K. W. Norris Printing Co.

National Labor Relations Board - Board Decisions

Oct 7, 1977

232 N.L.R.B. 985 (N.L.R.B. 1977)

K. W. NORRIS PRINTING CO.
K. W. Norris Printing Co. and Dayton Printing
Pressmen, Assistants' Offset and Specialty Work-
ers Union Local #54, International Printing and
Graphic Communications Union, AFLCIO. Cases
9-CA-10460-1-2 and 9-CA-10658-1-2
October 7, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 29, 1977, Administrative Law Judge Julius
Cohn issued the attached Decision in this proceed-
ing. 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, to
modify his remedy, so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),2 and to adopt his recom-
mended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, K. W. Norris Printing Co., Dayton, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Louise Hastings, Robert Wagner,
Ralph Dillhoff, and Richard Higgins immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make
them whole for any loss of pay they may have
suffered as a result of the discrimination practiced
against them in the manner set forth in the section of
this Decision entitled 'The Remedy.' "
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
232 NLRB No. 156
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.
Nor do we find ment in Respondent's contention that because the
Administrative Law Judge generally discredited the Employer's witnesses
and credited the General Counsel's witnesses, his credibility resolutions are
erroneous or attended by bias or prejudice N.L.R.B. v. Pittsburgh Steamnship
Co., 337 U.S. 656 (1949).
We agree with the Administrative Law Judge's reliance on the fact that
those discharged were four out of five union supporters, but we disavow his
gratuitous observations in the first paragraph of sec. B of his Decision
concerning which employee voted against the Union as an unwarranted
intrusion into the secrecy of the election process and, in any case,
unnecessary to a finding that the Employer acted from union animus
2 See. generally. Isis Plumbing & Heating Co. 138 NLRB 716 1962).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and we have been ordered to post this notice.
WE WILL NOT discharge our employees from
work, or otherwise discriminate in regard to their
hire and tenure of employment in order to
discourage their membership in Dayton Printing
Pressmen, Assistants' Offset and Specialty Work-
ers Union Local No. 54, International Printing &
Graphic Communications Union, AFL-CIO, or
any other labor organizations.
WE WILL NOT threaten employees that we will
close the plant if the Union wins an election.
WE WILL NOT promise benefits to employees if
the Union loses an election.
WE WILL NOT coercively interrogate employees
about their union sympathies and activities.
WE WILL NOT enforce our company rule or any
rule which prohibits employees from soliciting on
behalf of any labor organization in work areas
during nonworking time or distributing union
literature in nonwork areas during their nonwork-
ing time.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer immediate and full reinstate-
ment to Louise Hastings, Robert Wagner, Ralph
Dilhoff, and Richard Higgins to their former
positions or, if those jobs no longer exist, to
substantially equivalent jobs, without prejudice to
their seniority or privileges.
WE WILL make Louise Hastings, Robert Wag-
ner, Ralph Dilhoff, and Richard Higgins whole
for any loss of pay they may have suffered as a
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of our discrimination practiced against
them with interest.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named or any other labor organization.
K. W. NORRIS PRINTING
Co.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Dayton, Ohio, on February 1, 2, and 3, 1977.
Dayton Printing Pressmen, Assistants' Offset and Specialty
Workers Union Local # 54, International Printing and
Graphic Communications Union, AFL-CIO, herein called
the Union filed charges in Case 9-CA-10460-1 and Case
9-CA-10460-2 on July 9 and August 27, 1976,L which were
served on July 12 and August 30, respectively, upon K. W.
Norris Printing Co., herein called Respondent or the
Company. The Regional Director for Region 9 thereafter
issued a complaint on September I based upon such
charges. Subsequently the Union filed charges in Case 9-
CA-10658 on September 23 and in Case 9-CA--10658-2 on
September 29. The Regional Director then issued an order
consolidating cases and a consolidated complaint dated
November 12, which alleged that Respondent discrimina-
torily laid off, reduced the hours of work, and discharged
certain of its employees in violation of Section 8(a)(3) of
the Act, and further committed various independent
violations of Section 8(a)(l) of the Act. Respondent duly
filed an answer denying the commission of unfair labor
practices.
