Graphics Typography, Inc.

National Labor Relations Board - Board Decisions

May 21, 1975

217 N.L.R.B. 1047 (N.L.R.B. 1975)

GRAPHICS TYPOGRAPHY, INC. 1047
Graphics Typography , Inc. and International Typo-
graphical Union , Pittsburgh Typographical Union
No. 7, AFL-CIO. Case 6-CA-7587
May 21, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO -
On December 30, 1974, Administrative Law Judge
Arthur Leff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions 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 and to
adopt his recommended Order.
state them, because they had engaged in concerted activities
for the purpose of collective bargaining and other mutual aid
and protection. Respondent filed an answer denying the-com-
mission of the alleged unfair labor practices. A hearing was
held at Pittsburgh, Pennsylvania, on October 7, 8, and 9,
1974. Briefs were filed by the General Counsel and the Re-
spondent on November 11, 1974.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, a Pennsylvania corporation, having its sole
place of business in Pittsburgh, Pennsylvania, is engaged in
the commercial printing business. During the past year, Re-
spondent furnished products and services valued in excess of
$50,000 to various companies located in Pennsylvania, each
of which annually manufactures in Pennsylvania, and sells
and ships directly in interstate commerce to customers
located outside Pennsylvania, products valued in excess of
$50,000. Respondent admits that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and it
is so found.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Graphics Typography, Inc., Pittsburgh, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
1 Respondent's request for oral argument is hereby denied, inasmuch as
the record and Respondent's exceptions and supporting brief adequately
present the issues and Respondent's contentions.
2 The Respondent's exceptions are in part directed to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy however, not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless 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
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a charge
filed by the above-named Union on June 24, 1974, amended
on July 1, 1974, and, further amended on August 27, 1974,
the General Counsel of the National Labor Relations Board,
by the Regional Director of Region 6, issued a complaint,
dated August 29, 1974, against the above-named Company,
Respondent herein, alleging that Respondent had engaged in
unfair labor practices within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the National Labor Relations Act,
as amended, by terminating the employment of eight named
employees on June 5, 1974, and thereafter refusing to rein-
II THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent operates a lithography shop which performs
with Alpha Type and Variable Phototype ("VIP") equipment
photographic composition services for customers who use the
compositions produced for them in galley form by Respond-
ent in their own printing processes. Respondent's shop is
located on the sixth floor of a building on Ninth Street in
Pittsburgh. The floor is divided into an office area and a
contiguous shop area, approximately 60 feet long and 25 feet
wide. The office area contains five desks which are used by
Arthur Hornish and Mrs. Arthur Hornish, respectively the
president and secretary of Respondent, who jointly own 70
percent of Respondent's stock; by Charles Hornish, their son,
who is Respondent's vice president in charge of production
and who owns the remaining 30 percent of the Company
stock; by Timothy Hornish, another son, who is Respon-
dent's salesman; and by a clerical employee, Cheryl Grundza.
Immediately prior to June 4, 1974, there were nine em-
ployees who worked in the shop area. They were Becky Hor-
nish, a daughter of Mr. and Mrs. Arthur Hornish, who
worked as a proofreader; John Lipchick, who worked mainly
on the Alpha Type equipment but also performed other work
throughout the shop; Connie Gray, who primarily did Alpha
Type work; Howard Jankowski and Wayne Zeis, who oper-
ated the VIP equipment; Mary Kay Molinaro and Patty
Lampl, who were being trained to do VIP work and also
assisted in proofreading; and James Wadlow and Elliot Alen,
who worked the Star-O-Mat and also did camera work.'
Molinaro, Lampl, Wadlow, and Alen were classified at the
1 The only person in Respondent's employ not mentioned above was Roy
Loeffert, who worked out of the office doing delivery work
217 NLRB No. 176
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time as probationary employees.' Lipchick and Jankowski
were classified by Respondent as supervisors, but their status
as such within the meaning of Section 2(11) of the Act is
disputed by the General Counsel.
On the morning of June 4, 1974-as will hereinbelow more
fully appear-eight of the nine shop employees named above
(all but Becky Hornish) refrained from reporting for work,
after posting a notice on the door of Respondent's premises
that they had agreed to strike, and on the following day, June
5, they were discharged by Respondent. Respondent is
charged in this case with having violated Section 8(a)(1) by
its action in discharging them on that day and thereafter
refusing to reinstate them. Respondent contends by way of
defense that the employees' strike action did not constitute
concerted activity of a kind protected by Section 7 of the Act
and that it was lawfully justified in firing them because, so it
asserts, the employees failed to report for work without rea-
sonable notice or known cause, without having presented to
Respondent any specific concerted demands or grievances
they wished to have satisfied, and without otherwise making
known to Respondent any common objectives relating to
their mutual aid and protection that their strike was designed
to achieve. As a further defense, limited in its application,
Respondent contends that John Lipchick and Howard Jan-
kowski were when discharged supervisors within the statu-
tory definition, and were therefore outside the Act's protec-
tion even if the strike is found to have been a protected
concerted activity on the part of the other participating em-
ployees. The General Counsel takes issue with Respondent's
position in that regard, asserting that Lipchick and Jankow-
ski, regardless of the job classification assigned to them, were
at most leadmen . At the hearing, Respondent also contended
that even if the strike was a protected concerted activity,
employees Molinaro, Lampl, Wadlow, and Alen can have no
remedy under the Act as they were probationary employees.
