Rosenthal-Kaufmann Lithograph Co.

National Labor Relations Board - Board Decisions

Sep 27, 1985

276 N.L.R.B. 820 (N.L.R.B. 1985)

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. Rosenthal and Company , Inc. d/b/a Rosenthal-
Kaufmann Lithograph Company and Daniel
Ferguson and Dale Rockey. Cases 9-CA-20166
-and-9-CA-20310
27 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 May 1984 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.'
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its' authority in this' proceeding to 'a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief : and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
employees Daniel Ferguson and Dale Rockey be-
cause the Union, on their behalf, demanded that
the Respondent place them in-the bargaining unit
pursuant to the terms of the parties' collective-bar-
gaining agreement. Contrary to the judge, we find,
for the reasons set forth below, that the Respond-
ent did not violate the Act., -
The jurisdiction clause of the parties' collective-
bargaining agreement, which' was effective- from 1
July 1981 through-31 October 1983, states that the
contract "applies to the Union pressrooms operated
by the Employer, and that the jurisdiction of this
contract extends over all printing presses employed
in said pressrooms." The agreement also contains a
union-security clause requiring unit employees to
become members of the Union 31 days following
the beginning of their employment, and a probation
clause which provides that employees may be dis-
charged without cause during the first 30 days of
employment.
Since at least 1979 the Respondent has employed
part-time packers to fill in for regular full-time
packers who were on leave, vacation, or holiday.
Part-time packers receive the same wage rate as
full-time employees, but do not receive other con-
tractual benefits such as health and welfare, pen-
sion, life insurance, vacation and holiday pay, and
injury time off with pay. Only full-time employees
receive the fringe benefits provided in the contract.
' The judge issued an erratum to his decision on 19 July 1984
Jerry Kruse, the Union's business agent, testified
that during the summer of 1981 the number of ap-
plicants far exceeded the number of available jobs.
As a result, the Union and the Respondent estab-
lished a pool of employees to work as part-time
packers. These employees would work until the
end of their 30-day probationary period and then
be replaced by another part-time employee from
the pool. Kruse testified that at the end of a part-
time 'packer's probationary period, the union chapel
chairman would so notify the Respondent and re-
quest that the employee be brought into the unit or
let go. In the absence of available full-time posi-
tions, the Respondent continually rotated employ-
ees -for 30-day, periods in the part-time packer posi-
tions. I
From late 1981 through July 1983, while Gerry
Hamilton was chapel -chairman, the Union assented
to the Respondent's request that part-time employ-
ees be allowed to work in excess of 30 days with-
out joining the Union. or becoming part of the unit.
The .purpose of this arrangement was to provide
the Respondent with more time to evaluate part-
time employees and to provide the part-time em-
ployees with better opportunities, to obtain full-time
positions.- Kruse, testified that during this period the
Union sometimes neglected to inform the Respond-
ent that part-time 'packers had completed their pro-
bationary period. Hamilton occasionally objected
to the prolonged part-time status of employees and
requested that the employees be brought into the
unit. Several part-time packers who had exceeded
the 30-day period became regular full-time employ-
ees when full-time positions became available.
In August 1983 James Elkins succeeded Hamil-
ton, as chapel chairman. Elkins was aware of the
practice by which part-time packers were retained
beyond. the 30-day probationary period without
being included in the unit and stated he would do a
better job as chapel chairman.
Daniel Ferguson and Dale Rockey were hired as
part-time packers in March 1981 and December
1982, respectively. On 15 September 1983 Fergu-
son asked Elkins, in the presence of Rockey, if
there was anything Elkins could do to have him
placed in the unit because he had been employed in
excess of 31 days. According to the credited evi-
dence, Elkins complained to Personnel Manager
Sciutto, Supervisor Upchurch, and Superintendent
Worthington about the Respondent's failure to in-
clude Ferguson and Rockey in the unit and pro-
vide them with the fringe benefits under the agree-
ment. Sciutto responded that the Company did not
have any full-time positions at the time. Elkins
stated that the Company should include the em-
ployees in the unit or discharge them. The follow-
276 NLRB No. 88
ROSENTHAL-KAUFMAN LITHOGRAPH CO.- 821
ing day Upchurch informed Ferguson and Rockey
that they were discharged because the Union was
attempting to include them in the unit and the
Company did not have any permanent full-time po-
sitions available.
