Times Herald Printing Co.

National Labor Relations Board - Board Decisions

Sep 19, 1980

252 N.L.R.B. 278 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Times Herald Printing Company and Earl McAfee
and Luther Minor. Cases 16-CA-7740-1 and
16-CA-7740-2
September 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 14, 1980, Administrative Law Judge
Robert A. Gritta issued the attached Decision in
this proceeding. Thereafter, the Charging Parties
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I Member Penello concurs in the dismissal of the 8(a)4) allegation of
the complaint for the reasons set forth in the dissenting opinion in Gener-
al Services, Inc., 229 NLRB 940 (1977), enforcement denied 575 F.2d 298
(5th Cir. 1978).
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge: This
case was heard by me on November 16, 17, 27, and 28,
1978, and January 31 to February 1, 1979, in Dallas,
Texas, based on charges filed by Earl McAfee and
Luther Minor, individuals, on February 10 and 14, June
29, and July 5, 1978, and a complaint issued by the Re-
gional Director for Region 16 of the Board on July 14,
1978.1 The complaint alleged that the Times Herald
Printing Company (herein called Respondent) violated
Section 8(a)(1), (3), and (4) by coercive interrogation,
threats of discharge, suspension, and ultimately discharge
because its employees engaged in union or other protect-
ed concerted activities. Respondent's timely answer
denied the commission of any unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence and to argue orally. Briefs were submitted
All dates herein are in 1978, unless otherwise specified.
252 NLRB No. 43
by the General Counsel, Respondent, and the Charging
Parties. All briefs were duly considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and upon substantive, reliable evidence con-
sidered along with the consistency and inherent probabil-
ity of testimony, I make the following:
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Times Herald Printing Co. is a Texas corporation
engaged in the newspaper publishing business in Dallas,
Texas. Jurisdiction is not in issue. Respondent, in the past
12 months, in the course and conduct of its business op-
erations, received in excess of $200,000 in gross revenues
from its publications. Its publications include news arti-
cles from various interstate news services, publication of
nationally syndicated features, and advertisements of na-
tionally sold products and services. I conclude and find
that Times Herald Printing Co. is an employer engaged
in commerce, and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent admits, and I con-
clude and find that the International Printing and Graph-
ic Communications Union, Local 21 (herein called the
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ISSUES
A threshold issue in this case is the supervisory status
of the man-in-charge 2 position held by the Charging Par-
ties, McAfee and Minor, for if, each is found to be a stat-
utory supervisor, he is not entitled to a protected right to
engage in union or other concerted activity. The Em-
ployer may, with impunity, discharge any supervisor en-
gaging in what is otherwise protected activity for rank-
and-file employees, and specifically for such activity.
However, if this issue is decided in favor of nonsupervi-
sory status the allegations of coercion and discrimination
must be decided. The remaining 8(a)(4) allegation must
be resolved without regard for the resolution of the su-
pervisory issue.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Overview
Respondent's publication of newspapers utilizes several
departments and numerous classifications of employees.
This case focuses on the press department and its func-
tion. Overall responsibility for the mechanical operation
of the newspaper was in the hands of Production Direc-
2 Sometimes called the crew chief. An effort to eliminate gender from
the title.
278
TIMES HERALD PRINTING COMPANY
tor Span. His responsibility included the pressroom. Cun-
ningham, a production manager, was second in command
with a subordinate counterpart on night production,
Duesser. Powers as pressroom superintendent had only
supervision of the presses and their operation. Five press
foremen, Hart, Vinser, Harper, West, and Shannon, di-
vided their time between the three presses that operate
on three shifts, however not all three presses operate
daily. The crew size on each press consists of from six to
eight individuals made up of from two to four journey-
men, trainees, and a man-in-charge (herein called MC).
Each press is approximately 80 feet in length and stands
3 stories high with a separate working level on each
floor. The crew is stationed at separate locations on each
floor. The MC roams the entire length and height of the
press overseeing each work station and each operation of
the press. Trainees are matriculated in'a program lasting
3 years in an effort to become journeymen pressmen, and
work beside journeymen as part of the crew. In addition
to the foremen on duty an MC is designated acting fore-
man (sometimes called floorman) when needed or as sub-
stitute for an absent foreman. On occasion, an MC will
be the only individual in authority on shift, e.g., on the
Saturday night early run (Bulldog), and sometimes the
Tuesday night run of the daily, which uses only one
press.3 MCs are designated by the pressroom foreman or
floorman on the markup before the shift starts. In addi-
tion, the markup designates the foreman and floorman (if
any) for the particular shift. Since the markup doubles as
a payroll tool, the assistant MC is later designated as
number 2 man on the markup to identify the recipient of
the shift bonus of $2.50. Of the 55 employees in the
pressroom, 7 are permanent MCs and therefore, the ma-
jority of the time, are designated and usually on the same
press. McAfee and Minor are permanently assigned MCs.
At times, one of the seven is not available and a journey-
man will be designated temporarily. The unavailability of
a permanent MC may be occasioned by his designation
as floorman or acting foreman.
