Standard Rate & Data Service, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 1961

133 N.L.R.B. 337 (N.L.R.B. 1961)

STANDARD RATE & DATA SERVICE, INC. 337
Standard Rate & Data Service, Inc. and Alfred J . Gies. Case
No. 13-CA-3555-2. September 22, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner Stanley Gilbert issued his
Intermediate Report, finding that the Respondent had engaged 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. The Trial Examiner also found
that the Respondent had not engaged in another certain unfair labor
practice and recommended that the complaint be dismissed with re-
spect to such allegation. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
Subsequently, by order dated February 9, 1961, the Board remanded
this matter to the Trial Examiner, who was directed to hold a further
hearing to permit the parties to introduce evidence concerning the
validity and/or meaning of a document identified as Respondent's
interoffice memorandum of September 22, 1959, and admitted into
evidence as Exhibit No. 3. After a further hearing was held, the Trial
Examiner, on May 10, 1961, issued his Supplemental Intermediate
Report, attached hereto, amending in certain respects his original In-
termediate Report. Thereafter, Respondent filed exceptions to the
Supplemental Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in correction with this case to a three-member
panel [Members Rodgers, Leedom, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and find that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Supplemental Intermediate Report, the exceptions
and briefs, and the entire record in this case, and hereby adopts the
findings, conclusions, and recomendations of the Trial Examiner ex-
cept as modified herein.'
We do not agree with the Trial Examiner's finding that the Re-
spondent did not violate Section 8(a) (1) by its conduct in connection
with the poll of its employees' union sentiments.
1 Member Rodgers is of the opinion that the record does not establish that the Respond-
ent was aware of the organizational activities of its employees prior to its decision to
grant them a wage raise and , accordingly , would not find that this wage raise was designed
to discourage union activity and, therefore , violative of Section 8(a) (1). In adopting
the Trial Examiner 's finding that the Respondent had knowledge of employee Alfred J.
Gies' union activities before it discharged him in violation of Section 8(a) (3), Member
Rodgers does not rely upon the smallness of the composing room.
133 NLRB No. 39,
624067-62-vol . 133-23
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the poll of composing room employees was secret and
tallied by employees after representatives of management had with-
drawn, it was conducted at the suggestion of Respondent's president
who had previously stated that he preferred not to have a union repre-
sent the employees. The poll occurred at a meeting held in the office
of Respondent's officer in charge of the composing room, and the meet-
ing was called by Respondent to explain employees rights in a union
organizational campaign after management had learned of the cam-
paign and had increased wages to discourage such activity.
In these circumstances, we find that the polling of the Respondent's
composing room employees concerning their union sentiments, occur-
ring as it did in a context of an unlawful wage increase, violated
Section 8 (a) (1). Polling employees in such an atmosphere tends to
undermine the Union, and therefore constitutes interference, restraint,
and coercion.2
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, Standard Rate &
Data Service, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Suggesting the polling of its employees as to their union senti-
ments under circumstances constituting interference, restraint, and
coercion within the meaning of Section 8(a) (1) of the Act.
(b) Discouraging membership in and activities on behalf of Chi-
cago Typographical Union, No. 16, or in any other labor organization
of its employees, by discharging or refusing to reinstate any of its em-
ployees or in any other manner discriminating in regard to hire or
tenure of employment, or any other term or condition of employment.
(c) Coercively or otherwise unlawfuly interrogating employees
regarding union membership or activities, granting or implying the
granting of economic benefits in order to discourage organizational
activities, or in any other manner interfering with, restraining, or
coercing employees in the exercise of the right to self-organization, to
form or assist labor organizations, to join or assist Chicago Typo-
graphical Union, No. 16, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the Act,
and to refrain from any and all such activities, except to the extent
2 See Stewart Hog Ring Company , Inc., 131 NLRB 310.
For the reasons set forth in the Intermediate Report and also because he would not find
that the Respondent violated the Act by granting a wage increase, Member Rodgers would
find that the Respondent did not violate Section 8(a)(1) of the Act by suggesting that
the employees have a poll . In his opinion , this bare suggestion neither interfered with,
nor restrained , nor coerced these employees in the exercise of their rights under Section 7
STANDARD RATE & DATA SERVICE, INC. 339
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 modified by the Labor-Management
Reporting and'Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
(a) Offer to Alfred J. Gies immediate and full reinstatement to his
former or a substantially equivalent, position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered as a result of the discrimination
against him in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due and the
right to reinstatement under the terms of this Order.