The judge found that under the terms of the col-
lective -bargaining agreement part -time packers are
included in the bargaining unit and entitled to the
protection given by the agreement on completion
of the 30-day probationary period. The judge
therefore concluded that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Ferguson and Rockey for requesting , through
Elkins, that they be included - in the unit and re-
ceive the-contractual fringe benefits.
In its exceptions the Respondent contends that
the judge erred in ignoring the longstanding prac-
tice of the parties with respect to part-time employ-
ees. We find merit in the Respondent 's contention.
As set forth above, the record establishes that
probationary employees were not required to join
the Union nor deemed to be within the bargaining
unit . At the end of an , employee 's probationary
period the Respondent had an option : it could hire
the 'employee into a full-time position in the unit
or, if the employee were not acceptable or no full-
time positions were available , it could discharge
the employee. If the employee were hired on a full-
time basis , he would receive the full range of con-
tractual benefits.
-In 1981 the parties agreed to extend the proba-
tionary period for part-time packers. Under this ar-
rangement , which was reached to satisfy objectives
of both parties , part-time packers remained on an
extended probationary period until the packer was
brought into the unit as a full-time employee or re-
leased from the' Respondent's employ. - The evi-
dence shows that as long as an employee worked
part time he was considered to be a probationary
employee , and - the Respondent always had the
option at the ,end of an employee's probationary
period of retaining the employee on a full-time
basis or discharging him.
Viewing the circumstances of this case in light of
the parties ' practice with respect to part-time pack-
ers, Chapel Chairman Elkins effectively ended the
parties' extended probationary period arrangement
on 15 September 1983 when he demanded that Fer-
guson and 'Rockey be included in the unit or dis-
charged . More specifically, Elkins ' demand ended
.Ferguson 's and Rockey 's probationary period. The
Respondent therefore had the option , consistent
with the parties' past practice , of hiring Ferguson
and Rockey as full -time employees or discharging
them . The language used by Elkins , i.e., either the
employees be included in the unit or discharged,
reflects his recognition of the fact that the Re-
spondent had a choice to make . The Respondnt's
choice was to discharge Ferguson and Rockey
based on the absence of any full-time openings.
The record supports the asserted reason for the dis-
charges . Furthermore, there is no evidence that the
Respondent was motivated by union animus or dis-
criminatory reasons in discharging the employees.
Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Linda B. Finch, Esq., of Cincinnati , Ohio, for the General
Counsel.
Lawrence J. Barty, Esq. (Taft, Stettinius & Hollister), of
Cincinnati , Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN , Administrative Law Judge. An
unfair labor practice charge was filed in Case 9-CA-
20166 by Daniel Ferguson on September 27, 1983, and an
unfair labor practice charge was filed in Case 9-CA-
20310 by Dale Rockey on November 1, 1983, against S.
Rosenthal and Company , Inc. d/b/a Rosenthal & Kauf-
mann Lithograph Company ( the Respondent). On behalf
of the General Counsel , the Regional Director for
Region 9 issued a complaint in Case 9 -CA-20166 on No-
vember 1 , 1983, and issued an order consolidating both
cases and a consolidated complaint on November 21,
1983.
The consolidated complaint alleges in substance that
on September 16, Respondent discharged part -time em-
ployees Ferguson and Rockey because they engaged in
protected concerted activities , by requesting Respondent
to include them in the appropriate unit , in violation of
Section 8(a)(1) and (3) of the Act.
Respondent filed an answer on November 21, 1983,
and an amended answer on December 15, 1983 , denying
that it has engaged in any unfair labor practices as set
forth in the consolidated complaint.
