Swalley Printing Co.

National Labor Relations Board - Board Decisions

Jul 25, 1962

137 N.L.R.B. 1630 (N.L.R.B. 1962)

1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fere with , restrain , or coerce our employees in the exercise of their right to self-
organization , to join or assist International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Truck Drivers, Chauffeurs,
Warehousemen & Helpers, Local 941, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
WE WILL offer to Ceferino Anchondo immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay he may
have suffered by reason of his discriminatory discharge.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named Union or any other labor organization.
We will not discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership in or activity
in behalf of any labor organization.
THE BORDEN COMPANY,
Employer.
Dated------------------- BY-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, 206 San
Francisco Street, El Paso, Texas, Telephone Number, Keystone 3-9351, Extension
213, if they have any question concerning this notice or compliance with its provisions.
Edwin E. Swalley d/b/a Swalley Printing Company and James
Allen Bethune . Case No. 10-CA-48,37. Judy 25, 1902
DECISION AND ORDER
On April 26, 1.962, Lee J. Best issued his Intermediate Report in
the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and
recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was corrunitted. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
.the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
137 NLRB No. 178.
SWALLEY PRINTING COMPANY
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1631
STATEMENT OF THE CASE
This proceeding brought under Section 10(b) of the National Labor Relations
Act, as amended, 29 U.S. Code, Sec. 151, et seq. (herein called the Act), was heard
pursuant to notice before Trial Examiner Lee J. Best at Birmingham, Alabama, on
January 19 and 20, 1962, with all parties represented. Based upon a charge filed
on October 30, 1961, by James Allen Bethune (an individual) against Swalley
Printing Company (herein called the Respondent), the General Counsel issued a
complaint on December 13, 1961, alleging unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act. The Respondent filed an answer thereto
admitting certain allegations pertaining to commerce, but denied all unfair labor
practices alleged therein. Principal issues litigated at the hearing were whether the
Respondent (1) interfered with, restrained, and coerced his employees in the exercise
of the rights guaranteed in Section 7 of the Act by threats of reprisal and interroga-
tion concerning their organizational activities within the meaning of Section 8(a) (1);
and (2) discriminatorily laid off and refused to recall James Allen Bethune to dis-
courage membership in a labor organization because he engaged in concerted activi-
ties with other employees for the purpose of collective bargaining and other mutual
aid and protection
All parties were afforded full opportunity to be heard, examine and cross-examine
witnesses, adduce evidence, submit oral argument on the record, and file written
briefs with the Trial Examiner. Counsel for .the General Counsel waived oral argu-
ment, but filed a written brief, which has been given due consideration. Counsel
for the Respondent made oral argument on the record, which has been duly con-
sidered, but filed no written brief.
From observation of the witnesses, and upon the entire record in the case, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENT
The Swalley Printing Company is an individual proprietorship exclusively owned
and operated by Edwin E. Swalley with his principal office and place of business at
Birmingham, Alabama, where he was at all times material to this case engaged in
the printing business. During the past 12 months immediately preceding the filing
of the complaint herein, the Respondent received revenues exceeding $800,000 in
the performance of contracts with the United States of America (General Services
Administration) for the printing of manuals relating to the maintenance of missiles
and other military equipment for use at Redstone Arsenal, Huntsville, Alabama; and
during the same representative period received in due course of business supplies and
materials valued in excess of $100,000 directly from points of origin outside the State
of Alabama. I find, therefore. that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act by reason of which the National Labor
Relations Board should assert jurisdiction in this case.
II. LABOR ORGANIZATION INVOLVED
International Printing Pressmen and Assistants Union of North America is a labor
organization within the meaning of Section 2(5) of the Act, existing in whole or
part for the purpose of representing employees in dealing with employers concern-
ing grievances, labor disputes, wages, rates of pay, hours of employment, and condi-
tions of work.'
III. THE UNFAIR LABOR PRACTICES
A. Historical background
Edwin E. Swalley has been engaged in the general printing business at Birmingham,
Alabama, for more than 6 years. In 'December 1959 he established a complete
printing plant known as Swalley Printing Company in one room (80 by 90 feet) of
a warehouse building at 4605 Georgia Road for the primary objective of producing
technical books and manuals for the General Services Administration of the United
States Government from manuscripts furnished by the Government agency for ' hose
use and distribution bound printed copies are prepared and delivered by the Respond-
ent according to specifications. From the beginning of this venture through Sep-
tember 1960, the Respondent employed a subcontractor (Johnson Printing Company)
1 See Constitution and Laws (General Counsel's Exhibit No. 3).
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to furnish all labor (except typesetting ) to perform the printing , binding, and shipping
of the products produced in this plant , but also developed a working force of his own
to carry on such operations . It also appears that in October, November , and Decem-
ber, 1960, Respondent subcontracted work to Accurate Forms Company , Inc., for
performance in its own printing plant at Magnolia Avenue and 22d Street in Birm-
ingham, Alabama.
In January 1961 , the Respondent purchased all equipment of Accurate Forms
Company, Inc ., consisting of printing presses, papercutters , folding machines , staplers,
stitchers , etc., and thereafter moved it as a complete plant into a room ( 80 by 80
feet) adjoining the plant of Swalley Printing Company, and was separated theretrom
only by a 12 -inch firewall with two large open freight doors between them. An
outside entrance to this room was located at 216 N. 47th Street. From the com-
pletion of such removal in April until July 1961, both plants were operated as an
individual proprietorship by Edwin E . Swalley. Prior to that time, the Respondent
had employed Paul L. Coble and Leonard B. Easter on a weekly salary basis to
assist him in overall operations . All other employees were hired at an hourly rate.
