Graphic Services Corp.

National Labor Relations Board - Board Decisions

May 24, 1976

224 N.L.R.B. 17 (N.L.R.B. 1976)

GRAPHIC SERVICES CORP
Graphic Services Corporation and John W . Rogalski,
Jr.
Ad Pro, Inc. and John W Rogalski, Jr.
Washington Photoengraving Company and John W
Rogalski , Jr Cases 13-CA-14047, 13-CA-14160,
and 13-CA-14161
May 24, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 19, 1975, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding Thereafter, Respondents' filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith
We agree with the Administrative Law Judge, for
the reasons stated by him, that employee John Ro-
galski was discharged by the Respondents for the
purpose of discouraging membership in the Union,
in violation of Section 8(a)(3) and (1) of the Act We
also agree with his conclusions that Respondents vio-
lated Section 8(a)(1) by threatening employees with
discharge for calling the Union, interrogating them
as to whether they called the Union, and warning
them against, and prohibiting them from speaking to
other employees about the Union We find merit,
however, in Respondents' exception to the Adminis-
trative Law Judge's finding of additional violations
of Section 8(a)(1) in the conversations DiPinto and
DiFino had with Rogalski regarding his inquires
about joining the Union 2
i Since we have adopted the Administrative Law Judge 's recommenda-
tion to dismiss all allegations as to Washington Photoengraving Company
all references to Respondents herem pertain to Graphic Services Corpora-
tion and Ad Pro, Inc
2 Member Jenkins would affirm the Administrative Law Judge s findings
and conclusions regarding these conversations In the light of the other
efforts made by Respondents, through DiFino and DiPinto to discourage
contacting or seeking assistance from the Union, Member Jenkins agrees
that these statements likewise had a tendency to discourage Rogalski from
seeking out the Union
17
The record shows that on November 20, 1974, Ro-
galski had a conversation with Manager DiPinto 3
about a raise and after receiving a negative reply
"[He] asked to join the Union and DiPinto says, `No,
you couldn't join the Union There's a two-year wait-
ing list Don't be ridiculous"'
On January 10, 1975, Rogalski engaged DiFino in
a conversation about a raise and after being turned
down testified, "I wanted to get into the Union John
said, `Oh no There's people on the streets right now
that are having Union cards without jobs' So he said
`Its [sic] impossible to get you in there ' "
These conversations took place prior to the time
the Respondents had any knowledge of union activi-
ties on the part of Rogalski, the responses of DiPinto
and DiFino appear noncoercive and the truth of
these statments was confirmed by the union officials
Therefore, we conclude that the responses of DiFino
and DiPinto to Rogalski's inquiries about joining the
Union were nothing more than passing comments
and were not designed to discourage Rogalski from
making his own inquiries as to the availability of
union membership, which in fact he did In these
circumstances we find that the General Counsel has
failed to establish interference, restraint, or coercion
within the meaning of Section 8(a)(1) in this regard
CONCLUSIONS OF LAW
I The Respondents are each engaged in com-
merce within the meaning of the Act
2 Chicago Typographical Union Local No 16 is a
labor organization within the meaning of Section
2(5) of the Act
3 By discriminatorily terminating John W Rogal-
ski, Jr, thereby discouraging membership in the
Union, Respondents Ad Pro and Graphic have en-
gaged in, and are engaging in, unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the
Act
4 By interfering with the right of employees to
speak to union representatives, threatening them
with discharge for calling the Union or for asserting
their claim to be included in an existing bargaining
unit, interrogating them as to whether they had
called the Union, warning them against, and prohib-
iting them from, speaking to other employees about
the Union, or engaging in other concerted protected
activities, Respondents Ad Pro and Graphic have in-
terfered with, coerced, and restrained their employ-
ees in the exercise of the rights guaranteed them in
Section 7 of the Act, in violation of Section 8(a)(1) of
the Act
3 DiPinto and Rogalski had a conversation along similar lines in Septem-
ber which was more than 6 months prior to the filing of the charge and is
not alleged as a violation
224 NLRB No 3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondents Ad
Pro, Inc, and Graphic Services Corporation, Chica-
go, Illinois, their officers, agents, successors, and as-
signs, shall
I Cease and desist from
(a) Discouraging membership in, or activities on
behalf of, Chicago Typographical Union Local No
16, or any other labor organization of their employ-
ees, by discriminatorily discharging, or in any other
manner discriminating against, any employee in re-
gard to hire, tenure, or any other term or condition of
employment
(b) Interfering with the right of employees to
speak to union representatives, threatening them
with discharge for calling the Union or for asserting
their claim to be included in an existing bargaining
unit, interrogating them as to whether they had
called the Union, or warning them against, and pro-
hibiting them from speaking to other employees
about the Union or engaging in other concerted pro-
tected activities
(c) In any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of
their right to self-organization, to join or assist the
above-named labor organization, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other
concerted activities for the purpose of mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, or to refrain from any or all
such activities
2 Take the following affirmative action necessary
to effectuate the policies of the Act
(a) Offer John W Rogalski, Jr, immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position in
