Contra Costa Times

National Labor Relations Board - Board Decisions

Sep 3, 1976

225 N.L.R.B. 1148 (N.L.R.B. 1976)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Bay Newspapers, Inc., d/b/a Contra Costa Times
and Robert Turnquist and Bay Area Typographical
Union No 21, International Typographical Union,
AFL-CIO. Cases 20-CA-9909, 20-CA-9992, and
20-RC-12611
September 3, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On December 30, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent, General
Counsel, and the Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
1. We agree with the Administrative Law Judge
that Respondent's no-solicitation rule was impermis-
sibly overbroad insofar as it prohibited employees
from soliciting on company premises after comple-
tion of a shift.
GTE Lenkurt, Incorporated, 204 NLRB 921 (1973),
on which Respondent relies in its exceptions to this
unfair labor practice finding by the Administrative
Law Judge which we are adopting, is a factually dis-
tinguishable case. The rule in Lenkurt stated that
"An employee is not to enter the plant or remain on
the premises unless he is on duty or scheduled for
work." As was recognized by Chairman Murphy in
her concurring opinion in M Restaurants, Incorporat-
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge it is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 Contrary to the Administrative Law Judge, we find that Ray Hagler,
Respondent ' s composing room superintendent until January 17, 1975, when
he voluntarily gave up the position , does not share a sufficient community
of interest with other employees in the unit based on his work with respect
to technical aspects of establishing computer systems In view of his previ-
ous position and the fact that at the time of the election Hagler was primar-
ily engaged in the transition of Respondent 's composing room from the hot
type to the coldtype printing process, we believe that Hagler 's interest is
more aligned with that of management and that his work was not normal
composing room work Therefore, we sustain the challenge to his ballot
ed, d/b/a The Mandarin, 221 NLRB 264 (1975),
where a rule also prohibited solicitation on company
premises by employees after the employees' shift had
been completed, there is an obvious difference in em-
phasis between such rules. The rule here, and in
Mandarin, is directly aimed at solicitation, while the
Lenkurt rule is directly aimed at employees who "en-
ter . . . or remain on the premises" when not "on
duty or scheduled for work." Consequently, the va-
lidity of the instant rule must be determined in accor-
dance with the standard applicable to no-solicitation
rules, and it is well established that employer rules
which infringe upon the employees' right to solicit
union support during nonwork time while on their
employer's premises are presumptively unlawful.
Also as noted by Chairman Murphy in Mandarin,
the rule there, as here, applies even in situations
where the employees have completed their shifts but
are nevertheless still lawfully and properly on com-
pany premises pursuant to the work relationship,
whereas the Lenkurt rule applied to employees who
were not lawfully and properly on the company
premises pursuant to the work relationship.' The sig-
nificance of this distinction is that, in a case like this
one and Mandarin, the employees' right to self-orga-
nization is to be balanced against the employer's in-
terest in production, safety, or discipline but in the
Lenkurt situation the employees' right was balanced
against the employer's private property rights.
Accordingly, inasmuch as Respondent has not es-
tablished that the no-solicitation rule in question was
necessary for protection, safety, or discipline, it vio-
lated Section 8(a)(1) of the Act.
2. Like the Administrative Law Judge, we are not
persuaded by this record that composing room em-
ployees Jones, Turnquist, and Taylor were laid off
for unlawful reasons.
There had been an "economic cutback" of seven
composing room employees in January 1974. In Jan-
uary 1975, an additional layoff was deemed neces-
sary for business reasons. Composing Room Superin-
tendent Hagler was directed to confer with
subordinates and to make recommendations of em-
ployees for release. After a series of meetings by
Hagler with Composing Room Foreman White and
Assistant Composing Room Foreman Coon, a list
was prepared which recommended the release of
Hansohn, Jones, and Turnquist. In compiling this
list, consideration was given to employee skills, pro-
ductivity, attitude, length of employment, personal
hardship factors, and imminent production innova-
tions. The recommendations for layoff were ap-
3 Lenkurt itself explains that "This case thus differs from those in which
no-solicitation or no-distribution rules, either on their face or as applied,
limited the activities of employees lawfully on the premises "
225 NLRB No. 128
CONTRA COSTA TIMES 1149
proved by Respondent on January 16 and Hansohn,
Jones, and Turnquist were terminated.
A further layoff was required for business reasons
in February. The same procedure for selections as
had been utilized in January was followed, except
that Hagler had by then relinquished his job as com-
posing room superintendent and, in his place, Pear-
son, the new production manager, met with White
and Coon to make the selections. This layoff affected
Taylor, Turner, Martin, Aschraft, and Miller.
The Administrative Law Judge found, and the dis-
sent admits, that there was business justification for
both layoffs. The Administrative Law Judge also
found that the selections made for layoff in January
and February were motivated by lawful consider-
ations. Our dissenting colleague does not dispute the
legitimacy of the layoff of Hansohn in January or of
Turner, Martin, Aschraft, and Miller in February.
But he would find that the inclusion of Jones and
Turnquist in the January layoff and Taylor in Febru-
ary was "in substantial part motivated by union con-
siderations."
We do not agree. We do not find that the selection
of these three employees was influenced by consider-
ations in any way different from those which moti-
vated the five selections with which no fault is found.
The considerations which led to the selection of
Jones, Taylor, and Turnquist are set forth in the Ad-
ministrative Law Judge's Decision wherein he finds
that the factors utilized were "valid and typical." As
explained by the Administrative Law Judge, in es-
sence , Respondent considered Jones, Taylor, and
Turnquist expendable because of skills limitations
and job outlook which disadvantaged them in com-
petition with others in the department.
As noted, our dissenting colleague would find that
union considerations played a "substantial part" in
the selections. But his dissent lacks supporting evi-
dence for this conclusion. It asserts that Respondent
had knowledge of the prounion sympathies of Jones,
Turner, and Turnquist and that Respondent was op-
posed to unionization. Even assuming the existence
of such knowledge and animus for purposes of re-
solving this issue,4 it does not, of course, establish
that these employees must have been selected for lay-
off in "substantial part" because of their union sym-
pathies. Nor does the dissent add anything to the
evidential mixture which would justify such a conclu-
sion. It recites that Coon, one of the selectors, was
opposed to the selection of Turnquist, but was over-
ruled. However, it overlooks the fact that each of
those participating in the selections expressly denied
that considerations of union sympathy entered into
the selections. Also, if the dissent finds so much sig-
nificance in the position taken by Coon with respect
to Turnquist, we are at a loss to understand why it
does not accord equal weight to the position taken by
Coon as to Jones and Taylor, where he was in agree-
ment with the others in the selection of these employ-
ees.