A hearing in the above matter was held before me in
Cincinnati , Ohio, on January 4, 1984. Briefs have been
received from the General Counsel and counsel for the
Respondent , respectively, which have been carefully
considered. -
On the entire record in this case and from my observa-
tion of the witnesses , I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, which is an Ohio corporation , has been,
at all times material , engaged in the operation of a com-
mercial and publication printing plant located in Cincin-
nati, Ohio.
During the past calendar year , a representative period,
Respondent in the course and conduct of its business op-
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erations purchased and received in its Cincinnati, Ohio
facility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Ohio.
The complaint alleges,--the Respondent admits, and I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Cincinnati Printing Pressmen , Assistants and Offset
Workers ' Union No 11, International Printing and
Graphic Communications Union , AFL-CIO (the Union)
is, and has been at all times material herein , a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent operates a commercial and publication
printing plant in Cincinnati, Ohio. Its operation is made
up of several departments, including a web department,
where it employs among other classification of workers,
floorpersons/packers, herein referred to as packers. A
packer is assigned to each press crew. The packer re-
moves the products from.the press, and takes them by
hand and stacks them on skids. Andy Upchurch is fore-
man of the web department.
The Respondent admits that at all times material, the
following named persons occupied the positions set op-
posite their respective names, and are now, and have
been at all times material, supervisors of Respondent
within the meaning of Section 2(11) of the Act, and
agents of Respondent within the meaning of Section
2(13) of the- Act: Frank- Sciutto, personnel manager;
'Andy Upchurch, foreman; and Dick Worthington, super-
intendent.
B. Respondent and the Union did not Fully Enforce
the Union-Security Clause
Respondent and the Union were parties to a collec-
tive-bargaining agreement (G.C. Exh. 2) which was ef-
fective from July 1, 1981, through October 31, -1983. The
agreement contained a union-security clause and a de-
scription of the limited status of probationary employees
as follows:
(4) The Employer agrees to employ only mem-
bers of the Union in the bargaining unit defined in
this contract 31 days following the effective date of
this agreement. New employees employed after the
effective date of this agreement within the bargain-
ing unit defined herein shall be required to become
members of the Union as a condition of employ-
ment 31 days following the beginning of such em-
ployment.
(5)• Probation. New employees may at any time
during the first 30 days ,of employment be dis-
charged without cause, except that employees who
are members of the Union before their employment
by the Employer shall have the protection given by
this agreement. [G.C. Exh. 2, pp. 1-2]'
Nevertheless, for several years, Respondent, --with
knowledge of the Union, employed some part-time pack-
ers who worked 1, 2, or 3 days a week as fill-ins for reg-
ular full-time packer-employees, who were on sick or
personal leave, vacation, or a holiday. The part-time
packers were substitutes for the regular full-time packer
employees, and they only reported to work when they
were called in by management. Part-time employees re-
ceived the same wage rate as full-time; employees, but
they do not receive other benefits of the collective-bar-
gaining agreement, such as: health and welfare plan; con-
. tributions to the pension plan; life insurance; vacation
and holiday pay; and time off for injury with pay.
During the years 1981 through July 1983, Harry Hamil-
ton was union chapel chairman at Respondent's facility.
Also during the same period, the union-security clause of
the agreement was not fully enforced by the Respondent
or the Union.
In fact, according to the undisputed testimony of Re-
spondent's personnel manager Frank ' Sciutto and Union
Business Agent Jerry Kruse the parties pursuant to a
1981 verbal conversation with Union Chapel Chairman
Jerry Hamilton and the Respondent, they acquiesced in
allowing part-time employees to work in excess of 31
days without joining the Union or becoming a part of
the appropriate unit, in order to allow Respondent to
better evaluate the work of the part-time employee, or to
await the availability of a full-time position. This verbal
understanding was honored by Respondent and- the
Union throughout Hamilton's tenure as union chapel
chairman. From time to time, Hamilton would approach
management on behalf of-part-time packers to become
full-time employees; and several part-time packers
became full-time packers when a full-time - position
became available.
