Rex Printing Co.

National Labor Relations Board - Board Decisions

Jan 17, 1977

227 N.L.R.B. 1144 (N.L.R.B. 1977)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vincent C . Vandemotter d/b/a Rex Printing Company
and Lansing Typographical Union Local 72, Inter-
national Typographical Union , AFL-CIO. Case 7-
CA-12429
January 17, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 3, 1976, Administrative Law Judge Joel A.
Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and Charging
Party filed exceptions and supporting briefs.
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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified below, and to adopt his recommended
Order as also modified.
The Administrative Law Judge found, inter alia,
that Respondent discharged employee Richard J.
Mann on July 18, 1975, because of his union activities
and thereby violated Section 8(a)(3) and (1) of the
Act.' He deemed it inappropriate, however, to
recommend the conventional reinstatement and
backpay order because of Mann's ownership interest
in Delta Printing Company, a relatively small print-
ing business which competes with Respondent for the
same customers. He also declined to order condition-
al reinstatement, conditioned on Mann's divesting
himself of his interest in the competing business, as
was done in Marshall Maintenance Corp., 145 NLRB
538 (1963).2 The Administrative Law Judge distin-
guished that case on the grounds, inter alia, that
complete divestiture here would be impossible since
Delta Printing Company is a family operation, owned
by Mann in partnership with his brother, and
physically located in the basement of Mann's home.
General Counsel and Charging Party have excepted
to the Administrative Law Judge's failure to provide
any remedy for Respondent's unlawful discharge of
Mann. We agree with their contention that some
accommodation can be, and must be, achieved
between the legitimate interests of Respondent and
Mann. What we said in Marshall Maintenance Corp.,
No exceptions were filed to this, or the Administrative Law Judge's
other unfair labor practice findings
2 See also the Supplemental Decision and Order in Marshall Maintenance
Corp, 149 NLRB 735, 740 (1964)
3 The fact that Delta Printing Company is a family business, owned
227 NLRB No. 164
supra at 539-540, is equally applicable to Respon-
dent's interests here:
It would be manifestly improper to require
Respondent to employ anyone whose loyalty and
efforts as an employee might be affected by his
own self-interest as an entrepreneur and business
competitor.
On the other hand, it would be just as unfair, in the
circumstances here, to deny Mann any remedy for
the unlawful conduct which Respondent perpetrated
against him. Thus, Respondent long knew of Mann's
ownership interests in Delta Printing Company. It
also knew, at least by early June 1975, that Delta was
competing with Respondent for some of the same
work. Yet Respondent condoned Mann's involve-
ment with Delta and discharged him only after the
election on July 18, when it learned that the employ-
ees had unanimously selected the Union to represent
them. Additionally, it would be improper under the
remedial scheme of the Act to allow Respondent to
benefit from its wrongdoing by achieving, through
our help, the very result which Respondent sought;
namely, to rid itself of Mann, whom it considered a
"troublemaker" and the instigator of the employees'
successful organizing efforts.
We have weighed the legitimate interests of the
parties and of the public in this matter and have
concluded that the following limited remedial order
achieves a proper accommodation between these
interests . We will order Respondent to offer Richard
J. Mann immediate and full reinstatement to his
former position or, if that position no longer exists, to
a substantially equivalent job, without prejudice to
his seniority or other rights and privileges, provided,
however, that Respondent may, if it so desires,
condition such offer of reinstatement3 upon Mann's
divesting himself of all ownership interests in Delta
Printing Company, or any other competing business
enterprise,4 and his ceasing to solicit business for
Delta.
We also believe that Mann is entitled to some
backpay. The Administrative Law Judge found that
although Respondent knew of Mann's ownership
interests in Delta Printing Company and condoned it
Respondent did not learn until after its unlawful
discharge of Mann on July 18, 1975, the extent to
which Mann was personally soliciting business on
behalf of Delta from Respondent's customers, which
would have justified his discharge. The record does
not disclose the exact date on which this knowledge
jointly by Mann and his brother, does not in our judgment warrant our
withholding of a conditional reinstatement order.
' Chairman Murphy would expand the condition of divestiture to require
Mann to divest himself of all interests in the operations of Delta, as well as
ownership
REX PRINTING COMPANY
was acquired. In these circumstances, we believe it
only fair to award Mann ba(kpay damages for any
losses he incurred as a result of the discrimination
against him from the date of his unlawful discharge to
the date on which Respondent could have discharged
him lawfully upon learning fully of Mann's direct
personal solicitation of business on behalf of Delta
from Respondent's customers.5 We leave to the
compliance stage of this proceeding the determina-
tion of that date. Backpay shall be computed in
accordance with the principles set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest at the rate of 6 percent per annum as
provided in 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
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, Vincent C. Vandemotter d/b/a Rex Printing
Company, Mason, Michigan, his agents, successors,
and assigns, shall take the action set forth in the said
recommended Order as so modified:
1. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs accordingly:
"(a) Offer to Richard J. Mann immediate and full
reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges, provided, however, that Respon-
dent may, if it so desires, condition such offer of
rein statement upon Mann's divesting himself of all
ownership interests in Delta Printing Company, or
any other competing enterprise, and his ceasing to
solicit business for Delta.
"(b) Make Richard J. Mann whole for any losses he
sustained as a result of the discrimination against
him, with interest and in the manner describe,' in the
Board's Decision and Order, from the date of his
unlawful discharge to the date on which he could
have been lawfully discharged as determined in the
compliance stage of this proceeding."
