Cato Show Printing Co., Inc

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 739 (N.L.R.B. 1975)

CATO SHOW PRINTING CO., INC. 739
Cato Show Printing Co ., Inc. and Service Employees
International Union, Local 200, AFL-CIO. Case
3-CA-5686
July 30, 1975
DECISION AND ORDER
On November 27, 1974, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a supporting
brief and an answering brief to the exceptions of the
General Counsel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
Respondent did not violate the Act by prohibiting
certain individuals from discussing union matters
and by instructing the same individuals not to talk to
Board agents investigating the case unless in the
presence of Respondent's attorney.
Executive Vice President Ashmead held two meet-
ings on February 13, 1974, with Respondent's super-
visory personnel. During the day there was a meeting
with the day-shift supervisors, including approxi-
mately 14 working foremen and floorladies employed
on the day shift, and at night there was a meeting
with night-shift supervisors, including the night
shift's six working foremen and floorladies. Person-
nel Manager Milton Gillespie testified that the meet-
ings were attended by "All of the supervisory per-
sonnel. . . . This would include the plant
superintendent, supervisors, working foremen, shift
' Member Kennedy does not agree with the Administrative Law Judge's
ruling in admitting into evidence the union authorization care bearing the
name of Richard Bednarski . Counsel for the General Counsel called Bed-
narski as a witness and he testified on direct examination concerning his
signing of a union card . However , Bednarski adamantly refused to answer
cross-examination questions concerning the circumstances surrounding his
signing of the card in issue . Even to the Administrative Law Judge 's inquiry
as to whether anyone else was present , Bednarski's terse reply was "no
comment ." Bednarski 's final response was, "That's all, no comment to any-
thing."
In Member Kennedy 's view , Respondent's motion to strike Bednarski's
testimony should have been granted because of his refusal to answer proper
questions on cross-examination . Respondent is not required to accept
Bednarski 's assertions unqualifiedly and with no opportunity to cross-exam-
ine him meaningfully . Respondent is not bound to accept this witness' self-
imposed limitations on the extent of the testimony he is willing to give.
Accordingly , Member Kennedy would strike the witness ' testimony and
reject the card which was admitted over Respondent 's objection . Therefore,
in his view , the Union did not have a majority of unit employees signed to
authorization cards . For this additional reason, he would deny the request
for a bargaining order.
foremen, floorladies. Anyone who could in any way,
shape, or form do any supervisory work whatsoever."
Ashmead told the persons at the meetings that the
Union was conducting an organizational campaign
and that the Respondent's attorneys had advised him
to explain to the supervisory people the "do's and
don'ts" that are permissible and impermissible con-
duct by such supervisor. Thus, he explained that su-
pervisors should refrain from interrogating employ-
ees concerning union activities or disciplining
employees because of such activities. Further, Ash-
mead informed the supervisors that they were not to
talk to the National Labor Relations Board agents
who were in the area unless a company attorney was
present. When Superintendent Burghdorf queried
whether they should lie when talking to a Board
agent in the presence of the Respondent's attorney,
Ashmead replied categorically, "No."
Although the Administrative Law Judge found
that working foremen and floorladies were not statu-
tory supervisors, he also found that at the time of the
February 13 meeting Respondent honestly regarded
them as part of supervision and on this account in-
cluded them in the instructions relative to talking
with a Board agent out of the presence of company
counsel. The dissent refers to the fact that in a con-
sent election agreement executed on May 30, 1974,
Respondent agreed to include working foremen and
floorladies in the unit, and in the hearing in the pre-
sent case held between September 18 and 20, 1974,
Respondent apparently conceded that they were not
statutory supervisors. Both these occurrences took
place months after the February 13 meeting. They do
not prove that the Administrative Law Judge was
wrong in concluding that at the earlier date Respon-
dent in good faith believed that the working foremen
and floorladies were statutory supervisors.
Based on his finding that (1) at the time of its in-
structions to supervisory personnel not to speak to
Board agents outside the presence of company coun-
sel Respondent in good faith believed that the work-
ing foremen and floorladies were supervisors; (2) Re-
spondent acted on advice of counsel; and (3) the
instruction was given in temperate language without
any threat of reprisal and was consistent with ap-
proved Board procedure as set out in the Board's
Field Manual and other memoranda, the Adminis-
trative Law Judge concluded that Respondent did
not by its instructions seek to impede the free access
of employees to the Board or otherwise engage in
conduct designed to interfere with employees' statu-
tory rights. Accordingly, he recommended dismissing
this allegation of the complaint. We agree.
In Midwest Regional Joint Board, Amalgamated
Clothing Workers of America. AFL-CIO, 171 NLRB
219 NLRB No. 124
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
641 (1968), a union business agent told the charging
party about the time she had filed unfair labor prac-
tice charges against the respondent union that a
Board agent was downstairs and he would advise the
charging party and any other member of the union
not to give any statement to the agent without having
legal counsel present. A Board Panel, which included
both of our dissenting colleagues in this case, re-
versed the Trial Examiner's (now Administrative
Law Judge) finding that by this advice the respon-
dent union had violated Section 8(b)(1)(A)2 In that
case, our two dissenting colleagues stated:
In our opinion, the evidence is insufficient to
establish that by giving the advice in question
[business agent] Crum sought to impede the free
access of employees to the Board.
The Administrative Law Judge reached the same
conclusion in this case and on that ground recom-
mended dismissal of this allegation of the complaint.
The Administrative Law Judge's reasoning is persua-
sive. We perceive no ground for rejecting it.
Our dissenting colleagues also contend that the
Administrative Law Judge erred in dismissing allega-
tions that Respondent violated Section 8(a)(1) on
February 13 by prohibiting employees from discuss-
ing union matters or engaging in union activities.
At the February 13 meeting, Vice President Ash-
mead spoke to the assembled group of supervisors,
which included the working foremen and floorladies.
According to Personnel Manager Gillespie:
He instructed everyone that they could in no
way, shape or form discuss Union pro or con
with any employee. But that they should not al-
low ourselves to get in the position where it
would look like we were trying to eavesdrop on
2 The dissent's attempt to distinguish Midwest Regional Joint Board, Ama!-
gamated Clothing Workers of America, AFL-CIO, supra, is not persuasive.
The Board's decision in that case turned entirely on the purpose or motive
of the union agent in advising employees not to give statements to a Board
agent without an attorney present and not on the grounds stated in the
dissent . This is clear from the Board 's rationale which we give in its entirety
The Trial Examiner finds that Business Representative Crum sought,
by advising employees to refuse to give statements to a Board agent
without an attorney present, to impede the free access of employees to
the Board and thereby violated Section 8(bXl)(A) We do not agree. In
April 1967, employee Schinske filed unfair labor charges against the
Employer. In May 1967, employee Bybee also filed unfair labor
charges against the Employer The Trial Examiner credits Bybee 's testi-
mony that about the time she filed her charge Crum came to her and
told her that a Board agent was downstairs and he would advise Bybee
and any other member of the Amalgamated Clothing Workers not to
give any statement to the agent without having legal counsel present
The Board agent was there to interview Bybee with respect to the
Schinske charge
In our opinion, the evidence is insufficient to establish that by giving
the advice in question Crum sought to impede the free access of em-
ployees to the Board We therefore reverse the Trial Examiner as to this
finding.
employees. That during work hours we could
not talk to employees about anything other than
their usual work that we were not to get any
semblance of information as to how any of us
might feel about Union activity.
The dissent would find this instruction of neutrali-
ty violative of Section 8(a)(1) because at a later date
it was decided that some of those who received the
above instruction were not statutory supervisors. The
purpose of the instruction to reputed supervisors was
not to interfere with employees' rights to engage in
union discussion or activities, but, on the contrary, to
protect those rights against invasion by supervisory
personnel. Working foremen and floorladies were
not singled out for special instructions. There was no
prohibition against members of the audience discuss-
ing union matters among themselves . In view of
Respondent's honest belief that the working foremen
and floorladies were supervisors, we find that the
above speech to supervisory personnel was not un-
lawful.
During the February 13 addresses, Vice President
Ashmead also told the supervisors to watch the em-
ployees and make sure they were not discussing the
Union or engaging in union activity during working
time, but he specifically stated that this prohibition
did not extend to nonworking time such as breaktime
and lunch periods.
At the outset we note that the complaint contains
no allegation that Respondent promulgated a no-so-
licitation rule in violation of the Act. Moreover, Ash-
mead told the supervisors that they were not to inter-
fere with employee union activity during break or
other nonworking time when the employees were "on
their own." The "rule," therefore, under the stan-
dards of Essex International' was valid.4
The dissent also argues that the "rule," even if val-
id on its face, was adopted for a discriminatory pur-
pose and therefore was violative of Section 8(a)(1).
Plant Superintendent Hilborn testified that the
"rule" was promulgated:
Because we had noticed there were different
groups of people that were congregating over
here, congregating over there during working
hours; the work was not getting done. They have
the right to discuss on their own time what poli-
tics, whatever they wanted to discuss.
7 Essex International, Inc, 211 NLRB 749 (1974).
While Superintendent Burghdorf misinterpreted the "rule " and instruct-
ed one working foreman that employees were not to talk about the Union
on "company time," we again note that this was not alleged to be a violation
of the Act. Moreover, the Administrative Law Judge found that there was
no evidence that any employee was prevented from engaging in union talk
or activity while on company property during other than working time.
CATO SHOW PRINTING CO., INC. 741
The law is clear that "working time is for work." 5
Respondent's motivation for the "rule" as revealed in
Hilborn's testimony was not, as asserted by the dis-
sent, discriminatory but to prevent interference with
work output. Its purpose was therefore entirely law-
ful.
It is not true, as stated in the dissent that unlawful
purpose or motive has never been held relevant to an
8(a)(1) violation. The dissenting opinion itself indi-
cates its inaccuracy when it states that the no-solici-
tation rule in this case, "even if valid on its face, was
plainly adopted for a discriminatory purpose . . .
and therefore was violative of Section 8(a)(1)." A
more authoritative example is N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409 (1964), where the Su-
preme Court held that a grant of benefits to employ-
ees "which is undertaken with the express purpose of
impinging upon their freedom of choice for or
against unionization and is reasonably calculated to
have that effect" is violative of Section 8(a)(1). That
motive was considered relevant to the 8(a)(1) viola-
tion is further evidenced by the Court's statement:
"Other unlawful conduct may often be an indication
of the motive behind a grant of benefits while an
election is pending, and to that extent it is relevant to
the legality of the grant ...." (375 U.S. at 410). In
cases such as N. L. R. B. v. Truck Drivers Local Union
No. 449, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL [Buffalo Linen Supply Co.], 353 U.S. 87 (1957);
N.L.R.B. v. Brown Food Store, 380 U.S. 278 (1965);
and American Ship Building Co. v. N. L. R. B., 380 U.S.
300 (1965), the Supreme Court upheld the legality of
employer lockouts under the circumstances of those
cases where there was no evidence of antiunion moti-
vation. It thus sanctioned interference with the right
to strike in the absence of antiunion motivation. As
stated by Mr. Justice Goldberg and the Chief Justice
in their concurring opinion in American Ship Build-
ing, supra (380 U.S. at 339):
. .. the correct test for determining whether §
8(a)(1) has been violated in cases not involving
an employer antiunion motive is whether the
business justification for the employer's action
outweighs the interference with § 7 rights in-
volved.
N. L. R. B. v. Burnup & Sims, Inc., 379 U.S. 21
(1961), is not to the contrary. That was a discrimina-
tion case. The Court held that an employer's good
faith was not a defense to the discharge of an inno-
cent employee while engaging in protected activity.
That the Court was engaged in balancing conflicting
legitimate interests and came down on the side of the
5 Peyton Packing Company, Inc., 49 NLRB 828, 843 (1943).
discharged employee is evidenced by the fact that in
the concurring opinions of Mr. Justice White and
Mr. Justice Goldberg in American Ship Building, su-
pra, Burnup & Sims is cited along with such cases as
Republic Aviation Corporation v. N. L. R. B., 324 U.S.
793 (1945); N.L.R.B. v. Truck Drivers Local Union
No. 449, Teamsters, supra; and N.L.R.B. v. Erie Re-
sistor Corp., 373 U.S. 221 (1963), as examples of ba-
lancing cases. International Ladies' Garment Workers'
Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v.
N. L. R. B., 366 U.S. 731 (1961), also cited in the dis-
sent involved employer recognition of a minority
union, a literal violation of Section 8(a)(2) of the
Act.6 It was in connection with that fact that the
Court said "prohibited conduct cannot be excused
by a showing of good faith." But as such cases as
Buffalo Linen, Brown, and American Ship Building il-
lustrate motive can be considered a factor in de-
termining the illegality of certain alleged 8(a)(1) con-
duct.'
It seems to us that no narrow mechanical rule can
be substitute for judgment, the weighing of compet-
ing interests, and considerations of fairness in the in-
finite variety of fact situations with which the Board
is confronted in applying the Act. As stated by the
Supreme Court in Republic Aviation Corporation v.
N. L. R. B., supra at 798:
The Wagner Act did not undertake the impos-
sible task of specifying in precise and unmistak-
able language each incident which would consti-
tute an unfair labor practice. On the contrary
that Act left to the Board the work of applying
the Act's general prohibitory language in the
light of the infinite combinations of events
which might be charged as violative of its terms.
Thus a "rigid scheme of remedies" is avoided
and administrative flexibility within appropriate
statutory limitations obtained to accomplish the
dominant purpose of the legislation.
This is not a case of discrimination or of recogniz-
ing and bargaining with an assisted labor organiza-
tion. Any interference with employees' rights by the
instructions not to talk to Board agents except in the
presence of a company attorney and not to discuss
the Union with other employees was more theoretical
than real. These were instructions given to supervi-
sors. Also sharing in the instructions were the work-
ing foremen and foreladies because Respondent hon-
estly believed that they were supervisors. Admittedly
as to supervisors, the instructions were lawful. The
instructions against discussing the Union with em-
6 Sec. 8(a)(2) prohibits an employer from contributing financial or other
support to a labor organization.
See Christensen & Svanoe, Motive and Intent in the Commission of Unfair
Labor Practices, 77 Yale L.J. 1269.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees was intended to prevent interference with the
employees' union activity. It would be ironic if the
Board were to convert this neutrality instruction into
a violation of the Act. Under all the circumstances of
this case, including, but not limited to, the honest
belief of Respondent as to the supervisory status of
the working foremen and foreladies, we believe that
the Administrative Law Judge reached the right re-
sult in finding no violation of the Act in the fore-
going conduct.
ORDERS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Cato Show Printing Co.,
Inc., Cato, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
MEMBER FANNING and MEMBER JENKINS, concurring
and dissenting in part:
The Administrative Law Judge dismissed allega-
tions that Respondent violated Section 8(a)(1) on
February 13 by prohibiting employees from discuss-
ing union matters or engaging in union activities and
further violated Section 8(a)(1) by instructing em-
ployees not to talk to Board agents investigating this
case unless in the presence of Respondent's attorney.
We find merit in these exceptions.
The Administrative Law Judge found that, on the
advice of counsel, Respondent, through its executive
vice president, Joseph Ashmead, conducted two
meetings attended by 20 working foremen and floor-
ladies from both the day and night shifts.
Here, as the Administrative Law Judge found, it is
undisputed that all of the 20 working foremen and
floorladies possessed no supervisory status. Indeed,
in the proceeding below, Respondent took the posi-
tion that these people were not supervisors and main-
tained that they should be included within the bar-
gaining unit. Moreover, in the representation case
Respondent stipulated that "working foremen" were
to be included in the unit and later submitted an
election eligibility list containing the names of the
employees classified as working foremen and floorla-
dies.
