Publishers Offset, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1976

225 N.L.R.B. 1045 (N.L.R.B. 1976)

PUBLISHERS ' OFFSET, INC.
Publishers' Offset , Inc. and International Printing and
Graphic Communications Union . Case 21-CA-
13371
August 25, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 30, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and the Re-
spondent filed cross-exceptions and a supporting
brief. The General Counsel also filed a brief in an-
swer to Respondent's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
1. We agree with the Administrative Law Judge
that Respondent, through its general manager, Ac-
hord, unlawfully interrogated employee Nancy Wal-
die concerning the union activities of her fellow em-
ployees by asking her, on January 28, 1975,2 whether
union cards were being distributed in the composing
room. We also find, on facts found by the Adminis-
trative Law Judge but from which he failed to draw
legal conclusions, that Achord's statement to Waldie
that he suspected employee Jeanette Cochran of cir-
culating union authorization cards created the im-
pression of surveillance of employees' union activi-
ties in violation of Section 8(a)(1) of the Act, as
alleged in the complaint. This statement conveyed to
Waldie the unmistakable impression that Respon-
dent was maintaining surveillance of employees who
were soliciting signatures for union authorization
cards.'
We also agree with the Administrative Law Judge,
for the reasons stated by him, that, in laying off Press
II employees Stephen DeLong, Manuel Gonzales,
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge R is the Board's established policy not to over-
rule 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 that no basis exists for reversing his findings
2 All dates are in 1975
3 Stephens Manufacturing Co, Inc, 196 NLRB 47 (1972)
1045
and David Johnson, Respondent's production man-
ager, Trousch, unlawfully threatened them with loss
of recall unless they refrained from engaging in pro-
union activity when he said, "if you guys will only go
along with us, you'll be alright and you'll probably
get your job [sic] back in a couple of weeks, and if
you don't, you'll lose."
We disagree, however, with the Administrative
Law Judge's finding that Respondent did not violate
Section 8(a)(1) of the Act when, on January 29,
Trousch asked DeLong whether any union organiz-
ers had been in contact with employees at Press II, a
fact that DeLong, in answering, readily acknowl-
edged. The Administrative Law Judge erroneously
did not find this inquiry unlawful because DeLong
was not asked whether he or other employees were
involved in union activities. We find the suggested
distinction to be meaningless. Whether directed to
union activities in general or at DeLong's or others'
personal involvement in the union organizational
drive, the interrogation was not made for a permissi-
ble purpose and was not accompanied by assurances
against reprisals.4 Furthermore, it called for an an-
swer which encompassed the union activities of De-
Long and his fellow employees.5 Accordingly, we
find the violation as alleged.
Likewise, we find, contrary to the Administrative
Law Judge, that Foreman Salyer's questioning of em-
ployee Brad Marlowe on February 13 constituted
unlawful interrogation. On that date, Marlowe en-
gaged in a conversation at the plant with laid-off em-
ployees Robert and Kathleen Lewis. After the con-
versation had ended and the Lewises had left, Salyer
approached Marlowe and asked him whether R.
Lewis had said anything to him about the Union, to
which the former replied negatively. Salyer then
asked Marlowe whether he had seen what was writ-
ten on the walls in the pressmen's toilet facilities, in-
dicating that he (Salyer) thought R. Lewis had done
it. The Administrative Law Judge did not find any
violation in this incident because he viewed Salyer's
conduct as an attempt to discover the author of cer-
tain prounion graffiti on the wall of the pressmen's
toilet facilities rather than an inquiry as to any
employee's union activities. We disagree. We see no
connection between Salyer's asking Marlowe wheth-
er a recently laid-off employee had discussed union
activity with him and his further questioning about
R. Lewis' being responsible for graffiti written on the
walls of the lavatory. Obviously, the two subject mat-
ters are totally unrelated. Hence, we conclude that, in
questioning Marlowe, Salyer was in fact concerned
with whether R. Lewis had tried to solicit support for
the Union. That being the case, we find the interro-
4 Webb Tractor and Equipment Company, 167 NLRB 383 (1967)
5Abex Corporation-Engineered Products Division, 162 NLRB 328 (1966)
225 NLRB No. 149
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation to be coercive and in violation of Section
8(a)(1) of the Act.6
2. Respondent operates two plants designated as
Press I and Press II. The main facility is Press I with
21 employees; Press II is leased and has a smaller
work force of 3 to 4 employees. On February 1, 3 to
4 days after union supporters began to solicit em-
ployees to sign union authorization cards, Respon-
dent laid off Press I employees Pascarellf, R. Lewis,
Richards, and Sills. Respondent also laid off the full-
time Press II work force consisting of DeLong, John-
son, and Gonzales and notified K. Lewis, wife of R.
Lewis and a part-time jobber at Press II, that no fur-
ther work would be assigned to her.' Despite the fact
that the layoffs took their greatest toll among the
employees who had solicited and/or signed union
authorization cards,' the Administrative Law Judge
found, as urged by Respondent, that the layoffs were
economically motivated and therefore did not violate
the Act. We find, however, for the reasons that fol-
low, that the evidence supports a contrary conclu-
sion.