2. Substitute the attached notice for that of the
Administrative Law Judge.
5 Cf Paschall Truck Lines, Inc, 190 NLRB 691, 693 (1971) (discharge of
Windsor)
APPENDIX
1145
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT promise benefits to employees if
they reject representation by a labor organization.
WE WILL, NOT threaten never to bargain with a
union or to sell our equipment and close the plant
if our employees select a union.
WE WILL NOT discourage membership in Lans-
ing Typographical Union Local 72, International
Typographical Union, AFL-CIO, or any other
labor organization, by discharging, laying off, or
denying work to employees because they have
engaged in activity on behalf of said Union, or
any other labor organization.
WE WILL NOT refuse to bargain in good faith
with Lansing Typographical Union Local 72,
International Typographical Union, AFL-CIO,
as the exclusive collective-bargaining representa-
tive of employees in the unit set forth below:
All full-time and -egular part-time produc-
tion employees employed by the Respondent
at its Holt, Michigan, plant, excluding office
clerical employees, guards, and supervisors,
as defined in the Act.
WE WILL NOT in any other manner interfere
with, coerce, or restrain employees in the exercise
of their rights guaranteed by Section 7 of the
National Labor Relations Act.
WE WILL offer to Richard J. Mann immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, provided,
however, that we may, if we so desire, condition
such offer of reinstatement upon Mann divesting
himself of all ownership interests in Delta Printing
Company, or other competing enterprise.
WE WILL make Richard J. Mann whole for any
losses he sustained as a result of the discrimma-
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion against him, with interest and in the manner
described in the Natioi'al Labor Relations
Board's Decision and Order, from the date of his
unlawful discharge to the date on which he could
have been lawfully discharged for personally
soliciting business on behalf of Delta Printing
Company from our customers.
WE WILL make whole Rex Redoutey, Judy
Redoutey, and Jerry Maurer for losses they
sustained as a result of our discrimination against
them with interest at the rate of 6 percent per
annum.
WE WILL, upon request, bargain in good faith
with Lansing Typographical Union Local 72,
International Typographical Union, AFL-CIO,
as the exclusive representative of all employees in
the bargaining unit described above, with respect
to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
VINCENT C.
VANDEMOTTER D/B/A
REX PRINTING COMPANY
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Mason, Michigan, on March 22
and 23, 1976, upon a charge filed on October 24, 1975, and
a complaint issued on December 23, 1975, which, as
amended at the hearing, alleges that Respondent indepen-
dently violated Section 8(a)(1) of the Act by various
coercive statements, interrogation, and promises of bene-
fits; violated Section 8(a)(3) and (1) of the Act by
discharging Richard Mann, and by reducing the work and
earnings of Judy Redoutey, Rex Redoutey, and Jerry
Mar er all because of their union activity; and violated
Section 8(a)(5) and (1) of the Act by refusing to bargain
with the Union in various respects. In its duly filed answer,
Respondent denied that any unfair labor practices were
committed.1 After the close of the hearing, briefs were filed
by the General Counsel and the Respondent.
Upon the entire record in this proceeding, including my
observation of the witnesses while testifying, and consider-
ation of the postheanng briefs, I make the following:-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an individual proprietorship, is engaged
in the operation of a job printing shop from its place of
I At the outset of the hearing, Respondent, through counsel, in the
interest of expediting the proceeding, stipulated to the issuance of a remedial
bargaining order, so as to admit the allegations contained in par 16 of the
complaint, subsecs (b) and (c), and to dispense with further litigation of the
issues presented thereby. The allegations of the complaint removed from
business located in Holt, Michigan. During the calendar
year ending November 30, 1975, a representative period,
Respondent in the course and conduct of said operation,
sold products valued in excess of $50,000 to enterprises
located in the State of Michigan, each of which annually
provides products and/or services valued in excess of
$50,000 directly to customers located outside the State of
Michigan, or received goods in Michigan valued in excess
of $50,000 provided directly by suppliers located outside
the State of Michigan.
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended at the
hearing admits, and I find that Lansing Typographical
Union Local 72, International Typographical Union, AFL-
CIO, is, and has been, at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This case presents essentially factual questions as to
whether Respondent, in connection with an election in
which all four of its employees voted for union representa-
tion, retaliated by various coercive statements and acts of
discrimination, including a reduction of work to employees
and a discriminatory discharge. A further issue exists as to
whether Respondent unilaterally transferred certain work
from a unit employee to a supervisor in violation of Section
8(a)(5) and (1) of the Act.
B. Background
Respondent operates a small job printing operation in
Holt, Michigan, a suburb within the Greater Lansing
Metropolitan area. It is owned by Vincent Vandemotter.
Ted Cleeves was the general foreman. The operation was
manned by some four to five employees during periods
relevant to this proceeding. During the time frame which
provides the background for the events here in dispute, the
work force consisted of Rex Redoutey, his wife, Judy,
Richard Mann, and Jerry Maurer.
In the fall of 1974 Vandemotter purchased Rex Printing
Company, a firm that apparently had been in existence for
many years previously, from Lou Redoutey. Lou Redoutey
was the father of Rex Redoutey. Vandemotter assumed
control and commenced operation of the firm in question
on September 9, 1974.