Returning to the February 13 meetings,
Respondent's own witness, Personnel Manager Mil-
ton Gillespie, admitted on direct examination that
Ashmead (who did not testify) told those present, in-
cluding the 20 working foremen and floorladies, that
they "could in no way, shape or form discuss Union
pro or con with any employee." Standing alone, this
order, coming from a high-ranking management offi-
cial, is clear evidence of 8(a)(1) misconduct, and our
colleagues have so found.8
In addition, according to testimony of
Respondent's plant superintendent, John Hilborn,
Ashmead also told employees that they were to
"watch the people," to keep them from "congregat-
ing during working hours," making sure they did not
discuss the Union "with anyone" or engage in union
activities. But the Administrative Law Judge also
found that Ashmead specifically told these employ-
ees that they were in no way to interfere with the
employees' lunchbreaks, other breaks, or other "non-
working time" when the employees were "on their
own." Essentially for these reasons, our colleagues
agree with the Administrative Law Judge that, with
these limitations, the Respondent's rule was not vio-
lative of Section 8(a)(1). We disagree because the
rule, even if valid on its face, was plainly adopted for
a discriminatory purpose, as Hilborn's testimony re-
veals, and therefore was violative of Section 8(a)(1).
Indeed, until now we have understood this to be the
position of our colleagues. See, e.g., QIC Corpora-
tion, 212 NLRB 63 (1974).
Finally, as further evidence in support of the Gen-
eral Counsel's allegation that Respondent prohibited
employees from discussing union activities, there is
the Administrative Law Judge's finding that Superin-
tendent Elaine Burghdorf instructed an employee,
one of the working foremen, that employees were not
to talk about the Union on "company time." Accord-
ingly, by any of the standards by which we, or our
colleagues, judge the validity of such rules,9 this is
conclusive evidence of 8(a)(1) misconduct. In sum,
we find that the General Counsel's allegation is am-
ply supported in each of the above three incidents.
With regard to the alleged interference with the
Board's investigation, the Administrative Law Judge
found that, during the February 13 meetings, Ash-
mead told the 20 working foremen and floorladies
that there were Board agents in the area and they
were not to talk to them unless in the presence of
Respondent's counsel.
As the Administrative Law Judge pointed out,
there are circumstances in which such instructions
regarding the presence of counsel are entirely proper.
But, as he further noted, this privilege is limited, and
applies only to supervisors or "agents whose state-
ments . . . would bind a respondent." As shown, and
as the Administrative Law Judge conceded, that
privilege has no application here because it is undis-
puted that these 20 working foremen and floorladies,
s See , e.g., Breaux Mart, Inc., 217 NLRB No. 56 (1975).
9See Essex International, Inc., 211 NLRB 112 (1974).
CATO SHOW PRINTING CO., INC. 743
to whom these orders were given, were employees.
Thus, it is abundantly clear that Respondent at these
meetings openly discouraged some 20 employees
from cooperating with the Board and thereby imped-
ed an investigation, the sole purpose of which was to
vindicate their own and their fellow employees' stat-
utory rights.
Addressed to such a large number of employees,
assembled in the presence of management in
Respondent's offices, these instructions, coming
from a high-ranking official, on the advice of
Respondent's counsel, obviously had a considerable
impact, especially in this small community 10 where
one out of every three residents is employed by Re-
spondent. Moreover, as we find, during these same
meetings , Respondent ordered that these employees
were in "no way, shape or form" to discuss the
Union with their fellow employees. In addition, we
and our colleagues agree that the Respondent re-
quested some of these 20 employees to report on the
protected activities of their fellow employees, coer-
cively interrogated employees about their union ac-
tivities, and discriminatorily refused to recall the
Union's leading adherent. In view of these circum-
stances, orders that the employees speak to Board
agents only in the presence of Respondent's counsel
would not be taken lightly and could hardly be char-
acterized as mere advice. Compare Midwest Regional
Joint Board, Amalgamated Clothing Workers of Amer-
ica, AFL-CIO, 171 NL 641 (1968)."
Yet our colleagues would find that these blatant
instrusions upon these employees' statutory rights to
speak freely among themselves about their self-orga-
nization and to assist one another in the vindication
of their statutory rights are excusable because Re-
spondent, unaware of their true status as employ-
ees," unwittingly infringed on these rights in "good
faith." This view is contrary to the teachings of the
Supreme Court that "prohibited conduct cannot be
excused by a showing of good faith." International
Ladies' Garment Workers' Union, AFL-CIO [Bern-
hard-A ltmann Texas Corp.] v. N L.R.B., 366 U.S. 731,
739 (1961). See also N.L.R.B. v. Burn up & Sims, Inc.,
10 Cato , New York, is a community of 450 persons , one-third of whom are
employed by Respondent
1 Contrary to our colleagues, we find that case is readily distinguishable
from the instant matter There we held that , even assuming an unlawful
motive , the "advice" of respondent unions' representative to an employee
(and job steward ) that she arrange to have an attorney (not respondent
unions') present when she spoke to a Board agent investigating charges filed
against her employer was insufficient evidence of restraint or coercion with-
in the meaning of Sec 8 (b)(l)(A) Clearly the element of discretion is absent
in the instant case . Moreover , unlike Midwest where the discussion was
between fellow-employee representatives , here the relationship of the parties
was quite different-the Respondent was instructing its own employees
12 This "mistake" was short-lived, as shown , supra. 2 months later, on
April 15, Respondent , through its attorney , agreed and stipulated that
"working foremen " were employees within the meaning of the Act
379 U.S. 21, 22 (1964). Undaunted, our colleagues
balance on a scale of their own design the statutorily
protected rights of these employees against
Respondent's asserted "good faith," finding that the
scale tips in favor of the latter. Thus, they have rele-
gated statutory rights to that "precarious status"
which the Court has emphatically held is contrary to
the policy behind Section 8(a)(1). As the Supreme
Court held in Burnup & Sims, Inc., "[Section] 8(a)(1)
is violated if an employee is discharged for miscon-
duct arising out of a protected activity, despite the
employer's good faith, when it is shown that the mis-
conduct never occurred." 379 U.S. at 23. Similarly,
Section 8(a)(1) is violated if an employee is restricted
in protected activity, despite the employer's good-
faith view that he is a supervisor lacking such rights,
when it is shown that he is not a supervisor. Clearly,
statutory rights are paramount in these circum-
stances, and once they have been invaded "[m]ore
need not be shown." ILGWU v. N.L R.B., supra.
Our colleagues also argue that no violation oc-
curred because (1) Respondent had no unlawful pur-
pose, and (2) Respondent's purpose was to protect
the rights of other employees from being infringed by
supervisors. But unlawful purpose or motive has nev-
er been held relevant to an 8(a)(1) violation. And an
employer cannot "protect the rights of other employ-
ees" by infringing the statutory rights of the employ-
ees it wvrongly thought to be supervisors; this reason-
ing would justify every antiunion violation of Section
8(a) by an employer, by providing him with the de-
fense that he was protecting the right of other em-
ployees not to engage in concerted activity. For
"whatever the employer's motive. . . . [i]t is the ten-
dency . . . to weaken or destroy the §8(a)(1) right
that is controlling." N.L.R.B. v. Burnup & Sims, supra
at 22, 23-24. See also N. L. R. B. v. Illinois Tool Works,
153 F.2d 811, 814 (C.A. 7, 1946).
Respondent could have no lawful purpose in or-
dering employees not to give statements to Board
agents. "The investigation of charges filed is an in-
tegral and essential stage of Board proceedings."
Robert Scrivener, d/b/a A A Electric Co., 177 NLRB
504 (1969). "Congress has made it clear that it wishes
all persons with information about such practices to
be completely free from coercion against reporting
them to the Board." Nash v. Florida Industrial Com-
mission, 389 U.S. 235, 238 (1967). The discharge or
disciplining of employees for giving "a written sworn
statement to a Board field examiner investigating an
unfair labor practice charge filed against the employ-
er constitutes a violation of §8(a)(4) of the National
Labor Relations Act." N. L. R. B. v. Scrivener, d/b/a
A A Electric Company, 405 U.S. 117, 125 (1972).
"Any coercion used to discourage, retard, or defeat
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that access is beyond the legitimate interests of a la-
bor organization [or Employer]. That was the philos-
ophy of the Board in the Skura case, Local 138, Inter-
national Union of Operating Engineers, 148 NLRB
679, and we agree that the overriding public interest
makes unimpeded access to the Board the only
healthy alternative . . . ." N.L.R.B. v. Industrial
Union of Marine & Ship Building Workers of America,
AFL-CIO, 391 U.S. 418, 424 (1968).
In view of the foregoing findings, and the other
unfair labor practices we have found, we would order
that Respondent bargain with the Union as the em-
ployees' duly designated bargaining representative."
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Cato Show Printing Co., Inc., a New
York State corporation , with its office and place of busi-
ness in Cato, New York, is engaged in the business of com-
mercial offset printing . During its normal course of busi-
ness operations Respondent during the past year
manufactured and sold products valued over $50,000
which it shipped directly to locations outside of the State of
New York.
The Respondent admits that it is an employer engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act.
13 Member Kennedy would disallow the authorization card signed by
Richard Bednarski because Bednarski refused to answer "questions con-
cerning the circumstances surrounding his signing of the card in issue." But,
as the Administrative Law Judge noted , Respondent did not offer to prove
what "circumstances" it sought to elicit from Bednarskt and did not request
the Board to compel compliance with the subpena issued by the General
Counsel , nor did Respondent itself subpena Bednarski. In any event, there
is no dispute that, as Bednarski testified , the card was mailed to him, he
read the card , filled out the entire card , and signed his name . The Adminis-
trative Law Judge verified that Bednarski's handwriting matched that on his
W-4 form . The only "circumstance" Bednarski refused to divulge was
whether someone else was present when he signed it . And we find that such
a "circumstance" is hardly sufficient to vitiate Bednarski 's clear and unmis-
takable designation of the Union as his bargaining representative.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held September 17-20, 1974, is based
upon unfair labor practice charges filed by Service Em-
ployees' International Union, Local 200, AFL-CIO, here-
after called the Union, on May 31, 1974, and an amended
charge filed on June 10, 1974, and a complaint issued on
July 30, 1974, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director for Region 3, alleging that Cato
Show Printing Co., Inc., hereafter called the Respondent,
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, herein called the Act.' The Respondent filed an an-
swer denying the commission of the alleged unfair labor
practices.
Upon the entire record,2 from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
i At the hearing the Respondent moved to dismiss the complaint, on the
ground that the Regional Director had dismissed earlier charges filed by the
Union similar to the charges filed herein , and no appeal was taken by the
Union from that action . I denied the motion . See Local Union No. 38, Sheet
Metal Workers' International Association AFL-CIO (Mid-Hudson Sheet Met-
al, Inc ), 183 NLRB 110 In . 1 (1970); W. Ralston & Co., Inc and Technical
Tape Corporation, 131 NLRB 912, (1961) and Jersey City Welding & Ma-
chine Works, Inc, 92 NLRB 511 (1950), footnote 2.
2 Respondent's unopposed motion to correct the record is granted.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Service Employees ' International Union,
Local 200, AFL-CIO, is admittedly a labor organization
within the meaning of Section 2(5) of the Act.
III. THE SETTING AND QUESTIONS TO BE DECIDED
Respondent 's printing business is located in Cato, New
York, total population of about 450. On December 26,
1973, the Union began a campaign to organize
Respondent 's approximately 150 production and related
employees. By its letter to Respondent on March 20, 1974 3
the Union requested recognition and advised Respondent
that it represented a majority of the employees and was
prepared to submit proof of its majority status to an impar-
tial party . Respondent , by its letter of March 25 , acknowl-
edged the Union 's demands and took the position that the
Union should petition the Board for an election to resolve
the question concerning representation. The Union filed
such a petition with the Board 's Regional Director on
March 27, Case 3-RC-6009. On April 17 the Regional Di-
rector approved an election agreement entered into by Re-
spondent and the Union wherein they agreed that the Re-
gional Director would conduct an election among
Respondent's employees in the appropriate unit on May
30. The election was never conducted because the Regional
Director on May 22 granted the Union's request to with-
draw its representation petition . The withdrawal request
was approved by the Regional Director with prejudice, that
is the Union could not petition for an election among
Respondent 's employees for at least 6 months.
The pleadings present the following questions for deci-
sion.
1. In terminating seven employees on January 25 and 18
on February 5 was Respondent motivated by a desire to
discourage its employees from supporting the Union, or by
a desire to retaliate against one or more of the employees
because of their union membership or activities?
2. Did Night Superintendent Burghdorf on January 21
interrogate an employee about his own and other employ-
ees' union activities?
3. Did Night Superintendent Burghdorf and General
3 All dates hereafter , unless otherwise specified , refer to 1974.
CATO SHOW PRINTING CO., INC. 745
Plant Superintendent Hilborn on February 13, or therea-
bouts, forbid employees to discuss the Union or to engage
in union activities on Respondent 's premises during non-
working hours.
4. Did Night Superintendent Burghdorf and General
Plant Superintendent Hilborn on February 13, or therea-
bputs, instruct or solicit employees to report about the
union activities and union sympathies of other employees?
5. Did Executive Vice President Ashmead and Night
Superintendent Burghdorf on February 13 direct and in-
struct employees not to talk to agents of the Board?
6. Did President Pittinger on April 19 threaten employ-
ees with the closing of Respondent 's business or with
"other reprisals" if they supported the Union?
Finally, if Respondent violated the Act in whole or in
part, as described above, was the misconduct of the type
which, in the circumstances, was sufficient to warrant the
imposition of an order requiring Respondent to recognize
and bargain with the Union as the employees' exclusive
bargaining representative?
IV. THE ALLEGED INTERFERENCE, RESTRAINT , AND COERCION
A. The Alleged Interrogation
The General Counsel contends that Respondent on Jan-
uary 21 through Night Superintendent Burghdorf interro-
gated employee Wayne Hawker about his own and other
employees' union activities and sympathies, thus violating
Section 8(a)(1) of the Act. The pertinent evidence can be
briefly stated.
Hawker, known by Respondent to be opposed to the
Union, on Friday, January 18, volunteered the information
to General Plant Superintendent Hilborn that a union or-
ganizational meeting was scheduled for Sunday, January
20, and asked whether Hilborn wanted him to attend the
meeting. Hilborn stated that Respondent could not ask
Hawker to attend such a meeting . Present during this con-
versation was Night Superintendent Burghdorf , the highest
ranking supervisor on the night shift, in charge of the ap-
proximately 55 night-shift employees. On Monday, Janu-
ary 21, Burghdorf, according to her credible testimony, ini-
tiated the following conversation with Hawker. Burghdorf,
who was at Hawker's work station on business, asked him
if he had attended the union meeting held Sunday. Hawker
answered in the affirmative and Burghdorf asked for the
names of the employees who had attended the meeting.
Hawker described approximately four of the employees,
one of whom he described as "the instigator of the Union"
and whom he pictured as the "big woman" who operated
the cutter on the night shift, a description which could have
only fit employee Yvonne Davenport. The next day, Janu-
ary 22, Burghdorf personally transmitted Hawker's infor-
mation to her superior , General Plant Superintendent Hil-
born , and on that same night submitted a written
memorandum covering her conversation with Hawker to
Personnel Manager Gillespie.4 Davenport, who in fact was
4 As described infra, Burghdorf previously had been directed to inform
Gillespie , by memo, about the union activities of the employees on the night
shift.
the instigator of the Union, was terminated on January 25
because, as found infra, Respondent had learned about her
union activities.
To sum up, Respondent through Burghdorf, its highest
ranking official on the night shift, interrogated employee
Hawker about his own union activities. Whether he attend-
ed a union organizational meeting-and about the union
activities of his fellow employees-whether other named
employees attended this meeting-without giving Hawker
any legitimate explanation for the interrogation or any as-
surance that no reprisals would be meted out to Hawker if
he refused to answer the question or to the employees
whom Hawker identified as having attended the union
meeting. Such conduct reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their statu-
tory right to support the Union. The inherent vice of soli-
citing one employee about the union activities or senti-
ments of his fellow employees is graphically demonstrated
by the instant interrogation. It was primarily through the
information secured from Hawker that Respondent
learned of employee Davenport's role in the Union's orga-
nizational campaign which as found infra resulted in
Davenport's unlawful discharge. Based on the foregoing, I
find that Respondent violated Section 8(a)(1) of the Act
when Burghdorf interrogated employee Hawker on Janu-
ary 21 about his union activities and the activities of other
employees.