(c) Post at its plant in Skokie, Illinois, copies of the notice attached
hereto marked "Appendix." 9 Copies of said notice, to be furnished by
the Regional Director for the Thirteenth Region, shall, after being
duly signed by the Respondent, be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Respondent shall take reasonable steps to in-
sure that such notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
3In 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, we hereby notify our employees that :
WE WILL NOT suggest that polls be taken of our employees as to
their union sentiments under circumstances constituting inter-
ference, restraint, and coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT discourage membership in or activities on behalf
of Chicago Typographical Union, No. 16, or any other labor
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, by discharging or refusing to reinstate any of our
employees or in any other manner discriminating against our em-
ployees in regard to their hire and tenure of employment, or any
term or condition of employment.
WE WILL NOT coercively or unlawfully interrogate our em-
ployees regarding their union membership- or activities.
WE WILL NOT grant or imply that we will grant economic bene-
fits to our employees in order to discourage membership in or
activities on behalf of Chicago Typographical Union, No. 16, or
any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Chi-
cago Typographical Union, No. 16, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or mutual aid or protection, and
to refrain from any or 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 author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer to Alfred J. Gies immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and will
make him whole for 'any loss of earnings suffered as a result of the
discrimination against him.
All our employees are free to become or to refrain from becoming or
remaining members of Chicago Typographical Union, No. 16, or any
other labor organization.
STANDARD RATE & DATA SERVICE, INC.,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner in Chicago,
Illinois, on June 20, 1960 , on complaint of the General Counsel , as amended during
the course of the hearing, and answer , as amended during the course of the hearing,
of Standard Rate & Data Service , Inc. (hereinafter called the Respondent or Com-
pany ). The issues litigated were whether the Respondent violated Section 8(a)(1)
and (3 ) of the Act. The parties represented waived oral argument but filed briefs.
Upon the entire record, and from my observation of the witnesses , I hereby make
the following:
STANDARD RATE & DATA SERVICE, INC.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
341
Respondent, an Illinois corporation, is engaged in the business of publishing ad-
vertising rates and data and maintains its principal office and plant in Skokie, Illinois.
During the calendar year 1959, a representative period, Respondent had a direct
inflow of goods and materials from States other than Illinois of a value in excess
of $100,000. I find, as admitted by Respondent, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that assertion of jurisdic-
tion is warranted.
II. THE LABOR ORGANIZATION INVOLVED
Chicago Typographical Union, No. 16 )(hereinafter called the Union), as admitted
by Respondent, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint , as amended , alleges, in essence , that Respondent violated Section
8(a)(1) of the Act by ( a) granting a wage increase to discourage union activities,
(b) directing a poll of its employees as to their union sentiments , and (c) interro-
gating an employee concerning the Union and promising him economic benefits to
discourage union organization . The complaint further alleges that the Respondent
violated Section 8(a) (3) of the Act by discharging Alfred J. Gies for his union activ-
ities. The Respondent in its answer, as amended , denies these allegations.
A. The wage increase
In substance, the position of the General Counsel is that Respondent violated
Section 8(a) (1) of the Act by granting a wage increase on September 22, 1959, in
order to induce its composing room employees to refrain from union membership
and activities. Respondent's position is that it did not violate the Act, since it had
decided to grant the wage increase before union organization started and announced
the increase on September 22 before it had knowledge of its employees' organizational
activities. These activities commenced on or about September 15, with discussions
among the employees as to certain dissatisfactions and the desirability of joining a
union.
Alfred J. Gies, who acted as spokesman in contacting the Union for those employ-
ees who evinced an interest in organizing, testified, "I had questioned various ones
[fellow employees] after a lot of conversation had gone on and it seemed as if the
majority were interested in becoming union members." He further testified that
be called the Union on September 17 or 18 and the next day met with a union or-
ganizer at which time he signed an authorization card. The card bears the date
September 19, 1959.
On September 22, 1959, Respondent called a meeting of its composing room em-
ployees and announced a plantwide increase of wages effective as of September 1,
1959. The increased wages, in the main, were in accord with the union scale prevail-
ing in the area for the same job classifications. No statement was made at this
meeting referring in any respect to labor organizations. Respondent's witnesses,
Charles D. Winders, vice president of Respondent in charge of printing production,
and Joe D. Landon, vice president in charge of personnel, testified that they had
no knowledge of union activity prior to September 24, 1959. The new wage scale
was set forth in detail in a memorandum, dated September 22, 1959, prepared by
Winders. It may be inferred from the nature of the positions of these witnesses and
Winders' responsibility for the preparation of the memorandum changing the wage
scale that, if the wage increase had been motivated as charged in the complaint,
Winders and Landon would have had knowledge of the organizational activities of
the composing room employees.
I am not persuaded, however, by the denials of knowledge on the part of these
witnesses. There are various factors which lead me to conclude that it is reasonable
to infer that Respondent did have knowledge of the organizational activities of its
employees prior to its decision to grant the wage increase and that the increase was
granted to discourage these activities.
