Carrollton Standard Printing Co.

National Labor Relations Board - Board Decisions

Mar 11, 1974

209 N.L.R.B. 540 (N.L.R.B. 1974)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carrollton Standard Printing Co . and Bindery Work-
ers Independent Union and Tri-State District Joint
Council , International Printing Pressmen and
Assistants' Union of North America , AFL-CIO
Carrollton Standard Printing Co. and Bindery Work-
ers Independent Union of Carrollton , Ohio, Peti-
tioner. Cases 8-CA-7453, 8-CA-7614, and
8-RC-8919
March 11, 1974
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 15, 1973, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent, the General
Counsel, and the Charging Parties filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge as modified herein.
Respondent is an Ohio corporation engaged in the
business of printing mass mailings and advertising
inserts for newspapers. The Tri-State District Joint
Council, International Printing Pressmen and Assist-
ants' Union of North America, AFL-CIO, hereinaf-
ter called Pressmen, was certified by the Board as
bargaining representative for Respondent's press-
room employees in April 1972. In late 1972 several
employees in Respondent's bindery department
approached the Pressmen about organizing the
bindery department but the Pressmen did not then
express any interest in doing so.
In January 19732 Respondent, which had been
having serious financial difficulties for a number of
months, hired a new general manager. As a result of
his recommendations, a decision was made in early
January to terminate approximately 70 percent of the
employees in the bindery department and to reduce
the work force by varying degrees in most other
departments as well. Thereafter, on January 18, 29
employees in the bindery were discharged. Among
The General Counsel, the Charging Parties, and Respondent have
excepted to certain credibility findings made by the Administrative Law
Judge It is the Board's established policy not to overrule an Administrative
Law Judge 's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
those discharged were Joan Hamilton, Margaret
Noble, and Dorothy Hendrix who, after their
discharges, along with several other bindery employ-
ees who were not terminated, were instrumental in
forming the Bindery Workers Independent Union,
hereinafter called Bindery Workers.
Thereafter, Bindery Workers filed the petition in
Case 8-RC-8919 for a representation election. The
Pressmen intervened. The election was held on
March 16; of the 33 voters who participated, none
voted for Bindery Workers, 7 cast ballots for
Pressmen, and 8 voted against both labor organiza-
tions. There were 18 challenged ballots, of which 12
were resolved before this hearing and are not in issue
here. The remaining challenged ballots are those of
Hamilton, Noble, and Hendrix, whose discharges are
alleged to be in violation of Section 8(a)(3) of the
Act, and those of Dwayne Yeager, Shirley Ferguson,
and Dolores Mutton, who are alleged to be supervi-
sors.
The Violations of Section 8(a)(1)
The Administrative Law Judge found that Shirley
Ferguson and Dolores Mutton were supervisors at all
times material herein. We agree. We also agree with
the Administrative Law Judge that Ferguson and
Mutton, as well as Plant Superintendent Richard
Byrd and Plant Manager Bruce Westfall, committed
violations of Section 8(a)(1) by conduct which
created the impression of surveillance of employees'
union activities, amounted to coercive interrogation
about such activities, and threatened employees with
reprisals for exercising the rights guaranteed them in
Section 7 of the Act.
Thus, with respect to Ferguson's conduct, she
unlawfully created the impression that Respondent
was keeping its employees' protected concerted
activities under observation when, in December
1972, she accused employee Rose Timlin of being the
union instigator on the night shift, and told Timlin
that she believed that employees Betty Huffman,
Joan Hamilton, Margaret Noble, and Dorothy
Hendrix were the instigators of the movement
towards unionization on the day shift. Later, Fergu-
son made a similar allegation about Margaret Noble
to employee Helen Spahr.
Ferguson also unlawfully interrogated Timlin and
employee Lisa Ulman by asking them if they had
been talking to the Pressmen about organizing the
bindery employees. Further, she threatened employ-
ees with loss of their jobs by telling Timlin that if her
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
2 All dates herein are in 1973 unless otherwise expressly indicated
V&
209 NLRB No. 78
CARROLLTON STANDARD PRINTING CO. 541
suspicions concerning the identity of the union
instigators among the employees turned out to be
true, those so identified would be terminated. In this
same vein, in the fall of 1972 she told Huffman and
Spahr that bindery employees might be terminated if
they discussed a union in the plant, adding, accord-
ing to Huffman, that if the bindery employees were
represented by a union, the plant would shut down.
Lastly, Ferguson advised employees the week prior
to the election that they would have to work longer
hours if "the Union gets in." A similar threat of
employees being required to work more overtime if a
union won the election was made to the bindery
employees by Supervisor Dolores Mutton on the day
before the election.
With respect to the specific conduct of Westfall
and Byrd that is found unlawful herein, Westfall, on
the day before the election, told employee Ulman
that if the "Union" lost the election the bindery
employees would receive a 10- to 12-percent wage
increase, and Byrd, on two occasions during the
week before the election, interrogated employee
Violet Pyles about the two Unions involved.
The General Counsel and the Charging Parties
have excepted, however, to the failure of the
Administrative Law Judge to find an additional
violation of Section 8(a)(1) based on the uncontrad-
icted testimony of employee Jerilyn Budinsky that
Richard Byrd asked her what she thought of the two
Unions. The Administrative Law Judge discredited
Budinsky because he found her to be argumentative
and because he found that the fact that she had
voluntarily left Respondent's employment "had
emboldened her to make statements adverse to"
Respondent. The record does not indicate that
Budinsky was an unduly argumentative witness, nor
was her uncontradicted testimony implausible. To
the contrary, the Administrative Law Judge found
that Byrd had committed a violation of Section
8(a)(1) identical to that testified to by Budinsky by
his interrogation of Pyles.3 Nevertheless, we find it
unnecessary to disturb the Administrative Law
Judge's credibility finding with respect to Budinsky
since a finding of a further violation of Section
8(a)(1) would not, in any event, affect the remedy
herein.
three individuals until after their terminations, and
that, in any event, the three alleged discriminatees
were discharged, together with 37 other employees
including 26 other bindery employees, entirely for
economic reasons, as part of a general reduction in
the Respondent's work force. The Administrative
Law Judge found that all of the discharges in the
bindery and other departments were economically
motivated, and that there was no evidence that
Hamilton, Noble, and Hendrix had been singled out
for discriminatory treatment because of their union
activities. We agree with those findings. In doing so,
however, we feel compelled to disassociate ourselves
from the following statements of the Administrative
Law Judge made in the last paragraph of his
Decision before the section headed "Re: The
Challenges and Objections to the Election":
. .. there is a dearth of evidence in the record
to show that the Respondent had knowledge of
[the three alleged discriminatees'] unionization
efforts at a time proximate to the layoff of
January 18. The record is barren of direct
evidence that the Company knew of the union
activities of Hamilton, Noble and Hendrix. Nor is
there any basis for inferring such information.
At two previous points in his decision, the Adminis-
trative Law Judge specifically found that the knowl-
edge of its minor supervisors as to the union activities
of these three employees must be imputed to
Respondent. The record clearly supports these earlier
findings. In this connection, we note that the
Administrative Law Judge's finding that Shirley
Ferguson specifically identified Hamilton, Noble,
and Hendrix as union instigators in conversation
with other employees was not excepted to by
Respondent. Accordingly, we do not adopt the
Administrative Law Judge's clearly conflicting and
erroneous finding that Respondent was unaware of
the union activities of the three alleged discrimina-
tees prior to their discharge. Nonetheless, as the
Administrative Law Judge found on the basis of
other credibility findings that the discharges were
motivated by economic considerations, we shall
adopt his recommendation that the allegations in the
complaint concerning the discharges be dismissed.
The Alleged Violations of Section 8(a)(3)
The consolidated complaint alleges that Joan
Hamilton, Margaret Noble, and Dorothy Hendrix
were discharged on January 18 because of their
union activity. Respondent contends in its defense
that it had no knowledge of any union activity by the
3 National Plywood, Inc, 172 NLRB 1285, 1286 at fn 3
4 Based on Ferguson 's threat of longer hours, Mutton's threat concern-
The Election of March 16
In view of Respondent's violations of Section
8(a)(1) occurring within the week before the elec-
tion,4 we adopt the Administrative Law Judge's
recommendation that the election be set aside and
shall direct that a new election be conducted.
mg overtime, Westfall's promise to employees of a wage increase, and
Byrd's interrogations about the employees' union activities
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Administrative Law Judge recommended that
the challenges to the ballots of Shirley Ferguson and
Dolores Mutton be sustained because of their status
as supervisors and we adopt this recommendation.5
The Administrative Law Judge failed to make a
specific finding as to whether Dwayne Yeager, whose
ballot also was challenged, was a supervisor. The
record shows that Yeager periodically substitutes for
Ferguson, whom we have found to be a supervisor.
However, the record does not indicate how regularly
or frequently Yeager acts in this capacity. We are
therefore unable, on the state of this record, to
determine his status. The Administrative Law Judge,
through apparent inadvertence, also failed to make a
recommendation regarding the challenged ballots of
Hamilton, Noble, and Hendrix. Since we have
adopted his conclusion that the discharges of these
individuals were not in violation of Section 8(a)(3),
we sustain the challenges to their ballots.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Carrollton Standard Printing Co., Carrollton, Ohio,
its officers , agents, successors , and assigns , shall take
the following action:
1. Cease and desist from:
(a) Interrogating employees as to their union
membership and activities , and those of their fellow
employees.
(b) Promising and intimating that wage increases
or other economic benefits might be granted if
employees vote against the Unions in order to
discourage their membership in, or activity on behalf
of, Tri-State District Joint Council , International
Printing Pressmen and Assistants ' Union of North
America, AFL-CIO; Bindery Workers Independent
Union ; or any other labor organization.
(c) Threatening employees with longer working
hours, more overtime , discharges , or closing of the
plant because of their activity on behalf of Tri-State
District Joint Council, International Printing Press-
men and Assistants ' Union of North America,
AFL-CIO; Bindery Workers Independent Union; or
any other labor organization.
(d) Creating the impression that the employees'
union or protected concerted activities were being
kept under surveillance.
(e) In any other manner interfering with , restrain-
ing, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its two plants in Canton, Ohio, copies of
the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional
Director for Region 8, 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 thereaf-
ter, 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.
(b) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found herein.
IT IS HEREBY FURTHER ORDERED that the election
held on March 16. 1973, in Case 8-RC-8919 be, and
it hereby is, set aside, and that said case is hereby
remanded to the Regional Director for Region 8 to
conduct a new election at such time as he deems that
the circumstances will permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
5 The Administrative Law Judge also recommended that the challenge to
the ballot of Rita Lewis be sustained We find this to be an inadvertent error
inasmuch as there is no evidence in the record that her ballot was
challenged We therefore do not adopt his recommendation in this respect
6 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees as to
their union membership and activities, and those
of their fellow employees.
WE RILL NOT promise, intimate or otherwise
indicate to our employees that economic benefits
will be granted to them in order to discourage
their membership in, or activity in behalf of, Tri-
State District Joint Council, International Print-
ing Pressmen and Assistants' Union of North
America, AFL-CIO, or Bindery Workers Inde-
pendent Union, or any other labor organization;
provided, however, that nothing herein shall be
construed as requiring us to rescind, abandon, or
CARROLLTON STANDARD PRINTING CO. 543
vary any economic benefits or any term or
condition of employment heretofor established.
WE WILL NOT threaten our employees with
longer working hours , more overtime , discharges,
or closing of the plant because of their activity on
behalf of Tri -State District Joint Council , Interna-
tional Printing Pressmen and Assistants ' Union of
North America , AFL-CIO, or Bindery Workers
Independent Union , or any other labor organiza-
tion.
WE WILL NOT engage in any acts which will
create in the minds of our employees the
impression that their union or protected concert-
ed activities are being kept under surveillance.
WE WILL NOT in any other manner interfere
with, restrain , or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
allegedly threatened certain employees with loss of their
jobs. Other supervisors allegedly promised its bindery
employees benefits to discourage union or concerted
activities. There are also additional allegations of the
complaint charging Respondent with having made promis-
es of benefit and having engaged in coercive interrogation
of certain employees. Respondent denied the commission
of the unfair labor practices alleged but admits allegations
of the complaint sufficient to support the assertion of
jurisdiction under current standards of the Board (inflow
of over $50,000 in the past calendar year). The answer
further admits that the Unions are labor organizations
within the meaning of Section 2(5) of the Act.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, and the
briefs submitted by the parties I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
CARROLLTON STANDARD
PRINTING CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Suite 1695, Anthony J. Celebrezze
Federal Building, 1240 E. 9th Street, Cleveland, Ohio
44199, Telephone 216-522-3715.
DECISION
STATEMENT OF THE CASE
BERNARD J . SEFF, Administrative Law Judge : This case
came on for hearing in Canton, Ohio, on July 31 through
August 2, 1973.1 It involves the Carrollton Standard
Printing Co . (hereinafter variously referred to as Respon-
dent or the Company) and Bindery Workers Independent
Union and Tri-State District Council , International Print-
ing Pressmen and Assistants ' Union of North America,
AFL-CIO (hereinafter referred to as the Bindery Workers
and the Pressmen respectively). It involves a consolidated
matter.2 The complaints allege that Respondent engaged in
violation of Section 8(a)(l) of the National Labor Rela-
tions Act by threats of reprisal committed by one Dolores
Mutton who allegedly told an employee that the length of
Respondent ' s workday would increase if the Pressmen
became the employee's bargaining agent. Mutton also
I All dates referred to took place in 1973 unless otherwise indicated
2 Cases 8-CA-7453.8-CA-7614, and 8-RC-8913 are the numbers of the
individual cases. The "R" case deals with certain objections to an election.
The Carrollton Standard Printing Co. is engaged in the
printing of mass mailings and tabloid insertions for
newspapers. The Company does repeat business on a
weekly basis for major accounts such as Kroger, Sears
Roebuck, and Montgomery Ward. Many of these mass
mailings involve 250,000 to 1 million copies and require
continuous press runs over several 8-hour shifts. The
Company's operations are located in two plants. Plant 1,
the Company's main plant, consists of a composition
department, plate making, camera and stripping depart-
ment, web press department, bindery, and mailing and
stitching department. Plant 2, the small plant, contains
smaller presses and offices for the newspaper which is
owned by the Company. The Company's press employees
are represented by the International Printing Pressmen and
Assistants' Union. The Company and the Pressmen's
Union concluded a contract covering the press department
employees in November 1972.