Nor does the fact that Respondent did not present
"documented evidence" of a prior warning for lack
of self-motivation prove that Respondent's asserted
reliance in making the selections upon a concern for
self-motivated people was pretextual. If Respondent
did not issue warnings to employees who it did not
think were properly motivated, that fact ought not to
prejudice it in a case like this where it is compelled
by business considerations to lay off some employees
and, understandably, decides that the quality of self-
motivation is a factor which should be taken into
account in deciding upon which employees to lay off
and which to retain. The matter of seniority to which
our dissenting colleague refers in this connection was
but another factor considered in Respondent's total
evaluation of the composing room employees. There
is not the slightest indication that, in including Jones,
Taylor, and Turnquist in the groups laid off, violence
was done to any established practice or policy of Re-
spondent regarding seniority.
The dissent notes that Lesher apparently held the
night shift composing room employees responsible
for the union campaign and that Jones, Taylor, and
Turnquist all worked on the night shift. But it was
called to Lesher's attention at the hearing that a
number of those selected for layoff were on the night
shift, and he responded: "Yes. And the reason for
that is simple. There is no new work brought into the
night shift, the night shift merely cleans up the work
that is there. And on many occasions they did not
have enough work to keep them during the entire
shift and were let go home. The night shift produc-
tion was always less per man-hour by a substantial
margin than the production on the day shift."
It was the General Counsel's burden to prove that
the layoffs were unlawfully motivated as alleged.
Upon the entire record, we believe, as did the Ad-
ministrative Law Judge, that the burden has not been
met.5
ORDER
In fact, however, in the circumstances detailed by the Administrative
Law Judge, and for the reasons given by him, we agree with the Administra-
tive Law Judge's conclusion that Mott was not a supervisor whose knowl-
edge of union activity is attributable to Respondent or for whose conduct
Respondent is accountable Like the Administrative Law Judge, we overrule
the challenges to the ballots of Mott and Williams
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
' It follows therefore that the challenges to the ballots of Jones , Taylor,
and Turnquist must be sustained
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, East Bay Newspapers,
Inc., d/b/a Contra Costa Times, Walnut Creek, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
MEMBER FANNING, dissenting in part:
I do not agree with my colleagues' finding that
employees Turnquist, Jones, and Taylor were not
discriminatorily discharged, that Assistant Foreman
Mott and Williams were not supervisors, or that
Mott's interrogation of Taylor did not violate the
Act. Also, contrary to the majority, I would sustain
the challenge to the ballots of Mott and Williams and
overrule the challenges to the ballots of Jones, Turn-
quist, and Taylor.
Although I agree that the record establishes busi-
ness justification for Respondent's layoffs in 1975, I
find that the inclusion of the three alleged discrimi-
natees in the January and February layoffs of com-
posing room employees indicates that as to them Re-
spondent was in substantial part motivated by union
considerations. The evidence shows that Respondent
President Lesher, in management meetings held on
January 10 and February 20, 1975, exhibited hostility
toward the Union by statements to the effect that he
was "upset" by the employees' "behind his back" as-
sociation with the Union and by his reference to the
Union as a group of "thugs and goons." Lesher told
employees that, if the Union won the election, nego-
tiations would be "long and difficult." In response to
the remark of a day shift employee that she knew
nothing of any "Union thing," Lesher commented
that the night shift composing room employees were
apparently responsible for the union campaign. I
note that the three discriminatees all worked on the
night shift.'
Further evidence of union animus was demon-
strated when Composing Room Superintendent Hag-
6 Contrary to my colleagues , I am not convinced by Lesher 's self-serving
testimony that employees from the night shift , as a whole , were chosen for
layoff because "on many occasions they did not have enough work to keep
them during the entire shift " With respect to the composing room at
night , where the three discriminatees worked , the testimony of Coon who
was in charge at night must also be considered He was not in favor of a
reduction in force in January because, as he testified, Respondent was
"pretty thin at that time with a new system and a move " The January
layoff affected Turnquist , for whom Coon made a special effort , and Jones
Coon was still opposed to any layoff in February, when Taylor was affect-
ed Although Coon obviously preferred Turnquist as a composing room
employee , I would draw no adverse inference from his failure to make the
same effort for Jones and Taylor Coon clearly opposed any layoff in either
month Just as clearly , Lesher at employee meetings did exhibit animus
toward the Local which was organizing the employees In the context, the
various denials that antiunion considerations entered into the selections are
not convincing , nor did the Administrative Law Judge find them so
ler, on January 15, approached Jones and Turn-
quist, who were sitting in the lunchroom discussing
the Union, and stated: "I don't think you should be
talking like that around here, and I really don't want
to hear it anymore." This coercive statement was
characterized by the Administrative Law Judge as a
"mild admonishment." I cannot agree with that anal-
ysis or the further conclusion that, though coming
from a superintendent, it was not more than "sponta-
neous, personal expression ." Only 2 days after gain-
ing this knowledge of union activity, Hagler recom-
mended that Jones and Turnquist be laid off. In fact,
as the Administrative Law Judge found, Hagler actu-
ally overruled Night Shift Supervisor Coon's' "ada-
mant" opposition to Turnquist being laid off. Hagler
recommended Turnquist's layoff ostensibly because
his services would be needed less under the new cold-
type printing process.' However, Coon believed that
Turnquist had "more general all-around experience"
as compared to other composing room employees.
Jones purportedly was selected for layoff because
his record of appearing for work was "poor" and he
was generally "the type of individual . . . that some-
times you had to look for," after seeming "to wander
away from the job." The reason given for Taylor's
layoff was that he was "weaker . . . as opposed to
other [employees]." For some months before Febru-
ary, as found by the Administrative Law Judge, Tay-
lor was involved in the union organizing campaign at
which time he solicited about 15 authorization cards.
At least one union meeting had been held at his
home. In late January Assistant High Shift Foreman
Mott asked Taylor, "if I [Taylor] knew anything
about the union being organized in [CCT]." Taylor
replied that he would "vote for the bubble gum wrap-
pers' union; anything was better than the situation
we had going at that time." Although the Adminis-
trative Law Judge found that the above interrogation
occurred, he did not find Mott to be a supervisor,
and concluded that Respondent was not chargeable
with Mott's knowledge or the interrogation by which
he acquired it. Contrary to the majority, I view the
evidence, discussed infra, as establishing that Mott is
a supervisor under the Act and that Respondent,
through Mott, received knowledge of Taylor's
avowed union sympathies several weeks before his
selection for discharge.
The three discriminatees have all worked for Re-
spondent for at least 7 years and were among the
most senior of its 50 composing room employees.
7 Coon is the night shift foreman for the composing room and, as the
Administrative Law Judge implies, possesses supervisory authority Coon
was Turnquist 's immediate supervisor and felt that Turnquist , since being
on his shift for approximately a year, "had done a good job for me "
8 Respondent was in the process of changing its composing room opera-
tion from the hot type to the more automated coldtype process
CONTRA COSTA TIMES 1151
Nevertheless, as stated by Hagler, all were laid off
because Respondent wished to retain "self-motivated
people." As there was no documented evidence pre-
sented to indicate that the dischargees had received a
warning for anything which would support
Respondent's conclusion that they lacked self-moti-
vation, the total disregard of seniority with respect to
them appears pretextual.