Respondent, however, has not reasserted that contention and
thus appears to have abandoned it-and with reason, for it
has long been established that probationary employees, no
less than other employees, are entitled to the full protection
of the Act.'
With the issues thus defined, I turn first to a detailed
consideration of the facts pertinent to the 8(a)(1) issue in its
application to the discharged employees as a group, deferring
for subsequent consideration Respondent's separate defense
with respect to Lipchick and Jankowski.
B. Chronology of Events
For some months prior to the strike which began on June
4, 197.4, Respondent's shop employees had discussed among
themselves their dissatisfaction with certain of their working
conditions as well as the need for a union in the shop. Until
after the strike began, however, they took no overt steps to
gain union representation . A recurring source of employee
discontent was management's habit of requesting employees
2 As probationary employees, they were compensated at the rate of $90
a week and were not covered by Respondent's group hospitalization and
insurance plans. Prior to June 3, 1974, the normal probationary period had
been 3 months.
3 See, e.g., National Detective Bureau, Inc, and National Private Detective
Bureau, Inc, 204 NLRB 7 (1973), Loose Leaf Metals Company, 181 NLRB
202, 206 (1970); Lapeer Metal Products Co., 134 NLRB 1518, 1520 (1961)
to work overtime on short notice, or to work through their
lunch periods to take care of rush work. Complaints about
this were voiced to management, but although Charles Hor-
nish agreed to do what he could to give the employees ample
advance notice of overtime work, occasions continued to arise
thereafter when the employees would be asked to work over-
time on as little as 10 minutes notice. Except for the com-
plaints about overtime and rush work, it does not appear that
the employees made known to management prior to the strike
any specific complaints or grievances they wished to have
corrected.
About a week before the strike, Arthur Hornish angered
Lipchick and Jankowski, and other employees as well, when
he came into the shop and in a violent outburst upbraided
Lipchick and Jankowski about a job that had been returned
by a customer. One employee, James Wadlow, testified that
he began to see the need for job security after this incident
because "he (Arthur Hornish) gets angry very easily and on
the spur of the moment and he can fire you."
On Wednesday, May 29, Jankowski spoke to Charles Hor-
nish and told him that employee morale in the shop was low;
that the employees were disgruntled because of the rush jobs,
overtime, and the manner in which they were being treated
by Arthur Hornish; that employee discontent had reached
the point where they were about ready to walk out, and that,
indeed, the employees had almost done so at the time of
Arthur Hornish's outburst referred to above. Charles Hor-
nish suggested that the two of them speak to Arthur Hornish
about the matter to see what could be done to eliminate the
employee dissatisfaction. Charles Hornish went in to see his
father alone, but apparently was unable to arrange to have
him meet with Jankowski. Arthur Hornish left the shop that
day and did not return to the shop until after the strike began.
On the afternoon of May 29, Lipchick and Jankowski had
a meeting with Charles Hornish and Mrs. Hornish, at which
Lipchick again complained about the unfairness of having
employees work overtime on short notice. Lipchick at that
meeting also suggested the desirability of management having
regular weekly meetings with the shop employees. The Hor-
nishes agreed with that suggestion, and the first employee
meeting was scheduled for Monday morning, June 3, the day
before the strike. The meeting that morning was conducted
by Mrs. Hornish and limited to 15 minutes. Mrs. Hornish
explained that the purpose of the meeting and of like meetings
to be held in the future was to keep channels of communica-
tion open between management and employees. There was a
discussion at that meeting about the lines of responsibility in
the shop, about how overtime would be paid for in the future,
and about the possibility of having staggered shifts. None of
the employees present brought up any problems about work
pressure, overtime, or the unavailability of Arthur Hornish.
The employees were not asked to work overtime that day.
On the afternoon of either May 29 or on May 30-the
testimony is in conflict as to the precise date-Lipchick and
Jankowski were informed by Charles and Mrs. Hornish that
the Hornishes had decided to discharge Patricia Lampl, a
probationary employee, because of the inadequacy of her
production. Both Lipchick and Jankowski expressed their
view that Lampl's discharge was not warranted. They agreed
that there had been some difficulties either at the beginning
of her probationary period, but these difficulties, they said,
GRAPHICS TYPOGRAPHY, INC.
had since been overcome and that she had made the normal
progress expected of a probationary employee. On Friday,
May 31, Charles Hornish informed Jankowski that Lampl
was going to be kept on. On, Monday, June 3, however, Lip-
chick and Jankowski were informed by Charles and Mrs.
Hornish that, while Lampl was not going to be discharged,
both she and Mary K. Molinaro, whose 3-month probation-
ary period was also about to expire, were to have their proba-
tionary period extended for an extra month. Extension of
their probationary period meant that they would not receive
the raise in pay which is normally given to new employees
and which was promised to them after 3 months, and that
they would continue to remain ineligible for participation in
Respondent's fringe benefits programs. Lipchick and Jan-
kowski again expressed their view that both Lampl and
Molinaro had progressed as well as could be expected during
their probationary period, but the Hornishes stated that their
decision was final. Upon being advised of the extension of
their probationary period, Lampl and Molinaro became ex-,
tremely upset, and went to the office to protest that action,
asking Lipchick and Jankowski to accompany them. Mrs.
Hornish told them that the decision to extend their proba-
tionary period had been made by the Hornishes at home and
that it was a final one, reminding them in that connection that
it was the Hornishes who ran the shop and not Lipchick or
Jankowski.