In reaching this conclusion I have considered
Respondent's contention that it was not bound by
Burghdorf's conduct for the reason that Burghdorf was a
union adherent and that since the employees knew this her
conduct could not have reasonably tended to coerce the
employees in the exercise of their right to support the
Union. The record however does not demonstrate that
Burghdorf supported the Union either openly or clandes-
tinely. As I have found infra, Burghdorf did not solicit em-
ployees to sign union cards, and the whole record does not
refute her credible testimony that she did not encourage
employees to support the Union or otherwise voice her
support for the Union .5
B. The Alleged Threats
The complaint in substance alleges that on April 19
Emma Pittinger, Respondent's president, threatened em-
ployees with the closing of Respondent's place of business
or with "other reprisals" if they supported the Union.
The evidence pertaining to this allegation arises out of
the discharge of Night Superintendent Burghdorf on April
19 which prompted a meeting between a group of employ-
ees and Pittinger. Floorlady Isabelle Combes with about 25
employees on April 19 at the start of the night shift-about
3:30 p.m.-went to Pittinger's office and asked for a meet-
ing. A meeting followed which lasted about 15 or 20 min-
5 Respondent points to an occasion apparently on January 25 when
Burghdorf according to Working Foreman Hand remarked , "They or we
are trying to start a union ." Hand was very vague and evasive and at times
incoherent about this conversation and obviously was not sure if Burghdorf
included herself among those trying to start a union . I cannot infer from this
ambiguous remark an admission that Burghdorf was a union adherent.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utes. Pittinger was questioned about Burghdorf's discharge,
also about the termination of Respondent's executive vice-
president, Ashmead, and asked whether Respondent fa-
vored the Union. Pittinger refused initially to discuss these
matters but after repeated questioning explained the rea-
sons for the termination of Burghdorf and Ashmead and in
answer to the inquiry about Respondent's feeling toward
the Union stated that no employer was in favor of or want-
ed a union in its plant. This much of the meeting is not
disputed, but in issue is whether Pittinger told the employ-
ees that she would have to close the business if the Union
succeeded in getting into the plant because the Company
could not afford the Union. This is what General Counsel's
witnesses Esther Post, Michele Tuzinski, and Edwin Mack
attribute to Pittinger. Post and Tuzinski did not have any
independent recollection of this remark and had to have
their memories refreshed. Respondent called five witnesses,
including Pittinger and Combes, who denied that Pittinger
threatened to close the business. On balance, on this point,
I was more impressed by Respondent's witnesses. Accord-
ingly, I find Pittinger did not as alleged in the complaint
threaten to close the business. I do find that Pittinger dur-
ing the course of the meeting told the employees that Re-
spondent had spent about $10,000 to combat the Union's
last organizational campaign 6 and that because of infla-
tion it would cost twice this amount to combat the Union's
current campaign and that this money "could conceivably"
be in the employees' pockets.' Nevertheless, I am not of the
opinion that this remark constitutes an unlawful threat of
reprisal. It merely predicted one possible economic conse-
quence resulting from an increase in the Respondent's
business costs. Cf. Rospatch Corporation, 193 NLRB 772.
Accordingly, based on the foregoing, I shall recommend
that this portion of the complaint be dismissed.
C. The Instruction That Employees Not Talk to Board
Agents
The General Counsel alleges that Respondent on Febru-
ary 13 "directed and instructed employees not to talk to
agents of the National Labor Relations Board" who were
investigating the Union's unfair labor practice charges filed
against Respondent on February 6 and 12 in Case 3-
CA-5564.8
On February 13 General Plant Superintendent Hilborn
phoned Night Superintendent Burghdorf at her home and
told her that there were two National Labor Relations
Board agents in the area and for Burghdorf to phone Ka-
thryn LaFave, Ruth Terwilliger, Darrel Hand, Linda Way-
man, Linda Clark, and Rosemary Melvin and tell them not
to talk to the Board agents unless Respondent's attorney
was present. All of the aforesaid persons were at the time
so-called working foremen or floorladies on the night shift.
Burghdorf immediately phoned all but one and told them
that Hilborn had stated there were two Board agents in the
area and "they were not to talk to them unless the compa-
ny lawyer was present." 9
When the night shift's six working foremen and floorla-
dies arrived for work on February 13 they were summoned
to a meeting attended by Burghdorf, Hilborn, and Person-
nel Manager Gillespie at which time Respondent Executive
Vice President Ashmead addressed them. Ashmead
brought up the fact that the Union was conducting an or-
ganizational campaign and that Ashmead in the past had
worked with a union and stated that unionization would
not bother him, that he could live with or without a union.
Ashmead stated that Respondent's lawyers had advised
him to explain to the Company's supervisory people the
so-called "do's and don'ts" conduct which supervisors can-
not engage in during a union organizational campaign, and
explained briefly certain conduct that those present should
refrain from engaging in, i.e., interrogation, disciplining
employees because of their union activity. Ashmead also
advised them that they were not to talk to the National
Labor Relations Board agents who were in the area unless
a company attorney was present. Burghdorf asked if they
did meet with the Board agent, in the presence of
Respondent's attorney, should they lie to the Board agent.
Ashmead said "No" and Burghdorf remarked that this was
good since she would not lie.10
Earlier on February 13, Ashmead held a similar meeting
with the day-shift supervisory personnel including the ap-
proximately 14 working foremen and floorladies employed
on the day shift and at the end of the meeting admittedly
instructed Hilborn to phone Night Shift Superintendent
Burghdorf -and have her "notify her supervisory people
that there was an NLRB attorney in the area, . . . and tell
them not to talk to an NLRB man or attorney unless the
company attorney was present." Hilborn, as described, su-
pra, placed such a phone call.
Respondent takes the position that its instruction con-
firmed to the Board's policy set forth in NLRB Field Man-
ual, section 10056.5 as supplemented by General Counsel's
Memoranda 68-15, dated April 18, 1968, and 67-32 dated
July 13, 1967. Briefly summarized, it is the General
Counsel's policy that where a charged party in an unfair
labor practice proceeding is represented by counsel that
the charged party's counsel or representative is to be con-
tacted and afforded an opportunity to be present during
the interview of any intermediate or lower level supervisor
6 Pittinger admitted that Respondent's campaign to keep the Union out in
1964 had cost between $8,000 and $10,000.
7 Based upon a synthesis of the testimony of employees Post, Tuzinski,
and Mack. Pittinger and Hilborn admitted that Pittinger, in substance, said
that it was costly for Respondent to combat the Union's organizational
drive and that inflation had doubled such costs, but denied that Pittinger
indicated that such costs could be granted to the employees in the form of
additional wages. However, employees Post, Mack, and Tuzinski, on this
point, impressed me as the more reliable and trustworthy witnesses.
8
These charges alleged in substance that Respondent violated the Act by
terminating employees on January 25 and February 5. These are the identi-
cal terminations involved in this proceeding.
v The description of the Hilborn-Burghdorf phone conversation and the
subsequent conversations between Burghdorf and the working foremen is
based upon Burghdorf's credible testimony. To the extent that Burghdorf's
version of her phone conversation with Hilborn does not jibe with
Hilborn's, I have credited Burghdorf's recollection because she impressed
me as the more reliable of the two on this point.
10 What took place at the meeting of February 13 is based on the testimo-
ny of Burghdorf and Hilborn which is generally consistent except on wheth-
er Ashmead discussed or brought up the "do's and don'ts." On this point,
Hilborn impressed me as more reliable. Gillespie who also testified about
this meeting was an unimpressive witness on this subject and I have rejected
his testimony whenever it conflicts with either Hilborn or Burghdorf.
CATO SHOW PRINTING CO., INC.
where : (a) the charged party or his counsel or representa-
tive are cooperating in the Board 's investigation ; (b) coun-
sel or representative makes the individual to be interviewed
available with reasonable promptness so as not to delay the
investigation ; and (c) during the interview counsel or rep-
resentative does not interfere with, tamper , or impede the
Board agent's investigation ." Since there is no contention
that Respondent was not cooperating with the Board in the
investigation of the charges filed by the Union it would
seem that consistent with the General Counsel's policy Re-
spondent would be privileged to have its attorney present
during any interviews of its low level supervisors. However,
the evidence indicates that the approximately 20 working
foremen and floorladies who were instructed by Respon-
dent not to speak to the Board agent outside the presence
of Respondent's attorney, were not statutory supervisors,"
and the Board's Field Manual and relevant supplementary
memoranda limit Respondent's privilege to have counsel
present only "during the interview of any supervisor or
agent whose statement or actions would bind a respon-
dent ." On the other hand , Respondent at all times material
regarded its working foremen and floorladies as a part of
supervision and there is insufficient evidence to indicate
that Respondent was not acting in good faith in directing
them, along with the other members of supervision, not to
speak to Board agents outside the presence of counsel.
It is settled that under certain circumstances an employ-
er who tells his employees not to cooperate with a Board
agent or not to talk with a Board agent violates Section
8(a)(1) of the Act. See, Certain -Teed Products Corporation,
147 NLRB 1517 (1964); Hawthorne Aviation, 161 NLRB
1326, 1343-44 (1966); J. W. Mortell Company, 168 NLRB
435 (1967); Gal Tex Hotel Corporation, d/bla Admiral
Semmes Hotel and Motor Hotel, 154 NLRB 338 (1965). In
Certain-Teed, in concluding that the employer violated
the Act by advising employees not to cooperate with Board
agents, the Board found that the employer's conduct "was
designed to . . . discourage employees from supplying in-
formation to a Board agent." The Board however was
careful to point out that it was not saying that under other
circumstances, not present in Certain-Teed, an employer
could not lawfully advise his employees that they had a
right not to make statements to Board agents . In the in-
stant case, it is my view, that Respondent did not violate
the Act by advising the working foreman and floorladies
11 As both the Field Manual and Memorandum 67-32 make clear, the
above policy does not preclude the General Counsel from receiving infor-
mation from intermediate or lower level supervisors who come forward vol-
untarily, or who indicate that they do not wish to be interviewed in the
presence of the charged party's counsel or representative.
12 Respondent adduced no evidence to establish that any of the working
foremen , some of whom are classified as floorladies, were statutory supervi-
sors. To the contrary , in this proceeding Respondent took the position that
Floorladies Mary Harris and Bertha Hubbard were not statutory supervi-
sors , but were included within the appropriate bargaining unit , and in effect
stipulated that all of the working foremen and floorladies herein were in-
cluded within the appropriate bargaining unit. Moreover , in the representa-
tion case , Respondent entered into an election agreement wherein it agreed
that the classification "working foremen" was included within the bargain-
ing unit and thereafter submitted a voting eligibility list which included all
of the working foremen and floorladies . Under the circumstances, I find
that Respondent bore the burden of establishing that the working foremen
and floorladies involved herein were statutory supervisors.
747
not to speak to a Board agent outside the presence of com-
pany counsel . Here the evidence establishes that Respon-
dent in so instructing its employees was not motivated by a
desire to discourage its employees from supplying informa-
tion to the Board or otherwise to impede a Board investiga-
tion . To the contrary , the evidence establishes that the
working foremen and floorladies were regarded by Re-
spondent as part of supervision , and that acting upon ad-
vice of counsel Respondent notified all of its supervisory
personnel including the working foremen and floorladies
that they should not speak to a Board agent outside the
presence of company counsel . This instruction was given in
temperate language without any threat of reprisal and was
consistent with approved Board procedure as set out in the
Board's Field Manual and other memoranda . For all of
these reasons , I conclude that the evidence is insufficient to
establish that by advising its working foremen and floorla-
dies not to speak with a Board agent outside of the pres-
ence of company counsel that Respondent sought to im-
pede the free access of employees to the Board or otherwise
engaged in conduct designed to interfere with employees
statutory rights. Cf. Midwest Regional Joint Board, Amalga-
mated Clothing Workers of America AFL-CIO, 171 NLRB
641 (1968).
D. Prohibiting Employees From Discussing the Union or
Engaging in Union Activities
It is alleged that on or about February 13, John Hilborn,
the general plant superintendent, and Alice Burghdorf, the
night superintendent, prohibited employees from meeting
during nonworking hours in nonworking areas to discuss
the Union or from engaging in other union activities.
The sole evidence that Burghdorf engaged in conduct
which would colorably fall within the ambit of this allega-
tion is that on some unknown date she informed Working
Foreman Hand that employee Butman was not to talk
about the Union on "company time," to stop him from
doing this, and send Butman to her office. There is no
evidence that either Butman or any other employee was
prevented from engaging in union talk or activity while on
company property during time other than working time,
i.e., lunchbreak or other breaks. To the contrary , at super-
visory meetings held on February 13, Respondent Execu-
tive Vice President Ashmead told supervision to watch the
employees and make sure they were not discussing the
Union or engaging in union activity during working time,
but specifically stated that this prohibition did not extend
to nonworking time such as the employees' breaktime, in-
cluding lunchbreak. Thereafter, Hilborn on numerous oc-
casions during working time walked over to a working area
whenever he observed employees not working but rather
talking among themselves, and advised them that if they
were talking about their work to continue, but if not, they
should return to work. There is no evidence that Respon-
dent during working time permits its employees to discuss
nonwork related matters rather than work. Based on the
foregoing, I find the evidence does not establish that Re-
spondent, as alleged in the complaint, impermissibly pro-
hibited employees from engaging in union discussion or
activities during their nonworking time, and shall recom-
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that this portion of the complaint be dismissed.
E. The Instruction That Employees Report on the Union
Activity of Other Employees
It is alleged that Respondent on or about February 13,
through General Plant Superintendent Hilborn and Night
Superintendent Burghdorf, "instructed and solicited em-
ployees to report to the Respondent the union activity of
any employees and/or to report to the Respondent the
names of any employees talking about the Union."
Burghdorf testified that early during the month of Janu-
ary she was called into the office of Personnel Manager
Gillespie and in the presence of Hilborn was told by Gilles-
pie that an employee had been given a "union envelope,"
(referring to the union authorization cards being distribut-
ed by the Union which were in the form of an envelope), in
the Company's parking lot by Yvonne Davenport. In re-
sponse to Gillespie's inquiry, Burghdorf stated she was ig-
norant of any employee union activity. Gillespie then told
her to watch Davenport and to observe who Davenport
associated with and to report back to Gillespie. Burghdorf
stated that Davenport did not generally associate with the
employees during breaktime because she usually came into
Burghdorf's office and visited or played cards with Burgh-
dorf or the others who were in the office. Gillespie re-
sponded that if she observed any union acitivity Burghdorf
was to write him a memo on the subject because he wanted
to know the names of the employees that were engaging in
this activity. The above described meeting and the words
attributed to Gillespie is based upon the testimony of
Burghdorf. Gillespie and Hilborn admit that a meeting oc-
curred, but in substance testified that Gillespie simply in-
formed Hilborn and Burghdorf that he had become aware
of union activity in the plant, and told them to keep their
eyes and ears open because he wanted to be kept informed
of such activity. He also told them to keep him informed
by means of written memorandum. Of the three, Burghdorf
impressed me as the more trustworthy and reliable witness
concerning this meeting. Regarding the date of the meet-
ing, Burghdorf placed it in early January. Gillespie and
Hilborn who placed the meeting later during the month
were not impressive witnesses on this point, and I find that
the meeting was held no later than January 18, and possi-
bly earlier. Thus, on January 18, Burghdorf, according to
the credible testimony of employee Dale Ferguson, in ef-
fect told her that she had been instructed to write a memo
"to upstairs" telling them about employees' union activi-
ties.
There is no evidence that following this meeting Burgh-
dorf used any employee under her supervision to keep
track of the employees' union activities. The same cannot
be said for Hilborn. Following Gillespie's instructions to
report any information about the union activities of the
employees to Gillespie, it is undisputed that Hilborn went
to the supervisors, working foremen, and floorladies 13 un-
13 The testimony of Burgdorf, Hilborn, and Gillespie, particularly with
regard to the meeting of February 13, and the instruction given to members
of supervision not to talk to a Board agent without the presence of company
counsel, establish that Respondent regarded its working foremen, some of
der his supervision on the day shift and told them "man-
agement" or Personnel Manager Gillespie wanted to know
what was going on with regard to employees' union activi-
ties, and that they should keep Hilborn informed about
such activity. Among those to whom Hilborn gave this in-
struction were the approximately 14 working foremen and
floorladies on days who, as I have found supra, are not
statutory supervisors. Hilborn, in fact,. did receive the re-
ports he asked for. Bindery Superintendent Gerald Butz
reported that an employee had told him that another
named employee had threatened an employee with repri-
sals for not signing a union card. Floorlady Bertha Hub-
bart reported that employees in the bindery department
during their breaktime were discussing the Union, and it
was also reported that maintenance man Tyler was ob-
served discussing the Union with another employee during
working time. Hilborn reduced these reports to memo form
and submitted them to Gillespie.