Issues
Whether Respondent reduced the hours of certain of its
employees and thereafter discharged them because of their
union activities.
Whether Respondent threatened to go out of business or
change its operation if the Union won the election.
Whether Respondent promised higher wages to an
employee if the Union were defeated.
Whether Respondent threatened an employee that
working conditions would be changed because of the
election.
Whether Respondent interrogated an employee concern-
ing his plans to support the Union.
Whether Respondent maintained and published an
unlawful rule prohibiting solicitation and distribution of
literature.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. The General
Counsel and Respondent submitted briefs which have been
carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the
following:
I. THE BUSINESS OF THE COMPANY
Respondent, an Ohio corporation, is engaged in the
business of commercial printing at two locations in
Dayton, Ohio. During the past 12 months Respondent sold
and shipped goods valued in excess of $50,000 to nonretail
enterprises within the State of Ohio, each of whom, in turn,
annually shipped goods valued in excess of $50,000 from
their respective locations in Ohio to points outside the State
of Ohio. The complaint alleges, the answer admits, and I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates an instant print business at two
storefront locations in Dayton, Ohio, the main location
being on Salem Avenue and the other on North Dixie
Drive. The sole owner and operator of Respondent is Keith
W. Norris, its president. Norris spends most of his time at
the Salem Avenue facility while the North Dixie store is
managed by his mother, Ruth Williamson. At the latter
store, Respondent does an over-the-counter instant print
business and maintains one press, an A. B. Dick press,
operated by one pressman. The Salem Avenue location
does a larger amount of business and does other type
printing as well as the so-called instant or quick print. In
addition to A. B. Dick presses, Respondent also has other
presses such as a Harris press and a Hiedelberg letter press
and related equipment at the Salem Avenue facility.
The Union began its organizational campaign in April
and two meetings, attended by most of the employees, were
conducted. A petition for representation election was filed
in May and an election was conducted on July 30, which
resulted in four votes being cast for the Union, one against
and one challenged ballot. Prior to the election and after
the filing of the petition, Respondent held three meetings of
employees which were addressed by Norris. He at first
testified that there were two meetings during which he read
speeches to the employees from outlines furnished him by
counsel. He averred that at the first meeting he read from
the outline word for word, but admitted that at the second
meeting he merely referred to the outline. He also
recollected on cross-examination that he spoke to employ-
ees at a third meeting referring to a similar outline.
After the election Respondent began in August to reduce
the hours of some employees. According to Norris, the
reason fbr this action was the construction in front of the
Salem plant which interfered with the parking facilities,
and also a normal slackening of business in the summer
months. Eventually, in September, Respondent discharged
I All dates hereinafter refer to 1976 unless otherwise specified.
986
K. W. NORRIS PRINTING CO.
certain employees in circumstances which will be hereinaf-
ter discussed. In addition, on September 27, Respondent
filed a petition for an arrangement under Chapter I I of the
Bankruptcy Act and at the time of the hearing herein was
operating the business as a debtor in possession.
A. The Alleged Violations of Section 8(a)(1) of the
Act
At the first of the three employee meetings which Norris
held in his office, according to Ralph Dillhoff, a pressman,
Norris told the employees that there was no way he could
afford a union, that he would not have it, and if necessary
he would file bankruptcy or would move his equipment out
and set it up in another house he owned. Although Norris
denied making such a statement at the meeting, he
subsequently admitted the following during his direct
examination:
Q. Mr. Norris, have you ever at any time told any
of the employees that you might go out of business if
the Union won the election?
A. I think I have.
Norris went on to testify that he told this to Dillhoff during
a conversation and Respondent contends that such
statement does not constitute a violation for the reason that
it was Dillhoff who, according to Norris, initiated the
conversation. Norris also said that Dillhoff engaged in a
light conversation with him and asked how business was. If
this is true, there is no indication that Dillhoff, as an
employee, was questioning Norris concerning the Union.
In his response it is clear that Norris went much further
than merely saying that business was bad or sales were
down. He actually threatened to go out of business if the
election was won by the Union. Such statement to even a
single employee, particularly in a unit as small as this (six)
constitutes a violation of Section 8(a)(l) of the Act and I so
find.
