Publisher Printing Co.

National Labor Relations Board - Board Decisions

Dec 9, 1977

233 N.L.R.B. 1070 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Publishers Printing Co., Inc. and Teamsters Local
Union 783, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Cases 9-CA-10984 and
9-CA-1 1239
December 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 18, 1977, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the 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 and to
adopt her recommended Order, as modified herein. 2
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, Publishers Printing Co., Inc., Louisville, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make Carl Mattingly and William Bruce
Phillips whole for any loss of earnings they may have
suffered by reason of the discrimination against
them, with interest."
2. Substitute the attached notice for that of the
Administrative Law Judge.
l The 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,
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 her findings.
2 In the recommended remedy, Order, and notice, the Administrative
Law Judge erroneously referred to a fixed 7-percent interest rate and
thereby failed to apply properly the Board's "adjusted prime interest rate"
formula, which may vary in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating
Co. 138 NLRB 716 (1962). We shall therefore modify the recommended
Order by deleting the reference to a specific interest rate percentage which
may not necessanly govern Respondent's backpay obligations in every
calendar quarter involved.
233 NLRB No. 170
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee to discourage member-
ship in or support of Teamsters Local Union 783,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Hel-
pers of America, or any other union.
WE WILL NOT interrogate employees as to
whether they have signed union cards, or ask
other questions to ascertain employees' union
activities or sympathies.
WE WILL NOT tell employees that there will be a
layoff or that the plant will be closed if they vote
a union in, or that employees have been fired for
soliciting union cards, or that the employees will
lose their jobs if they talk about a union.
WE WILL NOT maintain or enforce our rule, or
post any notice, reading "In the interest of order,
cleanliness and efficient production, there shall be
no solicitations of any kind for any purpose carried
on among the employees in the plant."
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
Act.
WE WILL revoke the above-quoted no-solicita-
tion rule.
WE WILL offer Carl Mattingly and William
Bruce Phillips immediate and full reinstatement
to their former positions, or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and WE WILL make them whole for
any loss of earnings they may have suffered by
reason of the discrimination against them, with
interest.
PUBLISHERS PRINTING
Co., INC.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
This case was heard at Louisville, Kentucky, June 13 and
14, 1977. The charge in Case 9-CA-10984 was filed and
served on the Respondent January 21, 1977; the complaint
was issued March 10, 1977. The charge in Case 9-CA-
11239 was filed April 5 and served April 6, 1977; the
complaint was issued May 25, 1977. The complaints were
consolidated May 25, 1977, and amended at the hearing.
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PUBLISHERS PRINTING CO.
The Respondent duly answered and amended its answers
at the hearing.
The issues are whether or not the Respondent committed
various violations of Section 8(a)(1) of the National Labor
Relations Act, as amended, as alleged in the complaint;
whether or not several individuals are supervisors; and
whether or not the Respondent discharged and otherwise
discriminated against two employees in violation of Section
8(a)(3) of the Act. For the reasons fully set forth below I
conclude that the Respondent committed substantially all
of the violations alleged in the complaint.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the Respondent and the General
Counsel, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent admits, and I find, that it is a Kentucky
corporation engaged in publishing magazines for commer-
cial customers at its Louisville, Kentucky, facilities; that it
sold and shipped goods and materials valued in excess of
$50,000 from its Louisville, Kentucky, facility, directly to
points located outside Kentucky during the past 12
months. I further find that at all material times the
Respondent is and has been an employer as defined in
Section 2(2) of the Act, engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES'
A. Background
The Respondent has been in the publishing and printing
business at this same location for over 100 years. It
employs a complement of about 235 employees. The
Respondent admits, and I find, that the following individu-
als are supervisors and agents: 2 Frank E. Simon-
president; Carl Gearheart- plant superintendent; Ken
Mouser- plant superintendent; Bob Sanford- second-
shift superintendent; and Joseph Thomas- foreman.