In short, the sole question posed by this allegation is
whether Respondent violated Section 8(a)(1) of the Act by
directing a group of employees to report to management
any information they received about employees' union ac-
tivities. On its face, this request which was given without
limitation, was calculated to be interpreted by the employ-
ees as a request to report to management the names of the
employees who were engaging in permissible union activi-
ty. The law is settled that an employer's request that em-
ployees inform as to other employees' union activities ex-
erts a coercive influence on employees' organizational
rights. See, e.g., Bank of St. Louis v. N.L.R.B., 456 F.2d
1234 (C.A. 8, 1972). For this reason; I find that Respondent
violated Section 8(a)(1) of the Act by requesting employees
to report other employees' union activities to management.
In so concluding, I have considered whether Ashmead's
statement to the supervisors, including the working fore-
men and floorladies, on February 13 in effect disavowed
this unlawful conduct. There Ashmead, among other
things, told the working foremen and floorladies that they
could not place themselves in a position where it appeared
they were eavesdropping on employees' union activities
and could not question employees about the Union. In my
view, these cautionary remarks are not sufficient to dissi-
pate or disavow the prior unlawful conduct. " It is well set-
tled that statements of neutrality, couched in general lan-
guage, without any specific reference to, or repudiation of,
the prior unlawful conduct . . . do not erase such prior
unlawful conduct," A. P. Green Fire Brick Co. v. N. L. R. B.,
326 F.2d 910, 914 (C.A. 8, 1964). In the instant case, Re-
spondent never specifically repudiated its prior unlawful
conduct. It was a simple matter for Respondent to inform
its working supervisors and floorladies that no longer were
whom are also known as floorladies, as members of supervision. Under the
circumstance, it is not surprising that on the above matter-his instructions
to supervision to report back on the union activities of employees-Hilborn
testified that he gave this instruction to the "working foremen" but then he
changed his testimony, now testifying he only instructed his "supervisors"
as contrasted to the "working foremen." I do not believe him. It was my
impression that he was at that point trying to tailor his testimony to suit
Respondent's case. He had previously admitted that one of the "supervi-
sors" that reported to him was Floorlady Bertha Hubbart, who, as described
above, told him that the employees in the bindery department were discuss-
ing the Union during their break period.
CATO SHOW PRINTING CO., INC.
they required to keep management informed about the
union activities of their fellow employees.
V. THE ALLEGED UNLAWFUL TERMINATION OF 25 EMPLOYEES
Respondent terminated 25 employees, 7 on January 25
and 18 on February 5. The complaint, in substance, alleges
that in terminating these employees , Respondent was moti-
vated by its employees' union activities. The pertinent evi-
dence is set out and evaluated herein.
Respondent, as described earlier, is a printer which does
business almost entirely with the United States Govern-
ment . Its largest business expense is the cost of paper
which in 1973 increased in price drastically. By August
1973, the paper purchased by Respondent increased from
12 cents to 18-1/2 cents a pound and Respondent expected
additional increases in 1974, which proved to be true. At
the same time-the fall of 1973-the number of jobs
awarded to Respondent by the Government dropped sig-
nificantly because Respondent's competitors were submit-
ting lower bids. Due to the aforesaid difficulties, Respon-
dent found itself in serious economic difficulty which made
it necessary to secure a loan. At first, Respondent could
not negotiate a loan, but eventually, in December 1973,
through the assistance of the Federal Government's Small
Business Administration , a local bank loaned Respondent
$350,000 upon the condition that Respondent employ a
qualified executive to supervise its business operations.
This condition was imposed because of the old age of
Respondent's principal official Emma Pittinger, its presi-
dent. In December 1973, Respondent advertised for such a
person, interviewed several of the more qualified appli-
cants , and hired Joseph Ashmead, who began work for
Respondent as its executive vice president on Monday,
January 7.
As described above, Respondent in the fall of 1973 was
receiving fewer contracts from its principal customer, and
as a result , by November 1973, the work available for
Respondent's employees dropped drastically, and thereaf-
ter remained at a low level . Respondent 's work force was
not reduced proportionately. In May 1973, Respondent
produced approximately 103 million pages using an aver-
age of 157 employees. In June 1973, it produced approxi-
mately 90 million pages using an average of 161 employees.
In September 1973, it produced approximately 95 million
pages using an average of 142 employees; in October 1973,
it produced approximately 99 million pages using an aver-
age of 149 employees; and in November 1973, it produced
approximately 42 million pages using an average of 143
employees. In December 1973, it produced approximately
51 million pages using an average of 156 employees and in
January, produced approximately 47 million pages using
an average of 153 employees. It was obvious by January, to
Respondent's management that it was overstaffed . General
Counsel's witness, Tuzinski, admitted that in January there
was a noticeable slackening of work and that Tuzinski, and
presumably other employees, found it difficult to find work
and had to look around to find work to keep busy.
The fact that the employees did not have sufficient work
and Respondent's economic problems were among the first
subjects discussed between Respondent's newly hired Ex-
749
ecutive Vice President Ashmead and other members of
management when he started work on January 7. Various
possibilities were considered to alleviate Respondent's
problems including the elimination of the night shift. Fi-
nally, it was decided to terminate employees. Personnel
Manager Gillespie, on January 16, summoned General
Plant Superintendent Hilborn and Night Shift Superinten-
dent Burghdorf to his office and told them to prepare a list
of employees on their shifts for termination, explaining
that the Company intended to terminate employees be-
cause of a lack of work.14 Gillespie warned them not to
allow personalities to influence their selections, but to con-
sult with other members of supervision, consider the need
for certain employees, consider employees' work records
including attendance, workmanship, and matters of that
sort. Gillespie stated that he might not agree with their
selections and would conduct his own independent evalua-
tion of the employees. Hilborn and Burghdorf were in-
structed to submit their lists of employees selected for ter-
mination to Gillespie "immediately." s
Pursuant to Gillespie's instructions, Hilborn and Burgh-
dorf selected a list of employees on their respective shifts
for termination. Also, Gillespie testified he compiled a sim-
ilar list of his own based upon his review of the employees'
personnel files in terms of absenteeism , adverse written
comments from supervisors, and tardiness, as well as other
indications of poor work performance contained in the
files.
On January 17, Gillespie took Hilborn 's and Burgdorf's
lists of selections along with his own and consulted with
Ashmead, at which time the two of them decided that sev-
en employees would be terminated, selected the seven, and
decided that the termination would take place the next
day, Friday, January 18, Respondent Vice President Rich-
ard Robinson, Sr., when he learned of this decision, imme-
diately notified Gillespie and Ashmead that Respondent
was late in shipping a $40,000 job which was costing it $400
a day for each day of the delay, and that by terminating
the seven employees, it would cause an even greater delay
in the completion of this job. It was decided to delay termi-
nating the seven employees until this order was completed,
which occurred-on Thursday, January 24. On Friday, Jan-
uary 25, the seven were terminated.
At the same time the decision was made to terminate the
seven employees, it was also decided that each week there-
after Respondent would terminate other employees until
its employment complement was commensurate with the
amount of work in the plant. But shortly after the initial
141 do not credit Burghdorf s testimony that on the way to Gillespie's
office Hilborn told her that in selecting persons for termination she should
select those involved in union activities . Hilborn, who denied making such a
remark , impressed me as the more trustworthy witness on this point.
15 This meeting between Gillespie , Hilborn, and Burghdorf is based on a
composite of their testimony which is not inconsistent except as to the date
when the meeting took place . Burghdorf places the meeting on January 16,
Hilborn and Gillespie on January 11. Burghdorf impressed me as the more
reliable witness on this point . Also, Burghdorrs list of employees she select-
ed for termination was submitted to Gillespie on company memorandum
dated January 16. Burghdorf credibly testified she submitted this list the
same day as the meeting which is consistent with Gillespie' s testimony that
he instructed Hilborn and Burghdorf to submit their list of selections to him
"immediately."
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminations, the Company's lawyer advised management
that due to the Union's organizational campaign, a series
of terminations could create legal problems and advised
that the remaining employees be terminated in one group
by seniority as far as possible. Accordingly, 18 employees
were terminated on February 5. They were selected for
termination by seniority, except in three instances. Vernie
Woods was not terminated because he was one of the few
employees that held a secret clearance from the United
States Government and Respondent needed as many of
this type of employee as it could find. Billy Coff was a
licensed practical nurse who served as the plant nurse in
addition to her regular work of machine operator. Eliza-
beth Bradburd was the only one in the shipping depart-
ment trained to handle the Company's mail.
All of the terminated employees were notified in writing
that their termination had been caused by a lack of work.
They were terminated rather than laid off temporarily be-
cause at the time of the termination there was no way of
knowing how long it would be before there would be suffi-
cient work for them to be recalled, and under such circum-
stances, Respondent had been advised by a Government
inspector to terminate employees rather than lay them off
because such employees have to secure new Government
security clearances. As it developed, almost all of the ter-
minated employees who were physically capable of work-
ing, were asked to return to work when the workload war-
ranted their recall, except for three, Yvonne Davenport,
Donald Post, and P. Zeh. Specifically, three were recalled
on March 28, and the rest between April 16 and 22. At the
time of their recall, Respondent's volume of production
had not increased, but because of the high cost of raw
materials Respondent had shifted in significant part to a
type of work which involved the use of more labor and less
raw materials, which increased its need for manpower.
Finally, Respondent's employees, before and after the
terminations involved herein, continued to work significant
amounts of overtime. The overtime did, however, drop
drastically in January and February. The overtime worked
by employees is not an adequate gauge as to the amount of
work in the plant because, even in a slack period, Respon-
dent is forced to schedule overtime work for the purpose of
meeting shipping deadlines.
Ultimate Findings
The General Counsel has not, in my opinion, proven by
a preponderance of the evidence that Respondent's deci-
sion to terminate the employees involved herein was moti-
vated by union considerations. What occurred was a sub-
stantial reduction in work which caused Respondent to
need fewer employees. The terminated employees, for the
most part, were recalled as soon as the workload warranted
additional employees. There is insufficient evidence to es-
tablish that Respondent deliberately cut back production
for the purpose of terminating union adherents, or that in
terminating the employees, Respondent deviated from its
normal procedures. 6 Nor is there extrinsic evidence-con-
duct or statements by officials of Respondent-indicating
that Respondent would go to the extreme of terminating 25
employees in order to thwart the Union's organizational
campaign . Finally, there was not a disproportionate num-
ber of union adherents terminated. Employees who signed
cards for the Union at the time of their termination were
terminated in about the same percentage as the number of
card signers bore to all employees. The fact that the deci-
sion to terminate employees was made right after the
Union commenced its organizational campaign by itself is
not sufficient to establish an unlawful motive , especially
since the evidence shows that the timing of the termina-
tions with the Union's campaign was coincidental. For all
of these reasons , the record does not demonstrate that the
decision to terminate the employees involved herein was
unlawfully motivated.
Neither does the evidence demonstrate , other than in
Davenport 's case discussed infra, that Respondent seized
upon the valid business reason it had for terminating em-
ployees as an excuse to select certain employees for termi-
nation because of their union activities . The selection of
the employees terminated on February 5 was for the most
part based upon an objective criteria, seniority. There is no
evidence that Respondent 's use of this method of selection
was motivated by a desire to terminate certain known
union adherents or that the use of this method was other-
wise unreasonable . In the three instances where seniority
was not followed , Respondent had good reasons for deviat-
ing from this criteria , and there is no evidence that in devi-
ating from seniority on February 5 that Respondent was
motivated by employees' union activities. Indeed, of the
three employees retained out of seniority, two had signed
union cards . Regarding the seven employees terminated on
January 25, the General Counsel adduced no evidence
(other than in Davenport's case) to challenge Respondent's
claim that these employees were selected for termination
because they were less satisfactory than other employees.
Moreover , of the employees selected for termination on
January 25, there is evidence that at the time of the termi-
nation only three were union adherents; Davenport, D.
Post , and D . Ferguson . Of the three there is no evidence
that Respondent knew of the union sentiments of Post, and
with respect to Ferguson, Night Superintendent Burghdorf,
a witness called by the General Counsel who was plainly
not an unfriendly witness, testified in effect that Ferguson
was selected by her based solely upon Ferguson's perfor-
mance as a worker relative to the other employees in the
department. Not one iota of evidence was placed in the
record to establish that Burghdorf in choosing Ferguson
for termination was motivated by anything other than le-
gitimate business considerations.
Based on the foregoing, I am of the view that the record
does not demonstrate that Respondent used its need to
reduce its work force as a device to terminate any of the
employees involved herein , except for Davenport , because
of the employees' union activities.
One final point before discussing Davenport 's termina-
tion , that is of the three employees Respondent failed to
recall, two were union adherents, Donald Post and Yvonne
16 In the past, Respondent had never encountered a situation similar to
1974, which made it necessary to terminate employees for lack of work.
CATO SHOW PRINTING CO., INC.
Davenport. Personnel Manager Gillespie testified that he
did not recall Post because he had been employed for only
a short period of time during which he was absent a great
deal. This testimony was unrefuted. Moreover, there is no
evidence to establish that Post was any more active in the
Union than numerous other employees who were either
recalled or never terminated in the first place. In sum, the
record does not establish that the failure to recall Post was
discriminatorily motivated.
The Termination and Failure To Recall Yvonne
Davenport
The case of Davenport, the employee responsible for the
Union's organizational campaign and a leading union
adherent, is different than the others. It is settled that an
employer cannot seize upon the opportunity occasioned by
a reduction in force to weed out an employee because of
the employee's union activities. See, e .g., Heath Internation-
al Inc., 196 NLRB 318 (1972). See also N.L.R.B. v. West
Side Carpet Cleaning, 329 F.2d 758, 761 (C.A. 6, 1964).
("Even though part of the motivation for discharge might
have been a needed cutting of expenses , such circum-
stances could not be legally used to effectuate a companion
motive to rid the company of a union protagonist.") Even
though economic conditions necessitated a reduction in the
Company's work force, Respondent violated Section
8(a)(3) and (1) of the Act if it selected Davenport for termi-
nation because of her union activities. I am convinced that
a preponderance of the evidence establishes that Respon-
dent terminated Davenport on January 25 for precisely this
forbidden reason.
Davenport was employed from April 1965 to January 25,
1974. She was employed in the bindery department on the
night shift and operated the cutter and drills, spending only
a de minimis amount of time performing other work.
Davenport's employment was not continuous, rather it was
very sporadic. Between April 1965 to January 25, 1974,
Davenport worked only a total of 42 months for Respon-
dent. During this 9-year period on several occasions she
voluntarily quit her job for personal reasons , or to go to
work for another employer. Respondent did not object to
this practice and it continued to reemploy Davenport, but
consistant with its employment policies treated her upon
rehire as a new employee. Davenport' s last term with Re-
spondent commenced in August 1973-she had previously
quit in February 1972-and she worked continuously until
about November 1973, at which time she was absent from
work for about a month due to a foot operation, was reem-
ployed upon her recovery, and worked for Respondent un-
til her termination on January 25.
Davenport was the employee who initiated the Union's
organizational campaign. In December 1973, she contacted
the Union, and on December 26, 1973, and January 6,
1974, the first organizational meetings for employees were
held at her home. She attended the next two organizational
meetings, one on January 13, at the home of a fellow em-
ployee, and another on January 20, held at the local Amer-
ican Legion hall. Respondent soon learned of Davenport's
leading role in the Union's campaign. As previously de-
scribed, Gillespie, the Company's personnel manager, and
751
the person who selected her for termination, informed Su-
perintendents Hilborn and Burghdorf on or about January
18, that it had been brought to his attention that Daven-
port had been observed in the Company's parking lot
handing a union card to an employee. Gillespie instructed
Burghdorf-Davenport's supervisor-to watch Davenport
and the employees that associated with her. On January 22,
Burghdorf, in effect, notified Hilborn and Gillespie that it
had been reported to her by employee Hawker that Daven-
port had attended the Union' s organizational meeting held
Sunday, January 20, at the American Legion hall and was
"the instigator of the Union" and was seen sitting "with the
union guys." 17
On January 25, Davenport was terminated. The decision
to select Davenport for termination was made by Gillespie,
who when asked at the hearing why he selected Davenport
answered , "Upon review of her personnel file." Gillespie
testified that his review of Davenport's personnel file re-
vealed the following deficiencies:
1. She came and went with quite a bit of irregularity.
Came back on the payroll, and left the payroll [for]
various reasons over the period of a few years.