either company, without prejudice to his seniority or
other rights or privileges, and make him whole for
any loss of pay he may have suffered by reason of the
discrimination against him by payment of a sum of
money equal to the amount he normally would have
earned as wages from the date of his discharge to the
date of his reinstatement, in the manner set forth in
the section of the Administrative Law Judge's Deci-
sion entitled "The Remedy "
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order
(c) Post at their plants in Chicago, Illinois, copies
of the attached notice marked "Appendix "'I Copies
of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondents' authorized representatives, shall be
posted by Respondents immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respon-
dents to insure that said notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith
IT IS FURTHER ORDERED that the allegations of the
complaint relating to Washington Photoengraving
Company be, and they hereby are, dismissed
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board '
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employ-
ees in their right to form, join, or assist labor unions
or to refrain from such activity
WE WILL offer John W Rogalski, Jr, immedi-
ate and full reinstatement to his formerjob or, if
that job no longer exists, to a substantially
equivalent position, in either company, without
prejudice to his seniority or other rights and
privileges, and WE WILL pay him for the earnings
he lost because we wrongfully discharged him,
plus interest at 6 percent
WE WILL NOT discharge or discriminate against
employees who join or assist Chicago Typo-
graphical Union Local No 16, or any other
union, or who engage in other concerted activi-
ties for their mutual aid or protection
WE WILL NOT interfere with the right of our
employees to speak to union representatives
WE WILL NOT threaten our employees with dis-
charge for calling the Union or for asserting a
claim to be included in an existing bargaining
unit
GRAPHIC SERVICES CORP 19
WE WILL NOT interrogate our employees as to
whether they had called the Union
WE WILL NOT warn them against or prohibit
them from speaking to other employees about
the Union or from engaging in other concerted
protected activities
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act
GRAPHIC SERVICES CORPORATION
AD PRO, INC
DECISION
valued in excess of $50,000 to points outside that State
Ad Pro is engaged in providing keyline and pasteup art
services, and during its past fiscal year it performed such
services, valued in excess of $50,000, for enterprises within
the State of Illinois which annually purchase and receive
goods valued in excess of $50,000 from points outside that
State
Washington Photoengraving is engaged in providing
photoengraving services, and during its past fiscal year it
performed such services, valued in excess of $50,000, for
enterprises within the State of Illinois which annually pur-
chase and receive goods valued in excess of $50,000 from
points outside the State
Respondents admit, and I find, that each is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act They deny that they constitute a single
employer or that they are affiliated businesses with com-
mon officers, owners, directors, or control
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge On February
25, 1975, the Charging Party (Rogalski) filed a charge
against Graphic Services Corporation, and on April 3,
1975, he filed charges against Ad Pro, Inc, and Washing-
ton Photoengraving Company On April 18, 1975, the Re-
gional Director for Region 13 issued an order consolidat-
ing cases and a consolidated complaint in which he alleged
that the three Respondents are affiliated businesses consti-
tuting a single employer and an integrated business enter-
prise, that Respondents Graphic Services and Ad Pro had
been joint employers of Rogalski, that on or about Febru-
ary 21, 1975, they discharged him because of his union
and/or concerted protected activities, in violation of Sec-
tion 8(a)(3), and that, on various dates in January and
February 1975, agents and supervisors of the three Re-
spondents threatened and interrogated employees, in viola-
tion of Section 8(a)(1) I Thereafter, the Respondents filed
individual answers to the complaint, denying its substan-
tive allegations
I held a hearing in this matter on June 9-11, 1975, at
Chicago, Illinois, at which all parties were represented
Thereafter, the General Counsel and the Respondents filed
briefs which I have duly considered Upon the entire rec-
ord in the case, including my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
Respondents are Illinois corporations, each maintaining
its office and principal place of business in separate prem-
ises in a building located at 564 W Adams Street, Chicago,
Illinois
Graphic Services is engaged in providing artwork serv-
ices, and during its past fiscal year it performed such serv-
ices, valued in excess of $50,000, for enterprises within the
State of Illinois which annually produce and ship goods
1 At the hearing, I allowed the General Counsel to allege an additional
violation of Sec 8(a)(1), said to have occurred in November 1974
II THE LABOR ORGANIZATION INVOLVED
Chicago Typographical Union Local No 16 (the Union)
is a labor organization within the meaning of Section 2(5)
of the Act
III THE UNFAIR LABOR PRACTICES
The major substantive issues here are whether Rogalski
was discharged from his employment because he tried to
loin the Union, and whether supervisors and agents of the
three Respondents interrogated or threatened certain em-
ployees mainly because of their concern over Rogalski's
interest in joining the Union Finally, the question whether
two or all of the three Respondents (referred to hereafter as
Graphic, Ad Pro, and Washington) constitute a single em-
ployer or were joint employers of Rogalski needs to be
decided only to determine what remedial action they
