Wilco Business Forms, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1336 (N.L.R.B. 1986)

1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilco Business Forms, Inc. and Local 284M, Graph-
ic Communications International Union. Case
3-CA-12455
31 July 1986
DECISION AND ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 15 July 1985 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in re-
sponse.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions, as modified,2 and to adopt the recom-
mended Order as modified.
In adopting the judge's conclusion that the Re-
spondent violated Section 8(a)(3) and (1) by laying
off several employees on 25 October 1984, we
agree that the General Counsel established a prima
facie showing that union animus was a motivating
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 The Respondent has moved to strike the judge 's errata issued on 7
August 1985, in which the judge seeks to correct his failure to include
employees Berlew and Newhart on the list of employees he found the
Respondent unlawfully laid off on 25 October 1984 The General Coun-
sel initiated the issuance of the errata by advising Associate Chief Judge
Dyer over the telephone of the error. Associate Chief Judge Dyer in turn
spoke to Judge Gadsden. Under Secs . 102.35 and 102.45 of the Board's
and Regulations , an administrative law judge is authorized to issue post-
decisional errata to correct material typographical errors, but not to
change matters of substance , such as findings on the merits The judge's
correction amends his conclusions of law regarding the Respondent's vio-
lations of Sec. 8(aX3) and (1) through the 25 October layoff, and is thus a
change of substance . Compare Daniel Construction Co., 239 NLRB 1335
fn. 2 (1979) (notice corrected to include backpay obligation, but obliga-
tion set forth in the remedy section of judge's decision and his recom-
mended Order). Accordingly , the judge was without authority to issue
the errata, and we shall grant the motion that it be stricken as such. Fur-
thermore, the Board 's Rules and Regulations do not provide for ex parte
communications between parties to a proceeding and the administrative
law judge concerning substantive, although inadvertent , errors in the
judge's decision. See Rules and Regulations , Sec 102.130 A party should
seek correction of such errors either through exceptions to the judge's
decision or by motion to the Board.
However , we shall consider the General Counsel's request to issue the
errata as a motion for correction to the Board , to which we find the Re-
spondent had adequate opportunity to respond through its brief to the
Board in support of its exceptions to the judge's decision . Based on our
finding that the Respondent 's 25 October 1984 layoff was discriminatorily
motivated and the fact that employees Berlew and Newhart were among
those employees laid off on 25 October, we find them to be discrmuna-
tees. We therefore grant the General Counsel 's motion, and shall amend
the Conclusions of Law, Order, and notice accordingly
factor in the Respondent 's layoff decision and that
the Respondent's affirmative economic defense was
pretextual . Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). In doing so, we note that the Re-
spondent and the General Counsel agree that the
judge erred by fording that the Respondent learned
of the Union's 24 October 1984 representation peti-
tion filing on 24 October. Although the Respond-
ent did not learn of the petition 's filing until 25 Oc-
tober, after it had made its layoff decision, we
nonetheless ford that the timing of the layoff pro-
vides support for an inference of discriminatory
motive . The Respondent executed its layoff only 9
days after first learning of the Union 's organizing
efforts through a letter posted on its employees'
bulletin board on 16 October that listed the names
of 16 employees who had joined the Union's in-
house organizing committee . Furthermore, the
layoff occurred only 4 days after the Union similar-
ly posted another notice advising that an additional
seven employees had joined the committee, which
brought the total number of organizing committee
members above 50 percent of the number of unit
employees. Several of the laid-off employees were
in-house organizing committee members, including
employees Woodmansee, McCray, and Berlew.
Moreover, there is other strong evidence that the
Respondent's layoff was unlawfully motivated. The
Respondent demonstrated its union animus during
October by unlawfully creating the impression of
surveillance and by threatening employees because
of their union activities. The Respondent also made
its unlawful motivation quite clear to those laid off.
When Supervisor Sims informed employee Klick
he was being laid off, he told Klick not to worry
about it because he and the others would get their
jobs back "as soon as they got rid of the union in-
stigators." When employee Woodmansee asked
Sims why she was laid off, Sims responded that she
had no right being on the union organizing com-
mittee or having anything to do with the Union be-
cause she was still in her probationary year. Fur-
ther, General Manager Rosetti told employee
Barden , while informing him that he was being laid
off, "I'm sorry I have to lay you off for economic
reasons. I guess you can probably see through
that." This evidence combined with the timing of
the layoffs establishes a strong prima facie showing
that the layoffs were discriminatorily motivated.
We also agree that the Respondent failed to
rebut this showing . The Respondent asserts that its
layoff decision was based on its concern over the
Company's declining profits and its belief that its
operations were overstaffed . In regard to its declin-
ing profits argument , the Respondent asserts that
280 NLRB No. 154
WILCO BUSINESS FORMS
when Vice President Parziale and Comptroller
Senger reviewed the Company's profit situation on
19 October 1984, they determined that the Compa-
ny's fiscal 1984 profits were only approximately
one-third that of the previous year (or about
$50,000), and that action needed to be taken. Par-
ziale concedes, however, that the profit-and-loss
statement they reviewed at the 19 October meeting
showed profits of approximately $166,000. To ex-
plain this discrepancy in the profit figures, he as-
serts that the statement did not take into consider-
ation certain outstanding debts . But the Respondent
submitted no documentary proof of these debts nor
any explanation of why the profit-and-loss state-
ment did not report them. Furthermore, even if
these debts actually did exist, they were of an un-
usual and nonrecurring nature (i.e., plant moving
expenses and large uncollectible debts), and thus
would bear no relationship to the efficiency of the
Respondent's operations.
With respect to its professed concern with over-
staffing, it should be noted that the Respondent im-
posed no hiring freeze during the summer preced-
ing the layoff and in fact hired an employee only 1
week before the layoff. Parziale concedes that at
the time he made the layoff decision he did not
know how many overtime hours employees were
working. In regard to the Respondent's argument
that it determined that subcontracting the typeset-
ting work would be more economical, Parziale fur-
ther concedes that he did not have any figures
before him on the cost of subcontracting such
work when he decided to lay off typesetter
McCray and subcontract out her work. According-
ly, we agree that the Respondent's economic de-
fense was pretextual and that it failed to rebut the
General Counsel's prima facie showing that the 25
October 1984 layoff was discriminatorily motivat-
ed.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
"5. By discriminatorily laying off Alan Klick,
Jacqueline Woodmansee, Christopher Barden,
Diane McCray, Edwin Scott Berlew, and Ralph
Newhart on 25 October 1984 because company em-
ployees were engaged in efforts to organize a
union, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
1337
judge as modified below and orders that the Re-
spondent, Wilco Business Forms, Inc., Lansing,
New York, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following as paragraph 2(a).
"(a) Offer Alan Klick, Jacqueline Woodmansee,
Christopher Barden, Diane McCray, Edwin Scott
Berlew, and Ralph Newhart immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge , lay off, or otherwise
discriminate against any of you for organizing or
supporting Local 284M, Graphic Communications
International Union, or any other labor organiza-
tion.
WE WILL NOT tell you we will get your job back
as soon as the Company gets rid of the union insti-
gators.
WE WILL NOT tell you we know who the ring-
leaders of an organizing drive are.
WE WILL NOT tell you we will not bargain with
Local 284M, Graphic Communications Internation-
al Union, or any other labor organization.
WE WILL NOT tell you there is no sense in orga-
nizing a union because we are going to close our
doors, or threaten to get even with you if any of us
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lose our jobs because of your efforts to organize a
labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Alan Klick, Jacqueline Wood-
mansee, Christopher Barden , Diane McCray,
Edwin Scott Berlew , and Ralph Newhart immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority
or any other rights or privileges previously en-
joyed and WE WILL make them whole for any loss
of earnings and other benefits resulting from their
discharge , less any net interim earnings, plus inter-
est.
WILCO BUSINESS FORMS, INC.
Mark G. Pearce, Esq., for the General Counsel.
Raymond W. Murray, Jr., Esq ., and Larry P. Malfitano,
Esq. (Bond, Schoeneck & King), of Syracuse, New
York, for the Respondent.
Sandra L Hughes, Esq. (Delson & Gordon ), Washington,
D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT F. GADSDEN , Administrative Law Judge. A
charge and an amended charge of unfair labor practices
were filed on 5 and 14 November 1984, respectively, by
Local 284M , Graphic Communications International
Union (the Union or Charging Party) against Wilco
Business Forms, Inc. (Respondent). On behalf of the
General Counsel , the Regional Director for Region 3
issued a complaint againt Respondent on 19 December
1984.
In substance the complaint alleges that Respondent
interfered with, restrained, and coerced its employees by
threatening employees with plant closure and other
forms of retaliation ; creating the impression employees'
organizing activities were under surveillance by Re-
spondent; uttering antiunion statements designed to dis-
courage and intimidate employees , so as to dissuade and
chill their union activity; and discriminatorily laying off
several employees in order to achieve a chilling effect on
their union organizing activities , and retaliate against em-
ployees in general for engaging in union organizing ac-
tivities, in violation of Section 8(a)(1) and (3) of the Act.
Respondent filed an answer on 28 December 1984 de-
nying that it has engaged in any unfair labor practices as
set forth in the complaint , Respondent alleged in its af-
firmative defense that the bargaining unit employees, laid
off on 25 and 26 October 1984, were laid off solely due
to legitimate business considerations not related to the
Union's organizational activity or protected concerted
activities of the employees; that it had no knowledge that
the laid-off employees supported or assisted the Union or
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid and protection, other
than the names of three employees listed in the Union's
letters as members of the employees' organizing commit-
tee; and that its failure to invite certain employees to a
company called meeting attended by other bargaining
unit employees did not violate the Act.