Paul L. Coble was and still is an overseer of production to schedule work throughout
the combined plants, including the maintenance of all bindery equipment , keeping
production records, repairing machines , issuing materials and supplies from stock
inventory , prescribing the method and volume of work to be done, making inspections
to insure that employees properly perform their respective jobs, and posting in-
formation on a blackboard in the shop showing the number of manuals being cur-
rently produced , how they are to be bound , and when they are to be completed and
shipped out. In other words of Respondent Swalley, Coble is a production clerk
and messenger , but some call him the superintendent He interviews applicants for
employment, tells such people if and when they may report to work for the Re-
spondent , and notifies them when they are to be laid off, all with the concurrence
and by instructions from Edwin E. Swalley. I find , therefore , that Paul L Coble
is a supervisor of the Respondent within the meaning of Section 2 ( 11) of the Act'
Leonard B Easter is classified as the pressman in charge of all printing presses
and presswork in the combined plants, including maintenance and the assignment
of work to other pressmen . After consultation with Edwin E. Swalley, he schedules
the work for each shift , and tells the other pressmen when there is work to do and
when there is no work for them. He also interviews applicants for employment in
the pressroom , and recommends to Swalley for his final decision whether the appli-
cant is desirable for hiring Swalley himself directs overall operations , supervises
the typesetting , proofreading , preparation of negatives and plates , and delegates to
Easter all printing work on the presses, after which Paul L . Coble supervises the bind-
ing, packing , and shipping of finished products . According to Swalley the entire
operation works like a production line system with no need for supervisors other
than himself. I find, however, that to all intents and purposes Leonard B. Easter
is a pressroom foreman and supervisor within the meaning of Section 2(11) of the Act
In June or July 1961 , Edwin E Swalley organized and chartered a new corporation
in the name of Accurate Forms Printing Corporation , the nucleus of which is the
equipment previously purchased by him from Accurate Forms Company , Inc., and
established in the room adjoining the operations of Swalley Printing Company. A
majority of the capital stock therein was issued as a gift to his wife, and remaining
shares were donated to his foster children, nieces , and nephews , but none was issued
to Edwin E. Swalley himself. Betty J. Howell (niece ) was employed as the general
manager of the new corporation , and is the only person therein drawing a salary at
the management level. Other corporate officials draw no compensation as such, but
are employed in the shop of Swalley Printing Company . A separate set of books is
kept for each company by the same bookkeeper (Onich ), and overall operations have
been financed solely by Edwin E. Swalley. Both companies bid on and perform
similar contracts with the Government , and have a working agreement to jointly use
the facilities of the combined plant at stipulated rates, exchange work, and prorate
the contract price. Approximately 25 people are presently employed by Accurate
Forms Printing Corporation, and approximately 49 are employed by Swalley Print-
ing Company . There is no element of competition between these two companies,
and it is clear that Edwin E. Swalley is the guiding genius and financier of both
enterprises . By reason of this situation . I pierce the corporate veil of Accurate
Forms Printing Corporation , and find it to be a business fully integrated with that
of Edwin E Swalley d /b/a Swallev Printing Company, which constitutes a single
enterprise or joint venture financed, operated, and controlled by the Respondent
herein.
2 Gladys Casey , Christine DieLendon, and Betty Gagne Identified Paul L Coble as the
supervisor who interviewed , hired, and assigned them to work for the Respondent
SWALLEY PRINTING COMPANY 1633
B. Discharge of James Allen Bethune
Having previously worked for the Respondent as a pressman, James Allen Bethune
was rehired by Superintendent Paul L. Coble in June or July 1961. Others
employed in the pressroom included Charles Hammond, Ben Cheaves, Emery Harris,
Tommy Tucker, Bruce Cleary, James Whitlock, Robert DelaVega, and Theodore
(Ted) Jordan, some of whom at times also appear on the payroll kept by General
Manager Betty J Howell at Accurate Forms Printing Corporation. As of October
18, 1961, however, Howell was employing only one pressman (Charles Smedden).
In the early part of October some of these pressmen indicated a desire for represen-
tation by a labor organization, whereupon Bethune (a card-carrying journeyman)
promoted organizational activities by contacting a representative of Local 121,
International Printing Pressmen and Assistants Union of North America, and solicit-
ing membership therein Some of the women employees told Paul L. Coble that
somebody was planning to establish a picket line. One woman found a union card
in her handbag, and delivered it to Edwin E Swalley (proprietor). Swalley called
by telephone the offices of two other labor organizations in Birmingham to inquire
whether they were trying to organize his plant, but each of them disclaimed any
knowledge of such activities Coble admittedly had a conversation with James
Allen Bethune in which Bethune told him that some of the employees had made
inquiries about forming a union, but there was nothing definite about it, because the
man he contacted was out of town; and also expressed the opinion that "Uncle Ed
needs a union in here, etc." Coble further admits that he reported these incidents to
Swalley, saying in effect that he did not know who was stirring up all that mess
out there, but that Bethune was talking about how much good it had done when he
organized Zimmerman's Music. Thereafter, Edwin E Swalley met James Allen
Bethune at the timeclock at 4 30 p.m on October 18, 1961, and told him to see
Leonard B Easter (press foreman) before starting to work. At that time the
Respondent was operating three shifts, and Bethune was employed on the evening
shift.