The record establishes, and the Administrative
Law Judge found, that, on January 28, the Union be-
gan its organizational drive with a meeting attended
by employees DeLong, Gonzales, Pascarelli, and
Robert and Kathleen Lewis, all of whom signed au-
thorization cards and took additional cards to dis-
tribute to other employees. Following the meeting,
DeLong went to work and, in the presence of Press II
Foreman Hawkins, solicited employee Johnson's sig-
nature to a card. The next day, Pascarelli and R.
Lewis openly solicited employees, including Sills, to
sign authorization cards in the presence of other su-
pervisors. Pascarellf also solicited Press I Foreman
Milts to sign a card.
Meanwhile, Respondent's general manager, Ac-
hord, learned of the employees' union activity on
January 28 when employee Wirges informed him
that Pascarellf was distributing authorization cards
for the Union. In response to that information, Ac-
hord immediately called a meeting of all department
managers and informed them that a union campaign
was underway. As described previously he then
called employee Waldie into his office where he coer-
cively interrogated her about other employees' union
activities. During their meeting, he also created the
impression that the employees' activities were under
the unlawful surveillance of Respondent. The next
day, Trousch unlawfully questioned DeLong about
6 Id
7 Respondent also laid off Press I Supervisor Milts and Press 11 Supervi-
sor Hawkins
8 No charges were filed concerning the layoffs of Sills and Richards, and
their layoffs are not alleged to be in violation of the Act in the complaint
While the record establishes that Sills signed an authorization card, the
record does not indicate whether or not Richards signed one
the union activities at Press II, and on February 1, in
telling DeLong, Johnson, and Gonzales of their lay-
offs, illegally advised them that they would not be
recalled unless they refrained from engaging in fur-
ther union activities. In addition, it is uncontroverted
in the record, although not found by the Administra-
tive Law Judge, that Respondent's general foreman,
Rayburn, told Milts that he suspected R. Lewis and
Gonzales of distributing authorization cards.
The credible evidence establishes, as found by the
Administrative Law Judge, that no layoffs had been
decided upon prior to the time the union campaign
began. Within 2 days of the inception of the Union's
organizational efforts, however, Achord and Taxel,
his superior,9 met and decided that a layoff, effective
February 1, was required, allegedly for economic
reasons. We find that by then, January 30, Respon-
dent knew that DeLong, Pascarelli, and R. Lewis
were distributing union authorization cards and sus-
pected Gonzales of doing the same. We also find that
it knew that Johnson had signed a card for the
Union. As for K. Lewis, in light of her relationship to
R. Lewis, a known supporter of the Union, the small
size of the pressroom, and Respondent's knowledge
that the Union's efforts to organize the other employ-
ees employed at Press II were completely successful,
we conclude that there is a firm basis for inferring
that Respondent at the least suspected her of sup-
porting the Union, if in fact it did not know that to
be the case,10 We so find.
In view of the foregoing, it is clear that all the
elements are present for finding that the layoffs of
the six alleged discriminatees were motivated sub-
stantially by their union activities. Thus, there is the
precipitous nature and timing of the layoffs; the se-
lection of employees for layoff, most of whom were
known adherents of the Union; Respondent's dem-
onstrated union animus as evidenced by coercive in-
terrogations; the impression of surveillance, and in
particular, Trousch's unlawful admonition to the
three full-time Press II employees to forego their
union activities if they wanted to be recalled; and
lastly, our conclusion, for the reasons set forth below,
that Respondent's asserted economic defense cannot
withstand close scrutiny. For all these reasons, we
find, contrary to the Administrative Law Judge, that
Respondent laid off the six alleged discriminatees in
part, if not entirely, to thwart the Union's budding
organizational drive by eliminating from its payroll
for various periods of time those employees who it
9 Respondent was controlled by Harte-Hanks, an enterprise based in Tex-
as Taxel headed Harte-Hanks ' operations in San Diego , where Respondent
is located
10 Consequently, we find no merit to Respondent 's contention that the
inclusion among the laid-off employees of K Lewis , whose union sympa-
thies purportedly were unknown to it, indicates the absence of a discrimina-
tory motive for all of the layoffs
PUBLISHERS ' OFFSET, INC 1047
knew were, or were suspected of being, active partici-
pants in the nascent union campaign.
As noted, we find unpersuasive the evidence pre-
sented by Respondent in support of its defense that
the layoffs were justified by valid economic consider-
ations. Granted, Respondent appears to have experi-
enced some decline in business in the latter part of
1974 and the early part of 1975. Nevertheless, we
deem it significant that Respondent took no steps to
lay off any of its employees until after the com-
mencement of the employees' organizational cam-
paign on January 28. Thus, in December 1974, it was
directed to devise means to reduce costs for the first
quarter of 1975, and one of the plans submitted
called for a reduction of work force and the closing
of Press II. But the latter plan was not then imple-
mented, although other cost-saving measures not di-
rectly involving Respondent's Press I and Press II
operations were instituted. In addition, while Re-
spondent experienced a further decline in business
on or about January 20, when one of its customers,
K-Mart, reduced its orders by one-half, there is no
evidence that Respondent contemplated any layoff
measures at that time. Indeed, 10 days went by be-
fore any decision was made to lay off employees in
Press I and II. No explanation in purely economic
terms has been offered for this lapse in time between
the partial reduction of the K-Mart account and
Respondent's acting to compensate for it by deciding
to reduce its work force. In contrast, the advent of
the Union on the scene and the alleged discrimina-
tees' open and active support for it supply an imme-
diate and plausible basis for Respondent reaching a
decision to lay off the pressroom employees when it
did. These events and their proximity to the layoff
decision, i.e., within 2 days thereof, strongly imply
that the layoffs in question were discriminatorily mo-
tivated-an implication which gains further credence
when considered in the context of Respondent's
other concurrent unfair labor practices. In short, Re-
spondent did not display pressing concern over the
reduction in its business created by K-Mart's cut-
back in orders until the Union made its appearance,
at which time the layoffs in question suddenly were
deemed an economic necessity.