Winders wrote a memoradum bearing the date of September 3, 1959, on the sub-
ject: "Review of Hourly Rates in Production-SRDS Scale v. s. Union Scale Wage"
directed to various members of Respondent's management. In it he stated that be
and Landon agreed that the danger of union organization did not lie in the area of
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages, and that he is "so sold on our own program and feel certain that a large ma-
jority of production personnel is completely satisfied that I would hate to see a return
to union wage practices." But he added: "I am not suggesting that we attempt to
save the few dollars if a risk is indicated."
Respondent's witnesses, Winders and Landon, testified that Winders' recommenda-
tions regarding the wage scale were considered and overruled at a management con-
ference on September 4, at which time it was decided to make the revisions in the
wage scale ultimately set forth in Winders' memorandum of September 22. Winders
explained that he was so busy with equipping the new plant during the preparation
of the move into the new building (which took place over the period between
September 14 and 21) that he required the intervening time between September 4
and 22 "to draw all the recommendations in the revised memorandum to a head and
submit them for approval." He testified, "When we received approval of the 22nd
memorandum on the 22nd, it was decided to make an immediate announcement of
the wage increases and as I say the various other elements of this memorandum."
I do no find the explanation very convincing. To accept it would require that I
make findings of fact which, in the light of surrounding circumstances, are not rea-
sonably inferrable, and to overlook or disregard other facts which strongly indicate
that the allegation of the complaint with respect to the wage increase is well-founded.
I would have to find that it was a mere coincidence that during the week immediately
preceding the announcement of the increase the composing room employees were
engaged in organizational activities. To be sure the timing, of itself, might not
necessarily establish the unlawful motivation of the wage raise. However, the
motivation becomes apparent when the timing is considered in context with the
following circumstances:
(a) The express language of the September 3 memorandum evidenced a "hate"
to return to union scale unless there would be a risk of union organization. This
appears to be more than the position of one man but rather an expression of the
policy followed by Respondent prior to September 22. I cannot believe that the
policy was changed on September 4 in view of the haste with which the Respondent
acted on September 22. All on that 1 day the memorandum was completed; it was
approved by management; and its contents announced to employees convened
for that purpose. If Respondent desired to announce to its employees the con-
version to union scale as soon as possible, it would appear that it could have done
so on, or shortly after, September 4, at which time it contends the decision was made,
and the details contained in the September 22 memorandum could have been an-
nounced later.
(b) According to the September 3 memorandum, conversion to union scale was
recommended only in the event failure to do so would give rise to a risk of union
organization. In view of the fact that shortly thereafter Respondent changed to
union scale, it appears reasonable to accept as likely that the existence of the very
factor mentioned in the memorandum-awareness of the risk of union organi-
zation-prompted the conversion.
(c) It is evident that Respondent considers adherence to union scale as a de-
terrent to union organization. According to the testimony of Michael McAuliffe, in
the not too distant past, August or September 1958, Respondent was aware that its
announcement that it would no longer follow the union scale caused dissatisfaction
among its employees. Thus, in its publication "Inside SRDS" appeared an article
with regard to the forthcoming election set by the Board, in which one of the argu-
ments made by Respondent against unionization was the fact that "hourly rates now
being paid by SRDS in the composing room are the same as the union scale paid in
other shops in the Chicago area." Accordingly, it would appear appropriate to
infer that the Respondent took the action of resorting to unioti scale because it
became aware of the possibility of unionization and by so doing hoped to fore-
stall it.
(d) Coupled with foregoing is the additional consideration that in view of the
smallness of the composing room of only 28 employees and the considerable
amount of organizational discussion among them it can be inferred that the Re-
spondent must have gained knowledge of such activities. Wiese Plow Welding Co.,
Inc., 123 NLRB 616, 618; Bituminous Material & Supply Co., 124 NLRB 945.
To sustain Respondent's contention there is only the word of two officials of the
Company which, in view of the foregoing, I cannot credit. Accordingly, I do not
find Respondent's explanation for the granting of the raise at such a strategic time
to be valid, and do find that the Respondent was aware of the organizational
activities of its employees prior to the decision to grant them a wage raise and that
it was motivated by the desire to discourage such activities.
STANDARD RATE & DATA SERVICE, INC . 343
B. The poll
Respondent 's witnesses testified that they learned of the composing room em-
ployees' organizational activities on September 24 or 25, and that some of the em-
ployees were disturbed by it . On September 25, the employees were convened in
Winders' office, according to Winders , in order to "let them know their position as to
how they would proceed or that they needn 't fear . . ." and, as stated by Landon,
"to explain to our people their rights under the law as far as organization is con-
cerned ." Their intention , it is evident, was to forestall a bandwagon effect and
possible pressure tactics in the organizational campaign.
