he was never informed by management
that he had any authority to hire, fire, or to recommend
such actions, and that when he was given the job of service
coordinator in June 1977, he was merely to keep track and
expedite the various jobs as they moved through the print-
ing shop, and he stated that he did not have time to perform
such functions. Nana Smith testified that she considered
Woolever her supervisor, and if she wanted time off would
ask Personnel Director Butler and never Speakar. Holin
also stated that Woolever was his supervisor, that about 75
percent of the time Speakar would be setting type, and that
Speakar did not hire or fire anyone, nor did he interview
prospective employees.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical, or rule-book authority.
It is well settled that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or
her with a "title and theoretical power to perform one or
more of the enumerated functions." Cf. N.L.R.B. v. South-
ern Bleacher & Print Works, Inc., 257 F.2d 235, 239 (4th
Cir. 1958), cert. denied 359 U.S. 911 (1959). What is rel-
evant is the actual authority possessed and not the asser-
tions of a company's officials. And while the enumerated
powers listed in Section 2(11) of the Act are to be read in
the disjunctive, the Section also "states the requirement of
independence of judgment in the conjunctive ... with what
goes before." Cf. Poultry Enterprises, Inc. v. N.L.R.B., 216
F.2d 798, 802 (5th Cir. 1954). Thus, the individual must
consistently display true independent judgment in perform-
ing one of the functions in Section 2(11) of the Act. The
exercise of some supervisory tasks in a merely routine, cleri-
cal, perfunctory or sporadic manner does not elevate a
rank-and-file employee into the supervisory ranks. Cf.
N.L.R.B. v. Security Guard Service, Inc., 384 F.2d 143, 146-
149 (5th Cir. 1967). The existence of independent judgment
will not alone suffice, for "the decisive question is whether
[the individual involved has] been found to possess author-
ity to use [his] independent judgment with respect to the
exercise by [him] of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." N.L.R.B. v.
Brown & Sharpe Manufacturing Co., 169 F.2d 331, 334 (Ist
Cir. 1948). In short, "some kinship to management must
exist before the latter becomes a supervisor for the former."
N.L.R.B. v. Securin' Guard Service, Inc., supra, 384 F.2d at
149.
Applying these principles here, I find and conclude that
Speakar possessed supervisory authority, and I am per-
11I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suaded that his exercise of supervisory functions was not
merely routine, clerical, perfunctory, or sporadic. In sum,
there was a "kinship to management"-an "emphatetic re-
lationship between employer and employee" (ibid).
In June 1977, Speakar was told by Donly that he was
being appointed service coordinator and, as such, he was to
direct and have total authority over the operations of the
Art Works (Preparatory Department). Further, Donly
would rely on Speakar to decide as to whether people were
qualified-also whether more employees were needed, and
if so, Speakar would have the responsibility to hire them,
and conversely, if employees were not competent it would
be his responsibility to discharge them by so informing
Donly. Upon his promotion to service coordinator, Speakar
then was relieved of the need to punch a timeclock, was
given additional employer-paid life insurance coverage,
transferred from an hourly pay rate to a weekly salary, was
given a substantial increase in pay, had his principal place
of work moved from the camera room to a separate office,
and was also being groomed to be the "inside man" to over-
see the entire printing shop. On cross-examination, Nana
Smith admitted that prior to the hiring of Holin, she told
Speakar that Holin was available and could do the job.
Holin testified that Woolever would be the one to give him
work, but that Speakar would sometime give him job as-
signments by stating, "Well, we've got this next." More-
over, Speakar admitted that when he was appointed service
coordinator, as previously stated, Donly then wanted some-
one to take on 50 percent of the typesetting; so he asked
Speakar to place an ad in the newspaper for such a person,
and in response to the ad, Speakar then interviewed two or
three people and recommended that one candidate be con-
sidered. Speakar also admitted on cross-examination that
Woolever had asked him to be present when Elaine Wat-
kins had been hired, and beforehand he had been requested
to review the applications for the job. Speakar denied that
he assigned work in the shop, but admitted that he distrib-
uted work and would pass out work to the other employees
in the department.