In January 1975, Vandemotter's employees began dis-
cussing their dissatisfaction with certain working condi-
tions. Later, in the early spring of 1975 they contacted the
Union. By letter, dated May 5, 1975, the Union wrote
controversy as a result of said stipulation relate to alleged 8(a)(5) violations
predicated upon a refusal to bargain while charges were pending before the
Michigan Department of Labor, and a refusal to meet in the presence of
certain designated members of the Union's bargaining committee
REX PRINTING COMPANY 1147
Vandemotter , advising that it represented a majority of
Vandemotter's employees , and demanding immediate rec-
ognition . On May 26 , 1975, Vandemotter replied, indicat-
ing that recognition would be denied , while expressing
doubt that the Union represented an uncoerced majority.
On June 6 , 1975, Respondent was notified by the State of
Michigan , Department of Labor , Employment Relations
Commission , herein called the State Board , that an election
petition had been filed with respect to its employees. The
Michigan Board conducted an election on July 18, 1975.
The results of that election showed four for the Union, none
against , with no challenged ballots. Immediately following
the election , on July 18, 1975 , Richard Mann , who had
acted as union observer during the election , was terminat-
ed.
C. Interference, Restraint, and Coercion
The complaint alleges that on or about May 8, 1975, and
on repeated occasions between that date and the election
Vandemotter violated Section 8(a)(1) of the Act by telling
employees that he would never recognize or bargain with
the Union , that he could close his plant before doing so,
and that he would lay off all the employees if they chose the
Union as their bargaining agent . In this connection,
Richard Mann , Rex Redoutey , and Judy Redoutey all
testified in essence to the effect that on or about May 7,
after Vandemotter received the Union's letter seeking
recognition , Vandemotter on several different occasions
angrily stated he would have nothing to do with "no damn
union," that he would close the shop, sell the equipment,
lock the doors and move to Florida, and never bargain with
the Union . This testimony stands uncontradicted. It is
credited , and based thereon I find that Respondent thereby
violated Section 8(a)(1) of the Act.
The complaint also alleges that on or about June 1, 1975,
Vandemotter interrogated two employees as to whether
they would vote against the Union and promised that he
would grant them special privileges if they did so. There is
no evidence to support the allegation that any employee
was interrogated concerning their intention to vote in the
election . Rex Redoutey did testify that , prior to the
election , Vandemotter told Redoutey that he would take
care of employees that stuck by him. Vandemotter denied
ever promising any benefits to employees . As between
Redoutey and Vandemotter, I regarded the former as the
more credible witness, and, in the context of Vandemotter's
repeated antiunion exhortations during this period, I find
Vandemotter 's expression to constitute an implied promise
that employees who supported him in the in' ending
election would be favored . Accordingly , Respondent there-
by violated Section 8 (a)(1) of the Act.
Finally, the complaint alleges that on or about August 29,
1975, Respondent violated Section 8(a)(1) through state-
ments by Vandemotter that he would probably be forced
into bankruptcy because employees designated the Union
while suggesting that such bankruptcy would injure certain
mortage holders who were relatives of employees . In this
connection , it will be recalled that Vincent Vandemotter
purchased Rex Printing from Rex Redoutey's father, Lou.
Lou Redoutey apparently retained liens upon the land,
building, and equipment utilized by Rex Printing , and his
.nterests were to an extent dependent upon the financial
success of Vandemotter 's operation . Both Rex and Judy
Redoutey testified that during the time period in question
Vandemotter told them that he did not wish to express a
threat, but that with the Union he could go into bankrupt-
cy, and, if that happened , Vandemotter went on to ask
where it would leave Rex's father, who would stand to lose
a lot of money . Vandemotter contradicts the Redouteys'
account, testifying that he mentioned adverse consequences
for Lou Redoutey only in the context of the poor financial
condition the Company experienced in recent months.
Considering the overall context of the conversation, I
consider the testimony of Rex and Judy Redoutey as the
more credible. In any event , under their version, the
statements attributed to Vandemotter strike me as permissi-
ble argumentation , rather than a coercive threat , and hence
dialogue which is protected by Section 8(c) of the Act.
Accordingly , I shall dismiss the allegation that Respondent
violated Section 8(a)(1) in this respect.
D. The Discharge of Richard Mann
Mann was originally hired by Lou Redoutey in April
1973 and continued as an employee of Rex Printing
Company upon Vandemotter 's acquisition of that firm. He
was a qualified pressman , responsible for operation of
Respondent's offset presses . Credited uncontradicted testi-
mony establishes that during the first week of May 1975, in
the course of one of his enraged outbreaks in reaction to the
Union's letter demanding recognition , Vandemotter singled
out Mann , referring to him as "an instigator and agitator."
The election was scheduled for July 18 , 1975, from 4:30
to 4:45 p .m. According to the credited uncontradicted
testimony of Mann, that afternoon about 4 p.m., an agent
of the State of Board appeared on the premises , indicating
that he wished to speak to Mann , since Mann had been
designated as union observer. Vandemotter initially indi-
cated that Mann was being paid until 4 : 30 p.m . and could
not talk to the agent on company time, but apparently
yielded when the agent advised Vandemotter that under the
law he was privileged to engage in such consultation prior
to the election . Mann further credibly testified that prior to
the election, since paychecks normally were received either
in mid-afternoon or sometimes after 4 o 'clock, he went to
Vandemotter requesting his paycheck . Vandemotter res-
ponded that since Mann was being paid until 4:30, he could
not receive his paycheck until that time . At 4:30, Mann
went to get his paycheck and was told by Vandemotter that
he wished to see Mann immediately upon conclusion of the
election . After the election , Mann reported to Vandemot-
ter, who handed him the following letters:
Dear Dick:
It is with regret that we terminate your employment
with the Rex Printing Co. We are attaching a check for
the balance due you for your employment with our
Company.