There is very little conflict , if any, in the testimony as to what occurred at the
meeting. C. L. Botthof , president of the Company , stated to the employees that he
had heard of the Union 's activities and that while he preferred not to have a union
represent the employees , nevertheless , he would not object if all the employees or a
majority of them wished it. Statements were made by management of the dis-
advantages of a union , but there is no allegation or evidence that these statements
were violative of the Act. During the course of the meeting it was suggested that a
poll be taken to determine either how many were in favor of the Union or how many
had signed cards.' It is not clear from the testimony of any of the witnesses except
Landon as to what prompted the suggestion of a poll . Nothing in the testimony of the
other witnesses contradicts Landon 's version which I credit , namely, that some of
the employees raised the question during the course of the meeting of whether it
was true or not that a majority had signed union cards since the union partisans
had asserted-"we have more than one half signed , if you do not sign up , it is too
late."
When the question arose Botthof suggested that it could be answered by a show
of hands? Gies objected to a "show of hands " and one of the employees suggested
a secret ballot . It is clear that thereafter all the representatives of management
withdrew and the poll was conducted by the employees themselves with secret
ballots. It is not clear whether the results were announced to the employees or, if
they were , how such announcement was made or by whom . Management learned
of the results when the information was volunteered by one of the employees.
General Counsel contends that Respondent directed the poll and that in so doing
it violated Section 8(a)( I) of the Act . In support of this position he cites Old King
Cole, Inc., 117 NLRB 297; Apex Toledo Corporation, 101 NLRB 807; and The
F. C. Russell Company, 92 NLRB 206. These cases are clearly distinguishable from
the instant matter . In Old King Cole a company supervisor conducted the poll which
was not secret in that, even though no names were put on the ballots , the supervisor
was able to tell how each employee voted . In Apex Toledo, the respondent re-
quested the poll and utilized its results in its actions against unionization . In C. F.
Russell the Board found that the respondent was a principal participant in the poll;
among the facts leading to that conclusion were that the date of the poll was changed
at respondent's request and that its general manager was present during the balloting
and took part in the counting . In the instant matter , although the poll may have
been suggested by Respondent , it was not for the information of the Respondent but
rather for the information of the employees , information which they sought , and ade-
quate safeguards were set up to preserve the secrecy of each employee's ballot.
Winders testified , "Mr. Ceithaml pointed out very clearly if such a thing was done,
management wanted no part in it and certainly , it would be for their own information
and edification and we are not interested in the results." In view of the fact that
this testimony is not contradicted and of the conduct of management with regard to
the poll , I believe that this statement was made at the meeting substantially as stated.
I do not find that under the circumstances the poll had a coercive effect on the
employees or in any other way invaded the rights guaranteed them under the Act.
It was clear to them that the poll was not taken for use by the management against
them either individually or collectively and no fear could have been engendered in
them by their participation in the poll or by the way they marked their ballots.
Cf. Cone Brothers Contracting Company, 114 NLRB 303, 314-319.
1 There is conflicting testimony as to which of these questions was propounded on the
poll but, in view of my determination of what prompted it, I believe it was the latter
question
2 General Counsel ' s witnesses testified that an officer of the Company suggested that the
poll be taken , while Respondent 's witnesses could not remember who made the original
suggestion
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The interrogation
Following the testimony of Mitchell McAuliffe, General Counsel asked for and
was granted leave to amend the complaint to include an allegation that Respondent
violated Section 8 (a) (1) of the Act by interrogating an employee as to the Union
and promising economic benefits if he refrained from union activity. McAuliffe
testified to a conversation with Winders in October of 1959 as follows:
He said he had reason to believe I was a key man and that he thought there
were a few others.
Q. Key man for what, sir?
A. Union activities, and he asked me if I was for the Union and I said, "Well, I
have never said that." And he asked me if I was against the Union, and I said,
"Well, I have never said that either." And he said, "Well, you rather not say?"
And I said, "That is right, I'd rather not say." And he told me he thought people
came to me for advice. And I said, "That is right, and I give advice as I see it.
They are all over 21 out there."
Q. Do you recall anything else that was said at this meeting?
A. Yes he said personally, he could not see why the men would want the Union
in there, they they are just as well off as they are except for sick benefits, and he
said he thought possibly, some adjustment could be made to take care of sick
benefits, benefit insurance, that is.
Winders denied that he interrogated McAuliffe about the Union or made him any
promise, although he admitted the possibility of having a conversation with him at
the time alleged. In response to the question whether he recalled ever discussing the
Union with McAuliffe, he answered, "Yes, I think probably there were some re-
marks made which were volunteered by him. As I say, I only lend a listening ear.