A union campaign began in early January 1977 with
officials passing leaflets among the Respondent's employ-
ees. Meetings were held away from the plant in January
and February, with 50-60 employees attending. On March
9, an agreement was signed for a Board election, and the
election was held Apr.l 14. The record does not indicate
what the outcome was.
I Credibility issues have been resolved on the basis of demeanor of
witnesses, interest probability, and likelihood in view of the entire record. I
have also considered the Respondent's failure to explain why some of its
supervisors did not testify at the hearing, and I infer that their evidence
B. 8(a)(1) Violations
1. No-solicitation rule: The complaint alleges and the
answer denies that the Respondent has, since July 1, 1976,
maintained and enforced an unlawful no-solicitation rule.
The evidence on this issue is not in dispute.
The Respondent stipulated that the following notice was
posted in the plant at material times:
In the interest of order, cleanliness and efficient
production, there shall be no solicitations of any kind for
any purpose carried on among the employees in the
plant.
Employees William Bruce Phillips and Robert Raley
testified that they and other employees nevertheless talked
with each other and with foremen without restriction
during working time. There is also testimony by these
employees and employees Loretta Dillinder and Timothy
Spurling to the effect that selling candy, punchboard
chances, tickets, and other items, and taking up collections
has been widespread and commonplace during worktime
throughout the plant.
Phillips began to take part in the union campaign about
January 6, 1977, and from then on talked to employees
about the Union and obtained signatures to about 80 union
authorization cards in the plant. Superintendent Gearheart
admitted he heard that Phillips was passing out cards.
Phillips testified that although conversation had never
before been restricted, in February 1977 President Simon
sent for him to come to his office, and told him:
[T ]his wasn't a social club and I shouldn't be talking to
anyone, that he didn't care what I was talking about,
that he just didn't want me talking to anyone . . . To
stay on my tow motor and not to get off of it and to do
my job and not to talk to anyone.
The following month, President Simon personally handed
Phillips a copy of the printed rule on the dock in the
presence of Superintendent Gearheart, and told him to
read it and make sure he understood it.
The posted rule is so broad in scope that it has the effect
of prohibiting employees from engaging in union solicita-
tion during nonworktime on the Respondent's premises.
Moreover, President Simon's pointedly handing a copy of
the rule to Phillips, known to be soliciting for the Union,
and his instruction to Phillips not to talk to anyone, in
addition to the Respondent's unlawful discharge of Carl
Mattingly for soliciting cards for the Union and the
independent violations of Section 8(aX)() in connection
therewith, found below, in a context of the Respondent's
permissiveness toward other types of solicitation, show that
the rule was maintained and enforced so as to prevent
union solicitation by employees at any time. I conclude
would have been unfavorable to the Respondent if they had testified. Martin
Luther King, Sr. Nursing Center, 231 NLRB 15 (1977).
2 Issues regarding the supervisory status of other individuals are
discussed below.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent maintained and enforced a no-
solicitation rule in violation of Section 8(a)(1) of the Act.3
2. Superintendent Bob Sanford: The complaint alleges
and the answer denies that on or about January 12, 1977,
admitted supervisor, Sanford, threatened employees that
the Respondent would close its plant if the union
organizing drive was successful.
As Sanford did not testify, I credit Phillips' uncontradict-
ed testimony that around January 12 Sanford told a group
of employees that,
Mr. Simon would go out of business and buy the
biggest padlock he could find if the Union was voted in
and lock the whole place up and not let anybody work.
Such a threat to close a plant if employees unionized is a
blatant interference with their right to organize, and I
conclude that it violated Section 8(a)(1). 4
3. Foreman Joseph Thomas: The complaint alleges and
the answer denies that admitted supervisor, Thomas,
interrogated employees about union activities on or about
January 31, 1977. Employee Timothy Spurling testified
that about January 31, 1977, he heard Thomas ask
someone else how many people were at the union meeting,
and if he thought the Union had a chance. Thomas did not
testify, and this uncontradicted evidence is credited.