After work that evening, Lipchick, Jankowski, Gray,
Wayne Zeis, Lampl, Molinaro, Wadlow, and Alen assembled
in an alley outside the shop and agreed to go on strike because
of their accumulated grievances. The matter principally dis-
cussed was Respondent's action that day in placing Lampl
and Molinaro on extended probation, action which Lipchick
in his testimony characterized as "the last straw." Among
other grievances discussed before the strike decision was
made were the overtime problems, the absence of any fixed
company policies with respect to holidays and other matters,
job tensions in the shop, and the employees' desires for
greater benefits and job security. The strike action agreed
upon at the alley meeting was proposed by Lipchick who
expressed the view that only by asserting themselves in this
fashion could the employees hope for an attentive reception
of their complaints by Arthur Hornish.
After the alley meeting that evening, Lipchick and Jankow-
ski prepared the following notice which they taped to the
door of Respondent's premises early on the morning of June
4 before the starting time for work:
THE FOLLOWING SHOP PERSONNEL HAVE
AGREED TO STRIKE
John S. Lipchick
Howard S. Jankowski
Connie Gray
Wayne Zeis
Patricia Lampl
Mary Kay Molinaro
James Walden
Elliot Alen
SHOULD YOU DESIRE TO NEGOTIATE, WE
WILL BE HAPPY TO DO SO COLLECTIVELY
AND NOT ON THESE PREMISES.4
1049
It was stipulated at the hearing that the posted strike notice
was observed by Respondent's officers on the morning of
June 4. - ,
None of the employees named in the strike notice reported
for work on June 4, 1974, nor have they worked since. Picket-
ing by the employees of Respondent's premises began on June
5 and continued through the summer.
On June 5, Respondent mailed to each of the striking
employees a letter stating:
As a result of your withdrawal of services without
known cause or reasonable notice, your employment
with Graphics Typography, Inc., is hereby terminated.
Enclosed is your final pay.'
In the meantime, on the afternoon or evening of June 4, all
the striking employees called at the office of Pittsburgh Typo-
graphical Union No. 7, the Charging Party in this case, and
there signed cards designating that union as their collective-
bargaining representative. On June 5, the Union directed a
telegram to Respondent demanding recognition. The tele-
gram was sent at 4:14 p.m. and received by Respondent at
about 4:30 p.m. Arthur Hornish testified that Respondent's
termination letters to the striking employees were mailed at
about 3:15 or 3:30 p.m. that day, and that he was unaware
at that time of the employees' visit to the Union. Arthur
Hornish's testimony in this respect is not challenged by the
General Counsel and is accepted.
Except for the termination letters sent on June 5, Respond-
ent made no attempt to communicate with any of the striking
employees from June 4, 1974, to the date of the hearing.
On August 28, 1974, by letter and telegram to Respondent,
all of the striking employees, except Patricia Lampl, offered
unconditionally to resume work for Respondent, if
reinstated.6 A further unconditional offer to return to work
was made by the same employees on September 23, 1974.
Respondent did not respond to either of the employees' of-
fers. The General Counsel stipulated at the hearing that
4 At the same time that this notice was prepared, Lipchick and Jankowski
also prepared a list of employee grievances and demands for submission to
Arthur Hornish That list, however, was never submitted to Arthur Hornish
or any other representative of Respondent because, so Lipchick testified,
Respondent never thereafter contacted the striking employees to express
any interest in negotiations
5 In the letters to'Lipchick, Jankowski, Gray, and Zeis, the following
paragraph was added.
We are also terminating your group life insurance and hospitalization
benefits. You may elect to continue these benefits at your own expense
6 On August 27, 1974 , the charge in this proceeding was amended to
allege only a violation of Sec 8 (a)(1) based on the discharge of the eight
employees named in the complaint The original charge, filed on June 24,
1974, had also charged a violation of Sec 8 (a)(3), attributing the discharge
to the employees' membership in and activities on behalf of the Union, as
well as to their concerted activities A later amended charge, filed July 1,
1974, had alleged in addition a violation of Sec . 8(a)(5) based upon Respon-
dent's refusal to recognize the Union, but the 8(a)(5) allegation was also
eliminated in the August 27 charge On August 27, 1974 , the Union also
filed with the Regional Office a request to proceed with a previously filed
representation petition for certification of the Union as bargaining represen-
tative of Respondent 's shop employees The record in this case indicates
that a hearing was held in the "R" case some time prior to the opening of
the hearing herein, but does not indicate its outcome.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lampl did not join the others in offering to return to work
because she does not desire reinstatement.
C. Concluding Findings with Respect to the Alleged 8(a)(1)
Violation
Respondent concedes that it was aware when it terminated
the employment of the eight employees on June 5, 1974,
assertedly because of their "withdrawal of services without
known cause or reasonable notice," that their reason for not
reporting for work was that they had agreed to strike. There
can be no doubt on the facts of this case, although Respond-
ent contends otherwise, that the employees' strike action con-
stituted concerted activity "for the purpose of collective bar-
gaining or other mutual aid and protection." There is no
validity to Respondent's claim that the employees in with-
drawing their services were simply expressing their disgrun-
tlement with Respondent, and not seeking to have anything
done about it.-The record is clear that the employees' decision
to strike had a dual purpose: to support Lampl's and Molina-
ro's complaint about the extension of their training period,
and to impose pressure on Respondent in the hope that this
would elicit more attentive and responsive consideration by
Respondent of other grievances relating to employee working
conditions that the employees wished to have remedied. The
invitation to Respondent on the strike notice to negotiate
collectively with the employees was a clear enough communi-
cation to Respondent that at least one objective of the strike
was to obtain a betterment in the employees' conditions of
employment.