It has been brought to our attention that Delta
Printing Co ., of which you have a major vested interest
has solicited and obtained business from J .W. Knapp
Dept . Stores. This company has been one of our valued
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers for many years . It does not seem fair that one
of our employees should profit from this customers
business while in our employment.
It has also been brought to our attention that Mrs.
Mann has solicited business from one of our potential
customers . When questioned if she was working in the
interest in Rex Printing Co. or Delta Printing Co., she
explained that both your and her interest were in Delta
Printing Co . behalf only.
In the past several weeks I have talked to several
presidents and owners of other printing companies.
Evidently everyone in this area is more aware of Delta
Printing Company than your employer . It is our belief
that we should not subsidize your company by keeping
you on our payroll while your pursue your own interest
in Delta Printing Co.
We have analyzed the above reasons very thoroughly
and believe under the circumstances it is to the best
interest of Rex Printing Co. to terminate your employ-
ment at once.
Sincerely,
/s/V. C. VandeMotter
V. C. VandeMotter
July 18, 1975
Delta Printing Company is a firm , which, like Respon-
dent , is engaged in the printing business . It is owned by
Richard Mann and his brother. Richard Mann , his wife,
and his brother are and have been active functionaries in
that operation . Since its establishment in March 1974,
Delta was housed essentially in the basement of Richard
Mann 's home . The record clearly establishes that Delta
solicited and obtained business from at least one customer
of Rex Printing Company , prior to Mann 's discharge.
The General Counsel asserts that Respondent 's assigned
grounds for terminating Mann were pretextual . In doing so,
he points to facts plainly establishing that Vandemotter
knew of and condoned Richard Mann's involvement with
Delta prior to his discharge . Thus , in August 1974, Mann
told Vandemotter that he had a "hobby business " and that
he wished Vandemotter to know this before he purchased
Rex Printing Company. During this conversation, Mann
described the scope of his operations as limited to the
performance of odds -and-ends jobs , just for friends .2 Later,
in November 1974, Vandemotter met Mann and his brother
2 Mann denied that he told Vandemotter that his printing operations did
work "just" for friends . Mann testified that this conversation was overheard
by Judy Redoutey Judy Redoutey contradicted Mann in this respect. I
credit Vandemotter , as corroborated by Judy Redoutey in any event, as
shall be seen, infra, I was not impressed with Mann 's demeanor and regarded
him as less than candid in his revelations concerning aspects of Delta's
operations
3 Although Vandemotter did not impress me as an entirely credible
witness, the above is based upon his testimony . This, despite its conflict with
Mann 's testimony . Mann claims to have only assured Vandemotter that
Delta would not solicit business from Rex Printing's "exclusive" customers
As indicated , I was not impressed with Mann His evasiveness, when he was
examined as to his involvement in soliciting customers for Delta, suggests the
likelihood that his discussions with Vandemotter concerning Delta were also
lacking in candor . Accordingly , I consider Vandemotter 's testimony to be
the more probable.
at a printing trade exhibition in Chicago , Illinois . At that
time, Vandemotter was admittedly surprised to see Mann
wearing a badge , identifying himself as a representative of
Delta Printing Company . Three or four days after their
return from Chicago , Vandemotter , out of renewed concern
for the exact scope of Delta's operation , asked Mann about
Delta and was informed by Mann that he would not solicit
any business from any customers of Respondent as long as
he worked for Vandemotter .3 It is also a fact that during
1975, Delta, for one reason or another , could not utilize its
own facilities to complete certain jobs . These jobs were
farmed out to Rex Printing and produced on Delta's behalf
with Vandemotter 's knowledge , on what appears to have
been a straight contract basis . Vandemotter admits that
with respect to one such job, probably performed in March,
he commented to Rex Redoutey that he wondered where
Delta had obtained such a nice job. Nonetheless , Vande-
motter did not take any steps to curtail Delta's use of his
facilities until after he received the Union 's letter of May 7
seeking recognition and bargaining.4
Vandemotter's hostility to the organizational effort, and
his failure to act upon Mann's interest in Delta Printing
until the day of the election , furnishes strong support for the
inference of union-related discrimination . Nonetheless,
Respondent , on strength of Vandemotter 's testimony,
insists that Mann was terminated solely on the grounds set
forth in the discharge letter of July 18. In support of the
defense , and in refutation of the General Counsel's condo-
nation theory , Vandemotter testified that in January 1975
he intended to get rid of Mann because of his involvement
in Delta , and that he went so far as to place an ad in a local
newspaper on January 17, 1975 , seeking a replacement.