In view of Respondent's demonstrated union ani-
mus, 8(a)(1) conduct, and confirmed knowledge of
union sympathies by the alleged discriminatees at a
significant point in time with respect to their inclu-
sion in the layoffs,' I would find that Jones, Turn-
quist, and Taylor were discriminatorily selected for
layoff in violation of Section 8(a)(3). In my view, the
nebulous reasons given for their layoffs were pretex-
tual. Accordingly, I would order Respondent to rein-
state them and would overrule the challenges to their
ballots as they are 8(a)(3) dischargees and not eco-
nomic layoffs.
Concerning the supervisory status of Assistant
Night Shift Foreman Mott, the record shows that the
night shift worked from 5 p.m. to 2:30 a.m. and that
Foreman Coon usually left around 10 p.m. or 12 a.m.
leaving Mott in charge for 2-1/2 to 4-1/2 hours daily.
On Saturdays, the shift is 3 to 10 p.m. and Mott is the
only composing room supervisor on the premises; at
which time Mott stated that his primary job is to
make sure that the deadlines for the newspapers and
advertisements are met. In furtherance of this objec-
tive, Mott assigns work to employees and directs
them to make sure that the components for a page
are put together. Mott, who receives $20 per week
more than the journeyman rate, has the authority to
give sick leave and to assign employees to work over-
time . As further evidence of Mott's supervisory sta-
tus, I note that in 1973 the Regional Director in Case
20-RC-11319 involving this Employer found Coon
to be a supervisor based upon his performance as
assistant night composing room foreman. Coon at
that time had the same function and authority as
Mott is shown to have in this proceeding. In view of
the foregoing, particularly the fact that Mott regu-
larly acts as the night shift supervisor 10 for substan-
tial periods of time, I find that he is a supervisor
under the Act." Accordingly, I would find that
Mott's interrogation of Taylor in late January violat-
ed Section 8(a)(1) and that the challenge to Mott's
ballot should be sustained.
I agree with the sole finding of violation by the
Administrative Law Judge based upon the unlawful
no-solicitation rule.12 However, this limited finding
ignores the true impact of the case at hand. In my
view it is an unwarranted oversimplification to say,
as my colleagues' adoption of the Administrative
Law Judge's Decision does, that the fact that only
night shift employees were affected by the layoffs is
"harmonious with the nature of that shift. . . ." This
finding is hardly a fair assessment in the newspaper
industry. It appears to have contributed to the
majority's conclusion that the layoff selections here
litigated were "valid and typical." On the record as a
whole, I cannot agree that they were.
e Hagler was instrumental in the January 17 discharge of Jones and Turn-
quist only 2 days after he became aware of their union sentiments Taylor,
the most active union adherent , was discharged on February 20, about the
time of the second management meeting held by Lesher and after Respon-
dent was apprised of Taylor's outspoken union interest as a result of the late
January interrogation
10 The Newspaper Guild, Erie Newspaper Guild, Local 187, AFL-CIO
(T,mcs Publishing Company), 196 NLRB 1121, 1123-24 (1972), including
regular authority to substitute , Toledo Locals Nos 15-P and 272 of the Li-
thographers and Photoengravers International Union, AFL-CIO (The Toledo
Blade Company, Inc), 175 NLRB 1072 (1969)
ii James Williams , the assistant daytime foreman in the composing room,
has authority comparable to that of Mott He can grant time off , assign
employees overtime , and direct and assign work to employees His predeces-
sor in the 1973 case was also found to be a supervisor In the circumstances
I would sustain the challenge to Williams' ballot
12 I would not, as my colleagues do, qualify this finding by exempting
employer rules apparently aimed directly at denying access to off-duty em-
ployees My reasons are fully set forth in GTE Lenkurt, Incorporated, 204
NLRB 921, 922 (1973 ), where Member Jenkins and I dissented , saying that
"both off-duty and on-duty employees are equally affected by the consider-
ations which underlie the presumptive invalidity of no- solicitation rules "
DECISION
STATEMENT OF THE CASE
DAVID G HEILBRUN, Administrative Law Judge: These
consolidated cases were heard at San Francisco, Califor-
nia, during the period from August 27 through September
3, 1975,' based upon charges filed January 27 and Febru-
ary 25 (the latter amended April 8), complaint issued April
28, and supplemental decision dated July 16 with notice of
hearing on substantial and material issues of fact relating
to 13 challenged ballots which are sufficient in number to
affect the results of an election conducted May 22. The
complaint , as consolidated , alleges that East Bay Newspa-
pers, Inc., d/b/a Contra Costa Times, herein called Re-
spondent, violated Section 8(a)(1) and (3) of the Act by
interrogating an employee about his union activities , creat-
ing the impression of surveillance of employees ' union ac-
tivities,2 telling employees that it would refuse to negotiate
a contractual provision requiring membership in Bay Area
Typographical Union No. 21, International Typographical
Union , AFL-CIO , herein called the Union , as a condition
of continued employment, maintaining and enforcing a
written rule prohibiting solicitation on company premises
by an employee after shift completion, and by discharging
Robert Turnquist, Michael Jones, and Les-Lee Taylor be-
1 All dates and named months hereinafter are in 1975 , unless indicated
otherwise
2 The allegation involving surveillance, styled subpar VI(b), was dis-
missed at hearing upon Respondent 's unopposed motion
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of their membership in or activities on behalf of the
Union, or because they engaged in other concerted activ-
ites for the purpose of collective bargaining or other mutu-
al aid or protection.
Upon the entire record, including my observation of the
witnesses, and upon consideration of briefs or posthearing
statement filed by General Counsel, Respondent, and the
Union, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a corporation, publishes several newspa-
pers in Walnut Creek, California, in connection with which
it carries nationally syndicated features, advertises nation-
ally sold products, and annually derives gross revenue from
its business operations in excess of $200,000. I find Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
Respondent publishes the Contra Costa Times (CCT)
plus other smaller daily or weekly newspapers distributed
in Contra Costa County and adjoining locale. CCT ac-
counts for about 75 percent of Respondent's total revenue.
Circulation is by "controlled" or voluntary subscription
basis to deliverees with advertising constituting primary in-
come. About 1971 Respondent commenced a transition
from hot to coldtype printing. Originally this was manifest-
ed by a photocomposition machine, then expanded to opti-
cal character reader (OCR or "scanner") and video display
terminal (VDT) equipment. Teletype setters (TTS) remain
a component of composing room facilities both for their
intrinsic function in preparation of advertising copy tape
and to provide backup capacity.3 The amount of TTS work
has lessened as OCR functions intensify and permit direct
computer, input of copy without the intervening step of
perforated tape. A further development is the reduction
and intended elimination of traditional proofreading as
proficiences increase in VDT use.
After layoff ("economic cutback") of seven composing
room employees in January 1974, Respondent experienced
reduced income from advertising linage and increased op-
erating costs, primarily for newsprint, during the balance
of 1974. Further economic cutbacks were contemplated
but action deferred over the holiday period late that year.