A hearing in the above matter was held before me in
Ithaca, New York, on 19, 20, and 21 February and 12,
13, and 14 March 1984. Briefs have been received from
counsel for the General Counsel, for the Charging Party,
and for the Respondent , respectively, which have been
carefully considered.
On the entire record , including my observation of the
demeanor of the witnesses, and my consideration of the
briefs filed by the General Counsel, the Union, and Re-
spondent, respectively, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent maintains its principal office and place of
business at 1767 E. Shore Drive, Ithaca, New York,
where it is engaged in the manufacture , sale, and distri-
bution of business forms and related products , and annu-
ally ships goods valued in excess of $50,000 to destina-
tions located directly outside the State of New York. Re-
spondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Respondent also admits and I fmd
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent 's Organization
Respondent Wilco Business Forms is a wholly owned
subsidiary of Wilcox Press and is engaged in the manu-
facture, sale , and distribution of printed business forms.
On the contrary, Wilcox Press is engaged in the manu-
facture of different printed items, such as printed adver-
tisement inserts and business and professional journals.
Thomas Parziale is vice president of both Respondent
Wilco and Wilcox Press, respectively, and he is the
common supervisor in charge of operations of both com-
panies. He reports directly to William Wilcox , president
and chief stockholder of both companies . Parziale has
been vice president of Wilcox Press since 1979 and was
designated president of Respondent Wilco in June 1984.
Gilbert Senger is comptroller of both companies and is
responsible for the accounts of each company.
Both Wilcox and Wilco were located in the same facil-
ity in Ithaca, New York. However, in August 1983, Par-
ziale recommended to owner William Wilcox that Wilco
be moved approximately 6 miles away from Ithaca to its
own facility in Lansing, New York. In February 1984,
Respondent was in fact moved to Lansing . Prior to 25
October 1984 there were approximately 45 to 48 non-
managerial employees in Respondent's employ.
WILCO BUSINESS FORMS
Since November 1983 Augustus (Augi) Rosetti has
been general manager in charge of the day-to-day oper-
ations of Respondent Wilco.
Respondent admits that the following named persons
occupy the position set opposite their respective names:
Ray Sill , plant manager; Edward Emmett, first-shift
pressroom supervisor ; Ernest Sims, third -shift supervisor;
and Fred Richardson , first-shift supervisor.'
Inaccuracies in the Record
The transcript in these proceedings contains numerous
language omissions and misstatements , which I am confi-
dent were due largely to the poor acoustics in both hear-
ing facilities where the proceedings were conducted.
Counsel for the respective parties, the reporter, and I, on
numerous occasions , had to ask the person talking to
repeat what he or she said . Nevertheless, I am reason-
ably satisfied that I have interpreted and corrected the
record as fairly as I can and that most of the omissions
and misstatements were not prejudicial to either party.
B. Union Activity of Respondent's Employees
It is established by a composite of the undisputed and
credited testimony of record that on approximately 1 Oc-
tober 1984, Respondent's employees Donald Short, a
pressman, and Don McHargue met at the Holiday Inn
with Robert Palmer, an organizing coordinator for the
Union, concerning organizing Respondent's employees.
As a result of that meeting , Palmer met with about 15 to
20 of Respondent 's employees on 13 October, and again
on 17 October, regarding their interest in organizing a
union . An in-plant organizing committee was established
at both meetings and a letter dated 15 October (G.C.
Exh. 2) was sent by certified mail by Palmer to Respond-
ent, advising Respondent of the in-plant committee and
the names of the employees constituting its members as
follows:
Leon J. Brockway Sr.
Stanley Burumn
Dave Chester
William Cooper
Herbert S. Mark
Diane McCray
Donald A . McHargue
Brenda Potter
Linda Rafferty
Clara Root
Stanley Root
Donald Short
Frank Stockholm
Dana Sisson
Henry C. Tarr
Jacqueline M. Woodmansee
On 15 October, the Union gave employee Donald
Short a copy of the above letter (G.C. Exh. 2) to post on
the employees ' bulletin board at the plant on the follow-
ing day. Short credibly testified without dispute that he
posted the letter on that day.
The Union also sent another letter by certified mail to
Respondent on 20 October (G.C. Exh. 3), advising Re-
spondent of the names of additional employees who were
added to the employees' in-plant organizing committee as
follows:
Edwin S. Burleu Judith C. Miller
James E. Meenen Theresa M. Williams
' The facts set forth above are undisputed and not in conflict in the
record, and all dates herein refer to 1984 unless specified otherwise.
1339
Susan E. Meenen Kathryn J. Williams
David Merkley
Palmer also gave a copy of this letter to Don Short to
post on the employees' bulletin board, which Short
posted on 21 October.
C. Respondent 's Knowledge of Employees' Organizing
Activity
Donald Short testified that after he posted the union
letters on the bulletin board on 16 or 20 October, respec-
tively, Supervisor Ernie Sims said to him , "Don, the
Company knows who the ringleaders of the Union are."
When he asked Sims, "What do you mean?" Sims said,
"The Company knows that they are the senior people on the
third-shift." The senior employees on the third shift were
David Chester, Don McHargue , and Donald Short.
Respondent 's general manager, Augustus Rosetti, ac-
knowledged that he saw a copy of the Union 's 15 Octo-
ber letter about 16 October , and that he notified Re-
spondent's comptroller, Gil Senger, about the contents of
the letter by telephone . Senger informed Rosetti he was
aware of the letter and acknowledged that he first
learned of the Union 's activity at Wilco in a telephone
call from Comptroller Gil Senger , while he was in New
York City on 15 October, advising that Senger had re-
ceived a letter from the Union notifying Respondent of
its efforts to organize Wilco Business Forms.
On 24 October Union Organizing Coordinator Palmer
filed a petition for an election with the Board and hand
delivered a copy of the petition to Respondent at 3:22
p.m. on the same date . Palmer also gave an unstamped
filing date copy of the petition to Don Short to post on
the employees ' bulletin board that evening, which Short
posted prior to the third shift, at 11:30 p.m.
The undisputed testimony of record further shows that
between 16 and 24 October Supervisor Sims engaged in
fairly frequent discussions with employees about the
Union . About a week before 24 October, David Chester
testified Sims told him the Company knew who the
union ringleaders were ; that Sims knew them to be Don
Short and Donald McHargue because they told him they
were the leaders . However, Short and McHargue denied
they told Sims about their involvement in the organizing
effort . Sims also testified on cross-examination that he
did not see Don Short post the union notice on the bulle-
tin board, but instead said Short told him he posted the
notice. 2
2 Among Sims' inconsistent statements, I credit Chester's testimony
that Sims told Chester the Company knew who the ringleaders were be-
cause Short and McHargue told him they were organizing leaders. I dis-
credit Sims' change in testimony that he did not see Short post the notice
on the bulletin board , but was told by Short that he posted the notice. I
discredit Sims' testimony in these respects because whenever be changed
his testimony it was usually in favor of management and exacted on
cross-examination rather than direct examination Additionally, I noted
Sims on numerous occasions looking in the direction of counsel for Re-
spondent, where Manager Rosetti was sitting , before he answered ques-
tions propounded to him by counsel for the General Counsel or counsel
for the Charging Party. I was also persuaded by his demeanor as well as
by his strange change in testimony on uncomplicated details that he was
not testifying truthfully , and that his testimony was bias in favor of the
Company for which he is still employed.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Additional evidence of Respondent's knowledge of the
organizing activities of its employees was received by
Respondent at 6:30 a.m. on 25 October , through ac-
knowledged Supervisor Ernest Sims . Sims testified with-
out dispute that he observed employee Don Short post-
ing a copy of the election petition on the employees' bul-
letin board at 12 midnight on 24 October . When Plant
Manager Rosetti reported to work at 6:30 a .m., 25 Octo-
ber, Sims said he informed Rosetti about the petition,
went to the bulletin board , took it down , showed and
discussed it with Rosetti, and reposted it on the bulletin
board . Sims said Rosetti called a meeting 15 minutes
later with employees Alan Klick, Jackie Woodmansee,
and Christopher Barden, individually, and advised them
that they were laid off.
At the trial herein Sims testified on cross-examination
that Manager Rosetti called in Klick , Woodmansee, and
Barden before Sims informed Rosetti about the election
petition . However, in his affidavit given to the Board
agent on 4 December 1984, Sims said he showed Rosetti
the election petition before Rosetti called and laid off
Klick, Woodmansee, and Barden.3
Based on the foregoing uncontroverted and credited
evidence under sections B and C, supra, I conclude and
find that between 1 and 25 October 1984 Respondent's
employees were engaged in union organizing activity;
that on 16 and 20 October Respondent received and ac-
quired knowledge of not only the employees' organizing
activities, but also the names of employees serving on the
in-plant organizing committee , as well as knowledge of
the organizational involvement of employees Don Short,
David Chester, and Don McHargue ; and that on 24 Oc-
tober 1984 Respondent received documentary and verbal
knowledge that a petition for a union election had been
filed with the Board.
Although Supervisor Sims denied he told employee
Don Short "The Company knows who the Union ring-
leaders are" "The people on the third shift," he admitted
he uttered those statements to employee David Chester.
Because Sims admits he made the statements to Chester,
and the credited evidence of record shows Sims had the
proclivity to talk freely with employees about their orga-
nizing effort, I credit Short's testimony that Sims also
made the statements to Short.