Dillhoff further testified that prior to the union election
Norris talked with him in the bindery area. Norris told
Dillhoff that he could not afford the Union and was not
able to pay union scale. He urged Dillhoff to try to talk the
people out of voting for the Union. If that happened, he
could then afford to pay perhaps $6 or $7 an hour if the
quality of work was good. Dillhoff said he would try to do
this. According to Dillhoff. this occurred about 2 weeks
before the election. Although Norris denied promising
Dillhoff anything if he would talk to the people to vote
against the Union, he nevertheless admitted telling Dillhoff
he would appreciate anything he could say in his behalf. I
credit Dillhoff's testimony as against that of Norris.
Dillhoff testified in a forthright and direct manner. On the
other hand Norris proved to be a very voluble witness who
on many occasions and in crucial areas did not directly
respond to questions and was either hesistant or evasive.
Although Respondent had urged that Norris be credited
because he exhibited a certain degree of candor in his
testimony, I feel that his sort of semiadmissions in some of
these matters were more of a ploy to create an aura of
2 East Side Shopper. Inc.. er al. d/b a Dawn (Detroit Area Weektl
Newspapers, Inc.), 204 NLRB 841 (1973).
credibility rather than an expression of the complete truth.
I therefore do not credit Norris and find that his talk to
Dillhoff of possibly paying $6 or $7 an hour after
indicating that he could not afford the Union, was an
implied promise of benefit to Dillhoff should he urge the
employees to defeat the Union and therefore a violation of
Section 8(a)(1) of the Act.
Richard Higgins, an employee, testified that a few days
after the election he had a conversation with Norris at a
bar near the Salem Avenue shop. Gary Mills, supervisor,
was present during this discussion. Norris complained that
the Union had been voted in and he did not think he was
going to be able to pay higher wages because that would
mean his payroll would go up and he would have to start
laying off or firing people. Norris went on to say that he
could not afford a strike which would probably ruin him
and completely shut down his business. He then said that if
there were a strike, he would need somebody to come in
and work and cross the picket line. A week or two later
Higgins inquired of Norris about a job for a friend and
Norris asked whether the friend would cross a picket line.
Neither Norris nor Mills adverted specifically to these
conversations in their testimony and consequently Higgins'
statements are essentially undenied. Higgins was a con-
vincing witness and I credit him. I do not find Norris'
postelection statements concerning his inability to pay
higher wages which might lead to layoffs to be violative of
the Act. In view of the rather shaky financial condition of
the Company, the statements may be considered predic-
tions made by an employer in the exercise of his protected
right of free speech.2
However, I view his next statement to the effect that in
the event of a strike he would need someone to come in
and cross a picket line, as an inquiry concerning Higgins'
strike intentions. The Board has found lawful such
inquiries where an employer has a reasonable basis to fear
an imminent strike. But he "cannot rely on unsubstantiated
rumor or mere speculation as a justification for questioning
employees concerning their intentions in the event a strike
is called."3 In the circumstances of this case, this incident
occurred shortly after the election, before negotiations; no
impasse had been reached, nor was there any threat of
strike. I conclude, therefore, that Norris' statement to
Higgins about the need for someone to cross a picket line
as well as his question concerning Higgins' friend consti-
tuted unlawful interrogation and thereby Respondent
violated Section 8(a)(l) of the Act.
Respondent has maintained in effect and distributed to
employees a general policy booklet. Included in the
booklet is a list of"general offenses" for which discipline is
provided and among them is the following:
6. Soliciting funds, selling merchandise or tickets,
on company time unless authorized.
7. Distributing literature of any kind on company
time unless authorized.
The parties have stipulated that the bulletin containing the
above-quoted rule was in effect during the period involved
3 Mosher Steel Comrponan 220 NLRB 336 (1975).
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein. The Board has found that a rule prohibiting
solicitation "during working hours" unduly restricts em-
ployees in the exercise of their Section 7 rights. Essex
International, Inc., 211 NLRB 749 (1974). Thereafter the
Board found "that the term 'company time,' like 'working
hours' is unduly ambiguous and tends to connote all paid
time from the beginning to the end of the work shift, and
can easily be interpreted as a restriction on solicitation
during breaktime or other periods when employees are
compensated although not actively at work." Florida Steel
Corporation, 215 NLRB 97 (1974). The Board therefore
found such a rule to be presumptively invalid and violative
of Section 8(a)(l) of the Act. Accordingly, I find that the
rules set forth above and admittedly maintained in effect
by Respondent are violative of Section 8(a)( ) of the Act. I
note in so finding that Respondent produced no evidence
to show that such broad no-solicitation and no-distribution
rules were necessary to maintain discipline or production.