As noted above, Respondent, by way of defense to the
complaint's 8(a)(1) allegation, urges primarily that its dis-
charge of the striking employees should be ruled unprotected
by Section 7 because the employees struck without presenting
or making known to Respondent the specific grievances they
wished to have remedied, without giving Respondent prior
notice of their intent to strike, and without having allowed
Respondent an opportunity to consider and possibly adjust
the unspecified grievances-to avoid a strike. For purposes of
decision here, I consider it unnecessary to determine the
extent to which the factual premises of that defense are, or
are not, supported-by the record evidence. For it is clear in
any event that the defense is without merit, and particularly
so in light of the Supreme Court's decision in N.L.R.B. v.
Washington Aluminum Co., 370 U.S. 9 (1962). In that case,
a majority of the Fourth Circuit Court of Appeals had denied
enforcement of a Board Order, taking the position, as sum-
marized by the Supreme Court at pp. 13-14,
... that because the workers simply "summarily left
their place of employment" without affording the com-
pany an "opportunity to avoid the work stoppage by
granting a concession to a demand," their walkout did
not amount to a concerted activity protected by Section
7 of the Act. On that basis, they held that there was no
justification for the conduct of the workers in violating
the established rules of the plant by leaving their jobs
without permission and that the Board had therefore
exceeded its power in issuing the order . . . .
The Supreme Court reversed , stating:
We cannot agree that employees necessarily lose their
right to engage in concerted activities under Section 7
merely because they do not present a specific demand on
their employer to remedy a condition they find objec-
tionable. The language of Section 7 is broad enough to
protect concerted activities whether they take place
before, after, or at the same time such a demand is made.
To compel the Board to interpret and apply that lan-
guage in the restricted fashion suggested by the respond-
ent here would only tend to frustrate the policy of the
Act to protect the right of workers to act together to
better their working conditions.
Concluding as I do that Respondent's shop employees were
engagitiig in a concerted activity protected by'Section 7 of the
Act in their "withdrawal of services" (i.e., strike action) be-
ginning on June 4, 1974, and that Respondent discharged
them for that reason, it follows, and I find, that Respondent's
discharge action on June 5, 1974, was violative of Section
8(a)(1) of the Act, at least with respect to employees James
Wadlow, Wayne Zeis, Connie Gray, Patricia Lampl, Mary
Kay Molinaro, and Elliott Alen. Whether Respondent's dis-
charge action was also violative of Section 8(a)(1) with re-
spect to John Lipchick and Howard Jankowski depends on
the resolution of the remaining issue- in this case, whether
their status was that of "employees" or "supervisors" within
the statutory meaning of those terms, an issue to which I now
turn.
D. Findings and Conclusions Relating to the Issue of
Lipchick's and Jankowski's Supervisory Status
1. Relevant facts
As noted above, Respondent's shop is a small one, having
at the time material herein only nine production employees,
including Lipchick and Jankowski. The shop employees
worked in close proximity to the office area occupied by
Respondent's management officials. Arthur Hornish, Re-
spondent's president, and Charles Hornish, its vice president,
were themselves familiar with and skilled in all the technical
aspects of Respondent's operations, and at times helped out
with the actual performance of work. Although the Hor-
nishes spent most of their time in the office, they maintained
close contact with the day-to-day shop operations. Arthur
Hornish would come into the shop area 5 to 10 times a day.
Charles Hornish would come into the shop area more fre-
quently, perhaps 15 to 20 times a day, to give specific work
instructions, direct work, or voice complaints about work
that had been done. On the average he would be in the shop
a total of 1-1/2 hours a day. Charles Hornish, who was also
Respondent's production manager, conceded while testifying
that it was his responsibility to direct shop operations. He
testified, however, that he could not carry out that responsi-
bility alone because of other managerial functions requiring
his attention in the office, and for this reason considered it
necessary to have his supervisory responsibility shared by
others in the shop. According to Respondent, Lipchick was
delegated supervisory responsibility over all shop operations,
with "primary" responsibility over the Alpha Type, display
(Star-O-Mat) and camera operations, and Jankowski, whose
position was subordinate to that of Lipchick, was delegated
supervisory responsibility confined to VIP operations in the
shop.'
7 Dunng the period immediately before the strike, Connie Gray was the
GRAPHICS TYPOGRAPHY, INC.
Lipchick, who had begun work for Respondent in July
1971, was at the times material the most senior employee in
the shop and the most experienced in all phases of Respon-
dent's operations except for the work on the VIP equipment,
with respect to which Jankowski and Zeis had greater
familiarity. Lipchick was given the title of "production super-
visor" in July 1973, in the place of another shop worker
carrying that title who had left Respondent's employ. At the
same time he was given a $15 a week raise in pay. At the time
material herein he was the highest paid employee in the
shop.' When Lipchick was made "production supervisor,"
the other shop employees, then five in number, were advised
of that fact and were told that they were to follow his work
instructions. Nothing was said to Lipchick or the other em-
ployees about Lipchick's authority in other respects.