Furthermore, the evidence does not bear out
Respondent's assertion that the layoffs were an eco-
nomic necessity on February 1. First, the conflicts in
the testimony of Taxel and Achord, as to when and
why the decline in Respondent's economic fortunes
became such as to require a layoff, are irreconcilable
and in the end serve to discredit that assertion. In
spite of the fact that these two representatives togeth-
er made the decision, their versions vary signifi-
cantly. Taxel testified that Respondent experienced a
general decline in business prior to January 3, and
that it was on that date, the third, that he and Ac-
hord decided to lay off nine pressroom employees
and close Press II. Achord's testimony, however, tied
the layoff decision to the reduction in business with
K-Mart, which did not happen until January 20, and
he fixed the date of that decision as January 30.
Achord's version was credited by the Administrative
Law Judge, Taxel's was not. But that credibility reso-
lution does not explain, nor can it, why the testimony
of these two men is so divergent as to suggest that
each was talking about a different layoff. Nor does
the crediting of Achord in this regard rehabilitate
Respondent's economic claims. The deficiency inher-
ent in Achord's version of events, i.e., the delay be-
tween the economic loss and the decision to lay off
employees, has already been exposed above. And
had Taxel's testimony been credited instead, this de-
ficiency in Respondent's asserted defense would
have become all the more pronounced and inexplica-
ble. For the anomaly of a layoff occurring almost a
month after the decision and the events which osten-
sibly precipitated it is self-evident and needs no fur-
ther elaboration.
Similarly, the reasons given the employees by
Trousch in laying them off do not square either with
Achord's accepted version or other record facts.
Trousch had been assigned the task of selecting the
pressroom employees to be laid off. He told them
that the economic downturn was due not only to K-
Mart's reducing its orders, but also to other custom-
ers such as Sears and McMahan cutting back or ter-
minating their accounts as well. Trousch did not
specify when these other losses occurred; Achord,
however, in his testimony concerning the reasons for
the layoff drew no connection between it and the
Sears or McMahan accounts, and neither the exten-
sive documentary evidence relating to Respondent's
economic defense nor the statements of any others
called to testify herein establish that Respondent in-
curred any losses with regard to those two customers.
Consequently, we find that Trousch's statements
only further serve to make the testimony of
Respondent's witnesses the more suspect and uncon-
vincing concerning the alleged economic necessity
for the layoffs on February 1.
Second, contrary to the finding of the Administra-
tive Law Judge, the record does not demonstrate that
Respondent's economic situation declined after the
layoffs through and beyond the first quarter of 1975.
The net profits remained essentially unchanged from
January through February, and increased by about
$7,000 in March, albeit they decreased again in April
and May by $14,000 and $5,000, respectively. Like-
wise, Respondent's general revenues improved in the
first quarter of 1975, from $277,802 in January to
$340,678 in March, before going down to $314,583 in
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April, $304,125 in May, and.$254,335 in June. Fur-
thermore, the volume of newsprint consumed by Re-
spondent in February, March, April, and May sub-
stantially increased over that used in January.
Finally, in finding that Respondent's economic
picture had not improved after February 1 but had
remained in a state of deterioration-a finding with
which Respondent takes no exception-the Adminis-
trative Law Judge appears to have overlooked the
fact that, within 3 to 5 months of their layoffs, Re-
spondent recalled all of the laid-off employees except
DeLong who had moved out of the State. Surely
their recall, beginning with Pascarelli's around the
middle of May, followed by Gonzales' for I week the
latter part of that month, Johnson's in June, R. Lew-
is' in late June or early July, and K. Lewis' in July,
appears to be inconsistent with Respondent's contin-
ued poor business fortunes, particularly at those
times. For example, whereas its net profits went up in
March, they thereafter decreased substantially in
April and May; whereas its general revenues in the
months of February, March, April, and May were
above those of January; in June, when Johnson was
recalled and perhaps R. Lewis, such revenues
dropped below January's. And consumption of news-
print in June was about the same as in January. Even
May's figures in these two areas, while higher in each
case than January's, show a substantial decline from
March and April, respectively. Thus, the reinstate-
ment of the laid-off employees when Respondent's
economic outlook was virtually the same as in Janu-
ary or again in decline raises the question of how
Respondent could afford in May, June, and July
what it could not in January and leads us to conclude
that the layoffs were made for reasons other than
purely economic ones.