B. The Alleged Violations of Section 8(a)(3)
The General Counsel has alleged that Respondent
discriminatorily laid off the following employees or
reduced their hours of work: Louise Hastings, Richard
Higgins, Ralph Dillhoff, and Robert Wagner. It is further
alleged that Respondent ultimately discharged Wagner,
Dillhoff, and Higgins. Before embarking on a discussion of
the facts surrounding the layoff or discharge of each of
these employees, certain common elements should be
pointed out as a frame of reference. Although the record
contains references to the names of many employees, only
six employees were eligible to vote in the election
conducted on July 30. Of these six, Anna Mader was ill and
did not vote. It also may be safely assumed that Louis
Heill, an employee concerning whom there was substantial
agreement that he was hostile to the Union and refused to
attend the employees' meetings in connection with the
organization of the Union, cast the solitary ballot against
the Union. Therefore, Dillhoff, Hastings, and Wagner
undoubtedly cast three of the four votes in favor of the
Union. The fourth employee terminated was Higgins, who,
although ineligible to take part in the election, was elected
as union representative of Respondent's employees.
Two witnesses for General Counsel credibly testified to
remarks made by Norris concerning the Union, both in a
similar vein. At the time of her layoff, to be hereinafter
discussed at greater length, Hastings stated that Norris
began talking about the Union in the course of which he
told her that "he beat the union twice and he'll beat them
the third time." Wanda Thornton, Respondent's bookkeep-
er until December 17, testified that after the conference
between Norris and a union representative and Higgins in
her office during which Higgins was terminated, Norris
said "I don't need to worry about him, I will never let the
Union get in. I've beaten them so far and I will never let
the Union get in." Although Norris testified at great length,
he did not deny or refer in any way to these two statements
attributed to him by Hastings and Thornton. Accordingly,
I credit both of these employees and find that Norris made
the statements to which they testified.
Another common denominator with regard to the
termination of the four alleged discriminatees. was the
North Dixie store managed by Ruth Williamson, Norris'
mother. As previously stated there was one A. B. Dick 350
press at that store which was operated solely by Bill Smart.
However, after completing work for the week ending
September I, Smart left on a leave of absence for 3 weeks.
During that period of time Dillhoff, Higgins, and Wagner
were called upon to work at the North Dixie store. All of
them proved unsatisfactory to Williamson who in each case
demanded that they not be sent to that store and even in
some instances she indicated that they ought to be
terminated. These three employees testified to having a
great deal of difficulty with the press at that store which
they contended was inoperable. They stated that the paper
feeder, the ink ductor and pile did not work properly, and
that the press needed a new blanket. While there seems to
be some difference of opinion on the part of Norris and
Mills concerning this press, Williamson herself agreed that
the blanket was not working properly and indeed admitted
that a new blanket was installed on the press after the
termination of these employees. Mills, the supervisor,
testified that of all of Respondent's managers and supervi-
sors, Williamson was the most difficult to get along with.
Wanda Thornton testified to another statement made by
Norris which serves to clarify his state of mind. He
discussed with her after the election that he had perhaps
made a mistake in laying off an employee named DeLeon
prior to the election. He said that he had been advised by
his attorney that the way to handle this type of problem is
to cut back on the employees' time and force them to quit.
Once more, despite his lengthy appearance on the witness
stand, Norris did not deny having made this statement to
Thornton whom I credit.
