The Larimer Press

National Labor Relations Board - Board Decisions

Jan 14, 1976

222 N.L.R.B. 220 (N.L.R.B. 1976)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. S. P. Industries , Inc., d/b/a The Larimer Press
and Graphic Arts International Union, Local No.
276, AFL-CIO. Case 27-CA-4338
January 14, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On August 20, 1975, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the Acting General
Counsel filed an answering brief, and the Charging
Party filed cross-exceptions and a brief in support of
its cross-exceptions and in opposition to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge to the
extent consistent herewith.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by certain statements and remarks of Scott 2 to
employees during the preelection campaign and after
the election? We likewise agree with the Administra-
tive Law Judge's finding that, by changing its policy
of retaining employees to perform nonproductive
work when regular work was not available, and re-
quiring them to clock out on the completion of the
job on which they were working and call in to inquire
whether work was available for them, in retaliation
against its employees for designating the Union as
their bargaining agent. Respondent violated Section
8(a)(1) of the Act.
2. The Administrative Law Judge found that, by
reducing the hours of employees Filben, Erlacher,
Olguin, Botello, and Gonzalez, requiring them to call
t In the absence of exceptions thereto, we adopt pro forma the Adminis-
trative Law Judge's conclusion that Respondent did not violate Sec 8(a)(1)
of the Act as a result of the statement of its representative, Scott, to employ-
ee Olgum that Respondent would operate its business as it pleased even
though the Union had won the election.
2 While having no official title, Scott acts as an adviser to Respondent's
board of directors and is Respondent's highest managerial official
3 As found by the Administrative Law Judge, these statements included
the following remarks the employee's wages would be reduced rather than
increased if the Union became bargaining agent, Respondent would refuse
to bargain with the Union and would go bankrupt before doing so, and the
employees were in the predicament in which they found themselves after the
election because they had voted for the Union
in on a daily basis to determine whether work was
available for them and laying off these employees,
temporarily or permanently, and by discharging em-
ployee Filbert and thereafter failing and refusing to
reinstate him, all because these employees had en-
gaged in protected union activity, Respondent violat-
ed Section 8(a)(3) of the Act. For the reasons set
forth by the Administrative Law Judge, we agree
with these findings.
3. The Charging Party has excepted to the Admin-
istrative Law Judge's findings that Respondent did
not violate the Act by instituting certain changes in
the working conditions of its employees; by refusing
to grant a wage increase to employee Halter; and by
Scott's statement to Halter that, since he had always
worked in union shops, he should let the Union get
him a raise. We find merit in these exceptions.
The Changes in Working Conditions
The changes in working conditions were an-
nounced by Scott to each employee individually on
the morning of November 18, 1974,4 the first regular
working day following the election that was won by
the Charging Party. Each employee was informed,
inter alia, that: employees would not be permitted to
leave their work stations, except in connection with
their duties and they were not to engage in personal
conversation among themselves unrelated to their
work; they would be required to eat their lunches in
the company lunchroom and lunch periods would
thereafter be staggered; they would be required to
punch out when they had completed their last job of
the day and call in each day to ascertain whether
there would be work for them the following day; and
the Respondent was discontinuing its policy of pro-
viding free coffee for employees. The employees were
warned by Scott that a violation of any of these rules
would subject them to dismissal.
As noted above, the Administrative Law Judge
found only that the institution of the call-in rule vio-
lated Section 8(a)(I) of the Act. The remainder of the
above changes were found by the Administrative
Law Judge to be nonretaliatory and therefore not
violative of the Act. Contrary to the Administrative
Law Judge, we believe that the record supports the
conclusion that these other changes were, like the
call-in rule, instituted in retaliation against the em-
ployees for designating the Charging Party as their
collective-bargaining agent. Thus, as in the case of
the call-in rule, each of the other changes was an-
nounced on the first regular working day after the
Charging Party had won the election. As discussed
below, the record discloses no legitimate explanation
4 All dates herein are 1974 unless otherwise indicated.
222 NLRB No. 29
THE LARIMER PRESS 221
for the timing of any of these changes.
With respect to the rule against unnecessary talk-
ing and visiting, the Respondent states that it was
merely reiterating a policy which had always existed
in its plant. Even assuming, as the Respondent con-
tends, that it previously had some form of rule
against talking and visiting and had occasionally
warned employees about engaging in such activity, it
is clear that prior to the Charging Party's election
victory the Respondent's attitude regarding this poli-
cy had been one of permissiveness. Further, the rec-
ord does not reveal that the Respondent had ever
informed the employees, as it did on November 18,
that unnecessary talking or visiting would be grounds
for dismissal.
With respect to the discontinuance of free coffee
for the employees, the Respondent asserts that this
policy was implemented as an economy measure and
because large quantities of coffee were missing.
These assertions are not supported by the record. By
the Respondent's own admission, the decision to dis-
continue providing free coffee was made in Decem-
ber 1973. Thereafter, Scott was allegedly engaged in
attempting to procure the installation of a coffee
vending machine. However, no announcement was
made to the employees at any time prior to Novem-
ber 18 that Respondent was either discontinuing the
policy or arranging to install a coffee vending ma-
chine. Further, the November 18 announcement of
the discontinuance of free coffee came at a time
when no final arrangements had been made for the
installation of a coffee vending machine.
The employees' lunch period was changed on No-
vember 18 in the following manner. First, staggered
lunch periods were implemented in place of the pre-
vious single lunch period. Second, the employees
were told that they must either eat in the lunchroom
or eat off the Respondent's premises. Prior to No-