3 At a time postdating all operative facts of this case , Respondent moved
to a new facility at which the coldtype method , as part of basic offset
newspaper printing , reached fullest application A detailed summary of the
general process is contained in Community Service Publishing , inc, 216
NLRB 997 (1975) Hot type equipment, last used for classified advertising,
was not operated after April (although maintained in readiness as additional
backup) A basic description of the former mode of operation appears in
Charging Party's Exh I, pp 17-25
On January 3 Frank Newell assumed the position of gener-
al manager. He was promptly advised by Dean Lesher,
president, that page costs of CCT were unacceptably high
and further economies must be realized through employee
layoffs.' Newell directed Ray Hagler, then composing
room superintendent, to confer with subordinates and rec-
ommend persons for release. A series of discussions result-
ed between Hagler, Composing Room Foreman Clifford
White, and Assistant Composing Room Foreman (for
night shift) James Coon. After considering employee skills,
productivity, attitude, length of employment, and hardship
factors, coupled with imminent production innovations, a
list 5 naming Dale Hansohn (spelled "Hansen" in Resp.
Exh 6), Michael Jones, and Robert Turnquist was submit-
ted by Hagler and presented by Newell to Lesher who ap-
proved it on January 16. On February 3 Ridgey Pearson
assumed the vacant position of production manager and
within days learned through Newell of Lesher's desire for
further retrenchment by additional employee layoffs.6
Pearson met with White and Coon, comparably as Hagler
had done the prior month, and a list naming Les-Lee Tay-
lor, Cecil Turner, Michael Martin, Sue Ashcraft, and Ja-
nelle Millar was submitted by Pearson and presented by
Newell to Lesher who approved it on February 20. Pearson
had compiled this list in reliance on his own observation
coupled with recommendations by subordinate foremen.
The described layoffs were implemented by calling per-
sons individually to Newell's office where he advised of the
action. Personnel Manager Gail Davidson was present for
both groups, while Pearson was also present during the
February sequence.' Each person was tendered conversion
forms relating to group health and life insurance (except
ineligible part-time employees Ashcraft and Millar). Ac-
crued earnings, all vacation pay, and 2 weeks' severance
were also delivered at the time. Jones testified that he pro-
tested being laid off while others of less seniority were re-
tained, to which Newell answered he "didn't know" be-
cause of not having "anything to do with who was being
laid off." Turnquist returned to his work area from the
interview and inquired imploringly "why me?" of White,
who merely "shrugged his shoulders like he didn't know."
Regarding the layoffs effected January 17 Newell recalls
that "one individual" said "why was it the night shift, or
4 No issue is present as to business justification for layoffs, only timing of
such action and the particular individuals selected
s
Lesher testified that he visualized a larger layoff, but for the time was
content to accept recommendations of subordinates both as to extent and
selection of employees affected
6 Effective January 19 Hagler had voluntarily relinquished his former po-
sition and began work within the composing room involving transitional
tasks associated to coldtype printing of display advertising plus training in
computer operation relative to copy status and dumping of stored matter
Coon perceived this change as permitting White to "step into" Hagler's Job,
however, White does not claim such elevation As a practical matter, the
supervisory changes of January-February amounted to abolishing a super-
intendency over the composing room and establishing a managership over
the mechanical departments of composing, engraving, and pressroom
7 Taylor testified that he had prominently worn a red ITU button to this
meeting and during the course of approximately 10 minutes of discussion
observed Newell pointedly staring at it while talking Newell, Pearson, and
Davidson each deny seeing such a button on Taylor Leadman Dennis Mott
testified that at some prior time he had observed Taylor wearing a union
button of this description while at work Since Taylor's selection was defi-
nite well prior to exit interview, the point is immaterial
CONTRA COSTA TIMES 1153
something to that effect," although Davidson denies that
Jones made any inquiry based on his own seniority. She
does, however, respecting the layoffs effective February 21,
recall Turner asking if he would be considered for reem-
ployment and being told that although the economic situa-
tion was unpredictable "he would be considered."
Taylor, employed since September 1967 and performing
page makeup on the night shift, testified to engaging in
activities on behalf of the Union from August 1974
through "the first few weeks of February." In the course of
these he frequently met with a union organizer and solic-
ited signed authorization cards from about 12 employees.
He testified that in late January, while sitting with Mott in
the TTS room about 1:45 a.m. when "all the work was
through . . . waiting for the end of the shift," Mott asked
"if I knew anything about the union being organized in
[CCT]." Taylor replied that he would "vote for the bubble
gum wrappers' union, anything was better than the situa-
tion we had going at that time," to which Mott laughed
without saying more.8
Jones, employed since December 1968 and who worked
the night shift at time of his layoff (except Fridays) per-
forming page makeup, testified to attending union meet-
ings as did Taylor and obtaining three signed authorization
cards from "receptive" employees in December 1974. He
recalled that during January, while sitting with Turnquist
at a table in the lunchroom discussing the Union and "how
we felt it might be carried," Hagler walked through the
door, looked at them, patronized the coffee machine, and
spoke, saying, "I don't think you should be talking like that
around here, and I really don't want to hear of it any-
more."
Turnquist, employed since 1966 and who worked two
night shifts a week and split shifts on Friday and Saturday
(1 to 10 p.m.) performing TTS operation and linotype ma-
chine duties for classified advertising , testified to attending
a meeting at Taylor's home with a union representative in
December and then talking with an employee respecting a
union card but learning she had already signed. Turnquist
recalled being present with Jones in the lunchroom around
January 15, "rapping about the Union, about how the cam-
paign was going, about how many we thought were signed
up, what we were planning to do to organize," and then
hearing a coin in the coffee machine causing him to turn
and see Hagler. Turnquist testified that Hagler approached
the table, said he didn't "want to hear that kind of talk
around there any more," and left.9
8 Taylor also described two other conversations with Mott, the first about
early February, in which Mott asked when the election would be and fol-
lowed Taylor's disclaimer of knowledge with "well, you know what I'm
talking about," and the second on February 20 having "to do with the layoff
itself " On this latter occasion Taylor had asked Mott if there would be a
layoff the following day Mott answered that I day earlier he would have
answered affirmatively but that meetings were underway among higher
management to further deliberate the possibility in the context of certain
supervisory recommendations against such action Taylor recalled Mott
saying "they told him to forget about laying off out of seniority or he was
liable to cause the union to come into CCT " General Counsel does not
contend either of these episodes relates to subpar VI (a) of the complaint
9 Hagler circuitously denied the incident described by both Jones and
Turnquist Based primarily on Turnquist's convincing general veracity and
my belief that Hagler desired to disassociate himself from such conduct, I
In January the composing room consisted of approxi-
mately 50 employees divided between two shifts. White
was assisted by Leadman James Williams, while on nights
Coon was assisted by Mott . Hagler testified to a series of
discussions between himself and lower supervision that led
up to the layoff selections submitted January 16. He testi-
fied that management desired to retain "self-motivated
people," that "potential and capability" were noted, that
hardship cases were considered , and that supervisors were
aware of the "unknown factor" involved in Respondent's
imminent relocation . In this context Hagler recalled that
Hansohn was unanimously selected because he was merely
an apprentice ad compositor hired on a temporary basis,
while a similar "consensus" existed respecting Jones (who
Hagler did not feel was a "self motivator in any way").