I. Louise Hastings
Hastings was hired in May as a bindery worker and
voted in the election on July 30. On her very first day of
employment Hastings had a 2-hour conversation with
Norris in a restaurant during which he explained to her
that he did not want a union as he felt that they could not
handle his business the way he did. Immediately after the
election Hastings' hours of employment were reduced. For
example, on August 12 she was called to come into work by
Mills for a few hours in the afternoon. She found that her
table was full of jobs as there was an invoice with each
meaning that they had been placed on her table to be cut
down or inspected and then wrapped for shipment. On that
particular day she was able to complete 3 jobs but there
were 20 or 25 yet to be done. According to the summary of
the payroll records Hastings was laid off on August 20. The
day before she had been called into work by Mills and she
was only in long enough to get a few jobs finished. She
observed plenty of work but Mills said that Norris wanted
him to send her home because there was nothing to do. On
that day she was also directed to get some work ready to
deliver to Williamson at the North Dixie shop. That
morning Hastings had cut some paper to the size of 3-1/2
by 5 according to instructions from Mills. When she
delivered this paper to Williamson, the latter became mad
stating that the paper was supposed to be 8-1/2 by 11.
When Hastings told her that she had been directed by
Mills to cut it to 3-1/2 by 5, Williamson called her a liar
988
K. W. NORRIS PRINTING CO.
and told her to take the paper back. Hastings returned and
complained to Mills about Williamson's treatment of her.
The next day Norris called Hastings to his office and told
her he did not want anybody talking to his mother like
that. Hastings told him what had happened and they talked
for a while. Norris turned the conversation to the Union
and said that she had talked to the Union. She tried to tell
him she had never gone to the union hall, and while she did
vote for the Union, she never talked to any of the
representatives. It was then that he told her that he beat the
Union twice and he'll beat them the third time. The
discussion culminated when Norris called in Mills and
gave her a notice saying that she was insubordinate. She
refused to take it. Mills testified that he believed that he
instructed Hastings to cut the paper to the 8-1/2-by-Il
size. However, he did say that when Hastings talked to him
about it later he may have indicated that there was some
doubt in his mind. In any case Mills testified that
Williamson had conflicts with a number of employees on a
number of occasions, all of which were work related.
Hastings stated that she was told by Mills on September
I that she had been terminated and she should go to the
unemployment office. Respondent claims that Hastings
was laid off for lack of work. Jane Coppess, an employee
who sold at the counter but also had performed bindery
work, went into the bindery for a period of 6 weeks full-
time after Hastings was laid off, according to Norris
himself. Norris also testified that everybody did some of
the bindery work when they got busy in the latter part of
October and early November. In addition, people were
hired part-time to do some of the collating work previously
done by Hastings, according to Thornton, who stated that
even her own daughter came in to do some of that work.
Two young people, a brother and sister named Kramer did
some of the collating and bindery work in August after
Hastings departed and before they themselves returned to
school.
2. Robert Wagner
Wagner commenced his employment in October 1975
doing miscellaneous work including sweeping floors,
emptying trash, and running errands. He was then trained
to run the A. B. Dick press and the Heidelberg letter press,
which he operated from the latter part of May until his
discharge on September 17, 1976. After the election,
although he sustained some diminution of employment
hours, he actually did work more consistently than the
other employees. Shortly before his termination he had
worked overtime one day but was forced for personal
reasons to stop working before he had completed his job.
He promised to come in early the following morning in
order to complete the particular job, but arrived 25 minutes
later than he said he would. In any case he finished the
work and caught up as he was supposed to do. That
morning, however, Norris came to him and told him he did
not appreciate Wagner and that he was the problem for his
business falling apart. Norris also accused Wagner of
laughing at him and then told him to go over to the North
Dixie store and if he could not last with his mother over
there, Wagner would be of no further use. At that time,
Smart, the regular pressman at North Dixie was away and
Norris had to send people over there to fill in for him.
Wagner went over to North Dixie and immediately began
having problems with the press because the blanket was
not good. He had been there the week before and had run
the jobs all right but at that time the problems were only
with the pile and the ink and he could finish the work
although it was more difficult. This time he could not get
compression because the press needed a blanket. As a
result he had some arguments over the work with
Williamson. When this was reported to Norris, he said that
he did not like Wagner's attitude, again accused him of
laughing at him, and as a result he directed Mills to fire
Wagner. Mills stated that, despite the fact that Wagner
seemed to have problems with Williamson, he himself
never had any problem with Wagner. Concededly Wagner
was a good pressman.