I very carefully avoided discussing this with the people."
The demeanor of the witnesses , the substance of their respective testimony, and
the fact that McAuliffe is still an employee of the Respondent lead me to credit
McAuliffe's testimony. Therefore, I conclude that he was interrogated as to his
union activities and that it was implied by Winders that the Company might arrange
for health insurance should the Union be rejected by the employees. Although this
is the only instance of this nature in the record, nevertheless I consider that it must
be regarded as more than a mere isolated act in that I believe Winders sought to
communicate the possibility of health insurance to the employees through McAuliffe,
who apparently was of influence among them, and, also in view of the other
violations of the Act I herein find to have been committed.
The Discharge of Gies
General Counsel contends that Gies was discharged on December 31, 1959, for
reason of his union activities. He had been in the employ of Respondent as a
compositor since June 1953. Respondent contends that in the annual survey prior
to establishing its budget for the coming year it had been determined that a re-
duction-in-force was warranted ; that the merits of the employees were evaluated;
that it was decided Gies' qualifications (particularly his "job attitude") were the
poorest; that Respondent did not follow a seniority system; and that Gies' union
activities were not considered in selecting him. The record does not disclose that
anyone was hired to replace him. The issue is whether or not the selection of Gies
in the reduction-in-force was prompted by' his union activities.
Gies was largely responsible for the commencement of the organizational activi-
ties of the composing room employees and was the most ardent in promoting the
Union. For several days, starting September 15, 1959, he discussed the desirability
of unionization with his fellow employees, questioning them as to their sentiments,
and on September 18, 1959, he, as spokesman for those who were interested, con-
tacted the Union and, thereafter, cooperated with the organizers detailed by the
Union. His leadership in the organizational activities was evident to management,
for in the meeting of September 25 (at which the poll was taken) he was the most
articulate of the employees in the discussion of the advantages and disadvantages of
a union . During the course of the meeting it was he who pointed out that the
Union offered a better apprenticeship program than the one followed; he raised
the question of job security; and he also objected to the balloting by a show of
hands. Oscar H. Simms, Gies, supervisor, testified:
The WrrNESS: Well, actually, I did not know that Mr. Gies was active in the
union or was working under the jurisdiction of the union . I sort of surmised it
might be so at the meeting of the 25th of September, but I was not definitely
sure.
STANDARD RATE & DATA SERVICE, INC. 345
Others of management who were at the meeting had the same opportunity of ob-
serving Gies' conduct there and undoubtedly arrived at, at least, as strong a sus-
picion as that of Simms as to the extent of Gies' sympathies in favor of and activities
on behalf of the Union.
In view of the smallness of the composing room, the extent of Gies' discussion
with fellow employees about the Union, and particularly the strong union partisan-
ship he displayed at the meeting of April 25, it appears reasonable to infer that
Respondent had knowledge of the fact that Gies played a leading role in the organiza-
tional activities.
Gies testified that about 4 p.m. on December 31, 1959, he was called into the
personnel office where Winders told him there was to be a reduction-in-force be-
cause work was slowing down. Gies said, "Well, you don't have to say anything
further. Just mail me my check." Landon handed him his check. He further
testified that he had neither been given prior notice that he was going to be laid off
or discharged, nor prior warning that his work was not satisfactory. It is admitted
by Respondent that other journeymen in the same category as Gies were retained
although they had less seniority.
Winders testified that the selection of the persons to be terminated was made on
the long-established basis of the volume and quality of work of the individual and
his job attitude. He conferred with the two supervisors in the composing room
(George H. Done and Oscar H. Simms) and as a result of their evaluations of various
employees they arrived at the conclusion that the one linotype operator whom they
had decided could be released should be a Vernon Smith and the floorman, Alfred
Gies. Winders, Done, and Simms testified as to various incidents in Gies' record
which led them to the determination that he was incompetent and insubordinate.
Winders testified that about "a year and a half ago" Gies wanted some time off.
Simms, being short of help at the time, refused to let him go. Gies was upset and
said, "Well, that tells me which way to go." On another occasion Simms asked him
to do some work other than that which he was doing to which Gies responded, "I
can't do two things at once." Winders testified that "with considerable grumbling
and argument, he finally cooperated but very unwillingly." On a third occasion,
which occurred after September 1959, Winders testified that Gies told his super-
visor that she wanted the same wage as a man for whom he was substituting. There
were no written records of these incidents, but Winders testified:
In our organization, where there are four supervisors supervising 28 people in
this area, we have not made a practice of keeping something-except the very
flagrant violations of-keeping written records of reports. It is certainly ob-
vious with that type of supervision, we are able to know our men intimately-
their work, their habits and their capabilities and that has been the practice in
our area.