I further find, on the foregoing evidence , that Sims'
statements to Short and Chester created the impression
that the organizing activities of the employees were
under surveillance by Respondent. As such , the state-
ments had an interfering, restraining , and coercive effect
on the exercise of employees ' Section 7 rights.
8 I credit Sims' testimony on direct examination that he showed and
discussed the union petition with Manager Rosetti before the latter called
and laid off Khck, Woodmansee, and Barden because his testimonial ac-
count is consistent with his earlier account in his sworn affidavit. More-
over, I was persuaded by Sims' demeanor on the stand that his first ac-
count was truthful, that he showed and discussed the election petition
with Rosetti before the latter called and laid off the employees. I also
received the distinct impression from his demeanor and the inconsisten-
cies in his testimony that Sims was trying to favor the Employer with
subsequent changes in his earlier testimony.
D. The Supervisory Status of Jamie Warren
The complaint alleges that Jamie Warren is a supervi-
sor within the meaning of the Act and, as such, on sever-
al occasions engaged in conduct violative of Section
8(a)(1) of the Act. Because Respondent denies Warren is
a supervisor as alleged, the evidence of Warren 's alleged
status must first be evaluated before evidence of alleged
unlawful conduct by him can be evaluated.
With respect to Warren 's supervisory status, Section
2(11) of the Act defines a supervisor as:
... any individual having authority, in the interest
of the employer , to hire, transfer, suspend, lay off,
recall, promote, discharge , assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively 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.
Possession or regular exercise of any one or combina-
tion of the above-stated powers of authority is sufficient
to confer supervisory status on an individual. NLRB v.
Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir.
1948), cert. denied 335 U.S. 908 (1949).
In the instant case, the uncontroverted evidence estab-
lished that Jamie Warren, who did not appear or testify
in this proceeding , was in Respondent 's employ at all
times material herein as a receiving and inventory clerk.
Warren reported to Pressroom Foreman Ed Emmitt and
Plant Supervisor Ray Sill . His primary duties were to re-
ceive merchandise and maintain a record of inventory of
supplies in the pressroom . One-third of his time was
spent away from the plant making deliveries, running er-
rands, and picking up company supplies . When in the
plant, he spent some time making rubber plates in a small
room, contended by the Charging Party to be his office.
On the day of the layoffs (25 October) 13 employees, in-
cluding Frank Stockholm and Leon Brockway, whom
Warren directs , were being paid less than Warren. At the
time of the trial herein, Warren was receiving $5 an
hour.
Frank Stockholm was hired by Respondent (Ray Sill)
on 6 April 1984 as a stock handler (stockboy) to take
rolls of typesetter paper from the stockroom to the indi-
vidual pressmen in the pressroom , in accordance with in-
structions from Pressroom Foreman Ed Emmett. Stock-
holm was to keep the individual pressmen supplied with
paper as needed , on their request; and to return unused
paper to the stockroom, weigh it to determine how
much was used, and store the unused paper in the proper
place.
Leon Brockway was employed by Respondent (Ray
Sill) on 23 March 1984 as a bailer to collect scrap paper
anywhere in the plant and to bail , stack, and prepare
such paper for pickup by the scrap paper recycler.
As a stock handler, Stockholm testified that about 2
months after he was hired Plant Foreman Ray Sill told
Stockholm and Brockway that Jamie Warren was their
supervisor because Sill was going to another job, Corre-
WILCO BUSINESS FORMS
spondingly , Brockway testified that around the same
time he had a problem with Jamie Warren and was
going to speak with Rosetti about it, when Plant Manag-
er Sill told him to speak with Warren first, because oth-
erwise he had to talk with Emmett , Ray Sill, and then
Rosetti because Jamie Warren was his supervisor.
Stockholm further testified that 4 months later Press-
room Foreman Ed Emmett came to him and asked how
he felt about Jamie Warren being a supervisor. He re-
plied he did not feel Warren should be a supervisor and
that Sill agreed with him.
Brockway further testified he believed Warren was his
supervisor because Warren assigned him work and in-
spected his work. If he was caught up with his work,
Warren would ask him to assist Stockholm to unload a
truck or do other work, but he never asked Stockholm
to assist Brockway. Warren signs his timecard for over-
time . On one occasion Warren told him if the second-
shift bailer did not pick up his things, Warren would fire
him. On the day of the layoffs (25 October), Brockway
said Warren had earlier told him and Stockholm that
there would be more layoffs. Later that morning,
Warren came to them and said what he had previously
told them about layoffs had gotten to personnel, and if
he learned which one of them told someone else he
would take them outside and kick their "Royal Ameri-
can ass" ; and that if he lost his job as a result of their
union activities or telling someone what he told them
about layoffs , he would take them outside.
Brockway also testified that he had seen Warren in
one meeting with supervisors , but he did not know what
kind of meeting it was ; and that Warren has told him and
Stockholm that he had to go to the supervisors' meeting
at Wilco Press to met with Parziale once a week, and he
and Stockholm would perform Warren' s work during his
absence.
Stock handler Frank Stockholm testified that he also
knew Jamie Warren as his supervisor for the additional
reasons: (1) Whenever he called in sick, came in late, or
wanted to leave early, he would speak with Jamie
Warren and Warren would say, "No problem, I will take
care of it"; (2) that Warren assigns him work (getting
papers for the pressmen and loading and unloading the
truck, (3) that Warren signed his timecard whenever he
worked through his lunch period; and (4) that there is a
little office in the stockroom that Warren informed him
was Warren 's office. However, additional testimony by
Stockholm , Brockway, and other witnesses revealed that
the so-called office is a very small untidy room, contain-
ing the odor of rubber, and has dirty files, without furni-
ture or even chairs with an unfinished floor. It was a
work station without question, but does not fit the gener-
al and usual discription of what is commonly understood
to constitute an office.
Respondent's manager , Rosetti, testified that Warren
does not have the authority to hire or fire or to recom-
mend hiring or firing employees , and that he has never
exercised such authority. Nor does Warren have author-
ity to discipline, recommend discipline , transfer, suspend,
layoff, recall, promote, or evaluate employees , or adjust
their grievances . The record evidence does not substanti-
ate that Warren either possessed or exercised any of the
1341
several indicia of supervisory authority enumerated
above by Respondent.
Rosetti acknowledged that Warren does have author-
ity to direct "somebody to move a roll of paper out, or
something . But these are exceptions ." He said Warren
does not attend weekly supervisors' meetings and Super-
visor Sims corroborated Rosetti's testimony that Warren
does not attend supervisors' meetings.
Conclusion
With respect to the supervisory status of Jamie
Warren , the credited evidence of record substantiates
that both Brockway and Stockholm were told by Plant
Foreman Ray Sill, who hired them , that Jamie Warren
was their supervisor . Pressroom Supervisor Ed Emmett
initiated and engaged in conversations with Stockholm
about Stockholm 's receptivity to the supervisory capac-
ity of Jamie Warren . Neither Foreman Sill, Supervisor
Emmett, nor Jamie Warren testified in this proceeding,
and no explanation was offered for their nonappearance.
Consequently , Brockway's and Stockholm 's testimonies
are not denied, and are therefore credited . Moreover, the
undisputed evidence shows that Warren told Stockholm
and Brockway on several occasions that he was their su-
pervisor. Warren manifested a daily authoritative attitude
towards Stockholm and Brockway as if he were in fact
their supervisor, frequently threatening to fire them if
they did not comply with his directives.
Both Brockway and Stockholm acknowledged Warren
generally assigned them work, but they also acknowl-
edged Plant Foreman Sill and Supervisor Emmett some-
times directed them to perform specific tasks . Their cred-
ited testimony shows that whenever they were going to
be absent or report for work late they contacted Warren,
who told them in effect, "no problem , I'll take care of
it." Although Respondent argues that Stockholm and
Brockway never requested leave or permission to report
to work late , but that they simply told Warren what they
were going to do, I do not technically construe the form
of how they notified Warren of their plans as not consti-
tuting a request. It is clear from their statements to
Warren, and the latter's approving response to them, that
all parties (Warren, Stockholm , or Brockway) under-
stood that Stockholm and Brockway were requesting
and Warren was approving their plans , whether it was
leave, to report late , or to leave work early. If Warren
did not have the authority to approve their requests or
contemplated actions, as Respondent argues, the record
evidence fails to show that he ever told them he could
not grant that permission or that he had to check with
other managerial authority for approval . Nor does the
evidence show that any of Warren's responses to the re-
quests or statements of action contemplated by Brock-
way and Stockholm were ever conditionally given or
denied . The record also fails to show that either Brock-
way or Stockholm were ever questioned by other super-
visors about leave or permission to report late, or to
leave early, for which Brockway and Stockholm had ob-
tained approval by Warren.
The undenied and credited testimony of Brockway
and Stockholm also established that Warren signed their
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timecards for overtime work or work performed during
their lunch period . The timecards of Stockholm and
Brockway (G.C. Exhs. 13(a), (b), and (c) and 14(a), (b),
and (c)) support their testimony that Warren initially ap-
proved or at least verified how their time was spent by
signing their timecards , even though their timecards
might have been further signed or officially approved by
Manager Sill or Supervisor Emmett upon Warren's ini-
tial approval on verification . It is particularly noted that
Respondent did not deny that Warren had authority to
sign the timecards , but it merely contends the timecards
had to be signed and were ultimately signed by Manager
Sill or Supervisor Emmett. However, not all the time-
cards were ultimately signed by another person from
management . Warren's signature was the only signature
on some timecards, and I find that he had authority to
approve and sign the timecards of Stockholm and Brock-
way, as they testified herein.