Vandemotter relates that he elected to retain Mann, only
because he was dissatisfied with the qualifications of those
responding to the ad. According to Vandemotter, his
interest in terminating Mann was revived , either in late
May or early June, when he was notified by a Mrs. Dons
Spaulding, an employee of J. W . Knapp Company, that
Delta Printing Company was bidding competitively with
others , including Rex Printing Company , for work of that
firm.5 According to the testimony of Vandemotter and Ted
Cleeves , immediately after receiving this information from
Spaulding , they discussed what action should follow. Ted
Cleeves is averred to have proposed that Mann be terminat-
ed immediately . Vandemotter assertedly disagreed , decid-
mg not to take action at that time because of the scarcity of
skilled pressmen , but to discharge Mann after he voted in
the election . According to Vandemotter , it was pursuant to
4 I discredit the testimony of Vandemotter and Foreman Cleeves that he
took this action immediately upon his return from the Kentucky Derby on
Monday, May 5, which would have been before receipt of the Union's
demand letter . Cleeves had a limited capacity for recollection , and impressed
me as lacking objectivity . He seemed too willing to afford whatever
testimony was necessary to support Vandemotter's cause . Rex Redoutey
contradicts Cleeves and Vandemotter in this respect, asserting that he was
told by Vandemotter to advise Mann on May 9, 2 days after the Union's
letter was received, that Delta jobs would no longer be accepted by
Respondent As between Rex Redoutey and Vandemotter , I regarded
Redoutey as the more reliable witness and I credit his testimony
5 Doris Spaulding is a purchasing agent for J. W. Knapp , a department
store in the greater Lansing area She is responsible for the purchasing of
punting and related supplies. Her firm had been one of Rex Printing 's valued
customers for a number of years . She did not appear as a witness at the
hearing
REX PRINTING COMPANY
this earlier determination that he terminated Mann on July
18, 1975.
I did not believe Vandemotter's story or the corroborat-
ing testimony of Cleeves. Their testimony seemed too pat
and had no ring of truth. More specifically, Vandemotter's
effort to associate the ad of January 17, 1975, with an
intention to replace Mann seemed an outright contrivance.
At that time Cleeves, who was experienced at both letter
press and offset press operations, had been out of work
since December 1 because of a heart attack. Vandemotter
testified that Mann, to his knowledge, had no letterpress
skills. Examination of the ad renders it the more likely that
Vandemotter was then seeking a replacement for Cleeves,
and not Mann, since the position described therein required
one having the capacity to set up and run both offset and
letter presses.6 Furthermore, additional considerations
render it entirely improbable that, following Vandemotter's
conversation with Spaulding, a firm decision was made to
terminate Mann after he voted. Thus, no steps were taken
prior to July 18 to run a blind ad seeking Mann's
replacement. Considering the previous difficulty Vande-
motter experienced in obtaining qualified press applicants,
I cannot imagine that Vandemotter would have delayed
until July 20, 1975, 2 days after the discharge, before
seeking a replacement had there been such a prior determi-
nation. I also discredit Vandemotter's testimony that the
July 18 letter of termination was actually prepared 2 to 3
days earlier. That letter is dated July 18, and there is no
explanation as to why, if not actually prepared on that date,
the letter did not bear the date of its preparation. Indeed,
that the events of July 18 were effected with haste and
dispatch is strongly suggested by the uncontradicted
credited testimony of Mann that the check referred to in the
letter was received by him without Vandemotter's signa-
ture, delaying for several days Mann's ultimate receipt of
the check in fully executed form.
Having rejected the testimony which forms the basis for
the defense, I also note the testimony of Rex and Judy
Redoutey to the effect that during an argument in August
1975, Vandemotter referred to Mann as a troublemaker
because of the Union, and stated further that Mann was
taking work on the side and taking business from him; and
th?. no man was going to take money away from him
(Vandemotter).
Based upon the foregoing, although I do believe that
Vandemotter gained the information described in the letter
of July 18 from Spaulding, I find that he nevertheless
elected to tolerate Mann in view of past difficulties in
securing qualified pressmen, but decided otherwise in
6 Thus, the ad appearing in the newspaper on January 26, 19-t-), recited as
follows
PRESSMAN WANTED - MUST BE ABLE TO SETUP AND RUN OFFSET AND
LETTER PRESS , CAMERA AND PLATE MAKING WOULD BE PLUS SEND BRIEF
RESUME TO BOX 77, THE STATE JOURNAL
Compare the wording of that ad to the one placed after the discharge of
Mann which was clearly aimed at the hiring of a replacement for Mann This
ad appeared in a local newspaper on July 20, 1975, and stated as follows
OFFSET PRESSMAN - Experience preferred on Multilith 1250, Hamada
Star and ATF or Chief 22 Call 699-2174 for an appointment
Vandemotter does not claim to have possessed knowledge that Mann,
prior to July 18, was personally engaged in solicitation, on behalf of Delta,
1149
reaction to discovery of Mann's role as union observer,
thereby confirming his general suspicion, albeit erroneous,
that Mann had in fact been the instigator of the organiza-
tional effort. Accordingly, I find that by discharging Mann
for those reasons Respondent violated Section 8(a)(3) and
(1) of the Act.7
E. The Alleged Discriminatory Layoffs
The complaint, as amended , alleges that beginning on
July 19, 1975, and continuing thereafter, the Respondent
reduced the work of employees Judy Redoutey, Rex
Redoutey, and Jerry Maurer because of their sympathy and
support of the Union. Vandemotter admitted that during
the period in question the Redouteys were "laid off because
of lack of work." Neither Vandemotter, nor Cleeves, the
only witnesses called by Respondent, denied the testimony
of the Redouteys that prior to the organizational drive, they
worked less than a 40-hour week at their own option only,
and that they had never been denied work for any reason.
