Inland Press

National Labor Relations Board - Administrative Judge Opinions

Aug 26, 2008

07-CA-050893 (N.L.R.B. Aug. 26, 2008)

JD–45–08
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DETROIT LEGAL NEWS COMPANY
d/b/a INLAND PRESS
and Case 7–CA–50893
DAVID W. SNYDER, an Individual
Patricia Fedewa, Esq.,
for the General Counsel.
Fred W. Batten, Esq., (Clark Hill, PLC),
of Detroit, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was tried in Detroit, Michigan, on
May 5, 2008. The charge was filed on November 29, 2007, by David W. Snyder (the Charging
Party). The charge was amended by the Charging Party on January 30, 2008, and the complaint
was issued February 29, 2008. The complaint alleges that the Detroit Legal News Company
d/b/a Inland Press (the Respondent), violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) when, about August 27, it informed the Charging Party that it was
refusing to hire, or accept him for temporary referral, in retaliation for his union and protected
concerted activities. The Respondent filed a timely answer to the complaint denying the
essential allegations and requesting that the complaint be dismissed.
On the entire record, including my observation of the demeanor of the witnesses, my
credibility determinations based on the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences drawn from the record as a whole and,
after considering the briefs filed by the parties, I make the following
Findings of Fact
I. JURISDICTION
The Respondent, a corporation, with an office and place of business in Detroit, Michigan,
has been engaged in the business of printing the Detroit Legal News and other printed materials,
including brochures, annual reports, posters, and catalogs for various commercial entities.
During calendar year 2007, a representative period, the Respondent in conducting its business
operations described above, derived gross revenues in excess of $500,000 and purchased and
JD–45–08
5
10
15
20
25
30
35
40
45
50
2
received at its Detroit facility goods and materials valued in excess of $50,000 directly from
points outside the State of Michigan. The Respondent admits and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Local
2/289–M of District Council 3, Graphic Communications Conference of the International
Brotherhood of Teamsters (the Union), is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
David Snyder, the Charging Party, is a union member who was referred to the
Respondent for temporary work as a floor worker in December 2005. A floor worker prepares
loads for the press, cleans up, flips stock, restocks, stacks and runs errands. As a temporary
worker Snyder accrued no seniority rights and received no benefits. Snyder testified without
contradiction that he also worked as a second pressman, that he ran a two-color press and that he
was a member of a two person team that operates a six-color press.
Snyder was laid off eight or ten times as a temporary employee. He was always recalled
by Fred Seigrist, his supervisor. Seigrist, who is also a member of the Union, never asked the
Union to refer Snyder out of the union hiring hall, but recalled Snyder directly. Because Snyder
was a temporary employee, Seigrist did not have to recall Snyder or even consider him for rehire.
Thus, during this period there is no evidence that Seigrist was not pleased with Snyder’s work.
Snyder testified, without contradiction, that at times Seigrist complimented him on his work.
During September 2006 Snyder made an error running the two color press. The error resulted in
a lost of at least 10 percent of the job, yet Snyder was not disciplined. In fact, shortly thereafter,
on September 18, 2006, he was hired as a permanent employee. Permanent employees receive
benefits, earn seniority, and have recall rights commensurate with their length of time in
permanent status.
A. Events Before Snyder’s Layoff
1. The pension plan issue
In late October 2006, the Respondent requested that the Union reopen the collective-
bargaining agreement. The Respondent, in an effort to reduce the cost of its pension plan
contributions, intended to propose replacing the existing defined benefit pension plan with a 401
(k) plan. Snyder was concerned that the Respondent could not afford the existing pension plan.
Seigrist, Snyder’s foreman, was an active union member who at one time had sat on the union
executive board. Snyder talked to Seigrist’s about his concern. Snyder testified that Seigrist
opposed the reopening because he thought that the Respondent was “trying to screw us.” Shortly
after talking with Seigrist, Snyder met with Seigrist, and union steward and employee, Jim
Shedadi. Snyder credibly testified that he continued to argue for the reopening, which was
opposed by both men. Snyder testified that he talked with other union members employed by the
Respondent and attended meetings on this issue. At some point thereafter the bargaining unit
voted to reopen the agreement and thereafter voted to ratify the changes.
JD–45–08
5
10
15
20
25
30
35
40
45
50
3
2. The steward election
In December 2006 an election for the position of union steward, also called the chapel
chairman, was held. Nobles testified that he knew that the candidate Snyder was supporting was
not the individual that was endorsed by Shehadi who was the incumbent steward. Snyder’s
candidate lost.
B. Snyder’s layoff and events subsequent
Snyder was laid off for lack of work on February 11, 2007. The duration of the layoff
was initially unknown, but in April the Respondent’s production manager told Steven Nobles,
the union president that there could be openings for laid off employees if “work ever dictates.”
Snyder frequently called the Union to inquire about returning to work for the Respondent. On
May 21 he went to the Respondent’s facility and spoke with the production manager, who