Hagler attributed a "lackadaisical attitude" to Jones and
described instances in May 1974, and again in early Janu-
ary when his failure to appear for work as scheduled
caused Hagler to record the infraction . Respecting Turn-
quist, Hagler overruled Coon's "adamant" opposition and
approved him for layoff because hot type duties would not
continue in the new building and fewer TTS positions
would exist. White testified that Hansohn's layoff was a
"natural selection" while he, Hagler, and Coon had "pretty
well decided [Jones] would be one of the people to go."
White understood selection criteria were based on employ-
ee performance and a need to spread layoffs among differ-
ent areas of the composing room . In this regard White
found Jones' record to be "poor" and generally "the type
of individual . . . that sometimes you had to look for,"
after seeming "to wander away from the job." Respecting
Turnquist , White (agreeing with Hagler on the point) be-
lieved Respondent could "afford to let him go" with delib-
erate favoritism to employee Pat Klag (who also performed
hot type work) because of this individual's "history of fam-
ily problems " White believed that Taylor "never made the
conversion to cold type" and could not "clean[ly]" paste up
columns of type. Coon testified that he recommended
Jones for layoff feeling he "no longer really cared" based
on observation of work habits. Coon routinely concurred
with his superiors concerning the layoff of Hansohn; how-
ever felt that Turnquist , since being on his shift for approx-
imately a year, "had done a good job for me ." Coon be-
lieved Turnquist had "more general all-around experience"
as compared to composing room employee Ray Wanat (a
hot type monitor) and he recommended the further needed
layoff be of TTS operator Linda Navarro. Coon recalled
the outcome of discussing the various possibilities as being
that Hagler and White "felt [Turnquist] should go and [Na-
varro] should stay." Coon's contributions to the selection
process for February layoffs included his belief that Taylor
was "weaker ... as opposed to other [employees]."
On January 10 and again on February 20, Lesher held
meetings with assembled employees of the composing
room's day and night shifts.1° Jones, Turnquist, and Navar-
credit the testimony that Hagler mildly admonished both employees for
their dialogue
10 General Counsel contends that utterances made during the January
meeting embody the "element of malice" relative to 8(a )(3) allegations here-
in Utterances at the February meeting form the basis for subpar VI (c) of
Continued
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to each attended the January meeting for day shift employ-
ees. They recalled it commenced around 1:30 p.m. and
lasted approximately 45 minutes. Each of these witnesses
testified that Lesher referred to receiving a notification
from the Union which irritated or upset him and wondered
why employees would associate "behind his back" with
this "type of people" whom he downgraded relative to re-
ported strike activity at another newspaper. Turnquist re-
called Lesher saying a layoff was likely while Jones re-
called this remark in response to a question with Lesher
saying more specifically a layoff "would probably be with-
in the next week or so." Jones testified that he inquired of
Lesher why he opposed the Union but could not remember
the answer given. Navarro recalled it was employee Ed-
ward Singleton who raised a question about union repre-
sentation at other Lesher newspapers and that employee
Judy Weldon volunteered a remark to the effect she didn't
know "there was any union thing going on around there"
to which Lesher responded "no one knew anything about
it," but that "apparently this was all being done by the
night shift." Taylor attended the January meeting for night
shift employees, recalling it began around 5.15 p.m. and
lasted for an hour. He testified that Lesher alluded to
union correspondence, expressed concern as to why em-
ployees "would go to the ITU without informing him first
[they] were unhappy" and detailed alleged maliciousness of
the Union associated to strike action at another newspaper.
Taylor testified that a question was posed by Jones during
this meeting concerning why Lesher would oppose the
Union since "all the rest of your plants are union" to which
a "direct answer" was never given Additionally Taylor re-
calls a question concerning possible layoffs (against the
background of increasingly stronger rumors to that effect
for several weeks) to which Lesher said "seniority would
prevail except in some instances where one person had a
problem different than another, he would take into consid-
eration work habits and also families, that sort of thing."
Navarro testified to attending the February meeting for
day shift employees which began around 1:30 p.m. and
lasted approximately one-half hour She recalled Lesher
discussing "cost of running the paper" and then "opened
up for questions." She testified that, to an employee ques-
tion of whether a person "would be compelled to join the
union," Lesher "adamantly" answered he "would refuse to
negotiate for a closed shop with ITU," adding his feeling
that "employees [shouldn't] have to join something they
didn't want to join." Lesher testified that he opened the
January meeting for day shift employees by expressing sur-
prise over receiving a letter from ITU Local 21 since he
understood "the Walnut Creek territory has historically
been in the jurisdiction of ITU Local 597 " He spoke of
revenue loss and the need to "embark actively on our pro-
gram of terminating people" in terms of reduced advertis-
ing and coming automation. He "expressed surprise" that
the complaint (This subparagraph is inadvertently lettered "(d)"-but
should be deemed as lettered "(c) ") The transcript reference to this sub-
paragraph is changed accordingly Navarro testified the February meeting
occurred on the day of Taylor's layoff, or February 21 I believe Lesher
more accurately fixes the date as February 20, associating it to rampant
rumors at the time concerning impending layoffs
employees would have contacted the particular Local in
view of "problems" which it allegedly created during strike
action at another newspaper. Lesher testified he then
"threw the meeting open to questions" and in the course of
these stated that "seniority would [not] be the major or sole
factor" in employee layoffs but that productivity would be
primarily considered along with family problems. Lesher
further recalled, responding to a question concerning possi-
ble compulsory union membership, stating he "would pre-
fe- [employees] not to be forced to join a union." Re-
specting the January meeting for night shift employees
Lesher testified the "format [was] basically the same" and
that in response to a question by Trina Goodrum concern-
ing whether "she would be required to join the Union if the
Union won the election," he answered by stating his oppo-
sition "in principle to forcing anyone to join an organiza-
tion they did not wish to loin." Lesher testified that the
shift meetings in February were "practically the same" as
between both, that he predicted negotiations with the
Union "would be long and difficult" and (responding to
questions from employees) while expressing opposition "to
require somebody to join something that he did not want
to join" denied any statement to the effect he would "not
negotiate a collective-bargaining agreement with the Union
that contained a clause that would require employees to
join the Union." Goodrum attended both meetings for day
shift employees, and while now having "trouble distin-
guishing between the two" recalled questions on both occa-
sions concerning union membership to which Lesher
voiced his belief that persons should not "be forced to join
a union if they didn't want," stating that in the course of
predictably "difficult" negotiations he was "against a
clause that would force a person to join a union" but
"would negotiate for an open shop if that were the case."