should be ordered to take if it is found that Rogalski's
termination violated Section 8(a)(3)
A Background
Rogalski was hired in March 1972, and was discharged
in February 1975 He had been hired by Graphic and re-
mained on its payroll during his entire 3-year period of
employment, but for most of that time the work he did was
for Ad Pro, which reimbursed Graphic for his wages
Graphic is in the business of supplying computerized
typesetting, keylining, and pasteup artwork, preparatory to
printing, mainly for advertising agencies and book pub-
lishers It employed about 10 people, none of them repre-
sented by a union
Ad Pro uses a different system of typesetting called pho-
totypositor, involving the use of film, and also does keylin-
ing and paste-up art work Its sole customer is the retail
grocery chain The Atlantic & Pacific Tea Company (A&P)
for which it produced all the composition of newspaper
advertisements and circulars preparatory to the production
of engraving plates to be used in printing It had on its
payroll during the relevant period two phototypositors,
Contini and Eiternick, and two other men, Alfred DiPinto,
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its general manager, and John DiFino, who serviced the
A&P account but who also spent a good part of his time
supervising the Graphic operation and its employees In
fact, DiFino was the only production supervisor of the
Graphic employees These four employees of Ad Pro were
all members of Chicago Typographical Union Local No
16 (the Union) with whom it had a bargaining agreement
Washington is engaged in making photoengraving plates
and offset printing negatives for use in printing It has a
diversified clientele, among which is Ad Pro It employs
about 40 people under a contract with the Union having
jurisdiction over those types of work
Graphic and Ad Pro occupied adjoining space on the
sixth floor of a loft building which was partitioned, but
which had a door inside the premises through which one
could move between the two areas without going out into
the public corridor Washington' s premises were on the
seventh floor
B Rogalski s Termination
Rogalski's primary work was keylining and pasteup,
principally on the A&P account He also claimed to have
done computerized typesetting and other work for Graphic
accounts, about which there is some dispute His work was
performed mainly on the Ad Pro premises, but for his work
on Graphic accounts, he might move over to its side of the
common door
Rogalski had received wage increases in the past In Sep-
tember 1974, feeling he was underpaid, he asked DiPinto,
Ad Pro's general manager, if he could join the Union 2
DiPinto told him he couldn't join because the Union al-
ready had a 2-year waiting list 3 Late in November, Rogal-
ski again asked DiPinto if he could help to get him into the
Union, and again DiPinto told him he could not Rogalski
then asked him for a raise to bring him midway between
what he was then getting and the union scale DiPinto re-
fused to give him any raise Rogalski tried again in early
January, this time talking to DiFino, whom he regarded as
the Graphic general manager, about a raise and getting
into the Union DiFino told him he would see what he
could do about a raise, but as to the Umon he told Rogal-
ski to forget it because the Umon had many unemployed
members
A few days before talking to DiFino, Rogalski decided
to try another tack by going directly to the Union He
called the union office and asked one of its organizers
about joining They made an appointment to meet at the
union office on January 13 He then told the union officials
that he and others worked for both Ad Pro and Graphic,
about the type of work they did and the physical layout of
2 Although it may seem odd for an employee to ask a supervisor to help
him get into a union, it is explainable by the fact that Rogalski knew Di-
Pinto was a member of Local 16, and that the union scale was higher than
his own wage rate In effect, he was asking DiPinto for a raise up to scale
3 In the craft tradition of the Typographical Union, admission to mem-
bership in Local 16 apparently required apprenticeship training It is unde-
med that the Union was not accepting apprentices, but Casper, the Union s
organizer, testified that the Union would take into membership employees
doing keylmmg and pasteup In any event, the Union was willing to repre-
sent Rogalski and other employees doing similar work
the two work areas The union officials apparently had him
sign an authorization card and promised to investigate Ro-
galski met with them again on January 27 and February 3,
bringing them samples of the kind of work he was doing to
establish that it was being done for Ad Pro and was of the
type covered by the Ad Pro contract He also told them
about the system used for admitting employees and others
into the Ad Pro office-that anyone who buzzed three
times was assumed to have a right to enter, and would be
admitted without further identifying himself 4
The morning of February 7 Casper and two of his assis-
tants made an unannounced visit to the Ad Pro and
Graphic premises, gaining entrance without having to iden-
tify themselves by buzzing three times Rogalski was work-
ing on the Ad Pro side, but neither he nor the union offi-
cials greeted each other Casper spoke first with DiPinto
and then with DiFino, telling them that he had learned that
people were being shifted back and forth between the two
shops and that he wanted to have the matter resolved
Meanwhile, according to Rogalski, he got up from his
worktable and went into the adjoining coffeeroom DiFino
came in and told him to say, if he was asked, that he
worked for Graphic and had nothing to do with Ad Pro
DiFmo denied that he had told Rogalski to say nothing
about working for Ad Pro, but I credit Rogalski
DiPinto and DiFino testified that Casper had told them
he had a complaint that a nonunion person was working
for Ad Pro, but refused to name him DiPinto and DiFino