Daniel Ferguson was hired as a part-time packer in
March 1981, and Dale Rockey was hired as a part-time
packer on December 24, 1982. Both employees under-
stood they were part-time employees. James Elkins has
been in Respondent's employ 14 years and in August
1983 he succeeded Harry Hamilton as union chapel
chairman. He had been aware of how Hamilton and Re-
spondent permitted employees to work beyond 31 days
without becoming a member of the unit, and he had pre-
viously stated that he would do a better job when he
became chapel chairman.- Some time after exceeding 31
days on the job, Daniel Ferguson became concerned
about not being entitled to the benefits -received by full-
time regular employees.
On September 15, 1983, Dan Ferguson approached
Chapel Chairman Elkins, in the presence of packer Dale
Rockey, and asked Elkins could he do anything to have
him placed in the Union (unit) because he had been there
in excess of 31 days. Elkins told Ferguson. he would see
what he could do and he immediately went to the office
of Personnel Manager Frank Sciutto where Supervisor
' The facts as set forth above are uncontroverted and are not in con-
flict in the record.
ROSENTHAL-KAUFMAN LITHOGRAPH CO 823
Andy Upchurch and Superintendent Dick Worthington
were present Elkins told them he had three men who
had been there in excess of 31 days and he would like to
have them become a part of the appropriate unit. Super-
visor Upchurch asked who were, the three men, and
Elkins told him Dale Rockey. Dan Ferguson, and Paul
Hommelmeyer. According to Elkins, Upchurch told him
the three men were not full-time employees and they
could not be included in the unit. Elkins told Upchurch
it did not make any difference, they were there in excess
of 31 days and should be included in the unit. Finally,
Upchurch said if that is the way it is in the union-securi-
ty clause, he would have to let the people go.
Upchurch testified Elkins told him the Union was
going to enforce the 30-day rule in the contract; that
either the Company hire full-time packers or it could not
use the part-time packers after that, day. Upchurch said
he explained to Elkins that he needed the part -time em-
ployees because they were trained. He had also checked
the personnel records and learned that employee Paul
Hommelmeyer had 6 days to go before he would have
been there 31 days.
According to the testimony of Personnel Manager
Frank Sciutto, Elkins told them the Union was not going
to allow the Company to continue to employ part-time
people in the web pressrooms; that Ferguson and
Rockey had exceeded 31 days work on the job and the
Company was going to have to hire them as full-time
regular employees, or let them go. Scuitto said he told
Elkins the Company did not have any full-time positions
at the time, and he admitted that management had been
approached on several occasions in the past by Chapel
Chairman Hamilton, requesting full-time work on behalf
of part-time employees Gary Roberts and Larry Kramer.
He said Elkins told them to hire the three part-time em-
ployees as full-time employees, or fire them. Sciutto said
he thereupon instructed Upchurch that neither Ferguson
nor Rockey was to be called in as part-time employees,
because they had exceeded the 31-day limitation,'now de-
manded enforcement by Chapel Chairman Elkins.2
In any event, a composite of the essentially consistent
and' credited testimony of Foreman Upchurch and pack-
ers Rockey and Ferguson established that on the next
day, September 16, Upchurch said to Ferguson and
Rockey, "Boys, this will be your last day because the Union
is on us to include you in the unit and we do not have any
permanent full-time positions at this time. " Shortly thereaf-
ter Upchurch approached Ferguson and Rockey in the
hall and asked them, "What are you guys doing here?"