However, I know of no precedent, and none has been
brought to my attention, holding it to be coercive, or an
interference with employees' organizational rights, for a
supervisor to ask an unidentified person such questions
within earshot of an employee. I conclude therefore that
this allegation should be dismissed.
4. Paul Mattingly: The complaint alleges that Mattingly
is a supervisor and that he interrogated an employee on
January 12, 1977, informed employees on January 14 that
another employee had been discharged because of his
union activities, and engaged in surveillance on January
30. The Respondent denies that Mattingly is a supervisor,
and denies the alleged statements were made.
Supervisory status: Paul Mattingly is employed in the
shipping-and-receiving department. He is hourly paid and
voted without challenge in the Board election. Employees
Phillips, who did not work in that department, and Robert
Summitt, who did, Mattingly, and Superintendent Gear-
heart all testified on this issue.
Although Summitt testified that Paul Mattingly assigns
his overtime, I credit Mattingly and Superintendent
Gearheart that Gearheart makes all decisions regarding
overtime, as they are in a better position to know. On the
other hand, the evidence establishes, in my opinion, that
the testimony of Phillips and Summitt to the effect that
Mattingly assigns and directs the work of the two or three
employees in the department by telling them what to do
encompasses the critical element of the use of independent
judgment. Thus, shipping-and-receiving operations in a
plant of this size are not likely to be routine and repetitive,
3 McBride's of Naylor Road, 229 NLRB 120 (1977); House of Mosaics,
Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB 704 (1974); Essex
International, Inc., 211 NLRB 749 (1974).
4 Textile Wkrs. Union v. Darlington Mfg. Co., 380 U.S. 263, fn. 20 (1965).
There is no evidence to support the allegations that President Simon
committed additional violations of the Act and those allegations will be
dismissed.
and Mattingly's responsibility for the operations is reflect-
ed in his own description of his duties, as follows:
I take care of anything that comes in. Anything that's
received. Anything that's shipped out. I take care of the
inserts for the customers. . . I do about anything that
has to do with shipping and receiving.
I cannot believe that the responsibility described could be
carried out with the limited authority claimed by Matting-
ly, that he can only ask, and cannot tell, the employees who
work with him to help him, and that he merely passes
Superintendent Gearheart's instructions along to them,
particularly in view of Mattingly's admission that he talks
to Superintendent Gearheart on the average of only three
or four times a month.
Moreover, it seems clear that Mattingly has authority
effectively to recommend the hiring of employees. Al-
though Gearheart was positive that he had to approve
whoever Mattingly hired, he conceded that it would be too
much of a job for him to do all the hiring for a plant of 235
employees and that he depends on others to help. He also
testified that Paul Mattingly brings applications to him,
that he checks them over, and when he has doubts he talks
to the applicant himself. He conceded, however, that he
does not talk to all applicants Mattingly tells him are good
men. It is clear that Mattingly effectively recommended the
hire of his cousin, Robert Summitt. Accordingly, I find that
Paul Mattingly responsibly directs the work of the
employees in the shipping-and-receiving department, and
effectively recommends hiring. He is therefore a supervisor
within the meaning of Section 2(11) of the Act.
Unlawful conduct: Paul Mattingly did not deny any of
the following testimony:
Phillips: Around January 12, 1977, Mattingly asked
Phillips how many people had signed for the Union, who
had signed, did he sign, and if they had a chance of getting
the Union in or not. Also during January, after Carl
Mattingly was discharged, Paul Mattingly "told me that
Mr. Mattingly had been fired and I asked him what the
reason was and he said, 'what do you think, . . . the
cards.' "
Robert Summitt also testified that Paul Mattingly told
him Carl Mattingly was fired for soliciting union cards.
Timothy Spurling: On January 14, the day Carl Matting-
ly was fired, Paul Mattingly, in the presence of Superinten-
dent Sanford, said, "Carl had got fired and it was over
soliciting union cards."