2. Absenteeism.
3. Health. General physical condition. Some of the
times she had left were due to operations, illness.
Going other places to work. Various reasons.
Gillespie testified that his "primary reason" for selecting
Davenport was her irregular pattern of employment and
that her health and absenteeism were only "secondary rea-
sons ." 18 Gillespie admitted that other employees had
worse absenteeism records than Davenport and that
Davenport's irregular employment pattern and health
problems came as no surprise to him, and also that Re-
spondent in the past had continued to employ her and
reemploy her despite these problems.
To sum up, Respondent having a valid business reason
for terminating employees on January 25 terminated seven,
including Davenport, who Respondent knew was the insti-
gator of the Union's organizational drive. Respondent,
however, claims it selected Davenport primarily because of
her past history of irregular employment and secondarily
because of poor health and absenteeism. If this was the
entire story, I would conclude that the General Counsel
failed to prove that Respondent unlawfully discriminated
against Davenport. But there is more to be told which in
my opinion demonstrates that in selecting Davenport for
termination Respondent was motivated in significant part
by the knowledge that she was the "instigator" of the
17 In submitting her reports to Hilborn and Gillespie, Burghdorf did not
specifically name Davenport , rather she was described as the big woman
who operated the cutter on the night shift The record establishes that this
description fits Davenport perfectly and I find that both Hilborn and Gilles-
pie associated the description with Davenport
18 There is also testimony that after the terminations almost all of the
work performed on one of Davenport's operations-the cutter-was per-
formed on the first shift. This was not, however, given as a reason for the
selection of Davenport for termination It seems to me if Gillespie in select-
ing Davenport for termination was motivated in whole or in part because
Respondent had decided to have her work performed on the day shift, that
it would have been a simple matter for Gillespie to say so at the hearing He
did not.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's organizational campaign. In reaching this conclu-
sion, I have been influenced by the following consider-
ations:
1. General Plant Superintendent Hilborn contempora-
neously with Davenport's termination admitted, in effect,
that she was picked for termination because of her union
activities.
On January 25, Hilborn at the start of the night shift
gave Night Superintendent Burghdorf the names of the
persons on her shift who were being terminated that day
and told Burghdorf to notify them at the end of the shift.
When Burghdorf observed that Davenport's name was in-
cluded she protested and told Hilborn that Davenport was
needed to operate the cutter and asked for the reason Da-
venport had been selected for termination. Hilborn in re-
sponse stated that Burghdorf had known that Davenport
was a union instigator, yet had not selected her for termi-
nation and turned her name into Gillespie.19
2. Davenport was selected for termination without con-
sulting the two supervisors responsible for the operation of
Davenport's department, both of whom protested the ter-
mination, and one of whom previously recommended that
Davenport not be among the employees terminated.
Davenport was employed as a machine operator in the
bindery department on nights where she operated the cut-
ter and the drills. Night-Shift Superintendent Burghdorf
exercised the ultimate authority over the approximately 55
employees employed on the night shift and Bindery Super-
intendent Gerald Butz was the supervisor over the approxi-
mately 85 employees employed in the bindery department
on days and nights. As described earlier , Davenport was
asked by Gillespie before the January 25 terminations to
evaluate the employees on her shift and select the more
undesirable ones for termination. The list of Burghdorf's
selections submitted to Gillespie did not contain
Davenport's name . Gillespie without consulting Burghdorf
or Butz-Davenport's two supervisors-selected Daven-
port for layoff based on his review of her personnel file.
Burghdorf, when she learned of Davenport' s termination,
as described above, was surprised and protested vigorously
to Superintendent Hilborn. Bindery Superintendent Butz
also was surprised by and protested Davenport 's termina-
tion. Butz, the week following the termination, complained
to Burghdorf about the termination. Butz assumed that
Burghdorf had been consulted and had given her approval
to the termination and expressed his unhappiness over the
fact that Burghdorf had not advised him she had selected
Davenport for termination. Butz voiced the opinion that
"he was bindery superintendent and should have the right
to know and decide who was going to be laid off" in his
department. Butz' reaction was perfectly normal and I am
convinced that Personnel Manager Gillespie, if he was mo-
tivated by legitimate business considerations in selecting
Davenport for termination, would have first consulted with
Davenport's supervisors, rather than abruptly making such
19 Based on Burghdorf's testimony which was given in a convincing man-
ner and which was not specifically denied by Hilborn
Regarding Hilborn's admission and the weight to be given it, I note that
Hilborn was a high level supervisor , a member of management, and was
privy to the discussions leading up to Davenport's termination.
a decision based on nothing more than the cold print of a
personnel file especially since Superintendent Burghdorf
had in effect recommended that Davenport not be termi-
nated.20
3. Respondent refused to reemploy Davenport because
of her union activities.
Of the 25 employees terminated, all but 3 of them, Da-
venport, Donald Post and Zeh, were asked to return to
work by Respondent 21 -3 on March 28, and the remain-
der between April 16 and 22. In February, Davenport vis-
ited the printing plant and indicated to Gillespie that she
desired to return to work. Gillespie told her that it was the
policy of Respondent to have all terminated employees fill
out a new job application. Davenport filled out an employ-
ment application and thereafter returned several times to
update the application. Gillespie finally told her there was
no need for her to continue to return because the applica-
tion would be kept for 1 year. Gillespie did not indicate to
Davenport that Respondent had decided she was not eligi-
ble for reemployment. In the meantime, on or about April
17, Night Superintendent Burghdorf complained to Gener-
al Plant Superintendent Hilborn that she needed more em-
ployees on the night shift. The next day Hilborn informed
Burghdorf that the night shift would receive help since Re-
spondent intended to reemploy Esther Post. Post had been
selected for termination by Burghdorf because of her in-
subordination to supervisors. Burghdorf pointed this fact
out to Hilborn and asked why this type of an employee was
being reemployed instead of a good worker like Davenport
who had never given anyone any trouble. Hilborn replied
that "management" had decided that Davenport "would
not be back" and that Hilborn did not know the reason 22
Post was, in fact, reemployed on April 19.
The reason for Respondent's refusal to reemploy Daven-
port with the other terminated employees was explained by
Gillespie in these terms: "[P]revious to the time of [Daven-
port's] termination she came and went over a period of
months . . . she has a health problem [referring to
Davenport's heart condition] . . . [and] absenteeism." In
short, Gillespie refuses to reemploy Davenport for the
same reasons he relied on to justify her termination . Gilles-
pie admitted, and the record establishes, that all of these
conditions had existed historically and had never previous-
ly prevented Respondent from reemploying Davenport. In
my eyes, Gillespie was not able to convincingly explain
what had recently changed to make Davenport a less desir-
able employee, other than Respondent's knowledge that
she was the instigator of the Union's organizational drive
and a leading union adherent. I am convinced that it was
30 The record reveals that , of the seven employees eventually selected for
termination on January 25, all but two-Davenport and Zeh-were selected
by either Hilborn and Burghdorf. Gillespie testified that Zeh was employed
"on a trial basis as a supervisor in the web department " and "had not been
there long." The record does not reflect Zeh's ,shift . In my view, Zeh's situa-
tion as a "supervisor" on a "trial basis" places him in a completely different
category than Davenport.
21 Zeh 's situation , as described , supra, is plainly distinguishable from
Davenport's as is Post's. Post was not reemployed because he had been
employed for only a short period of time and had been absent from work "a
great deal of time."
32 Based on Burghdorf 's credible testimony which is essentially the same
as Hilborn's version . Where their stories differ, I have credited Burghdorf
who impressed me as the more reliable witness on this point.
CATO SHOW PRINTING CO., INC.
the knowledge of Davenport's union activities which
prompted Respondent to treat Davenport differently in
April 1974, when it refused to reemploy her, than it had
when in the past it had consistently offered her reemploy-
ment. This inference is bolstered by the failure of Person-
nel Manager Gillespie to inform Davenport that it was an
act of futility for her to continue to apply for reemploy-
ment since she was not eligible for reemployment, and but-
tressed even further by the inability of General Plant Su
perintendent Hilborn to explain to Superintendent
Burghdorf why an employee with a history of insubordina-
tion was being reemployed rather than Davenport, a good
worker. I am convinced that if Respondent's decision not
to reemploy Davenport had been based on bona fide rea-
sons, that Gillespie would have explained the reasons to
Davenport, and Hilborn would have been able to explain
to Burghdorf why Davenport was not eligible for reem-
ployment.
All these reasons-Respondent's knowledge that Daven-
port was the instigator of the Union, the timing of the dis-
charge coming soon after Respondent learned of
Davenport's union activities, the admission by Superinten-
dent Hilborn that Davenport's termination was motivated
by her union activities, the failure to consult with supervi-
sion about Davenport's selection for discharge, the opposi-
tion of supervision to the discharge, and the subsequent
refusal to reemploy Davenport because of her union activi-
ties-when taken together convince me that the General
Counsel has proved by a preponderance of the evidence
that in terminating Davenport on January 25, Respondent
was motivated in significant part by her union activities,
and by engaging in this conduct violated Section 8(a)(3)
and (1) of the Act. Assuming that I have erred in evaluat-
ing the circumstances surrounding Davenport's termina-
tion, I further find, for the reasons set out above, that Re-
spondent on or about April 19 refused to reemploy
Davenport because of her union activities and that this
conduct by itself constitutes an independent violation of
Section 8(a)(3) and (1) of the Act.
In concluding that Davenport was discriminatorily dis-
charged, I have considered Gillespie's testimony that his
selection of the employees who were destined to be termi-
nated on January 25 was made on January 17, prior to his
knowledge of Davenport's union activities. I reject this tes-
timony because in my opinion, considering the circum-
stances, I would be naive to accept it at face value. When-
ever he testified concerning his knowledge of the
employees' union activities and the date he first received
such knowledge, Gillespie in manner and demeanor was an
unimpressive witness. Also there was a complete lack of
corroboration for Gillespie's testimony that Davenport,
whose name was not submitted by her supervisor for termi-
nation, had been included as early as January 17 among
those destined for layoff on January 25.23 These circum-
stances together with the entire conglomeration of events
23 According to Gillespie, both he and Executive Vice President Ashmead
on January 17 selected the names of the employees to be laid off. Neither
Ashmead nor any other witness was called by Respondent to corroborate
Gillespie's assertion that Davenport's name was included as early as Janu-
ary 17, among those selected for layoff.
753
which surround and shed light on Respondent's motivation
in terminating Daveport lead me to reject Gillespie's testi-
mony. See, Bon Hennings Logging Co. v. N.L.R.B., 308
F.2d 548, 554 (C.A. 9, 1962), and Shattuck Denn Mining
Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966).
VI. THE UNION'S REPRESENTATIVE STATUS
The parties agree that all full-time and regular part-time
employees of Respondent and all working foremen, ex-
cluding all office clerical employees, guards and supervi-
sors as defined in the Act, constitute a bargaining unit ap-
propriate for collective bargaining. The parties also agree
about the identity of 102 employees who were employed
in this unit from March 20, the date of the Union's demand
that Respondent recognize it as the employees' bargaining
agent, through March 27, the date the Union filed its peti-
tion for a representation election in Case 3-RC-6009.24 Re-
spondent would include three more employees: Shirley
Ames, Mary Harris, and Bertha Hubbart. The General
Counsel would include two more employees: Ronald Noga
and Charles Tyler. The evidence pertaining to the status of
the five persons whose unit placement status is in dispute is
set out and evaluated now.
Charles Tyler
Respondent contends that Tyler is a statutory supervisor
and thus is excluded from the appropriate bargaining unit.
I disagree for the reasons given below.
Tyler has been employed by Respondent approximately
13 years and is its machine maintenance man on the day
shift. During the time material he worked under the super-
vision of the General Plant Superintendent Hilborn and
received his,daily assignments from Hilborn. Tyler's day is
spent almost entirely in repairing and maintaining the
company's equipment. He also keeps an up-to-date mainte-
nance report for all equipment, prepares the paperwork for
the parts he needs for repai,s, and inspects the parts upon
receipt. In requisitioning these parts, Tyler must have the
approval of Personnel Manager Gillespie who testified he
initials the requisition before the parts are ordred.
No employee is assigned to work with Tyler.25 The only
evidence offered to demonstrate that Tyler has ever affect-
ed an employee's employment status is that about 4 years
ago, the Company's vice president, Robinson, asked Tyler
if he thought an employee, Lloyd, who had been doing
maintenance work for about 3 months, was doing the job
properly. Tyler, as he testified, told Robinson that "I didn't
think he was." The employee apparently quit immediately
24 The only change in the composition of the bargaining unit from March
20 through March 27 was the termination of Joan Cory at the end of the
workday on March 20.
1 have made no findings as to the Union's majority status on April 12,
since the General Counsel conceded that the list of unit employees of that
date submitted by Respondent's attorney in connection with the representa-
tion case is not binding on Respondent in the instant proceeding, a conces-
sion Respondent was entitled to rely on.
25 It appears that in the summer Respondent some of the time employs
one part-time employee who receives work assignments from Superinten-
dent Hilborn and is generally assigned to assist the building maintenance
man, but not Tyler, the machine maintenance man.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the conversation between Tyler and Robinson. There
is no evidence that action was taken against Lloyd based
on a recommendation made by Tyler. In fact, there is no
evidence that Tyler made a recommendation concerning
Lloyd's employment status. At most, what apparently oc-
curred was that Robinson was seeking the opinion of a
trusted employee.
As Tyler is responsible for the maintenance and repair of
the plant's machinery, he regularly visits the various de-
partments to repair and maintain employees' equipment.
In this regard, the extent of his authority over employees is
that he asks employees to assist him in his work. For exam-
ple, employees assist Tyler by operating equipment, or by
cleaning a part, or in moving a piece of equipment. If
Tyler's request for assistance requires more than the partic-
ular machine operator, or if it would take more than I or 2
minutes of an employee's time, then Tyler asks Hilborn or
the supervisor over the department to supply him with help
because, as Tyler explained, "we are not supposed to take
anyone off a machine or [do] anything that would disrupt
things." Stanley Smith, the building maintenance man, tes-
tified that, on most of those few occasions when he assisted
Tyler, he was assigned the job by Hilborn, and that if Tyler
asked directly for help Smith refused to help Tyler if he
was busy doing his own work. Personnel Manager Gilles-
pie admitted that in the course of Tyler's visits to the vari-
ous departments that Tyler did not supplant the depart-
ment supervisor who, during Tyler's presence, retain their
normal authority over the employees.
In my view, such authority as Tyler does possess derives
from his working skills and from his responsibility for the
repairing of machinery and is not the type of authority
contemplated in the statutory definition, nor is it the au-
thority responsibly to direct others which flows from man-
agement and which tends to identify or associate an indi-
vidual with management. N.L.R.B. v. Security Guard
Service Inc., 384 F.2d 143, 146-148 (C.A. 5, 1967); Interna-
tional Union of United Brewery, Flour, Cereal, Soft Drink
and Distillery Workers of America, AFL-CIO v. N. L. R. B.,
298 F.2d 297, 303, (C.A.D.C., 1961). The Board has consis-
tently included in bargaining units such employees, often
craftsmen or persons in comparable positions, whose au-
thority is based upon their working skills and experience.
E.g., Southern Bleachery & Print Works Inc., 115 NLRB
787 (1956), enfd. 257 F.2d 235 (C.A. 4, 1958).