The Company's normal complement of employees
includes a group of printing pressmen who are not directly
involved in the instant case. The allegations of the
complaint concern only the bindery employees. These
employees, mostly girls, normally work three shifts. For the
most part the alleged unfair labor practices allegedly took
place during the third shift-from midnight to 8 a.m. There
is also a second shift which works from 4 p.m. until
midnight. The first shift works from 8 a.m. to 4 p.m.
Frequent references were made during the course of the
4-day hearing to technical terms which relate to the
operation of the bindery workers. One of the General
Counsel's witnesses, employee Rose Timlin, explained the
meaning of the nomenclature used in the plant as follows:
Well, jogging papers-we take them off the presses and
jog them on the table and stack them, and somebody
skids them, which means stacking them on a board
thing. They are addressed on what is called a wing
mailer.
The original charge in Case 8-CA-7614 was filed on April 5. An amended
charge in Case 8-CA-7614 was filed on April 25.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the presses are running there are ordinarily three
employees working at these machines. The Company has
three presses. Tin-din worked on the third shift before the
terminations took place which event occurred on January
18. After the terminations different hours of work were
established. Timlin worked from 4 p.m. to midnight plus
some overtime. After January 18 there were only two
shifts. The girls did not always work on the same presses.
In answer to a question on cross-examination as to how she
knew what press to work on Timhn replied, "Shirley
Ferguson made a schedule as to what presses we were to go
to, giving just the names of the girls and what press."
The Company claims that for economic reasons it laid
off and terminated approximately 40 employees on
January 18 including 29 employees in its bindery depart-
ment. The Company retained its 12 most able, capable,
and cooperative bindery employees.
The Company contends, among other things, that the
decision made to terminate and layoff a number of
employees was made at a time when the Company was not
aware of any union activity in the bindery department.
The General Counsel, in his brief, isolates the critical
issue in all the cases as being whether or not it can be
established that Shirley Ferguson, Dolores Mutton, and
Rita Lewis are supervisors within the meaning of the Act.
The General Counsel further summarizes the issues in this
proceeding as follows:
Whether Respondent discharged the employees named
in the complaint issued in Case No. 8-CA-7453
because of their union activities, sympathies and
desires in violation of Section 8(a)(3) of the Act?
Whether Respondent violated 8(a)(1) of the Act in the
various respects alleged in the original and amended
complaints?
Respondent, the General Counsel and the Pressmen's
Union are in agreement as to this summary and all take the
position that the issue as to whether or not the above-
named employees were in fact supervisors within the
meaning of the Act is a "gray area" concerning which
much of the hearing involved this problem.
The Factual Setting of the Case
The Company's normal complement of employees
consist of a group of punting pressmen who are not
directly involved in the instant case. The allegations of the
complaint concern only the bindery workers. These
employees, mostly girls, normally work three shifts. For the
most part the alleged unfair labor practices allegedly took
place during the third shift-from midnight to 8 a.m. There
is also a second shift the 4 p.m. to midnight shift and the
first shift works from 8 a.m. to 4 p.m.
Originally the Printing Pressmen's Union became the
representative of the pressroom operators and, after a
period of about 6 months of bargaining, Respondent
reached agreement with the Union on the terms of the
contract which was finally consummated between Respon-
dent and the Pressmen.
Initially certain employees in the bindery department
attempted to enlist the aid of the Pressmen 's Union in
helping them to organize the bindery. At first the Pressmen
declined to become involved in organizing these employ-
ees. Later , sometime around January 18, employee Timlin,
aided in varying degrees by employees Joan Hamilton,
Margaret Noble, Dorothy Hendrix, and Betty Huffman,
attempted to organize the bindery workers into what came
to be known as the Bindery Workers' Independent Union
and secured the services of George J. Anetakis who
became the attorney for the Independent Union.
Very little progress was made under the aegis of this
Independent Union. Consequently another approach was
made to the Pressmen who, this time , agreed to attempt to
organize the employees in its union and continued
Anetakis as counsel to the Pressmen.
Subsequently, on January 18, the Company laid off and
terminated 40 employees including 29 employees in the
bindery department. The permanent layoff of these
employees was described by the Company as being due to
economic necessity. Included in this number were Hamil-
ton, Hendrix, and Noble who are named by the General
Counsel as employees discharged because of the union
activities in violation of Section 8(a)(3) of the Act. The
complaint also sets forth a series of alleged independent
violations of Section 8(a)(1) of the Act allegedly committed
by Ferguson, Mutton, and Lewis all of whom, according to
the General Counsel , were supervisors within the meaning
of Section 2(11) of the Act and whose statements to various
employees are therefore attributable to the Company. The
statements Ferguson, Mutton , and Lewis made to a
number of employees, according to the General Counsel,
included threats of reprisals, promises of benefits, and
words which created the impression that the employees
were under surveillance by Respondent.
On March 16 an election was conducted by the NLRB
(Case 8-RC-8919), at which the Pressmen 's Union
intervened. Thirty-three ballots were cast of which the
Bindery Workers' Independent Union got no votes, the
Pressmen received 7 votes , 8 votes were for no union, and
there were 18 challenged ballots. Since the challenged
ballots were sufficient in number to affect the results of the
election , the Regional office directed that an investigation
take place concerning the challenged ballots . On May 21,
the Acting Regional Director issued his report on objec-
tions and challenges . In this report the Region recommend-
ed to the Board that the challenges to 13 ballots be
sustained, that the challenge to I ballot be overruled, and
that a hearing be held to resolve the issues raised by the
other challenges. These challenges concern the votes cast
by Hamilton, Noble, Hendrix, and Dwayne Yeager.
Thereafter , the subject matter of the challenges and
objections were consolidated into a single hearing includ-
ing Cases 8-RC-8919 , 8-CA-7614, and 8-CA-7453, all of
which were litigated before me.
It should be noted that the objections parallel the 8(a)(1)
allegations of the complaint and the disposition of all
matters encompassed within the complaints and the "R"
case will be determined infra in the instant decision.
Respondent's supervisory hierarchy is as follows: Glen
Brenneman , president ; Roger Hays , vice president and
sales manager ; Al Petrie, general manager ; Richard Byrd,
CARROLLTON STANDARD PRINTING CO.
plant superintendent ; Bruce Westfall, plant manager;
William Scharf, personnel manager ; Gary Brothers,
assistant production manager; and Ruth Hardgrove,
supervisor for the composition department.
The head of the Company's supervisory pyramid is Hays
who had assumed the responsibility of running the
Company because of Mr. Brenneman 's poor health.
11. THE COMPANY 'S FINANCIAL CONDITION
At the end of the year 1972 the Company was in
precarious financial condition. For its fiscal year ending
June 30, 1972, Respondent had suffered a loss of
approximately $128,000. From the months beginning July
1, 1972, the Company continued to experience losses. For
the 1-month period ending December 31, 1972, the
Company experienced a loss of approximately $42,000. To
substantiate its statements concerning Respondent 's finan-
cial condition the Company submitted a number of
exhibits which are included in the record.
On January 15, 1973, various company officials, Glen
Brenneman , Roger Hays, and Al Petrie , general manager,
met with the Company's accountants, the firm of Robert
Katz, to discuss the Company's financial condition. Mr.
Katz, who has been the Company's accountant for over 14
years and who has complete access of the Company's
financial records, suggested that unless drastic changes
were made the Company would be bankrupt in 3 months.
Mr. Katz also provided the Company with a letter to this
effect which is included in the record as Respondent's
Exhibit 1.
It was decided at this meeting that it would be necessary
to immediately reduce the Company's entire work force in
order to restore Respondent to a sound financial position.
Hays made this decision after consulting with Petrie, the
Company's general manager, who recommended that the
Company's work force and operations would have to be
reduced in order to restore Respondent to financial health.
Petrie was employed by the Company as general manager
on January 2, 1973. Prior to that time Petrie had been
executive vice president and general manager of the Art
Gravure Corporation of Ohio; and before that, market
research and advertising manager for the Cleveland Plain
Dealer. Mr. Hays considered Petrie to be "a knowledgea-
ble individual concerning the financial structure and
production control of this type of punting business." Prior
to his being officially employed by the Company on
January 2, Petrie had visited the Company on about 14
occasions and he reviewed the Company's bindery opera-
tions on each of these occasions. He had concluded that
the bindery operation was "overmanned." Petrie recom-
mended to Hays that the number of employees in the
bindery department be cut at least in half.
Respondent's brief continues as follows:
Hays and Westfall determined that the number of
employees in the bindery would be reduced from
approximately 40 to 12. Twelve bindery employees
would enable the company to run two presses on a two
shift basis, with three bindery employees assigned to
each press. Westfall, Scharf, Byrd and Brothers were
asked to select the twelve bindery employees who they
545
thought should be retained. They were asked to select
the individuals who they considered to be the most
willing, able, cooperative and physically capable
employees in the bindery. Westfall, Scharf, Byrd and
Brothers each selected and listed 12 individuals who
they felt were best qualified to do the required jobs.
Neither Hamilton, Hendrix, nor Margaret Noble were
named on any list as an employee to be retained.
The Company contends that in deciding which bindery
workers were to be retained there was no discussion of
who, among the retained employees, were adherents of or
sympathetic to labor organizations. The decision as to who
would be kept on as employees was not in any way
influenced by consideration of union activities. It is further
contended by the Company that at that time it did not
have any knowledge of organizational activities among the
bindery department workers.
As the result of this selective process the employees
whom Respondent chose to retain in its employ did not
include Hamilton, Hendrix, or Noble. They were notified
that their employment would be terminated as of January
18. The Company additionally contends that the employ-
ees were terminated rather than laid off because at the time
this action was taken there was no expectation that
Respondent would need additional bindery employees in
the foreseeable future. The Company did not want to
discourage those terminated individuals from seeking
employment elsewhere.
As a further manifestation of Respondent's determina-
tion to reduce its operating costs Hays decided to make
other changes to reduce costs and thus improve the
Company's financial condition. Layoffs and terminations
took place in other departments. For example three out of
four employees in the plate making department were
terminated. Furthermore all salaried employees had their
salaries cut by 10 percent including the salary of Hays.
Work assignments were changed . Management and Super-
visory employees including Hays, Westfall, Petrie, Hard-
grove, Gary Phillips, and Richard Byrd performed, in
addition to their regular duties, bindery work usually in the
evening interval between the regular shifts.
As a consequence of the stringent economies instituted
by the Respondent it found its financial condition
substantially improved and shortly thereafter Respondent
was able to return to three shifts and began hiring
additional employees around mid-April 1973.
The Company Contends it was not Aware of any
Union Activity in the Bindery Department
According to the brief submitted by Respondent,
... the Pressmen's Union was elected to represent
the Company's pressroom employees in April 1972 and
the Pressmen's Union concluded negotiations with the
Company and signed a contract in November 1972.
During the time when negotiations were being conduct-
ed between the Company and the Pressmen's Union, in
October and November of 1972, there was evidently
some general discussion concerning labor unions
among some employees in the bindery, and there was
some discussion of unions between the pressroom
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers and bindery employees. Some employees even
appeared to have sought authorization cards from the
Pressmen's Union but were never provided with such
cards. No authorization cards for any union were
distributed prior to January 18, 1973.
The bindery employees did not discuss their inten-
tion to organize with management and management
claims it was unaware of any union or organizational
activity.
Joan Hamilton, who claims to be the founder of the
Bindery Workers Independent Union of Carrollton, the
Petitioner in 8-RC-8919, admits that she did not
organize the Bindery Workers Union until after
January 18. Quite naturally, no other employee had
heard of the Bindery Workers Union prior to January
18 and one employee, Helen Spahr, says that she never
heard of this union at any time.
The Company claims it first became aware of
organizational or concerted activities among its bindery
employees when it received a letter from Frank Cope, a
local attorney, dated January 19, 1973. The Company
had no knowledge of the Bindery Workers Union, nor
of a demand for recognition from that Union, until it
received a letter from George Anetakis. attorney for the
Bindery Workers Union, dated January 24, 1973. The
petition for election in 8-RC-8919 was filed by the
Bindery Workers Union on January 26, 1973.
The proponents of union representation in the
bindery were variously described to include, at one
time or another, Betty Huffman, Barbara Gray, Helen
Spahr, Joan Hamilton, Dorothy Hendrix, Margaret
Noble, Rose Timlm, and Jerrilyn Budinsky. Noble and
Hendrix state that they engaged in no activity other
than to ask the Pressmen's Union for authorization
cards. Of these individuals, Gray, Hamilton, Noble,
Huffman, and Hendrix were terminated as of January
18, 1973. Spahr is still employed in the Company's
bindery department. Timlin voluntarily quit as of
March 23, 1973, and Budinsky voluntarily quit as of
May 6, 1973.
The Supervisory Issue
The complaint alleges that certain independent 8(a)(1)
violations of the Act were committed by Shirley Ferguson,
Dolores Mutton, and Rita Lewis, all of whom were
described by the General Counsel as minor supervisors.
Respondent takes the position that during the critical
periods involved in this case the three employees named
supra were leadwomen and not supervisors. The threshold
question as to whether the individuals named above were
supervisors whose statements to various employees are
attributable to the Respondent is crucial to the resolution
of the problems in the instant case.
The Act in Section 2(11) sets forth with specificity
certain indicia which must be applied and evaluated to
determine the answer to this cardinal question. First off it
should be stated that Section 2(11) is written in the
alternative. Thus, the possession and exercise of any one of
the powers enunciated in the Act is sufficient to constitute
such an employee a supervisor . Furthermore , this supervi-
sory issue has been extensively adjudicated before both the
Board and the courts.
The answer to the question posed in this matter depends
on the facts adduced on the record. Unless the citation of
cases to this admitted "gray area" is analogous on the facts
to the case at bar such citations which can be distinguished
on the facts are not apposite . It should also be emphasized
that many cases have been decided on both sides of this
issue . Therefore the authorities so generously cited in both
the General Counsel 's and Respondent's briefs must be
weighed carefully in the light of the facts proven on the
record.
The General Counsel's brief contains a succinct state-
ment on the overall issues as follows:
Testimony of General Counsel 's witnesses on the
issue is generally uniform as to the description of the
duties of the alleged supervisors . They prepare daily
production work schedules and assign employees to
various jobs in Respondent's bindery based on their
independent knowledge of an individual's capability.
They compile daily production logs and instruct and
train new and inexperienced employees in various
departmental operations. They independently have
relieved and replaced employees because of illness or
other personal reasons and have made instantaneous
decisions allowing employees to leave early prior to the
normal end of a shift. They have excused shifts early
due to lack of work. They are responsible for
maintaining discipline in their work area and as
evidence of that responsibility they have compliment-
ed, criticized, and reprimanded employees. They can
suspend operation of machinery which has failed to
perform properly. All are paid substantially more than
regular bindery workers.