2. Duties and responsibilities of MCs
The MC is in charge of the press. His responsibility is
to work all over the press. Any problems that arise get
his immediate attention. He may call others for assist-
ance, or the pressmen may congregate at the trouble to
offer assistance. If the trouble was failure of an individ-
ual's function, the guilty man may be moved to another
station by swapping pressmen. The MC may move the
man himself or be directed by the foreman to do so. As
Minor testified, the foreman may tell the MC, "Bring
him upstairs and send someone else down." However,
when there was a breakdown or a problem that slowed
production the foreman sought out the MC. Any trouble
caused by an individual's action was first handled by the
MC. Minor testified, "to a certain extent the pressmen
2 Minor and McAfee denied that an MC even worked the press in the
abence of a foreman or in the least an acting foreman. I do not credit
their denials since they are contrary to the bulk of the record testimony
both subjective and objective. Additionally, I found their testimony eva-
sive on critical matters and tailored throughout. Both Minor and McAfee
appeared controlled more by the ultimate conclusion than their independ-
ent recollection.
are responsible to the MC. If they wasn't doing their job,
you would have to tell them to do better." Each press-
man is assigned his work station by the MC. If for some
reason the assignment is not workable, the MC can
adjust the crew assignments either before or during shift.
During the course of the press run the foreman or the
MC may designate changes in press settings to the press-
men. The changes emanate from the layout sheet for the
run, a production change during the run, or faulty pro-
duction noted by the foreman or MC. Frequently, a
pressman will notice a discrepancy in his stations produc-
tion and will call it to the MC's attention. Depending on
the lateness of start, which edition is being run, or
whether the prem is behind, the MC or the foreman will
decide to run as is or make the changes. Of course, plate
changes are not all subject to judgment changes. Some
plates come to the press to be changed immediately.
Others are marked as soon as possible. The MC is re-
sponsible to see that the plates are changed properly at
the appropriate time. The basic guide for the MC is the
layout sheet. Each press has a layout sheet which shows
what the press will run on that shift. The initial setup for
the press is made from the layout. Press setup is some-
times accomplished by the outgoing crew depending
upon the time allowed after the run. In either case the
MCs may compare notes or simply check the press for
proper settings. Many settings and adjustments can be
made while the press is operating. The MC is constantly
checking the product, and when adjustments are needed
he either tells the pressman to make it or may make the
adjustment himself. After the run is started and through-
out the course of the run the MC keeps a report of all
happenings on the press. The report is a recap of the run,
and designates down times, troubles, product quality, and
numbers run. The MC signs and turns in the report as
the log of his press run. The report is used by the pro-
duction superintendent to overview the production of
the previous day. MCs receive $6, $7, or $8 more per
shift than a journeyman, depending on which shift is
worked.
As the MC gets the markup with the crew listed
before the start of the shift, he chooses the assistant MC
from among those named. The crews are not the same
for each shift, so the MC chooses the man in his judg-
ment best suited to be assistant MC. This individual is
identified on the list as 2 and based on this identification
receives the shift bonus of 2.50.4 The assistant MC is
not automatically the second man listed by the foreman
on the markup. Smith credibly testified that, "the MC
was instructed at that time to circle the man he chose as
the number two man, his assistant. The one that would
help us the most and somebody we could trust to watch
the press when we weren't there."
Two special night runs are made on Tuesday and Sat-
urday. Although a foreman is not always present, fre-
quently a floorman is. Usually only one press operates;
so only one crew is needed. McAfee stated that he never
worked either night run as MC in the absence of a fore-
4 Both Minor and McAfee denied on direct examination that MCs
select the assistant MC, but on cross-examination each admitted such a
selection.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, however, most of the time he worked the runs as
floorman, not MC. Smith stated that on some night runs
when a foreman is not present the night production man-
ager, Duesser, would be present in the production super-
visor's office. Duesser's time present is spent in the office
or the plate room. He does not direct the work of the
press crew except on occasions when he sees something
amiss and tells the MC to change it or rectify it. In other
words, although Duesser is present in the plant he is not
there only to supervise the press crew.
It is undisputed that McAfee and Minor served as a
substitute for the foreman in the absence of the salaried
foreman, or due to no foreman being scheduled on a par-
ticular shift. Other MCs also, with regularity, served as
foreman substitutes. In some instances where no salaried
foreman was scheduled to report, two MCs would be as-
signed to substitute on the same shift. Usually the
number of presses scheduled would be the controlling
factor. The testimony varies in term usage from foreman
and assistant foreman to foreman and floorman. What-
ever the terminology, the first substitute listed was first
in authority and the second listed (if any) was second in
authority. In 1977, McAfee served as MC or foreman
substitute almost an equal amount of time. In the same
year, Minor served as foreman substitute approximately
41 percent of the time and the remainder as MC. The
permanent MCs were usually selected as foremen substi-
tutes, but not exclusively. On occasion a journeyman not
permanently assigned as MC would substitute for a fore-
man when availability dictated such. On each occasion
that a permanent MC is assigned foreman duties, his MC
vacancy must be filled either by a permanent MC or a
temporary MC. Each permanent MC receives extra com-
pensation for each shift worked as a foreman substitute.
A foreman makes $9, $10, or $11 a shift more than a
journeyman, depending on which shift he works. Minor
stated that he was paid extra when he substituted for the
foreman, but he did not know how it was figured or the
amount. His only recall was that it was something over
his MC's salary. McAfee stated that his extra pay for
substituting as foreman ranged from $65 to $75 a week
more than his MC's pay. Both Minor and McAfee re-
quested to be relieved of substituting for foreman in late
1977, and remain as permanent MCs on the press.
McAfee, however, subsequent to his request did accept
an assignment as foreman substitute. All MCs when sub-
stituting for the foreman assume the responsibilities of
the foreman position, use the foreman's office, and keep
the foreman's logbook. However, the logbook is mainly
for the night foreman to record the events of the run.