The Respondent bases its contention that Tyler is a stat-
utory supervisor primarily on the facts that his rate of pay
is comparable to certain supervisors and is substantially
higher than other employees, he attends supervisory meet-
ings, and is classified as a "maintenance supervisor." How-
ever, this reliance by Respondent on the supervisory trap-
pings given to Tyler is not sufficient to elevate him to the
status of a statutory supervisor because such trappings can-
not supplant the supervisory powers required by Section
2(11) of the Act. E.g., N.L.R.B., v. American Oil Co., a
Maryland Corp., 387 F.2d 786, 787-788 (C.A. 7, 1967);
N.L.R.B. v. Magnesium Casting Co., 427 F.2d 114, 117-118
(C.A. 1, 1970). Moreover, it appears that these additional
benefits or status given Tyler are simply because of his
greater technical ability or experience. It is undisputed that
Tyler's technical ability and experience "has something to
do" with his higher rate of pay, that other-working fore-
men and floor ladies-nonstatutory supervisors attended
the supervisory meetings along with Tyler, and that when
Tyler, in 1972 , was given the title "maintenance supervi-
sor" he was informed by Respondent's president that the
only way Respondent could justify increasing Tyler's rate
of pay would be to give him this title but that Tyler's job
content would not change because of the title.
As already indicated, the record reflects that Tyler has
none of the supervisory authority set out in Section 2(11) of
the Act. While in a sense he sometimes assigns or directs
the work of other employees, as described above, it in-
volves nothing more than the routine assignment or direc-
tion of work normally associated with a leadman or straw
boss who is more skilled and experienced than the other
employees, but is in no sense a member of management's
staff. Moreover, Tyler is hourly paid and punches the same
timeclock as the other employees, and like the others
spends virtually all of his time working with his hands.
Finally, the testimony of employee DeLoff, LaGrow, Car-
ter, and John and Stanley Smith establish that the employ-
ees, in general , do not consider Tyler a supervisor or a boss
but simply as the day-shift maintenance man 26
On the basis of the foregoing, and the entire record, I
find that Tyler is not a statutory supervisor and conclude
that Tyler should be included within the appropriate bar-
gaining unit during the relevant time period.
Shirley Ames
The General Counsel contends that Ames was not em-
ployed by the Respondent during the relevant time period
and thus should not be included with the appropriate bar-
gaining unit.
Ames has been an employee of Respondent for several
years . On March 15 , she was granted a maternity leave of
absence until September 15. Ames was told by Personnel
Manager Gillespie that her job was waiting for her upon
the expiration of her maternity leave . Thereafter, as con-
templated , Ames returned to work and was employed by
Respondent on the dates of the hearing . Based on the fore-
going, I find that at all times material Ames had a reason-
able expectation of recall and thus was included within the
appropriate bargaining unit.
Ronald Noga
Noga has not worked since September 1973, but the
General Counsel contends that at all times material Noga
has been on a medical leave of absence with a reasonable
expectation of resuming his employment. I disagree. Noga,
a printing press operator, was injured on the job in Septem-
ber 1973, suffering the loss of all his fingers on his right
hand and one-half of the thumb on that hand. He has not
worked for Respondent since, and testified he expects to
have "very little" use of his right hand. No one from Re-
26 1 realize that DeLoff testified that he knew that Tyler had the title of
"maintenance supervisor" but when asked to describe Tyler 's duties and
authority it is plain from his testimony that, as far as DeLoff was concerned.
Tyler had no authority over DeLoff or any of the other employees.
CATO SHOW PRINTING CO., INC.
spondent ever indicated to Noga he could expect to return
to work or that he had been granted a leave of absence.
Based on the foregoing , I find that at all times material
Noga did not have any reasonable expectation of resuming
his employment with Respondent and thus is not included
within the appropriate unit.
Mary Harris and Bertha Hubbart
The General Counsel contends that Harris and Hubbart
who are classified as floorladies, employed in the bindery
department, are statutory supervisors. I disagree and agree
with the Respondent that at all times material Harris and
Hubbart were not statutory supervisors.
It is undisputed , as Personnel Manager Gillespie testi-
fied, that Harris and Hubbart perform the identical tasks
as the approximately 18 other working foremen and floor-
ladies who the parties agree are included within the appro-
priate unit. Their authority apparently involves the routine
assignment or direction of work and there is no contention
or evidence that they otherwise have any of the statutory
indicia set out in Section 2(11) of the Act. I realize, as the
Respondent concedes in its posthearing brief, that the "dif-
ference between Harris and Hubbart and the other work-
ing foremen is the fact that [Harris and Hubbart] are sala-
ried," whereas the other working foremen are hourly paid
employees. However, the fact that these two employees are
salaried is due solely to the fact that a number of years ago
they were employed in a salaried job classification and
when they became floorladies their method of payment re-
mained the same, but as in the case of the other floorladies
and working foremen, Respondent reimburses Harris and
Hubbart at a higher rate for all hours worked over 40 in I
week. Under the circumstances, the method used in com-
puting their weekly pay is not significant. Based on the
foregoing, I find that Harris and Hubbart are not statutory
supervisors and at all times material were included within
the appropriate unit.
For the foregoing reasons , I conclude that from March
20 through March 27, Shirley Ames, Mary Harris, Bertha
Hubbart, and Charles Tyler were employees within the ap-
propriate unit and Ronald Noga was not, thus raising the
total of bargaining unit employees employed by Respon-
dent during this period from 102 to 106, which is increased
to 107 by the inclusion of Yvonne Davenport who, as pre-
viously found, was discriminatorily discharged on January
25. The 107 employees who were employed within the ap-
propriate unit from March 20 through March 27 are listed
herein in Appendix A.27
It is undisputed that prior to March 20, of the 107 unit
employees, 45 signed cards authorizing the Union to act as
their exclusive collective-bargaining representative, but
there is a dispute about the date nine others 28 signed their
cards or whether they even signed a card. Then there is a
dispute as to the validity of the card signed by Richard
27 1 realize that this finding is not literally correct since employee Cory
was no longer employed after March 20, thus reducing the number of unit
emloyees to 106 from March 21 through 27.
Ernest Smith , Lois Lee, Isabelle Combes, Joan Cory, Hazel Donahue,
Jane Drice , Verme Wood, May Woods, and Richard Petit.
755
Bednarski who refused to answer questions concerning the
circumstances surrounding the signing of his card. The evi-
dence pertaining to the validity of the cards signed by these
10 unit employees is set out and evaluated herein.
Richard Bednarski
Bednarski signed a union authorization card on Febru-
ary 8. Based on a comparison of Bednarski's signature on
his W-4 form with the signature on the union card, I indi-
cated I would receive the card into evidence. When Re-
spondent indicated it believed Bednarski was a functional
illiterate, the General Counsel, who had subpenaed Bed-
narski, was directed as an accomodation to Respondent, to
make every effort to have Bednarski comply with the sub-
Pena so as to afford Respondent an opportunity to ques-
tion him. The following day, Bednarski was called to the
witness stand by the General Counsel and testified that he
read, filled out, and signed the union authorization card.
Respondent did not ask him if he understood what he read,
or if he, in fact, was capable of reading the language on the
card. However, Bednarski was questioned about the cir-
cumstances surrounding the signing of the card and ada-
mantly refused to answer such questions. When asked to
name the person who gave him the card, Bednarski refused
to answer, explaining that he did not want to get anyone in
trouble, and then testified he received the card in the mail.
Next, when Respondent asked if anyone was present when
he signed the card, Bednarski refused to answer the ques-
tion. Respondent moved to strike the witness' testimony
and objected to the receipt of Bednarski's card into evi-
dence. I denied the motion and received the card. Respon-
dent did not offer to prove what evidence it intended to
elicit from Bednarski nor did Respondent request that sub-
pena enforcement proceedings be instituted in Federal Dis-
trict Court to compel Bednarski to testify about the cir-
cumstances surrounding his signing of the Union
authorization card.29
I have carefully considered Respondent's request that I
reconsider my ruling on Bednarski's card, but am still of
the opinion that considering the circumstances this ruling
is correct. There is no question of the authenticity of the
card involved. Its authenticity having been properly estab-
lished it was up to Respondent to go forward with evidence
impugning the validity of the card. E.g., Universal Metal
Finishing, A Division of C. A. Roberts Co., 156 NLRB 138,
146 (1965) (card of Sewards). The question whether the
signature on the card was induced by misrepresentation or
coercion is a matter akin to an affirmative defense to be
proved by Respondent. (N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 584 (1969)), and Bednarski's refusal to
answer questions pertaining to circumstances which might
vary the plain language of the card he signed is not, in my
opinion, sufficiently related to the authenticity of the card
so as to warrant the striking of the evidence that Bednarski
read, when he filled out and signed the card. Based on the
foregoing, I find that the General Counsel has demonstrat-
ed that Bednarski executed a union authorization card on
29 Respondent did not ask that the Board go to court to compel Bednarski
to comply with the subpena issued by the General Counsel , nor did Respon-
dent itself subpena Bednarski.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 8, and further find that the Respondent has not
proven the invalidity of the card.
Ernest Smith
Smith's card is dated December 26, 1973, and was au-
thenticated by Union Representative Frank Jandecka who,
in effect, testified that Smith signed the card on that date.
A dispute arose, however, over whether Jandecka was in a
position to competently authenticate Smith's card, so I re-
ceived the card into evidence with the understanding that
the General Counsel would call Smith as a witness or
otherwise make him available for Respondent to examine.
Respondent agreed to this procedure. Thereafter, Smith
was called by the General Counsel and testified about the
authenticity of union authorization cards signed by three
other employees. Respondent did not question him about
the authenticity of his card. Based on the foregoing, and
the entire record, I find that Ernest Smith signed a union
authorization card on December 26, 1973.
Lois Lee
Respondent objects to the card allegedly signed by em-
ployee Lee, which is dated February 27, on the ground that
she did not complete the entire card and there is insuffi-
cient proof as to the date the card was signed. Edwin
Mack, an employee of Respondent, authenticated Lee's
card. Mack credibly testified he gave Lee the card and
observed her affix her signature to it. Mack dated the card
and credibly testified he dated it on February 27, the night
it was signed, and on cross-examination convincingly testi-
fied that he definitely placed the date on the card prior to
March 10. Based on the foregoing, I find that Lois Lee
signed a union authorization card in 1974 prior to March
20.
Isabelle Combes
Combes signed a union authorization card which she
dated March 1. Nevertheless, Combes testified that she
signed it on March 21. Combes, on this point, was an eva-
sive witness. She was unable to explain why she signed the
card March 21, yet dated it March 1. At one point, she
testified she could have signed the card March 1, acknow-
ledging that this was the date she placed on the card.
Combes, on the subject of the union authorization card,
was an unconvincing witness. I find Combes signed the
union authorization card on the date she affixed to the
card, March 1.
Joan Cory
Cory, subpenaed by the General Counsel, did not honor
the subpena and rather than delay the proceedings, the
General Counsel, to authenticate Cory's card, relied on the
signature affixed by Cory to the Employee's Withholding
Exemption Certificate (W-4 form) filled out for Respon-
dent by Cory. A comparison of the W-4 form signed by
Cory and General Counsel's Exhibit 83, the union authori-
zation card which the General Counsel contends Cory
signed , convinces me that Cory signed this card presum-
ably on the date affixed to the card, January 30. E.g., J.P.
Stevens & Co. Inc. Gulisten Division, 179 NLRB 254, 278
(1969), and cases cited therein.
Jane Drice, Hazel Donahue, May Woods
There is some uncertainty as to the exact dates that em-
ployees Drice, Donahue, and Woods signed their union
authorization cards, each of which was not dated. These
employees were separately solicited to sign their cards by
employee Edwin Mack. They signed their cards and re-
turned them to Mack who transmitted the cards to the
Union.
Drice , in substance , testified she signed her card on a
date prior to the terminations which occurred on January
25, and placed this date as being in the "middle of winter"
meaning the middle of the period from January through
March.
Donahue testified she signed her card the first part of
January, but admitted it might have been as late as Febru-
ary, but not as late as March.
Woods has no recollection of the date she signed her
card but testified that it was "long after" the terminations
which occurred on January 25. Woods' card, as shown by
the Union's receipt stamp, was received by the Union on
March 25, and as shown by the Board's receipt stamp, was
received by the Board's Regional Office on March 27.
Mack credibly testified that Woods as well as Drice and
Donahue signed their cards prior to the Union's demand
for recognition made on March 20. The testimony of
Drice and Donahue is to the same effect, that they signed
their cards prior to March 20.30
Based on the foregoing, I find that Jane Drice, Hazel
Donahue, and May Woods each signed their union author-
ization cards in 1974, on a date prior to March 20.
Richard Petit
Petit, who was employed on the night shift received a
union authorization card at work on March 20, at or about
7:30 p.m., took the card home that night at the end of his
work shift and signed the card at or about 12:15 a.m. on
March 21, but dated the card March 20. I find that Petit
signed his card on March 21.
Vernie Wood
Wood signed a union authorization card which, as
shown by the Board's receipt stamp, was received by the
Board's regional office on March 27, from the Union.
Wood signed and dated the card, but when he dated the
card, dated it "2/27/74" and then placed a diagonal line
across the bottom of the "2." It is impossible to conclude
from the face of the card whether Wood dated the card
February 27, or January 27, or April 27. However, Wood
credibly testified that his best recollection was that he
301 note that other cards solicited by Mack which were received by the
Union on the same day as Woods', March 25, were also signed prior to
March 20. (See G .C. Exits 45, 53, and 76.)
CATO SHOW PRINTING CO., INC. 757
signed the card "more toward February" rather than April.
Since the Board received the card from the Union on
March 27, at approximately 9 a.m., Wood obviously did
not sign the card on April 27. Based on the foregoing, I
conclude that the record establishes that Wood signed his
union authorization card on a date prior to March 20, pre-
sumably either on January 27, or February 27.
Based on the foregoing , I find that , of the 107 employees
in the appropriate bargaining unit employed between
March 20 through March 27, the 55 employees named in
Appendix B signed union authorization cards before
March 20, except fccr Richard Petit who signed his card on
March 21. Respondent challenges the validity of 14 of
these cards . The evidence pertaining to these challenges is
set out and evaluated herein.
Respondent challenges the cards of four employees-
Ann Carter , Walter DeLoff, Rose LaGrow, and John
Smith-on the ground that they were tainted by the in-
volvement of Charles Tyler, a statutory supervisor. I need
not decide whether Tyler engaged in the type of conduct
sufficient to taint all or some of these cards since I have
previously found that Tyler is not a statutory supervisor,
rather he is an employee . Nor does the record establish, as
contended by Respondent , that the employees generally
believed that Tyler spoke for management . To the con-
trary, as found earlier , the employees who testified in this
proceeding indicated they did not regard Tyler as a part of
management . For these reasons, I reject Respondent's con-
tention that employees ' union authorization cards, other-
wise valid , were invalidated by conduct engaged in by
Tyler.
Respondent challenges the cards of Raymond Miner
and Edith Myrtle Smith 31 on the ground that they were
tainted by the involvement of Night Superintendent Burgh-
dorf.
Miner testified , in effect , that he signed his union au-
thorization card as the result of Burghdorf 's solicitation
during working hours. Specifically , Burghdorf invited him
to get a card from her son-in -law, employee Edwin Mack.
Miner went looking for Mack in the plant , located him,
whereupon Mack, upon request , handed Miner a union
authorization card. Miner was not convincing , rather he
impressed me as an unreliable and untrustworthy witness.
Burghdorf credibly denied she attempted to have Miner
sign a union authorization card. Mack credibly testified
that he had no conversation with Burghdorf about Miner
signing a card and that he simply left a card in Miner's
truck in the Company 's parking lot and told Miner it was
there. Based on the foregoing , I find that Burghdorf did
not engage in the conduct attributed to her by Miner and
further find that the evidence does not establish Burghdorf
solicited Miner to sign his union authorization card.32
31 Although Smith's card is not relevant to the Union's majority status
since it was executed in April, I will discuss it herein inasmuch as it relates
to the Respondent 's contention that Burghdorf was a union adherent who
encouraged other employees to support the Union.