It is unrefuted that Richard Byrd , overall bindery
supervisor , represented to employees that Ferguson was
their "boss" at a meeting which took place a week before
the March 16 election and employees so regarded her.
Employees reporting to their shifts were informed by
Personnel Manager Scharf that Ferguson was a supervisor.
Dwayne Yeager, whom the Respondent designates as a
leadman , admitted that he regards Ferguson as his
supervisor . Moreover , if Ferguson were found not to be a
supervisor it would mean her shift would be without any
supervision for much of the working time . Ferguson
maintained tight discipline which was independent of the
instructions of Personnel Manager Scharf. Employees
called Ferguson when they couldn 't come to work and one
called her when she quit . In October 1972, Ferguson
informed an employee she had the power to hire and fire
and insinuated she could get them replaced if necessary.
Ferguson's own testimony on her capacity was contradic-
tory, evasive , and less than credible . She first claimed that
she was always just a leadwoman. She admitted she
independently scheduled employees , relieved and rotated
them , completed production logs, disciplined employees,
and counseled employees with their problems . She claimed
in direct examination there was no change in her status and
responsibilities before or after the January 18 layoff.
CARROLLTON STANDARD PRINTING CO.
However, after being confronted by information contained
in an affidavit she had given Board agents she admitted she
supervised her shift . She also admitted that before January
18, she effectively recommended discharge of employees,
evaluated employees , recommended raises, disciplined
employees even to the point of sending them home,
handled and adjusted grievances, and had to "babysit"
employees . She denied the assertions that she had never
possessed certain indicia of supervisory authority-asser-
tions contained in an affidavit presented by Respondent to
the Region which she unrebuttedly claimed never to have
read and which Personnel Manager Scharf presented her to
sign in blank . Ferguson testified she is responsible for the
bindery employees. There was no change in Ferguson's
status after January 18, 1973 and employees who worked
under her direction before or after January 18, testified
they noticed no change-they all felt she was and is a
supervisor.
On the other hand Respondent claimed at the hearing
and in its brief that Dolores Mutton , Shirley Ferguson, and
Dwayne Yeager were not supervisors at any time during
the critical period involved in this case and the Company
does not devote any special attention to the status of Rita
Lewis.
Respondent presented testimony and argument at the
hearing to the following effect : Dick Byrd, also represented
to employees at a Company meeting just prior to the
election on March 16 that Dolores Mutton was a
supervisor and the person to contact first for any orders.
When employee Lisa Ulman was hired Byrd told her
Mutton was supervisor of the day shift Mutton offered to
change an employee shift . Mutton, while acting as
Respondent's observer on the day of the March 16
election , gave employees permission , without consulting
anyone , to leave early . Daily absentee forms were always
handed to Mutton . Mutton , after the election , took an
employee off a press and in effect threatened her with
discharge . Apparently Mutton mysteriously lost her super-
visory capacity only when National Labor Relations Board
investigators appeared at Respondent 's facilities. Personnel
Manager Scharf admitted that at one time Mutton was a
supervisor but asserted employees were notified by bulletin
of her reduction in status in June 1972 . However,
testimony of the employees that she continued to be
characterized by her supervisors as a supervisor remains
unrebutted . Mutton admitted that employees continued to
regard her as a supervisor and explained the fact by
claiming that she was a "bossy person." Furthermore,
Mutton admitted that she really doesn 't know who her
supervisor presently is . In order, no doubt, to create the
appearance that Mutton 's scheduling of employees is
routine and can be done by others, Dwayne Yeager asked
employee Lisa Ulman to make out a work schedule on
August 3, the day after she first testified at the hearing in
this case . That schedule was presented as Respondent's
Exhibit 13. Through the witness, Plant Manager Westfall,
he represented the schedule as having been made out
independently by Ulman-but Ulman patterned it accord-
ing to the information left by the vacationing Mutton.
Rita Lewis admitted she attended supervisory meetings
in November, 1972. She evaluated employees after Novem-
547
ber 1972, and at that time substituted for her full-time
supervisor , Joy McCartney , whom she shortly thereafter
replaced. Where an employee completely takes over the
supervisory duties of another, as is the case here, he or she
is regarded as a supervisor under the Act . Birmingham
Fabricating Co., 140 NLRB 640; Illinois Power Co., 155
NLRB 1097 . Lewis testified at the time she substituted for
McCartney she was an assistant supervisor . She contended
her duties were the same now as in November 1972 and
admits she regards herself and the employees regard her as a
supervisor. She is the only individual on her shift who does
responsibly supervise bindery employees.
Scharf, personnel manager, testified that Mutton, Yeag-
er, Lewis, and Ferguson were all lead persons with
basically the same authority . He conceded they functioned
in a "gray area" of supervisory status , and possessed "very
definite management responsibilities." He however main-
tained Byrd was the bindery supervisor and worked 18
hours a day and Westfall, plant manager , maintained Byrd
was on call 24 hours a day. Testimony of the General
Counsel's witnesses clearly indicates that Byrd 's presence
on all shifts was sporadic and his exercise of supervisory
authority over bindery employees was insignificant.
The General Counsel then quotes Section 2(11) of the
Act and its definition of supervisor as being:
any individual having authority , in the interest of
the employer, to hire, transfer, suspend , layoff, recall,
promote , discharge, assign, reward , or discipline other
employees , or responsibly to direct them, or to adjust
their grievances, or effectively recommend such action,
if in connection with the foregoing the exercise of such
authority is not merely routine or clerical in nature, but
requires the use of independent judgment.
The existence of any one of the indicia listed in
Section 2(11) of the Act is sufficient to support a
finding that the one possessing it is a supervisor.
Newspaper Guild Erie Newspaper Guild, Local 187, 196
NLRB 1121; Ohio Power Co. v. N.L.R.B., 76 F.2d 385
(C.A. 6), cert. denied 338 U.S. 899.
Leadmen who grant time off (United States Gypsum
Company, 120 NLRB 906) assign employees to differ-
ent operations based upon observation and knowledge
of their individual capabilities (Birmingham Fabricating
Co., 140 NLRB 640), discipline employees (Little Rock
Hardboard Co., 140 NLRB 164) and/or adjust griev-
ances (Lee-Rowan Mfg. Co., 129 NLRB 980) have been
found to be supervisors . The individuals at issue in this
case clearly possess and have exercised many of these
indicia of supervisory capacity . Moreover, they have
exercised independent judgment in directing other
employees and have trained employees . It can be
concluded that these individuals "responsibly direct"
other employees . Moreover, as in this case , the fact that
individuals possess ostensible, apparent supervisory
authority because their supervisors represented them to
other employees as being supervisors and those
employees regard those individuals as supervisors,
leads to the conclusion that they are supervisors. Bama
Co., 145 NLRB 1141; Elliott-Williams Co., 143 NLRB
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
811; General Mercantile & Hardware Co, 191 NLRB
20.
s s s •
The General Counsel contends that Respondent
adopted a policy of characterizing Ferguson, Mutton
and Lewis as nonsupervisory for its dealings with the
Board-while allowing those individuals to retain
apparent supervisory status over its employees. These
individuals are and should be found to be supervisors .3
Respondent takes the position that Dolores Mutton has
not been employed as a supervisor since June 5, 1972, and
was not a supervisor during the period from January 18,
1973, through March 16, 1973, the date of the election.
Dolores Mutton has been employed in the Company's
bindery department for 10,years and is the most senior and
most experienced employee in the bindery department. She
has always worked on the day or first shift.
For a period of approximately 3 or 4 years prior to June
5, 1972, Mutton was designated as a supervisor in the
bindery department. At her own request, for reasons of
health, Mutton was relieved of her responsibilities as a
supervisor as of June 5, 1972 (Resp. Exh. 11), and she has
not been reappointed to a supervisory position since that
time . As of June 5, 1972, David Yeager replaced Mutton as
supervisor, and Yeager held that position until January 18,
1973, at which time Richard Byrd took over all supervisory
responsibilities in the bindery.
Respondent contends that during the period January 18,
1973, until the election on March 16, Mrs. Mutton was not
employed as a supervisor and she worked full time as a
bindery worker spending 99 percent of her time doing
normal production work. Mutton' s name was included on
the assignment list along with the names of the other
bindery workers on her shift and she performed the same
tasks as the other bindery employees. In addition to regular
production work, Dolores Mutton did make up the daily
assignment list4 and made entries in the production log.5
Also, in addition to doing regular production work like
other senior and experienced employees, Mutton helped
train new employees. New employees learn the job through
on-the-job training.
Respondent further contends that since June 5, 1972,
including the period January 18, 1973, through March 16,
1973, Mutton has not had authority to hire other
employees, fire or otherwise discipline other employees,
3 Respondent maintained that Dwayne Yeager occupied the same
position with similar responsibilities as the supervisors discussed herein and
testimony of General Counsel's witnesses seems to confirm this fact Yeager
maintained he had "independence of action" and reported only to Westfall
It is not crucial to its case, however, for General Counsel to take a position
on Yeager's true capacity
4 An assignment list is posted daily for each shift in the bindery,
according to which each employee is assigned to a press for that day Upon
reporting to work , an employee checks the assignment list and then goes to
the press to which he is assigned As for company policy, bindery employees
are usually rotated between presses on a daily basis, and a mixture of
experienced employees work at each press The most senior and experienced
employees prepare the work assignment lists Resp Exh 13 is an example of
a typical assignment list such as is posted every day
S The production log is a brief record which indicates which jobs have
been run on each shift and whether or not sample copies have been pulled
The most senior and experienced employees make the entries in the log.
promote other employees, settle grievances, or tell other
employees to leave work early. She has not had authority
to schedule overtime or call employees to work early, nor
has she been consulted in regard to any management
decisions. Mutton was not consulted with regard to the
decision as to which bindery employees would be terrrunat-
ed on January 18, 1973. Since June 5, 1972, Mutton has not
attended any management meetings nor has she made
evaluations of other employees.
As the most senior and experienced bindery employee,
Mutton is paid an hourly rate of $3.17 (regular employees
earn on the average about $2 per hour), but does not
receive different fringe benefits than the other bindery
employees. Mutton punches a timeclock, is paid overtime
rates for work worked in excess of 40 hours in a week, and
uses the rear parking lot (supervisory employees use the
front parking lot) .6
Shirley Ferguson was not a supervisor during the period
January 18, 1973, through March 16, 1973, the date of the
election.
Ferguson has been employed in the Company's bindery
department for approximately 6-1/2 years. She is presently
a lead employee on the midnight shift, and was somewhat
a lead employee on the midnight shift during the period
January 18, 1973, through the date of the election, March
16, 1973, even though, as of January 22, 1973, she had been
relieved of these responsibilities.
Ferguson is an experienced bindery employee who
spends approximately 99 percent of her time doing normal
production work. Like other bindery employees she works
on the presses and the bindery machinery, including the
stitcher, the Cheshira, and the cutter. In addition to normal
production work during the period preceding the election
on March 16, Shirley Ferguson made up the daily
assignment sheet for the midnight shift, and posted entries
in the production log. As a senior and experienced
employee Ferguson would also help train new employees.7
Since January 22, 1973, Shirley Ferguson has not had
authority to hire other employees, fire other employees,
promote or raise the pay of other employees, schedule
overtime, or evaluate other employees.8 Ferguson has not
attended any management meetings for at least a year and
she was not consulted in regard to which bindery
employees were terminated on January 18, 1973.
As a senior and experienced employee, Shirley Ferguson
is paid an hourly rate of $2.75, but receives the same fringe
benefits as the other bindery employees. Ferguson punches
Resp . Exh 14 is an example of typical entries in the production log
6 Prior to June 5, 1972, Dolores Mutton had a number of responsibilities
as a supervisor She filled out evaluation reports on other bindery
employees, disciplined other employees, observed the performance of other
employees, recommended hiring new employees, and attended management
meetings. Mutton has performed none of these functions since June 1972.
r Shirley Ferguson followed the established company policy of rotating
employees between the presses so that the same employees would not be
stuck at the more difficult jobs, and of keeping a mixture of experienced and
inexperienced employees at each press She could not deviate from this
policy
8 Though it could hardly be called discipline , Ferguson has admonished
other bindery employees for "making too much noise or acting up" She
never told an employee to punch out early and go home . During the period
poor to the election , disciplinary problems were the responsibility of
Richard Byrd and Bruce Westfall
Ferguson has also on occasions sent sick employees home
CARROLLTON STANDARD PRINTING CO.
the timeclock and is paid overtime for hours worked in
excess of 40 in a week.
Respondent devotes about a page in his brief to discuss
Dwayne Yeager and points out that Yeager has been
employed in the Company's bindery department for a little
over 2 years. His work in this department concerned itself
with the duties of a machine operator. At the time of the
hearing Yeager was employed on the day shift but during
the period January 18, 1973, through approximately April
16, 1973, he worked on the midnight shift.
During the period January 18, 1973, through mid-April
1973 Yeager's principal duties were bundling, tying, and
stacking skids in the bindery department.
Since January 18, 1973, Yeager has not had authority to
hire other employees, fire or otherwise discipline other
employees, promote other employees, or otherwise act on
behalf of management. Since January 18, 1973, he has not
excused other employees early. Since January 18, Yeager
has not attended any management meetings, and he was
not consulted concerning the decision as to which bindery
employees were to be terminated on January 18.9
The Company continued with the statement that while
working on the night shift during the period between
January 18 and April 16, in the absence of Shirley
Ferguson, Yeager did on perhaps one or two occasions
post an assignment sheet and make entries in the
production log.
Yeager, as a skilled machine operator, is paid an hourly
rate of $3.03. He also punches a timeclock, receives the
same fringe benefits as other bindery employees, is paid
overtime for hours worked in excess of 40 hours in a week,
and normally uses the rear parking lot, except he was
allowed to use the front lot while working on the night
shift. Yeager was paid an hourly rate of $2.40 at the time of
the election.
I have taken the trouble to quote in extenso from the
briefs of both the General Counsel and Respondent
because the information contained therein bears directly
on the crucial issue of the supervisory status of the
employees in question. This material also brings into sharp
focus the conflicting positions of the General Counsel and
Respondent and points out their differing contentions on
this vital issue.
So far as the testimony in the record of the General
Counsel's witnesses on the issue of supervisory status goes
what one employee, Rose Timlin, testified to on this
subject, with minor variations, is typical of the testimony of
the other General Counsel's witnesses.
The following is an excerpt from the testimony of Timlin
when she was testifying on direct examination:
Q. In your experience, if an employee who had run
a machine-I imagine you did have occasion to
observe employees running machines would they go to
Shirley Ferguson if a machine broke down?
A. Well, something like the tier or cutter they
would, yes.