In further support of the position that Jamie Warren is
a supervisor, a memo dated 7 September 1984 (G.C.
Exh. 15) to plant employees was submitted in evidence.
The memo, signed by "Jamie" Warren , stated:
We have been finding a growing amount of gar-
bage in our scrap cages . Things like , McDonald's
bags, cigarette packs, paper towels, candy packs,
carbon paper, etc. Things like this will lower our
price on recycleable scrap. Please talk to the press-
man on your shift and make them use the garbage
can for their garbage and paper baskets for scrap
paper only.
"ANYONE VIOLATING THIS ORDER WILL BE WRIT-
TEN UP BY THEIR FOREMAN"
THANKS
Manager Rosetti testified that he asked Warren to
write the above memo (G.C. Exh. 15) to all pressroom
supervisors to correct the problem, and Rosetti personal-
ly directed Warren to add the last line of the memo in
bold type . However, Rosetti did not testify whether he
told Warren to sign the memo, but the memo is never-
theless signed, "Jamie" Warren . Rosetti did not sign the
memo and I find that the memo was prepared and posted
by Warren, and that Warren had the authority to pre-
pare and issue such a memo applicable , at least, to Stock-
holm and Brockway.
Although Respondent denies Warren ever attended su-
pervisors' meetings, Warren nevertheless told Stockholm
and Brockway that he attended weekly supervisors'
meetings at the Wilcox plant. Because Warren would
leave the Wilco plant, Brockway and Stockholm had no
way of knowing that Warren did not go to supervisors'
meetings as he had stated . At least, from the credited
evidence of record, it was just as reasonable for them to
rely on Warren 's statements that he was going to super-
visors' meetings, as it was for them to rely on the fact
that Manager Sill, Supervisor Emmett, and Jamie
Warren had told them Warren was their supervisor.
Moreover, on the morning of the layoffs , 25 October,
Warren told Stockholm and Brockway there were going
to be more layoffs . As in fact there was when Diane
McCray was laid off subsequent to the earlier layoffs of
Alan Klick, Jackie Woodmansee, and Christopher
Barden . Such prior special knowledge of layoffs to
which Warren was privy infers that he enjoyed an inti-
mate relationship with and was a part of management.
When the latter privileged knowledge of layoffs by
Warren is considered in conjunction with all the above-
discussed actual and ostensible indicia of supervisory
status of Warren, the conclusion is inevitable that
Warren was considerably more than a leadman, as Re-
spondent contends he was, but that he was in fact a su-
pervisor within the meaning of the Act. ITT Corp., 249
NLRB 441, 442 (1980); NLRB v. Porta Systems Corp.,
625 F.2d 399 (2d Cir. 1980).
Although Warren's function does not require the exer-
cise of substantial independent judgment , but only to
make routine assignments to Brockway about paper
supply and such assignments to Stockholm about scrap
paper bail and loading and unloading the truck, he is
nevertheless the person required to make interim assign-
ments in keeping Brockway and Stockholm busy and,
more importantly, to see that such assignments are timely
carried out. In this regard , Warren exercised a degree of
independent judgment in assigning work to Stockholm
and Brockway, directing one of them to assist the other
when necessary, signing their timecards whenever they
worked overtime, and approving their requests or state-
ments that they were taking leave or reporting to work
late. Warren accepted and approved such requests or
stated actions by Brockway and Stockholm without ever
consulting with higher authority, or obtaining consent
from higher authority before doing so. Because the evi-
dence does not demonstrate that Stockholm or Brock-
way were ever told that Warren was required to obtain
permission from managerial authority to approve such
request or stated actions, Warren had apparent authority
to approve leave and overtime for Stockholm and
Brockway. Litton Educational Publishing, 214 NLRB 413
(1974).
Thus, Warren possessed and exercised not one but sev-
eral indicia of supervisory authority, as found herein.
Additional evidence that Warren is a supervisor is the
undisputed and credited testimony of Brockway that on
24 December 1984 Warren told him Respondent had de-
moted him (Warren) from supervisor to employee until
after the election . I credit the testimony of Brockway
not only because his testimony was uncontroverted and I
was persuaded by his demeanor that he was telling the
truth, but also because of the consistency of the credited
testimony of Respondent 's employees that Supervisor
Ernie Sims and Jamie Warren manifested a propensity to
engage in frequent and intimate discussions with employ-
ees concerning matters of management.
Finally, after viewing all the evidence as a whole, per-
haps the most pronounced probative indicia of Warren's
supervisory status is the fact that Warren and other man-
agement personnel (Sill and Emmett) told Brockway and
Stockholm that Warren was their supervisor, and that
Brockway and Stockholm, upon reasonable and justifi-
able evidence, believed and considered Warren to be
their supervisor . Aurora & Denver Trash Disposal, 218
WILCO BUSINESS FORMS
NLRB 1 (1975); R. L. White Co., 262 NLRB 575, 583
(1982); Restaurant Horikawa, 260 NLRB 197, 203 (1982).
In support of its position that Warren is not a supervi-
sor and, at most, is a leadman, Respondent cites among
other cases, Tucson Gas & Electric Co., 241 NLRB 181
(1979). However, my examination of those cited cases re-
veals that, although the alleged supervisors there exer-
cised authority that was routine in nature, not requiring
the use of independent judgment, or lacked evidence of
any disciplinary action actually imposed by them, con-
spicuously absent was any evidence that any of the em-
ployees therein were told by management or by the al-
leged supervisor that the latter was their supervisor. Nor
did the evidence in any of these cited cases show that
the alleged supervisor was an ostensible supervisor, or
that he or she manifested a supervisory attitude, all of
which led the employees there to reasonably and justifi-
ably believe that such alleged supervisor was in fact their
supervisor. Under these circumstances, I find that the
cases cited by Respondent are factually distinguishable
from, and are therefore not applicable to, the facts as
found in the instant case.
Antiunion Statements and Threats by Supervisors
Warren and Emmett
Frank Stockholm testified that on 25 October, the day
of the layoffs, Warren told him in the presence of Brock-
way that "there was no sense in getting the Union in be-
cause they were going to close the doors anyway, " and that
"f he [Warren] lost his job over the Union deal, he would
take any physical harm possible towards them to get even
with them." Brockway corroborated the latter part of
Warren's testimony about him losing his job as a result
of the employees' organizing activity. Stockholm also
testified that in October 1984 Supervisor Emmett ap-
proached him in the stockroom and told him he was very
disappointed in him , because of his union activity. Stock-
holm said he told Emmett he did not want to talk about
it and Emmett asked him what the Company would not
do for him that the Union could do, and he said he did
not want to talk about it and walked away. Emmett later
came to him and said the Company would not negotiate
with the Union, no matter what, and that Emmett did not
like Stockholm anymore.4
Although Stockholm testified Manager Rosetti told
him the Company would not bargain with the Union and
that for 2 to 6 months it would be "hell" for Respondent
to pay the employees, I do not credit his account in this
regard . Rather, I credit Manager Rosetti's account that
he told Stockholm that it would be tough for manage-
ment and the employees following the union election be-
cause there is the inconvenience of the parties having to
4 I credit Stockholm's undisputed testimony because it is consistent
with managements precipitous layoff actions taken on 25 October, the
day after Respondent received the petition for a union election. Neither
Warren nor Emmett appeared and testified in this proceeding, and I was
also persuaded by the demeanor of Stockholm that he was testifying
truthfully. Additionally, when the antiunion and threatening statements
by Supervisors Warren and Emmett are considered to have been made to
Stockholm and Brockway, without any assurances to them that they
would not be subjected to company reprisal, I find such statements and
threats had an interfering, restraining, and coercive effect upon the exer-
cise of employees' Sec. 7 rights, in violation of Sec. 8(aXl) of the Act
1343
bargain. I credit Rosetti's account because I was persuad-
ed that Rosetti was talking after he and other supervisors
had already been briefed on what they could and could
not say to employees by Respondent's legal counsel on
26 October. Rosetti's account, as stated by him, does not
constitute a threat or interrogation, and is therefore not
unlawful. I was also persuaded that Rosetti's version was
truthful because it is less likely that Rosetti would have
uttered unlawful threatening remarks as Stockholm at-
tributes to him, after having been legally advised other-
wise by counsel for Respondent. In all probability,
Stockholm was not knowledgeable on the legal distinc-
tion between his and Rosetti's account, and he interpret-
ed Rosetti's statements as being the same as his, which I
find they were not.
E. The Layoffs of 25 October
With respect to the layoffs on 25 October, Alan Klick
testified that while he was walking to Rosetti's office,
Sims told him he was laid off and Mr. Rosetti would like
to speak with him, but not to worry because he and
others would be getting their jobs back as soon as the
union business is taken care of. However, Sims acknowl-
edged that he told Klick Respondent was 100-percent
satisfied with his work, but denied he told Klick he
would get his job back as soon as the Company got rid
of its union organizers . Rosetti told Klick he was laid off
for economic reasons.
Jacqueline Woodmansee testified that Mr. Rosetti told
her he was sorry he had to meet her for the first time
under these circumstances, but he had to lay her off be-
cause of economic reasons, and he would give her a
good recommendation for another job. Later, in the pres-
ence of employee Dave Chester and possibly Supervisor
DeLaurentis, Woodmansee said she asked Ernie Sims
why was she being laid off and Sims said she had no
right being on the committee and having anything to do
with the Union because she was still in her probationary
period. Woodmansee also testified that while driving
Ernie Sims home the day before the layoff she told Sims
the plant needed a union and Sims said it did not matter
one way or another with him what happened, he knew
that there was going to be a lot of trouble before this
whole thing is over.