Yakovitz, a night foreman, stated that the events occur-
ring on a shift are divided between the MC's report sheet
and the foreman's logbook. The events pertaining direct-
ly to the press and press crew are in the MC's report,
whereas the events and occurrences dealing with all de-
partments or a combination of departments are placed in
the foreman's logbook. Management on the following
day can, thus, get a complete picture of the prior night's
production and attendent problems.
Unquestionably, the MC assigns the crewmembers to
the various work tasks on the press prior to start of the
shift. Minor stated that he places the men in the crew in
their position first by recording the placement on the
markup. He puts them where they can work best, where
they can help the most. The journeymen are placed to
best use their skill; albeit, they seldom work in the same
position two shifts in a row if they are assigned to the
same crew back to back. The trainees are placed to learn
all tasks on the press over the 3-year training period.
McAfee stated that he used the markup to assign the
crew members to their various jobs. Sometimes he
moved the men to different jobs on the press during the
run. If he had to adjust the crew for any reason, he ad-
justed it. The MC records the attendance of his assigned
crew on the layout sheet, and in situations which require
replacements, consults with the foreman or floorman.
Apparently it is the policy of Respondent to start shifts
short, expecting the absentee to come in late. In any
event a start time for the press cannot be held up by
want of a crewman.
As permanent MC of the press crew, Minor and
McAfee were responsible for the press, the crew, and the
operation during shift. The press-room superintendent or
the foreman sought out the MC if a problem or trouble
arose during shift. It was the MC's function to minimize
problems by getting to the cause immediately. To facili-
tate this minimization, the MC assigned pressmen in
doing their job, or got someone else to take over the par-
ticular work station. Minor testified "Like if the work
was heavy or you needed more people to work on a par-
ticular problem he called someone in the crew to help."
The MCs would compare notes on individual perfor-
mances, so when a particular individual appeared on a
crew, the MC would have some knowledge of his expe-
rience and performance to guide him (MC) in how much
direction or help the man would need. Several plate
changes are made during a press run. The MC must see
that the plate changes are made when needed. The MC
either stops the press himself or tells a crewman when to
stop the press. McAfee stated that during the press run
he would call to someone or stop the press himself so
that plate changes or press adjustments can be made. The
MC records all plate changes, downtime of the press,
spoilage, and other production problems on the man-in-
charge report, usually as they occur. On occasion the
mail or distribution department may stop the press, and
the downtime must be recorded on the MC report.
McAfee stated that such an entry may be made by the
crewman operating the folder, because the report sheet is
kept in the vicinity of that work station. Other entries
may be recorded on scrap paper to be entered in the
report after shift by the MC.
An additional responsibility of an MC is the written
evaluations of trainees at 6-month intervals during the
course of their 3-year training period. A positive evalua-
tion of a trainee results in increment increases during his
training, culminating in attainment of journeyman status
and pay. Minor and McAfee both stated that some crew-
members work better than others skillwise, and some just
work harder doing their job than others. The selection of
the assistant MC is made on the basis of the MC's evalu-
ation of the individual on the particular crew that does
280
TIMES HERALD PRINTING COMPANY
the best job and is most trustworthy, as previously noted.
This evaluation results in a shift bonus of $2.50 an hour.5
Respondent's disciplinary procedures in the pressroom
are manifested in written writeups on individual employ-
ees, generally, for a set identity of infractions. Most of
the infractions occur directly in the press crew during
shift. MCs, floormen, and foremen writeup employees
for infractions which are logged in the day foreman's
book. The MCs are specifically instructed to writeup em-
ployees for basic infractions related with their perform-
ance on the press (particularly where spoilage occurs as
a result), and, additionally, are directed by the foreman
or superintendent to writeup an individual as a result of
the MC's report of the incident. Minor testified, "If it
was a delay in getting the paper started or something
that cost you some time, well, you wrote him up for
that." On one occasion two crewmembers had failed to
reconnect some hoses after cleaning the press. A couple
thousand papers were run with two blank pages, so
McAfee told Foreman Hart to alert the mailroom to
catch the papers with blanks. Hart asked for names of
those responsible. McAfee told Hart, and Hart said,
"write them up." MCs had the authority to and did send
crew members home for various infractions. McAfee tes-
tified, "I think I had instructions that when you send a
man home, that he had to, at that time, to talk to the su-
perintendent before he came back to work." The signifi-
cance of telling a man to talk to the superintendent
before returning to the job, according to McAfee was,
"whether he was going to have a job or not." Not all
infractions are written up the first time it occurs. The
MC verbally warns the crewmember once or twice then
on subsequent occurrences will write the man up.
Whether the individual mistake or infraction becomes
codified is left to the MC. The MC would decide wheth-
er the effect on production was such to require a wri-
teup, or whether the individual had been orally warned
enough to require a writeup.
Respondent's overtime policy is more controlled by
the cost factor than anything else. The common overtime
at lunch is dictated by the need for a plate change. De-
pending on the makeup of the crew, any one crew-
member may be qualified to make the change. Likewise,
some crew members have a preference for lunch rather
than overtime. The MC may have to select from those
willing, the one most qualified for the particular plate
change. Not all plates are the same nor is the change me-
chanics the same. Additionally, the number of plates to
change can vary depending on what is being run, and
whether the press is on schedule. Such lunchtime over-
time is not authorized by any individual, foreman, super-
intendent, or MC, but rather is the result of the stage of
the run and the clock. The MC himself may perform the
plate changes, which apparently occurs when no one is
willing to forego his lunch time. The usual lunch over-
· The testimony relating to the evaluation of journeymen by the al-
leged discriminatees and MC Smith carries little weight in deciding the
ultimate issue. The evaluations were made February 8, and the series of
events leading to the discharges began February 7. Albeit I do not accept
the Charging Party's contention that the evidence was created by Re-
spondent to support its discharges of claimed supervisors, I do find the
evidence lacking in reasonable purpose and an explanation for the time of
its occurrence.
time is one-half hour. The other common overtime is
that which occurs at the end of the press run. Each crew
must clean the press and get certain parts ready for
whatever run the following crew is assigned. If the press
run has been uneventful and ample time is left for make-
ready, the crew necessary to do it can be small. Those
crewmembers not needed because of their skill or lack of
skill may be excused, and those willing to work, assum-
ing they possess the skills, may be given the overtime.