Q. Were you ever told you weren't doing a good
job by anybody?
A. No.
9 Although Dwayne Yeager may have had some supervisory responsibili-
ty for the second shift prior to January 18. 1973, he had no such
549
Q. Were you ever complimented in any way about
your work?
A. Once in a while.
Q. By whom
A. Shirley Ferguson complimented me once.
Q. Before the layoff, how much time would you
estimate Shirley spent, to your knowledge, in supervis-
ing the department that you worked in?
Out of 100 percent of the time how much would you
say she spent
A. Well, a lot of time she worked on the press-
Q. This is before the layoff?
A. Yes.
Q. As far as you knew, could she affectively
recommend hiring and firing?
A. She told me at one time she recommended.
Q. Was it in December or November or when?
Was it in the winter of 1972?
A. Well, just about a couple of weeks before the
voting for the Union, we were advised that Shirley was
our supervisor.
Q. Who advised you this?
A. Dick Byrd.
Q. Dick Byrd advised you that Shirley was your
supervisor?
A. Yes.
Q. You say this was a couple of weeks before the
election on March 16?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Yes.
Do you recall where this took place?
Right in the Bindery.
Were you there?
Yes.
Were there other people there?
Yes, sir. The girls in my shift were there.
Do you recall exactly what he said or approxi-
mately what he said again?
A. He was wondering who was our actual boss,
and he told us we was to do what Shirley told us to do
and that when she wasn't there Dwayne Yeager was
there.
Q. He told you if you weren 't to follow Shirley's
orders, you were to follow Dwayne's orders?
A. Yes.
Q. Getting to Dwayne Yeager-by the way, al-
though it is in the pleadings , I believe, what was Mr.
Byrd 's title , do you recall? What did you consider him
as, if you can't recall his title?
A. He was over the Bindery girls and plus he had
to do with the mailing and the Mailing Department.
Q. How often was Shirley alone on her shift, most
of the time?
A. Yes.
Q. Was Dwayne Yeager ever on her shift.
A. Yes.
Q. After the layoff of January 18?
A. Yes.
Q. But before the election?
A. Yes.
responsibility subsequent to that time. The Company offered proof of the
above conclusion in its Exh. 12
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you ever look to Dwayne for any orders?
A. Yes.
Q. You did?
Did you ever look to Dwayne to excuse you?
A. Not unless Shirley was not there.
Q. In other words, Dwayne substituted for Shirley
when Shirley wasn't there?
A. Yes.
Q. To your knowledge, did Dwayne have similar
powers to Shirley when Shirley wasn't there? In other
words, did he have the same authority when Shirley
wasn't there that Shirley had when she was there?
A. To tell us what to do, yes. As far as hiring and
firing, I don't know.
Q. Did he, in effect, direct your work? Did he tell
you what to do on those occasions when he substitut-
ed?
A. Yes.
Q. Did he ever when he was in charge excuse the
shift early?
A. Not unless there was nothing to do.
Q. But he did when there was nothing to do?
A. Yes, unless we just cleaned up or something.
Q. Did it appear from your observing his demeanor
at work that he had any privies [priviledges] that you
didn't have as an employee?
A. Other than to tell us what to do, no.
Q.
A.
Q.
A.
Q.
A.
Q.
front?
Where did you park your car?
In-back.
Where did he park his car?
In front.
Who parked their cars in front?
The bosses, like the Vice-President Roger Hays.
Would the ordinary employees park their car in
A. No.
Q. With respect to overtime whom did you look to
to tell you to work or not to work overtime?
A. Shirley Ferguson.
Q. Did Dwayne ever work overtime on his own?
A. Yes.
Q• On his own without Shirley being present?
A. Well, he worked over if he was asked to work
over.
Q. Did he ever, to your knowledge, make his own
decision to work over?
A. Not that I know of.
Q. How about Shirley? Where does she park her
car?
A. In back.
Q. Were any employees ever transferred from any
other department into the Bindery Department after
the layoff?
A. They occasionally worked in the back when we
needed the girls.
Q. On the last day that you worked there, was
Shirley Ferguson your supervisor?
A. Yes.
Q. Did you observe Shirley making any independ-
ent decision on how work was to be done in the
department ; in other words , on her own , making a
decision on how work was to be done?
A. She always got the things off the Bargain
Hunter and decided-the paper how you do them,
what goes into what.
Q. Did she ever decide what jobs were to be
completed?
A. Well, if the press was down or something, she
always had us address.
JUDGE SEFF : F don't understand that answer. She
had the girls ' address-you mean, so she could call
them and tell them not to come in or give them
instructions? I don 't understand the answer.
A. I mean , like, if we was working on something
and some papers had to be addressed and had to be
out, she would have us address them.
JUDGE SEFF: She would establish priority on what
you were to do, which things had to be done first?
A. Yes.
JUDGE SEFF: In all the time that you worked, were
you always on the night shift from 12 midnight to 8
a.m.?
A. Unless business was slow, and then we would go
on afternoons.
Q. Was the largest part of your working life during
the night shift?
A. Yes.
Q. And during that entire time , were there ever any
other supervisors in the plant besides Ferguson and
Yeager?
A. Not very often.
Q. I don't mean to characterize either of them by
my question , but I want to know if Hays , Westfall,
Scharf, or Byrd were around during the night shift on a
regular basis?
A. Very seldom.
Q. For the most part it was Ferguson you looked
to?
A. Yes.
Q. And, if it was not Ferguson, it was Yeager?
A. Yes.
Q. And what were the hours of the third shift?
A. Midnight to 8 in the morning.
Q. After the terminations of January 18th, were
there different hours?
A.
Q.
A.
Q.
A.
Q.
that correct?
A. Yes, I think so.
Q. Did you always work on the same presses?
A. No, I worked different presses.
Q. How did you know what press to work on?
A. Shirley Ferguson made a schedule as to what
presses we were to go to, giving just the names of the
girls on what press.
Yes.
And what were those hours?
I worked from 4 to 12 plus some overtime.
After January 18 were there only two shifts?
Yes.
But before January 18 there were three shifts; is
CARROLLTON STANDARD PRINTING CO.
Q. Lets take the time after January 16 after the
termination of the number of employees, how many
Bindery Workers were there on your shift?
A. Six girls.
Q. And Shirley Ferguson assigned the six girls
what press they were suppose to work?
A. Yes.
Q.
A.
Q.
No. 2
girls?
A. Yes.
Q.
sheet?
By putting a hst on the bulletin board?
Yes.
In other words they had press No. 1 and press
and press No. 3 and at each press they had three
Was there anything else on that assignment
551
Q. Would you say on a normal day you would
work on the press.
A. Yes.
Q. If it wasn't running what would you do?
A. Address them or do routes.
Q. When the press wasn't running , would you ever
just go over and do the addressing?
A. Yes Shirley Ferguson would tell me.
Q. But you never went on your own?
A. No, sir, unless I had addressed them before.
Q. Did anybody else tell you?
A. No.
Q. Did Shirley jog papers in the skid?
A. Yes.
Q. Did she do the same things you did?
A. Yes.
Q. Did she do the same things other girls did?
A. Yes.
Q. Did she do the same things?
A. If she was needed on the press, she helped on
the press if not, she made a schedule for the next day or
filled out a book.
Q. How long would it take her to fill out a book?
A. It just depended on how much we done on that
night.
Q. And how long, would you say it took her?
A. About 10 or 15 minutes.
Q. Did you ever see her making the assignment or
writing up this little assignment list?
A. Yes.
Q. How much time did it take her?
A. A few minutes.
Q. Five or 10 minutes?
A. Yes.
It appears that no useful purpose would be served by
further quotations from the testimony in the record of the
other witnesses who testified for the General Counsel with
respect to the issue of supervisory status . Suffice it to say
that employees Barbara Gray, Betty Huffman, Jerilyn
Budinsky and Violet Pyles also testified on this subject
matter and while the testimony of these witnesses varies
somewhat, in the main, it is cumulative and parallel to the
testimony of Timlin.
Timlin impressed me as a forthright and honest witness,
did not contradict herself on any important matters while
she was cross-examined and in general impressed me as a
credible witness. I credit her testimony and find that
Ferguson did perform clearly supervisory duties albeit of a
minor nature before the layoff of January 18 and after this
date.
It seems clear that she operated in the role of a
supervisor especially in discharging her duties of assigning
work to the girls to whom she was responsible. She also
rotated workers from one job to another as the situation
may have required. Her duties were such that she in effect
was the only supervisor during the night shift. Her work on
a day to day basis falls clearly within the language of
Section 2(11) and I so find.
Parenthetically I also find that the challenge to her vote
in the NLRB election on the ground that she is a
supervisor is sustained. More will be said about the
A. Not usually.
Q. Was one press easier to work on?
A. They were all similar.
Q. Is one press faster; in other words, did the
material of the finished product come off faster than
the others?
A. Yes the date liner.
Q. And that press is considered harder to work on?
A. Yes.
Q. And is it true that girls were rotated between the
presses?
A. Yes.
Q. Is it also true that the Company tried to
maintain a mixture of experienced people on the
presses?
A. They mixed them around.
Q. You say they rotated between the presses. If you
were working on a fast press the day before, would you
have a good idea you would be working on a slow press
the next day?
A. Sometimes 1 worked on the same press two
days.
Q. When you came into work you punched the
timeclock?
A. Yes.
Q. What then?
A. I put my lunch on the table, hung up my coat,
and went to the press.
Q. Would you look at the assignment sheet?
A.
Q.
A.
Q.
Yes.
And then go to the press?
Yes.
Would Shirley come to you and give you
instructions?
A. Not unless she had someone take my place.
Q. But when you came in to work, all you did was
look at the assignment sheet and go to the press?
A. Yes.
Q. Did you know what to do then?
A. Yes.
Q. Did everyone know?
A. Yes.
Q. Would you say the work was of a routine
nature? Were you doing the same thing day after day?
A. Yes.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections to the election and the challenges in that part of
this decision infra which will be set forth in a separate
section under an appropriate title. On reaching the decision
on this aspect of the case I must reject Respondent's
argument that all the employees who they chose to call
"leadwomen" performed solely routine clerical duties with
respect to making entries in the log and preparing a
schedule of assignments and otherwise performed the same
work as the other employees which, in the opinion of the
Employer, made of them merely leadwomen without
supervisory authority or responsibilities.
If further amplification of the supervisory status of
Ferguson is needed it derives from the fact that Ferguson
was the person in charge of the night shift which covers the
hours from 12 midnight to 8 a.m. It is not refuted that
Ferguson was the sole person in the plant during these
hours. It is inevitable that on a night-to-night basis many
problems must necessarily have arisen which required
answers during this time. It does not seem reasonable to
me that Ferguson could have operated in this capacity
without exercising supervisory authority. She not only
assigned the employees to their various jobs, she rotated
them; she permitted employees who requested time off
because of personal business or because they were ill; she
exercised this authority without reference to securing
authorization from those supervisors higher up on the
supervisory ladder. While the Company contends that the
work done in the bindery department was of a routine
nature and the employees did not need supervision I find it
impossible to credit the Company's contention that the
employees needed no supervision because their fobs were
simple. The Company further explained that Dick Byrd
worked approximately 18 hours a day and was available on
call at any time of the day or night. When Ferguson
exercised the authority to permit employees to leave or in
instances where the work ran out and she permitted the
entire shift to leave the plant such decisions were made by
her on the spot. There is ample testimony in the record to
support the conclusion that the employees on the night
shift looked up to Ferguson as their boss and she indeed
acted as a boss.
With respect to Dolores Mutton it should be remarked
that, inter aka, Dick Byrd represented to employees at a
meeting shortly, before the election on March 16 that the
person the employees should speak to in the event they had
any problems was Mutton. She was described by Byrd to
the assembled employees as a supervisor and the person to
be contacted first for any orders. The General Counsel
points out in his brief "when employee Lisa Ulman was
hired Byrd told her Mutton was the supervisor of the day
shift." This conclusion is borne out by the following
colloquy which appears in the record and it derives from
the testimony of Budinsky. At one point during recross-
examination by Respondent's counsel Budinsky was asked
what she understood that it meant if someone was called a
supervisor. In other words what distinguishes a supervisor
from a regular bindery worker, her answer was:
It is somebody that directs the working force; in other
words, somebody who tells me specifically what jobs to
go to, what to do, and also, if I have personal problems
or if there are times I need off or I don't know what to
do, I have to have somebody to look up to to go to.
Q. Did anybody ever tell you that Dolores Mutton
had the authority to fire anybody?
A. No sir not that I can recall other than when she
told me that I can get fired for this and that.
Q. What was that?
A. Because of the fact I mentioned the Union one
time and because of my conversation with one
particular gentleman, and also it comes back to my
mind that at one time she did call me- I believe this
was right after I started on day shift and I was having
some difficulties at home with my children and my
husband trying to get me to switch shifts and my
husband being disabled, and I never said anything to
anybody because one particular girl, Sandy McNutt,
told Dolores that I was having problems.
Now, this was after the layoff, and it seems to me it
was the beginning of February. She called me over off
the press, and she said "If you are having trouble at
home, we can change your shift for you and you don't
have to worry about it."
s s r s :
Q. You say on the occasions when you asked for
time off, you went to Dick Byrd?
A. Yes, other than this which just came back to me
here, but she came to me.
Q. Because someone else mentioned the problem is
that your interpretation?
A. Yes.
Q. You say that the other girls went to Dolores?
A. Yes.
Q. Who went to Dolores?
A. Sandy McNutt had gone to Dolores.
Q. Did you hear the conversation?
A. Yes. I can remember one time she had to go
home early. Her husband had to work over and she
didn't have a babysitter.
Q. Did you observe this?
A. I was standing right there. I believe it was the 5
unit.
Q. Was Dolores on the press then?
A. Yes I believe she was.
Q. And was Sandy McNutt also working the press?
A. Yes.
Q. And Sandy McNutt asked Dolores to go home?
A. Yes first of all, Sandy was called to the
telephone and came out and Dolores let her go home.
• t • i i
Q. (By Mr. Fineberg-Re-direct examination)
Would you describe the jobs of Mutton and Ferguson
as being similar or the same?
A. I worked under Ferguson for 3 days, but, yes, I
felt she had the same jobs.
Q. How about Yeager?
A. Yes, but I think there was a little distinction
after the layoff I would classify it myself as under
Shirley Ferguson and at times when he was by himself,
CARROLLTON STANDARD PRINTING CO.
like if he worked over in another shift-like on one
particular Saturday, March 10, before the election, he
worked the cheshire machine where he would get direct
orders.
Q. Do you recall who was the observer at the
election for the Pressmen 's Union?