Thereupon, Press Foreman Leonard B. Easter told Bethune that one of the presses
had broken down, and that he was being laid off for approximately 2 weeks until
a new press could be installed. Easter also mentioned the fact that someone had
reported to Swalley that Bethune was trying to organize a union in the plant. Before
leaving the shop, Bethune talked with Paul L. Coble, who expressed regret that it
was necessary to lay him off, and told Bethune that Swalley had authorized his
employment by Accurate Forms Printing Corporation if and when they had any
work over there. Bethune then left the plant, but shortly thereafter called Easter
by telephone and obtained permission to see him again. Upon returning to the
plant that same evening, Bethune inquired why he had been laid off and whether
or not he could get a job with Accurate Forms Printing Corporation. Easter denied
that Bethune had been laid off by reason of union activities, and with respect to
work with Accurate Form Printing Corporation, said:
Yes, Mr. Swalley did mention that to me. The only reason I didn't mention it
to you was the fact that I've got one Accurate Forms pressman working on
Swalley work now, and there is no work at Accurate Forms.3
Ted Jordan (employee) credibly testified that he overheard Foreman Easter say
that someone had called Swalley during the preceding night about 2 a.m. and told
him that Bethune was trying to organize a labor union.
Ben Cheaves (folder operator) credibly testified that he heard Bethune ask
Easter why he was laid off, and that Easter replied:
I am in no position to tell you To be frank with you, someone called Mr
Swalley-Edwin Swalley-last night about midnight and told him you were
trying to organize a labor union. And he informed me to lay you off.
Robert H. DelaVega (folding machine operator) credibly testified that Jim
Bethune came up to Easter and inquired why he was laid off, and that Easter replied
to the effect that there was nothing wrong with his work, but that someone had
called "Uncle Ed" last night and told him that "you were trying to organize the
people here at the plant"; and "he told me to lay you off." This witness identified
Leonard B. Easter as a foreman in charge of the printing presses; Paul L Coble as
a foreman and supervisor in the bindery operations; and related that Coble came to
him directly after the layoff of James Allen Bethune to inquire whether he had heard
'Parts of this latter conversation with Easter was overheard by other employees (Ted
Jordan, Ben Cheaves, and Robert H DelaVega)
649856-63-vol. 137-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything about the Union, and said: "The plant is too young for a union. They will
shut it down and farm out the work."
Paul L. Coble testified as a witness for the Respondent, denied all supervisory
authority, related information received by him with respect to organizational activ-
ities in the plant and his conversations with Edwin E. Swalley prior to the termina-
tion of James Allen Bethune on October 18, 1961, and admits that he signed an
affidavit on November 8, 1961, before a field examiner of the National Labor Rela-
tions Board, as follows:
AFFIDAVIT
COUNTY OF JEFFERSON
STATE OF ALABAMA, SS.
1. 1, Paul L. Coble, after having been duly sworn by Alexander W. Resin,
known to me as a Field Examiner for the National Labor Relations Board,
depose and say:
2. I have been advised that I need not answer any questions nor make any
affidavit if I did not wish to and that this affidavit might be used in evidence.
3. 1 am 40 years of age, Married and reside at P. O. Box 3, Gardendale.
Alabama. I can (cannot) be reached by phone at Home 631-7333, Office
592-8907. My Social Security number is 422-09-7257, and I have never been
arrested or imprisoned.
4. I was hired by Swalley Printing Company on or about October, 1960 and
worked on the following jobs: Superintendent which position I still hold.
5. As Superintendent I have the authority to hire, fire, transfer, grant time
off, and authorize overtime. This authority was given to me by Mr. Swalley
and I have exercised it in the past.
6. On October 18, 1961, Bethune was layed off because of lack of work an
we had just about run out of contract and because one of our two presses had
broken down. Bethune was picked to be layed off because he had less seniority
of the pressmen. Mr. Swalley and I talked about whom we should be layed
off and we decided it should be Bethune because of his seniority. I do not
recall the exact date the decision was made but I am certain it was before
October 18, 1961. It might have been made on Oct. 16th or 17th of October.
The other reason that he was picked to be layed off was because he told me he
has another job in Homewood and that he told me he was going to quit at the
end of the week anyway.
7. At the time I talked with Bethune when he was layed off 'I told him we
had to work but that Accurate Forms Printing Co. had work for pressmen and
for him to go there. I also told him when we got the new press in and when
work picks up under the new contract he would be recalled and I told him to
keep in touch with the company. As yet the new press is not installed and
we are just beginning to get new work under the contract.
8. After it was decided that Bethune would be the one to be layed off on
October 16, 1961 but before he was layed off he came up to me and told me
that someone had contacted him from the International Pressmen Union about
organizing Uncle Ed's plant, but he did not know for sure. I told him that
anything he tells me I will tell Ed Swalley and that I am strictly a company
man. I also told him that in my estimation that 90% of the people employed
by the company were not eligible for the pressmen's union or any union. He
told me that he thought the pressmen were only interested in the camera men
and the pressmen but that Union in this case they might take in the bindery
as well in a specility union. I told him that it was his business what he did.