I find that by these statements, Paul Mattingly coercively
interrogated Phillips, and coerced Phillips, Summitt, and
Spurling in their exercise of Section 7 rights by attributing
employee Carl Mattingly's discharge to his union activity. I
conclude that these remarks were violative of Section
8(a)(l).5
5 Although Paul Mattingly attended an employee-union meeting, it is
undisputed that he was invited to do so. I find that the evidence does not
support the allegation that Mattingly engaged in surveillance, and conclude
that it should be dismissed.
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PUBLISHERS PRINTING CO.
5. Ronald Adams: The complaint alleges that Adams is
a supervisor and that he interrogated an employee about
January 31, 1977. The Respondent denies both allegations.
Supervisory status: Adams is responsible for paper stock
and handling. He also voted in the election. His duties
include unloading rolls of paper from boxcars and trucks,
moving it into storage, and getting it out and delivering it
to the presses. There are four other employees including
Phillips in the department. The record indicates that
Adams has no authority to grant time off, transfer
employees from shift to shift, or grant overtime or
vacations, and that he merely relays instructions on such
matters from Gearheart. Also, unlike Paul Mattingly,
Adams receives a daily schedule for delivering paper to the
presses and he receives instructions from Gearheart if there
is any change in the delivery schedule during the day, and
he transmits the schedules and instructions to the employ-
ees who work with him, and Adams testified that the
employees know their jobs in this respect. However, Adams
also testified that he is responsible for seeing that this work
is done. Moreover, it is clear that Adams assigns other
duties to employees on a regular basis. Thus, Phillips
credibly testified that Adams told him when to drive the
tow motor and when to get off and sweep floors, lock
doors, and move things around, as well as giving him
detailed instructions about working on the dock and
cleaning up debris, and that Phillips always did what
Adams told him to do; there is no indication that these
orders were merely a relay of day-to-day instructions
handed down by Gearheart. Further, although Gearheart
testified that Adams is only a leadman and not a foreman,
he did not deny Phillips' testimony that he told Phillips that
Adams was his foreman. Finally, based on Gearheart's
testimony that Adams and Paul Mattingly had the same
authority regarding hiring, I find that Adams, like
Mattingly, had authority effectively to recommend hiring.
As Adams therefore responsibly directed the work of
several employees in the paperhandling department and
effectively recommended hiring, I find that he was a
supervisor within the meaning of Section 2(11) of the Act.
Interrogation: Employee Timothy Spurling testified,
without contradiction, that on January 31, 1977, Adams
asked him in the restroom, "how the Union meeting went
the past Sunday." As this is interrogation designed to elicit
the attitude of employees toward unionization, I conclude
that it violated Section 8(a)( I).
6. Orville Crigler: The complaint alleges, and the
answer denies, that Crigler is a supervisor, and that he
interrogated employees on or about January 13 and
February 11, 1977, and threatened an employee on or
about February 11 with a layoff if the Union were
successful.
Employee Tressie Masden described Crigler as a second-
shift foreman. Phillips said he was the second-shift bindery
foreman; that he sees that the production gets out, making
sure the books are cut right and fit right and put together
right; and that he gave orders to an estimated six
employees working for him. Although Phillips never
worked for Crigler, he did work on the second shift for a
while, and his knowledge is based on the fact that, "It is a
small plant. We all work pretty close together. His
promotion [to foreman] was put up on the [bulletin
board]" some time in 1976. Adams said that Crigler is a
machine operator who runs the saddle stitcher or the
binder.
In the absence of any testimony by Crigler or Gearheart
or other knowledgeable management representative on this
issue, I credit Phillips and Masden and find that Crigler
responsibly directed the work of approximately six employ-
ees in the bindery department on the second shift, and that
he is therefore a supervisor.
Interrogation and threats: As Crigler did not testify, the
following testimony is undisputed:
Employee Tressie Masden testified that in January 1977,
Crigler made the following statements to her at work:
[H ]ave you heard anything about the Union? He said
that if we wanted our jobs we shouldn't talk about the
Union... He said we would be fired.... he said Mr.
Simon would fire us. He said he would find a
reason. .... he did say the plant would be closed if a
Union came in.