A. Yes.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
And who was that?
It was Bob Boylan.
(By Mr. Fineberg) You said Bob Boylan?
Yes.
Was any other observers sitting at the table?
Yes.
Who was that?
Dolores Mutton. She was the Company's
(observer).
Q. (By ME. Fineberg) Did you ever happen to
overhear anyone ask to be excused the day of the
election- ask Dolores Mutton to be excused while you
were near the election table?
A. The day of the election.
Q. The day of the election.
A. Oh, yes I did it comes back to me. I believe that
Violet Pyles.
Q. Do you remember what was said?
A. They wanted to know if they could punch out
then and she said they could.
Q. This was after the election?
A. Exactly, the day of the election, yes, sir.
JUDGE SEFF: Was it during the election?
THE WITNESS. Yes, it was-I believe the election was
going on, yes, sir, because it was 4 p.m.-I really can't
tell what the time the election was over-and I
remember Violet coming across the room because that
was an upsettmg day for me.
There was some exchange of remarks which took place
between the General Counsel and Respondent's attorney
in an effort to establish what the hours of the election were.
Company counsel finally stipulated that the election took
place between 3 and 4:30 p.m.
Q. (By Mr. Howe on recross-examination) With
respect to the last incident which was brought up
concerning Violet Pyles, did you actually overhear
that?
A. Yes. It lust come back to me right now.
Q. You did overhear, or you believe you did?
A. I did I was standing-there is three tables-I
was standing at the end of one. I don't know if I should
say this, but Violet Pyles is generally loud. She said
"Dolores, can we punch out now?"
In the continuation of this interrogation of Budinsky,
Budinsky said that she heard someone tap on the door and
say "Dolores, can we punch out now?" Budinsky had
already voted in the election. Howe asked her if her shift
ended at that time. Budinsky replied that she (Pyles) was
still to punch out. She wanted to know if she could punch
out. Pyles' normal day would not have ended until 6 p.m.
Further, Budinsky said the employees usually work until 6
553
p.m. and that on that particular day she was already done
with her work, with the election and all.
During the course of the direct examination of Violet
Pyles she said that she worked on the day shift on the day
after the layoff took place (January 18). Her supervisor for
that shift was Dolores Mutton. When asked if she worked
on any other shift she said yes, she had worked on the
midnight shift and her supervisor on this shift was Shirley
Ferguson.
The testimony of Budinsky clearly corroborates the fact
that Mutton exercised clear supervisory authority over her
day shift in much the same manner as Ferguson.
Pyles testified to the effect that Mutton occasionally
urged the girls to do their work and one incident stood out
in her mind, in the course of which Mutton said, "OK,
girls, the game is over. Let's get on the ball and do it right."
Pyles also testified that she had occasion to ask to be
excused from work and when this type of situation
developed she would ask Mutton. Pyles did not recall how
often requests to leave the job occurred but she said that
well she didn't remember the exact number of days (at this
time she was going to the doctor every 2 weeks) and she
would ask to be excused each time. In this connection
Pyles said that when Mutton made such a decision to grant
permission to leave the plant she made the decision on the
spot. Pyles also recalled an incident when she was working
on the other side of the plant, and on this occasion she
asked Dick Byrd if she could leave the plant early and he
gave her such permission. Up until that time Mutton had
always excused her. But this day while she was working on
the other side of the building she said that her time was up
and that her husband was waiting for her outside the plant,
and Mutton said she could not tell her to go. Mutton
suggested that Pyles ask Byrd for permission to leave.
Apart from this incident the record indicates clearly that
the pattern of granting employees permission to be excused
from the plant before the shift was over had been well
established by Mutton, and this permission was granted by
her without consultation with Byrd or any other top
supervisor.
From all of the above it appears clear that Mutton too
exercised authority in much the same manner as Ferguson
and in fact discharged her duties in such a manner as to
clearly indicate to the employees that she, Mutton, was one
of the bosses. She acted as such by the way she handled
requests to leave the plant and by the other matters
discussed supra. I can only conclude from this testimony,
which was not rebutted on the record, that Mutton
exercised many duties which are encompassed within the
language of Section 2(11) of the Act and was in fact a
minor supervisor. As such any remarks that she made were
both imputed to and properly attributed to Respondent.
The General Counsel's brief sets forth the fact that Rita
Lewis admitted she attended supervisory meetings in
November 1972. She evaluated employees after November
1972, and at that time substituted for her full-time
supervisor, Joy McCartney, who she shortly thereafter
replaced. The General Counsel remarks that "where an
employee completely takes over the supervisory duties of
another, as in the case at bar, he or she is regarded as a
supervisor under the Act." In support of his proposition he
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cites the case of Birmingham Fabricating Co., 140 NLRB
640.
Respondent's personnel manager, Scharf, gave testimony
that Mutton, Yeager, Lewis, and Ferguson were all lead
persons with basically the same authority. He also
conceded that they functioned in a "gray area" of
supervisory status and possessed "very definite manage-
ment responsibilities." At the same time, however, he
maintained that Byrd was the bindery supervisor and
worked 18 hours a day and Westfall, plant manager,
maintained that Byrd was actually on call 24 hours a day.
The General Counsel further makes the statement that the
testimony of the General Counsel's witnesses and most
"lead persons" clearly indicates that Byrd's presence on all
shifts was sporadic and his exercise of supervisory
authority over bindery employees was insignificant.
To all of the evidence adduced on the record the
Company iterated and reiterated its contention Mutton,
Ferguson, Lewis, and Yeager were really lead persons who
work along side of the other bindery employees and
performed functions identical with that of the regular
employees in the bindery department. It is correct to say,
and it is supported in the record, that the Respondent's
witnesses all testified to the effect that they spent 99
percent of their time working as production workers in the
bindery just like the other employees. The Company
sought to minimize those functions performed by the
above-named persons which appeared to partake of the
discharge of supervisory responsibilities. It was pointed out
by Respondent in its brief that the entries made in the log
and the preparation of schedules for the employees was a
merely routine, clerical job that did not require the exercise
of any independent judgment. Respondent lumped togeth-
er the jobs of the three persons whose testimony has been
exhaustively dealt with in the instant decision as being
merely a minor part of the duties which they performed. It
was underscored in Respondent's brief that "Mutton spent
at most only a few minutes per day in drawing up the
assignment list and writing entries in the production logs.
Also, in addition to regular production work, like other
senior and experienced employees, Mutton helped train
new employees. New employees learn the job through on-
the-job training."
Respondent also points to the fact that since June 5,
1972, including the period January 18 through March 16,
Mutton has not had authority to hire, fire, or otherwise
discipline other employees. She also had no authority to
tell other employees to leave their work early. She has not
had authority to schedule overtime, call employees to work
early, nor has she been consulted in regard to any
management decisions. It is pointed out with special
emphasis that Mutton was not consulted with regard to the
decision as to which bindery employees would be terminat-
ed on January 18. Furthermore, since June 5 Mutton has
not attended any management meetings nor has she made
evaluations of other employees. The Company explained
the fact that as the most senior and experienced bindery
employee Mutton is paid an hourly rate of $3.17 but does
not receive different fringe benefits than the other bindery
employees. She punches a time clock, is paid overtime rates
for hours worked in excess of 40 in a week, and uses the
rear parking lot like the other nonsupervisory employees.
It should be pointed out that the differential in the pay
rate received by Mutton, Lewis, Ferguson, and Yeager is
quite substantial. For example Mutton earns $3.17;
Ferguson, as a senior and experienced employee is paid an
hourly rate of $2.75; Dwayne Yeager (the General Counsel
does not devote any special time or attention to the status
or functions of Dwayne Yeager but the Company did point
out that Yeager did occupy a similar job to that of the
others mentioned supra) earns $3.03 but this was explained
by Respondent as being due to the fact that his regular
function is that of a skilled machine operator.
Despite these contentions which find support in the
record it is my conclusion that the major elements of
supervisory function which were regularly performed by
Ferguson, Mutton, and Lewis, plus the other testimony in
the record which concerns itself with the fact that these
employees did allow employees to go home before their
shift, did make regular work assignments, did make entries
in the production log, and the fact that they exercised any
one of these functions constitutes them as supervisors
within the meaning of Section 2(11) of the Act. I so find. I
also credit the testimony of Mutton and Lewis who
impressed me as being honest and forthright witnesses
whose testimony I credit. While I do not discredit the
Company's witnesses as to all the points they gave
testimony on but it must be said that Respondent did not
successfully refute the supervisory work performed by
them. For the most part their testimony concerning their
supervisory duties was not refuted.
I therefore find that all three of these women were
supervisors within the meaning of the Act. Once again,
parenthetically, I conclude that the ballots of Lewis and
Mutton should not be counted and I uphold the challenges
to these ballots.
III. THE ALLEGED 8(A)(1) AND (3) ALLEGATIONS
The General Counsel's brief states as follows:
Shirley Ferguson-8(a)(1)
Rose Timlin, a former employee of Respondent,
testified that sometime in December 1972, a time when
even Ferguson admits she was a supervisor , Shirley
Ferguson interrogated her in the mailing office of the
bindery. She accused Timlin of being the Union
instigator on the night shift. She also identified Joan
Hamilton, Margaret Noble, Dorothy Hendrix and
Betty Huffman as possible union instigators on the day
Shift and stated if Respondent found this to be true
these individuals would be terminated . Ferguson also
told employee Helen Spahr before the layoff that she
thought Margaret Noble was a union instigator.
From the above-quoted section of the General Counsel's
brief he concluded that Ferguson 's statements to Tin-Ain
and Spahr unlawfully created the impression of surveil-
lance. I concur with this conclusion and so find.
The General Counsel's brief states:
Ferguson claimed that Dwayne Yeager informed her
that two girls on her shift were talking to the pressmen
CARROLLTON STANDARD PRINTING CO.
about the Pressmen 's Union . She admitted calling in
the two employees-whom she identified as Lisa
Ulman and Rose Timlin-and asking them if they had
talked to the pressmen about a bindery union. It is
unrebutted that Ferguson informed Scharf about this
incident.
Timlin intended to terminate her employment with
Respondent on or about March 23, 1973. William
Scharf, Personnel Manager, attempted to accelerate her
separation to March 9 because he did not want her
there for the March 16 NLRB election.
Ferguson , sometime in October or November 1972,
also warned employees Betty Huffman and Helen
Spahr that bindery employees might be terminated if a
union was discussed by them in the plant. Huffman
also testified that Ferguson stated Respondent's plant
would be shut down if the bindery workers obtained a
Union to represent them.
Testimony of Helen Spahr clearly indicates that
Ferguson, the week prior to the March 16 election,
threatened employees with longer hours if the Union
won the election.
The General Counsel contends that Ferguson interrogat-
ed certain of the employees as to their union interest,
sympathies, and thereby violated Section 8(a)(1) of the Act.
The record supports the General Counsel's conclusion that
the activities engaged in by Ferguson did in fact constitute
violations of Section 8(a)(1) of the Act. I concur with this
conclusion and so find.
The General Counsel's brief further continues as follows:
Rita Lewis-8(a)U)
Barbara Gray and Betty Huffman, former employ-
ees, both testified that Rita Lewis at a Christmas party
in her house in 1972 indicated that employees had
better not discuss or mention the Union or they might
be discharged . Lewis after claiming not to remember
the conversation-fmally admitted "there was a rumor
that we may all be termmated." While Lewis claimed
all of the participants in her Christmas party were
joking, Gray and Huffman took her remark seriously.
While the General Counsel offered the above informa-
tion as representing a further violation of Section 8(a)(1) I
find that his conclusion is not supported by the record. The
remark which Lewis admittedly made was not made in the
plant, which itself is not significant , but much more
importantly was made during the course of a party and it
appears that it was neither seriously made nor understood
by the people at the party to constitute a threat of any
kind. As the Respondent has pointed out both at the
hearing and in his brief the remark of Rita Lewis was made
in a jocular vein and I take it that this was the case. As the
record shows during the course of a•party the television set
was turned on and it reported some information about a
Union which was then on strike in the vicinity of the
Company's plant. It was in this connection that Lewis
made her statement to the general effect that if you are in a
union it frequently occurs that unions take employees out
555
on strike . If the employees selected a union to represent
them this might well happen to them. There is nothing in
the record to show that a strike ever occurred at the
Respondent 's plant . Therefore this remark seems to me to
be of no great significance and does not constitute a
violation of Section 8(a)(I) as alleged in the complaint. I
therefore recommend that this allegation of the complaint
be dismissed.
According to General Counsel's brief:
Dolores Mutton-8(a)(1)
Employee Jerilyn Budinsky testified that immediate-
ly after the March 16 election Mutton warned them
never to mention a union at Respondent 's facility or
she would be "fired." "Start sticking together, you'll be
out of the doors, just like the rest of the girls ." By "the
rest of the girls," Mutton no doubt meant those
terminated on January 18. This statement should leave
no doubt as to the real reason the Respondent
terminated the discriminatees in this case . Mutton
represented to the employees on the morning of March
15 that they would be working more overtime if the
Union won the election . Mutton also made the same
threat to employee Violet Pyles sometime after the
layoff but before the election.
While there is record evidence to support the contentions
made by the General Counsel with respect to the testimony
of Budinsky and while I have credited some of her
testimony with respect to other matters not relating to
8(a)(1), Budinsky did not make a good impression on me as
a reliable and credible witness . She appeared to be both
talkative and argumentative. I do not credit those parts of
her testimony that were not corroborated by the testimony
of other of the General Counsel's witnesses.
General Counsel 's brief continues:
Bruce Westfall and Richard Byrd
Lisa Ulman testified that on March 15, 1973 Richard
Byrd interrogated her as to whether she thought
Respondent's shop needed a union . On that same day
Ulman asked Bruce Westfall, plant manager , whether
the employees would obtain a pay raise . Westfall
responded he could not take any action on raises at
that point but claimed that if the Union didn 't win the
election bindery employees would receive 10 percent to
12 percent more in wages.
If the testimony of Lisa Ulman is to be credited what she
stated represents violations of Section 8(a)(1). She said she
asked Westfall about a raise . His reply contained a double
aspect of violations of the Act. My overall appraisal of the
credibility of Ulman is that she testified in a direct and
forceful manner and impressed me with her recital of the
mcidents she described. Her testimony had the ring of
authenticity . In answer to her question about raises Bruce
Westfall said he could not take any action on raises at that
point but claimed that if the Union did not win the election
the bindery employees would receive a 10-percent to 12-
percent increase in wages. This statement , which I credit,
constitutes a promise of benefit and a possible threat that if
the Union did win an election the employees would not
obtain a wage increase . Both aspects of this statement,
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which I find Westfall did in fact make to Ulman , constitute
violations of Section 8(a)(1) and I so find.