Consequently, although Respondent may have had
some contingency plan to lay off employees and
close Press II, and notwithstanding a decline in its
business most notably on January 20, we find that
Respondent has failed to explain satisfactorily why it
did not decide to make any layoffs until January 30,
only 2 days after it had learned of the Union's orga-
nizational campaign and shortly after it had de-
termined the identity of its leading adherents. As pre-
viously indicated, the latter events give rise to the
inference, which has not been rebutted here, that the
presence of the Union and the employees' active sup-
port of it triggered their layoffs. In any event,
Trousch's warning to three of the laid-off employees
to the effect that they would be reinstated only if
they abandoned their support for the Union provides
direct evidence that union activity was a moving
force behind the layoffs and belies Respondent's as-
sertion that such were made wholly for economic
reasons. For it indicates that Respondent specifically
selected these employees for layoff because of their
known or presumed roles in the unionization drive.
Therefore, we find that whatever part Respon-
dent's economic situation might have played in its
decision to lay off the six alleged discriminatees the
immediate circumstances surrounding the layoffs es-
tablish that Respondent was primarily motivated by
their organizational activities." Accordingly, we find
that Respondent seized upon its economic situation
of the preceding 2 months as a means of seeking to
effectuate the layoff of leading union adherents,12
and, consequently, their layoffs violated Section
8(a)(3) of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3,
5, 6, and 8, respectively, in the Administrative Law
Judge's Decision:
"3. The Company violated Section 8(a)(1) and (3)
of the Act in its layoff of DeLong, Gonzales, Johnson,
R. Lewis, and Pascarelli on February 1 and its failure
to employ K. Lewis as a part-time employee after that
date.
"5. Achord's remarks to Waldie on January 28,1975,
created the impression he was maintaining surveillance
of company employees' union activities.
"6. Trousch's question to DeLong on January 29
concerning whether union organizers had contacted
employees at Press II constituted an unlawful interro-
gation of DeLong in violation of Section 8(a)(1) of the
Act.
"8. Salyer's asking of Marlowe on February 13
whether R. Lewis said anything about the Union consti-
tuted an unlawful interrogation of Marlowe concerning
his and other employees' union activities and thus
violated Section 8(a)(1) of the Act."
THE REMEDY
In order to effectuate the policies of the Act, it is
necessary that Respondent be ordered to cease and
desist from the unfair labor practices found above and
from any other invasions of its employees' rights under
Section 7 of the Act; to take certain affirmative action,
11 In so finding, we have treated Respondent's refusal on February 1 to
employ K Lewis as a layoff
We do not attach any significance to the absence of any allegation in
the complaint concerning the layoff of Sills who had signed a union authori-
zation card We are concerned in this proceeding only with the allegations
of discrimination against the individuals named in the complaint and our
Order is effective only as to those individuals Contrary to the position of
Respondent, we find it purely speculative, on the record before us, to de-
termine the reason for the absence of any allegations concerning Sills' layoff
and, accordingly , we are unable to attach any adverse inference thereto
Similarly , we are not disposed to place any great weight on the absence of
Richards from the complaint The record does not reveal whether he did or
did not engage in union activities , and the issue was not litigated by the
parties In these circumstances , that he was or was not laid off has little or
no bearing on the question of whether the layoffs in issue were lawful or
not
PUBLISHERS' OFFSET, INC. 1049
including, to the extent not done so, offering reinstate-
ment to Stephen DeLong, Robert Pascarelli, Manuel
Gonzales, Robert Lewis, Kathleen Lewis, and David
Johnson to their former or substantially equivalent
positions of employment without loss of seniority or
other rights, as well as the payment of backpay for
earnings lost by them as a result of the layoffs and/or
the refusal to assign work to them. The amount of
backpay to be due them is to be determined in the
compliance stage of this proceeding. Backpay shall be
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Publishers' Offset, Inc., San Diego, California, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
union activities or the union activities of other em-
ployees, creating the impression of surveillance of the
union activities of employees, and making either
veiled or direct threats to take economic reprisals
against employees unless they refrain from support
of the International Printing and Graphic Communi-
cations Union, or any other labor organization.
(b) Discouraging membership in International
Printing and Graphic Communications Union, or
any other labor organization, by laying off or other-
wise discriminating against any employee with re-
spect to hire, tenure, or any other term or condition
of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Stephen DeLong, Robert Pascarelli,
Manuel Gonzales, Robert Lewis, Kathleen Lewis,
and David Johnson to the extent not done so, rein-
statement to their former jobs or, if they no longer
exist, to substantially equivalent fobs, without preju-
dice to their seniority and other rights and privileges,
and make them whole in the manner described in the
Remedy section of this decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due.
(c) Post at its premises copies of the attached no-
tice marked "Appendix." 13 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that such
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning the activities of other employees on
behalf of International Printing Graphic Com-
munications Union, or any other labor
organization.
WE WILL NOT, either by implication or directly,
threaten our employees with economic reprisal
unless they refrain from support of the above or
any other labor organization.
WE WILL NOT create the impression of surveil-
lance of the union activities of our employees.