Chris Barden testified that Manager Rosetti told him
he was sorry he had to lay him off due to economic rea-
sons, and he added , "I guess you probably can see
through that."
With respect to the layoff of Jackie Woodmansee, col-
lator operator David Chester testified that after Wood-
mansee was laid off on 25 October she came out of Ro-
setti's office crying, and Supervisors Butch DeLaurentis
and Ernie Sims came to the collator. While there, Ches-
ter asked Sims why Woodmansee was laid off, if it was
because she had signed up for the Union; that Sims got
upset and said, "She had no business signing the card for
the Union anyway, because she is a probationary employ-
ee."5
5 I credit the testimonial accounts of Klick, Woodmansee , Barden, and
Chester, resepctively, to the effect that on 25 October Supervisor Sims
Continued
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Layoff of Diane McCray
Diane McCray was employed by Respondent on
August 12, 1976, as a typesetter in the art department.
She worked with nine other employees under the super-
vision of Fred Richardson . McCray was second in se-
niority only to Judy Miller. The art department consisted
of the following job functions : (1) typesetting, (2) paste-
up, (3) camera , (4) proofreading , (5) stripping, and (6)
platemaking.
McCray attended the first organizing meeting for the
Union and signed up to serve on the in-plant organizing
committee . Her name appeared on the union letters to
Respondent (G.C. Exhs. 2 and 3), advising Respondent
of the Union's organizing effort. McCray attended other
organizing meetings, and in the meeting 17 October she
signed a union authorization card, accepted other cards,
union buttons, and "Vote Yes" pins, which she took to
the plant and distributed to other committee members in
the art room on 18 October. She also solicited employee
signatures during her breaktime in the lunchroom and
gave the signed cards to Palmer after lunch on 24 Octo-
ber.
On several occasions since early summer 1974,
McCray had suggested to Manager Rosetti that she learn
the pasteup job and that the pasteup employee should
learn typesetting because the two job performers worked
closely together. However, Rosetti never took any
action on the suggestion . McCray nevertheless trained
Judy Miller within 5 days to typeset for the small jobs.
On 25 October, Supervisor Richardson came to
McCray's office and informed her that Rosetti wanted to
see her. Since Jackie Woodmansee had previously told
her she had been laid off, McCray asked Richardson if
she could have a witness and Richardson said, "No."
When she arrived at the office , Manager Rosetti, in the
presence of Ray Sill and Supervisor Richardson , told her
he hated to be the bearer of bad news, but due to eco-
nomic reasons the Company had decided to eliminate the
position of typesetting . McCray repeatedly asked Rosetti
did this mean he was shutting down the typesetting de-
partment and selling the equipment . Rosetti repeatedly
said, "I don't know that its due to economic reasons. We
have to lay you off permanently ." Neither Foreman Sill
nor Supervisor Richardson said anything. Finally,
McCray said, "I'd better not catch anybody in there
told Khck not to worry about being laid off because the laid-off employ-
ees would be getting their jobs back as soon as the union business is taken
care of, that Sims told Woodmansee she had no right being on the orga-
nizing committee and having anything to do with the Union because she
was still in her probationary period; and that Manager Rosetti told
Barden he was sorry to lay him off, but "I guess you probably can see
through that " I credit the accounts of the aforenamed employees and
discredit the denials or different versions of Sims and Rosetti because I
was persuaded that the employee witnesses were testifying truthfully and
Supervisor Sims and Manager Rosetti were not. Moreover , I was also
persuaded by Sims' frequent and intimate conversations with employees
about the Union, and the consistent and corroborated accounts of Klick,
Barden, Woodmansee , and other employee-witnesses that Sims actually
uttered the statements attributed to him . Manager Rosette's "I guess you
can see through that" statement to Barden is consistent with all the cred-
ited evidence of antiumon statements uttered or antiunion actions taken
by management personnel (Sims, Rosetti, Warren , and Emmett), on or
before 25 October, and subsequent thereto , as the evidence further dem-
onstrates, infra.
typesetting," and Rosetti said, "No, you won't , its been
farmed out as was previously done on occasion when
work was backed up ." McCray reported her termination
to the Union and received her termination slip with her
check on Friday, 26 October.
In response to her sudden termination , McCray further
testified that she had no reason to believe that the type-
setting department would be eliminated , but rather,
every reason to believe it was going to remain in oper-
ation because Respondent had just built a new building
that included new typesetting equipment and assumed
occupancy of the building in February 1984. Shortly
thereafter, McCray said she accompanied Rosetti and Su-
pervisor Richardson to a typesetting show at the Holiday
Inn. They looked at a typesetting model called the 6400
but Rosetti and Richardson said it took too long to pro-
gram the machine , and there were other factors which
would not serve Respondent 's needs and demands. Ro-
setti said they would look at a smaller model that had a
memory bank on it.
In June 1984 McCray said she asked Rosetti about the
status of the new typesetting machine and he said it
would have to wait because the Company had just or-
dered a new platemaker . The platemaker arrived during
the summer.
McCray further testified that during the Christmas
party at the Gold Garter Restaurant on Friday, 21 De-
cember 1984, she approached Manager Rosetti and the
following conversation ensued-
I said, "Augie, can I talk to you for a minute?"
And he said, "Sure." And he pulled me aside. And
I said to him , I said, "Augie, I just wanted to let
you know that I don't blame you or hold any
grudges against you for firing me." And he goes,
"Diane, I didn't want to fire you ." And he goes, "I
didn't want to fire the rest of those people." He
goes, "If I hadn 't, I would have been out the door
too." He goes, "I didn't know anything about that
until that night." And he goes, "I was so upset
about it, and if you don't believe me, ask my wife."
And he knew that he was just a puppet.
And then I went on , and I said , "Well, Augie, I
wanted to let you know, that . . . ." I said, "why
did you ask those people?" "Or why did you tell
those people that you would offer me a job at
Cayuga Press?" I go, "Augie , you never mentioned
those words to me." And I go , anybody . . . . I
didn't .... and I go, "Well, you didn't." And then
I said, I had said to him, I said , "Well, you know, I
only knew about that union two days before the
first meeting." And he goes, "Well, but, Diane, you
went to all those meetings, you and Clare." And then
he stopped short. And then he said ... I said,
"Well, yes . I went to all those meetings ." I said
that, "I had a right to find out both sides of the
story. I have a right to know what the union has to
say, and I have a right to know what the company
says." And I said to him, "When this case goes to
court" and he goes, "Diane , you aren't going to win
the case in court. The company won't let you."
And then I got a little irritated and I said , "Well,
WILCO BUSINESS FORMS
I'll tell you, if it hadn't been for the support and the
help of the union, I wouldn't be making it now. The
company threw me out in the street." And then he
said to me, he goes, "Well, if you can just hold on
for a little bit longer, if you could just hold on
.... And that was the end of the conversation. I
didn't want to talk any more. 6
Analysis and Conclusions
The evidence of record is essentially free of conflict
that between I and 25 October 1984 Respondent's em-
ployees were engaged in a union organizing effort. Re-
spondent 's vice president, Tom Parziale, and other mana-
gerial personnel acknowledged that they learned about
the employees organizing activities on 16 and 20 October
1984; that management received the union election peti-
tion on 24 October 1984; and that Respondent laid off
employees Alan Klick, Jacqueline Woodmansee, Christo-
pher Barden , and Diane McCray on 25 October 1984.
The General Counsel contends Respondent laid off the
aforenamed employees because they were engaged in
protected organizing activities in violation of Section
8(a)(l) and (3) of the Act, and Respondent maintains that
it laid off the employees for economic considerations, as
it had advised the laid-off employees.
The question presented for determination is therefore
one of mixed motives for the layoffs.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board held that the causation tests in all cases alleging
violations of Section 8(a)(3) or (1) of the Act, turning on
employer motivation, the following shall be established:
(1) The General Counsel shall make a prima facie
showing sufficient to support the inference that protec-
tive conduct was a "motivating factor" in the Employ-
er's discharge decision.
(2) Once the above has been established, the burden
shifts to the Employer to demonstrate that the same
s As I observed the demeanor of Diane McCray as she testified she
manifested every behavioral indication that she was still very much hurt
over her unexpected layoff, which , from her point of view, was motivat-
ed by her organizing activity . Crying during a portion of her testimony,
she appeared to be telling the truth about the entire sequence of events
leading up to and subsequent to her layoff. I was persuaded by her de-
meanor and the substance of her testimony , some of which is corroborat-
ed by employee Judy Miller, that Manager Rosetta told her she would
always have a job with the Company , and that he did in fact make the
statements attributed to him during her conversation with him at the De-
cember party . I was further persuaded by the demeanor of Manager Ro-
setti and the consistency of all the credited testimony of employee wit-
nesses, that Rosetti and Supervisor Sims maintained an informal and
rather friendly relationship with the employees in this small company,
and that they were comfortable in doing so Under such circumstances, I
believe Rosetti told McCray he did not want to lay off McCray and
other employees on 25 October , as she so testified . I was also persuaded
that Rosette made the other statement about McCray "attending union
meetings" and that he suddenly stopped talking , in all probability, be-
cause he recalled the instructions given to supervisors by Respondent's
legal counsel on 26 October . At that meeting, supervisors were told what
they could and could not talk about with employees Moreover, it may
be reasonably inferred from Rosetti 's statement to McCray that he felt
some guilt for her layoff and he was trying to disassociate himself from
responsibility for it . During this discourse, he intimated she would be re-
called if she would be patient. However, McCray has not been recalled. I
also credit McCray's rebuttal testimony, infra, for the same reasons.