Budinsky testified that after the layoff Richard Byrd
approached her and interrogated her as to what she
thought of the Bindery Workers Umon and the Pressmen's
Union . I have already found that Budinsky impressed me
as somewhat argumentative . The further fact that she has
quit her employment with Respondent emboldened her to
make statements adverse to the Company which I do not
accept at face value . I do not credit her testimony. I
recommend that this allegation of the complaint be
dismissed . Pyles testified that on two separate occasions
during the week before the election Richard Byrd ques-
tioned her as to what she thought of the Union.
I was affirmatively impressed with the candor with which
Pyles testified and I credit her testimony . Under these
circumstances I find that Byrd did in fact interrogate her
on two separate occasions and by so doing Respondent
violated Section 8(a)(1) in this regard . I so find.
Respondent Held Three Meetings with its
Employees Prior to the Election
The NLRB election took place on March 16 . On three
separate occasions , March 9 , 13, and 15, the Company held
meetings with its employees. At one of these meetings
Scharf or Westfall allegedly told employees the pressmen
would have received a higher wage rate than they had
received by the union contract if they had not chosen this
Union as their bargaining agent. The record shows that
this testimony was given by Budinsky . She allegedly also
stated that Alpheus Petrie , general manager , made essen-
tially the same statement at one of the three meetings held
by the Company with its employees.
As I have already discredited part of Budinsky's
testimony in relation to other matters concerning which
she gave testimony I was not impressed with her testimony
in this regard anymore than some others and for this
reason I do not credit this testimony . Under these
circumstances , I recommend and find that the Respondent
was not guilty of this additional 8(a)(1) activity and I
recommend that the allegation concerning this matter be
dismissed.
It is the contention of the General Counsel that as a
consequence of the 8 (a)(l) activities of the Respondent
detailed supra, the Respondent threatened the employees
with low wages in the event the Union won the election
and at the same time it promised employees higher wages if
they voted against the Unions involved in the election.
There is further testimony in the record that Spahr said
that Roger Hays, Respondent's vice president in charge of
the Company 's operations , indicated at one of the meetings
that if the Union was elected, employees would receive
fewer benefits.
An examination of the record shows that Spahr gave
conflicting versions of the statement allegedly made by
Hays. At one point in the record she said that a statement
had been made by Roger Hays "Why have a union if you
can get the same things without a union," or something to
that effect . To this question he answered "Yes." The next
question she was asked was whether or not Hays had ever
said that if the Umon were to be elected you would be paid
less or would receive less benefits . Her answer to this
question was "No ." She then said "No," I misunderstood
that, will you repeat the question? The direct question was
then asked of her, "did Hays ever state that if the Union
were elected you would be paid less or receive less
benefits?" To this rephrased question she said, "Oh, yes."
This testimony is so confused and contradictory that it is
impossible to base a finding on it. I therefore conclude that
the allegation in the complaint concerning the alleged
statement made by Hays is not supported by substantial
evidence in the record and I recommend that this
allegation of the complaint be dismissed.
From the totality of the 8 (a)(1) allegations and the
conclusions I have reached concerning them I find that
certain of the allegations were supported by substantial
credible evidence and others were not. The evidence
indicates that Respondent attempted to ascertain the
strength of the Union in the bindery, made an effort to
determine just who the union instigators were by interroga-
tion , threats of termination , and other actions . It also
created the impression of surveillance . The General
Counsel concluded that the use of these unlawful tactics
and the illegal promises of benefits coupled with the threat
to withhold benefits if the Union was successful in its
election efforts all point to the commission of violations of
Section 8(a)(1).
Respondent attempted to discourage union support. The
General Counsel characterizes the 8(a)( 1) activity as being
clearly violative of Section 8(a)(1) of the Act. He cites in
support of this conclusion the case of Stephens Manufactur-
ing Co. Inc., 196 NLRB 47, which he described as involving
violations of Section 8(a)(1) of the Act similar to those of
this case ; including the interrogation of employees con-
cerning their union activities , the creation of the impres-
sion that employees would be discharged for supporting
the union, and the threat to cut wages if the union won the
election.
The Discharged Discriminatees
The testimony of Timlin was to the effect that the
Respondent learned through its supervisor Ferguson that
the Company suspected Hamilton , Noble, and Hendrix to
be union instigators and threatened to terminate them. The
record shows that Ferguson admitted she told Scharf that
she had interrogated Timlin. At a later point in the record
Scharf conceded that, prior to the layoff, he did question
Byrd as to union activity in the Bindery. The former
chairman of the Printing Pressmen, Henry Pisklo, testified
that Hendrix , Noble, Timlin , and Hamilton were the most
inquisitive of the bindery employees and the most
interested in requesting the Printing Pressmen to represent
them . They first approached him about the Union
sometime around December of 1972 . Pisklo also said that
he considered Joan Hamilton as being the most active
union adherent. Both Scharf and Mutton described
Hamilton as a "complainer" and because they made such
statements on the record the General Counsel concludes
that "she was no doubt highly suspected by Respondent as
a union adherent." This statement appears to be sheer
supposition indulged in by the General Counsel.
His brief states "that it is unrebutted that in December
CARROLLTON STANDARD PRINTING CO.
1972, Scharf showed Hamilton her job evaluation and told
her to `quit worrying' because there was nothing wrong
with it." It does appear that Hamilton was the organizer
and one of the chief officers of the Independent Bindery
Workers Union which labor organization was organized
after her discharge. There is no doubt that she was an
active union proponent. It is further contended by the
General Counsel that Ferguson also identified Noble as a
union instigator in a conversation had with Spahr prior to
the January layoff.
During the second meeting with its employees which
occurred on March 13, Roger Hays was called on to
answer questions.
It is the contention of the Respondent that during the
course of these meetings "Management representatives did
not threaten to discharge any employee or otherwise
threaten reprisals if the Union should be elected; they did
not promise wage increases or other economic benefits if
the employees would vote nonunion; they did not threaten
the employees with strikes and violence and there was no
discussion of union dues." I do not credit Respondent's
blanket denials of engaging in independent 8(a)(l) activi-
ties.
Two versions of one incident that occurred at one of the
meetings are set forth in the briefs provided by both the
General Counsel and the Respondent. The General
Counsel states that Roger Hays, at one of the meetings,
emphasized the fact that he would never permit any of the
three discriminatees to return to work-and would fight
the issue all the way to the United States Supreme Court if
necessary. It is also stated in the brief that Hays remarked
to the employees who were present at the meeting that they
could select those to be replaced if he was forced to yield to
their return. The General Counsel remarks further that
Hays' "singling out the three discriminatees for special
comment and treatment" substantiates the General Coun-
sel's position that Respondent especially wanted to rid
itself of these suspected union adherents.
The Respondent in a footnote to its brief states: "In
response to a question by Budinsky, Mr. Hays did state the
fact that if the Company had to hire back Noble, Hendrix
and Hamilton, the three alleged discnminatees, and if the
Company did not increase the workforce in the bindery,
then three employees would have to be replaced to make
room for Noble, Hendrix and Hamilton." By dovetailing
these two statements by the General Counsel and Respon-
dent respectively it seems clear that Hays did state in effect
what the General Counsel contends he said at one of the
meetings . I do not find this language to be discriminatorily
motivated or violative of the Act. Taken out of context it
seems that the Company had a special axe to grind with
respect to the three alleged discriminatees. In my opinion,
this remark made by Hays indicates company knowledge
that these three female employees were known to the
Company to be active in the Union but apart from this
conclusion I find nothing either significant or actionable in
the statement admittedly made by Hays.
The Respondent adduced testimony through its witness-
es including Hays that before a determination was reached
as to who among its employees would be laid off, a special
meeting was called in his home at night. At this meeting
557
there were present Brenneman, president, Hays, vice
president, Petrie, the Company's general manager, Byrd,
the plant superintendent, Westfall, plant manager, Scharf,
personnel manager, and Brothers, who is the assistant
production manager . As has been stated above the purpose
of this meeting was to determine which employees were to
be laid off. Each of the Company's top supervisory men
drafted a list of employees whom they felt they could do
without. After the lists were completed they were com-
pared and the names of 10 employees coincided with the
10 employees whose names were recorded, each on a
separate piece of paper. The judgment of these men was
practically unanimous as to which employees were to be
permanently laid off. The General Counsel characterizes
this procedure as being incredible. While the virtual
unanimity reached by the separate individuals involved in
this selection process is, to say the least, unusual, it is not
inconceivable that this plan took place as described by
Respondent's witnesses. In any event I draw no unfavora-
ble inference as to the basis upon which the selection was
made. After the 10 names were agreed upon the Company
added two other additional names , thus making the group
of 12 employees from the bindery department who were
permanently laid off.
The General Counsel seems to make much of the fact
that the Regional Office of the National Labor Relations
Board was informed that the employees were laid off solely
due to economic considerations. Testimony at the hearing
indicated that the "most willing, cooperative, physically
capable employees with the best attitude were retained." He
further states in his brief "the possibility of an unfair labor
practice charge being filed was considered." Many very
inexperienced employees who had spent little time with the
Company were retained-while a great many experienced
employees were permanently terminated . From this fact
the General Counsel concludes that the termination of
experienced employees while retaining inexperienced ones
would compound the Respondent's economic ills. The
General Counsel then raises the question, "Was Respon-
dent's logic directed towards solving its economic problem
or ridding itself of active unionists?" It is a fact that the
Company did double its bindery staff from 12 to 22
employees sometime after the election. He states this was
accomplished "without regard to the announced Company
position to the Regional Office that those laid off would be
reinstated only if the need for additional workers arose and
without regard to the announced policy in its employee
handbook `to fill vacancies from within our organization
unless . . . no one was available in terms of specialized
talents and training required.' " The failure of the
Respondent to reinstate any of the terminated employees,
including the discnmmatees; lends credence to General
Counsel's assertions that the discriminatees were in the
first instance terminated for discriminatory reasons.
In the course of the hearing, during the testimony of
Hays, I asked him why he did not reemploy some of the
terminated employees when the Company's financial
position improved to the point where they needed
additional employees. My question specifically was, "May
I ask whether it is economic to hire strangers to the
business when you had potentially available people who
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had experience working for you in various occupations in
your plant?" Hays answered my question as follows, "The
reason for the dismissal-I think I said earlier-I asked the
supervisors to supply a list of names of competent, willing,
capable, physically able people who would help us during
this period. I didn't feel that the end of the crisis was the
time to bring back people that the supervisors didn't feel
quite fit those qualifications prior to that." It seems clear
that the Company's explanation raises some doubts as to
the basis for hiring new people off the street instead of
rehiring employees who had satisfactorily performed
service for the Company prior to the economic layoff of
January 18. While my doubts in this regard have not been
dispelled by the answer given by Hays, the fact remains
that the determination of the Company not to rehire old
employees who had not particularly distinguished them-
selves on the job is a matter of judgment. Absent proof of
any allegation in the complaint that the Company had
discriminatorily laid off approximately 29 employees from
the bindery department, there is no doubt that the
complaint was drafted the way it was because the Regional
Office of the NLRB accepted and believed the Company's
explanation that the layoff was solely due to economic
necessity. The record bears out this conclusion and I
concur in it.
Returning to the question as to whether or not there was
logic in the Company's failure to rehire its permanently
laid off employees this is a matter solely for the
Respondent in its exercise of running its business. It is not
for a judge to substitute his judgment for that of the
Company. I therefore accept Hays' explanation in answer
to my question with some reluctance because it does
appear to be suspicious but nevertheless since Respondent
has not been charged with a discriminatory layoff but only
with a layoff dictated by economic necessity what it did, in
effect, was to make a judgment call. Whether or not its
judgment was good or bad is not before me. Nor, absent
credible evidence in the record, is it the business of the
NLRB to sit in judgment on the Company's decision with
respect to this matter.
I therefore conclude that the General Counsel 's assertion
that "the failure of Respondent to reinstate any of the
terminated employees , including the discriminatees in
opposition to its announced policy lends substantial
credence to the General Counsel's assertions that the
discriminatees were in the first instance discriminatorily
terminated ." For the reasons set forth supra, I disagree with
this conclusion of the General Counsel. While the General
Counsel did not argue in his brief that the layoff of the
employees in the bindery department was motivated by
antiunion considerations rather than by economic necessi-
ty, such an argument was advanced by counsel for the
Pressmen's Union. This contention does not appear to me
to have merit. The record is replete with both direct
testimony from credible witnesses and numerous exhibits
all of which conclusively point to the fact that for a period
of time in January and continuing for about 6 weeks
thereafter the Company was in financial distress. In order
to cure this critical situation the Company relied upon its
new manager (who had vast experience in previous
positions) to evaluate the best way for the Company to
extricate itself from its difficulties . He recommended that
Respondent reduce the number of its employees. This
expert , Petrie, recommended a substantial reduction in the
number of employees in the bindery department; a
reduction in certain other categories of employees then
working for the Company; a 2-percent reduction in the
salary paid to Brenneman ; and a 10-percent reduction in
the salaries of all executives from the position of Byrd on
up. The actual amount of money being lost by the
Company prior to the institution of the drastic measures
which it took in order to avoid bankruptcy was reversed.
The institution of these economics was helpful in the
Company getting back on the track of successful business
operations . This, coupled with a substantial increase in
business , resulted in the resumption of business on a
profitable basis. I am satisfied that the evidence in support
of the Company' s contention with respect to its resumption
of health business activities is an honest statement credibly
made by Hays whose testimony I credit in its entirety.
Based on the substantial evidence on the record
considered as a whole it seems clear to me that despite
urgent disclaimers made by Respondent that it had no
knowledge of union activity among its employees in the
bindery department, that this is simply not correct. The
evidence points to the fact that the Company (at least
through its minor supervisors), whom I have determined
are supervisors within the meaning of the Act , that Noble,
Hendrix, and Hamilton were known to Respondent to be
active on behalf of a labor organization and this knowledge
(due to the fact that these employees Ferguson , Mutton
and Lewis had knowledge of their union activities), was
imputed to Respondent.
The Alleged 8(a)(3) Discriminatees
First off it should be pointed out that Hendrix, Noble,
and Hamilton were included in the group of employees
who were permanently laid off in the mass layoff of
January 18. Significantly, the General Counsel does not
claim that any of these employees were unfair labor
practice layoffees. The complaint does not contain any
allegations to indicate that the entire group of employees
who were terminated on January 18 were discriminatees. It
is argued that the three women were discriminated against
because of their union and/or concerted activities. One of
them, Hamilton, was admittedly the chief union instigator
who was involved in the effort to form the Bindery
Workers Independent Union.