32I have also considered the testimony of employee Joyce Giles that at
work, Burghdorf asked her to sign a union card, took her to employee
Edwin Mack 's work station who informed Burghdorf the cards were in his
car, whereupon Burghdorf left Giles with Mack and retrieved a card from
Mack's car which, in the presence of Mack, she handed Giles. Giles did not
Nor does the evidence establish that Burghdorf solicited
Smith to sign the card she executed on April 12. Smith
testified she received a phone call from a former employee,
apparently about the Union, which upset Smith who spoke
to Burghdorf about the matter, and testified that Burgh-
dorf told her "she was not allowed to talk union on compa-
ny business but she did ask me if I had signed a card."
Smith answered in the negative . Smith initially was positive
that this was the entire conversation with Burghdorf . Later,
Smith changed her testimony , now saying that Burghdorf
"ask[ed] me if I had signed a card or if I would sign it."
When she attributed this additional question to Burghdorf,
Smith was not a convincing witness, but assuming Burgh-
dorf did ask if Smith would sign a union card, it does not,
in its context, amount to impermissible solicitation on the
part of a supervisor. At most , it is an ambiguous statement
which can just as readily be construed as impermissible
interrogation by a supervisor . Burghdorf credibly testified
she did not ask any employees to sign union authorization
cards and was not instrumental in trying to get employees
to sign such cards. Based on the foregoing , I find that the
evidence does not establish that Burghdorf solicited em-
ployee Edith Smith to sign a union card.
Respondent challenges a group of six cards 33 on the
ground that the employees , "testified that they signed au-
thorization cards after being told or led to believe that the
purpose of the card was to obtain an election ." Also, Re-
spondent challenges another group of cards signed by six
employees 34 on the ground that the signer did not read the
card or did not understand the content of the card. In
considering these challenges , I have been guided by the
principles enuniciated by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969). In Gissel the
Supreme Court held "that [the] employees should be bound
by the clear language of what they sign unless the language
is deliberately and clearly cancelled by a union adherent
with words calculated to direct the signer to disregard and
forget the language above his signature ," supra at 606. In
particular , "there is nothing inconsistent in handling an
employee a card that says the signer authorizes the union
to represent him and then telling him that the card will be
used first to get an election ," supra at 607-608. In this re-
gard, the Supreme Court in Gissel expressly validated the
authorization cards where each of the employees, "were
told one or more of the following: (1) that the card would
be used to get an election, (2) that he had the right to vote
either way, even though he signed the card ...." Supra at
584, footnote 5. The Court, however, cautioned the Boat.d
that in evaluating the validity of union authorization cards
it should continue to look " to substance rather than form"
pointing out that " it is not the use or nonuse of certain key
or magic words that is controlling , but whether or not the
totality of circumstances surrounding the card solicitation
is such as to add up to an assurance to the card signer that
impress me as a truthful witness . Burghdorf credibly testified she never tried
to get Giles to sign a union authorization card and Mack credibly refuted
Giles' version of what took place . Based on the foregoing, I find Burghdorf
did not engage in the conduct attributed to her by Giles.
33 Billie Coff , Isabelle Combes , Jeanne Godet , Marie Shaw, John Smith,
and Vernie Wood.
34 Richard Butman , Linda Clark , Billie Coff, Marie Shaw, Grace Taber,
and Ruth Terwilliger.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his card will be used for no purpose other than to help get
an election." Supra at 608, footnote 27, citing with approv-
al Levi Strauss & Co., 172 NLRB 732 (1968).
The Union authorization cards signed by the employees
in this case are captioned MEMBERSHIP APPLICATION and con-
sist of two simple sentences which state that the card signer
authorizes the Union "to represent me for the purpose of
collective bargaining and to negotiate and conclude all
agreements respecting wages, hours, and other terms and
conditions of employment," and concludes with this warn-
ing: "this form can be used by the Union to obtain recog-
nition without an election." The Union, during its organiza-
tional campaign, held several organizational meetings
during which union representatives explained the purpose
of the card to the employees present .3 Union Representa-
tive Jandecka, who impressed me as an honest as well as a
reliable witness, testified that at the organizational meet-
ings the employees were instructed to read the cards, a
union representative also read the card to them and they
were instructed that the Union intended to use the cards to
get voluntary recognition from the Respondent on the ba-
sis of a third party's check of the cards or to use the cards
as a basis for filing an election petition with the Board. The
employees also were informed that if anyone concluded, at
any time, they had been mislead by the Union into signing
a card they could have their card returned by sending a
letter to the Union asking for the card.
I shall now set out and evaluate the evidence pertaining
to Respondent's claim that the cards of 10 employees are
not valid because of either misrepresentation, coercion, or
a failure to read or understand the card.
Richard Butman
Butman was solicited to sign a union authorization card
by employee Mack. Butman signed and returned the card
to Mack. Respondent contends that the card is not valid
because Butman did not read it. Mack credibly testifed-
Butman did not testify-that when he handed Butman the
card, Butman asked what he was signing and Mack told
him an explanation was contained in the card, whereupon
Butman took the card and placed it in front of his face and
appeared to be reading the card. Butman then filled out
and signed the card. Under the circumstances, I find the
evidence is not sufficient to establish that Butman did not
read the card, rather it indicates he did read it.
Linda Clark
Respondent contends that Clark's card is no good be-
cause she did not read it. Clark entirely filled out and
signed a union card. Initially, Clark testified not once or
twice, but testified three times that she had read the card
before affixing her signature. But when Respondent's
counsel suggested that Clark, who is employed by Respon-
dent, did not sound sure that she had read the card, Clark
35 The Union's president, Butler, spoke to the employees at the initial
meetings held in December and January, and thereafter, commencing in
late January, Union Representative Jandecka spoke to the employees about
the cards they were being asked to sign
testified, "I probably just glanced at it because I was just
handed it and I just gave it back after I signed it." Clark
was not a convincing witness when she retracted her earlier
testimony that she had read the card. I find that Clark read
the card.
Billie Coff
Employee Yvonne Davenport successfully solicited Coff
to sign a union authorization card while visiting with Coff
at Coff's home over a cup of coffee. Davenport handed
Coff a card and told Coff, "I am trying to get as many
people as I can to sign this card because we want to bring
a chance for union into the plant." Coff filled out the card
in its entirety and signed it. Coff testified that she did not
read the card even though her eyes probably did focus on
the language contained therein, because she was not pay-
ing "that much attention." Coff was not a convincing wit-
ness on this point and I find she read the card.
Isabelle Combes
Combes received her card through the mail, read it and
filled it out in the privacy of her home. Combes, whom I
have previously found to be an untrustworthy witness re-
garding the date she signed this card, testified that she mis-
read the card. Specifically, Combes says she understood
the card to read that it "can not" be used by the Union to
obtain recognition from Respondent without an election.
The card, which I have described above, specifically states
in simple language that the card "can" be used by the
Union to obtain recognition from Respondent without an
election. I do not believe that Combes, who impressed me
as being an alert and an intelligent person, misunderstood
or misread the card. She was not a convincing witness on
this point, but impressed me as an employee who was in-
tent on convincing her employer that she would never have
knowingly signed a card providing for recognition without
an election. Indeed, at one point she seems to have admit-
ted that she knew what she was signing. Thus, when
Combes was asked what the red dots which Combes had
placed before and after the last sentence on the card signi-
fied, she testified, "It just means that [the Union] can't do
that [referring to obtaining recognition] without Mrs.
Pettinger's [Respondent's president] okay on it."
Jeanne Godet
Godet attended a union organizational meeting held at
the American Legion hall on January 20, at which time she
read, filled out and signed a union authorization card. She
testified that during the meeting, Union Representative
Jandecka "did not come out and say [the Union cards]
would not count without an election, but he did say it was
mostly to show interest to see what the percentage was that
was interested" or "to see whether they were going to peti-
tion or not." Godet was not a reliable witness. She had
virtually no recollection of what was stated at the meeting
about the union authorization cards. When asked if any-
one from the Union at this meeting said anything about the
cards, she testified, "I do not really remember . . . I do not
CATO SHOW PRINTING CO., INC.
know what to tell you . I am sure they said that we should
sign them ." Godet admitted having no independent recol-
lection of whether anyone addressed the employees about
the cards and testified she was just guessing . Under the
circumstances , I do not give Godet's testimony any weight
or legal effect , for "where an employee has signed a card
which plainly designates a union as bargaining agent, the
employer can prevail only with clear evidence of misrepre-
sentation . A morass of hazy individual recollections of at-
tendant circumstances will not suffice" Amalgamated
Clothing Workers of America [Hamburg Shirt Co.] v.
N.L.R.B., 371 F.2d 740, 745 (C.A.D.C., 1966). Moreover,
as found supra, based on the credible testimony of Union
Representative Jandecka , the Union at this meeting specif-
ically told the employees that the cards that they were
being asked to sign were for two purposes, one of which
was to secure voluntary recognition from the Respondent.
Marie Shaw
Shaw filled out and signed a union authorization card on
January 30 , at a union organizational meeting. When asked
if she read the card , Shaw testified , "yes, I read it, but I
didn't really read , no. I didn't read that last line ," referring
to the portion of the card stating , "I understand that this
[card] can be used by the Union to obtain recognition from
my employer without an election ." At the suggestion of
Respondent's counsel , Shaw testified she just "skimmed"
the last sentence but later reluctantly admitted she read but
did not understand the last sentence . Shaw impressed me
as an untruthful witness on this point . I find she read and
understood the card at the time she signed it. Moreover, if
there was any ambiguity in her mind about the purpose of
the card , it was cleared up by the truthful explanation giv-
en at the meeting by Union Representative Jandecka;
namely, that the card would be used to either secure volun-
tary recognition from Respondent or to file a petition with
the Board for an election . In this regard , I reject Shaw's
version of what Jandecka said about the cards . On this
matter , Shaw's testimony was vague , evasive and inconsis-
tent and she impressed me as not having a reliable recollec-
tion of Jandecka 's remarks . Initially , she stated Jandecka
said that the Union wanted 80 percent or 100 percent of
the employees to sign cards "so that if it come to a vote,
they would be sure to get the Union in" and that the em-
ployees could vote the Union in "if it was okayed through
Mrs. Pittinger" but that the Union "would have to go
through with [Mrs. Pittinger ] first [and] had to have a cer-
tain percentage or amount [of cards] before [Jandecka]
could present it to Mrs. Pittinger." Later , Shaw testified
that Jandecka did not mention anything about an election
and further testified , "the only thing he was pushing for
was for all of us to sign cards , so that the union could get
in." But then retracted this and testified Jandecka repre-
sented that if he got a certain percentage of employees to
sign the cards he could take them to Pittinger and the
Union would petition "her" to have a vote on whether the
employees wanted the Union.
John Smith
759
John Smith signed a card on March 9, at a union organi-
zational meeting. But about 4 weeks before this meeting,
fellow employee Jerry Hutton solicited Smith to sign a card
at which time Smith read the card and told Hutton he
wanted to think the matter over. Initially, in response to a
leading question by Respondent's counsel, Smith testified
Hutton told him that the "only purpose" of the card was to
get an election. Later Smith testified that Hutton made no
mention of an election when he solicited him to sign a card,
but when it was brought to his attention that this was con-
trary to his previous testimony, Smith testified he was
"confused" and testified that Hutton did bring up the sub-
ject of an election. When asked "what did [Hutton] say,"
Smith answered, "to get enough people for the election,
percentage wise." Thereafter, 4 weeks after the aforesaid
conversation with Hutton, Smith at a union organizational
meeting signed his union card. At this meeting, as found
previously, Union Representative Jandecka told the em-
ployees, including Smith, that the Union would use the
cards either to secure voluntary recognition from Respon-
dent or to petition for an election with the Board. Smith,
however, when first asked what was said about the union
cards at this meeting testified: "It was for an election, that
was what it was going to be used for." Later although ad-
mitting that it was Jandecka who had spoken to the em-
ployees about the union cards, Smith testified that, "I
don't remember" when asked what Jandecka said about
the cards. But then testified that Jandecka said the purpose
of the card was "for an election" but admitted Jandecka
might have said other things on the subject. Jandecka did
say other things and I credit his version of what was stated.
Smith, when he testified about the circumstances surround-
ing the signing of his card, impressed me as an untrustwor-
thy and unreliable witness.
Ruth Terwilliger
Terwilliger, a working foreman, received the card she
signed through the mail and considered the card in the
privacy of her home where she filled out and signed the
card before mailing it to the Union. Terwilliger testified
that although she read the card that she did not read it
carefully, rather she "just skimmed" the card and did not
understand what she was signing. Terwilliger, nonetheless,
signed the card and mailed it to the Union without first
seeking an explanation. This strikes me as unusual conduct
for someone who professes not to have understood the
card. Terwilliger's alleged state of mind is not consistent
with her conduct. I do not believe that she filled out, signed
and returned the card to the Union without understanding
what she was doing.
Vernie Wood
Wood signed her card after being solicited by employee
Richard Butman. Butman approached Wood in the plant,
handed her a union card which Wood read carefully, so
she testified, and Butman told her that "it was a card that
to get so many people to sign so that they could have,
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could hold an election to see if the people wanted a union."
Grace Taber
Taber signed a union card during the break period at
work when she was solicited by employee Richard Butman.
Butman handed Taber the card which she filled out in its
entirety and signed and returned to Butman . This much is
undisputed , as Taber reluctantly admits that she filled out
and signed the card but claims she does not remember
signing the card and did not realize that what she had
signed resembled anything like the union card bearing her
signature which was shown to her at the hearing. Also,
Taber volunteered that she signed the card without even
reading it because she was in a hurry. In my eyes, Taber
was a dishonest witness . I realize this is a harsh judgment,
but I received the impression that Taber was not interested
in telling the truth about the circumstances surrounding
the signing of the union card but was only interested in
showing the Respondent that she did not know what she
was doing when she signed the union card , that she was
opposed to the Union and had been rushed into supporting
the Union. I specifically find that Taber read the card.
In view of my strong impression that Taber's testimony
was a fabrication , I also reject in its entirety her testimony
concerning her conversation with Butman leading up to
the signing of the card . However, even if those parts of her
testimony concerning her conversation with Butman which
are favorable to the Respondent are weeded out from the
unfavorable, and the inconsistent portions of her testimony
are ignored , it does not establish that Butman impermissi-
bly coerced Taber into signing the card. Butman, accord-
ing to Taber, asked her to sign the card explaining it was
for the betterment of the employees and the Company.
Taber asked what kind of a card it was and Butman told
her it was for the Union. Taber stated she did not believe
in the Union . Butman at this point said either, "all we need
is one or two more signatures" or "everyone else is signing
but two or three." Taber signed the card. There is no evi-
dence that Butman directly or indirectly threatened or
coerced Taber in an effort to get her signature on the card.
The fact that employees other than Butman had previously
asked Taber to sign a card does not, in my view, make
Butman's solicitation coercive . Nor does Taber's testimony
that she signed the card because she was in a "hurry" or
that she was "caught off guard" invalidate the card , for this
is identical to evidence involving an employee 's intention
in signing an unambiguous card which the Supreme Court
in Gissel has held is not pertinent since it involves "an
endless and unreliable inquiry" Gissel, supra at 608. Like-
wise, Taber's testimony-which as indicated above I view
with skepticism-that the primary reasons she signed the
card was to go along with the majority of the employees
whom Butman had in effect told her had signed a union
card , is insufficient to taint the card since there is no evi-
dence of a deliberate attempt to coerce Taber by creating
or exploiting the fear of majority reprisal . See Local 153,
International Ladies' Garment Workers' Union [Maria Phil-
lips] v. N.LR.B., 443 F.2d 667, 669 (C.A.D.C., 1970).
To sum up , in reviewing each of the alleged instances of
misrepresentation involving the unambiguous cards of
Coff, Combes, Godet, Shaw, Smith, and Wood , I am con-
vinced that the credible evidence, when viewed in the total-
ity of the circumstances surrounding the solicitations, does
not add up to an assurance to any one of the card signers
that their card would be used solely for an election. In
regard to Taber's card, the evidence does not demonstrate
that she was the victim of impermissible coercion. Finally,
with respect to the several card signers who testified they
either did not read the card or did not understand the
meaning of the card, I am convinced that without excep-
tion they were not telling the truth. But, in any event, I am
of the view that the standards enunciated by the Supreme
Court in Gissel, absent unusual circumstances not present
in this case , preclude a probe into whether an employee
either has read or understood an unambiguous card signed
by the employee, for such an inquiry would, as in the case
of an employee 's subjective motivations , involve an endless
and unreliable inquiry. Gissel, supra at 608.
