Publishers Printing Co.

National Labor Relations Board - Board Decisions

Feb 27, 1962

135 N.L.R.B. 1278 (N.L.R.B. 1962)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into consideration ' the physical capabilities of claimants in determining whether or
not they exercised due diligence in seeking work . American Bottling Company, 116
NLRB 1303 at page 1319 . The Board has further held on numerous occasions that
claimants need not accept interim employment where such employment necessitates
burdensome or unusual conditions.
The undenied and credible testimony shows that Kalloch was not qualified for
numerous types of employment , and physically unable to engage in other forms of
employment . However , the record established that despite these factors , the claim-
ant, during the backpay period , registered with the State unemployment office, and
made the necessary reports so as to be available for work . She also searched for
employment on her own, read the want ads, and personally visited several business
establishments seeking work . The Board 's decisions concerning an adequate search
for work , generally hold that an independent search for employment coupled with
registration at a State unemployment office is regarded as sufficient for the purpose
of backpay qualification . 13 In accordance with the above I find that Mary Kalloch
did exercise reasonable and due diligence in seeking work during the backpay period,
and I recommend that she be awarded the full amount of the net backpay for her
the sum of $ 1,697.
CONCLUSION AND RECOMMENDATION
Upon the foregoing findings, the Trial Examiner finds and concludes that the
employees listed hereunder are entitled to payment by Respondent of the sums
listed opposite their names.i3
Christy Alex-------------------------------------------------- $ 3,288
Mary Kalloch------------------------------------------------- 1,697
Eleanor F . Robinson------------------------------------------- 2,410
Richard A . St. Clair------------------------------------------- 3,442
It is recommended that the Board adopt the foregoing findings and conclusions.
12 I am unable to find any Board or court decision which requires that a claimant make
an Inquiry or application for each and every job possibility that might exist , or eventually
is shown to have existed , and there appears to be no contention of the same here.
33 Minus any tax withholdings required by Federal and State laws.
Publishers Printing Company and Louisville Printing Specialty
& Paper Products Union Local No. 561 , International Print-
ing Pressmen and Assistants ' Union of North America, AFL-.
CIO. Case No. 9-CA-2354. February 27, 1962
DECISION AND ORDER
On November 17, 1961, Trial Examiner John P. von Rohr issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent has engaged in and is engaging in,certain unfair labor
practices, and recommending that it cease and desist' therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of the complaint with respect thereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
135 NLRB No. 131.
PUBLISHERS PRINTING COMPANY 1279
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted
below.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Publishers Print-
ing Company, Shepherdsville, Kentucky, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their union feelings,
sympathies, and activities on behalf of Louisville Printing Specialty
& Paper Products Union Local No. 561, International Printing Press-
men and Assistants' Union of North America, AFL-CIO, in a manner
constituting interference, restraint, and coercion in violation of Sec-
tion 8(a) (1) of the Act.
(b) Threatening its employees that it will close the plant or sell its
equipment if the aforementioned Union becomes the employees' desig-
nated bargaining agent.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist Louisville Printing Spe-
cialty & Paper Products Union Local No. 561, International Printing
Pressmen and Assistants' Union of North America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
3 The modifications are as follows:
1. The Respondent contends , in its brief , that the Trial Examiner erred in crediting
the testimony of Porter Gibson concerning his visit with the union organizer , because
Gibson 's testimony is conflicting . We find no merit in Respondent 's contention as the
Trial Examiner 's findings, and his conclusions based thereon , are not clearly erroneous.
2. Contrary to the Trial Examiner, Member Rodgers would find nothing in the personal
interview between Frank E Simon, Respondent 's president , and employee Charles Brown,
constituting interference , restraint , or coercion within the meaning of Section 8 ( a) (1).
Accordingly , he would dismiss this allegation of the complaint.
3 We hereby correct the Trial Examiner 's finding at footnote 3 of the Intermediate
Report to conform to the record and to read : "During this conversation Simon also dis-
played a sample ballot and illustrated to Whitehead how to mark it if he intended to vote
either for the Respondent or for or against the Union."
4. No exceptions were filed to the Trial Examiner ' s findings that ( 1) the Respondent's
statements that orders would be lost if the Union got in, and ( 2) the statement by
Supervisor Lage to employee Brown that he hoped Brown was not soliciting for the Union
were not coercive . Accordingly , we hereby adopt these findings pro forma.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Shepherdsville, Kentucky, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its 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.