Hamilton's efforts on behalf of the Bindery Workers
Independent Union were conspicuously unsuccessful. The
record shows that the Independent died aborning. In the
election conducted by the NLRB, the Independent did not
receive any votes. More significantly Hamilton did not
commence her union activity until after she had been
permanently laid off. During the time she was employed
her union activities were minimal and the record is silent as
to Respondent's knowledge of even this activity.
It is true and I have found that the Company, both
through the statements made by its minor supervisors and
also by the remarks of Byrd and Scharf, engaged in illegal
threats and promises of benefit. Consequently there exists a
background of independent 8(a)(1) activities. However it
CARROLLTON STANDARD PRINTING CO.
must be emphasized that nowhere in the record has the
General Counsel adduced credible evidence demonstrating
any direct threats or promises of benefits having been
made against these alleged discriminatees . Nor am I
convinced that indirect threats or promises of benefit were
made which were discriminatorily motivated . It should be
noted that Hamilton was characterized by Respondent's
witnesses as a "chronic bitcher" who frequently made
complaints . Much of this criticism concerned her supervi-
sor, Mutton . There was a personality conflict between
Hamilton and Mutton . There were also other complaints
made by Hamilton about working conditions. At the least
these facts give rise to a suspicion that Respondent had "an
axe to grind" about the "attitude" of Hamilton towards
Respondent apart from her personal feud with Mutton. In
any event I conclude that the General Counsel did not
sustain his burden of proving by a preponderance of
credible evidence that the alleged discriminatees were
terminated because of other union or protected concerted
activities.
Also it should be pointed out that I was not impressed
with the demeanor or credibility of the General Counsel's
three alleged discriminatees . They were not persuasive
witnesses and I do not credit their testimony . They were
called upon to testify as an afterthought on the part of the
General Counsel. The testimony offered by Hamilton,
Noble, and Hendrix on direct examination was inconclu-
sive , vague , and unconvincing.
Thus it can be seen from the direct testimony in the
record that none of these employees testified to the
question of discriminatory remarks directed against them
by any of the Respondent's supervisory personnel. What
words were exchanged , in the context of the circumstances
under which the statements were made, were , for the most
part , innocuous or of no legal significance . This is not to
say that while the testimony indicates that the statements
made by the witnesses are credited by me and while they
do represent clear violations of Section 8(a)(1) of the Act
they did not seem to be taken by the listeners as
constituting threats which the employees involved took
seriously. In any event the burden of proof on the General
Counsel to prove his case by a preponderance of credible
evidence was not sustained by him.
These allegations in the complaint were not sustained
with respect to supporting the allegations of discriminatory
discharge . While these were violations of Section 8(a)(l)
they did not contain direct threats or even indirect threats
directed against the three alleged 8 (a)(3) discriminatees. In
other words I find that none of Respondent's supervisory
employees made threats against the discriminatees that
might constitute the basis for a finding that these three
employees were discriminatorily terminated. I am also
unable to infer such a conclusion from the testimony in the
record.
Respondent's Testimony Concerning the Economic
Basis for the Mass Layoff of January 18
The actual amount of money being lost by the Company
prompted it to institute drastic measures to avoid bank-
ruptcy. These efforts were helpful in getting the Company
back on the track of successful business operations. This,
559
coupled with a substantial increase in business , resulted in
the resumption of Respondent 's operations on a profitable
basis . I am satisfied that the evidence in support of the
Company's contention with respect to its resumption of
full business activities is an honest statement credibly
made by Hays whose testimony I credit . Having credited
Hays' testimony on this point eliminates the necessity for
any further consideration of this subject in the instant
decision.
Company Knowledge
Based on the substantial evidence in the record consid-
ered as a whole it seems clear to me that despite frequent
disclaimers made by Respondent and that it had no
knowledge of union activity among its employees in the
bindery department that this is simply not correct. The
evidence points to the fact that Respondent was chargeable
through its minor supervisors, with knowledge that certain
of its employees were active on behalf of a labor
organization . I so find.
The Challenges and the Objections to the Election
I have found that the three minor supervisors were
supervisors within the meaning of the Act at the time the
election took place . The challenges to their ballots should
be sustained . The balance of the challenges have been
found by the Region to be without merit and the charging
union has withdrawn these challenges.
I have also found that the three employees whom I have
found to be supervisors did in fact utter statements
violative of Section 8(a)(1) of the Act.
The substance of these statements is substantially the
same as the Union's objections to the election. It is so well
settled as a matter of law that it does not require citations
to the cases to demonstrate that where a Respondent
engages in the commission of independent 8(a)(1) activities
and these activities represent the basis for the objections,
such action is sufficient upon which to base a finding that
the objections to the election be sustained. I so find.
Consequently I will recommend that the election be set
aside and a new election be ordered by the Regional
Director at a time and under circumstances when the
effects of the 8(a)(1) activities have been dissipated by the
posting of an appropriate notice to the employees . At such
time the Regional Director , in his discretion , may order
that a new election be held to determine the uncoerced
wishes of the employees.
Concluding Findings and Analysis
The issue concerning the supervisory status of Ferguson,
Mutton and Lewis involves an admittedly close question
which has correctly been characterized as a problem in the
"gray area ." Ultimately the answer depends on a careful
consideration of the facts in the instant case . The record is
replete with testimony concerning this issue.
The General Counsel , and Respondent have provided
me with excellent briefs studded with copious citations to
both the record and the adjudicated cases.
This issue has already been explicated in considerable
depth supra and any additional comments made here by
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me would be redundant. Suffice it to say that my research
supports my conclusion that the three employees are
indeed supervisors albeit minor supervisors of the Respon-
dent. The Respondent calls my attention to the following
cases which have been offered in support of the Company's
position that the three individuals named above are only
lead people and not supervisors within the meaning of
Section 2(11) of the Act: A.D. T. Company, Inc., 177 NLRB
704, deals with the fact that the title of a job is not to be
relied on to establish that an employee is a supervisor. The
fact that the employees refer to Mutton, Ferguson, and
Lewis as supervisors is not controlling.
Respondent calls attention to the fact that Mutton was
not consulted concerning the layoff of January 18 and did
not attend management meetings; was not treated by
management as a supervisor; was hourly paid: she
punched a clock; and is paid overtime. In support of this
proposition, Respondent cites The Grocers Supply Compa-
ny, Inc., 160 NLRB 485.
Company counsel also calls my attention to the case of
The Kirby Company, 194 NLRB 1201, where the Board
found an employee was not a supervisor even though he
assigned work and transferred other employees because his
authority in this respect was routine and did not involve
the use of independent judgment in view of the routine and
repetitious nature of the operation and the small number of
employees. The Board has likewise failed to find employees
to be supervisors in other cases where assignment duties
are merely routine. Don the Beachcomber, 163 NLRB 275.
Respondent concludes from the above cited case. "As
Mutton stated, an individual can learn the bindery work
very quickly and therefore it is merely a matter of
developing speed and proficiency." The brief continues,
"The Board has indicated that experienced employees who
give this type of routine instruction are not supervisors
within the meaning of the Act." The Company cites Brewer
Electric Mfg. Co., and the case in Kansas Refined Helium
Co., 176 NLRB 1032. The brief then states: "The question
of assigning work is not determinative. In Goshen Litho Inc.
[196 NLRB 977], the Board found that a head operator
who worked on the assembly line as a trimmer is not a
supervisor even though he had the duty to keep the
assembly line moving, moved employees around the
assembly line as needs required, and placed new employees
next to experienced employees."
Concerning the significance of the rate of pay of
employees whose status is in question the Respondent's
counsel states : "Higher rates of pay are also not conclu-
sive. The fact that Mutton earned more than other
employees was due to her seniority and experience and not
because she was a supervisor." The case of Welcome-
American Fertilizer Co., 179 NLRB 217, enunciates the
proposition that the Board recognizes that paying a higher
wage rate to an experienced, senior employee does not
make that employee a supervisor.
Respondent's brief continues:
Re: Mutton: At all times relevant to the present
case , Dolores Mutton lacked authority to hire, fire,
promote, discipline other employees, or schedule
overtime and likewise lacked authority to effectively
recommend such actions. She worked on the day shift,
is hourly paid, punches the timeclock and is paid
overtime rates.
She worked on the day shift, during which Richard
Byrd the supervisor of the Bindery Department, was
present. She shared a community of interest with the
other employees on her shift. She spent 99 percent of
her time doing production work.
Re: Ferguson: Ferguson worked the midnight shift
both before and after the terminations of January 18
where , as the most senior and experienced employee,
she was admittedly a lead worker.
What the Company fails to state in its brief is that
Ferguson was an employee of 6-1/2 years' service who did
act and was acknowledged to be a supervisor until June
1972. At this time she became ill and when she returned to
work, notified the Company that she would not be
available to continue to act as a supervisor because of her
physical condition. The Company claims that when
Ferguson returned to her job a notice was posted on the
bulletin board to the employees on the night shift in the
bindery department notifying them that Ferguson was no
longer their supervisor. On the testimony in the record it is
not at all clear that the employees on the night shift in the
bindery department were aware of the change in Fergu-
son's status. In any event, according to the testimony in the
record even from Ferguson herself, on direct examination
she said that her duties changed only very slightly after she
ceased acting as a supervisor. In other words she continued
to act with the responsibility of scheduling girls and filling
out a bindery report in the morning. According to the
record on January 22, 1973, she was advised that she was
no longer to be designated as a supervisor. However she
admitted that she still performs the functions of a
supervisor. To use Ferguson's own words with respect to
the change in her status : "It wasn't the change in status at
all. I continued to do the same things . I still continue to
schedule the girls and fill out the bindery report."
Ferguson testified that she was told not to continue to
act as a lead woman by Bill Scharf, Respondent's director
of personnel . In answer to a question as to how many
bindery workers were on her shift, she stated between 6
and 7. She was then asked how she assigned employees to
the presses. Her answer was according to their ability, their
seniority, their knowledge of their job. She also testified
that she rotates girls between the presses daily. She stated
that one press is more difficult to work on than others and
she maintains a mixture of experienced and inexperienced
girls on each press. Ferguson also continues to have the
responsibility of making entries in the log, which is a book
that is filled out at the end of each shift, stating what has
been done the night before. She makes entries in the log
book. Ferguson estimated that it takes approximately 2
weeks to train a new employee to become capable of
working at a press, or jogging or skidding. Her immediate
supervisor is Dick Byrd. When she was asked if he was
present on her shift she said he was on the job in the
bindery about 50 percent of the time. Normally the hours
CARROLLTON STANDARD PRINTING CO.
of the bindery were from 12 to 8 but during the period
from January 18 until the time of the election the
employees working in the bindery carried a 12-hour shift
from 8 p .m. to 8 a .m. She answered a question as to how
many hours Dick Byrd would be present by stating that she
normally worked day shift and sometimes was on the job
until 12 or 1 o'clock in the morning. Whenever a question
came up that required an answer from either Byrd or
Westfall it was her practice to make a phone call , even if
this call was made as late as 2 a.m . in the morning . She said
she would first try to get Byrd and if he was not available
then she would call Westfall . She earns an hourly rate of
$2.74 an hour and during the time when the Company was
engaged in a retrenchment program from the middle of
January to the middle of March she continued to earn the
same hourly rate and was not required to take a cut in pay.
She also stated in her direct testimony that she does
discipline employees . This statement was amplified by her
saying that the discipline she referred to consisted of telling
the girls when they were making too much noise or acting
up or if they were not present at the press where they were
supposed to be . In such an instance she would ask them to
go back to the press to which they had been assigned. She
attended the last management meeting approximately a
year ago. During the period from January 18 through
March of 1973 the pressmen foreman on her shift was Bob
Maple . Ferguson said that he is in charge of the plant on
her shift.
Ferguson flatly denied that she had ever told Helen
Spahr that there would be more overtime if the Union were
elected ; she denied that she ever told Rose Timlm that the
Company would get rid of union instigators ; she similarly
denied having told Mrs. Hamilton that the Company
would get rid of union instigators.
I asked Ferguson if the employees working on her shift
regarded her as a supervisor . She answered by saying "I
really can't answer that-I am the oldest girl with more
seniority, and they come to me if they have a problem. She
further said that she does not regard herself as a minor
supervisor.
The General Counsel in his cross -examination presented
Ferguson with a number of affidavits which she had
executed for the National Labor Relations Board. One of
these affidavits states, "I supervise the second shift which
works from 4 p .m. to 12 p.m." She admitted that she had
made such a statement and signed it and it must have been
true or she would not have signed such statement. At
another point in the transcript she was asked the following
question, "another supervisor, Dwayne Yeager , brought to
my attention that he had overheard two girls on my shift
talking to the pressmen about the Union. 1 did call each
girl separately into my office and asked them about it. The
girls were Rosie Tiirlin and Lisa Ulman. All I asked them
was if they had been talking to the Pressmen about a
bindery union ." Ferguson also admitted that she told the
NLRB investigator that she had had conversations with the
Pressmen representative and further the affidavit continues
"they both said no, that the Pressmen just explained some
of the benefits of the Pressmen Union to them."
It developed on the record that Ferguson executed two
affidavits on April 12-both on the same day. Ferguson
561
stated that the affidavit was prepared for her by Bill
Scharf, that she read it over , and signed it. Interestingly
Ferguson said the second affidavit was prepared by the
Company, that she did not read it but that she offered the
affidavit by Scharf which consisted at the time it was
offered to her of a blank sheet of paper . Apparently after
she signed it, it was filled in with a statement which reads,
"At all times while I have been employed by the Carrollton
Standard Printing Company, both prior to and after
January 22, 1973 I have had authority to nor have been
told that I have authority to hire, promote , fire , discipline
other employees or settle grievances nor have I been
consulted with regard to any of these matters."
From the testimony given by Ferguson it seems clear
that while a notice may have been posted to the effect that
from and after the date of the notice she was no longer to
act as a supervisor her duties remained virtually un-
changed . It seems odd indeed and it is not refuted on the
record that Respondent gave Ferguson a sheet of paper
which she signed in blank . Thereafter it later turned out
that Scharf filled it out disclaiming any supervisory
authority. At the least this action by Scharf is suspicious
and raises doubts about the bona fide nature of this
affidavit.
In any event it appears clear that if Respondent intended
by the posting of the notice , and by certain instructions it
may have given Ferguson , that [sic] despite the notice she
continued to act in the same guise as she had formerly
acted and therefore the employees had no way of knowing
she was no longer a supervisor . The employees did not
know that she had been stripped of her supervisory duties.