This ended the conversation at this time. Several hours later one of the girls in
the binding department came up and told me that she heard that there would be
a picket line around the plant that night. I then called Mr Swalley and told
him of my conversation with Bethune and with girl from the binding
department.
9. After Bethune was layed off by Easter he came to me and asked me why
he was layed off. I told him he was layed off because of lack of work and
because of the press breakdown, but that he could probably pick up two or
three days a week by running the press over at Accurate Forms. At which time
he said "why are they laying me off, I can run the press better than some of
the rest." I told him the other boys had more seniority with the company as
he had quit once and come back. He asked me at that time if his talk about
the Union had anything to do with his lay off. I told him no as it had been
decided before there was any union talk, and that he could work for Accurate
SWALLEY PRINTING COMPANY 1635
Forms if he wanted to . He then asked me if Accurate Forms and Swalley were
the same company . I told him no . He then left.
10. I never questioned any of the employees if they were for or against the
Union . After Bethune was layed off some of the employees in the binding
department , female employees , told me that they were against the union and
would not walk a picket line. I told these female employees that I doubted
that there would be a picket line because the contract with the government is a
typesetting contract and what little offset could be farmed out . By offset I
meant printing. I was not told this by Mr . Swalley but it is my own opinion.
I never told any of the employees that if a union tried to get into this plant
Swalley would shut it down or farm the work out before he would let a Union
get in.
11. I have read the above affidavit and I swear it is true.
(S) PAUL L. COBLE.
Signed and sworn to before me on this 8th day of
November, 1961 at Birmingham , Jefferson
County, Alabama.
(S) Alexander W. Resin,
ALEXANDER W. RESIN, Field Examiner,
National Labor Relations Board.
Edwin E . Swalley testified as a witness for the Respondent , related in detail his
business transactions with respect to Swalley Printing Company and Accurate
Forms Printing Corporation ; and also explained his reason for terminating the
employment of James Allen Bethune . Swalley denied the delegation of any
authority whatsoever to Paul L. Coble, Leonard B. Easter, or anyone other than
himself to act as a supervisor for the Respondent , but introduced in evidence an
affidavit signed by him before a field examiner of the National Labor Relations
Board on November 8, 1961 , as follows: 4
AFFIDAVIT
COUNTY OF JEFFERSON,
STATE OF ALABAMA, SS.
1. I, Edwin E. Swalley , after having been duly sworn by Alexander W.
Resin, known to me as a Field Examiner for the National Labor Relations
Board, depose and say:
2. I have been advised that I need not answer any questions nor make an
affidavit if I did not wish to and that this affidavit might be used in evidence.
3. I am 51 years of age, Married and reside at 8301 7th Ave. South Birming-
ham, Alabama. I can be reached by phone at Home 836-3781, Office 592-8907.
My Social Security number is______________________, and I have never been
arrested or imprisoned.
4. I was hired by-------------------------- on or about______________
and worked on the following jobs:
5. I am the sole Owner of the Swalley Printing Company located at 4605
Georgia Road, Birmingham , Ala. The above company is engaged in printing,
binding, of negatives of various types of material under contract
for the United States Government My contract with the Government expired
on October 31, 1961 and My new contract was awarded to me as of Novem-
ber 1, 1961 to expire on October 31, 1962. My contracts with the Government
are open end contracts, under the contract that expired on October 31, 1961,
I performed services in the value of approximately $800,000 00.
6. Jim Bethune was originally hired on January 20, 1961 at the wage of
$2 00 per hour as a pressman . He worked for approximately three weeks or
until on or about February 10, 1961 when he quit the employ of the above
company. He was rehired on or about July 14, 1961 and worked until Octo-
ber 18, 1961 when he was layed off for lack of work. He was rehired at $2 00
an hour and he was laid off still earning the same rate of pay. I wish to state
that at the time he was layed off we were in the process of purchasing a new
press and it was being installed . Bethune was told that as soon as work picked
up and the new press was installed and we had work for him be would be
recalled.
4Respondent admits that this affidavit is a true statement, subject to corrections (1) by
deleting the word "Superintendent" at the end of the first line in paragraph 11 ; and
(2) by striking paragraph 14 in its entirety.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. In addition to Bethune we had the following men employed as pressmen
Tucker, hired on or about September, 1960, Harris, hired on or about July 5,
1961, Jordan, hired on or about April 14, 1961 and Cleary, hired on or about
October, 1960.
8. As stated above my contract ran out October 31, 1961. And starting on
or about October 31, 1961 our work began to decrease and a new schedule was
made in order to equalize the available work. This new schedule gave Bethune
42 hours a week working on the third shift six days a week. At his request
this schedule was changed giving him a split shift of 40 hours a week in a 5 day
week. Bethune stated that he would prefer this schedule as he had a job
working week-ends. There is here to attach a copy of the revised schedule
showing the hours to be worked by the pressmen.
9. There is hereto attached a copy of the earnings of the five pressmen from
August 3, 1961 to date.
10. The reason I picked Bethune to be layed off rather than any of the other
pressmen is because he had less seniority with the company than the other men
I also took into consideration the fact that Bethune had another job that he
could work on while the other men, as far as I knew, had no other jobs.