Ferguson extended his hand to him and said , "It has
been nice working with you, or something like that," and
he asked Ferguson what did he mean and the latter said,
"Well, he said -since its our last day, I don't see any
2 I credit Manager Sciutto's account of the conversation , not only be-
cause I was persuaded by his demeanor that he was telling the truth, but
also because his account is essentially corroborated by Foreman Up-
church, because I was persuaded Sciutto's version is not a contradiction
of Elkins' account , but an extension of the same conversation after man-
agement told Elkins it did not have any full-time positions available This
conclusion is also consistent with Respondent's stated purpose for having
part-time packers, as well as Elkins' stated mission to enforce the union-
security clause of the contract -
reason why we have to work ." Thereupon he told them,
"You guys are going to be shutting two presses down
out there on the floor if you walk out of here." And
made the statement , "If you , walk off this job, if anybody
calls in here and asks for a job reference for either one of
you fellows that I ' ll tell them you walked off the job I
just don 't think that 's right to shut equipment down."
Upchurch said if Elkins had not given him the ultima-
tum, to hire them full time or fire them , he would have
kept Rockey and Ferguson employed.
Frank Sciutto stated that some regular employees on
layoff status worked part time because the Company
may not have full-time employment for them . When this
is so, he said they are called in to work by the foreman
strictly in accordance with seniority . Some of the full-
time employees who are called in are Bruce Carson, Jim
Manning , and Shoosh All these people must be called in
before management can call in a part -time employee.
Analysis and Conclusions
The issue presented for determination herein is, wheth-
er Respondent, in view of a union-security clause in the
collective-bargaining agreement, violated Section 8(a)(1)
and (3) of the Act, by terminating part-time employees
who have worked in excess of 31 days, because the em-
ployees requested (through their union representative) to
receive the same fringe benefits of the agreement en-
joyed by full-time employees
The record evidence is clear that Respondent em-
ployed full-time regular packer-employees as well as
part-time packer-employees who removed the product
from the presses in the pressroom The collective-bar-
gaining agreement between the Respondent and the
Union refers to the term "employees" in several respects,
but it does not subdivide or differentiate in any way one
employee from another. Hence, it is reasonable to con-
clude that the term "employee" or "employees" means
,employees in general, or all employees as a unit. Charg-
ing Parties Daniel Ferguson and Dale Rockey were em-
ployed as part-time packer-employees. The uncontrovert-
ed evidence has established that part-time packers fill in
for, and perform the identical work as, full-time packers.
Consequently, since full-time regular packers and part-
time packers perform identical work, work under a
common supervisor, have regularity of working days per
week, and appear to share the same community of inter-
ests, the part-time packers would ordinarily fall within
the same work classification as the full-time packers for
purposes of constituting an appropriate unit for collec-
tive bargaining.' Mount Sinai Hospital, 233 NLRB 505
(1977). The record does not contain any evidence indi-
cating a contrary conclusion, and the parties in this pro-
ceeding did not dispute or contest the propriety of in-
cluding part-time packer-employees in the existing unit.
Moreover, it is particularly noted under (5) of the
"Mutual Agreement" topic of the collective-bargaining
agreement , page 2, "Probation," provides that new em-
ployees may at any time during the first 30 days of em-
ployment be discharged without cause, except that "em-
ployees who are members of the Union before their em-
ployment by the employer shall have the protection
824 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
given by this agreement." This language seems to make
it clear that the probationary period for new employees
is 30 days It also suggests that after a 30-day probation-
ary period such new employees shall have the protection
given by the agreement.
Although Respondent orally agreed with the Union to
pay part-time packer-employees the same wage rate
given full-time packer-employees, without other fringe
benefits provided under the contract and enjoyed by full-
time packer-employees, such verbal agreement does not
necessarily convert a part-time packer-employee into an-
other and conflicting classification of worker, so as to ex-
clude -him from the same classification of full-time
packer-employees. The Union-security clause of the
agreement provides that Respondent "agrees to employ
only members of the Union in the bargaining unit de-
fined in this contract 31 days following . . . the begin-
ning of such employment."
The collective-bargaining agreement's general defini-
tion of the appropriate unit is as follows:
Sec. 3 (1) Jurisdiction and Union Security
It is understood that this contract applies to the
Union pressrooms operated by the Employer, and
that the jurisdiction of this contract extends over all
printing presses employed in said pressrooms, in-
cluding but not limited to gravure, offset and letter-
press printing presses and associated devices (all
work in connection with offset platemaking, camera
operation, all darkroom work, stripping, opaquing
and platemaking).