1345
action would have taken place even in the absence of the
protective conduct.
The General Counsel has established that between 16
and 25 October Respondent 's supervisor , Ernest Sims,
told employee Alan Klick he would get his job back as
soon as the union business was taken care of , as soon as
Respondent gets rid of the union instigators. I find that
such statements by Supervisor Sims had a restraining and
coercive effect on the exercise of employees' rights pro-
tected by Section 7, in violation of Section 8(a)(1) of the
Act. K & E Bus Lines, 255 NLRB 1022 (1981); Sumco
Mfg. Corp., 251 NLRB 427, 434 (1980). Even if Sims'
statements to Klick were made in the spirit of friendly
encouragement , they nonetheless remained unlawful
under the Act. Restaurant Horikawa, 260 NLRB 197, 203
(1982).
Supervisor Sims' statement to employee Don Short
that Respondent knew who "the ringleaders are," "The
senior people on the third shift" created the impression
that the employees' organizing activities were under sur-
veillance by Respondent. As such, I find that Sims' state-
ments constituted restraint on and coercion against em-
ployees in the exercise of their Section 7 rights, in viola-
tion of Section 8(a)(1) of the Act. Sierra Hospital Founda-
tion , 274 NLRB 427 ( 1985).
Pressroom Foreman Ed Emmett's 25 October state-
ment to employee Stockholm that Respondent "would
never bargain with the Union," is a statement which
tends to discourage employees in the exercise of their
Section 7 rights, because it causes the employees to feel
that organizing a union would be futile . Emmetts' state-
ment therefore coerces and restrains employees in the ex-
ercise of their Section 7 rights, in violation of Section
8(a)(1) of the Act. Palby Lingerie, Inc., 252 NLRB 176,
180 (1980); Multi-National Food Service, 238 NLRB 1031
(1979).
Supervisor Warren 's statements to employees Stock-
holm and Brockway that there was no sense in getting
the Union in because Respondent was going to close the
doors anyway and that if Warren lost his job because of
the employees' efforts to organize the Union, he would
get even with them, were obviously threatening state-
ments designed to discourage the employees from orga-
nizing a union. Such statements had a restraining and co-
ercive effect on the exercise of employees' Section 7
rights, in violation of Section 8(a)(1) of the Act.
Supervisor Ernest Sims acknowledged that between 16
and 25 October he made the following antiunion re-
marks:
He told David Chester everytime a union tries to or-
ganize a company, trouble ensues; but that he told em-
ployee Alan Klick when unions get into a company trou-
ble usually boils; and that he told Jackie Woodmansee
probationary employees were not eligible to vote in a
union election and had no right being involved in a
union campaign. Such remarks were nevertheless antiun-
ion, even though Sims testified at the trial that he was
expressing the views he had overheard Don Short ex-
plaining to other employees and from what he had read
in union literature given to him by Don Short.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All the above-described statements by Respondent's
supervisors clearly demonstrate that an antiunion climate
prevailed in the plant only 9 days subsequent to Re-
spondent's receipt of official notice that its employees
were engaged in union organizing activity . On the ninth
day (24 October), Respondent received notice that a pe-
tition for a union election had been filed . Notedly, on
that very same afternoon (24 October), Vice President
Joseph Parziale , who had been informed of the employ-
ees' organizing effort , instructed Manager Rosetti to lay
off the probationary employees on the third shift. On the
next morning (25 October), Rosetti called in employees
Alan Klick, Jacqueline Woodmansee, Christopher
Barden, and Diane McCray, individually , and without
any warning laid them off as directed.
Respondent had previously received official notice in
the Union's 16 October letter to Respondent that Wood-
mansee and McCray were members of the in -plant orga-
nizing committee . Knowledge of Alan Klick 's desire to
have a union in the plant was acquired by Respondent
through its supervisor, Ernest Sims, with whom Klick
had several conversations about the Union prior to his
layoff. In one of such conversations, Klick told Sims he
was for the Union because when Respondent hired him
Respondent told him his starting salary would be $4.50
to $5 an hour, when in fact he was started at $3.75 an
hour. Knowledge by Supervisor Sims constitutes knowl-
edge by Respondent.
Christopher Barden attended the four organizing meet-
ings held outside the plant prior to 21 October. The evi-
dence does not show that Respondent had actual knowl-
edge of Barden 's involvement or support for the organiz-
ing effort . However, when Rosetti called him into the
office on 25 October and laid him off, Rosetti looked at
Barden and said , "I guess you can see through that." In
view of the prior antiunion statements or unlawfu'• con-
duct of Respondent's supervisors (Sims, Emmett, and
Warren) and its sudden layoff of Barden, I find that it
may be reasonably inferred from such circumstances that
Rosetti's comment, "I guess you can see through that,"
meant Barden's layoff was a result of his and other em-
ployees' organizing activities.
I find it significantly noteworthy in this case that all
the antiunion conduct by Respondent occurred within 10
days after Respondent received official notice that its
employees were involved in organizing a union . Having
received official notice that a petition for an election was
filed on the ninth day (24 October), Respondent, on the
very next morning (25 October), laid off three of its pro-
bationary, and one of its permanent, employees , three of
whom Respondent had direct knowledge of their support
for the Union.
I therefore conclude on the foregoing evidence that
the General Counsel has made a prima facie showing suf-
ficient to support an inference that the protected union
organizing activities of the employees were a "motivat-
ing factor" in Respondent 's decision to lay off Alan
Klick, Jacqueline Woodmansee , Christopher Barden, and
Diane McCray . Consequently, pursuant to Wright Line,
supra, the burden shifts to Respondent to demonstrate
that the aforenamed employees would have been laid off
in the absence of any protected union organizing activity
by employees.
Respondent's Defense
In support of its affirmative defense that it laid off the
above-named employees on 25 October for economic
considerations, the credited testimony of record estab-
lished that Respondent 's vice president, Joseph Parziale,
was responsible for having improved the profitability of
Wilcox Press from $2 million in September 1978, to $9
million in September 1983, and to $12 million in Septem-
ber 1984. As a result of Parziale 's continuing success,
President Wilcox asked him to commence observing the
business operations of Respondent Wilco, in January
1984. Periodically, Wilcox and Parziale would review
the profit-and-loss statements of Respondent, and in June
1984 Wilcox put Parziale in charge of the business oper-
ations of Wilco. When he assumed the vice presidency of
Respondent at that time, Parziale testified that he imme-
diately imposed a freeze on spending and had engaged in
discussions of overstaffing with General Manager Rosetti
since June 1984. Because he felt Respondent had too
many employees for the volume of work, he said he di-
rected Rosetti to observe the operations in that regard.
Parziale also testified that he started investigating the
Sanden Press that Respondent bought in 1982 or 1983 at
a cost in excess of $500,000, the utility of which he has
always doubted was suited for Respondent's printing
needs . On 20 or 21 October, he decided to sell the
Sanden Press through an advertising broker at the end of
January or February 1985. The Sanden Press had not
been sold as of the time of the trial herein, and Respond-
ent has been using it although Parziale testified he re-
cently ordered Rosetti to decline accepting orders for
Sanden Press work.
Parziale further testified that according to company
preliminary financial reports, which he examined on 19
October 1984, the Company had sales of $3.8 million and
estimated profits of $50,000. Thereupon , he said, among
other things, he decided a few days before 25 October to
discontinue the typesetting department, freeze hiring, and
lay off all probationary employees . When confronted
with Respondent's 17 October 1984 computer printout of
the profit-and-loss statement (G.C. Exh. 5), which he
said he examined 19 October and based his business-
changes decision on, he found the statement showed
profits of $166,229.26 at that time. However, he said,
after later receiving invoices and discovering bad debts,
the profits were only $50,000. Based on his financial
review, Parziale said after deliberation and consultation
he issued his letter to the employees dated 25 October
1984, in which he announced the following actions, ef-
fective immediately:
1. We will sell the Sanden Press . Our work load
does not fit this equipment and its performance is
below expectation.
2. We will discontinue our direct local sales
force.
3. We will discontinue our typesetting depart-
ment and purchase type from outside suppliers.
WILCO BUSINESS FORMS
4. We will raise prices immediately. This should
improve profitability but could reduce volume.
5. We will freeze hiring in all areas . Anyone not
a permanent employee as of this date will be re-
leased.
On cross-examination by Respondent , Parziale said he
started writing his 25 October letter (G.C. Exh. 6) on 22
October and completed it on 23 October; had it typed on
Wednesday, 24 October; advised Rosetti of his decisions
in the letter at 4 p.m., 24 October; and had the letter xe-
roxed and copies of it stuffed into the paycheck enve-
lopes and distributed to the second- and third-shift em-
ployees on the next day (25 October), and distributed to
the first-shift employees on 26 October. On the afternoon
of 24 October, he said he directed Rosetti to lay off the
probationary employees and also Diane McCray because
the typesetting department was being eliminated.
Parziale testified that between 8 a.m. and 12 noon on
25 October he learned that the petition for an election
had been filed the previous day, 24 October. Rosetti
denied he called and informed Parziale that the petition
for an election had been received by Respondent on 24
October, but stated he informed Parziale of the petition
later on 25 October.