Furthermore, I credit the testimony of Judy and Rex
Redoutey concerning an admission by Vandemotter with
respect to the reason behind the specific layoff of Rex,
which occurred on or about August 22, 1975. Thus, I find
that in September Rex asked Vandemotter whether he had
been laid off because he voted for the Union. Vandemotter
responded in the affirmative.8
Respondent claims that the layoffs were attributed to a
downturn in sales and, in part, to a slowdown in production
capacity occasioned by the lack of a qualified offset
pressman, resulting from Mann's discharge. With respect to
the alleged decline in sales, Respondent's position is
supported by little more than the testimony of Vandemot-
ter, a basically untrustworthy witness. I am not convinced
that Respondent's Exhibit 6, entitled "Comparison Table of
Gross Sales and Gross Wages" offers any firm substantia-
tion as to a decline in the quantum of work available to
Respondent's employees during the time period in ques-
tion. Entries appearing in the sales column on that
document are not presumeu to be anything other than
accurate abstractions from Respondent's books and rec-
ords. However, under ordinary accounting principles, the
monthly sales figures would reflect finished goods, actually
delivered, and would not be indicative of orders on hand,
thus, this document does not accurately reflect the amount
of work available to the employees during the period in
question. With respect to the observation by Respondent's
counsel, as to the decline in average monthly sales in the
second half of 1975, I would note that the July 1975 sales
among former customers of Respondent The record contains various
documents, identified as Resp Exhs. 2(a) through (q) which establish that
Mann was so engaged during the period prior to his discharge I am satisfied
and find that Mann's activities in this regard were not discovered until after
July 18 In so fording, I am convinced that the July 18 discharge letter would
have referred to such conduct, if Vandemotter had been mindful of it at the
time
8 Vandemotter denied ever making a statement that Rex Redoutey's
August 22 layoff was because of union activity Cleeves, who was also
present during that conversation, testified that the September 1975 conversa-
tion, at points, was somewhat hysterical, with more than one person talking
at the same time and that he could not recall all of what was said Cleeves
testified that he could not recall Vandemotter having made such a statement
I regard the testimony of the Redouteys as the more reliable and discredit
Vandemotter and Cleeves, to the extent that their testimony is in conflict
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience was well below that of succeeding months.
During that month, Mann was terminated and not re-
placed,9 and the Redouteys each took I week's vacation.
The reduction in man-hours occasioned thereby would
naturally result in a decline in output, ultimately reflecting
a reduction in the gross sales figure for July 1975.
Furthermore, the average weekly hours worked by Judy
Redoutey in August, September, and November, and the
average weekly hours made available to Rex Redoutey
during the months of August, October, November, and
December reflect a decline significantly more dramatic
than the reduction in sales for those respective months. The
same may be said concerning Jerry Maurer for December
1975. The foregoing lends support to the testimony of Judy
Redoutey that after July 18, work was transferred to
individuals who did not participate in the election of that
date.
At best, from Respondent's point of view, the documen-
tary evidence offered in support of the testimony of Cleeves
and Vandemotter is unconvincing, and, based on my
mistrust of Vandemotter and Cleeves, I discredit their
testimony that the loss of work sustained during the period
in question by the Redouteys and Jerry Maurer was
attributable to a decline in sales. Instead, based upon the
entire record, I conclude that the reduction in work during
the period in question was in reprisal for the designation by
these employees of the Union as their representative, and
was thereby violative of Section 8(a)(3) and (1) of the Act.
In the alternative, I note that Respondent' s admission
that the reduction in hours was occasioned partially by the
discharge of Richard Mann furnishes an independent basis
for finding that all three of the above-named individuals
were discriminated against in violation of Section 8(a)(3)
and (1) of the Act. Having found that Mann was terminated
for discriminatory reasons, the adverse effect and detriment
sustained by other employees in consequence of this
unlawful act would itself violate Section 8(a)(3) and (1) of
the Act. Thus, in agreement with the General Counsel, I am
persuaded that, even if specific union animus toward the
Redouteys and Maurer were absent, any loss of work
sustained by them as a result of the unlawful discharge of
Mann was a natural and foreseeable consequence thereof
and ranstituted proscribed discrimination inherently de-
structive of employee organizational rights.10
F. The Alleged Refusal To Bargain
Finally, the complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act in three different respects.
It will be recalled that at the outset of the hearing,
Respondent consented to the entry of a remedial order with
respect to two of these allegations . The remaining allegation
concerns the alleged unilateral removal os' unit work. The
facts relative to this issue are not the subject of a material
conflict.
Thus, prior to November 4, 1975, Rex Redoutey spent 75
percent of his time engaged in office functions, including
9 G C Exh 11
10 See , e g, The Radio Officers' Union of the Commercial Telegraphers
Union, AFL [A H Bull Steamship Company] v. N LR B, 347 US. 17 (1945),
Bowen Transports, Inc, 184 NLRB 584,592 (1970)
11 Contrary to the Respondent's contention, there is no evidence that
the preparation of estimates on jobs for potential customers
and billing. The balance of his work involved platemaking.
Following a negotiating session held on November 4, Rex
Redoutey was no longer permitted to perform the office
functions. Instead this work was assigned to Cleeves, an
admitted supervisor. No question was ever raised as to
Redoutey's eligibility to participate in the election conduct-
ed by the State Board and, in these circumstances, it does
not appear that any party, at any time prior to November 4,
1975, raised any question as to the appropriate collective-
bargaining unit's inclusion of the work historically per-
formed by Redoutey or the other employees who partici-
pated in the election.