On another occasion, employee Loretta Dillinder said,
Crigler asked her if she had been to the first union meeting,
and "He said there might be a layoff if the Union came in."
I find that Crigler coercively interrogated Masden and
Dillinder, and threatened Masden with the loss of her job if
she talked about the Union, and threatened Masden with
closing the plant and Dillinder with a layoff if the union
campaign were successful. I conclude that the interrogation
and threats were violations of Section 8(a)(1).
7. Joe Gast: The complaint alleges and the Respondent
denies that Gast is a supervisor and that he interrogated
employee Robert Raley on February 3, 1977. The only
witness to this allegation was Raley, a butler operator who
hooked up rolls in the pressroom section.
According to Raley, Gast hired him, was the first-shift
foreman of the pressroom section, was a boss, told him
when to work overtime, and Raley did what Gast told him
to do. Gast checked on Rlaley to see that he did his job
right, and also came around and gave color okays on the
sheets that were run off. This evidence shows, and I find,
that Gast had authority to hire, grant overtime, and
responsibly direct the work of employees. I conclude that
he was a supervisor.
Interrogation: Gast asked Raley on or about February 3
if a union man had ever been to his house. I find this to be
interrogation designed to elicit information with regard to
the extent of Raley's and other employees' union activity,
and conclude that it violated Section 8(aX)(1).
C. Discharge of Carl Mattingly
The complaint alleges that the Respondent discharged
Carl Mattingly January 14, 1977, for union activity. The
Respondent admits that Mattingly was discharged January
14, but denies it was for union activity.
Carl Mattingly did not testify. As found, Paul Mattingly
testified but did not deny the credible testimony of
employees Phillips and Summitt that he told them Carl
Mattingly was fired for soliciting union cards. Neither did
Paul Mattingly deny Spurling's testimony that he told
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spurling in Sanford's presence that Carl Mattingly was
fired for soliciting union cards. Sanford did not testify.
Superintendent Gearheart testified that he thought Carl
Mattingly was dismissed for soliciting, contrary to the no-
solicitation rule.
Based on the above-credited testimony, and in the
absence of a suggestion by the Respondent of any other
reason for Carl Mattingly's admitted discharge on January
14, 1977, I find that he was discharged because the
Respondent knew or suspected that Mattingly was solicit-
ing signatures on union cards in breach of the no-
solicitation rule found above to be unlawful. I conclude
that the discharge violated Section 8(a)(1) and (3) of the
Act.6
D. W. Bruce Phillips
The complaint alleges that on or about January 19, 1977,
the Respondent transferred Phillips to the first shift, in
mid-March assigned him more arduous, onerous, and less
agreeable work, and on March 28 conditioned his further
employment upon his resignation from his other employ-
ment at General Electric Company and discharged him, all
because of his activities on behalf of the Union. The
Respondent denies the unfair labor practices.
Phillips, a stock clerk, was employed by General Electric
Company full time from 1973 to 1974. He was laid off by
GE in the fall of 1974, and began working full time for the
Respondent. In May 1976 he was recalled by GE. He
testified, and Supervisor Adams admitted, that he told
Adams at that time that he had been recalled to his job at
GE and that he could not work two 8-hour shifts a day,
and to ask Superintendent Gearheart if he could work 4-5
hours a day starting at 4:30 p.m. Adams reported back that
it would be all right. Work was slack during the summer of
1976, and when Phillips reported for work each day, the
Respondent assigned him a job to do and told him and
other employees to punch out whenever they completed
their assignments. Adams admitted he knew Phillips
worked for GE during that summer, but asserted that he
did not tell anyone else. Superintendent Gearheart testi-
fied, at first, that he did not know about it, but was less
positive on the matter on cross-examination. It seems quite
unlikely in the circumstances that Adams would not have
explained to Gearheart why Phillips wished to go on part-
time status, and, in any event, I have found that Adams
was a supervisor, and the Respondent is, of course, charged
with knowledge in his possession.
In August or September 1976, Phillips was again laid off
by GE and went back on a 40-hour week for the
Respondent, on the second shift.