(b) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union
feelings and attitudes or activities on behalf of Louisville Print-
ing Specialty R Paper Products Union Local No. 561, Inter-
national Printing Pressmen and Assistants' Union of North
America, AFL-CIO, in a manner constituting interference, re-
strai nt, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees that we will close the
plant or sell our equipment if the Union becomes their designated
collective-bargaining agent.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist
Louisville Printing Specialty & Paper Products Union Local
No. 561, International Printing Pressmen and Assistants' Union
of North America, AFL-CIO, or any other labor organization,
PUBLISHERS PRINTING COMPANY 1281
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any all such activities, except to the extent
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as amended.
PUBLISIIERS PRINTING COMPANY,
Employer.
Dated---------------- By----------------'---------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Transit Bldg., 4th and Vine Streets, Cincinnati, Ohio, Tele-
phone Number Dunbar 1-1420, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat. 36 , 73 Stat. 519 ), herein called the Act , was heard before
Trial Examiner John P . von Rohr in Louisville , Kentucky , on September 19 and
20, 1961 . The complaint , issued by the General Counsel of the National Labor
Relations Board , and based on a charge duly filed and served , alleged that the Re-
spondent had engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act. In its answer , duly filed , the Respondent conceded the juris-
dictional allegations in the complaint but denied the commission of any of the
unfair labor practices alleged therein.
At the hearing all parties were afforded opportunity to be heard , to examine
and cross-examine witnesses , to introduce evidence , and to argue orally. Briefs
were submitted by the Respondent and the General Counsel and they have been
carefully considered.
Upon the entire record in this case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent , herein also called the Company, is a Kentucky corporation with
its plant located at Shepherdsville , Kentucky , where it is engaged in the printing
of trade magazines and other periodicals . During the last year the Respondent sold
and shipped products manufactured ' by it valued in excess of $50 ,000 to points and
places outside the State of Kentucky.
It is conceded , and I find , that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Louisville Printing Specialty & Paper Products Union Local No. 561 , Interna-
tional Printing Pressmen and Assistants ' Union of North America , AFL-CIO,
herein also called the Union , is a labor organization within the meaning of Section
2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The issue in this case is whether certain conduct engaged in by the Respondent's
president and certain of its supervisory employees during a union organizational
634449-62-vol. 135-82
:1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.campaign constituted interference, restraint, and coercion within the meaning of
Section 8(a)(1) of the Act. Insofar 'as the relevant background is concerned, the
record discloses that pursuant to a petition filed on June 8, 1961, the Respondent
and the Charging Union entered into a consent agreement on June 30 providing for
a Board-conducted election to be held among Respondent's production employees
.on July 8, 1961. The election, however, was postponed and it had not been held
as of the time of the hearing.
Frank E. Simon, Respondent's president, testified that upon receiving knowledge
that a representation petition had been filed he "prepared a plan of campaign look-
ing forward to the election." This campaign, according to Simon, consisted of
a series of five letters to the employees, one speech to the employees, and "a personal
interview with myself and each employee." The letters were sent to the employees
between June 28 and July 3; the speech was made to the employees by Simon
on June 30. While neither the letters nor Simon's speech contained any statements
-which exceed the bounds of free speech,' the communications nevertheless plainly
^^expressed Respondent's antipathy toward the Union .2
As indicated hereinafter there is evidence that certain of Respondent's supervisory
..employees also played a part in Respondent's campaign against the Union. But let
us first consider the allegation that Simon engaged in conduct violative of Section
8 (a) (1) in his personal interviews with employees.
As has been noted, Simon conceded that he personally interviewed all of the
..employees, of whom there were 58. These interviews took place approximately 1
week before the election. Simon testified that "I did those 58, I think, in 48 hours."
It is undisputed that the interviews were made singly and in private and that they
were held either in Simon's office, in the pressroom office, or in an office located
in the middle of the production area. It is also undisputed that these interviews
were initiated by Simon, the employees being summoned for interview one at a time
.,either by a supervisor or by another employee. Simon summarized the substance
of the interviews (which he said were made from a written outline) as a discussion
.of "the benefits that all the employees enjoyed at the present time, conditions of the
union contract, attitude of the customers, effects of the strike, of course the history
of the Company, and I ended each interview with a request that they give me a
vote of confidence on election Friday."