For the reasons set forth above, I find that Respondent
has failed to demonstrate the invalidity of any one of the
55 union authorization cards described above, and further
find that the Union represented a bare majority of the bar-
gaining unit employees from March 20 , the date of the
Union's bargaining demand , through March 27, the date
the Union filed its election petition in the representation
case . Specifically, there were 107 unit employees on March
20, and since employee Petit did not sign his card until
March 21, the union had 54 valid cards on March 20.
Thereafter, for the remainder of the period through March
27, there were 106 employees in the appropriate unit since
employee Cory-a card signer-left on March 20, thus
leaving the Union with 54 cards signed by the 106 unit
employees.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
1. Cato Show Printing Co., Inc., the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Service Employees International Union, Local 200,
AFL-CIO, the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By terminating employee Yvonne Davenport on Jan-
uary 25, 1974, and failing or refusing to reemploy her on
April 19, 1974, because of her union activities , the Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(3) and (1) of the Act.
4. By interrogating an employee about the employee's
union activities and the union activities of other employees,
and by requesting employees to inform management about
their fellow employees union activities, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. Respondent has not otherwise violated the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
CATO SHOW PRINTING CO., INC. 761
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act.
Having found that the Respondent has discriminated
against Yvonne Davenport , I shall recommend that Re-
spondent offer to Davenport immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position , without prejudice to her
seniority or other rights and privileges , and make her whole
for any loss of earnings suffered by reason of such discrim-
ination , by payment to Davenport of a sum of money
equal to that which normally would have been earned from
the date of her termination , January 25 , 1974, to the date of
said offer of reinstatement , less net earnings during such
period, with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent,
particularly the discrimination against Davenport , were of
a character which go to the very heart of the Act, I shall
recommend that it cease and desist therefrom and to cease
and desist from infringing in any other manner upon the
rights of employees guaranteed by Section 7 of the Act.
N. L. R. B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 ( 1941).
The General Counsel urges that the traditional remedies
which I have recommended are not adequate to cure the
Respondent 's unfair labor practices and contends that the
Respondent should be ordered to recognize and bargain
with the Union . The legal principles relevant in cases of
this nature , of course , are those stated by the Supreme
Court in N. L.R.B. v . Gissel Packing Co ., Inc., 395 U.S. 575
(1969). In Gissel, a case involving the power of the Board to
order an employer to bargain with a union not chosen by a
majority of his employees in a representation election, the
Court upheld the Board 's power to issue such orders where
the Board found that the employer had engaged in (1)
"outrageous" and "pervasive" unfair labor practices that
could not be remedied , (id., at 613), or, (2) "less pervasive
practices which nonetheless still have the tendency to un-
dermine majority strength and impede the election pro-
cesses" id., at 614 . In the latter situation, the Board can
issue a bargaining order only when it finds that "the possi-
bility of erasing the effects of past practices and of ensur-
ing a fair election by the use of traditional remedies,
though present, is slight and that employee sentiment once
expressed through cards would, on balance , be better pro-
tected by a bargaining order" id., at 614-615. In the recent-
ly issued Steel-Fab case ,36 the Board has enunciated its ra-
tionale underlying the issuance of Gissel-type bargaining
orders in the following terms:
Under Gissel, to determine whether or not a bargain-
36 Steel-Fab, Inc., 212 NLRB 363 (1974). (Members Fanning and Jenkins
ing order should issue as part of the remedy, we evalu-
ate the seriousness of the employer's misconduct and
its impact on the holding of a fair election (or rerun
election). In effect, by issuing a bargaining order, we
are remedying an employer's [8(a)(1) and/or (3)] viola-
tions that have dissipated a union's majority and pre-
vented the holding of a fair election. Id., at pages 2
and 3 of the slip opinion.
In order to evaluate the appropriateness of a bargaining
order to remedy Respondent's unfair labor practices, the
facts pertinent to this question are briefly stated. On De-
cember 27, the Union commenced its organizational cam-
paign. During the latter part of January, Respondent en-
gaged in the unfair labor practices found herein. Night
Superintendent Burghdorf, on January 21, interrogated
one employee about the employee's and other employees'
union activities, and General Plant Superintendent Hil-
born, on or about January 18, requested several employees
to inform management about the union activities of other
employees, thus violating Section 8(a)(1) of the Act. Also,
Respondent violated Section 8(a)(3) of the Act on January
25, when it discharged Yvonne Davenport, the employee
who made the initial contact with the union representatives
and who at the time was the leader of the union movement.
The Union continued its organizational campaign and by
March 20, a bare majority of the employees in an appropri-
ate bargaining unit had signed cards authorizing the Union
to represent them for purposes of collective bargaining. Of
the 55 bargaining unit employees who had signed such
cards, about 78 percent, or approximately 43, signed their
cards after the discharge of Davenport. Respondent re-
fused to recognize the Union and suggested that the Union
use the Board's election machinery. The Union followed
this suggestion and on March 27, petitioned the Board's
Regional Director for Region 3 to conduct an election in
the appropriate bargaining unit. The Union and Respon-
dent, on April 17, entered into an agreement for such an
election to be held on May 30. On April 19, Respondent
refused to reemploy employee Davenport because of her
union activities, thus violating Section 8(a)(3) of the Act.
Thereafter, the Union, with the approval of the Board's
Regional Director, withdrew its petition for an election and
the scheduled election was not held.
In my view, Respondent's unfair labor practices were
not of so pervasive a character as to warrant a judgment,
under Gissel standards, that use of the Board's traditional
remedies could not insure a fair election. In reaching this
conclusion, I have been motivated by the following consid-
erations.
The one instance of interrogation and the request made
to several employees that they report the union activities of
others to management are not ordinarily the type of mis-
conduct which have a lasting impact on the employees'
right to freely decide whether to support a union. This is
especially true here since the interrogation was not accom-
panied by any threat or promise of benefit designed to
dissuade the employees from supporting the Union and
those employees-the working foremen-who were re-
quested to supply management with information about
each concurring in part and dissenting in part, in separate opinions ) other employees' Union activities were notified about 3
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
weeks later, by Executive Vice President Ashmead, that it
would not bother management if the Union succeeded in
organizing the plant. Moreover, the misconduct occurred
long before both the Union's demand for recognition and
its petition for an election , and did not deter the Union's
organizational drive inasmuch as the overwhelming majori-
ty of the employees who signed Union authorization cards
did so during the 2-month period following this miscon-
duct.
The remaining unfair labor practices, the discharge and
refusal to reemploy Yvonne Davenport, are beyond any
doubt serious unfair labor practices. The discharge and re-
fusal to reemploy the employee who initiates a union's or-
ganizational campaign and is the leading union adherent,
because of the employee's role in the union, is a serious
violation of the Act which the Board, under certain cir-
cumstances , will conclude is sufficient, by itself, to warrant
a bargaining remedy. See A. J. Krajewski Manufacturing
Co., 180 NLRB 1071 (1970); also see Ace Foods, Inc., 192
NLRB 1220, 1224-25 (1971). The Board, however, has not
ruled that such misconduct per se warrants a bargaining
remedy but rather that this remedy may be granted if the
circumstances demonstrate that the misconduct has "the
tendency to undermine majority strength and impede the
election processes" Gissel, 395 U.S. at 614. Ordinarily, the
circumstances under which such conduct is committed
would tend to demonstrate its foreseeable impact upon the
other employees. But in the instant case, the circumstances
demonstrate that the impact of Davenport' s termination
upon the right of the employees to support the Union is too
speculative to warrant a bargaining order. Davenport's ter-
mination occurred in the context of the simultaneous law-
ful terminations for legitimate business reasons of 24 other
employees. Absent extrinsic objective evidence, not present
in the record, to demonstrate that the employees viewed
Respondent's treatment of Davenport as discriminatory, it
would be speculative and unrealistic to infer that the em-
ployees perceived Davenport's termination to have been
for any reason other than for the same legitimate business
consideration which resulted in the termination of the 24
other employees. Indeed, the record indicates that
Davenport's termination did not tend to undermine the
Union's majority status. The termination took place on
January 25, approximately 2 months before the Union de-
manded recognition and filed its petition for an election.
On January 25, the Union had not secured the signatures
of a majority of the employees on union authorization
cards and it was only after Davenport's termination that
the overwhelming majority (78 percent) of those employees
relied upon by the Union to establish its majority status
signed their cards. This circumstance makes it just as rea-
sonable to infer that Davenport's discharge helped rather
than hindered the union's organizational efforts.
Likewise, I do not believe that the unlawful refusal by
Respondent on April 19 to reemploy Davenport warrants a
bargaining remedy. There is no indication that the employ-
ees knew that Respondent had refused to reemploy Daven-
port or had failed to offer her reemployment. In this re-
spect, the record shows that by about April 22 Respondent
had offered to reemploy all 25 terminated employees ex-
cept for Davenport, Zeh, and Donald Post and one de-
ceased employee. Only 11 of the employees, however, ac-
cepted the Respondent's offers and returned to work. In
the eyes of the bargaining unit employees, approximately
14 of the terminated employees, including Davenport, had
not been called back to work. There is not one scintilla of
evidence indicating that the employees would have tended
to believe that the failure of Davenport to return to work
with the other 11 was based on a refusal or failure by Re-
spondent to reemploy Davenport. To the contrary, on this
record, including Davenport's past history of sporadic em-
ployment, it would have been just as reasonable for the
employees to conclude that Davenport, along with about
13 other previously terminated employees, had decided not
to return to work for Respondent. In short, I conclude that
the refusal to reinstate Davenport occurred under circum-
stances which could not readily be perceived by other em-
ployees as retribution for organizing activity.
In conclusion, I am constrained to confess that the ques-
tion of whether or not a bargaining remedy is warranted in
this case is a very difficult one, and I have made a consci-
entious effort to make a realistic assessment of the extent
to which the unfair labor practices found herein tend to
undermine the Union's strength and impede the Board's
election process and, on balance, for all of the foregoing
reasons, I am of the view that Respondent's unfair labor
practices were not of so pervasive a character as to warrant
a judgment, under Gissel standards, that use of the Board's
traditional remedies could not insure a fair election and
that the Board should, accordingly, accept the prepetition
authorization cards as a more reliable index of employee
choice.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER37
Respondent, Cato Show Printing Co., Inc., Cato, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Service Employees In-
ternational Union, Local 200, AFL-CIO, or any other la-
bor organization, by discharging or refusing to reemploy
employees or by otherwise discriminating in regard to the
hire or tenure of employment of employees or any term or
condition of employment.
(b) Interrogating employees about their union activities
or sympathies and about the union activities or sympathies
of their fellow employees.
(c) Requesting employees to inform management about
the union activities of their fellow employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
CATO SHOW PRINTING CO., INC.
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Yvonne Davenport whole for any loss of earn-
ings suffered by reason of her termination, in the manner
set forth in the section herein entitled "The Remedy."
(b) Offer Yvonne Davenport immediate and full rein-
statement to her former position or, if this position no lon-
ger exists, to a substantially equivalent position, without
prejudice to seniority or other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due and the right of
reinstatement under the terms of this recommended Order.
(d) Post at its place of business in Cato, New York, cop-
ies of the attached notice marked "Appendix C." 38 Copies
of said notice, on forms provided by the Regional Director
for Region 3, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
Cooper, Euretta
Cory, Joan
Crandall, Larry
Cunningham, David
Davenport, Yvonne
Delaney, Leona
Deloff, Francis
Deloff, Walter
Donahue, Hazel
Dougherty, Florence
Drice, Jane
Elmer, Doris
Elmer, Hugh
Emerson, William
Fear, Lena
Fisher, Kay
Foster, Kenneth
Gates, Sherry
Giles, Joyce
Godet, Jeanne
Green, Thelma Jean
Halstead, Mary
Hand, Darryl
Hare , Robert
Harris, Mary
Harris , Nellie
Hawker, Wayne
Hayes, Shirley
Hoag, Lynn
Hotaling, Gertrude
Hubbart, Bertha
Hudson, Ross
Hunter, Alice
Hunter, Beverly
Hutton, Diane
Hutton, Jerry
Perrotta, Robert
Petit, Richard
Pickard, Kathleen
Pollock, Mary
Pope, Elson
Ray, Alice
Reisman, Anna
Shaw, Maria
Siver, Barbara
Smith, Ernest
Smith, John
Smith, Melva
Smith, Myrtle
Smith, Ronald
Smith, Stanley
Steele , Dorothy
Tanner, Richard
Terpening, Mildred
Terwillinger, Ruth
Thomas, Gene
Thompson, James
Trezler, Mary
Tuber, Grace
Tuzinski, Michele
Tyler, Charles
Van Horn, Steven
Vaughn, Rodney
Walters, James
Warford, Melville
Watson, Joann
Wayman, Linda
Weldon, Helen
Weldon, Richard
Wood, Vernie
Woods, May38 In the event that the Board's 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 B
Appendix A Bednarski, Richard Mack, Edwin
Bradt, Lewis Melvin, Rosemary
Brown, Floyd Miner, Raymond
Ames, Shirley Jones, Evelyn Butman , Richard Newcomb, Marta
Baldwin, Jane Jones, Paul C. Carpenter, Marlin Parsons, Russell
Barkman, Leona Judd, Helen Carter, Ann Perrotta, Robert
Bednarski , Richard LaCombe, Robert Clark, Linda Petit, Richard
Bennett , Marion LaFave, Catherine Coff, Billie Pickard, Kathleen
Bertram, Nina Learo, Alan Combes, Isabelle Pope, Elson
Billings , Thomas Lee, Lois Cory, Joan Ray, Alice
Botsford, Dorothy Looker, Ida Cunningham, David Shaw, Marie
Bradburd, Elizabeth Lytle, Marcia Davenport, Yvonne Smith, Ernest
Bradt, Lewis Mack, Edwin Deloff, Francis Smith, John
Brown, Floyd Malone, Dale Deloff, Walter Smith, Ronald
Butman , Richard McDowell, Thelma Donahue, Hazel Smith, Stanley
Carley, Judy Melnick, Nicholas Drice, Jane Terwillinger, Ruth
Carpenter, Marlin Melvin, Rosemary Gates, Sherry Thomas, Gene
Carter, Ann Miner, Raymond Godet, Jeanne Thompson, James
Clark, Linda Newcomb, Marta Drice, Jane Terwillinger, Ruth
Coff, Billie Parsons , Russell Gates, Sherry Thomas, Gene
Combes, Isabelle Patchen , Mildred Godet, Jeanne Thompson, James
763
764
Green, Thelma Jean
Hare, Robert
Hotaling, Gertrude
Hudson, Ross
Hutton, Diane
Hutton, Jerry
Jones, Paul C.
Learo, Alan
Lee, Lois
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trexler, Mary
Tuber, Grace
Tuzinski, Michele
Tyler, Charles
Vaughn, Rodney
Warford, Melville
Watson, Joann
Wayman, Linda
Wood, Vernie
Woods, May
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions , the National La-
bor Relations Board has found that we have violated the
National Labor Relations Act, and has ordered us to post
this notice and to keep our word about what we say in this
notice.
The law gives you the following rights:
To form, join, or help unions
To choose a union to represent you in bargaining
with us
To act together for your common interest or pro-
tection
To refuse to participate in any or all of these
things
WE WILL NOT discharge or refuse to reemploy you or
otherwise discriminate against you because you are a
member of or have assisted or supported Service Em-
ployees International Union, Local 200, AFL-CIO, or
any other union.
WE WILL NOT question you about your union mem-
bership and union activities or about the union mem-
bership and union activities of your fellow employees.
WE WILL NOT request you to inform management
about the union activities or your fellow employees.
WE WILL NOT in any way interfere with, restrain, or
coerce you in exercising the rights guaranteed to you
by the National Labor Relation Act.
WE WILL offer to reinstate Yvonne Davenport to her
former job, or, if that job is not available, to a substan-
tially equal one without any loss of seniority or other
rights and WE WILL reimburse her for any loss of earn-
ings she may have suffered because we terminated her,
together with 6-percent interest.
CATO SHOW PRINTING CO., INC.