In summary, the record reveals that Speaker interviewed
prospective employees, advertised for employees, played at
least some part in the hiring of Holin, passed out and coor-
dinated the work flow, discussed pay increases with em-
ployees, was also expected to discipline employees, and
generally supervised employees in his department.
The General Counsel maintained that his principal posi-
tion is that Speakar is not a supervisor, but assuming, argu-
endo, that Speakar is a supervisor, Respondent, neverthe-
less, violated Section 8(a)(1) of the Act by discharging
Speakar because of his refusal to participate in the unlawful
discharge of William Holin, and because of the coercive
effect Speakar's discharge had on Respondent's other em-
ployees.
The National Labor Relations Act, through Section 2(3)
and (I l) and Section 14(a) specifically, withholds from su-
pervisors the comprehensive protection which it provides
for employees, statutorily defined. Nevertheless, this Board
had held-with judicial concurrence-that an employer's
conduct which prejudicially or detrimentally affects super-
visors' interests may constitute a proscribed unfair labor
practice where it directly infringes upon certain statutorily
guaranteed rights of employees. For example, The Board
has held that concerned employers may not lawfully dis-
charge or otherwise discipline supervisors because they
have refused to commit unfair labor practices against rank-
and-file workers, or because such conduct provides a pre-
text for the termination of rank-and-file participants in con-
certed activity for mutual aid or protection. The Board and
court decisions have been based primarily upon the propo-
sition, inter alia, that discriminatory treatment directed
against supervisors would likely generate fears within the
concerned employer's rank-and-file workers, complement,
and that like conduct by them would lead to some like
retaliation. However, discharges or discipline directed
against supervisors have likewise been found subject to
statutory proscription because such conduct persuasively
demonstrates the concerned employer's determination to
forestall or combat unionization-thus calculatedly inter-
fering with, restraining, and coercing employees with re-
spect to their exercise of rights statutorily guaranteed. See
Fairview Nursing Home, 202 NLRB 318, fn. 2 (1973).
This record shows that on February 10, 1978, just 8 days
after the Union notified the Company that employees in the
preparatory department had expressed a desire for repre-
sentation, Respondent's Vice President Donly called
Speakar into his office, and after some discussion of people
in the preparatory department, it is undisputed that
Speakar was then ordered to discharge William Holin, and
that Speakar refused to engage in such an act, as previously
stated. Speakar was then discharged by Donly for his re-
fusal to fire Holin, and in so doing, Respondent violated
Section 8(a)(1) of the Act by discharging Supervisor
Speakar because of his refusal to engage in unfair labor
practices-that is, his refusal to discharge an employee
(Holin) because of his union activities. Moreover, it is also
clear that Speakar's discharge in the case in question was
also an integral part of Respondent's determination to un-
dermine and frustrate its employees' organizational efforts.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged William Speakar and William Holin, I shall rec-
ommend that Respondent offer them immediate and full
reinstatement to their former jobs or, if such jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by payment to them of the amount they normally
would have earned as wages from the date of their termina-
tion to the date of an offer of reinstatement. Backpay shall
be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289,
291-294 (1950), and with interest thereon computed in the
manner and amount prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977).'0
" See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1112
BUDGET MARKETING, INC.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described in section III,
above, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(l) and
(3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The Respondent, Budget Marketing, Inc., Des Moines,
Iowa, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees because of their own activities.
(b) Discouraging membership in the Union, or any other
labor organization of its employees, by discriminating
against them with regard to their hire and tenure of em-
ployment or any terms and conditions of employment.
(c) In any other manner interfering with, restraining, or
" 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 findings,
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.
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make whole William Speakar and William Holin for
any loss of earnings by reason of Respondent's unlawful
conduct as outlined in "The Remedy" portion of this Deci-
sion.
(b) 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 Order.
(c) Post, at its place of business, copies of the attached
notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region 18,
after being duly signed by Respondent's representative,
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. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
" 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1113