With respect to the meeting of November 4, Ronald
Smith, president of Local 72, testified that it was the Union
that first raised their own understanding that some of
Redoutey's work was to be removed and transferred to
Cleeves. According to Smith, Vandemotter indicated that
the work in question was considered to be a management
function and that since Redoutey had decided to go with
the Union, Respondent considered it inappropriate for
Respondent to assign a union man to the "front office."
The Union protested, claiming that Vandemotter did not
have any right to remove this work from the bargaining
unit. Vandemotter countered with the claim that his
contemplated action involved a "management preroga-
tive." It further appears that in the latter part of that
meeting the Union mentioned that there was other work in
the shop that Rex Redoutey could perform, namely, press
work. In consequence , Vandemotter agreed to train Rex
Redoutey as a pressman . As of the date of the hearing, in
addition to his other duties, Rex Redoutey was engaged in
running a press.[[
The duty to bargain in good faith precludes an employer
from unilaterally-without notification and without fur-
nishing the exclusive agent an opportunity to consult-
taking action detrimental to unit employees, including the
elimination of unit work.12 However, the total circumstanc-
es must be considered in assessing whether or not sufficient
opportunity to bargain was afforded by an employer prior
to its implementation of any such decision. Although the
question is not free from doubt, I am not convinced that
Respondent failed to fulfill the statutory obligation to
bargain in good faith before implementing the change
herein. Thus, the decision to transfer Redoutey's work to
Foreman Cleeves, even if made prior to November 4, was
not irrevocable, but subject to ready reversal. Respondent,
in confirming to the Union that the work would be
transferred, gave the Union its reasons for taking that step.
The Union's response initially was one of protestation, but
subsequently softened through its request that Rex Redou-
tey be trained in press operation. That request was honored
by the Respondent, an accommodation was struck, and
while the Union was not afforded the type of prior notice
that would permit a studied approach, it was given the
opportunity to discuss the issue and availed itself of that
opportunity by obtaining a concession mitigating the
after November 4 the change in content of Redoutey's work contributed to
the cutback in hours he subsequently sustained Accordingly, his backpay
entitlement under the 8(ax3) finding heretofore made is not affected by this
8(a)(5) issue.
12 See, e.g., Laclede Gas Company, 171 NLRB 1392 (1968).
REX PRINTING COMPANY 1151
consequences of the Employer's decision upon the employ-
ee adversely affected. Accordingly, I shall recommend
dismissal of the allegation that Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally removing unit
work from Rex Redoutey and transferring it to a supervi-
sor.13
CONCLUSIONS OF LAW
1. Respondent, Vincent C. Vandemotter d/b/a Rex
Printing Company, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Lansing Typographical Union, Local 72, Interna-
tional Typographical Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(1) of
the Act by promising benefits to an employee if he voted
against union representation, and by telling employees that
he would never recognize or bargain with the Union and
would close the plant before doing so.
4. By discharging Richard Mann, on July 18, 1975,
Respondent violated Section 8(a)(3) and (1) of the Act.
5. By reducing the work available to Rex Redoutey,
Judy Redoutey, and Jerry Maurer on and after July 19,
1975, Respondent violated Section 8(a)(3) and (1) of the
Act.
6. Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to negotiate while charges were pending
before the Michigan Department of Labor, and by refusing
to meet with certain representatives designated by the
Charging Party as members of its negotiating team. The
appropriate collective-bargaining unit consists of the fol-
lowing employees:
All full-time and regular part-time production employ-
ees employed by the Respondent at his Holt, Michigan,
plant, excluding office clerical employees, guards, and
supervisors as defined in the Act.
7. The above unfair labor practices have an effect on
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , some of which go to the core of
employee rights protected by the Act, I shall recommend
that it cease and desist therefrom in broad "in any other
manner" terminology , and take certain affirmative action
deemed necessary to effectuate the policies and purposes of
the Act.
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by cutting back on the work made
13 i discredit as inherently implausible, the testimony of Vandemotter
that neither the Union nor Redoutey offered "any real objections" to the
planned removal of Redoutey's work I cannot imagine that when Vande-
motter stated, as his testimony recites, that his action was based on the fact
that Rex Redoutey was "not a competent estimator ," while arguing that the
removal of the work was a "management prerogative," that such claims
would not have been met with strong immediate objection from both the
Union and Rex Redoutey, who was present on that occasion
14 According to Mann's testimony Delta could do the samejobs as Rex
Printing, if given enough time for delivery
available to employees Rex Redoutey, Judy Redoutey, and
Jerry Maurer, I shall recommend that Respondent make
them whole for any loss of earnings they sustained as a
result of said discrimination, with said backpay to be
computed in accordance with the principles set forth in F.