All make-ready requires some skills, so generally a will-
ing journeyman would be selected. Where time allowed
is a factor, the MC may select extra crewmembers to
ensure finishing on time. The MC determines when the
press is adequately made ready which stops the over-
time. In addition, the MC may release one or more crew-
members during the make-ready cycle when their serv-
ices would no longer be needed. The average overtime
for make-ready is I hour to 1-1/4 hours. In all cases of
overtime, the MC records the time worked by each
crewmember on the layout sheet. These entries are taken
by the foreman and placed on the payroll sheet for the
several departments under his supervision.
With regard to crewmembers request to report in late
or to be absent from a scheduled shift, they are usually
directed to the foreman or floorman on duty. The phone
number the employees call is that of the foremen's office.
Crewmembers who report late without prior permission,
however, are subject to being sent home without work
by the MC. If the MC does not want the employee
working, he is sent home. Crewmembers requesting to
leave work before the shift ends, normally talk to the
MC. Whether during the run or during makeready, the
MC may grant such a request or deny it. Staffing crews
for particular shifts and particular runs is a constant diffi-
culty. The MC's discretion in working with less employ-
ees is based on his experience with the runs, and those
assigned to his crew. The relative difficulty of a given
run frequently is not known until after the shift starts. If
the MC needs to replace an absent crew member or aug-
ment what was an understaffed shift, he reports to the
foreman who decides whether to call in someone.
Hiring and firing practices are left to middle manage-
ment, except that MCs and foremen may make recom-
mendations for discharge. The effectiveness of a recom-
mendation for discharge from an MC varies with the
nature and frequency of past discipline. Respondent's dis-
ciplinary procedures include written writeups that
"became a permanent part of the employee's personnel
record." The writeups originate with MCs, foremen, and
the pressroom superintendent. The record, thus, estab-
lished is considered by management in making decisions
to discharge. Recommendations to management that cer-
tain individuals be hired are made, generally, by anyone
with prior knowledge of the individual. In any instance
where a journeyman, MC, or foreman has such knowl-
edge, the recommendation carries basically the same
weight and usually deals with the acquired skills of the
individual. Respondent's manner and means of training
employees is utilized for all new hires through the eyes
of the MC and the foreman. Each employee must per-
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form on the press or in maintenance to continue employ-
ment.
3. Additional factors on issue
Respondent subscribed to and had employees attend
seminars, one in 1975, 1976, and 1977. These seminars
are classified as management seminars with programs
dealing with communication of supervisors, personnel
problemsolving, and union organizational campaigning.
Those attending were classified as management and su-
pervision by Respondent. Besides the admitted supervi-
sors the permanent MCs were in attendance as were
some journeymen who had temporarily filled in as MC.
Minor recalled attending 2 or 3 management seminars as
an MC. 6 McAfee testified in regard to attendance at one
management seminar, "I was told to go out there." I was
told by Lynwood Martin the press room superintendent.
"He told me to go to the meeting and I told him I wasn't
going to go. It was on my day off." Martin said he
would pay McAfee to attend. McAfee attended and was
paid overtime for his time spent at the seminar. Smith
testified, "The first one I recall was in 1975; I don't re-
member the exact date of it. It was put on by SPPI spe-
cifically for management and supervisory personnel, and
it was based on what a supervisor should do, you know,
for his employees, and also what to look for, morale
problems and stuff like that." Smith's recall of the next
seminar was, "I believe it was '76 and again, it was at the
Marriot Hotel. I don't remember who put it on, but it
was more of a management type session is what it was,
teaching us how to be better managers, if you will."
Smith stated that MCs, foremen, the production director,
and press room superintendent attended the seminar.
Respondent has a written grievance procedure for
nonrepresented production employees. The procedure
originated in 1976 and is extant. The record contains a
written grievance at step 2, filed by an MC and dated
February 21, 1977. The disposition of the grievance is at
step 2, wherein Frank Hart, pressroom foreman, dis-
cussed the grievance to the MCs satisfaction. Spahn, pro-
duction director, stated that when Hart presented the
grievance for discussion, he told Hart the grievance was
invalid because supervisors could not utilize the proce-
dure. The written disposition by Hart does not specifical-
ly allude to any cause for denial. 7 In conjunction with
the written grievance procedures, MCs do attempt to
adjust employee complaints, whether personal or work
related, e.g., wage increase requests were discussed with
MCs as well as personality conflicts between pressmen,
both journeyman, and trainees.8
Spahn stated that in October 1974, there was a lot of
confusion in the pressroom among employees about who
was responsible for the various functions. To eliminate
confusion, Spahn published and distributed to all press-
' Several dinner meetings of all employees were held at various times
at the same motel location, but they were social gatherings not scheduled
meetings.