Manager Rosetti testified that Diane McCray was laid
off because her supervisor , Fred Richardson , told him
during the summer months that McCray only had 2 to 3
hours a day typesettng work ; that he investigated and
verified Richardson's report and reported the lack of
typesetting work to Parziale ; and that McCray was not
qualified (trained) to perform other jobs in the art de-
partment . McCray denied that she had only 2 to 3 hours
work per day, and said neither Supervisor Richardson
nor Manager Rosetti ever told her she ever had 2 to 3
hours of work, or not enough work. I credit McCray's
denial, not only because it is not disputed by Respond-
ent, but also because it appears strange that no one in
management ever talked to McCray about a lack of
work or tried to utilize her labor in some way to keep
her busy, if indeed management was concerned at all
about her being idle for hours. McCray also testified
without dispute that she has had more work this year
than she had during the same period last year, and her
testimony in this regard is supported by the fact that
camera operator Judy Miller performed considerable
typesetting work after McCray was laid off.
McCray also testified that there were times when she
had to wait for her work to come from the office and
the office caused frequent delays in sending her work,
which caused delays in the pasteup and proofreading de-
partments . At least it is clear from the credited testimony
of McCray and Miller that the volume of typesetting
work in October was not so small as to warrant the im-
minent layoff of McCray. In fact, the parties herein stip-
ulated that there were no layoffs of Respondent's bar-
gaining unit employees between January 1980 and 25 Oc-
tober 1984.
The undisputed evidence also established that in Sep-
tember 1984, on the recommendations of Diane McCray,
the Company ordered two typesetter disks through her
supervisor , Fred Richardson . The disks arrived in late
1347
September at a cost of $800 for two. The disks were to
be used in connection with the typesetter machine and
this evidence indicates Respondent did not have immedi-
ate plans to discontinue its typsetting work. McCray also
testified without dispute that during a summer discussion
with Rosetti about new equipment she asked Rosetti, in
effect, would her job always be there and Rosetti re-
plied, "You will always have a place in the Company."
McCray denied she refused to perform a "backer's"
job as Manager Rosetti so testified . Instead, she stated
that she informed Rosetti the "backer" was not readable
and if she performed the job it would have grossly de-
layed her other work, and Rosetti subcontracted the
backer's job.
Parziale acknowledged that Came Bain, who had been
hired only 10 days before, on 15 October, as well as two
local salespersons were laid off 25 October. He also ac-
knowledged that he had never compared Wilco's prices
with the average prices published by the Printing Indus-
trial Association in determining whether Wilco's prices
were too high or too low. After McCray was laid off, he
said 80 percent of typesetting work was subcontracted,
except for "marginal words," "corrections ," etc., which
were performed by camera operator Judy Miller. Par-
ziale's other recommendations to purchase typesetting
from Cayuga Press and to raise prices were implemented
at the end of October.
Even prior to Wright Line, supra, the Board has held
that when legitimate economic considerations are ad-
vanced as the sole motive for a layoff, advance warning
of the layoff is expected. Wranger Wranch, 232 NLRB
527, 534 (1977). In the instant case neither of the four
employees laid off by Respondent were given a warning
prior to their layoff.
The Board also has repeatedly held that the precipitate
manner in which an employee learns of a layoff, as well
as the fact that the layoff is effective immediately and
without notice, is evidence which supports an inference
of unlawful motivation. Production Stamping, 239 NLRB
1183, 1193 (1979); Howard Johnson Co., 209 NLRB 1122,
1131 (1974); Sweeny & Co. v. NLRB, 437 F.2d 1127, 1133
(5th Cir. 1971). In the instant case, the four laid-off em-
Ioyees learned of their layoff on the day that it occurred,
25 October, and neither of them had received prior
notice of layoff from Respondent.
More explicitly, the court stated in NLRB v. Rain-
Ware, Inc., 732 F.2d 1349, 1355 (7th Cir. 1984):
The timing of the layoffs and warehouse provides
the strongest support for connecting anti-union sen-
timent with the layoffs. The Company received the
union demand letter on September 9; the Company
laid off three employees (excluding Parrish) on Sep-
tember 10 and one on September 11. Timing alone
may suggest anti-union animus as a motivating
factor in an employer's action. See NLRB v. Indus-
trial Erectors, Inc., 712 F.2d 1131, 1137 (7th Cir.
1983); NLRB v. Gogin, 575 F.2d 596, 601-602 (7th
Cir. 1978).
Respondent made a diligent effort at the trial herein to
show that it also had prior knowledge of the organizing
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involvement of employee Don Short , as well as other
employees on the in-plant committee, who were not laid
off by Respondent . Respondent seems to be arguing that
because it did not lay off all employees of whom it had
knowledge of their organizing activities , such activities
were therefore not the motivating cause for the layoff of
the employees who were in fact laid off 25 October.
However a layoff motivated by the exercise of protected
employee conduct need not include every single employ-
ee of whom the employer had knowledge was engaged
in such protected conduct . As the court stated in Majes-
tic Molded Products v. NLRB, 330 F.2d 603, 606 (2d Cir.
1964):
... there would be no warrant for laying down a
rule of law forbidding a finding of violation without
proof of the employer 's awareness of the opinions
of the individual employees . A power display in the
form of a mass lay-off, where it is demonstrated that
a significant motive and a desired effect were to
"discourage membership in any labor organization,"
satisfies the requirements of § 8(aX3) to the letter
even if some white sheep suffer along with the
black.
Moreover, when a layoff en masse is implemented in
response to protected employee conduct, the General
Counsel is not obligated to establish antiunion motive
with respect to each individual employee laid off. NLRB
v. Rain- Ware, supra.
An objective evaluation of Respondent 's economic de-
fense in this case turns primarily on the precipitous char-
acter of its 25 October layoff of some employees, and the
questionable credibility of the testimony of Respondent's
vice president, Joseph Parziale, and its general manager,
Augustus Rosetti , with respect to the reasons for those
layoffs.
Evaluation of Respondent's Defense
Having found herein that Respondent unlawfully re-
strained and coerced its employees by threatening them
and engaging in other conduct to undermine the organiz-
ing efforts of its employees , the evidence established that
Respondent laid off all four employees 10 days after it
learned about the employees' organizational drive, and
on the day after it learned that a petition for a union
election had been filed . Respondent argues, however,
that the fact that the timing of its layoff on 25 October
and the filing of the petition for election (24 October)
occurred 1 day apart is merely coincidental.
In support of its position , Respondent presented evi-
dence that established Parziale, vice president of Re-
spondent since June 1984, imposed a spending freeze on
Respondent and suspended the employees' annual auto-
matic wage increase in August 1984. Parziale testified
that both actions were necessitated as a result of his ob-
servations and analysis of the business operations of Re-
spondent between January and late July 1984. After as-
suming the presidency of Respondent in June 1984, he
received an analysis of the profit-and-loss computer
printout for Respondent on 19 October; and that, based
on his review of that statement, he commenced prepar-
ing the letter announcing the operational changes enu-
merated therein, which he issued to all employees on 25
October. The only managerial person with whom Par-
ziale spoke about the operational changes of Respondent
prior to their issuance was General Manager Rosetti, at
4:30 p.m. on 24 October, the same date on which the
Company received the notice that a petition for an elec-
tion had been filed.
While I credit Parziale 's testimony that since he as-
sumed responsibility for the business operations of Re-
spondent in June 1984 he has been studying ways to
make the Company more profitable , I do not credit his
testimony that he made a definite decision to sell the
Sanden Press, discontinue the typesetting department,
purchase the service elsewhere, and lay off employees
before Respondent received notice of the election peti-
tion on 24 October. I discredit Parziale's account in these
respects for the following reasons:
1. Even if Parziale had decided to sell the Sanden
Press on 22 October, the evidence does not demonstrate
that there was any urgency for his decision or its imple-
mentation, because Respondent continued to use the
press which was not sold as of the date of the trial
herein . In fact, the evidence clearly shows that the issu-
ance of his decision and the summary layoff of the type-
setter were both precipitous in terms of the dispatch with
which the decision was announced and the typesetter
laid off; and premature in terms of Respondent 's readi-
ness to continue typesetting service. In other words, Re-
spondent laid off the typesetter before it completed all
typesetting work on hand, and before it had a satisfac-
tory subcontract for the purchase of typesetting work. It
continued to operate the press with the use of camera
operator Judy Miller until sometime in February 1985. 1
am therefore not persuaded that the swift and premature
decision and action by Parziale would have been taken in
the absence of his recent knowledge that the employees
were engaged in organizing activity, and a petition for
an election had been filed.
2. Because Respondent had just purchased the Sanden
Press in 1982 or 1983, had been exploring the purchase
of typesetting equipment with a memory box in early
spring 1984, had purchased a new platemaker in the
spring, and more recently had purchased two disks for
the press at a cost of $800 in September 1984, it may be
reasonably inferred from such actions that if Respondent
had any sincere contemplation about eliminating its type-
setting department at all it is clear it had not planned to
do so as precipitously and as early as 25 October.
3. The 25 October layoffs were effectuated following
10 days during which company officials expressed union
animus and engaged in unlawful 8(aXl) conduct, and on
the 10th day precipitously carried out on short notice
without any warning to the employees by General Man-
ager Rosetti, who was only directed by Parziale to exe-
cute the layoffs on the late afternoon of the previous
day, 24 October. Production Stamping, Howard Johnson
Co., and Sweeny & Co. v. NLRB, supra.