Employee John Hannah attended both meetings for day
shift employees and respecting the second one, recalled
Lesher answering a question in hypothetical terms of a
"real close vote" causing him "reluctan[ce] to sign a con-
tract" and expressing the intention to "bargain for an open
shop because he didn't think it was fair for anybody to join
anything they didn't want to.,,
Respecting subparagraph VI(d) of the complaint, Navar-
ro testified that on March 5 she observed the following
language in a document signed by Newell posted on
Respondent's bulletin board.
SOLICITATION PROHIBITED . . . including discharge. [See
Appendix A.]
She had never (in the course of over 6 years' employment)
seen such rules before. On this first day of posting she
inquired of White whether it meant employees could no
longer buy Avon products, notions, or flowers on the
premises and he answered it had nothing to do with that,
"just pertain[ing] to any kind of Union literature." Re-
specting the purchase of such items, Navarro testified it
would occur at the composing room's front desk during
working hours and that supervisors "would see we came in
with the flowers" while "the Avon stuff would sit on our
machines "
Subparagraph V(e) of the complaint alleges that Mott, as
night leadman, is Respondent's supervisor and agent. He
CONTRA COSTA TIMES 1155
has occupied his present position approximately 18 months
and prior to that was in Respondent's employ as journey-
man printer for several years. His work shift during 4 week
nights is 5:30 p.m. until 2 a.m (except Friday only until 1
a.m.) and on Saturdays from 3 until 10 p.m. Taylor testi-
fied that Coon was "in charge" of the night shift but he
usually left between 10 p.m. and midnight. Taylor recalled
that during the last several months of his employment there
would be very frequent instances in which he was required
to stay beyond normal quitting time and on such occasions
he would be told to do this by either Coon or Mott. Addi-
tionally Taylor recalled that five or six times throughout
the last year of his employment he obtained permission
from Mott to have "time off [by] leaving the premises ear-
ly." Jones also described Coon as being "in charge of the
night shift," but generally leaving between 10 p.m. and
midnight. Jones testified that Coon would assign employ-
ees their work upon arrival including anything "special to
do." When work beyond the normal 1:30 a.m. quitting
time of Jones' own shift was necessitated, he would be told
of this in advance by either Coon or Mott Twice during
the last 4 months of Jones' employment he approached
Mott to leave work early because of sickness, and permis-
sion was granted. Turnquist characterized Coon as forman
of the night shift and Mott as assistant foreman with the
former always leaving work between 10 p m. and midnight.
Turnquist testified that, following Coon's departure, Mott
"would go around and see that all the duties were being
done, that everybody was doing their job right" as a matter
of monitoring "the work flow." When difficulties arose,
Turnquist recalled, Mott would shift employees to provide
help where needed. Turnquist testified that on Saturdays a
small shift was utilized with White present during the
morning, Mott present for the balance of the shift, and
Coon never there at all. Turnquist recalled that, when over-
time was worked, Coon or Mott would usually tell him of
this about 1 hour before regular quitting time. Mott testi-
fied that his superiors are White and Coon, that 70 to 80
percent of his working time is spent on page makeup, that
additionally he operates VDT tubes and otherwise
"make[s] sure the deadlines for the newspapers and adver-
tisements are met." Concerning this last responsibility, he
contacts editors to obtain expected copy, moves about the
composing room checking on the status of work, and ap-
praises Coon of needed task reassignments among employ-
ees. Mott testified that he carries out "the suggestions and
decisions" of Coon when deadlines are "behind schedule."
Respecting the Saturday shift of approximately five em-
ployees, Mott testified that White was ordinarily present
until 4 or 5 p.m. and Coon occasionally worked a Satur-
day. Mott is paid journeyman printer rate plus an addition-
al flat $20 weekly "for being a leadman."
A preliminary issue upon which further conclusions turn
is the status of Mott. Overall evidence on the matter is not
in significant factual dispute; rather the conflicting conten-
tions relate to what meaning is properly attached to the
tasks performed and the dealings engaged in with employ-
ees of the night shift. The composing room function is gen-
erally characterized by versatility among employees and
recurring publication deadlines typical to the newspaper
business. Mott has accepted some measure of responsibil-
ity but not such showing him to exercise authority which,
while independent , is more than routine in its basic nature.
Respecting task assignment , the composing room exists as
part of Respondent 's mechanical departments with copy
(editorial , reportorial , graphic, or advertising) flowing into
the operation for photocomposition involving skilled man-
ual (TTS , page makeup, camera) or specialized (markup,
proofreading) abilities . In this setting Mott does little more
than modestly aid in harmonizing intrinsic daily problems
with what his department is expected to produce; and
more importantly when it is to be produced . The tone of his
authority is found in Turnquist 's testimony that he "most-
ly" performs "regular rank and file duties", while the ordi-
nary "backup of work" that could lead to Mott directing
shift employees in task sequence was a condition to be
cured by "somebody [having] to assign ." Established publi-
cation schedules and a time factor relating to the likelihood
of completed page building were the dimensions in which
Mott "led" his shift . On balance , I see no indication he
went beyond the routine by engaging in astute or difficult
deliberations as to how shifting should occur. The deferra-
ble was too obvious ; the immediate needs too clear. If
Mott was quantitatively more active with assignments on
Saturdays , the difference is only one of degree not kind.
Neither are there secondary indicators to buttress an alle-
gation that Mott functioned as a statutory supervisor. Pri-
marily he was shielded from effective assumption of re-
sponsibility by Coon's presence . When Coon vacationed,
White specifically covered the shift. No employee testified
to dealing with Mott on the simple matter of vacation
boarding , while he directed overtime and permitted early
departures were patently of routine character merging into
Mott's identity as leadman for the shift . In the representa-
tion case hearing Singleton testified that over the years he
had heard "many people ask for time off [and] never heard
a person refused it" (C.P . Exh. 1, p . 99) Should the sudden
illness of Jones require unexpected last-minute overtime by
Taylor, this was no more than a reflection of what Mott
was commonly doing as each day's work required fulfill-
ment of a publication timetable. Accordingly , I find Mott
is not a supervisor within the meaning of the Act nor
Respondent 's agent as alleged . " Cf. Columbia Typographi-
cal Union No. 101, International Typographical Union of
North America, AFL-CIO (The Washington Post Company),
220 NLRB 1173 (1975).
Respecting Respondent 's conduct allegedly violative of
Section 8(a)(1), the matter of interrogation fails since
Mott's dialogue with Taylor during January is not attribut-
able to this employer. As to remarks on February 20 con-
cerning possible neogtiations related to "requiring mem-
bership in the Union ," I credit Lesher's version of what
was said and find his remarks were limited to permissible
views on the subject of compulsory union membership.
i Singleton, contradicting Newell, testified that Mott departed Lesher's
January meeting upon supervisors being excused I accept Singleton's ver-
sion, particularly since confirmed by Jones and not denied by Mott himself
The implication of so departing is not sufficient to overcome the basic
weight of evidence on this issue The additional implication based on Mott
having provided an investigatory affidavit with the assistance of
Respondent's counsel is similarly insufficient to vary the ultimate conclu-
sion regarding his status
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's no-solicitation rule, however , was impermis-
sibly overbroad 12 In scope the rule prohibiting solicitation
on company premises after completion of shift is an im-
proper restriction on legitimate forms of protected activity.