7 Neither Hart nor the grievant testified.
a Spahn's testimony of a pending change in the published grievance
procedure is not probative since it was not communicated to employees
and supervision. Additionally, as a pending change its existence is purely
speculative.
room employees a memorandum on the chain of com-
mand. Following the listing of those in the chain the
memo states: "In all situations, you are expected to carry
out instructions of the man in charge regardless whether
you agree or not. If you disagree, you have the right to
discuss the problem at each successive level up the chain
of command." In September 1977, with the addition of a
morning edition to the publications a daily night press
run had to be established. Also new crews had to be
hired, and old employees had to be informed. Some con-
fusion was existing due to a change in the printing proc-
ess just completed anticipatory to the new edition. Spahn
held a meeting of all press employees to explain the new
setup and the effect on employees. In the meeting, Spahn
emphasized the existing chain of command alluding to
the crew chief as the boss of press operators and train-
ees. Visual aids were used to emphasize the chain of
command.
Respondent utilizes several areas as parking lots for
employees. Due to congestion and unauthorized use, a
memorandum was issued on November 8, 1977, establish-
ing priorities for parking and seeking an update from
each department head. Priority one in the memo includ-
ed supervision. Spahn replied November 15, 1977, listing
the seven permanent MCs and one temporary MC
among the supervision in priority one. The new priorities
went into effect in early 1978, but subsequent to the dis-
charges of Minor and McAfee.
4. Circumstances surrounding the discharges
On February 7, Spahn learned that three MCs,
namely, Minor, McAfee, and Smith may have solicited
union cards.9 Spahn called each involved MC, individ-
ually, on February 9 into Power's office, to determine if
each was, in fact, involved and if so to what extent.
Each MC was confronted by Spahn with their alleged
involvement in the union activity. In addition, problems
and morale in the pressroom were discussed with each
MC. Spahn questioned each MC about his union activity,
and that of the other MCs. Each denied any direct in-
volvement in the activity, but admitted that such activity
was going on. Spahn ended each interview by stating to
the MCs that their job was in jeopardy if they had been
engaged in union activity. Spahn also stated that it was
the duty of all supervisors, including MCs as supervisors,
to report union activity to management. At the conclu-
sion of each interview, the MC was told that he was sus-
pended, including possible termination.l ° Spahn, this
same afternoon, reported to his supervisor that he had
9 Minor in his testimony acknowledged that Powers had been told of
Minor's involvement in union activity.
'o Minor, Smith, and McAfee testified to the Spahn interviews, but
their recall of the actual conversation was faulty. I do not credit Minor
and McAfee's testimony relating to Spahn's interrogation of the union ac-
tivity of other employees or that relating to Spahn's demand for names of
employees or a report on the union activity of other employees. Spahn's
testimony on direct was clear and convincing and stands unshaken.
whereas Minor's and McAfee's testimony appeared confused and an at-
tempt at conclusionary protection for each other. However, it is undis-
puted that Minor, Smith, and McAfee were specifically questioned about
the union campaign activity and their part in the campaign, active or pas-
sive. It is also undisputed that Minor and McAfee were discharged for
their part in the union campaign.
282
TIMES HERALD PRINTING COMPANY
concluded that Minor and McAfee were involved in the
union campaign activity, but that Smith (on vacation the
week of the activity) had not been. The following morn-
ing, February 10, Spahn met with management and the
decision to discharge Minor and McAfee was made. It
was further decided that Smith would not be discharged.
Management decided at the same time to delay notifica-
tion to the MCs until Monday, February 13. On Monday
about 10 a.m. Spahn told Powers' supervisor to have
Powers contact Minor and McAfee to notify them of
their discharges. Powers notified McAfee of his dis-
charge sometime before noon. Minor was notified by
Powers of his discharge about noon.
Minor stated that Powers called him at home Friday
and told him to remain at home, and the company would
be in touch. Minor was contacted about noon on
Monday, February 13 and informed by Powers that he
was terminated. Minor's only response to Powers was,
"Well that's fine."
McAfee made contact with powers on Friday, Febru-
ary 10. On that day Powers told McAfee that no deci-
sion had been made and that McAfee was to remain at
home. Powers also stated that the Company would con-
tact McAfee on Monday, February 13. Powers did call
McAfee, without success, on Monday and when McAfee
returned the call he was informed by Powers of the dis-
charge. McAfee's response to Powers was, "Well, that
doesn't surprise me."
Smith stated that on Monday, February 13, around
noon, he was contacted by the Company, and told it was
determined that he had not been involved in the union
campaign and that he could return to work Tuesday,
February 14. Smith did return to work February 14.
Both Minor and McAfee stated that they talked imme-
diately after their suspension, on February 9. The con-
versation resulted in their decision to go to the National
Labor Board. The following morning each filed a charge
alleging 8(a)(1) interrogations and threats of loss of their
jobs because of union activity. On February 14, each
amended their respective charge to add an 8(a)(3) dis-
charge because of union activities. Subsequently, McAfee
on June 29 and Minor on July 5, further amended their
respective charges to add an 8(a)(4) discharge because of
union activities. The record shows that each charge was
served by the Regional Office in due course, with the
certified receipt of both original charges dated February
13.
ANALYSIS AND CONCLUSIONS
The General Counsel contends that Minor and
McAfee are rank-and-file employees, and that Respond-
ent's conduct against them just prior to suspension, vio-
lated Section 8(a)(l) as coercive threats, interrogation,
and a form of surveillance. The General Counsel further
contends that the resultant discharge, a fortiori, violates
Section 8(a)(3) or in the alternative, based on motivation,
violates Section 8(a)4).