11. On October 18, 1961 in the morning Paul Coble, Superintendent, called
me at home and told me that he had heard that there was some Union talk in
the plant. He also told me that he did not know who was doing it. I then
called the pressmen and printers Union and asked them if they knew anything
about a Union organizing drive of my plant. They told me that they heard or
knew nothing about it. Later that day, before Bethune was layed off I came
to the plant and Coble told me that Bethune told him, Coble, that he, Bethune,
was talking to the employees about organizing a Union or joining a Union,
on Company time.
12. The decision to lay off Bethune was made on or about October 16. 1961
when I had talked to Easter, Press room foreman, about the work load, and
the condition of the presses. Easter wanted to keep Bethune but I decided to
lay him off the reasons stated above. I therefore instructed Easter to lay
Bethune off on October 18, 1961. The reason this date was picked was because
it was the end of the pay period. Our pay period ends on Wednesdays and
they get paid on Friday.
13. Since the later part of September and or early part of October it became
necessary to start laying off employees due to lack of work. The following
employees were laid off:
Name of employee Date
laid off
Date
recalled
Name of employee Date
laid off
Date
recalled
Carl Bowman_____________ 9-14-61 __________ Norma Holidav___________ 10-2-61 ----------
Virgil Crocker_____________ 9-21- 61 ---------- Barbara Kent_____________ 11-2-61 ----------
Ruby Grigsky------------- 10-26-61 ---------- John Smith---------------- 11-2-61 ----------
Norma, Holiday___________ 10-26-61 ---------- Shirley Lylcs______________ 11-2-61 ----------
Denton Hudgens__________ 10-26-61 ---------- Chariene Christian--------- 11-7-61
Virginia Hosmer___________ 10- 5-61 _
-
lene Ballenger____________ 11-2-61 ----------
Thomas Jeff_______________ 10-26-61 _ Nell Rommc______________ 11-7431 __________
Barbara Kent_____________ 10-25-61 __________ Grace Thompson ---------- 11-7-61 ----------
Carolyn J Keith ---------- 10-26-61 ---------- Reva Hood________________ 11-7-61 __________
Shirley Lvles______________
-
10-2641 ---------- Dean Nowell______________ 11-6-61
Saundra Mathis_______-___
-
-
9-14-6' __________
-
im Thornton ------------ 11-2-61
Mary A Mitchell_________ 10-11-61 ---------- Tom Carroll_______________ 11-2-61 __________
Marilyn McWhorter______ 9-28-61
-
-
----------
-
Herman Downev__________ 11-2-61 ----------
Gloria Page_______________ 10-12-16
-
---------- -
-
Odis Tucker___________-___ 11-2-61 __________
J C Peoples-------------
-
-
9- 1-31 ____----__ Garvis Thrasher-------___
_
11-2-61
Lamar Lister______________
-
10- 5-61
-
__________
-
ob Satterfield ------------ 11-3-61
Frances Santos____________
-
10-19-61
-
----------
-
Gary McAllister___________ 11-3-61 __________
John E. Smith____________ 10-19-61
-
__________
-
-
ance Cooley_____________
_
11-3-61 __________
Juries Webb______________ 10- 5-Si ---------- -
-
-
Jim Amos ----------------- 11 2-61 __________
Jim Warren_______________ 9-14-61
-
---------- Herman Hopper___________ 11-2-61 ----------
Vera Marie Watson -------
-
9-28-61 ----------
-
David Bower--------------
_
11-2-61 __________
TwylaWilson_____________
-
-
10-26-61
-
----------
-
-
Leonard Smith ------------
_
11-4-61 - ---------
Carolyn Carroll___________
-
10- 7-61
-
----------
-
14. The following men are Supervisors and have the authority to hire and
fire employees , reprimand employees, and grant time off as well as all necessary
SWALLEY PRINTING COMPANY 1637
authority to run their department or jobs, they are Paul Coble, Superintendent,
Leonard Easter, Foreman in the Press Room, Tony Santos and Ernest Master,
Foreman [sic) in the Typesetting Department.
15. The records from which the above information was obtained were shown
to Field Examiner Resin for his inspection and study.
16. I did not tell any of my employees or supervisors that Bethune was layed
off or that he should be layed off because of his Union activities. The reason
that Bethune was layed off was because he had least seniority, the other em-
ployees that were layed off above were also layed off in accordance with
seniority.
17. The new press is still being installed and the installalion of this press is
as yet not completed. The manufacturers employees, Harris-Seybold, are still
working on the press and this was shown to Field Examiner Resin.
18. No new employees have been hired by this company since we had to lay
off employees due to lack of work, and no one is working on the job Bethune
used to do and the remaining pressmen are only working part time as shown
by the attached pay schedule.
19. I have read the above affidavit and I swear it is true.
(S) EDWIN E. SWALLEY.
Signed and sworn to before me on this 8th day
of November, 1961 at Birmingham , Jefferson
County, Alabama.
(S) Alexander W. Resin,
ALEXANDER W. RESIN, Field Examiner,
National Labor Relations Board.
Pay Schedule
Week Bethune Tucker Harris Jordan Cleary Hammond
8/3_ ____________________ $125 00 $156 00 $62 50 $50 00 $50 00 ____________
8/10_____________________ 81 50 93 50 48 15 33 75 67 85 ____________
8/17_____________________ 87 50 76 00 30 00 57 50 30 00 ____________
8/24_____________________ 116 00 80 00 37 50 45 00 50 00 __ __________
8/31_____________________ 86 00 132 50 87 60 67 85 47 50 ............