Norris testified that he discharged Wagner because he
was dissatisfied with his attitude for the last 2 or 3 weeks of
his employment. However, Norris admitted to an encoun-
ter with Wagner which occurred about 2 weeks before he
discharged him. Apparently backpay had been found to be
due to the employees by the Wage and Hour Division of
the Department of Labor. Norris had arranged a schedule
of payments to employees on given dates. But he had also
been told by the Wage and Hour people that despite the
arrangement of stretched-out payments, he would have to
pay any employee immediately upon demand. Wagner
insisted that he wanted his payment at once because he did
not think Norris would be in business in a month and
Norris replied that he would get paid on the designated
date.
3. Ralph Dillhoff
Dillhoff was employed in March as a pressman for the
1722 Harris press which he ran exclusively except on some
occasions when he worked on the other equipment. He was
active during the union organizational campaign beginning
in April and was instrumental in setting up the two
meetings of employees. Immediately after the election
Dillhoffs workweek was cut from 40 hours during the week
ending July 31 to 5 hours in the week ending August 7, 10
hours in the week ending August 14, and during the week
ending August 21 he did not work at all. In the periods that
he did work he was able to observe the same amount of
work in the shop as ever by looking at the number of work
orders in the rack. About a week prior to his discharge
Dillhoff was sent over to the North Dixie plant where he
worked for 4-1/2 days. There was no comment or
complaint concerning his work performance there. On
September 23 he was sent over again to run the Dick press
at North Dixie. The press was in terrible condition as the
inking system and the feeder part which fed the paper into
the press were not working. He did the best he could
running it manually. However, despite his complaints
concerning the condition of the press, Williamson contend-
ed that his work was too slow and she told him to call
Norris and ask him where he should report. The next day
Dillhoff called Norris and asked whether he should report
to North Dixie or Salem Avenue and Norris replied
neither. He told Dillhoff that he was not going to call him
back to work again.
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mills conceded that there were several things wrong with
the Dick press at the North Dixie store, one being the pile
raise and the other the inking system. However, he said this
made it harder to operate but it was not inoperable. Mills
claimed that he had written a correction notice to Dillhoff
for some careless work but this notice could not be found
in Dillhofrs file and was not produced at the hearing. In
any case Mills stated that he did not participate in the
decision to terminate Dillhoff.
Norris contended that Dillhoff was terminated because
he was not putting out a profitable amount of work. He
said that on the last day Dillhoff was employed he put out
only $57 worth of work when the Company had deter-
mined that a pressman had to turn out $300 worth of sales
in order for it to make a profit. On cross-examination,
however, Norris conceded that he had arrived at the $300
figure by averaging some of the best days that Smart, the
regular pressman at the North Dixie store, had accom-
plished, Dillhoff, whom I have credited throughout, on the
other hand stated that on the last 2 days he worked he put
out 21 orders I day and 14 the other.
4. Richard Higgins
Higgins was employed by Respondent on June 29 as an
offset pressman and he ran the Dick machine at the Salem
Avenue store. Although not eligible to vote in the election,
Higgins was elected to be a union representative shortly
thereafter. His work pattern also indicates a gradual
reduction in the number of hours that he worked during
the 2 months following the election until his termination on
September 28. As a union representative Higgins attended
the negotiating meetings between Respondent and the
Union. Also during the month of September, Higgins
would visit the plant on days that he was laid off and
observe the amount of work available in the shop. He was
able to count the orders that were stacked up and he kept
records of this because he felt it was his obligation as union
representative to do so.
On September 17 Higgins was instructed to report to
work at the North Dixie store. He found that the Dick
press there was inoperable because the pile would not rise,
the water ductor and ink ductors did not work and the
press had to be operated manually. He mentioned this to
Williamson who replied that Dillhoff too was having a
problem but Smart could run that press all day without any
problems. Around midday Mills came over from the Salem
shop to pick up the jobs and Higgins was sent home.
Williamson stated that during the course of the morning
Higgins only got out two 100-page runs and she had
worked stacked up. She said she called Mills and told him
he might as well get Higgins out of there because they were
paying him for nothing.