Respondent's defense places in issue the supervisory
status of both Minor and McAfee. Resolution of this
issue carries with it the complaint allegations respecting
the 8(a)(1) and (3) violations. The alleged 8(a)(4) viola-
tion requires an independent resolution.
Although parties' statements on the record and plead-
ings are limited to the man-in-charge positions held by
Minor and McAfee, my conclusions include all perma-
nent men-in-charge. There are seven permanent men-in-
charge, including Minor and McAfee, referred to herein
as MC.
A complete analysis of the credited evidence in the
record shows that the MC is delegated to carry out man-
agement's instructions in the pressroom. Respondent has
held out the MC as a supervisor to the employees in the
pressroom. The employees were told to do what the MC
directs or instructs in several management meetings thus
employees know of the MCs' authority as bestowed by
management. Assuming the exercise of such authority
was minimal, the mere possession has been held determi-
native. The Eavey Company, 115 NLRB 1779 (1956). In
the instant case, however, there is exercise of that pos-
sessed authority. At the beginning of each shift, the MC
assigns the day's work to each member of the crew.
Such assignments are based on the MCs' knowledge of
each individual's skills on the various work tasks, and the
necessity for further training of a particular individual in
certain work tasks. The assignments thus made are not
permanent however, because depending upon the work-
load or unforseen problems, the MC may move one or
more individuals to different work tasks or require sever-
al employees to combine their skills to offset the difficul-
ty. The MC himself may work alongside the employees
at any work station, which requires manning, or the
crew may operate short. While the MC may perform
some work tasks typically performed by journeymen, the
evidence clearly shows that each MC was required sepa-
rately and additionally to control the flow of work on
the press, to observe the work of the rank-and-file em-
ployees, and to specify corrections or adjustments. Al-
though the work flow to and from the press was well
defined and the nature of the work tasks on the press
were relatively skilled, the evidence shows the tasks to
be on an order of difficulty requiring the exercise of in-
dependent judgment on the part of the MC, both as to
the identity of employees to perform the various work
tasks and some elements of its actual performance. I am
persuaded, contrary to the Charging Party, that in the
circumstances of this case, the MCs responsibly direct
the press crew.
The MC's responsibility for the quality and quantity of
work and the maintenance of the press is evidenced by
the man-in-charge report required at the end of each
shift. The completeness of this report gives management
a panoramic view of the operation including the time
due each employee, whether straight time or overtime.
This report is the only record of the press run and serves
as the source for the foreman's payroll report, which in-
cludes the pressroom. The press is an expensive machine
occupying three floors. Albeit there is a pressroom fore-
man, his responsibility includes other employees in other
departments and his office is on the mezzanine of the
press. It is more than reasonable to assume an employer
would provide a responsible person to be in immediate
charge of the press and pressmen.
283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's disciplinary procedures are initiated with
a writeup (written warning). The warning is filed with
the foreman who is responsible for deciding what disci-
pline, if any. An MC may orally warn an employee prior
to issuing the writeup, but he has specific instructions
from management that certain work related deficiencies
are to be written up. The form of the writeup is printed
and originated with management. Any writeups authored
by the foreman or press superintendent are on this same
form. Although the weight assessed to a given writeup is
not discernible on this record it is abundantly clear that
Respondent's established discipline procedure begins
with a writeup and is based on standard infractions.
Unlike the General Counsel and the Charging Party, I
consider the MC's role an integral step in the disciplinary
procedures and one that the employees must readily ob-
serve on a daily basis. An adjunct to the writeup system
is the MC's authority to refuse shift work to an employ-
ee reporting late. The MC decides whether to send the
man home or allow him to work. If the man is sent
home, he is told by the MC that he cannot report for
work until he talks with the press superintendent.
The use of overtime though not discretionary with the
MC is, however, not automatic. The MC must be pru-
dent in its use, and to ensure control will frequently
choose employees best suited for the tasks as well as the
number of employees needed. Those employees whom
the MC decides are not needed are released from duty
on the shift.
The Charging Party and the General Counsel view the
evidence relating to Respondent's published grievance
procedure, which incorporates the pressroom foreman in
the first step, as probative of no statutory supervisory in-
dicia for MCs. If that were all the evidence I would
agree, however, the record shows that MCs frequently
resolve minor complaints of the press crew on an infor-
mal basis. Indeed, some of the work assignment adjust-
ments can be attributed to crew complaints and personal-
ities. Resolution of such minor complaints of employees
that never reach formal complaint stage constitute ad-
justment of grievances to satisfy the statute. See Newark
Newspaper Pressmen's Union No. 8, a/w International
Printing Pressmen and Assistants' Union of North America,
AFL-CIO, 194 NLRB 566 (1971). Albeit in the Newark
case the grievance procedure was contained in a collec-
tive-bargaining agreement, I am satisfied of the precedent
if the procedure is formalized as in the instant case.
Additionally the training of new employees, as well as
younger journeymen, is accomplished through the MC.
The training program is formalized in increments of time
and wage, which is satisfied only by the MC's appraisal.
While it is true, as the Charging Party contends, that in
the industry new hires learn from the journeymen they
work beside, it is not the complete picture." It is the
MC's responsibility to see that trainees learn the various
work tasks on the press, and to evaluate their progress.
Not only is the evaluation formalized in a written ap-
praisal but MCs share orally among themselves the skills
" As Minor and McAfee stated, some journeymen are better than
others, and when assigning a trainee to a work task the identity of the
related journeymen is considered by the MC.
progression of trainees, particularly, when seeing an indi-
vidual for the first time on shift.