9/7______________________ 125 CO 107 00 58 45 80 00
_
87 60 ____________
9/14_____________________ 158 00 164 00 69 00 511 00 50 00
_
.
------------
9/21----------__ 83 00 131 00 00 74 50 50 00
_
_
____________
9/28__________ __ 158 00 132 00 71 75 69 00
_
83 00 ------------
10/5_____________________ 70 00 80 00 60 00 78 00 58 50 ____________
10/12____________________ 78 00 75 00 63 40 60 00 58 50 ____________
10/19____________________ 48 00 44 00 39 75 42 00 29 25
_
____________
10/26___ ---_______---__ 00 76 00 48 00 60 00 57 75
_
_
_ ___________
11/2_____________________ 00 52 50 8 50 54 00 50 00
_
_
_________-__
Pressroom Schedule, Effective October 5, 1961
8 to 4 30
8 Monday Tuesday Wednesday Thursday Friday Saturday Sunday
Easter
Hammond
Easter
Hammond
Easter
Hammond
Easter
Hammond
Easter
Hammond
Bethune
Jordan
Bethune
Jordan
4 30 to 1 a m
Bethune
Jordan
Bethune
Jordan
Bethune
Jordan
Tucker
Cleary
lam to8am.
Tucker
Cleary
Emery I Cleary I Tucker Emery Emery
Tucker
Cleary
Emery
Tucker
Cleary
Emery
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I wish to add the following to my above affidavit. At the time that I
instructed Easter to lay off Bethune I told Easter and Coble to tell Bethune that
he could work Accurate Forms, an Alabama Corporation located in the same
building as the Swalley Printing Co. The principal stockholder of Accurate
Forms is my wife and I help run the business by, advising and guiding the stock
holders. At the same time Bethune was layed off Accurate Forms needed a
pressman and I instructed or advised Betty Howell to hire Bethune for that job.
(S) E. E. SWALLEY.
Edwin E. Swalley further testified that the equipment purchased by him from
Accurate Forms Company, Inc., on Magnolia Avenue was moved to the present
address on 47th Street in April 1961 because he needed more space preparatory to
bidding on a new Government contract in August, which was later awarded to the
new corporation (Accurate Forms Printing Corporation) effective November 1,
1961-that he assisted in the procurement of such a contract, and that work thereon
was started in November 1961-that a current Government contract was being per-
formed by Swalley Printing and was completed about October 31, 1961. Conse-
quently, he entered into a lease agreement with Accurate Forms Printing Corpora-
tion whereby Swalley himself would furnish and maintain the premises and all
operating equipment , including all typesetting work, while the new corporation
would pay a rental charge and furnish all operating personnel necessary to perform
the printing, binding, and shipping services. Under this arrangement, the Govern-
ment contract price was to be prorated 60 percent to Swalley Printing Company
and 40 percent to Accurate Forms Printing Corporation. Swalley further testified
that all pressmen (except Coble and Easter) on the payroll of Swalley Printing
Company were laid off in November 1961, and went over to work for Accurate
Forms Printing Corporation-that James Allen Bethune had at that time already
been laid off on October 18 for lack of work, and was told by Paul L. Coble that
he could go to see General Manager Betty Howell and get a job with Accurate Forms
Printing Corporation, but he never applied for such employment. Swalley further
explained that in October his contract work was running short, so he discussed
with Press Foreman Easter the possibility of laying off one or more pressmen in order
to furnish a full-time shift for others. Then on October 18 one of the presses broke
down and they decided this was an opportune time to lay somebody off. Bethune was
selected because they thought at the time he had less seniority than others,5 and had
other sources of income by working for B & Y Printing Company of Tarrant City,
Alabama.
Betty J. Howell testified in substance that she was first employed by Edwin J.
Swalley as an office clerk in May 1961, and thereafter appointed general manager of
Accurate Forms Printing Corporation when this new corporation was organized in
July 1961; that Accurate Forms Printing Corporation used the equipment of Swalley
Printing Company under a verbal working agreement until November 1961, when a
Government contract was awarded to Accurate Forms Printing Corporation, and
then entered into a written lease agreement whereby the contract price was prorated
75 percent to Swalley for typesetting work and 25 percent to Accurate Forms Print-
ing Corporation for performance of the printing and binding work. Having only
one pressman (Charles Smedden) on her payroll, she then hired Tommy Tucker,
Bruce Cleary, Emery Harris, and Charles Hammond, who had been working as
pressmen for Swalley Printing Company, and would have also hired James Allen
Bethune had he applied to her for work, because Swalley had instructed her by and
through Paul L. Coble to hire him if he made such application .6
Leonard B. Easter testified as a witness for the Respondent, related the circum-
stances under which James Allen Bethune was laid off on October 18, 1961, denied
any knowledge of Bethune's organizational activities, disclaimed all supervisory
authority, but admits that on November 8, 1961, he signed an affidavit before a field
examiner of the National Labor Relations Board , without fully understanding the
meaning thereof, as follows:
AFFIDAVIT
COUNTY OF JEFFERSON,
STATE OF ALABAMA, SS.
1. I, Leonard B. Easter, after having been duly sworn by Alexander W. Resin,
know to me as a Field Examiner for the National Labor Relations Board,
depose and say:
5 It now appears, however, that Bethune was senior to Charles Hammond, who had re-
cently worked on the payroll of Accurate Forms Printing Corporation.