W. Woolworth Company, 90 NLRB 289, (1950), with interest
at 6 percent as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
With respect to the unlawful termination of Richard
Mann, special circumstances warrant close consideration of
the appropriateness of a conventional reinstatement and
backpay remedy in his case. Richard Mann's involvement
in Delta Printing Company raises serious questions con-
cerning his qualification for reemployment with Respon-
dent. Both Respondent and Delta Printing Company are
relatively small ventures engaged in a competitive industry,
with sales derived in substantial part from competitive
bidding. Both serve the same general market area. Prior to
the discharge of Mann, Respondent knew that Mann was
part owner of Delta and on the basis of Vandemotter's
conversation with Doris Spaulding of J. W. Knapp Compa-
ny, Vandemotter apparently had a basis for suspecting that
Mann had not been entirely candid with him in represent-
ing that Delta merely performed work for friends, and
would not engage in solicitation of customers of Rex
Printing Company. On the other hand, substantial evidence
indicates that it was not until after the discharge that
certain facts were developed showing that Delta Printing
Company had become a business factor, rather than a
hobby, and that Richard Mann played an active role in
enhancing Delta's growth and competitive position in the
trade. Thus, from all appearances in the record, Vandemot-
ter was unaware of the fact that in April 1975 Delta
expended some $8,100 for new equipment, which expanded
its production facilities to three presses, two folders, a
camera, and platemaker, thereby affording Delta the
potential to perform the same quality of work as Respon-
dent, though at a slower pace.14 It was also after the
discharge that Respondent obtained concrete evidence that
Mann was personally involved in Delta's efforts to secure
jobs from J. W. Knapp Company, a firm which had used
Respondent's services often in the past.15
Despite the importance to the statutory scheme of
applying full remedies against offending employers, the
Board's remedial policy would be reduced to mockery if
invoked in a fashion furnishing advantages as between
competitors. The Board has not been insensitive to this
problem. Thus, with respect to discriminatees who had
formed an enterprise in competition with their employer,
the Board in Marshall Maintenance Corp., 145 NLRB 538
539-540, stated as follows:
15 Mann's own sensitivity concerning his role in this respect appeared in
his initial denials that he personally solicited business from J W. Knapp, and
his evasive response to this entire line of inquiry Resp. Exhs 2(a)-(q) reflect
that Mann personally issued formal quotations on J. W Knapp jobs prior to
his discharge That these documents were unknown and unavailable to
Respondent prior to July 18 is evident from the absence of any reference
thereto in the discharge letter, or in that portion of the testimony of
Vandemotter in which he attempted to explain the reasons for his action
against Mann I am convinced that these were not self-serving omissions on
Respondent's part
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would be manifestly improper to require Respondent
to employ anyone whose loyalty and efforts as an
employee might be affected by his own self interest as
an entrepreneur and business competitor.
In Marshall Maintenance, the competitive enterprise was
formed not before, but after the unlawful terminations, and
in recognition that an employer "should not be permitted to
rely upon its own unlawful conduct to defeat reinstatement
merely because the discharged employees sought-albeit
not successfully-to earn a livelihood after they were
discriminatorily discharged," 16 the Board in that case did
not withhold a reinstatement and backpay order, but
reached an accommodation by conditioning backpay and
reinstatement upon divestiture by the discriminatees "of all
interest in the operation of, and any substantial interest in
the ownership of, their competing enterprise." 17
In my opinion a conditional remedy would be inappro-
priate in the circumstances of this case. Unlike the facts in
Marshall Maintenance, Delta was not created by Mann in
his effort to maintain a livelihood after his discharge. The
facts establishing the conflict in interest between Mann and
Respondent, though in the main unknown to the latter,
materialized prior to Mann's discharge on July 18, 1975.
But even more significant is the fact that Delta Printing
Company is a family- owned venture, and, in such circum-
stances , all Spector of disloyalty on Mann's part could only
be expunged through complete liquidation of that firm, and
future discontinuation by Mann's family from involvement
in the printing industry in the greater Lansing area.
Considering these circumstances , together with Mann's
lack of candor in representing the scope and nature of
Delta's operations and his involvement in its affairs both to
Vandemotter and while testifying at the hearing, I find that
it would not effectuate the policies of the Act to order
Respondent to remedy its discrimination against Mann in a
traditional fashion.
Having found that Respondent refused to bargain in
good faith with the Union, it shall be recommended that
Respondent, upon request, bargain collectively with the
Union and execute any agreement reached in writing.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursuant
to Section 10(c) of the Act, I issue the following recom-
mended:
ORDER 18
Respondent, Vincent C. Vandemotter d/b/a Rex Print-
ing Company, Holt, Michigan, his agents, successors, and
assigns, shall:
16 See the Supplemental Decision of the Board in Marshall Maintenance
Corporation, 149 NLRB 735, 740 (1964)
it 145 NLRB at 540(1963)
18 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
1. Cease and desist from:
(a) Promising benefits to employees if they vote against
umon representation, and telling employees that he will
never bargain with a labor organization and that if they
designate a union as their representative he will sell his
equipment, and close the plant.
(b) Discouraging membership in a labor organization by
discharging, laying off, reducing work available to employ-
ees, or in any other manner discriminating against employ-
ees for engaging in umon or other protected concerted
activity.
(c) Refusing to bargain in good faith with the exclusive
bargaining representative of employees in the appropriate
collective-bargaining unit. The appropriate unit consists of
the following employees:
All full-time and regular part-time production employ-
ees employed by the Respondent at its Holt, Michigan,
plant, excluding office clerical employees, guards, and
supervisors as defined in the Act.
(d) In any other manner, interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Make whole Rex Redoutey, Judy Redoutey, and Jerry
Maurer for losses sustained as a result of the denial of work
to them in the manner prescribed in the section of this
Decision entitled "The Remedy."
(b) Bargain in good faith, upon request, with the Union,
as the exclusive representative of all employees in the
appropriate bargaining unit defined above, with respect to
rates of pay, wages, hours, and other terms and conditions
of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(c) Post at his Holt, Michigan, plant copies of the
attached notice marked "Appendix." 19 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's repre-
sentatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by him for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
findings, conclusions, and Order , and all objectives thereto shall be deemed
waived for all purposes
19 In the event the Board's 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 "