On December 29, 1976, a fire broke out in the
Respondent's plant which damaged the building, destroyed
one press and quantities of paper, and left the place a
shambles. For several days smoldering rolls of paper and
trash were hauled out and dumped around the building
and on and around the adjacent railroad tracks. According
to Phillips, pressmen, second pressmen, bindery workers,
and everyone available, as well as outside contractors,
worked through January cleaning up, as many operations
as possible being transferred to the first shift.
As stated, the union organizing campaign among the
Respondent's employees began in January 1977. Phillips
began to participate about January 6, talking Union to
employees on the job and during break on the second shift.
On January 7 or 8, he signed an authorization card and
thereafter actively solicited signatures from other employ-
ees, upon occasion when Paul Mattingly was around. He
obtained 80 signatures. Phillips attended the two union
meetings in January and February, one of which Paul
Mattingly also attended. Phillips said no one else assisted
him in the organizing campaign. He testified without
dispute that he told Adams in February that he was trying
to organize the employees. As found, Superintendent
Gearheart admitted he heard that Phillips was passing out
cards.
As found above, around January 12 Foreman Sanford
threatened Phillips and other employees with plant closure
if union campaign was successful, about the same time
Supervisor Paul Mattingly coercively interrogated Phillips
and told him Carl Mattingly had been fired for soliciting
union cards. In February, President Simon enforced the
invalid no-solicitation rule against Phillips for the purpose
of restricting his union activity.
On March 9, Phillips attended the meeting at which the
Respondent's president and its attorney worked out an
agreement with the Union that an NLRB election would be
held among the Respondent's employees.
According to Phillips, he was transferred to the first shift
in late February. Around the first part of March, Adams
ordered Phillips to crawl under a boxcar and pull burned
and water-ruined paper out, and clean up along the
railroad tracks. Adams said to get a wheelbarrow, a rake,
and a shovel and pick up all the burned paper underneath
the boxcar, along the railroad tracks, and around the
building, and haul it to the dumpster and throw it in. He
did this work for 3 days to a week. Phillips testified that no
other employees were doing this kind of work at that time.
About a week after Phillips attended the consent-election
meeting on March 9, he was assigned for a period to the
dock sweeping, cleaning up, and stacking skids, and
cleaning around the dumpster and rebuilding skids.
Phillips described these as isolated areas where he saw as
few as 10 employees a day compared with his regular job
where he saw as many as 100 employees and spoke to half
of them. Before these assignments, Phillips' work had
consisted of driving a tow motor, making room for
inventory, getting out stock paper for the presses, unload-
ing boxcars and tractor-trailers, and, when Adams told him
to, which he did every night, sweeping the warehouse,
cleaning up, loading trucks, and moving things around.
Phillips gave the following account of his discharge.
Phillips asked Adams if he could take 4 days' vacation,
beginning March 21, a Monday. Phillips testified that he
asked for his vacation at this time because, "I thought he
would put me out under those boxcars, and I had better
take what I had coming to me before a train ran over me,
or something on me." Adams returned and said he could
6 See McBride's of Naylor Road supra.
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PUBLISHERS PRINTING CO.
do so. Phillips then went back to GE where he worked full-
time March 21 through March 23. On March 24, GE was
struck. On March 25, the day Phillips was due back at the
Respondent, he telephoned Adams that he had car trouble
and could not return. Adams told Phillips to hold the
phone and after a few minutes said it was all right. On
Sunday, March 27, Superintendent Gearheart called
Phillips at home and told him to report to work Monday on
the third shift.
Although he could have returned to work for GE,
Phillips testified, Electrical Workers Local 761 which
represents the GE employees on March 28 obtained
emergency permission from that Company for Phillips to
be off on "Union time" without pay until April 18 "so he
could see the outcome of the election" among the
Respondent's employees.
When Phillips arrived at work on Monday evening,
March 28, he was sent to President Simon's office where
Simon, in the presence of Plant Superintendent Ken
Mouser, asked if he had worked at GE during his vacation.