The General Counsel called seven employee witnesses to testify concerning, inter
-alia, their interviews with Simon. It will serve no purpose to set forth in detail their
versions as to everything that was said to them by Simon on the occasions in ques-
tion. Suffice it to say that these employees did not dispute that, in varying degrees,
:Simon spoke to them about "conditions" of a union, possible strikes, customer
-attitudes, and the company benefits which they presently enjoyed, in much the same
manner as testified to by Simon. Included in these discussions, however, were
certain statements and remarks made by Simon which the complaint alleges to be
.of the unfair labor practice type character in that they exceeded the scope of free
speech. We consider these now.
Porter Gibson, a pressman, testified without contradiction that during his inter-
view Simon asked if Union Organizer Bill Wise had come to see him. When
Gibson replied in the affirmative Simon proceeded to ask if another employee had
accompanied Simon. Gibson again replied in the affirmative but when Simon
then asked him to disclose the identity of this employee Gibson refused to do so.
Simon thereupon remarked, according to Gibson's undenied and credited testimony,
"Well, that's,all right, I think I know who he is anyway." Gibson further testified
that during the interview Simon referred to a strike that had occurred at the Re-
spondent's plant some 18 months earlier. Gibson credibly testified that in this
context Simon stated that if it came to the point where the men would vote the
Union in there would probably be a strike "which he would not accept" and that he
would close the shop before he would accept the Union. Concerning this latter
aspect of the conversation, Simon in substance conceded making the remark about
closing the plant. Thus, Simon testified, "I pointed out to Mr. Gibson that only
-management could change working conditions or improve them if it were possible,
1 The complaint does not allege any violation predicated upon either the speech or the
-letters
3 For example, one letter enclosed reproduced clippings of newspaper articles referring
to instances of criminal infiltration into labor organizations Enclosed in another com-
a munication was a letter from a former employee relating his "terrible experience" with
the, Charging Union . Further, in his speech to employees , Simon pointed out certain
.alleged deficiencies which the Union would , have' to • offer , including the statement that
"this union would, in essence drive a wedge between you and the company . . .
PUBLISHERS PRINTING COMPANY 1283
all the Union could do was threaten and then strike, and that before we would
be forced to compromise our good business principles . . . we would take a strike
and if forced close up the place." [Emphasis supplied.] Billy Whitehead, a print-
ing pressman , testified that his interview with Simon included the following: (1)
Questions by Simon as to how he felt about the Union and whether or not he had
been contacted by anyone from the Union, and (2) a statement by Simon, that "if
the Union did come in he would have a lot of equipment for sale ." Simon did not
deny the interrogations indicated in (1). As to (2), Simon's version was that he
told Whitehead that there "probably would be some equipment for sale" if "enough
of our customers left." However, and based in part upon Simon's admission
concerning the testimony of employee Henry Niephaus , which is discussed next, I
credit Whitehead's version of the latter aspect of the conversation.3 Concerning
his interview with Simon, employee Henry Niephaus testified, among other things,
that "I asked him [Simon] about a raise and he said the way things come in .. .
the factory would have to be shut down and we'd all be out of a job . . . because
he said the people he had the jobs with wouldn't stand for no union." Simon
conceded that the testimony of Niephaus as aforesaid was "very accurate." Elab-
orating further, Simon testified that "I did state [to Niephaus] that our customers
had repeatedly told me that if we were ever bothered with the Union situation they
would seek another source of supply immediately." Michael Knopp, a machine
operator, testified without contradiction that Simon began the interview with
Jiim by asking, "How do you feel about the Union, do you think it'll help you?"
Knopp testified further, and again without contradiction, that later in the conversa-
tion Simon told him that "if the Union should get in I would be low man in my
department." Gerald Davis testified, and Simon conceded, that during the interview
Simon on several occasions in effect inquired of his attitude toward the Union
by saying, "So you think we don't need a Union," and by stating that he "guessed"
he (Davis) had talked to a unionman. Simon concluded the interview with Davis
by offering to bet him a good cigar that the Union would not get over 10 votes.
Employee Charles Brown testified without denial that during the interview Simon
declared that the Union had cost him a thousand dollars already and probably
would cost him 10 times as much if voted in; that Simon asked what he thought
could be done to improve working conditions in the plant; and that if the pay-
scale in Louisville went up the Respondent would grant a raise also. Finally,
Joseph Gast testified that during his interview Simon stated to him, "Well, Joe, I'll
tell you one thing before that Union ever gets one foot in this door, catfish will
walk up Buckman Street." Simon conceded making the remark, but stated that he
had known Gast for many years and that the remark was made near the end of
the interview in "an effort to remove some seriousness at the moment."