From January 18 through the date of the election, March
16, Ferguson apparently continued to act in the same way
as she had previously acted . It would be easy indeed to
imagine that the employees , even if they read such a notice,
would be puzzled by the fact that she continued to act in
precisely the same way as she had prior to the alleged
posting of the notice ; and therefore , as to them, she
continued to serve in the role of a minor supervisor.
I have found , supra, that Ferguson was clearly a
supervisor . The General Counsel's brief, containing as it
does numerous references to transcript pages and generous
citations to the authorities , provides me with a much more
persuasive argument than the one advanced by the
Company. She certainly exercised authority of a superviso-
ry nature as defined in Section 2(11) of the Act. I have
previously found that she was in fact a supervisor and I
now reiterate that finding.
Respondent 's director of personnel , Scharf, testified that
at the meeting which took place in Hays' home on January
16 he participated with Byrd, Westfall , and Hays at which
time it was first decided by Respondent to permanently lay
off 27 or 28 of the bindery department employees. After
first deciding to keep 10 employees on in this department
the Company, feeling that 10 workers would not provide
sufficient help to handle the requirements of the bindery
department, raised the figure to 12.
The factors used to determine which employees were to
be retained and which were to be let go were as follows:
"Willingness to work, their ability, their physical ability,
and the general attitude that they had shown since they
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been employed ." Scharf categorically denied that the
final decision was influenced in any way or even
considered in any way by reference to union activities on
the part of any of the employees who were to be
permanently laid off . Scharf was asked if the conferees had
a list of names and simply selected employees from that
list. Scharf said , "Yes that is how it was done ." Scharf was
then asked how the list of the people was compiled he
answered , "somewhat like you would reconcile any group
of members . You have 4 or 5 lists, let's say , and you
compare the names on the lists ." It so happened that all of
the lists were identical with the exception of I or 2 names,
and it simply came down to who you were going to retain.
Scharf was again asked whether in the discussion that
ensued , did that talk in any way involve a discussion of
union activities ? His answer was "in no way ." Scharf was
then asked if the names of Joan Hamilton , Margaret Noble
or Hendrix were included on any of the lists from which
the ultimate decision was made . His answer was, "No" He
also pointed out that in addition to the employees
terminated in the bindery there were other employees
terminated in other departments as a result of the decisions
made that night . Certain employees in the composition
department and in the camera department , and there were
also some pressmen who were laid off. Scharf characterized
the matter of the layoff by stating "it was a general layoff
throughout the plant . It included the plant downtown, and
I believe somewhere in the vicinity of about 40 employees
were laid off."
Scharf also testified that the reason for the layoff was
purely economic and came about because of a meeting
which took place on the Friday preceding the layoff when
the Company had its monthly session with its accountants.
Scharf was not present at this meeting and none of the
statements which follow were used by me in making
findings . However, the information was taken on the
record as illustrative of the Company 's very poor financial
condition . The accountants told Brenneman , the company
president, that his financial statement for that month was
exceedingly bad and unless some action was taken to
reduce the cost of the plants' operations the Company
would be faced with bankruptcy . In answer to a question
as to the total number of production employees who were
employed by the Company at its Plant No . 2 location
Scharf replied that he would say roughly 130. The instant
case concerns itself exclusively with the situation as it
relates to the No . 2 plant . Included in the number of 135
employees at the Plant No . 2 location are production
employees , and about 30 executive and administrative
people . There were roughly 100 people at Plant No. 1 who
were production workers . Of these production workers
approximately 40 were employed in the bindery depart-
ment . After the layoff there were 12 employees retained in
the bindery department . At the time of the hearing there
were approximately 22 employees working in the bindery
department.
Scharf went on to say that there was considerable
overtime work being performed in the bindery department
and he estimated that these employees were putting in
about 300 hours per 2 -week pay period prior to January 18.
Subsequent to the layoff of January 18 the number of
overtime hours in the bindery came to approximately 140
hours.
Scharf testified that after the layoff Respondent was
running two shifts unless there was a special problem
which would require three shifts . The Company had one
supervisor in the bindery department and he was Richard
Byrd . Therefore , based on the figures given by Scharf, for
the approximately 12 employees working in the bindery
department after the layoff Respondent has one supervisor
for all three shifts.
It should be noted that Byrd had the responsibility of
supervising the 12 employees even though the 12 were
allocated among all three shifts . Scharf said that although
Byrd could not be present for 24 hours a day he did in fact
have the responsibility for all three shifts . Scharf then
pointed out that it only took him a matter of 20 minutes to
learn one job and about 2 minutes to learn how to skid and
that the reason for his learning so rapidly is due to the fact
that he has worked in this type of industry for 25 years.
The point of this remark was given by Scharf to indicate
that the jobs being performed in the bindery department
were routine in nature and could be learned in a relatively
short time . Doubtless this remark also was made in order
to reach the next point ' which I regard as significant.
When Hays was testifying I asked him why it was that
after business picked up some 6 weeks after the date of the .
layoff, the Company did not rehire any employees who had
previously worked in the bindery department . Instead
Respondent went outside and hired new employees who
had never worked for Respondent . I expressed the opinion
that once the Company was launched on a new period of
activity it would seem to me to make sense that they would
go back and hire employees who already had experience on
the machines used in the bindery department. The
explanation made was that they wanted to start with new
people and that this presented no training hardship to the
Company because it was quite simple to teach people how
to operate the various machines employed in this depart-
ment . This explanation appears to be somewhat "thin" and
it did not satisfy me as constituting a reasonable basis for
not rehiring any of the group of approximately 28 or 29
employees who were never returned to their jobs. I had a
feeling of suspicion that there might be more to the story
than had been thus far told . However, it must be stated
that whether the explanation was a good one or a bad one
it involves a judgment call made by the Company. It
appears to be totally without reference to any union or
other concerted activity . In any event it is clear that the
General Counsel did not prove by a preponderance of
credible evidence that the Company was illegally motivat-
ed in making its selection of the employees to be retained.
He therefore failed to sustain his burden of proof on this
point.
The General Counsel in his brief, using conclusionary
language , states that it is unrefuted that some of the
General Counsel's witnesses testified that the three alleged
discrirrunatees must have been permanently laid off
because the Company was aware of the fact that all three
of the employees in question were activists in attempting to
bring the Union into the bindery department . In support of
this contention the General Counsel points to the fact that
CARROLLTON STANDARD PRINTING CO.
at one point in the record it was testified , without
refutation , that Hays made the remark that he would never
take these three employees back in his employment even if
he had to take the case to the Supreme Court.
On the whole issue of the mass layoff the General
Counsel argues that terminating experienced employees
while retaining inexperienced ones would only compound
Respondent's economic ills. He asked the pointed ques-
tion , "was Respondent 's logic directed towards solving its
economic problem or ridding itself of union activists?" He
concludes with the statement "the failure of Respondent to
reinstate any of the terminated employees , including the
discnmmatees in opposition to its announced policy lends
substantial credence to the General Counsel 's assertion
that the dischargees were discnminatonly terminated." It is
further pointed out in the General Counsel 's brief that
Hays, in one of his meetings with all of the employees, told
them that they could select those to be replaced if he was
forced to accede to the return of the three alleged
discriminatees . From this statement by Hays the General
Counsel concludes that such a remark had its effect on the
conduct of the Board 's investigations and gave some
indication to the employees as to what lengths Respondent
was willing to go in disposing of union adherents. He
further indicates that when Hays singled out the three
discriminatees for a special comment and treatment that
this behavior on Hays part substantiates the General
Counsel 's position that Respondent especially wanted to
rid itself of suspected union instigators.
The General Counsel also calls special attention to the
fact that employee Budinsky testified that in one of the
meetings Scharf or Westfall told employees the Pressmen
would have received a higher wage rate than they had
received by union contract had they not chosen the
Pressmen as their bargaining representative . She said that
Alpheus Petrie, general manager, made essentially the
same statement at one of the three meetings held by the
Company with its employees . From all of this material the
General Counsel concludes that "by these statements
Respondent was in effect conversely threatening them with
lower wages in the event either union won the election and
promising employees higher wages in return for voting
against the Union 's involved in the election. Employee
Helen Spahr testified that Roger Hays indicated at one of
the meetings that if the Union were elected , employees
would receive less benefits ." It should be pointed out at
this juncture that in making credibility resolutions I have
already earlier in the instant decision discredited the
testimony of Budinsky because she did not impress me as a
reliable witness. Nevertheless, as indicated supra, I have
found that no direct or indirect threats were made
specifically to the three discriminatees to indicate that the
reason for their permanent separation and the finality of
the Company's decision in this respect , the workers were
not terminated for discriminatory reasons. I have therefore
recommended that the allegations in the complaint that
relate to the three discriminatees be dismissed.
Furthermore it seems clear to me that Hamilton , Noble,
and Hendrix were not singled out by Respondent for
special discriminatory reasons. They were included in the
mass layoff of approximately 28 bindery employees all of
563
whom were terminated on January 18 and none of whom
have been reemployed . Significantly Hamilton testified
that she made no organizational efforts (initially on behalf
of the Bindery Workers Independent Union ) until after she
was permanently laid off . I have concluded that the
organizational efforts of all three of the alleged discrimina-
tees were not the reason for their discharge . In fact there is
a dearth of evidence in the record to show that the
Respondent had knowledge of their unionization efforts at
a time proximate to the layoff of January 18. The record is
barren of direct evidence that the Company knew of the
union activities of Hamilton , Noble , and Hendrix. Nor is
there any basis for inferring such information . Hamilton
did have a conversation with Byrd early in December 1972
in the course of which she openly told him she thought the
employees should form a union . About a month elapsed
before she was terminated . There is serious doubt in my
mind that the isolated statement made by her at the time of
the occurrence of this incident was known to top
management . It was too remote in point of time to
constitute evidence that Respondent singled her out for
discharge-which event took place a month after the
conversation between Hamilton and Byrd . Similarly the
record is silent with respect to the union activities of Noble
and Hendrix . It also seems clear that, taken as a group of
three employees , these workers ' efforts on behalf of any
union were minimal . I so find . I therefore recommend that
the 8(a)(1) and (3) allegations with respect to Hamilton,
Noble, and Hendrix be dismissed.
The Challenges and the Objections to the Election
Nothing need to be added at this point to the material
already covered with respect to the election . Suffice it to
say that in view of the fact that I have determined to set the
election aside the questions that were brought out in the
hearing about the validity of the challenges to the ballots at
the election are moot . An eligibility list of employees
appropriately in the unit will be agreed to by the parties
when the second election is held.
Summary
As has been shown supra, I have found that Respondent
has engaged in violations of Section 8(a)(1) in that its
minor supervisors Ferguson , Mutton, and Lewis made
certain threats of loss of jobs, illegally interrogated a
number of Respondent 's employees as to their membership
in the Union and threatened to discontinue certain benefits
if the Pressmen was ultimately designated as the collective-
bargaining agent of the employees in the bindery depart-
ment ; Westfall and Byrd also interrogated certain employ-
ees as to whether they thought Respondent 's shop needed a
union . One employee , Lisa Ulman , asked Plant Manager
Westfall when the employees would obtain a pay raise.
Westfall responded he could not take any action on raises
at that point but claimed that if the Union did not win the
election , bindery employees would obtain 10 to 12 percent
more in wages . Another employee, Violet Pyles, credibly
testified that on two separate occasions during the week
before the election Byrd questioned her as to what she
thought of a union.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is not controverted on the record that employee Tin-din
intended to terminate her employment with Respondent on
or about March 23 . Personnel Manager Scharf attempted
to accelerate her separation to March 9 because he did not
want her to vote in the NLRB election scheduled to take
place on March 16.
I have concluded that the above incidents all constitute
clear violations of Section 8(a)(1) of the Act and I have so
found.
Concerning the discharged employees the General
Counsel states in his brief that Hamilton , Noble, and
Hendrix were union instigators and were coercively and
unlawfully threatened to be terminated when that fact was
confirmed . The General Counsel goes on to say : Ferguson
admitted relaying the fact that she had interrogated Tin-din
to Scharf . Scharf conceded that prior to the layoff he
questioned Byrd as to the union activity in the bindery
department . Henry Pisklo, former chairman of the Printing
Pressmen , stated that Hendrix , Noble , Timlin , and Hamil-
ton were the bindery employees who were most inquisitive
and most interested in seeking the Printing Pressmen to
represent them . Pisklo testified that they approached him
about the Union around Christmas of 1972. He further
testified that he considered Joan Hamilton the most active
union adherent. Scharf and Mutton identified Hamilton as
a "complainer" and as such she was no doubt suspected by
Respondent as a union adherent . Yet it is unrebuted that in
December 1972 Scharf showed Hamilton her job evalua-
tion and told her to "quit worrying" because there was
"nothing wrong with it ." Moreover, Hamilton was the
organizer and chief officer of the Independent Bindery
Workers Union-a labor organization which was admit-
tedly organized after her discharge . She was a union
activist . She was apparently quite active in seeking
information about the Printing Pressmen. Ferguson also
identified Noble as a union instigator to employee Helen
Spahr prior to the January layoff . Scharf testified Hendrix
was somewhat "less capable" but gave her an outstanding
letter of recommendation when she was terminated.
Despite these contentions made by the General Counsel
I have concluded that none of the remarks addressed to
any of them nor any other evidence in the record proves
convincingly that the Company terminated these three
employees because of their union and/or concerted
activities . Also it should be noted that I was not impressed
with the testimony of Hamilton , Noble , and Hendrix who
impressed me as testifying in a rehearsed manner. Thus,
having concluded that they were not discharged for union
and/or concerted activities-or at least that the General
Counsel failed to sustain his burden of proof with respect
to these three employees-I have recommended that the
allegations in the complaint concerning them be dismissed.
As is shown in the body of the decision I have
recommended that the election of March 16 be set aside
because of the 8(a)(1) activities of the three minor
supervisors plus Byrd and Scharf . The substance of the
objections to the election parallel in almost identical
language the material encompassed by the objections to
the election . Having concluded that the election should be
set aside it becomes unnecessary to devote further
comment to the election . The challenges have become
moot since I have recommended that the election be set
aside.
Upon the basis of the entire record , I make the
following:
CONCLUSIONS OF LAW
1. 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 interrogating employees as to their union mem-
bership and activities and those of their fellow employees;
by promising certain economic benefits in order to
discourage their membership and threatening that certain
economic benefits would be lost by the employees if the
Union came into the plant; and by creating the impression
that Respondent was keeping the employees under
surveillance , the Respondent has engaged and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act, I shall recommend that Respondent cease and desist
therefrom and that an Order be issued designed to protect
the employees of Respondent and that it affirmatively take
such action as will dissipate the effects of its unfair labor
practices.
[Recommended Order omitted from publication.]