Phillips said he had, and Simon told him he could not work
for GE and the Respondent both. Phillips protested that in
the (otherwise unidentified) "green booklet" it permitted
you to work two jobs. Simon then read something from the
green booklet that Phillips could not recall clearly about
being a danger to somebody's health, and said it would be
a hazard for Phillips to be on the tow motor after working
at GE the same day. Phillips responded he was not working
at GE. Simon said, "you will have to bring in some kind of
statement saying that you had quit from General Electric,
permanently quit." Phillips responded, "that means I don't
get to go to work," and Simon told him that was right.
Phillips nevertheless returned to the plant for the third
shift on the next night, March 29. After punching in, he
asked Superintendent Mouser what he wanted done.
Mouser asked, "did you bring me some kind of a piece of
paper saying you quit from General Electric?" Phillips
responded, "I am not working for GE. I didn't bring a
piece of paper." Mouser told him, "well, we can't let you go
back to work." Phillips told Mouser:
[W]ell, my choices being, you can let me go back to
work, you can fire me or you can have me removed
because that is the onliest way I'll leave.
Mouser left for about 10 minutes and when he returned he
told Phillips, "we can't let you go back to work until you
have a slip saying that you quit." At that point Mouser told
Phillips he was not fired, but called a guard who grabbed
Phillips and escorted him out of the plant.
The election was held among the Respondent's employ-
ees April 14, and Phillips returned to work at General
Electric April 18 where he has been working full time ever
since. Phillips has not worked at the Respondent's since the
above events. When asked whether, when he last visited the
premises on April 14, there were tons of paper and debris
still there, Phillips at first said the place looked pretty good,
and then he conceded there was about a ton of paper
scattered around, and, finally, that there still were stacks of
paper over 12 feet high along the railroad track.
Adams and Gearheart both testified that Phillips was
transferred to the first shift in January, not February, 1977.
Gearheart said that shift transfers were not uncommon,
there having been 21 other than Phillips, 10 percent of the
work force, during the first 3 months of 1977. Phillips was
transferred in order to use him during the short daylight
hours to clean up after the fire. He said there were still 200
thousand pounds of paper piled awaiting insurance
inspection.
Superintendent Gearheart testified that Phillips was a
good tow-motor operator. He said that in January,
February, and March the work was unusually heavy due to
the cleanup; that by March the days were getting longer
and the workload had to spread more evenly by shifts. He
therefore called Phillips at home March 27 and told him he
was needed. Gearheart and Adams testified they were not
consulted about Phillips' discharge, and that neither knew
about it at the time. Simon and Mouser did not testify.
Conclusions: I find that Phillips was transferred to the
first shift in January, and not in late February as he
testified. Moreover, in my opinion, despite the Respon-
dent's knowledge of Phillips' union activity and adherence,
and its unfair labor practices, the evidence satisfactorily
establishes that the transfer, and Adams' assignment of
Phillips to extensive policing of the grounds and to work on
the dock were prompted by valid economic considerations
- the need to clean up the premises after the fire. Phillips
admitted he was not the only one so engaged as most of the
employees were assigned to such work for a considerable
period of time. To the extent that Phillips was required to
do more of it for a longer period of time, the record shows
that the work was there to be done and Phillips seems a
logical choice in view of his experience in the operation of
the tow motor and the fact that cleanup had always been a
part of his duties. No other more plausible choice has been
suggested. Shift transfers were common, and it made sense
to take advantage of the daylight hours for cleanup
purposes. Moreover, except for not having 50 employees to
speak to every day, Phillips did not seem to have been
appreciably disadvantaged by these changes. He was not
working for GE at the time, and there is no indication that
the first-shift assignment inconvenienced him in any other
way; as stated, cleanup had always been part of his regular
duties; and he never complained about the changes. I do
not credit his testimony implying that he was in danger
working on the railroad tracks as there is nothing to
support it and it seems unlikely.