both professed to be bewildered by Casper' s accusation,
and assured him that there was no such person After a 20-
or 30-minute conversation, Casper and his party left to re-
turn to their office When they got there, they were in-
formed there was a message to call Leonard Pike, who is
president of Washington and one of the three stockholders
of Ad Pro Casper called him, and Pike told him he had no
right to go onto Graphic's premises 5 Casper explained why
they had visited the shop, and offered to meet with him to
settle the matter of nonunion personnel doing work which
was covered by the Union's contract with Ad Pro Casper
and Pike did eventually meet on February 19, and the re-
sults of that meeting will be set out in its proper chronolog-
ical order
After the union organizers left Ad Pro on February 7,
DiPinto and DiFino asked Contini and Eiternick the two
nonsupervisory Ad Pro employees, if they had any com-
plaints and if they had called the Union Both said they
had no complaints and had not called the Union
The same day DiFino also called Janet O'Shea who was
then working part time for Graphic, and asked her if she
knew anything about anyone going to the Union She said
she didn't I find it significant that DiFino should call
O'Shea at home to make such an inquiry, since I believe it
indicates that DiFino already suspected Rogalski of being
the one who had called the Union O'Shea and Rogalski
had had a dispute at work serious enough so that O'Shea's
husband had threatened Rogalski with harm, and DiFino
4 The sorry efforts of DiFino and DiPinto to conceal and obfuscate this
relatively unimportant matter of the buzzer system is indicative of their
general untrustworthiness about which more will be said later
5 Ozog, one of the union organizers accompanying Casper, had walked
into Graphic s premises
GRAPHIC SERVICES CORP
might reasonably expect that if O'Shea knew Rogalski had
called the Union she would reveal it to him
Rogalskt testified that after Casper and the other organ-
izers had left on February 7 DiPinto said he wanted to talk
to him Rogalskt went over to the Ad Pro side where Di-
Pinto, DiFino, Conttm, and Eitermck were gathered
There, DiPinto asked him if he knew what the situation
was Rogalski said he told DiPinto that he did, that he was
supposed to say that he knew nothing about Ad Pro Di-
Pinto then said that he was asking about the real situation
and then asked him if he had called the Union Rogalski
said he hadn't, and DiPinto said, "I'm going to ask you
again Did you call the Union?" Rogalski again denied that
he had DiFino and DiPinto said they would find out who
it was, and he would be fired DiFino then told him to
move his desk back to Graphic's premises and Rogalski did
so after lunch
That evening as he was getting ready to leave work, Di-
Pinto said he wanted to talk to him They went into Di-
Fino's office, and there DiFino and DiPinto said that they
knew it had to be one of three employees who had called
the Union, they weren't saying he was the one, but who-
ever it was would be fired
The following week beginning February 10, Rogalski
stayed on Graphic's premises working on the A&P account
for Ad Pro as he had done in the past On Monday, Febru-
ary 17, DiFmo called him into his office and told him that
he could no longer work on the A&P account, there was no
other work for him and they had to lay him off DiFino
said he was giving him a week's notice and he would be
through after February 21 That week Rogalski did a few
odd jobs for Graphic, but no A&P pasteup work, which
Contort and DiPinto now took over
On February 19, during Rogalski's last week of employ-
ment, Casper and his assistant met with Pike and DiFino
in Pike's office on the Washington premises in accordance
with the agreement made on February 7 Casper testified
that he told Pike and DiFino that Graphic employees were
doing work within the Union's jurisdiction and offered to
sign a contract covering all employees doing such work for
Graphic or Ad Pro Casper said that Pike denied there had
been any transfer of employees between the two shops, and
when Pike asked him for the third or fourth time who had
contacted the Union he admitted that it had been Rogal-
ski, figuring that he no longer needed to conceal his source
of information since Rogalski had already been dis-
charged DiFmo said they had known it all the time Just
before the meeting ended Pike told DiFino that he was
fired and the Union could find him a job 6
The preceding recital is based on the testimony of wit-
nesses for the General Counsel, principally Rogalski and
Casper The thrust of the testimony of Respondents' wit-
nesses, DiFino, DiPinto, Pike, and Galdikas, president of
Graphic, is that Rogalski was laid off because Graphic had
6 Although DIFmo worked almost exclusively for Graphic he had always
been paid by Ad Pro, which was then reimbursed by Graphic One of
Casper s complaints to Pike was that DiFino, as a union member should
not be working for a nonunion shop After Pike discharged DiFino he
continued the same work he had been doing for Graphic but was then paid
directly by that firm He also resigned from the Union
21
no further need for his services since his work was unsatis-
factory for the type of clients it served and Ad Pro had lost
half its business with its only customer, A&P Those most
directly involved with Rogalski denied that they knew be-
fore he was discharged on February 17 that it was he who
had contacted the Union, and thus that it was not a con-
tributing factor in the decision to terminate him
Although he was the president of Graphic, Galdikas was
primarily a salesman who was concerned with his own ac-
counts, leaving the supervision of production work to Di-
Fino who, according to Galdikas, had always done it De-
spite the fact that DiFmo worked for Graphic, Galdikas
did not know why Ad Pro continued to pay him, nor was
he familiar with the billing arrangements under which