As "production supervisor" Lipchick was assigned the
only desk in the shop but that desk was also used when
needed by other shop employees. Lipchick was required to
punch a timeclock like other employees, and received the
same compensation for overtime work on the same basis as
the others. About 75 percent of his working time was spent
in performing work tasks similar to those performed by other
shop employees. The balance of his time was spent in check-
ing customer job orders to determine whether they contained
sufficient job specifications; in "logging" jobs into the shop
and marking out the processes that were required for their
completion; in speaking to customers on the phone on mat-
ters relating to their job specifications and informing them,
when their telephonic inquiries were referred to him, about
the progress of their job orders in the shop; in explaining to
shop employees having difficulties with job orders what was
required by thejob specifications; and in otherwise answering
work-related questions of shop employees and advising them
as to the best way to do a job Lipchick on at least one
occasion called a meeting of employees to instruct them on
job procedures. Lipchick testified that, according to his un-
derstanding, it was basically his responsibility in his capacity
as "production supervisor" to oversee jobs in the shop to
make sure that each of the steps required for their completion
was accomplished and performed properly.9
Jankowski, who was hired by Respondent as a VIP key-
board operator in April 1973, was given the title of "VIP
supervisor," in March 1974, along with a $15 a week raise in
pay. At that time, he was the only shop employee regularly
assigned to VIP work, although another shop employee, Zeis,
only employee besides Lipchick who performed Alpha Type operations;
James Wadlow, a part time employee, and Elliot Alen were assigned to
Star-O-Mat and camera work; and Jankowski, Zeis, Patricia Lamp], and
Mary Kay Molinaro were assigned to VIP work Becky Hormsh, the proof-
reader, apparently worked independently.
8 Lipchick was paid at the rate of $170 a week Jankowski's weekly rate
$155,13ecky Hornish's $140; Zeis' and Gray's $125, and the remaining shop
employees were paid at the probationary rate $90 a week
9 A peripheral responsibility of Lipchick was to inform the front office
when the shop was in need of supplies. Although Hormsh was the one who
usually ordered the supplies, Lipchick also did so on occasions after obtain-
ing Mrs Hornish' s permission Lipchick on several occasions accompanied
Charles Hornish to meetings of the Smaller Manufacturers Council of Pitts-
burgh, a management organization . This privilege was not afforded every-
one else in the shop As appears from Lipchick's undenied testimony, how-
ever, he accompanied Hornish to such meetings belFore as well as after he
was made "production supervisor "
1051
whose regular job assignment was to Alpha Type work,
would also be assigned by Charles Hornish to VIP work on
occasions. Arthur and Charles Hornish explained in their
testimony that Respondent decided at that time to place its
VIP operations into a separate department because its VIP
business was expanding, and to appoint Jankowski to the
newly created position of "VIP supervisor" because Lipchick,
although capable of supervising the individuals in the VIP
department, was not sufficiently familiar with the highly
complex VIP process to be able to answer all technical ques-
tions that employees assigned to VIP work might need to
have answered. Jankowski was told when he was appointed
"VIP supervisor" that it was his responsibility in that
capacity to see to it that VIP operations ran smoothly and
that employees assigned to such work were properly in-
structed in the required procedures. After Jankowski was
made "VIP supervisor," Lipchick's particular area of such
oversight responsibility was confined to work done in the
Alpha Type, display, and camera departments.
Shortly after Jankowski was promoted to "VIP supervi-
sor," Charles Hornish transferred employee Zeis from the
Alpha Type section to the VIP section and also hired two
new employees, Lampl and Molinaro, as trainees in VIP
work. After the new employees were hired, Jankowski
issued to employees in the VIP section under his name and
title as "VIP supervisor," a detailed memorandum setting
forth the job procedures to be followed by employees in
that section. The employees were instructed, inter alia, not
to interrupt Lipchick or Charles Hormsh with questions they
might have about their work, but to submit their question
to Jankowski. Following his designation as "VIP super-
visor," Jankowski continued to spend almost all of his
working time-99 percent, according to him-physically
operating VIP and other equipment in the shop in the same
manner as he had done before his designation. In addition,,
however, he performed certain added functions. One was
to maintain control records of work in the VIP section
so that he could make sure that jobs got done and also
be able to advise the front office or customers, when asked,
about the state of progress on jobs; this, according to his
testimony, required about l percent of his working time.
Another function of Jankowski was to help train' the new
employees in the operation of the VIP equipment, but this
was a function in which employee Zeis as well as Arthur and
Charles Hornish also participated. It was also Jankowski's
responsibility to check upon work in the VIP section to assure
that it was done properly. This involved mainly looking over
the work done by Lampl and Molinaro who were new on the
job. The work of Zeis required no special attention as he was
already experienced in VIP work.
Employees in the shop normally had specific regular job
assignments . When an employee had nothing else to do, Lip-
chick or Jankowski might ask that employee to help out with
other work, proofreading for example. But such requests,
particularly of Lampl and Molinaro, would also be made by
other employees in the shop, notably by Becky Hornish, with-
out first clearing with Lipchick or Jankowski. Neither Lip-
chick nor Jankowski ever transferred employees from one
regular job assignment to another. Such transfers were ef-
fected only by Charles Hornish. Although Charles Hornish
testified that Lipchick had authority to transfer an employee
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from one-job to another, he could recall no instance when
Lipchick actually did so. The reassignment of Zeis from Al-
pha Type to VIP work was effected by Charles Hornish
without consulting Lipchick.
Work assignments in the shop normally followed a routine
pattern. Job orders would be received in the front office where
they would be recorded, placed in an envelope bearing the job
number, and then brought over to Lipchick in the shop with
a notation as to whether the job required priority handling.
Lipchick would check the job order to determine whether the
specifications were complete and also mark out the process-
ing steps that were required for its completion. If the priority
notation on the job order did not indicate whether that or
some other priority job should be accorded first attention,
Lipchick would consult Charles Hornish for his instructions.