Done and Simms corroborated Winders' testimony as to the decision that two
men in the composing room could be released, the basis for determining which
employees should be selected, and that Gies' union activities played no part in the
determination, but rather that they had no knowledge of his activities.
Done also testified that prior to becoming foreman he had had experiences with
Gies which led him to believe Gies was the appropriate man to be released. As an
instance, he related an incident when Gies had failed to follow instructions on a job
which had been relayed to him by Done and that when he pointed that out to Gies,
Gies told him to mind his own business and did not speak to him for about a
month He further testified that Gies was a "sloppy" worker and had that reputa-
tion; that he had "moods" when he displayed a dislike for the work assigned to him;
and that his work was not up to a "good standard." On the other hand he also testi-
fied that when he, Done, became foreman, Gies was very cooperative with him and
that Gies was a fast worker.
Simms corroborated Winders' testimony with respect to the first two incidents
which Winders related and also testified as to an incident in which Gies indicated he
was dissatisfied with the type of work he was doing and desired to be transferred to
another department. He further testified that Gies was a poor worker and had that
reputation. He realized that Gies was a "sloppy" worker for 2 or 3 years. Over
that period he had taken work back to Gies with which he had found fault but had
never reprimanded him or warned him about the quality of his work However, he
also testified that he has "called" other employees on the "calibre" of their work.
Several of the employees in the composing room called as witnesses by the Gen-
eral Counsel testified that they had never observed Gies to be belligerent or insub-
ordinate. Lawrence Ghislin testified that Gies had a reputation of doing poor work
but that others whom he considered not as good as Gies were retained. Michael
Matz was of the opinion that Gies was a competent worker and McAuliffe that he
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was "as good as the others." While these opinions of the quality of Gies' work of
themselves would not be very persuasive, other factors tend to establish that man-
agement 's true estimate of Gies' job performance was in accord with the estimates
of these employees. 'First, there is the fact that Gies was employed by Respondent
for over 6 years which would indicate that management considered him to be com-
petent. Second, there is no indication that he was ever warned that his work or his
job attitude was considered substandard. And third, and extremely convincing, is
the fact that as late as the end of September 1959, management itself appraised him
as being a "standard" worker and that two employees in the same job classification
as Gies were considered "sub-standard" but were, nevertheless, retained.
In his memorandum of September 22 (which was approved by others of man-
agement) Winders stated with respect to granting journeymen union scale: "It is
understood that those employees performing substandard will be held below the basis
rate.. . In the schedule of the individual employees in the composing room it is
noted that of the eight "Day Floor Journeymen" (of which Gies was one) six were
given the basic rate including Gies, and two, J. Pressi and A. Pina, were held below
the basic rate. There is nothing in the record to indicate anything which occurred
in the short period thereafter before Gies was discharged to have warranted a re-
appraisal of the estimates by management of the caliber of work of the "Day Floor
Journeymen" made at a time when Gies' role in the organizational activities was
not known or, at least, not as apparent as it became later.
I am not overly impressed with the reasons ascribed by Respondent for the selec-
tion of Gies in the reduction-in-force or the testimony in support thereof. The
episodes which were related by Respondent's witnesses to show his incompetence
and poor job attitude were not considered of sufficient importance to have been
reduced to writing, only the "very flagrant violations" being recorded. There is no
indication that Gies was warned or even reprimanded with respect to these incidents.
In view of the foregoing I cannot accept Respondent's contentions with' respect
to the selection of Gies in the reduction-in-force but, on the contrary, find that the
allegations of the complaint with respect to his discharge have been sustained.
In summary, I find that Respondent violated Section 8(a)(1) of the Act by grant-
ing a wage increase in order to discourage union organization, by interrogating an
employee as to his union activities, and through him attempting to imply to the
employees that it would give them the benefit of health insurance should they reject
the Union. I also find that Respondent violated Section 8(a)i(3) of the Act by its
discharge of Alfred J. Gies. I do not find that the record sustains the allegation
in the complaint that Respondent violated Section 8(a)(1) of the Act by directing
a poll of its employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondent discriminated in respect to the hire and tenure
of employment of Alfred J. Gies, I shall recommend that Respondent be ordered
to offer him immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other rights and privileges. I shall
further recommend that Respondent be ordered to make Alfred J. Gies whole for
any loss of earnings he may have suffered as a result of the discrimination against
him by the payment of a sum he would normally have earned from the date of his
discharge to the date of the offer of reinstatement, less his net earnings during said
period, with backpay computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also
recommend that the Respondent make available to the Board, upon request, payroll
and other records to facilitate the determination of the amount due under this rec-
ommended remedy.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in any
manner infringing upon the rights guaranteed to its employees by Section 7 of the Act.