Graphic reimbursed Ad Pro for DiFino's salary Galdikas
seemed to be unfamiliar with Graphic's operations, apart
from his own sales activities
Galdikas, however, testified that sometime "between
1973 and 1974" he became dissatisfied with Rogalski's
work on one of his advertising agency accounts, and told
DiFino that Rogalski was not to work any longer on any of
his accounts DiFino placed this injunction of Galdikas as
occurring early in 1974, while DiPinto testified that Rogal-
ski had not begun to do keyhning for A&P until August
1974, and then only for 1 or 2 days a week, thus leaving it
unclear what DiPinto, DiFino, and Galdikas thought Ro-
galski was doing for most of 1974 Rogalski had never been
told about any such order of Galdikas and continued as he
always had, working mainly on keylining and pasteup for
the A&P account on Ad Pro's premises I find it most im-
probable that there was in fact any change in Rogalski's
pattern of work due to Galdikas' alleged dissatisfaction
with his performance
As to the other reason for Rogalski's discharge, that Ad
Pro had lost half of its A&P business, some background
explanation is required Almost 5 years before the events
here, A&P's newspaper advertisements had been prepared
by another firm, American Typesetting Company A&P
became dissatisfied with its work, and an employee of
American Typesetting formed Ad Pro to take over that
account This was Richard Brains who is also a stockholder
in Washington and through a holding company, in Graph-
ic Brains hired away from American Typesetting all the
employees who from 1972 on constituted Ad Pro's entire
complement, DiPinto, DiFino, Contini, and Eiternick
A&P turns over the copy for its newspaper advertise-
ments to Ad Pro to be made ready for engraving and print-
ing Because of the quick response to competition which is
necessary in the retail grocery trade, decisions on what is to
be advertised and its pricing is frequently held up, so that
A&P does not supply its copy on a regular, predictable
basis Ad Pro employees may have nothing to work on for
days, but then will work overtime once the copy comes in,
in order to meet the advertising schedule The result is that
for substantial periods of time each week, Contini, Eiter-
nick, and Rogalski had nothing or very little to do A&P
realized that its inability to schedule production evenly and
regularly made it necessary for Ad Pro to maintain a full
crew at all times, and it was willing to bear its full cost
According to Pike, A&P paid Ad Pro its full wage costs
plus an override
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1974, more than 4 months before Rogalski
was laid off, A&P shifted its production of advertising cir-
culars from Ad Pro to another firm, but left to Ad Pro the
entire production of its newspaper advertisements Accord-
ing to Pike the loss of the circulars business cost Ad Pro
$3,000 per week No business records were introduced to
substantiate this loss, which in any event can scarcely be
reconciled with Pike's testimony that A&P paid Ad Pro on
the basis of its full wage costs In fact, whether a loss of
business was actually incurred in October 1974, Ad Pro
continued to employ the same employees it had previously
and to assume the payment of Rogalski's salary to Graph-
ic Thus for over 4 months, despite the asserted fact that
A&P had transferred half its business away from Ad Pro,
A&P continued to pay it on the basis of the same size crew
it had needed before A&P was apparently satisfied that
Ad Pro needed as large a crew as ever to handle expedi-
tiously the work it turned over to it
Pike told Rogalski, after Pike's meeting with Casper on
February 19, that he had been laid off because the Ad Pro
contract with the Union did not permit a nonunion em-
ployee to do unit work According to Rogalski, DiFino had
already told him on February 17 (2 days before DiFino
said he first learned that it was Rogalski who had contact-
ed the Union) that he could no longer work on the A&P
account, and that there was no work for him at Graphic It
was only a coincidence, according to DiFino, that Ad Pro
and Graphic should have decided that Rogalski had to be
laid off just after Casper had informed him and DiPinto
that an unidentified nonunion employee was doing work
for Ad Pro which was covered by the union contract But
at another point in his testimony DiFino offered another
explanation for the timing of Rogalski's transfer from Ad
Pro to Graphic, preliminary to his termination This was
that there may have been some violation of the contract
that they weren't aware of What DiFino was being forced
to admit was that Casper's complaint about a nonunion
employee doing work for Ad Pro in violation of the con-
tract was in fact the reason for Rogalski's being removed
from Ad Pro work
DiPinto and DiFino both testified that they had no idea
that it was Rogalski who had contacted the Union, after
Casper had told them on February 7 that a nonunion em-
ployee was working for Ad Pro I find their testimony un-
worthy of belief Both knew that of the three employees
doing all the production work for Ad Pro, two were union
members, and that Rogalski was nonunion They had
asked Contmi and Eiternick, the two union members, if
they had called the Union, and they said they hadn't Di-
Pinto and DiFino denied asking Rogalski if he was the one
who had called it I have already credited Rogalski's testi-
mony that DiPmto had asked him twice if he had called
the Union, just after Casper left on February 7, and al-
though Rogalski denied that he had, it would be no great
feat of deductive reasoning to figure out that it must have
been Rogalski Rogalski had, after all, spoken to DiPinto
and DiFino recently about whether he could join the
Union Furthermore, he was the only nonunion employee
doing work for Ad Pro, and Casper's complaint that a non-
union employee was working for Ad Pro would inevitably
lead to the conclusion that Rogalski was the one who must
have told the Union