The job specifications received by Lipchick would disclose
whether the job order called for Alpha Type or VIP process-
ing, and Lipchick could also ascertain from the specifications
whether the composition was of a kind that required Star-O-
Mat processing. If the job called for Alpha Type processing,
Lipchick would place it on the rack in the Alpha Type section
where it would be picked up and processed in its priority
order by either himself or Connie Gray, depending on which
one was first free to work on it. If Star-O-Mat work was
required, it would be sent to the display section where it
would be processed by Wadlow or Alen, again depending on
which one was first available to do the work. If the job called
for VIP processing, Lipchick would bring it to Jankowski in
the VIP section. Lipchick would not designate the individual
in that section to whom the work was to be assigned, except
that he might suggest if the job was a simple one that it was
suitable for processing by one of the trainees in that section.
Jankowski, after "logging" in the job, would determine from
the size of the type specified what keyboard machine the job
was, to go on and then either do it himself or pass it on to Zeis,
unless the job was a simple one in which case he would assign
it to Lampl or Molinaro if one of them was available. Charles
agreed while testifying that the work assignments made by
Jankowski were not of a kind that entailed the exercise of
independent judgment.
Arthur Homish testified in substance that when he ap-
pointed Lipchick'and Jankowski to their positions he meant
to give them "whatever authority and responsibility a super-
visor would have." He conceded, however, that he never sat
down and specified to them precisely what authority they
possessed. Apart from the responsibility of processing work
in the shop and seeing to it that' work flowed smoothly,
Homish adverted in his testimony to only one expressly
stated grant of authority, namely authority to discharge, but
his testimony in that regard, which was disputed by Lipchick
and Jankowski, is not credited. 10
t° Arthur Hornish testified that in April or May 1974,-Lipchick and
Jankowski came to his office "complaining about Patty Lampl and some of
the other people back there" in the shop-in what respects Arthur Hornish
did not say According to him, he told Lrpchick and Jankowski at that time
that the complaint was their problem and that they should handle it them-
selves, adding, in response to a question by Jankowski, that it was within the
scope of their authority to fire employees if they wished Both Lipchick and
Jankowski denied that this occurred or that they were ever otherwise told
by either of the Hormshes that they were authorized to discharge or disci-
pline employees Their denials appeared to me when given to carry convic-
tion Hornish's testimony, on the other hand, impressed me as contrived
I attach no probative weight to Hornish's conclusory and
self-serving testimony that it was his intent, even though not
communicated, to vest Lipchick and Jankowski with the full
range of supervisory authority. It is well settled that a rank-
and-file employee cannot be transformed into a supervisor
merely by investing him with a "title and theoretical power
to perform one or more of the enumerated functions.""
What is relevant is the actual authority possessed, and, absent
express communication of such authority, its possession, or
the want of it, is more reliably to be gleaned from evidence
bearing on the extent of its exercise. The evidence relating to
Lipchick's and Jankowski's participation in the assignment
and direction of work has already been considered. As to
other tests of supervisory authority spelled out in Section
2(11), the record shows the following.
With respect to hiring authority, there is no evidence to
indicate that Lipchick ever participated in any way in Re-
spondent's hiring process. The record does show, however,
that shortly after Jankowski was made "VIP supervisor," he,
at the request of Mrs. Hornish, interviewed and tested for
their typewriting ability some seven applicants for positions
with Respondent, and, based on his evaluation of their type-
writing skills, expressed his opinion on the applicants' suita-
bility for hire as trainees in Respondent's VIP section. Two
among the applicants whom he rated as qualified-Patricia
Lampl and Mary Kay Molinaro-were subsequently hired by
Respondent. The record shows, however, that Respondent
did not rely solely on Jankowski's evaluations. Lampl and
Molinaro were recalled for further interviews by Charles
Hornish and Arthur Hornish before the final decision to hire
them was made.12
Respondent makes no claim that Jankowski ever exercised
any discharge authority. And, although it does assert that
Lipchick did effectively recommend the discharge of an em-
ployee, Dironimo, that assertion, disputed by Lipchick, is, I
find, unsupported by credible evidence in this record."
With respect to the exercise of disciplinary authority, the
Moreover, I think it improbable, considering the size of Respondent's shop
and the close control maintained by the Hormshes over shop operations,
that the Hormshes would have given Lipchick and Jankowski blanket au-
thority not merely to recommend discharge action, but to go further and
take such action themselves with finality, as Arthur Hornish would have it
believed I reject Arthur Hornish's testimony in this respect and credit the
denials of Lipchick and Jankowski
11 N.L.R.B. v Southern Bleachery & Print Workers, Inc., 257 F 2d 235,
239 (C A 4, 1958), cert denied 359 U S. 911 (1959).