assured Snyder that the Respondent would consider recalling him when a new newspaper
printing press was fully operational. Snyder lost his seniority rights, including his right to recall,
on July 11, 2007.
It was not until late July or early August that the Respondent made its initial request to
the Union to refer a floor worker and a second pressman. An individual was dispatched for the
second pressman position. Nobles was aware that Snyder was working for another employer but
he called Seigrist anyway to ask if he wanted Snyder back. Snyder had told Nobles that he
would quit any employer to return to work with the Respondent. Nobles testified that Seigrist
told him that he did want Snyder because “I want to go in a different direction.” Nobles asked
for clarification and Seigrist replied that Snyder struggled on the presses and that “he tends to
agitate the shop a little bit.” (Tr. 17–18.)
On August 27 Snyder learned that he had not been referred. Snyder testified that he
spoke with Seigrist and Nobles on that day. I found Snyder to be a credible witness who was
making a sincere effort to be accurate and truthful. He also appeared to a be an extremely
nervous and high-strung individual who tended to ramble and occasionally appeared to be
confused as to the order of things. Accordingly, the following is his credited testimony as to
what was said and by whom on August 27, although it is not perfectly clear as to whom Snyder
spoke with first.
Snyder testified that Seigrist told him that he(Snyder), talks to the wrong people, takes
“every problem to the Union,” does not follow the proper pecking order, and was not returning to
work for the Respondent. Nobles told Snyder that Seigrist said that the Union could send anyone
but Snyder. Nobles said that there was nothing further that he could do and that Snyder should
plead his case directly to Seigrist. During the final telephone call that Snyder made to Seigrist on
August 27, Seigrist said “why the f—k are you bothering me? The Union assured me that I’m
done with your ass.”
At some point after August 30, 2007, Snyder, Nobles, Seigrist, Young, the steward, and
Shehadi the past steward, met to discuss four grievances relating to Snyder’s recall rights and
reimbursement for health insurance. Nobles had filed the grievances on August 30 and they had
been denied by Seigrist. Nobles asked Seigrist why he did not want Snyder to return to work for
the Respondent. Nobles testified that Seigrist replied that Snyder did not come as advertised, he
JD–45–08
5
10
15
20
25
30
35
40
45
50
4
could not run the two–color press and he was always agitating. Since September 2007 the
Respondent has continued to request referrals from the Union.
C. Discussion
In Meyers Industries (Meyers II), 281 NLRB 882, 887, the Board reiterated its definition
of concerted activity as encompassing “those circumstances where individual employees seek to
initiate or to induce or to prepare for group action, as well as individual employees bringing truly
group complaints to the attention of management.” The Board also noted with approval the
Third Circuit’s comments in Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (1964)
defining the scope of concerted activity:
[A] conversation may constitute a concerted activity although it involves only a speaker
and a listener, but to qualify as such, it must appear at the very least that it was engaged
in with the object of initiating or inducing or preparing for group action or that it had
some relation to group action in the interest of the employees.
Moreover, when an individual employee solicits other employees to engage in group action, even
where such solicitations are rejected, the inability to sway coworkers does not change the
concerted nature of the activity. Circle K Corp., 305 NLRB 932, 935 (1991) (citing El Gran
Combo, 284 NLRB 1115, 1117 (1987), enfd. 853 F.2d 996 (1st Cir. 1988).
With the above principles in mind I find, contrary to the Respondent’s contention, that
Snyder was engaged in concerted activity when he spoke with Seigrist, his foreman and fellow
union member, and Shedadi, his steward and fellow employee, in an attempt to get their support
to reopen the collective-bargaining agreement and negotiate a new pension plan.
Snyder’s credited testimony that Seigrist told him that the reason he was not going to
rehire him was because he took “every problem to the union” was neither disavowed by Seigrist
nor addressed by the Respondent in its brief. Accordingly, it is an uncontradicted admission that
the Respondent’s reason for failing to rehire Snyder is unlawful. The Board has long held that
such statements “coerce employees from seeking the assistance of their recognized bargaining
agent and impairs their resort to rights protected under Section 7 of the Act.” Interlake Inc., 218
NLRB 1043, 1043 (1975), enfd. 529 F.2d 1277 (8th Cir. 1976); see also Buck Brown
Contracting Co., 283 NLRB 488, 502 (1987). The Board has also held that where, as here,
protected concerted activity is the basis for the employee’s discipline, the analysis set forth in
Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), is not required. E.g. Chromalloy Gas Turbine Corp., 331 NLRB 858, 864
(2000) (“where protected concerted activity is the basis for an employee’s discipline, the normal
Wright Line analysis is not required”), enfd. 262 F.3d 184 (2d Cir. 2001).
Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act when the
Respondent by Seigrist, its supervisor and agent, told Snyder that he did not want him back
working at the Respondent because he took every problem to the Union. I further find that since
about August 27, 2007, the Respondent has refused to hire Snyder or accept him for a temporary
job referral because he has engaged in activities that were protected by Section 7 of the Act and