(2) The party of the first part hereby agrees not to
sign. any agreement with any other organization
claiming jurisdiction over the operation of any de-
vices connected with offset platemaking, camera op-
eration, all darkroom work, stripping, opaquing and
platemaking. _
The language of the above-unit description is general,
broad in scope , and appears to include all in-house em-
ployees directly involved with the printing-publication
operation itself. It also appears sufficiently specific to in-
clude packers (full time and part time),who work in the
pressrooms. Ferguson has worked as a packer in the
pressrooms consistently for almost 17 months, and
Rockey' has worked as a packer in the pressrooms con-
sistently for almost 9 months, after respectively complet-
ing their probationary period of 30 days. It is therefore
clear that both Ferguson and Rockey are unit employees
as defined by the collective-bargaining agreement, as
well as by the work they perform. Additionally, unlike
the part-time employees in Republic Corp., 260 NLRB
486, 506 (1981), Ferguson and Rockey were hot tempo-
rary employees but permanent part-time employees.
They had never been laid off. Moreover, other part-time
packer-employees were hired full time and included in
the unit on their request, after completing a 30-day or
more probationary period. Based on that relatively con-
sistent past practice of hiring permanent part-time em-
ployees as full=time packer-employees, it may be reason-
ably inferred that Ferguson and Rockey had a reasonable
expectancy of continued employment and eventual en-
joyment of the fringe benefits enjoyed by full-time
packer-employees under the collective-bargaining agree-
ment.
The credited evidence is without dispute that Fergu-
son and Rockey had complained to Union Chapel Chair-
man Elkins about Respondent's failure to include them in
the unit , or to apply the fringe benefits of the collective-
bargaining agreement to them as packers Thereupon,
Elkins, on behalf of Ferguson and Rockey, complained
to Respondent about its noncompliance with the union-
security clause, by not including Ferguson and Rockey
in the unit so as to provide them with the fringe benefits
of the collective-bargaining agreement . When Respond-
ent advised Elkins that it did not have any full-time posi-
tions for Ferguson and Rockey,'Elkins told Respondent
to include them in the unit, or discharge them pursuant
to the union-security clause of the collective-bargaining
agreement. Respondent thereupon discharged Ferguson
and Rockey. Under these circumstances, it is clear that
Respondent discharged Ferguson and Rockey because of
their complaint (communicated to Respondent by Elkins)
to be included in the unit, so that they would receive the
fringe benefits provided under the collective-bargaining
agreement. -
The Board has repeatedly held that employees who
sought to invoke the assistance . of the Union, or to en-
force provisions of the collective-bargaining agreement,
are engaged in protected concerted activity, and ,that dis-
charge of an employee for engaging in such protected
conduct is discriminatory and 'in violation of Section
8(a)(1) and (3) of the Act. Alberstons, Inc, 252• NLRB
529 (1980); G & M Underground Contracting Co., 239
NLRB 78 (1978); Potlatch Corp., 236,'NLRB 707, 708
(1978); and Lafferty Trucking Co., 214 NLRB 582, 584
(1974). The Board has further held that the protection of
such conduct extends not only to tenured employees, but
to probationary employees as well. Amole, Inc., 214
NLRB 67 (1974).
In view of the foregoing evidence, I am persuaded
that Respondent's joint motive for discharging Ferguson
and Rockey was because they complained (through
Chapel Chairman Elkins) about not being included in the
unit and enjoying the fringe benefits of the agreement,
and upon the Union's (Elkins') ultimatum to Respondent
to hire them full time or discharge them, pursuant to the
union-security clause of the agreement. I am further per-
suaded by the evidence that Respondent would not have
discharged Ferguson and Rocky if they had not com-
plained about not being included in the unit and not re-
ceiving the fringe benefits provided by the agreement.