4. The record does not show that Parziale, who im-
pressed me as a highly intelligent and able business exec-
utive, exhausted reasonable efforts to ascertain compara-
WILCO BUSINESS FORMS
ble typesetting service at a lower cost prior to deciding
and actually laying off typesetter McCray, before he was
assured the Company had an equivalent substitute in
typesetting service. The evidence shows that the typeset-
ting service purchased from Cayuga Press was grossly
inadequate to satisfy Respondent's business demands. The
haste with which Cayuga Press was selected is additional
evidence of the precipitous nature of the decision to lay
off typesetter McCray and other employees, as well as a
demonstration that such action was not the result of a
well-planned schedule by Parziale to make the Company
more profitable. P. W. Supermarkets, 269 NLRB 839
(1984); Production Stamping, and Howard Johnson Co.,
supra.
5. Although Parziale testified he had discussed over-
staffing with Manager Rosetti during the summer or ear-
lier in 1984, the evidence fails to demonstrate that he se-
riously considered laying off employees prior to the 25
October layoffs. On the contrary, the evidence estab-
lishes that Respondent has not had any layoffs between
January 1980 and 25 October 1984; that it had not im-
posed a hiring freeze; but that, in fact, Respondent hired
employees all through the summer and hired employees
Andrew Consalvi on 4 September, Ralph Newhart 13
September, and finally Came Bain 15 October 1984, only
10 days before the layoffs. As counsel for the Charging
Party argues, the evidence does not show that any of the
laid-off employees were told at the time they were hired
that they were being hired as temporary summer help.
Such recent hiring is not convincingly explained by Re-
spondent, and I am persuaded by the evidence that Re-
spondent had no plans for a layoff prior to learning
about the organizing activities of its employees on 16 or
24 October 1984. NLRB v. Eastern Smelting Corp., 598
F.2d 666, 674 (1st Cir. 1979); Mountain Meats, 236
NLRB 1483 (1978).
6. Although Parziale testified he commenced preparing
his 25 October letter of drastic operational changes on 22
October, completed it on 23 October, did not discuss it
with any managerial people until he discussed it with
Manager Rosetti at 4 p.m. on 24 October, only a few
hours before its ordered implementation; and that he did
not learn that the petition for an election had been filed
until between 8 a.m. and 12 p.m. on 25 October, I have
grave misgivings . The proximity of the date of effectua-
tion of those operational changes to the time Respondent
received notice of the election petition is too close to dis-
associate any motivating relationship between the two
events. In fact, I find it inconceivable that Manager Ro-
setti would have neglected to inform Parziale about the
election petition during their 4:30 p.m. conference on 24
October, if he had not done so immediately upon the
Company's receipt of the petition around 3:20 p.m. on
the same day. After all, the petition for an election indi-
cated the employees were closer to achieving unioniza-
tion of Respondent than the initial notice to Respondent
that the employees were engaged in an organizing effort.
Rosetti immediately notified management of that 16 Oc-
tober notice, and I find it difficult to conceive that he
did not inform Parziale about the receipt of notice of the
petition on 24 October.
1349
I am therefore persuaded by the above evidence and
reasons that Parziale was notified about the election peti-
tion before he prepared and issued his 25 October direc-
tives, which included the layoffs.
Additionally, I discredit the testimony of Parziale and
Manager Rosetti with respect to the layoff of the four
employees because I was persuaded by their demeanor
that they were not testifying truthfully. Parziale testified
at great length about approximate times he held conver-
sations with Rosetti concerning the business changes or
the bases for the changes set forth in his 25 October
letter.
However, when the sequence of Respondent' s business
behavior during June through 25 October are considered
in conjunction with the unreliable and discredited testi-
mony of Vice President Parziale and General Manager
Rosetti, I am persuaded that the 25 October layoffs were
not motivated by economic justification. I find Respond-
ent's economic defense was advanced as a pretext to con-
ceal its unlawful layoff of the employees on 25 October.
Finally Parziale testified that in arriving at his deci-
sions issued on 25 October, he relied on the preliminary
financial report for Respondent ending 30 September,
which projected profits of $166,229.62. The latter report
was subpoenaed and reviewed by the General Counsel.
However, at the trial Parziale testified that during his
discussion with Comptroller Senger on 19 October
Senger estimated the profits would be closer to $50,000,
due to adjustments for unreported expenses of $36,000,
approximately $40,000 in bad debts, and adjustments to
inventory. The evidence does not show that such oral es-
timation of reduced profits by Senger was ever commu-
nicated to the General Counsel before the trial, and Re-
spondent did not call Senger as a witness to corroborate
or substantiate such oral estimation. In view of Parziale's
testimony about estimated profits, counsel for the Charg-
ing Party subpoenaed the financial records of Wilcox
Press , Inc., as Wilcox Press and Respondent have
common officers, Vice President Parziale and Comptrol-
ler Senger, and the financial records for both companies
are maintained by Comptroller Senger.
Although Respondent had essentially complied with
the language in all subpoenas by the General Counsel, it
refused to comply with the subpoena for the financial
records of Wilcox Press, even though I considered the
records, under such circumstances, relevant and ordered
their production during the hearing. The hearing was re-
cessed for 18 days and resumed for 3 additional days, but
Respondent declined to furnish the records of Wilcox
Press . Respondent did submit in evidence a copy of its
audited financial statement for fiscal 1984 , showing a
yearend profit of $18,649. The statement was accompa-
nied by a cover letter from the certified public account-
ants of Wilcox Press, dated 7 December 1984 . It was ad-
dressed to the board of directors of Wilcox Press, Inc.,
but the statement which it accompanied was labeled
Wilcox Press, Inc. and its wholly owned subsidiary,
Wilco Business Forms, Inc. The statement projected a
profit of $18,649. However, this statement was not avail-
able and Parziale did not rely on it in arriving at his de-
cisions announced on 25 October.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, the only documentary evidence of Re-
spondent's profits of 1984 that was available to Parziale
19 through 24 October was the preliminary financial
report indicating anticipated profits of $166,229.26. Prior
thereto, the financial statement for the year ending 30
September 1983 showed profits of $138,383. Hence, the
preliminary report of 30 September 1984, if not based in
part on the 1983 statement , was apparently indicating an
increase in profits for 1984. It is only Parziale 's testimony
of an uncorroborated and unsubstantiated allegedly oral
estimation of reduced profits by Comptroller Senger on
which Parziale now tells us he based his conclusion of
declining profits. Moreover, Respondent's refusal to
produce financial records of its parent corporation,
which are within the power and control of its vice presi-
dent and comptroller, renders Respondent 's contended
economic reasons for the layoffs questionable. As such,
an inference that if Wilcox Press' financial records were
produced, they would not be favorable to Respondent's
contended economic reasons for the layoffs, as warrant-
ed. Greyhound Taxi Co., 234 NLRB 865, 880 (1978);
Interstate Circuit v. U.S., 306 U.S. 208, 225, 226 (1939);
Wallick & Schwalm Co., 198 F.2d 447, 483 (3d Cir.1952).
Accordingly, I find that Respondent's documentary evi-
dence and Parziale 's discredited testimony do not dem-
onstrate that Respondent's economic conditions required
the precipitous layoff of the employees on 25 October. I
further find that such evidence and testimony are insuffi-
cient to overcome the established inference that Re-
spondent's 25 October layoffs were unlawfully motivated
because they were directed in response to the organizing
activities of Respondent 's employees, in violation of Sec-
tion 8(aXl) and (3) of the Act. Rain-Ware, Inc., 263
NLRB 50, 56 (1982).
CONCLUSIONS OF LAW
1. By telling an employee he would get his job back as
soon as the Company gets rid of the union instigators,
Respondent violated Section 8(axl) of the Act.
2. By telling employees Respondent knew who the
ringleaders of the organizing drive were, Respondent
violated Section 8(axl) of the Act.
3. By telling employees Respondent would never bar-
gain with the Union , Respondent violated Section 8(a)(1)
of the Act.
4. By telling employees, through a supervisor , there is
no sense in getting the Union in because Respondent was
going to close the doors anyway, and the supervisor
threatening to get even with the employees if he loses his
job because of the organizing effort, Respondent violated
Section 8(a)(1) of the Act.
5. By discriminatorily laying off Alan Klick, Jacque-
line Woodmansee, Christopher Barden, and Diane
McCray on 25 October 1984 because they were engaged
in efforts to organize a union , Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(axl) and (3) and Section 2(6) and
(7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having discriminatorily laid off four employees, Re-
spondent must offer them reinstatement and make them
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from the date of layoff to the
date of a proper offer of reinstatement , less any net earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp.,
231 NLRB 751 (1977).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed7
ORDER
The Respondent , Wilco Business Forms, Inc., Lansing,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling employees they would get their jobs back
as soon as the Company gets rid of the union instigators.
(b) Telling employees Respondent knows who the
ringleaders of the organizing activities are.
(c) Telling employees Respondent would never bar-
gain with the Union.
(d) Telling employees there is no sense in getting the
Union in because Respondent is going to close the doors
anyway, and threatening to get even with employees if
any management employee loses his or her job as a result
of the employees organizing activities.
(e) Discriminatorily laying off employees because they
engage in efforts to organize a union.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Alan Klick, Jacqueline Woodmansee , Chris-
topher Barden, and Diane McCray immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions , without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set forth
in the remedy section of the decision.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Lansing, New York place of business
copies of the attached notice marked "Appendix."e
T If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all Put-
poses-
8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation
Continued
WILCO BUSINESS FORMS 1351
Copies of. the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that those allegations
for which violations were not found are dismissed.