WE WILL NOT discourage membership in Inter-
national Printing and Graphic Communications
Union, or any other labor organization, by lay-
ing off employees or otherwise discriminating
against them because of their union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed in Section 7 of the
Act.
WE WILL offer Stephen DeLong, Robert Pas-
carelli, Manuel Gonzales, Robert Lewis, Kath-
leen Lewis, and David Johnson, to the extent we
have not already done so, full reinstatement to
their former jobs and WE WILL make them whole
for any wage losses they may have suffered as a
result of our discrimination against them.
PUBLISHERS' OFFSET, INC.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
August 27, 1975,' I conducted a hearing at San Diego, Cal-
ifornia, to hear issues raised by a complaint issued on April
15 pursuant to a charge and amended charge filed by the
Union on February 5 and April 14, rrespectively.
The complaint alleged that Publishers' Offset, Inc., here-
inafter called the Company, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended (here-
after called the Act), by discharging and failing or refusing
to recall six of its employees because they engaged in con-
certed activities protected under the Act. The complaint
further alleged the Company committed independent vio-
lations of Section 8(a)(1) of the Act on Januuary 28 and 29
and February 1 and 13.
The Company denied it committed the acts alleged as
independent violations of Section 8(a)(1) of the Act; stated
it laid off rather than discharged the six employees on Feb-
ruary 1 and has since recalled them; and denied it laid the
six off for engaging in concerted activities protected under
the Act.
The issues are whether the Company:
1. Committed the various acts alleged as independent
violations of Section 8(a)(1) of the Act and thereby violat-
ed the Act.
2. Laid off or terminated six employees for engaging in
concerted activities protected under the Act or for cause.
3. Failed or refused to recall the six.
The parties appeared by counsel at the hearing, were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Company.
Based upon my review of the entire record,2 observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
the Company at all times pertinent was an employer en-
gaged in commerce and in a business affecting commerce
and International Printing and Graphic Communications
Union, hereinafter called the Union, was a labor organiza-
tion, as those terms are defined in Section 2(2), (5), (6), and
(7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At times pertinent to this proceeding, the Company and
the San Diego Publishing Company were separate compa-
nies controlled by Harte-Hanks Newspapers, headquar-
tered in San Antonio, Texas. All printing of the six Harte-
' Read 1975 after all future date references omitting the year
2 Certain errors in the transcript have been noted and corrected
Hanks newspapers and printing of certain publications for
merchants in the area were performed by the Company at
5060 Convoy Street, San Diego (Press I), and 348 W. Mar-
ket Street, San Diego (Press II).
Press II was acquired by the Company by lease agree-
ment in May 1974 from its former owner, Charles Haw-
kins, who operated Press II under the name Western Offset
Company. At the time the Company leased Press II from
Hawkins, it hired him as general foreman at Press II and
also hired Hawkins' employees-Russ Salyer (foreman/
press operator), Robert Lewis (apprentice), and Manuel
Gonzales (jobber). The Company later hired David John-
son (apprentice) and Stephen DeLong ( assistant press op-
erator) at Press II.
Prior to the Company's acquisition and operation of
Press II, the United Steelworkers Union of America was
decertified as the collective-bargaining representative of
the Company's pressroom and other employees.
B. The Union's Organizational Campaign
DeLong contacted the Union in late December 1974,
with a view towards securing representation for the
Company's pressroom employees. A union representative
(William Torrance) suggested DeLong contact other em-
ployees to see if they were interested in union representa-
tion and, if so, to then meet with him. DeLong contacted a
number of employees, ascertained they were interested in
union representation, and arranged to meet with Torrance
on January 28. The January 28 meeting was attended by
Torrance, DeLong, Gonzales, Robert Pascarelli, and Rob-
ert and Kathleen Lewis.3 Torrance explained the advan-
tages of union representation and asked those attending
the meeting to sign cards authorizing the Union to act as
their representative for the purpose of bargaining collec-
tively with the Company concerning their rates of pay,
wages, hours, and working conditions. The five employees
in attendance at the meeting signed the cards and gave
them to Torrance Torrance then asked the five to take
blank authorization cards and secure the signatures of their
fellow employees. They agreed to do so and took the cards.
DeLong, R. Lewis, and Pascarelli began soliciting signa-
tures to the cards the same day and secured the signatures
of Johnson, William Sills (a journeyman press operator at
Press I), and Michael Milts (a foreman/press operator at
Press I). DeLong openly solicited signatures at Press II in
the presence of the general foreman, Hawkins; R. Lewis
and Pascarelli openly solicited signatures at Press I, includ-
ing solicitation of one of the foremen, Milts.
C. The Alleged January 28 Violation of Section 8(a)(1)
Chester Achord, the Company's general manager,' re-
ceived a report from employee John Wirges at approxi-
mately 2 p.m. on January 28 that Pascarelli had solicited
him to sign a union authorization card and encouraged
Wirges not to sign the card.
Achord immediately called a meeting of all department
managers, told them a union organizational drive was un-
3 Kathleen Lewis was employed at Press II on a part-time basis as a
bobber, Pascarelli was employed at Press I as a journeyman press operator
4 An admitted supervisor and agent of the Company acting on its behalf
at all time pertinent
PUBLISHERS' OFFSET, INC 1051
derway, and passed out a guide for supervisors and manag-
ers to follow during a union organizational drive. He told
the managers to read and comply with the guide.