12 The record does not reflect whether the unsuccessful applicants were
also recalled for further interviews. As to this, we have only the testimony
of Jankowski that he never recommended that any applicant interviewed by
him should not be hired
13 Dironimo, it appears, was not actually discharged, but voluntarily quit
his employment Arthur Hornish testified on direct that Lipchick recom-
mended to him that Dironimo be discharged because he was not "carrying
his weight" in the shop, and that, as a consequence of that recommendation,
he "talked to Dironimo and Dironmso voluntarily withdrew his services"
and "got another job " On cross-examination, however, Hornish admitted
that Lipchick's comment to him about Dironimo's not carrying his weight
was made by Lrpchick in response to a question by Hornish Hornish's
testimony on cross further shows that he was-more familiar than Lipchick
with the work Dironimo was doing at that time and that, before speaking
to Lipchick about Dironimo, he had already formed a judgment that
Dironimo was unsatisfactory as an employee on the basis of his own obser-
vations of Dironimo's performance. Lipchick admitted commenting to Ar-
thur Hornish on one occasion that I ,ronuno was not "pulling his weight,"
but denied that he ever recommended that Dironimo be discharged Lip-
chick's denial is credited
GRAPHICS TYPOGRAPHY, INC.
record shows that neither Lipchick nor Jankowski ever took
or recommended any specific disciplinary action against em-
ployees. They did, however, on occasions report or complain
to the Hornishes about employee derelictions such as an em-
ployee's late arrival for work, an employee reading a book
when she should be working, and employees' unsatisfactory
performance of work. According to Lipchick, he did so in the
hope that the management officials would take appropriate
corrective measures.
With respect to other indicia of supervisory authority,
there is no evidence that either Lipchick or Jankowski ever
exercised any authority with respect to the suspension, layoff,
recall, promotion, or reward of employees or the adjustment
of employee grievances. Lipchick, as affirmatively appears
from his testimony, was not consulted about individual wage
increases given employees during his tenure as "production
supervisor." Requests by employees for time off were directed
to and acted upon by Arthur or Charles Hornish, and not by
Lipchick or Jankowski.
2. Analysis and conclusions
The question to be resolved is whether, as the Respondent
contends, Lipchick and Jankowski occupied at the time of
their discharge the status of supervisors within the statutory
definition, or whether, as the General Counsel insists, they
were, instead, simply production employees who, because of
their superior knowledge and experience, had been assigned
additional responsibilities falling within the leadman cate-
gory, a category of minor supervisory employees that Con-
gress, as the Act's legislative history shows, intended to leave
under the protection of the Act.14 I am persuaded, after
consideration of all the relevant facts, that the question must
be resolved in favor of the General Counsel-and this for the
reasons that follow.
As appears from the findings above, Lipchick and Jankow-
ski, in the positions they held at the time of their discharge,
functioned primarily as production workers, except that a
small fraction of their working time was occupied with re-
sponsibilities that were related to the specific production pro-
cesses in which they were themselves engaged. Their cases
can be considered together, for, in respects material herein,
they each had the same added responsibilities, although in
different areas of work. Jankowski's area of responsibility
covered VIP work, with respect to which he was the most
skilled and experienced employee in the shop and, as Charles
Homish stated in explaining his reason for making him VIP
supervisor, the person best able to aid employees doing such
work with their work problems. Lipchick's area of responsi-
bility covered the Alpha Type, camera, and display work, the
work in which he was the most skilled and experienced
among the employees in the shop. There were only three
employees besides Lipchick in Lipchick's area of responsibil-
ity, two of them trainees , and the same was true in the case
of -Jrankowski.
The added responsibilities assigned to Lipchick and Jan-
kowski were, basically, to assign and maintain the flow of
work, to make sure that all steps required to fill customers
14 See NL R.B v Security Guard Service, Inc, 384 F.2d 143, 146 (CA.
5, 1967), for a discussion of the applicable legislative history.
1053
orders were accomplished and performed properly, to aid
employees with their job problems, and to train new em-
ployees. Responsibilities of this nature are not, per se, proba-
tive of supervisory status. Though often possessed by supervi-
sors, they are also characteristic of leadmen positions. In
cases where no other basis for supporting a finding of supervi-
sory status was-present, the Board has held that responsibili-
ties similar to those assigned Lipchick and Jankowski are
leadmen responsibilities and are not alone enough to establish
statutory supervisory status. 15
In the instant case, I have found that the credible evidence
does not justify a finding that either Lipchick or Jankowski
were granted or ever exercised any authority to hire, transfer,
suspend, lay off, discharge, reward, or discipline other em-
ployees, or effectively to recommend such action.16 The
question that remains, then, is whether the facts in this case
are such nevertheless, as to satisfy the "responsibility to di-
rect" criterion for supervisory status as set forth in Section
2(11). I find that they are not. As the evidence shows, and as
Charles Hornish conceded at least with respect to Jankowski,
the work assignments made by Lipchick and Jankowski were
of a routine nature, involving no significant exercise of in-
dependent judgment. Although Lipchick and Jankowski may
have been required to exercise independent judgment in ad-
vising less experienced employees how to deal with specific
work problems or how best to do a job, this involved a techni-
cal judgment based on skill and experience, not a managerial
judgment, and is not the kind of independent judgment con-
templated by Section 2(11). The record does not in my con-
sidered opinion support a finding that Lipchick's and Jan-
kowski's responsibility for seeing to it that the flow of work
ran smoothly and that jobs were properly performed ex-
tended in any significant manner beyond standardized oper-
ating procedures. Decisions of more than routine nature, the
transfers of employees from one regular work assignment to
another, for example, were made by Charles Hornish. As
appears from the record, Charles Hornish was the person
primarily charged by Respondent's management with re-
sponsibility for directing the operations of the shop. Charles
Hornish testified that when anything unusual occurred, he
would give orders to Lipchick to transmit his orders back to
the shop. Hornish was in and out of the shop all day, and
although he spent most of his time in the office, his office was
in the next doorway, and he was readily available to take care
of anything unusual that might arise.