On or about September 22 Higgins was at a negotiating
meeting with Norris and his attorney. Upon his return to
the shop Higgins was confronted by Norris with a couple
of jobs which Norris said were unfit and had to be rejected.
Higgins explained that the job Norris was particularly
complaining about was one which had to be printed on
both sides of the paper. In order for there to be a neat
appearance to the work, time had to be allowed to permit
the ink on the first side to dry before the second side could
be printed. Higgins stated that the work in the shop was
noted more for its quickness rather than its quality and-that
Norris himself told him that the job was needed immedi-
ately so that there wasn't enough time to let the ink dry on
the first side. Thereafter on September 24, the day that
Dillhoff was discharged, Higgins asked Norris if he should
return to work on Monday. Norris told him not to come
back at all until he could bring Clark, a union representa-
tive, with him. Thereafter on Tuesday, September 28,
Higgins and Clark met with Norris at the shop. Norris said
that he could not put up with the type of work being done
by Higgins and that he had tried him out but he did not
think he was fit to run the job and he did not want him
back in the shop at all. Norris himself testified that
although he had extended the probation period of Higgins,
he found him to be unprofitable and he terminated him for
that reason as well as his poor workmanship.
5. Respondent's defenses
Respondent has contended that it reduced the hours of
the employees referred to above for economic reasons and
ultimately terminated them for additional reasons such as
their poor work performance. The economic defense, of
course, is based on Respondent having filed a petition for
an arrangement under Chapter II of the Bankruptcy Act
on September 24. Respondent argues that this indicates its
poor financial condition so that it was unable to continue
employing the same number of people. An analysis of
Norris' testimony on this subject reveals that Respondent's
problems stemmed from its inability to meet its debts. With
respect to sales, Norris testified that sales in the last 6
months had been running at the rate of approximately
$20,000 a month. It had been estimated that Respondent
required sales of $18,000 a month to earn a profit but not
one which would be sufficient to make the payments to
creditors pursuant to the arrangements made under
Chapter I . It was also projected that Respondent required
sales of about $23,000 to $24,000 a month in order to meet
its debt payments. It is clear therefore that Respondent's
problem was to increase its sales rather than to reduce its
manpower. Actually this is what Respondent tried to do,
and the record is replete with references to any number of
employees, in all categories, who constantly shuttled in and
out in an attempt to stimulate sales and find replacements
for the four people terminated as described above. In
addition, as was frequently pointed out, Mills began
working increasing amounts of overtime, which reached
more than 70 hours a week in certain weeks subsequent to
the departure of the pressmen. Moreover, several witnesses,
including Mader, a highly credible witness, testified that
the workload continued to be about the same after they
were terminated. Actually this is borne out by the
testimony of Norris himself indicating that the sales level
remained the same during the 6 months following their
departure. Accordingly, I am not persuaded by Respon-
dent's plea of economic necessity as the basis for the
reduction of hours. I am more persuaded by its conduct in
sending home the pressmen and other employees at 10:30
in the morning of the first day of work following the
election and the remark then made by Mills to Wagner that
Norris had said to lay them off and get rid of them. This is
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K. W. NORRIS PRINTING CO.
another statement attributed to Mills which was undenied
by him during the course of his testimony.
6. Conclusions
After the election, Respondent terminated in less than 60
days three of the four employees who had voted for the
Union, and a fourth who, although ineligible to vote, was
subsequently elected as a union representative. I have
already noted that despite Respondent's shaky financial
condition, there was no dearth of work requiring either the
reduction of hours inflicted upon some of the discrimina-
tees nor their ultimate termination. I further find that the
reasons advanced in their specific cases were pretextual.
Hastings, concerning whom there was no evidence as to her
lack of ability or poor performance, was terminated
following a dispute with Williamson, a factor common to
all of the discharges involved herein. Even assuming that
she had made a mistake in cutting paper to an incorrect
size, as alleged by Williamson, termination would certainly
appear to be an extremely severe punishment for such
error. Noteworthy in connection with her termination is
Norris' complaint in their last conversation that she had
talked too much to the Union. As to Wagner, it was stated
that he was a good pressman, but that his attitude had
suddenly changed in the last 2 weeks of his employment
which culminated in his confrontation with Williamson
concerning the press at North Dixie. An added factor to be
recalled in Wagner's case is his protest about the failure of
Respondent to pay the backpay due to him according to
Wage and Hour Division, clearly a protected activity.