Achord then called Nancy Waldie, a proofreader, into
his office.5 Achord testified he told Waldie union authori-
zation cards were being circulated in the plant, it looked
like the Company was facing another election, and urged
Waldie not to sign a card or support the union organiza-
tional drive. Waldie testified Achord asked her if any
union authorization cards were being circulated in the
composing room, that she replied she did not know of any
such circulation, no one had approached her; Achord then
stated he thought Jeanette Cochran, a proofreader, was cir-
culating the cards; she replied she doubted it, since Coch-
ran had never previously been interested in union activi-
ties; Achord then stated he didn't want the same thing to
happen that happened the last time; and she replied she
agreed.
I credit Waldie's testimony. She was a direct, forthright
witness with a clear recollection of the conversation in
question, while Achord's testimony was neither as precise
nor direct.
I therefore find and conclude that the Company, by Ac-
hord, on January 28, interrogated an employee, Waldie,
concerning another employee's union activities and there-
by violated Section 8(a)(l) of the Act.
D. The Alleged January 29 Violation of Section 8(a)(1)
DeLong went to Press I on January 29 and solicited em-
ployees there to sign union authorization cards; while he
was at Press I, he went into offices shared by William
Trousch, the Company's postpress production manager,
and Paul Rayburn, the Company's general foreman at
Press 1.1 Trousch asked him if any union organizers had
been in contact with the employees at Press II, to which he
replied in the affirmative.7
I find this brief and casual exchange insufficient basis
for a finding that Trousch interrogated DeLong concern-
ing his and other employees' union activities; Trousch was
curious about whether the Union's organizational cam-
paign had extended to Press II and merely asked DeLong
if a union organizer had been there contacting the employ-
ees and not whether DeLong or any other employees were
involved in union activities.
I therefore shall recommend dismissal of those portions
of the complaint alleging Trousch's January 29 questioning
of DeLong constituted an unlawful interrogation in viola-
tion of Section 8(a)(1) of the Act.
E. The Alleged February 1 Violation of Section 8(a)(1)
On Saturday, February 1, Trousch met with Johnson,
DeLong, and Gonzales after they concluded their work
5 Waldte had been secretary-treasurer and shop steward of the Steelwork-
ers Union prior to its 1974 decertification as representative of the
Company's employees, following such decertification, Waldie continued to
bring employee complaints to Achord for attempted resolution, and he con-
ferred with her from time to time regarding personnel problems
6 Both were admitted supervisors and agents of the Company acting on its
behalf at all times pertinent
r Trousch corroborated DeLong's testimony to this exchange between
them
shift that day. Trousch began with a comment he presumed
they knew why he was there, while handing them their
paychecks.'
DeLong testified he then asked Trousch why they were
being laid off; Trousch replied the Company had lost the
Sears and K-Mart accounts and the McMahan run was
shaky;9 he then asked Trousch when they would get their
jobs back; Trousch replied he didn't know, but the Compa-
ny would not contest their receipt of unemployment com-
pensation; he then asked Trousch whether they were being
laid off because of the union campaign, and while Trousch
made no immediate reply, he later stated, "If you guys go
along with us, you will probably be all right and get your
jobs back in a couple of weeks and if you don't, you'll
lose."
Johnson corroborated DeLong's testimony that Trousch
attributed the layoff to the lost accounts, and testified that
when DeLong asked Trousch when they were going to get
their jobs back and whether their layoff was due to the
union campaign, Trousch replied with advice for them not
to do anything to Jeopardize their Jobs.
Gonzales corroborated DeLong's testimony almost en-
tirely, testifying, with regard to the key remark attributed
to Trousch by DeLong, that Trousch said if the employees
went along with the Company, they would get their jobs
back in a couple of weeks; they would be foolish to fight
the Company; and if they went along with the Company,
they would be all right.
Trousch testified that he explained to the men the layoff
was an economic layoff due to the loss of the runs noted
heretofore, that he stated he couldn't see any immediate
recall, it looked like business activity was going to be slow
for some time. He testified he advised the employees the
Company would not contest their receipt of unemployment
benefits and that he told them he had telephoned almost all
the printing firms in San Diego County to see if he could
secure work for them but had not been successful . He stat-
ed that when some of them expressed their belief the layoff
was due to the union campaign, he explained that was not
true, it was due to economic conditions. He neither con-
firmed nor denied telling the men if they "went along" with
the Company, they would get their jobs back in a few
weeks and be all right, but would "lose" if they did not.
I credit the mutually corroborative testimony of De-
Long, Johnson, and Gonzales. I therefore find and con-
clude that on Saturday, February 1, Trousch told DeLong,
Johnson, and Gonzales that they would probably be all
right and get their jobs back in a couple of weeks if they
went along with the Company but would lose if they did
not go along with the Company.