Based on the foregoing, I conclude that DiPinto and Di-
Fino decided to terminate Rogalski because he had gone to
the Union, thereby alerting it to the fact that Ad Pro was
violating its contract by allowing a nonunion employee to
do work within its jurisdiction and subject to the coverage
of the contract I reject the explanation of Respondents'
agents that it was the loss of some of the A&P business or
the lack of work which Rogalski would have been able to
do for Graphic that played any part in their decision to
terminate him I therefore find that Rogalski's termination
was a violation of Section 8(a)(3), since DiPinto and Di-
Fino, agents of Ad Pro and Graphic, were opposed to his
being represented by the Union in any facet of his employ-
ment, and also resented the Union's awareness of a viola-
tion of its contract with Ad Pro
C The 8(a)(1) Allegations
The factual basis for some of the violations of Section
8(a)(1) alleged in the complaint have already been set out
Thus, I have found, as alleged in paragraph 10(b) of the
complaint that DiFino told Rogalski on February 7, while
the union organizers were on the Ad Pro premises, that he
should say, if asked, that he worked for Graphic and had
nothing to do with Ad Pro Rogalski also testified that, as
part of the same conversation, DiFino had told him not to
answer any questions but to go onto the Graphic premises
and lock the door between the Graphic and Ad Pro work-
ing areas I credit Rogalski's versions of his conversation
with DiFino that morning as against DiFino's denial that it
had occurred because of my strong belief, based on their
respective demeanor and DiFino's evasive testimony, that
on any disputed issue of fact Rogalski's story is to be pre-
ferred I find therefore that paragraph 10(b), alleging that
DiFino told Rogalski on February 7 not to speak to the
union representatives or to he to them, has been proved
and that DiFino thereby interfered with Rogalski's right to
communicate with union representatives
Later that day according to Rogalski, DiPinto twice
asked him, in the presence of DiFino, Contim, and Eiter-
nick, if he had called the Union, and that DiPinto and
DiFino had both said they would find out who had done it,
and they would fire him The questioning took place in the
Ad Pro working area DiFino was not specifically asked
about this conversation, while DiPinto said he was not pre-
sent at any time when the matter was raised Contim testi-
fied that he had not heard DiPinto or DiFino say, on Feb-
ruary 7, that any employee, and specifically Rogalski, who
had communicated with the Union, would be fired Etter-
nick was only asked if DiPmto or DiFmo had told him that
he would be fired if he were the one who had called the
Union, but was not asked if he had heard such a remark
directed at Rogalski Whether Respondents' counsel did
not ask Eiternick that particular question deliberately or
through oversight is not too important, since Respondents'
brief asserts that the record will not support a finding that
such a threat was made It is, in fact, amply supported by
Rogalski's testimony, and as between him and DiPinto,
DiFino and Conttni, I am satisfied that Rogalski was much
more likely to tell the truth and did so on this matter I
GRAPHIC SERVICES CORP
therefore find, as alleged in paragraph 10(c), that DiPinto
and DiFino threatened Rogalskr or anyone else with dis-
charge once it was learned who had contacted the Union
Just as Rogalski was leaving work on February 7, he was
threatened for the third time that day when DiPrnto and
DiFino again told him that whoever had called the Union
would be fired Respondents concede in their brief that
DiPmto and DiFmo interrogated Graphic and Ad Pro em-
ployees that day as to which employees had communicated
with the Union I find that they not only interrogated, but
also threatened to discharge any employee who had done
so However, as Respondents correctly point out in their
brief, there is no evidence that Pike interrogated any em-
ployees on February 7 as alleged in paragraph 10(e)
Respondents also concede that the factual allegations of
paragraphs 10(g), (h), and (i) have been proved, and that
they constitute violations of Section 8(a)(1) These para-
graphs are based on Rogalski's testimony that Pike, the
president of Washington, told him in three separate en-
counters on February 20, not to speak to other employees
about the Union or other protected, concerted activities,
interrogated him about his meetings with union representa-
tives and about his conversations with other employees
about such meetings, and then prohibited him from dis-
cussing his activities with Washington employees
Respondents contest, however, the allegation of para-
graph 10(f), that Pike told Rogalski on February 19 that he
had been discharged for communicating with the Union
Rogalski testified that about I p in that day (shortly after
Pike's meeting with Casper when, according to Pike, he
learned for the first time that it had been Rogalski who had
contacted the Union), Pike and DiFino approached him
and Pike said that he had been the one who had made all
the phone calls and that the Union had gotten him termi-
nated Pike did not deny Rogalski's testimony I Respon-
dents argue, however, that it cannot support a finding of
8(a)(1) violation because Pike's statement was true since
Rogalski's contact with the Union had indirectly precipi-
tated his termination What this argument amounts to is an
assertion that Rogalski was discharged because of the
Union's opposition to a nonunion employee working for
Ad Pro performing services within the bargaining unit But
that is to ignore the fact that the Union was not demanding
that Rogalskr be terminated, but was only insisting that he
be included in the Ad Pro unit and that the Union be
allowed to represent him Thus, when Pike told Rogalskr
that it was the Union that had gotten him discharged, he
was implicitly threatening him and all other employees that
any claim they might make as to their right to be included