O To the contrary, James Allen Bethune credibly testified that both Coble and Easter
mentioned the possibility of employment with Accurate Forms Printing Corporation, but
SWALLEY PRINTING COMPANY 1639
2. I have been advised that I need not answer any questions nor make any
affidavit if I did not wish to and that this affidavit might be used in evidence.
3. I am 43 years of age, Married and reside at 109 17th Avenue North West,
Birmingham 7, Ala. I can (cannot) be reached by phone at Home 853-3404,
Office 592-8907. My Social Security number is 420-16-9164, and I have never
been arrested or imprisoned.
4. I was hired by Swalley Printing Company, on or about October, 1960, and
worked on the following jobs: Foreman in the Press Room which position I
still hold.
5. I do not recall the exact date but it might have been either the 16th, 17th,
or 18th of October, 1961 that Mr. Swalley and I talked about how much work
we had to do, and one of the presses was torn up and we only had one runnable
press and it was decided that we would lay off one pressman . Bethune was
a good pressman and I wanted to keep him and lay off another man, but Mr.
Swalley stated that Bethune was the less senior man he should be the one to
be layed off.
6. As October 18, the end of the pay period it was decided Bethune be layed
off at that time. I layed Bethune off. I told him at that time that we did not
have enough work and that we only had one press working. I also told him
that he would be layed off until we either got more work and had to run the
one press three shifts or until the new press was installed. The new press is still
being installed and is not used by us in our production. Bethune then left.
7. Later Bethune called and asked if he could come to see me, I said yes.
He came to see me and asked me why he was layed off. I told him he was layed
off because of lack of work and lack of equipment for him to run. I did not
tell him that someone had called Mr. Swalley and told him that he, Bethune,
was trying to organize a union and that Swalley had called me and told me to
lay off Bethune because of it. I did not know that Bethune was trying to bring
a union into the plant.
8. I do not remember to which of the pressmen I talked to about the Union.
I do not remember how the conversation started but I do remember that I told
these men, two or three, that at one time the printing and bindery parts were
leased out by the Swalley Printing Co. to other businesses . And in my estima-
tion it would be leased out again if there were any labor or production difficu-
ties. I did not tell them that if the men tried to bring in a union in here that
the plant might shut down or the company of the employees working for the
above company if they were for or against the union.
9. I have authority to hire or fire employees in my department, grant time off,
or take any necessary disciplinary action. I can also grant or authorize over-
time. This authority was given to me by Mr. Swalley and I have exercised this
in the past.
10. 1 have read the above affidavit and I swear it is true.
(S) LEONARD B. EASTER.
Signed and sworn to before me on this 8th day of
November, 1961, at Birmingham, Jefferson
County, Alabama.
(S) Alexander W. Resin,
ALEXANDER W. RESIN, Field Examiner,
National Labor Relations Board.
CONCLUDING FINDINGS
Nothwithstanding a sincere desire on the part of Edwin E. Swalley to share his
substance with foster children and his wife, the Trial Examiner is constrained to
find from all the evidence in this case that Accurate Forms Printing Corporation is
a subsidiary operating corporation for Swalley Printing Company to assist him in
the procurement and performance of Government contracts. All corporate officials,
including the general manager (Betty Howell), are in reality employees of Edwin E.
Swalley, and all business engaged in is fully integrated and noncompetitive. Edwin E.
Swalley is the owner of practically all equipment used, furnishes the operating prem-
ises, and finances the operations. By reason thereof, I find that employees of Swalley
Printing Company are transferred at the will of Edwin E. Swalley from one payroll
to the other to suit the convenience of his operations.
told him that there was no work presently available, and for that reason be did not apply
to Betty J. Howell.
1640 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
From all the conflicting testimony and affidavits submitted herein by the Respondent
it is clear that James Allen Bethune was permanently laid off on October 18, 1961,
at a time when the Respondent had practically completed the performance of one
Government contract and in a joint venture with his subsidiary operating corporation
was entering into the performance of another Government contract of similar nature.
Immediately following the disclosure of concerted activities , Bethune was laid off
upon a pretext that Respondent had no work for him to perform until a new press
could be installed; and now Respondent seeks to justify his selection for layoff by a
variety of reasons. While admitting that his work was satisfactory, it is contended
by Respondent that Bethune was moon-lighting on the job by working for another
employer thereby having another source of income not available to other pressmen
that needed full-time work . Superintendent Coble added additional reasons to the
effect that Bethune had the habit of frequently being absent from his work for short
periods of time, had indicated that he was not satisfied with his job, that there were
reports of having liquor on his breath, and that some of the other pressmen had a
better employment record.
I am, therefore, convinced and find from a preponderance of testimony and the
entire record in the case that the Respondent laid off James Allen Bethune on Octo-
ber 18, 1961, and thereafter has failed and refused to recall him to work, because
he was engaging in concerted activities with other employees for the purpose of col-
lective bargaining or other mutual aid or protection; thereby discriminating in regard
to hire or tenure of employment to discourage membership in a labor organization,
and interfering with, restraining , and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act. I further find that Respondent by its supervisor
and agent, Paul L. Coble, on or about October 18 or 20, 1961, interfered with, re-
strained, or coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act by saying to Robert H. DelaVega that "the plant is too young for a union.
They will shut it down and farm out the work."