In International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL-CIO
[Gulf Bottlers, Inc.] v. N..L.R.B., 298 F.2d 297, 303
(C.A.D.C., 1961), the court stated that supervisory status is
not to be tested by "a sheerly literal reading of Section 2(11),"
but its determination must be based, rather, "upon the nature
of the [asserted] supervisory position and how completely the
15 See, e g, Wirtz Manufacturing Company, Inc, 215 NLRB No 50
(1974), Orr Iron, Inc, 207 NLRB 245 (1973)
16 The fact that Jankowski on one occasion expressed his judgment on the
suitability for hire by Respondent of applicants for employment whom he
had interviewed and tested for their typewriting ability cannot be regarded
as an exercise by him of authority effectively to recommend the hire of
employees Jankowski' s assigned function was merely to ascertain the tech-
nical competence of the applicants as a preliminary to their further interview
by Respondent 's management officials Respondent makes no claim that it
hired Lampl and Molinaro on Jankowski's recommendation
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibilities of that position identify the holder of that
position with management." I subscribe to that view. But it
seems to me rather difficult to identify Lipchick and Jankow-
ski as part of management, taking into account that they
functioned primarily as production workers; that they had no
effective authority with regard to matters affecting employees
job status , wages , or significant changes in conditions of em-
ployment; and that the Hornishes, who were management,
were always at hand and active participants in the direction
of shop operations. Surely, the employees could not have
considered Lipchick and Jankowski arms of management
when even on a matter as minor as requesting time off they
were obliged to address their requests to one of the Hornishes.
On all the evidence, I am satisfied and find, in agreement
with the General Counsel, that Lipchick and Jankowski, not-
withstanding the titles they held, were no more than leadmen,
and that they were not supervisors within the meaning of the
Act.17 Concluding as I do that they were employees within
the meaning of-Section 2(3) of the Act, it follows that their
discharge by Respondent for engaging with other employees
in protected concerted activities was violative of Section
8(a)(1) of the Act. I so find.
CONCLUSIONS OF LAW
1: By terminating the employment of and failing and refus-
ing to reinstate John Lipchick, James Wadlow, Wayne Zeis,
Connie Gray, Patricia Lampl, Mary Kay Molinaro, Elliott
Alen, and Howard Jankowski because they engaged in con-
certed activities for the purpose of collective bargaining and
other mutual aid and protection, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that Respondent be or-
dered to cease and desist therefrom, and from like and related
unfair labor practices, and that it take the affirmative action
provided for in the recommended Order, below, which I find
necessary to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
John Lipchick, James Wadlow, Wayne Zeis, Connie Gray,
Mary Kay Molinaro, Elliott Alen, and Howard Jankowski,
it will be recommended that Respondent be ordered to offer
them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and that Respondent
make each of them whole for any loss of pay that he, or she,
may have suffered by payment to each of them of a sum of
17 For other cases where the Board on facts similar to those have found
employees leadmen rather than supervisors , see in addition to cases cited
in in 15, supra, Shakespeare of Arkansas, 201 NLRB 981 (1973); Risdon
Manufacturing Company, 195 NLRB 579 (1972), Marinette Marine Corpo-
ration, 179 NLRB 627 (1969), UTD Corporation (Union-Card Division),
165 NLRB 346, 347 (1967). And see, also, Southern Bleachery and Print
Works, Inc., 115 NLRB 787, 791-792 (1956).
money equal to that which he, or she, would normally have
earned from August 28, 1974,11 to the date of the offer of
reinstatement, less net earnings , if any, during such period,
to be computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
Although Respondent has been found above also to have
discharged Patricia Lampl, no provision is made in the
recommended Order for her reinstatement- and backpay,
since the record establishes that no application for reinstate-
ment was ever made by or on her behalf and it was stipulated
by the General Counsel that she does not desire reinstate-
ment.
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:
ORDER19
Respondent, Graphics Typography, Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees by
discharging any of its employees or by discriminating in any
other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Offer John Lipchick, James Wadlow, Wayne Zeis, Con-
nie Gray, Mary Kay Molinaro, Elliott Alen, and Howard
Jankowski, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to
their seniority or other rights and privileges, discharging if
necessary any employees hired to replace them, and make
them whole for any loss of earnings they have suffered as a
result of the unlawful termination of their employment, in the
manner set forth in "The Remedy" section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying , all payroll
records, timecards, personnel records, and all other records
necessary for determination of the amount of backpay due
and the rights of reinstatement under the terms of this Order.
(c) Post at its place of business in Pittsburgh, Pennsylvania,
copies of the attached notice marked "Appendix."" Co-
18 In accordance with the Board's established policy, the backpay period
is dated from August 28, 1974, rather than from the date the employees
were unlawfully discharged , because the employees were on strike at the
time of their discharge and did not unconditionally apply for reinstatement
until August 28, 1974.
19 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.
20 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 "
GRAPHICS TYPOGRAPHY, INC
pies of such notice, on forms provided by the Regional Direc-
tor for Region 6, after being signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it 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 Respondent to
insure that said notices are not altered, defaced, or covered
by any other material. -
(d) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order what steps Re-
spondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1055
WE WILL NOT discourage concerted activity of our em-
ployees by discriminatorily discharging our employees
or in any other manner discriminating against them in
regard to their hire or tenure of employment or any term
or condition of employment.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
their right to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid and
protection.
WE WILL offer John Lipchick, James Wadlow, Wayne
Zeis, Connie Gray, Mary Kay Molinaro, Elliott Alen,
and Howard Jankowski reinstatement to their former or
substantially equivalent positions without prejudice to
any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suf-
fered as a result of the discrimination against them, dis-
charging if necessary any persons hired to replace them.
GRAPHICS TYPOGRAPHY, INC.