Trousch's remark is somewhat ambiguous, but certainly
seems to imply the employees risked loss of recall if they
didn't "go along with" the Company. In the context of the
previous question (whether their layoff was attributable to
the union campaign), I am inclined to find that Trousch
B The shift ended at Press II at approximately 6 to 6.30 p in , the Compa-
ny had previously laid off R Lewis and Pascarelli at Press I on the comple-
tion of their (graveyard) shift K Lewis telephoned DeLong in the morning
to tell him about the layoff of the graveyard shift at Press I
e These three accounts formed the major portion of the work performed
at Press 11
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was conveying a veiled threat the employees would not be
recalled if they persisted in seeking union representation.
I therefore find aisd conclude that the Company, by
Trousch , on February 1, violated Section 8(a)(1) of the Act
by threatening its employees with loss of recall unless they
refrained from continued union support and activity.
F. The Alleged 8(a)(1) and (3) Violation-the February 1
Layoffs
The evidence establishes the Company had ample justifi-
cation for reducing its work force , and thereby reducing its
labor costs, in early 1975.
The Texas corporate offices of the Harte-Hanks chain
were advising local managements throughout the last quar-
ter of 1974 concerning the general dropoff in corporate
revenues due to declining business and suggesting the van-
ous departments or divisions plan to lower costs.
These advisory letters and bulletins from the Texas cor-
porate offices culminated in a December 9, 1974, directive
to the San Diego divisions and departments from Harte-
Hanks president (Robert Marbut) directing the depart-
ments or divisions to devise specific measures to reduce
costs during the first quarter of 1975 and advise him of
their specific plans by December 30.
Immediately upon receipt of the directive , the head of
the Harte-Hanks San Diego operations , Harold Taxel, had
Robert Cairns , his planning director and accountant, sub-
mit plans for cost reductions . Cairns proposed , inter alia, a
shutdown of Press II and layoff of its work force as well as
layoffs in other portions of the Company's operations.
On December 13, the management of the various divi-
sions and departments in San Diego met and reviewed the
budgets for the first quarter of 1975 with a view toward
revision thereof . It was decided to advance the dates for
rate increases at several of the publications ; to reduce the
circulation of one paper ; to change to a cheaper format at
another paper; to cancel planned salary /wage increases
and increases in fringes ; and to reduce the managerial, pro-
duction , and maintenance staff as conditions warranted.
Some of the planned reductions in management staff
were made in December by attrition; on her resignation in
December 1974, the assistant of the general manager was
not replaced and the position was abolished ; on the resig-
nation of two area supervisors at Press I in December 1974,
no replacements were hired and the positions were abol-
ished ; on the resignation of the assistant plate/camera
foreman at Press I on or about January 1, no replacement
was hired and the position was abolished . In addition, the
hours of work in the composing room was reduced by 220
hours per week by reducing full-time employees from 40 to
30 or 20 hours per week.
As of January 1, Press II was running approximately 40
hours per week . Its major production was printing advertis-
ing circulars for major retail chains, that is, Sears Roebuck,
K-Mart , McMahans Furniture Company, and Walker-
Scott Company . Of the 40 hours per week , 32 were utilized
in printing the K-Mart advertising circular.
During January , the amount of punting work declined
precipitously . The size of the newspapers dropped due to
reductions in advertising and other material ; on January
20, K-Mart notified the Company it was going to a biweek-
ly printing rather than a weekly printing of its advertising
circular and a smaller run; other commercial work also
declined.
On January 30, Taxel met with Achord and the two de-
cided Press I could do all the printing work still being pro-
cessed. They decided to implement Cairns' recommenda-
tion to shut down Press II and to lay off nine pressroom
employees. Trousch was assigned the task of deciding
which pressroom employees would be laid off.
At that time, there were 5 supervisory employees and 24
nonsupervisory employees in the pressroom. There were 3
nonsupervisory employees and I supervisory employee
working at Press II and 21 nonsupervisory employees and
4 supervisory employees working at Press I.
Trousch decided to lay off all the employees then em-
ployed at Press II; namely, Hawkins (supervisory), De-
Long, Johnson, and Gonzales. As a natural consequence,
no further work was assigned to K. Lewis, who worked on
call at Press II on a part-time basis as a jobber. One super-
visory employee at Press I (Milts) and four nonsupervisory
employees were laid off at Press I (Sills, Pascarelli, R. Lew-
is, and Richards)."
DeLong was the junior employee in his classification (as-
sistant operator). Pascarelli was the junior employee in his
classification (journeyman press operator). R. Lewis, John-
son, and Richards were the three junior employees in their
classification (apprentice). Sills was the senior employee in
his classification (journeyman press operator) and Gon-
zales was fifth in seniority (of 11 employees) in his classifi-
cation (jobber)
Trousch testified he laid off the employees in question in
order to make a balanced reduction in the staff and max-
imize cost savings. He testified he generally followed se-
niority, but did not do so in Gonzales' case, because Gon-
zales had always been employed exclusively at Press II,
which was shut down, and because he was an unreliable
employee (frequent absences, etc.). He testified he laid off
Sills out of classification seniority because he thought the
second in seniority, Reynolds, was a more efficient em-
ployee than the other two.ti
The record establishes all the nonsupervisory employees
laid off except Richards were signatories to union authori-
zation cards prior to their layoff. The record neither estab-
lishes whether Richards signed a card nor how many of the
retained employees signed authorization cards.12
The record demonstrated the Company's fortunes con-
tinued to decline following the layoff through and beyond
the first quarter of 1975, both on the basis of the amount of
newsprint consumed and the net profits realized during the
months in question.