See M Restaurants, Incorporated, d/b/a The Mandarin, 221
NLRB 264 (1975), and cases there cited. Accordingly, I
find Respondent has committed independent violation of
Section 8(a)(1), but only insofar 13 as it maintained and
enforced an unlawful no-solicitation rule For this I shall
recommend that Respondent cease and desist from its un-
fair labor practices and take certain affirmative action de-
signed to effectuate the policies of the Act
The 8(a)(3) branch of the case must be viewed against
conceded background of business justification for general
employee layoffs early in 1975. It is first contended that
timing of the litigated composing room layoffs was unlaw-
ful. Stated another way, General Counsel asserts the lay-
offs, if they must have occured, should not have been effec-
tuated at the chosen point in time. This contention is bare
argument without support from the evidence. Substantial
layoffs occurred generally throughout CCT in 1974 and
Respondent's explanation that further payroll cost econo-
mies were deferred until the yearend holiday publishing
period was over is persuasive both from the standpoint of
needed employee coverage and avoidance of undue harsh-
ness. It is not uncommon for employers to cushion adverse
employment action by such delay and Respondent's inten-
tion respecting retrenchment was not of an urgency that
some yielding was impossible. Layoffs were inevitable soon
after the new year began and the two-phase approach tak-
en was not unusual . The only countervailing point is the
existence of organizing activities during January and filing
of a representation petition shortly before the release of
additional employees in February. These facts do not serve
as a necessary damper on otherwise valid action by Re-
spondent . Considering its legitimate entitlement to econ-
omize in the face of reduced profitability and the antici-
pated move to modernized premises, the pace of
"economic cutback" in employment was predictably nor-
mal. Cf. Silver Eagle Company, 214 NLRB 185 (1974) It is
secondly contended that selection of the three alleged dis-
criminatees was unlawfully made. Here there is actually
failure to establish a prima facie case from overall proba-
tive evidence, taken as a whole. No general tenor of hostili-
ty to unionism , as such would manifest by unlawful termi-
12
White did not effectively deny Navarro's accepted testimony that the
rule was intended to appiy against union activities and he offered no expla-
nation connecting the timing of such posting with legitimate employer inter-
ests While cross-examination traversed matters that would concern unlaw-
fully timed promulgation (or repromulgation ) of these rules or their
discriminatory application , neither theory is within the complaint 's language
as drawn in subpar VI (d) Since the rules in question were removed prior to
the election and General Counsel chose not to enlarge upon or clarify this
point , I believe the only fully litigated issue is the pure question of whether
the post-shift bar to solicitation was improper while in effect
13 The allegation meant as subpar VI(c) depends wholly on Navarro's
testimony I believe she is given to overstatement and has misunderstood or
misrecalled Lesher's actual words of February 20 I specifically discredit her
testimony that the term "closed shop" was uttered and otherwise find that
on the subject being discussed Lesher did not by his remarks foreclose the
prospect of reaching a modified form of union security , in the event of
future collective bargaining with the Union
nation from employment, is shown.14 While Taylor was
prominently involved in the Union's campaign, the evi-
dence shows that after actively considering him for layoff
in January he was not chosen. The fact that both Jones and
Turnquist were substantially less active than Taylor, yet
were chosen for layoff earlier, is a further indicator that
unlawful motivation was not present . Respondent 's super-
visors each expressly denied that considerations of union
sympathy were involved in selection for layoff. More im-
portant than such self-serving disclaimer is the fact that no
showing of animus was advanced whereby it could reason-
ably be said the particular individuals were singled out for
retaliatory action 15 To the extent that Mott questioned
Taylor about the latter's knowledge of union activities,
which I find he did, the exchange was casual, innocuous,
and in view of Mott 's nonsupervisory status not binding on
Respondent . The lunchroom incident involving Hagler's
remark to Jones and Turnquist is intrinsically insufficient
to prove the element of malice. While I am satisfied the
words passed, I see no reason to conclude that they were
more than spontaneous personal expression . The factors
described by all supervisors involved in the January and
February layoff selections were valid and typical.16
Respondent's supervisors did not relish the cutback as it
made their own fulfillment of responsibilities more difficult
because of having fewer employees. It is this factor which I
believe sufficiently explains the vacillation and wide-rang-
ing view of possible choices before final selection was
made. When done, managerial personnel then attempted to
skirt admission of personal involvement in the decision. I
also find this typical as an attempted avoidance of other-
wise unpleasant confrontation that might occur . The three
layoffs in issue are but part of larger action and the 8(a)(3)
allegation basically amounts to no more than unsupported
suspicion. Accordingly, I find that each of the alleged dis-
crimmatees was laid off without any form of influencing
discriminatory motive.
CONCLUSIONS OF LAW
I Respondent, by maintaining and enforcing a rule pro-
hibiting its employees from soliciting on company premises
after their shift has been completed , has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. Respondent has not violated the Act in any respect
other than as specifically found
14 Navarro conceded that a statement assuring employees they "could
have any representation you wanted " was one of Lesher's remarks on Feb-
ruary 20
15 Testimony concerning whether Lesher remarked about seeing employ-
ees with union representatives at the Concord Inn is inconclusive The com-
posite evidence on this point is that any utterances by him were merely
confirmatory of what others were saying about employees having so associ-
ated themselves
16 Respondent 's position essentially is that Jones , Turnquist , and Taylor
made themselves expendable by a combination of skills limitation and job
outlook which disadvantaged them in competition with others of the depart-
ment That night shift employees only were affected is harmonious with the
nature of that shift and that these three were selected may be termed not
unsurprising in view of some objectively voiced testimony as to their value
CONTRA COSTA TIMES 1157
The Challenges
As stated above, Mott is not a supervisor within the
meaning of Section 2(11) of the Act. The ballot of James
(Earl) Williams, day shift leadman, was also challenged.
The evidence pertaining to Williams (who was hospitalized
at time of hearing) is that his duties are comparable to
Mott's. Taylor testified that on occasions at the start of
work, while over-lapping with the day ahift, Williams
would take him off page building for the daily Valley
Times newspaper and assign him to "another page of
[CCT]." Taylor has also observed Williams tell people
"what had to be built," both when White was and was not
on the premises. Jones testified that Williams would peri-
odically "yank him off" tabloid work and "put me building
pages on [CCT] because they were falling behind" and
would otherwise "assign other people to tasks other than
the particular job they might be performing at the mo-
ment." Navarro testified that Williams regularly transfer-
red her from one job to another as between setting of head-
lines and VDT operation. She recalled that occasionally
conflicting instructions arise from White and Williams and
in such an instance she obtains clarification of the priori-
ties from White. She described that upon Saturday work
being "routinely . . . finished" she is "released early" by
Williams who "signs out" her timecard. On June 7 Wil-
liams telephoned Navarro at home and by "perturbed"
questioning asked why she was not at work, believing she
should have arranged to appear on overtime that day. On
another occasion Williams "called [her] into work on a day
off other than Saturday." I find insufficient basis from
these facts to conclude that Williams possesses true super-
visory status. The same type of routine characteristics at-
tach to Williams' position as to Mott's. Furthermore, actu-
al supervisors of Respondent's management hierarchy are
more extensively present on day shift. The most arresting
episode is that involving inadvertence in Saturday coverage
and Williams' conversation with Navarro on the matter.