Dillhoff was on his second tour of duty with Respondent,
certainly not a novice as far as it was concerned. The
complaint against Higgins was based upon the alleged poor
quality of his work over a period of time, yet the action
taken against him proceeded hard upon his attendance as a
representative at the negotiating session with the Union. As
previously noted, the immediate reason for the discharges
of Wagner, Dillhoff, and Higgins centered upon their
performance at the North Dixie store. All three asserted
that the press there was almost inoperable and that they
were not able to perform good work on it. This fact is
conceded somewhat by Williamson herself who stated that
the blanket on that press was repaired or replaced shortly
thereafter.
I am convinced that Respondent, subsequent to the
election, set out to terminate the supporters of the Union,
the employees who had voted to bring it in, and in the case
of Higgins, the elected representative of the employees.
Actually Respondent was merely implementing the an-
nounced intention of Norris to the effect that he had
beaten the Union twice and he would beat it a third time.
In addition, he also stated that he had been advised that
the way to rid himself of these employees was to cut their
hours and force them to quit. These statements, in addition
to the findings that Respondent had violated Section
8(a)(l) of the Act, lead to the conclusion that it further
violated Section 8(a)3) of the Act by cutting their hours
and finally terminating Hastings, Wagner, Dillhoff, and
Higgins.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close.
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily cut the
hours of the employees set forth above and thereafter
discharged them. I shall recommend that Respondent be
ordered to offer immediate and full reinstatement to Louise
Hastings, Robert Wagner, Ralph Dillhoff, and Richard
Higgins to their former positions or, if no longer available,
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges; and make
each of them whole for any loss of earnings or other
monetary loss each may have suffered as a result of the
discrimination against them, less interim earnings, if any,
plus interest at 6 percent per annum. Any backpay due is to
be determined in accordance with the formula set forth in
F W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees that it may go out of
business if the Union won an election, by promising
employees higher wages if the Union were defeated, and by
coercively interrogating employees about their union
activities, Respondent violated Section 8(a)(l) of the Act.
4. By maintaining a no-solicitation rule which prohibits
employees from soliciting in work areas during their
nonworking time and distributing literature in nonwork
areas during their nonworking time, Respondent has
violated Section 8(a)( I) of the Act.
5. By discharging or otherwise discriminating against
Louise Hastings, Robert Wagner, Ralph Dillhoff, and
Richard Higgins, because of their concerted and/or union
activities, Respondent engaged in unfair labor practices in
violation of Section 8(aX3) and (I) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER '
The Respondent, K. W. Norris Printing Co., Dayton,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that it will close the plant
should the Union win an election.
(b) Promising benefits to employees if the Union is
defeated in an election.
(c) Coercively interrogating employees concerning their
union sympathies and activities.
(d) Maintaining in effect, enforcing, or applying any rule
or regulation prohibiting its employees from soliciting on
behalf of any labor organization in work areas during their
nonworking time, and distributing union literature in
nonwork areas during their nonworking time.
(e) Discharging employees, or otherwise discriminating
in regard to their hire or tenure of employment, in order to
discourage membership in Dayton Printing Pressmen,
Assistants' Offset and Specialty Workers Union Local No.
54, International Printing & Graphic Communications
Union, AFL-CIO, or any other labor organization.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations,
including the above-named organization, to bargain collec-
tively through representatives of their own choosing, to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Louise Hastings, Robert Wagner, Ralph
Dillhoff, and Richard Higgins immediate and full rein-
4 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.
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of
pay they may have suffered as a result of the discrimination
practiced against them in the manner set forth in the
section of this Decision entitled "The Remedy" with
interest thereon at 6 percent per annum.
(b) Rescind the rule against solicitation on company
time.
(c) 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.
(d) Post at its Dayton, Ohio, shops, copies of the
attached notice marked "Appendix." 5 Copies of said
notice on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
as to those allegations not specifically found herein.
5 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."
992