STANDARD RATE & DATA SERVICE, INC. 347
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in respect to the hire and tenure of employment of Alfred J.
Gies, thereby discouraging membership in Chicago Typographical Union, No. 16,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
2. By the foregoing conduct, by interrogating an employee in respect to his union
membership and activity, and by implying the granting of an economic benefit of
health insurance should the employees reject the Union, the Respondent has inter-
fered with, restrained, and coerced employees in the exercise of their rights guar-
anteed in Section 7 of the Act, and, thereby the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The allegation in the complaint of a violation of Section 8(a)(1) by the
Respondent in directing a poll of its employees has not been sustained and it is
recommended that this allegation be dismissed.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT
The Executive Secretary of the National Labor Relations Board, hereinafter re-
ferred to as the Board, on February 9, 1961, by direction of the Board, issued an
order reopening record and remanding proceeding to Regional Director for further
hearing which provided, inter alia:
IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is,
reopened; and that a further hearing be held before Trial Examiner Stanley
Gilbert for the purpose of permitting the Respondent, the General Counsel and
he Charging Party to introduce evidence, within the purview of the complaint
herein, as amended, concerning the document identified in evidence as Re-
spondent's inter-office memorandum of September 22, 1959, and admitted into
evidence as Exhibit #3, and particularly evidence relating to whether the docu-
ment as originally prepared was introduced into evidence, and the nature of
the changes thereon; the preparation and submission for introduction into
evidence of the aforesaid document; the agreement of the parties as to its
introduction in evidence; and which employees, if any, the Respondent, at the
time of the preparation of the document, or prior thereto, or thereafter, con-
sidered to be "sub-standard" within the meaning of that term as set forth
in the document, other than Alfred J. Gies.
In accordance with the aforementioned order, a hearing was held by the duly
designated Trial Examiner in Chicago, Illinois, on February 27, 1961. At the
conclusion of said hearing Respondent presented oral argument, and, within the time
provided, both Respondent and General Counsel filed briefs.
Upon the entire record of both the original hearing on June 20, 1960, and the
aforementioned hearing on February 27, 1961, and my observation of the witnesses
in both hearings, I make the following:
ADDITIONAL FINDINGS AND CONCLUSIONS
A. With respect to Exhibit No. 3
Exhibit No. 3 which was offered into evidence by General Counsel in the course
of the original hearing was not a copy of the interoffice memorandum of Respondent
as it was finally issued on September 22, 1959. Exhibit No. 3 contained pencilled
alterations on pages 3 and 4 thereof made on September 22 which were incorporated
into the memorandum as it was finally issued by changing the original and presuma-
bly the other copies to conform to Exhibit No. 3 as altered by the notations in pencil.
Said notations in Exhibit No. 3 were ignored by the Trial Examiner in writing his
Intermediate Report since there was no explanation with regard thereto.'
'There was nothing In the original record to indicate who made the notations, when
they were made, or when, if ever, they had been given effect.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent offered into evidence Respondent 's Exhibit No..1 which was received
by the Trial Examiner . Said exhibit consists of copies of pages 3 and 4 of the
aforementioned memorandum of September 22 as it was finally issued, i .e., with
the changes incorporated.
Thus it appears that as of September 22, 1959 , all eight of the day floor journey-
men (including Gies ) received the same rate of pay. Up to that time J. Pressi
and A . Pina had been receiving a lower rate of pay than the other six. Charles D.
Winders, vice president of Respondent in charge of printing production , testified
that on September 22, 1959 , he made the aforementioned alterations in Exhibit No. 3
which raised .the rate of pay of Pina and Pressi to the same level as the other day
floor journeymen , effective as of September 21, 1959 . The payroll records of
Respondent disclose that said changes in rate of pay of the two men were put into
effect as of that date.
Therefore , it appears that Exhibit No. 3 without the handwritten alterations is
not a true copy of the memorandum of July 22, 1959 , as it was issued , and that a
true copy would consist of Exhibit No . 3 with Respondent's Exhibit No. 1 substituted
for pages 3 and 4 of Exhibit No. 3.2
B. Evaluation of the day floor journeymen
As of December 31, 1959 , the date Gies was discharged , all of the day floor
journeymen were considered "standard" in that all were receiving the same rate
of pay.