Significantly she did not respond to his request and his
adoption of the term "boss" in speaking with her was more
a matter of exasperation than truly reflecting possessed au-
thority. Accordingly, the challenges to both Williams and
Mott are overruled.
Respecting Hagler, it is clear he had fully assumed com-
puter-related duties within the composing room at the time
of election eligibility as well as on the date of election itself.
His relinquishment of the superintendent position was
clear cut and without residual retention of any supervisory
authority. A $480 monthly reduction in pay was made ef-
fective at the time of the change. Hagler's duties since at
least March have solely involved technical workings of the
coldtype photocomposition function of Respondent, large-
ly relating to the setting of advertising and development of
film He is, therefore, clearly within the stated bargaining
unit and at all material times without supervisory powers.
Accordingly, this challenge is overruled.
Jones, Turnquist, Taylor, Michael Martin, and Cecil
Turner were each laid off during economic cutback consid-
erably before the election eligibility date. Among these
only Turner inquired if he would be considered for future
employment, and although told this would occur there was
no further objective basis indicating Respondent contemp-
lated Turner's reemployment or that of the other four."
The hiring of a part-time makeup employee (Castillo) rep-
resents minor flexibility desired by Respondent in its over-
all composing room function. Accordingly, since these in-
dividuals were each terminated without reasonable
expectancy of recall, the challenges are sustained.
Respecting Roy Gantt, Jerry Barauskas, Michael D. An-
derberg, Donald McCrary, and George Dye,1i the issue is
whether these individuals are outside the bargaining unit
performing nonincluded janitorial work or are mainte-
nance employees contemplated in the Decision and Direc-
tion of Election. Newell, on whose testimony the Regional
Director found three maintenance empl, iyees spending 80
percent of their time within the unit, cannot now identify
by name the persons he meant in referring to such func-
tion. The record amply establishes, however, that they are
Carl Schmidt, Tony James, and William Orrell, each of
whom repair malfunctioning coldtype equipment (metro-
setter or OCR) and otherwise engage in coldtype compos-
ing work (dumping classified advertising from the comput-
er or monitoring film from the metrosetter) McCrary,
whose duties are representative of the other individuals
within this group of challengees, testified that he spent sev-
eral hours per day cleaning linotype machines, changing
their motors, melting down old type, building tables, and
putting up partitions for use in the composing room. Out-
side the composing room he performed painting, built TTS
cabinets, and erected partitions for other areas. The re-
mainder of his time is spent working at premises of other
newspapers 19
The issue of the representation case, with respect to the
three individuals titled machinist, was whether or not the
20 percent of working time spent in maintenance work out-
side the composing room (e.g., camera repair) itself suf-
ficed as an indicator of interchange between mechanical
department employees sufficient to warrant a broader unit.
Aside from express reference to maintenance employees
there is no other indication from the Decision and Direc-
tion of Election that any individuals beyond actual com-
posing room employees are properly includable in the unit.
Composing room employees fairly means those persons
specifically involved with the cyclic preparation of material
for press runs that produce a newspaper. Support services
!I
Newell expressly denied any "future need" for these individuals
s These names, as well as Martin's , appear as corrected on the record
"McCrary recalled that during the January-April period he spent about
4 hours each morning in duties within the composing room In addition to
lmotype-related maintenance he has pulled electrical cable necessary to wire
new computerized photocomposition equipment, vacuumed paper debris
away from OCR equipment, and vacuumed or oiled TTS machines Mc-
Crary described the work of Gantt as similar to his own involving painting.
partition building, sweeping metal off floors for lead remelt , and changing
lights Barauskas , employed since April 9, has been exclusively engaged
building cabinets of wood and glass for composing room use Anderberg,
employed part time, was formerly involved in pouring lead pigs, casting
mats, and cleaning linotypes He now cleans in the new plant's composing
room with broom and vacuum Dye performed linotype maintenance, re-
stocked composing room supplies, and swept lead off the floor McCrary
testified that each person within this group of challengees (except Baraus-
kas) performed exterior maintenance "from time to time if needed" such as
cement work, gardening, and tree trimming McCrary was previously a
printer by occupation and is here paid Journeyman composing room rate
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by McCrary and his challenged colleagues are
not a direct part of this function. Respondent has chosen
to supervise this group through White (except when at
other locations) and this adds appeal to contending they
represent included occupations. Contrarily, this is only ad-
ministrative convenience and their duties are so diffuse
and unessential to the heart of composing room activity
that it would distort normal comprehension of this stated
bargaining unit to hold that they are included. Re-
spondent's Exhibit 6, based as it is on personnel jacket
files and departmental locations there shown, does not
control when actual testimony shows these five challenged
individuals to be general custodial employees without suffi-
cient composing room duties as to bring them within the
unit. Accordingly, each of the five challenges is sustained.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 20
Respondent, East Bay Newspapers, Inc., d/b/a Contra
Costa Times, Walnut Creek, California, its officers, agents,
successors, and assigns, shall:
1 Cease and desist from:
(a) Maintaining and enforcing a rule which prohibits its
employees from soliciting on company premises after their
shift has been completed.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its Walnut Creek, California, plant the at-
tached notice marked "Appendix B " 21 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being duly signed by Respondent's
20 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 In such event the recommended Order
shall futher consistute a Direction to the Regional Director for Region 20
that, within 10 days from the date of adoption and pursuant to the Rules
and Regulations of the Board, the ballots of James Williams, Dennis Mott,
and Ray Hagler be opened and counted and thereafter a revised tally of
ballots and appropriate certification be issued and served on the parties
2i 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 "
representative, shall be posted by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed in
all other respects.
APPENDIX A
SOLICITATION PROHIBITED
Based upon long established rules, your attention is
called to the following:
"Solicitation of any type by employees during working
time is prohibited
Solicitation on company premises by employees after
employees' shift has been completed is prohibited.
Distribution of literature of any type or description by
employees during working time is prohibited.
Distribution of literature of any type or description in
working areas is prohibited.
Violation of any of the above rules will result in imme-
diate disciplinary action, including discharge."
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our employees from soliciting
for a union on company premises after their shifts
have been completed unless such a prohibition is de-
monstrably necessary to maintain production, disci-
pline, or security.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights protected by the National Labor Relations
Act.
EAST BAY NEWSPAPERS , INC., d/b/a CONTRA COSTA
TIMES