I therefore conclude that the assignment and transfer of
Phillips prior to March 28 were not discriminatorily
motivated, and I conclude that these allegations should be
dismissed.
The Respondent's conduct toward Phillips on March 28
is an entirely different story. There was no credible
business justification for its refusal to permit Phillips to
return to work unless he presented written evidence that he
had quit his job at General Electric. Thus, Superintendent
Gearheart conceded that work was heavy, Phillips was a
good worker, and that he needed him. He had never
complained about his work or shift assignments, and he
neither complained about his March 28 assignment to the
third shift nor requested part-time work. Indeed, he was
ready and willing at that time to work full time on the shift
assigned. Moreover, even if there was a plant rule
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prohibiting employees from moonlighting when it would
create a hazard on the Respondent's premises, of which
there is no evidence, the Respondent presented no proof
that it would have applied to Phillips. In any event,
management had in the past, before the advent of the
Union, not only knowingly tolerated Phillips' dual employ-
ment without raising any hazard issue, but had cooperated
by permitting him to work short hours so he could hold
both jobs at the same time.
In the above circumstances, in the absence of any
explanation of the abrupt change of signals by the two
management representatives who presumably were privy to
any explanation if there was one, the timing after
management gained knowledge of Phillips' union adher-
ence and activity, and the Respondent's interrogation and
coercion of Phillips and other employees, I find that the
Respondent seized on Phillips' employment at General
Electric as a pretext for getting rid of the most active union
supporter among its employees. I further find that by
conditioning Phillips' further employment on his presenta-
tion of a quit slip from GE, the Respondent in effect
discharged him for discriminatory reasons to discourage
union activities among its employees. I conclude that the
Respondent thereby violated Section 8(a)(3) and (I) of the
Act.
REMEDY
In order to effectuate the policies of the Act, I
recommend that the Respondent be ordered to cease and
desist from the unfair labor practices found and, in view of
the nature thereof, to cease and desist from infringing in
any other manner on its employees' rights guaranteed by
the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A.
4, 1941).
Having found that the Respondent discriminatorily
discharged two employees, I also recommend that it be
ordered to offer those employees immediate and full
reinstatement to their former jobs, or, if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and privileges,
and to make them whole for any loss of earnings suffered
by reason of the discrimination against them, plus interest
at 7 percent per annum. F. W. Woolworth Company, 90
NLRB 289 (1950); Florida Steel Corporation, 231 NLRB
651 (1977).7
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 8
The Respondent, Publishers Printing Co., Inc., Louis-
ville, Kentucky, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
7 Although the General Counsel requested 9 percent interest, I am
required to follow the Board. Iowa Beef Packers, Inc., 144 NLRB 615 (1963).
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(a) Discharging or otherwise discriminating against
employees to discourage membership in or support of
Teamsters Local Union 783, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
(b) Interrogating employees as to whether they have
signed union cards, or asking other questions to ascertain
employees' union activities or sympathies.
(c) Telling employees that there will be a layoff or that
the plant will be closed if the employees vote in a union.
(d) Telling employees that an employee has been fired
for soliciting union cards or that they will lose their jobs if
they talk about a union.
(e) Maintaining or enforcing any rule or posting any
notice reading, "In the interest of order, cleanliness and
efficient production, there shall be no solicitations of any
kind for any purpose carried on among the employees in
the plant."
(f) In any other manner discouraging membership in a
labor organization or interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Carl Mattingly and William Bruce Phillips
immediate and full reinstatement to their former positions,
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges.
(b) Make Carl Mattingly and William Bruce Phillips
whole for any loss of earnings they may have suffered by
reason of the discrimination against them, with interest at 7
percent, as provided in the remedy section above.
(c) Revoke its above-quoted no-solicitation rule.
(d) 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
term of this recommended Order.
(e) Post at its place of business copies of the attached
notice.9 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
the Respondent's authorized representative, shall be posted
by the Respondent, 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 the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
9 In the event that this Order is enforced by a Judgment of the 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."
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PUBLISHERS PRINTING CO.
(f) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
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