Up to September 22, 1959, Pina and Pressi had been receiving "sub-standard"
rates. According to Winders , Pina completed his apprenticeship in April of 1959,
but was still held below the "standard" rate until September 22, 1959, by which
time the caliber of his work had improved sufficiently in Winder's estimation as
to entitle him to receive the "standard" rate. With respect to Pressi , Winders
explained that although Pressi was classified as a day floor journeyman , a large per-
centage of his work did not fall within that job classification but involved the storage
of "cuts," a job calling for a lower rate of pay . However , Winders further ex-
plained , after moving into the new plant the storage of cuts was better organized
because of the improved facilities the new plant afforded , and, therefore, from the
spring of 1959 until September 1959 , when Pressi 's rate was raised , Pressi was able
to spend an increasingly greater amount of time on work falling within his job
classification . Because of that, Winders testified , he decided to raise Pressi to the
"standard" rate . This explanation was a patent invention , since the record discloses
that Respondent did not move into its new plant until September 1959. When
Winders was reminded of this date, he admitted that he was mistaken as to the
year the facts occurred which constituted his explanation for the raise in Pressi's
rate. This, to my mind, casts doubt on the credibility of Winders as a witness in
this proceeding.
Although the record contains no acceptable explanation for the increase in
Pressi's rate of pay, I do not believe it appropriate to infer that the increase given
him or Pina was in anticipation of the action of terminating Gies over 3 months
later. Although I have found that the general raise in pay was motivated by the
desire to deter union organization , I do not believe that it can be reasonably
concluded that as of September 22, 1959 , Respondent had determined to discrimina-
torily discharge Gies or any of the other day floor journeymen who were receiving
"standard" rate (or that it might do so ) and thus raised the rate of pay of Pina and
Pressi in order to avoid affording a basis for a charge of discrimination.
C. Amendment of the original Intermediate Report
In, view of the above , it does not appear appropriate , in finding that Gies was
discriminatorily discharged , to rely on the fact that as of September 22, two men
in the same job classification were rated below him in the caliber of their work.
Therefore , I hereby amend my Intermediate Report of August 30, 1960, by deleting
therefrom the sentence starting on line 7 of page 346 thereof and the entire
succeeding paragraph . This portion of the Intermediate Report refers to Ex-
hibit No. 3 which when modified by the substitution of Respondent 's Exhibit No. 1
2 There was no understanding or agreement of counsel as to the introduction into evi-
dence of Exhibit No. 3 itself.
GEORGIA CREOSOTING CORPORATION 349
for pages 3 and 4 of Exhibit No. 3, no longer constitutes a basis for the statements
contained in said portion of the Intermediate Report.
The Intermediate Report is further amended by inserting the following paragraph
after the first full paragraph on page 346.
Winders was Respondent 's chief witness as to its reasons for selecting Gies
in its reduction-in-force . Although he consulted others working under him, it
appears that it was Winders ' responsibility and decision to select the day floor
man to be terminated . In view of Winders' testimony with respect to Pressi's
raise which I have found casts doubt on his (Winders') credibility as a witness
in this proceeding and my observation of this witness in both hearings, I am
not disposed to give weight to his denial that Gies was terminated for union
activity or to the reasons which he advanced as the basis of the discharge.
Also I do not give weight to the corroborative evidence of Done and Simons
as to the reason for the decision . This is not only based on my observation
of these witnesses and on the fact that Winders, as their superior, was in a
position to lead them in their estimate of the employees, but also because of
Done's testimony . The gist of the dissatisfaction with Gies was that he had
a poor job attitude . However , Done testified that when he (Done) became
foreman, Gies was very cooperative and was a fast worker which would appear
to cast considerable doubt on the contention that the estimate of Gies' attitude
was the motivating reason for his termination.
In all other respects the Intermediate Report and Recommended Order of August
30, 1960, remains unchanged.
[Recommendations omitted from publication.]
Georgia . Creosoting Corporation 1 and Local Union 2591 , United
Brotherhood of Carpenters & Joiners of America, AFL-CIO,
Petitioner. Case No. 10-RC-4571. September 22, 1961
SUPPLEMENTAL DECISION AND ORDER
On February 29, 1960, the Board 2 issued a Decision and Direction
of Election herein 3 finding appropriate a unit of "All production,
maintenance, and yard employees of the Employer at its Brunswick,
Georgia, operation, including the pole classifier, the pole inspector,
maintenance employees, retort operators, firemen, motormen, crane
operators, laborers, switchmen, and the pole mill operator, but exclud-
ing office clerical employees, the laboratory technician, watchmen,
guards, the shipping clerk, the pole yard foreman, the pole yard fore-
man trainee, the superintendent, the assistant superintendent, the as-
sistant to the superintendent, and all other supervisors as defined in
the Act."
Georgia Creosoting Company filed a motion for reconsideration on
March 7,1960, requesting that the Board find appropriate two separate
1 In accordance with the decision herein, the Employer's name appears as amended.
2 Pursuant to the provision of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers , Fanning,
and Brown].
8 Not published in NLRB volumes.
133 NLRB No. 37.