W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of Respondent set forth in section III, above, occurring in connection
with the operations described in section I, above, has a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent on and since October 18, 1961, engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3)
of the Act, it will be recommended and ordered that the Respondent cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Finding that the Respondent on and since October 18, 1961, discriminated in
regard to the hire and tenure of employment of James Allen Bethune, it will be rec-
ommended and ordered that Respondent by or through the facilities of Swalley
Printing Company and Accurate Forms Printing Corporation offer this employee
immediate and full reinstatement to his former or substantially equivalent position,7
without prejudice to his seniority and other rights and privileges of employment, dis-
charging if necessary any other pressman hired since October 18, 1961, by the
Respondent to replace him, and make him whole for any loss of pay he may have
suffered by reason of such discrimination by the payment to him of a sum of money
equal to that which he would have earned as wages from the date of his termination
on October 18, 1961, to the date occurring 5 days after the Respondent shall offer
him proper reinstatement , as herein provided , less net earnings 8 to be computed on
a quarterly basis according to the method and formula prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall
have no effect upon the backpay liability for any other such period.
Having also found that Respondent by its supervisors or agents has engaged in
conduct constituting separate and independent violations of Section 8(a)(1) of the
Act, which conduct is of a recurrent nature, it will be further recommended and
ordered that the Respondent cease and desist from in any manner infringing upon
the rights of its employees to self-organization , to form , join, or assist the Interna-
tional Printing Pressmen and Assistants Union of North America, or any other labor
7 See The Chase National Bank of the City of New York , San Juan , Puerto Rico, Branch,
65 NLRB 827
8 See Crossett Lumber Company , 8 NLRB 440.
SWALLEY PRINTING COMPANY 1641
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of such activities.
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. The Respondent, Edwin E. Swalley d/b/a Swalley Printing Company, both as
an individual proprietor and joint adventurer with Accurate Forms Printing Cor-
poration, is an employer within the meaning of Section 2(2) of the Act.9
2. International Printing Pressmen and Assistants Union of North America is a
labor organization within the meaning of Section 2(5) of the Act.
3. By threatening to close down its plant and farm out his printing operations, the
Respondent interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 and within the meaning of Section 8(a)(1) of
the Act.
4. By discriminatorily terminating the employment of James Allen Bethune, and
thereafter failing to recall him to work, for the purposes of discouraging membership
in a labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that the Respondent, Edwin E. Swalley d/b/a
Swalley Printing Company, both as an individual proprietor and joint adventurer
with Accurate Forms Printing Corporation, his supervisors, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with closing down his plant or farming out the work
therein to others because of their activities in behalf of any labor organization.
(b) Discouraging membership in the International Printing Pressmen and Assist-
ants Union of North America, or any other labor organization, by laying off, dis-
charging, or otherwise terminating the service of any employee, or in any manner
discriminating in regard to hire, tenure, or other conditions of employment.
(c) In any manner infringing upon, interfering with, restraining, or coercing his
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer to James Allen Bethune immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and other
rights and privileges of employment, and make him whole in the manner and
method set forth in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records, books, and documents
relevant or necessary to compute and determine the amount of backpay and other
employment rights and privileges to which James Allen Bethune may be entitled
herein.
(c) Post in the combined plant under his control at 4605 Georgia Road and
216 N. 47th Street in Birmingham, Alabama, copies of the notice attached hereto
marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Di-
rector for the Tenth Region of the National Labor Relations Board, shall, after being
duly signed by the Respondent or his authorized representative, be posted by him
immediately upon receipt thereof, and be maintained by the Respondent for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Re-
9 See Jack Lewis and Joe Levitan d/b/a California Footwear Company, 114 NLRB 765
"In the event this Recommended Order be adopted by the Board, the words "A Deci-
sion and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to insure that such notices are not altered , defaced , or covered by any
other material.
(d) Notify the said Regional Director for the Tenth Region, in writing, within
20 days from receipt of this Recommended Order, what steps the Respondent has
taken to comply therewith.ti
It is further recommended that , unless the Respondent notifies said Regional Di-
rector in writing within 20 days, as aforesaid , that it will comply with the foregoing
recommendations , the National Labor Relations Board issue an order requiring com-
pliance therewith.
"In the event this Recommended Order be adopted by the Board, this provision shall
be modified to iead• "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in the International Printing Pressmen
and Assistants Union of North America, or any other labor organization, by dis-
charging any employee, threatening to close our plant, or otherwise discriminat-
ing in regard to hire or tenure of employment or any term or condition of
employment.
WE WILL offer to James Allen Bethune immediate and full reinstatement to
his former or substantially equivalent position, and make him whole for any loss
of pay he may have suffered by reason of our discrimination against him.
WE WILL NOT in any manner infringe upon, interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
EDWIN E. SWALLEY D/B/A SWALLEY
PRINTING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 528
Peachtree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone
Number, Trinity 6-3311, Extension 5357, if they have any question concerning this
notice or compliance with its provisions.
Ken Lee, Inc. and International Ladies' Garment Workers'
Union, AFL-CIO. Case No. 10-CA-4905. July 25, 1962
DECISION AND ORDER
Upon charges duly filed by International Ladies' Garment Workers'
Union, AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board, by the direction of the Regional
Director for the Tenth Region, issued a complaint dated February 20,
1962, against Ken Lee, Inc., herein called the Respondent alleging
that the Respondent had engaged in and was engaging in unfair
137 NLRB No. 182.