In line with cases too numerous to cite,4 I find that the Respondent violated Sec-
tion 8(a) (1) of the Act by causing its employees to be systematically and separately
interviewed by its president within the confines of its offices where they were sub-
jected not only to company propaganda (which might have been legitimately dissemi-
nated by other means), but where they were also subjected to (a) interrogations con-
cerning their union activities and sympathies, and (b) threats to close the plant or to
sell Respondent's equipment in the event the plant was organized. Contrary to the
contention of the Respondent in its brief, I find that Simon's threats to close the plant
and sell the equipment were not "predictions over which he had no control and were
privileged under Section 8(a) of the Act." As seen from the credited testimony of
the witnesses above, Simon's statements went beyond a mere opinion or explanation
as to what might occur if the Union won the election but rather were flat statements
to the effect that neither Respondent nor its customers would accept the unionization
of Respondent's plant, failing which the plant would be closed precipitately or the
equipment sold.
In addition to the unfair labor practices found above, I also find the conduct of
certain of Respondent's supervisory employees at the plant in interrogating and
threatening employees concerning their union activities to be in further violation of
Section 8(a)(1).5 The specific instances which are so found occurred within a week
3 During this conversation Simon also displayed a sample ballot and illustrated to
Whitehead how to mark it if he intended to vote for the Respondent
* See, for example, Fleming Manufacturing Company, Inc, 119 NLRB 452; 1. C Sutton
Handle Factory, 119 NLRB 951; Clark & Lewi8 Co., 122 NLRB 865; Frank Sullivan and
Company, 133 NLRB 726
5 Contrary to the Respondent's assertion, it is quite apparent that the conduct herein
found to be in violation of Section 8(a)(1) is not isolated . Nor is the coercive char-
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or two before Simon's personal interviews with the individual employees and they
were either admitted or undenied in the testimony . These consist of the following:
(1) The statement of Robert Klumb , pressroom foreman of the night shift, to
employee Porter Gibson that Respondent 's president would fire him if he were caught
going to a union meeting; Klumb 's statement to employee Charles Brown that he
believed "Frank [ Simon] would close the shop rather than let a union come in"; and
Klumb's statement to employee Joseph Gast that "you know it would sort of.be a
good idea if you just kept your nose clean about everything and not [do] much
running around discussing this Union with the rest of the employees."
(2) The questioning of employee Michael Knapp by Foreman Calvin Glover as
to how he felt about the Union and Glover 's further statement to Knapp that if the
Union came in Simon would close the plant and make a skating rink out of it .6
Further, Glover 's statement to employee Gerald Davis that "if the Union was voted
in, Frank Simon would close the place down before he 'd sign a Union contract."
(3) The statement of Foreman Fred Heimerdinger to employee Gast that Simon
had told him ( Heimerdinger ) that Simon would close the doors of the plant if
the Union "got in."
(4) The statement of Foreman John Whitaker to employee Gast that it was his
opinion that "Frank would close the doors if the Union ever came into the plant."
There remains for disposition an allegation in the complaint that Respondent's
plant superintendent , Robert Lage , threatened an employee concerning his union
activities . Presumably this relates to the testimony of employee Charles Brown
that on one occasion Lage approached him and stated , "I hope you aren 't soliciting
for the Union ." Somewhat later in his testimony , and without identifying the
occasion or the circumstances , Brown testified that Lage told him that Simon would
never let a union come in the shope and that be believed Simon would close the plant
before accepting the Union . Lage conceded that he told Brown that he "hoped" that
Brown was not soliciting , but denied telling Brown that Simon would close the
plant before accepting a union. Lage impressed the Trial Examiner as an honest
witness and his denial of making any threat to Brown is credited . I do not find his
statement to Brown that he "hoped" he was not soliciting to be coercive within the
meaning of Section 8(a)(1).7 Accordingly, it is recommended that this allegation
in the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action which will effectuate the purposes of the Act.
Upon the basis of the above findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, as above found , the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
acter of the statements indicated below lessened , as the Respondent contends , because they
allegedly expressed the personal views of the supervisors by whom they were made.
° Glover not only conceded making the above statement to Knapp, but additionally he
testified that he told Knapp, "I believe, Mike, If the Union ever got in here, Frank would
shut her down " In connection with the latter statement , Knapp added , "And I do
[still] think so
7 See Murray Ohio Manufacturing Company , 128 NLRB 184.