10 Richards was classified as an apprentice and worked as a warehouse-
man
11 There were only three journeymen press operators Sills, Reynolds, and
Pascarelh The General Counsel did not allege Sills' layoff was discrimina-
tory but that Pascarelli's was, even though both Sills and Pascarelh signed
union authorization cards
12 From the fact the Union received 18 of the 46 votes cast in a subse-
quent election, it is reasonable to surmise employees other than the six
alleged discrimmatees, Sills, and Richards signed authorization cards for the
Union In any event, the record is inconclusive on this point
PUBLISHERS ' OFFSET, INC. 1053
While the timing and selection of employees for layoff
appear suspect on their face,13 the economic evidence
strongly supports the finding I made at the outset of this
section of the Decision; namely, that the Company had
ample economic justification for reducing its work force
and labor costs and doing so when (January-February) and
where (in the pressroom) it did. With reference to employ-
ee selection , Trousch's selections appear reasonable (junior
employees, with two exceptions, and no complaint by the
General Counsel over one of the senior employee/signato-
ries, Sills).
On the basis of the foregoing, I find and conclude the
General Counsel failed to meet his burden of proving, by a
preponderance of the evidence, the Company was motivat-
ed by the union activities of some of the laid off employees
in laying them off.
I therefore shall recommend dismissal of those portions
of the complaint so alleging. Having so found, I find it
unnecessary to resolve the issue of whether or not the
Company failed or refused to recall the six alleged discrim-
inatees.
G. The Alleged February 13 Violation of Section 8(a)(1)
Brad Marlowe, an employee in the press/camera room,
testified on the evening of February 13, R. and K. Lewis
came to Press I and engaged him in conversation and that
after they left, Russ Salyer, a foreman in the pressroom at
Press I, asked him whether R Lewis said anything to him
about the Union, to which he replied no. Marlowe testified
Salyer then asked him whether he saw what was written in
the pressmen's head, he again replied no, and Salyer closed
the conversation with the statement he believed R. Lewis
wrote on the walls in the pressmen's head.
Marlowe's testimony was uncontradicted and is credited.
The General Counsel contends Salyer's first question
was an unlawful interrogation concerning Marlowe and
other employees' union activities. I do not agree. It is ap-
parent something concerning the union campaign was writ-
ten on the wall of the pressmen's toilet facilities, Salyer
suspected R. Lewis, at that time an exemployee, wrote it
and sought verification from Marlowe. It is also apparent
that Salyer did not ask Marlowe either his views or the
views of any other employees concerning union representa-
tion. I therefore shall recommend dismissal of those por-
tions of the complaint so alleging.
Company; Trousch, the postpress production manager of
the Company; Russ Salyer, a foreman at Press I; Paul
Rayburn, the Company' s general foreman at Press I;
Charles Hawkins, the Company's general foreman at Press
II; and Michael Milts, a foreman at Press I, were supervi-
sors and agents of the Company acting on its behalf.
3. The Company did not violate Section 8(a)(1) and (3)
of the Act in its layoff of DeLong, Gonzales, Johnson, R.
Lewis, and Pascarelli on February 1 and its failure to em-
ploy K Lewis as a part-time employee after that date.
4. On January 28 the Company, by Achord, violated
Section 8(a)(1) of the Act by questioning employee Waldie
concerning the union activities of other company employ-
ees.
5. Achord's remarks to Waldie on January 28, 1975, did
not create the impression he was maintaining a surveillance
of company employees' union activities.
6. Trousch's question to DeLong on January 29 con-
cerning whether union organizers had contacted employees
at Press II did not constitute an unlawful interrogation of
DeLong in violation of Section 8(a)(1) of the Act.
7. Trousch's remarks to DeLong, Johnson, and Gon-
zales at Press II on February 1 contained a veiled threat
they would not be recalled if they continued to support the
Union and therefore violated Section 8(a)(1) of the Act.
8. Salyer's asking of Marlowe on February 13 whether
R. Lewis said anything about the Union was not an unlaw-
ful interrogation of Marlowe concerning his and other em-
ployees' union activities and thus did not violate Section
8(a)(1) of the Act.
9. The above unfair labor practices affect interstate
commerce as defined in the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section II,
above, occurring in connection with the operations of the
Company described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Taxel, the president of the pub-
lishing company; Achord, the general manager of the
13 The layoff took place 3-4 days after union supporters began to solicit
employees to sign authorizations cards and the layoff took its greatest toll
among the pressroom employees who engaged in those solicitations
Having found the Company engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend the Company be directed to cease and desist
therefrom and take affirmative action designed to effectu-
ate the purposes of the Act.
It shall be recommended the Company be ordered to
cease and desist from interrogating its employees concern-
ing the union activities of other employees, to cease and
desist from threatening them with economic reprisal unless
they refrain from support of the Union, and to post notices
to that effect.
[Recommended Order omitted from publication.]