in the Ad Pro unit on the basis of their work would result
in their discharge I find that to be a violation of Section
8(a)(1)
Paragraph 10(a) alleges as a violation of Section 8(a)(1)
DiFino's telling Rogalski in January 1975 that he could not
7 Pikes statement on February 19 that the Union had gotten Rogalski
terminated is further evidence that the reasons given him on February 17
for his discharge were false Why should Pike lay the onus on the Union if
as DiFino claimed, they had told him 2 days earlier that he was being laid
off because the A&P work had been reduced and there was nothing for him
to work on for Graphic9
23
become a union member Paragraph 10(1), which was add-
ed to the complaint at the hearing, alleges as a violation
DiPinto's telling Rogalski the same thing in November
1974 The facts are not in dispute Rogalski testified credi-
bly that DiFmo had told him in January that he could
forget about getting into the Union because many of its
members were then unemployed This was also the gist of
DiPinto's remarks to him the previous November, in the
context of a conversation they had had in September, that
Rogalski could not get into the Union because it had a
2-year waiting list 8
The General Counsel admits that Casper had told Ro-
galski when he first inquired about joining the Union in
January that the Union had a waiting list of applicants for
membership However, Casper had also told him that he
could join despite the waiting list because he was already
working in a union shop The General Counsel argues that,
even if DiPinto and DiFino were only expressing their per-
sonal opinions in telling Rogalski that he would not be able
to join the Union, their conduct would nevertheless tend to
discourage Rogalski from making his own inquiries of the
Union, particularly since Rogalski would look to them, as
his supervisors, for guidance
Rogalski was asking DiPinto and DiFino, both of whom
were members of the Union, to put in a good word for him
with the Union That Rogalski was uninformed and naive
about union matters is obvious from the fact that he felt it
necessary to ask his supervisors for advice and aid But
Rogalsla's major concern was in getting a raise, and he had
at times coupled such a request of his supervisors with a
request for their help in getting him into the Union By
discouraging him about his chances of getting into the
Union, DiPinto and DiFino were expressing their opposi-
tion to his going to the Union for help in the matter of his
primary concern, a raise They may have believed that the
Union would refuse his application if he were simply trying
to join it as an apprentice off the street, but by advising
him that he could not get in under any circumstances, their
actions would tend to discourage him from making his own
inquiries and pursuing his own interests I find that they
thereby violated Section 8(a)(1)
D The Relationship Between the Respondents
The Respondents are each engaged in a particular aspect
of the graphic arts industry Graphic and Ad Pro use dif-
ferent forms of "cold" typesetting The type and other ma-
terial thus produced is pasted up in preparation for trans-
ference to plates or negatives for use in printing None of
the three Respondents works exclusively for one or both of
the others
Only one person, Richard Brains, has a stock interest in
all three companies, but he is inactive in their day-to-day
management Pike, president of Washington, and one of its
stockholders has a stock interest in Ad Pro but not in
Graphic Two other individuals who own stock in Wash-
ington have no interest in either Ad Pro or Graphic Galdi-
kas, president of Graphic and one of its stockholders, has
S DiPinto s remarks in September are not alleged as a violation because
they were made more than 6 months before the filing of the first charge
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no equity in either Ad Pro or Washington He is primarily
a salesman with little interest or knowledge in Graphic's
operations other than his own accounts
Pike is the effective manager of Washington in all re-
spects, DiPinto manages Ad Pro in its day-to-day opera-
tions but, as illustrated by the Union's claim of a contract
violation, nonroutine matters of management and opera-
tions are handled by Pike DiFino and DiPmto, who were
then both on Ad Pro's payroll, supervised both Graphic
and Ad Pro employees without the need to establish clear
lines of demarcation between their respective supervisory
authorities
The three firms shared a single bookkeeper, Elaine Ad-
ams She testified from business records that, from January
1974 through March 1975, approximately 80 percent of
Graphic's payroll was charged to Ad Pro This included
Rogalski's wages as well as those of a number of other
nominal Graphic employees For part of this period, Ad
Pro in turn billed Graphic for the services rendered it by
DiFino
These facts establish that there is a substantial inter-
change of employees and supervision between Ad Pro and
Graphic, but none between either of them and Washing-
ton, except for their common bookkeeper I have consid-
ered the arguments of the General Counsel that all three
Respondents must be considered as a single enterprise con-
ducting an integrated business operation, but I do not
agree that the facts adduced require that conclusion There
is neither common ownership nor financial control, com-
mon management nor a centralized control of labor rela-
tions involving Washington with the other two companies
Although Pike seems to exercise certain management func-
tions in Ad Pro and Graphic, probably because of his rela-
tionship with Brains, his financial backer many years ago,
it is not, in my opinion, sufficient to require that Washing-
ton be held responsible for the unfair labor practices com-
mitted by supervisors and agents of Ad Pro and Graphic I
shall therefore recommend that the allegations of the com-
plaint against Washington be dismissed