Therefore, viewing the evidence from every mention
most favorable to Respondent, the conclusion is inevita-
ble, and I find, that Respondent discharged Ferguson
and Rockey because they complained about not being in-
cluded in the unit and not receiving the same fringe ben-
efits under the collective-bargaining agreement, enjoyed
by full-time packer-employees. Such conduct by Re-
spondent was discriminatory and in ;violation of Section
8(a)(1) and (3) of the Act.
Although Respondent took its alternative discharge
action at the behest of the Union (Elkins), Respondent is
ROSENTHAL-KAUFMAN_ LITHOGRAPH CO 825
.Independently responsible for its own actions and inac-
tions under the National Labor Relations Act. While the
Union recommended the discharges of Ferguson and
Rockey as an alternative to their inclusion in the unit, it
is clear that the Union's primary motive was to enforce
the union-security clause of the contract in an effort to
protect its members from the erosion of unit work
brought about by Respondent's employing part-time ten-
ured employees which it failed to include in the unit.
Moreover, , unlike the Respondent, the Union is not
charged with any violation of the Act in the instant pro-
ceeding, but even if it were, such fact would not excuse
the Respondent from not complying with the agreement
or the. Act itself. Additionally, it is noted that Respond-
ent did not produce any evidence establishing that Fer-
guson or Rockey would have been laid off absent their
requests to be included in the unit and covered by the
agreement, so as to justify Respondent's discharge of
them under Wright Line, 251 NLRB 1083 (1980). -
Respondent contends it discharged Ferguson and
Rockey because the Union demanded it hire them full
time or discharge them. Since Respondent also contends
it did not have- any full-time positions available, Re-
spondent said it discharged them because it did not V want
to have trouble or difficulty with the Union, in view of
the upcoming negotiations for a new collective-bargain-
ing agreement. If Respondent did not, in fact, have any
full-time positions available, it nevertheless failed to
produce any evidence that the Union would cause prob-
lems or difficulty in the upcoming negotiations. While
the Union's (Elkins) ultimatum to Respondent might
have suggested some kind of union action if Respondent
failed- to act, it would be presumptuous to conclude that
any action by the Union would have been wrongful or
harmful to Respondent. The Union might very well have
meant it would have grieved and litigated the issue. I am
therefore not persuaded that Respondent's unsupported
contention justified its unlawful discharge of Ferguson
and Rockey
Nor is the fact that the Union at times acquiesced in
not enforcing the union-security clause of the agreement
a sufficient basis for justifying Respondent's noncompli-
ance with the contract, or its violation of the Act by dis-
charging Ferguson and Rockey. The evidence of record
does not demonstrate that such acquiescence by the
Union constituted a waiver by employees Ferguson and
Rockey. In fact, both Ferguson and Rockey. had spoken
to Chapel Chairman Elkins, on at least one, if not more
than one, occasion about including them in-the unit and
providing them with the fringe benefits of the agreement.
Their continuing concern and repeated request could
hardly constitute a waiver by them - or the Union for
their inclusion in the unit.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily dis-
charged employees Daniel Ferguson and Dale Rockey, I
shall recommend that Respondent must offer them rein-
statement with the same fringe benefits provided under
the contract provided to other full-time employees, and
make them whole for any loss of earnings and other ben-
efits of part-time employee packers, computed on a quar-
terly basis from the date of their discharge, less earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp,
231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1 S. Rosenthal and Company, Inc.,, d/b/a Rosenthal-
Kaufmann Lithograph Company is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Cincinnati Printing Pressmen, Assistants and Offset
Workers' Union No. 11, International Printing and
Graphic Communications Union, AFL-CIO is, and has
been at all times material , a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing to enforce the union-security clause of the
collective- bargaining agreement, in not including regular
part-time packer-employees in the unit and not applying
the fringe benefits of the agreement to them, Respondent
violated the Act.
4. By discriminatorily discharging Daniel Ferguson
and Dale Rockey on September 16, 1981, because they
sought to invoke the assistance of the Union to enforce
the provisions of the collective-bargaining agreement, the
Respondent engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]