The evidence clearly shows that the MC is the first
step in the line of supervisory progressions. Three of the
five foremen came from the MC ranks, and MC's daily
substitute for the foreman in the foreman's absence. Both
the General Counsel and the Charging Party concede
that the foreman and substitute foreman are statutory su-
pervisors, presumably because they can hire, fire, disci-
pline, and set wages. Based on those same factors, I con-
clude and find that foremen and substitute foremen are
supervisors within the meaning of the Act. The General
Counsel and the Charging Party contend, however, that
despite the frequency of substitution by Minor and
McAfee, the fact of their substitution cannot be the basis
for a supervisory finding on February 9. Such a basis
would be invalid because both Minor and McAfee in late
1977 asked to be relieved of the substitute role and Re-
spondent acquiesced. Nonetheless, McAfee did in fact
substitute for the foreman subsequent to his request. As-
suming, arguendo, the contention would only be valid if
the substitutions were the controlling factor.
Respondent's publication of parking privileges for su-
pervisors, which included the seven permanent MCs and
the inclusion of the MCs in the management seminars, is
further proof of the communication to employees of
MC's supervisory authority.
The issue of whether an employee is actually a super-
visor occurs frequently, but in spite of the wealth of
cases, is not an easy one. One can cite case upon case to
support his position no matter what the contended out-
come. It is for this reason I find the parties' briefs, al-
though complete, little help to me in deciding the ulti-
mate issue.
The Board has held that the absence of authority to
hire or discharge employees is not dispositive of the su-
pervisory issue. See Florence Printing Co., 145 NLRB 141
(1963), wherein the Board stated, "While the record is
clear that Holland does not have the right to hire and
fire employees, the possession of any one of the powers
enumerated in Section 2(11) of the Act is sufficient to es-
tablish supervisory status since the section is interpreted
disjunctively."12 There is a caveat however, in that, the
exercise of any such power must not be routine, or in
fact, fixed. The legislative history discloses the intended
distinguishment between straw bosses, leadmen, setup
men, and other minor supervisory employees on the one
hand, and the supervisor vested with genuine manage-
ment prerogatives on the other. It has been held, e.g.,
that the fact that one employee is skilled and gives
instructions to or makes daily assignments to other em-
ployees does not, standing alone, require a finding of su-
pervisory status. Lakes Concrete Industries, Inc., Milford
12 Sec. 2(11) of the Act provides:
The term "supervisor" means any individual having authority, in
the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effective-
ly to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
284
TIMES HERALD PRINTING COMPANY
Black & Tile Co. and Concrete Sand & Materials Co., 172
NLRB 896 (1968).
Nor is it as Respondent contends, the existence of the
power which determines the classification, citing Ohio
Power Company, 176 F.2d 385 (6th Cir. 1949), for in com-
menting on that principle, the First Circuit, in 1952,
stated, "We do not take this statement to mean that mere
existence in theory only of a power described in a statute
is enough to make a 'supervisor."' N.L.R.B. v. LeLand-
Gifford Company, 200 F.2d 620, 625 (Ist Cir. 1952).
There must be more than mere existence of power.
The Board made it clear that it is the possession of the
supervisory authority and not its exercise that is determi-
native. The Board reasoned that the employees must be
aware of and observe a boss to employee relationship
with the individual whose duties are under scrutiny. The
Eavey Company, supra
The evidence must clearly identify an employee as an
active arm of management with recognizable responsibil-
ities and duties. Recognizable, i.e., by the rank and file.
It is this basic test which I apply to the case at hand.
The permanent MCs were endowed with authority by
Respondent. The endowment was publicized by Re-
spondent for all employees. The permanent MCs as-
sumed and exercised the authority almost on a daily
basis. Thus, rank-and-file employees were assigned their
work, instructed, and directed in its performance, were
disciplined both orally and in writing, were denied a
work shift if reporting late, were excused from shift
early, received some overtime work, and had minor
complaints adjusted, all by the permanent MC. Addition-
ally, the MC chose his assistant from among the crew to
aid him in performance of those duties.
As the General Counsel contended, it is not titles that
are determinative but the functions performed and the
authorities possessed and/or exercised. Accordingly, I
conclude and find that Minor and McAfee and the other
permanent MCs are supervisors within the meaning of
Section 2(11) of the Act. I make the above finding with
partial reliance on the periodic foreman substitution of
the MCs. The foreman substitution was not controlling,
however, since my finding would remain unchanged in
the absence of such substitution. s
Respondent contended that there can be no violations
of the Act from the discharge of a supervisor for that su-
pervisor's union activities.
It is true that the protection of the Act runs only to
employees, not supervisors, and a discharge of a supervi-
sor for engaging in union activities does not violate the
Act. The Mousetrap of Miami, Inc., d/b/a Bea Moreley's
Mousetrap, 174 NLRB 1060 (1969). There are certain cir-
cumstances, where the discharge of a supervisor inter-
feres with employee rights, and the discharge thereby be-
comes unlawful, however, the General Counsel ad-
vanced no such theory of the case nor pleading to sup-
port it. Neither does the record contain any evidence of
j" Several pages of the record were consumed with testimony and ex-
hibits relating to Excelsior lists from past elections. Excelsior lists are
made up by the employer for the Board's use in conducting elections
only. Placement thereon or the absence thereon is not dispositive of any
issue particularly, employee status. I therefore gave no consideration to
arguments relative to the list.
such existing circumstance. The case therefore turns on
the MC's status. Since MCs are clearly statutory supervi-
sors, they are not entitled to a protected right to engage
in union or other concerted activity on behalf of a union.