this refusal has also violated Section 8(a)(1) of the Act.
JD–45–08
5
10
15
20
25
30
35
40
45
50
5
Moreover were I to apply a Wright Line analysis, I would find that the counsel for the
General Counsel has met her initial burden of proving by a preponderance of the evidence that
animus against protected conduct was a motivating factor in the adverse employment action. In
addition to the foregoing 8(a)(1) violation, I would find that Nobles’ undisputed testimony that
Seigrist referred to Snyder as an “agitator” who was “trying to stir up s**t” was evidence of
animus. Seigrist neither rebutted nor offered any alternative explanation. All Pro Vending, 350
NLRB No. 46, slip op. at 5 (2007) (finding that terms such as agitator are normally applied by
employers to individuals who are attempting to instigate other employees to engage in concerted
or union activities). I would also infer animus from the obscene response Seigrist directed at
Snyder when Snyder called him to ask why he was not being rehired by the Respondent. I would
also find that the Seigrist’s contention that he did not want to rehire Snyder because he did “not
come as advertised” is a total pretext. The Respondent offered no evidence, documentary or
otherwise, that Snyder was ever reprimanded for anything while employed by the Respondent.
Seigrist did not deny or explain why he recalled Snyder from layoff eight or ten times, and then
hired him as a permanent employee, if Seigrist was dissatisfied with Snyder’s work. Nor did
Seigrist dispute Snyder’s testimony that Seigrist had commended Snyder for his work
performance. Because I would have found that the evidence establishes that the reasons offered
by the Respondent for its failure to rehire Snyder are pretextual—that is, are either false or were
not in fact relied upon—the Respondent would fail by definition to show that it would have taken
the same action for those reasons, absent the protected conduct.
CONCLUSIONS OF LAW
1. The Respondent, Detroit Legal News Company d/b/a Inland Press, Detroit Michigan,
is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Local 2/289–M of District Council 3, Graphic Communications
Conference of the International Brotherhood of Teamsters is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by its supervisor and agent, Fred
Seigrist, informing David W. Snyder that the Respondent did not want him working for the
Respondent because he took every problem to the Union.
4. The Respondent since about August 27, 2007, violated Section 8(a)(1) of the Act by
refusing to hire David W. Snyder or accept him for temporary job referral because he engaged in
activities that were protected by Section 7 of the Act.
5. The unfair labor practices found above are unfair labor practices affecting commerce
within the meaning of Section 2(6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having unlawfully refused to hire David W. Snyder or accept him for
JD–45–08
5
10
15
20
25
30
35
40
45
50
6
temporary job referral must offer him a temporary job and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis from August 27, 2007, the date that
the Respondent unlawfully refused to accept him for a temporary job to date of proper offer of a
temporary job, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended1
ORDER
The Respondent, Detroit Legal News Company d/b/a Inland Press, Detroit, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that it will not rehire them if they engage in protected concerted
activity.
(b) Refusing to rehire laid off employees for temporary jobs because they engaged in
activities that were protected by Section 7 of the Act.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer David W. Snyder a
temporary job or, if no temporary job exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges, if any, that he previously enjoyed as a
temporary worker.
(b) Make David W. Snyder whole for any loss of earnings and other benefits suffered as
a result of the unlawful action taken against him in the manner set forth in the remedy section of
the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful action take against him, and within 3 days thereafter notify David W.
Snyder in writing that this has been done and that the unlawful action will not be used against
him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Detroit, Michigan,

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD–45–08
5
10
15
20
25
30
35
40
45
50
7
copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
August 27, 2007.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
(g) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. August 26, 2008
____________________
John T. Clark
Administrative Law Judge

2 If 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.”
JD–45–08
5
10
15
20
25
30
35
40
45
50
8
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT inform you that we will not rehire you because you have engaged in
protected concerted activities.
WE WILL NOT refuse to rehire employees for temporary jobs because they engaged in
activities that were protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order, offer David W. Snyder a
temporary job or, if no temporary job exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges, if any, that he previously enjoyed as a
temporary worker.
WE WILL make David W. Snyder whole for any loss of earnings and other benefits
resulting from our unlawful action against him, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference
to the unlawful action taken against David W. Snyder, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the unlawful action will not be used against
him in any way.
DETROIT LEGAL NEWS COMPANY d/b/a
INLAND PRESS
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
JD–45–08
5
10
15
20
25
30
35
40
45
50
9
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.