I am satisfied, however, that Rogalski and other nominal
employees of Graphic were in fact jointly employed by Ad
Pro and Graphic I rely for this conclusion on the fact that
DiPinto and DiFino shared supervisory authority over
both Ad Pro and Graphic employees although both were
employed by Ad Pro alone, that DiPinto and DiFino par-
ticipated in the interrogations and threats directed against
both groups of employees, and that 80 percent of
Graphic's payroll expenses during 1974 and the first quar-
ter of 1975 were charged to Ad Pro In view of the de facto
control exercised over Ad Pro and Graphic employees by
DiPinto and DiFino and by Pike, as their superior, I find it
necessary, in order to safeguard these employees' statutory
rights to hold Ad Pro and Graphic jointly responsible for
the violations found to have been committed 9
9International Trailer Company, Inc & Gibraltar Industries Inc 133
NLRB 1527 (1961), enfd sub nom N L R B v Gibralter Industries Inc and
International Trailer Company Inc, 307 F 2d 428 (C A 4, 1962)
CONCLUSIONS OF LAW
1 The Respondents are each engaged in commerce
within the meaning of the Act
2 Chicago Typographical Union Local No 16 is a labor
organization within the meaning of Section 2(5) of the Act
3 By discriminatorily terminating John W Rogalski,
Jr, thereby discouraging membership in the Union, Re-
spondents Ad Pro and Graphic have engaged in, and are
engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act
4 By interfering with the right of employees to speak to
union representatives, threatening them with discharge for
calling the Union or for asserting their claim to be included
in an existing bargaining unit, interrogating them as to
whether they had called the Union, warning them against
and prohibiting them from speaking to other employees
about the Union or from engaging in other concerted, pro-
tected activities, and by discouraging employees from in-
quiring of the Union about joining it, Respondents Ad Pro
and Graphic have interfered with, coerced, and restrained
their employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and in violation of Section
8(a)(1) of the Act
5 The General Counsel has failed to establish that Re-
spondent Washington Photoengraving Company is singly
or jointly responsible for any of the violations alleged in
the consolidated complaint
6 The unfair labor practices noted in paragraphs 3 and
4, above, affect commerce within the meaning of Section
2(6) and (7) of the Act
THE REMEDY
Having found that Ad Pro and Graphic have committed
certain unfair labor practices , I shall recommend that they
cease and desist therefrom , and take certain affirmative
action designed to effectuate the policies of the Act
As I have found that Ad Pro and Graphic , acting, Jointly,
have discharged John W Rogalski , Jr, because they sus-
pected him of engaging in union activities , I shall recom-
mend that they be ordered to offer him immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position in either com-
pany, without prejudice to his seniority or other rights and
privileges , and to make him whole for any loss of earnings
he may have suffered by reason of his unlawful discharge,
by payment to him of a sum of money equal to that which
he would normally have earned as wages, from the date of
his discharge to the date of an offer of reinstatement, less
net earnings, in accordance with the formula set forth in
F W Woolworth Company, 90 NLRB 289 (1950), plus in-
terest at 6 percent per annum
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
GRAPHIC SERVICES CORP 25
ORDER 10
Respondents Ad Pro, Inc and Graphic Services Corpo-
ration, Chicago, Illinois, their officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Discouraging membership in, or activities on behalf
of Chicago Typographical Union Local No 16, or in any
other labor organization of their employees, by discrimina-
torily discharging, or in any other manner discriminating
against, any employee in regard to hire, tenure, or any
other term or condition of employment
(b) Interfering with the right of employees to speak to
union representatives, threatening them with discharge for
calling the Union or for asserting their claim to be included
in an existing bargaining unit, interrogating them as to
whether they had called the Union, warning them against
and prohibiting them from speaking to other employees
about the Union or from engaging in other concerted, pro-
tected activities, and discouraging employees from inquir-
ing of the Union about joining it
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their right to
self-organization, to join or assist the above-named labor
organization, or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any or all
such activities
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act
10 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
(a) Offer John W Rogalski, Jr immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position in either company,
without prejudice to his seniority or other rights or privi-
leges, and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him by
payment of a sum of money equal to the amount he would
have earned as wages from the date of his discharge to the
date of his reinstatement, in the manner set forth in the
section entitled "The Remedy"
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order
(c) Post at their plants in Chicago, Illinois, copies of the
attached notice marked "Appendix " 11 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 13, after being duly signed by authorized representa-
tives of the Respondents, shall be posted immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or covered
by any other material
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondents have taken to comply herewith
IT IS FURTHER RECOMMENDED that the allegations of the
complaint relating to Washington Photoengraving Compa-
ny be dismissed
11 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"