The employer may discharge them with impunity even if
it be proven that they engaged in such activity, and were
discharged for it. Boyer Bros., Inc., 170 NLRB 1108
(1968). The Board more recently held that the discharge
of a supervisor for refusing to adequately support his em-
ployer's antiunion campaign, where the supervisor was
not required to engage in any unlawful activity, does not
violate the Act. In the case three supervisors were dis-
charged because they failed to report on the union activ-
ities of the employees whom they supervised. The em-
ployer considered such failure as a display of union sym-
pathy and company disloyalty. Western Sample Book and
Printing Co., Inc., 209 NLRB 384 (1974).
The record makes it abundantly clear that Minor and
McAfee were suspended, and then discharged for their
involvement in union activities in the pressroom. 14 In
view of my finding that Minor and McAfee are statutory
supervisors, I further find that the General Counsel has
failed to establish that the suspensions and discharges
violated Section 8(a)(1) and (3). The Board recently ac-
knowledged that supervisors who engage in concerted or
union activity are not protected, and do so at their peril.
See DR W Corporation d/b/a Brothers Three Cabinets, 248
NLRB 828 (1980). Assuming, arguendo, if the evidence
showed that Minor and McAfee had not, in fact, en-
gaged in union activity, it would not require a different
result.
The 8(a)(4) allegation rests on basically the same set of
operative facts, i.e., the two employees were questioned
and threatened because of their union activity, which re-
sulted in their filing a charge against their employer. The
General Counsel contends that the discharge followed
the filing of the charge. The Charging Party joins the
General Counsel. Respondent contends that the filing of
the charge followed its decision to terminate the two in-
dividuals and, in any event, the discharge was accom-
plished before Respondent had any knowledge of the
charge.
The General Counsel's evidence was limited to Re-
spondent's receipt of the charge evidenced by the regis-
tered receipt, and a post office witness who testified to
the normal procedures for handling of registered mail.
Respondent offered uncontroverted evidence that the
decision to terminate Minor and McAfee was made 3
days prior to receipt of the charges and, precipitous to
the conduct causing the suspension and discharge.
I am not persuaded by the General Counsel's evidence
nor will I infer the cause of discharge to be the filing of
the charge, based on timing. The record contains exten-
sive testimony of Respondent's consideration of the con-
duct of Minor and McAfee on February 9 and 10. Minor
'4 Respondent, on the record, offered to stipulate that Minor and
McAfee were engaged in union activities during the critical period and
were discharged for it. The General Counsel agreed to stipulate but the
Charging Party refused. Additionally, the Charging Party argued that the
attempt at journeymen evaluations on February 8 was only to support
Respondent's decision to discharge employees claimed to be supervisors.
See fn 5.
285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and McAfee reacted to Respondent's investigation and
considerations by attempting to forestall termination and
protect their job. The General Counsel and the Charging
Party offer the fact that Smith, who did not file a charge
was not discharged, as probative of Respondent's moti-
vation in discharging Minor and McAfee. It is also a fact
that Smith had not engaged in union activity and al-
though he received the same job threat as Minor and
McAfee did not feel compelled to seek anticipatory re-
dress from the Board. 5 It is true that a supervisor has a
public right to file charges with the Board, both to have
his supervisory status decided by someone other than his
employer and to redress any discrimination against him
because of the filing of the charge.1 6 While it is true,
that the Board's approach to Section 8(a)(4) generally
has been a liberal one in order fully to effectuate the sec-
tion's remedial purpose, the discrimination must be
proven. The burden of proof rests on the General Coun-
sel to establish the allegations of his complaint by a pre-
ponderance of the evidence. I conclude and find that the
General Counsel failed to sustain his burden of the al-
leged 8(a)(4) violation. Additionally, I conclude and find
that the General Counsel failed to sustain his burden on
the alleged independent violations of Section 8(a)(1).
1t McAfee testified that Powers in the critical interview stated, "Now
this is the time. If you have anyting to say, this is the time to do it."
6 Respondent's argument on "due process" relating to the Board's in-
vestigation of the 8(aX4) violation without having an (aX4)-before it, in
my view, is answered by the very case cited by Respondent, N.L.R.B. v.
Fant Milling Ca, 360 U.S. 301, 299 (1959), and the court's language
quoted, "There, the Court noted that nothing in the Act precludes the
Board from 'dealing adequately with unfair labor practices related to
those which are related to those alleged in the charge,' citing National
Licorice Co. v. N.LR.B., 309 U.S. 350 (1939)." It is the Board's province
to decide when the Act has been violated and what sections, not the
charging party's.
ADDITIONAL CONCLUSIONS OF LAW
i. Permament Men-in-charge, particularly Minor and
McAfee are supervisors within the meaning of Section
2(11) of the Act.
2. Respondent did not violate Section 8(a)(l) of the
Act by interrogating, threatening, or requesting a report
on union activities from permanent Men-in-charge,
Minor, McAfee, and Smith.
3. Respondent did not violate Section 8(a)(1) or (3) of
the Act by suspending its permanent Men-in-charge,
Minor, McAfee, and Smith.
4. Respondent did not violate Section 8(a)(l) or (3) of
the Act by discharging its permanent Men-in-charge,
Minor and McAfee.
5. Respondent did not violate Section 8(a)(l) or (4) of
the Act by discharging its permanent Men-in-charge,
Minor and McAfee.
6. General Counsel has failed to sustain his burden of
proof for any allegation in the complaint.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 7
The complaint is dismissed in its entirety.
An In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
286