vember 18, many of the employees ate lunch in other
areas of the plant. Respondent contends that it initi-
ated the staggered lunch periods in response to em-
ployee complaints about the crowded lunchroom and
also to obtain adherence to an alleged policy against
employees eating lunch in areas of the plant other
than the lunchroom. These contentions are not sup-
ported by the record. As found by the Administrative
Law Judge, few employees actually used the lunch-
room. Further, while Respondent alleges that it had a
policy against employees eating in areas other than
the lunchroom and had frequently told employees to
eat only in the lunchroom, the record reveals that
until November 18 no such policy was ever enforced.
Finally, as with the other changes, prior to Novem-
ber 18 the employees were never warned that they
would be dismissed for eating in plant areas other
than the lunchroom.
In sum, the record reveals no legitimate explana-
tion for the timing of any of the above-mentioned
changes in working conditions . We find , therefore,
that these changes, which occurred in conjunction
with Respondent's other pervasive unfair labor prac-
tices, constitute violations of Section 8(a)(1) of the
Act.
Douglas Halter
The Administrative Law Judge credited employee
Halter's testimony that in the course of a salary re-
view meeting Scott stated to Halter that he, Halter,
had exclusively worked in union shops and he should
"let the [expletive deleted] union get you your
raise." 5 Although crediting Halter's version of
Scott's statement, the Administrative Law Judge con-
cluded that Scott's statement did not constitute a
threat of reprisal and Halter had not been discrimi-
natorily denied a wage increase. We do not agree.
That Scott's statement to Halter constituted a threat
of reprisal is evident from the statement itself. Fur-
ther, where, as here, such a statement is made in the
context of other pervasive unfair labor practices, in-
cluding numerous coercive statements by Scott to
other employees, there can be no doubt as to the
threatening nature of the statement.
That Halter was discriminatorily denied a wage in-
crease is supported by evidence in the record other
than Scott's statement to Halter. Thus, Halter testi-
fied that, pursuant to his discussions with Plant Su-
perintendent Ewing he had agreed to a starting wage
rate of $4.25 per hour, with the understanding that he
would be reviewed within 2 weeks and given a raise if
Respondent felt he was worthy of more money. Ew-
ing denied that he made such a statement to Halter
and testified that he merely told Halter that under
company policy his wages would be reviewed in 3
months. The Administrative Law Judge, while noting
the testimony of both Halter and Ewing, did not spe-
cifically conclude whether Ewing had in fact prom-
ised Halter that he would be reviewed within 2
weeks. As noted above, a meeting to review Halter's
salary was held within approximately I month after
Halter started working for the Respondent. Based on
this and the fact that Halter's testimony was other-
wise credited, we find that Ewing did in fact promise
to review Halter's wages within 2 weeks after Halter
started working for Respondent. In addition, the rec-
ord reveals nothing which would suggest that
Halter's work had been less than satisfactory. On the
5 This meeting occurred in late November or early December, approxi-
mately I month after Halter started working for the Respondent.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary, Halter testified without contradiction that
during the course of the salary review meeting he was
told that the quality of his work was very good.
Based on the foregoing, we find that, by Scott's
statement to Halter, Respondent violated Section
8(a)(1) of the Act. We further find that Respondent
violated Section 8(a)(1) and (3) of the Act by Scott's
refusal to grant a wage increase to Halter.
4. The Respondent has excepted to the Adminis-
trative Law Judge's finding that a bargaining order is
warranted in this case because of the pervasive na-
ture of the Respondent's unfair labor practices. We
find merit in the Respondent's exceptions. As found
by the Administrative Law Judge, on May 21, 1975,
the Board certified the Charging Party as the exclu-
sive bargaining representative of the Respondent's
employees in a stipulated production and mainte-
nance unit. Although, as found by the Administra-
tive Law Judge, the Respondent's unfair labor prac-
tices are sufficiently pervasive to justify a bargaining
order, such an order is unnecessary under the cir-
cumstances of this case since the Charging Party has
already been certified as the exclusive bargaining
representative of the Respondent's employees .6
Additional Conclusions of Law
Insert the following after paragraph 5 of the Ad-
ministrative Law Judge's Conclusions of Law and
renumber the remaining paragraphs accordingly.
"6. By informing its employees that they were not
to engage in any unnecessary talking or visiting; by
changing the employees' lunch period from a single
lunch period to staggered lunch periods and inform-
ing its employees that they were only to eat in its
lunchroom and not in other parts of the plant; by
6 See Free-Flow Packaging Corporation, 219 NLRB No. 119 (1975), where
the Board concluded that a bargaining order, although otherwise justified
by the employer's unfair labor practices, was not warranted because the
union had won the election and was entitled to certification Unlike the
situation in Free-Flow, the certification in this case issued some months
before the decision herein However, we do not find this distinction determi-
native since the record does not reveal that the Respondent has refused to
bargain with the Charging Party subsequent to the certification We further
note that neither the General Counsel nor the Charging Party has contested
Respondent's assertion that since the Board issued its certification it has
recognized the Charging Party and has proceeded to engage in extensive
negotiations and bargaining. Finally, we do not share our colleague's appar-
ent concern that at this time the certification has less than 6 months to run,
since the mere fact that the certification year will expire does not relieve the
Respondent of its duty to bargain with the Charging Party
Member Fanning would affirm the Administrative Law Judge in granting
a Gusel-type bargaining order. In the Free-Flow case cited above no certifi-
cation had issued at the time of the Board 's Order However, in the instant
case the certification was issued May 21, 1975, and at this time has less than
6 months to run Though the Respondent may now be bargaining as it
contends, in the circumstances Member Fanning would order it to bargain
based on the serious unfair labor practices found in this proceeding This
approach will obviously reinforce the continuing duty to bargain after a
certification year which the majority here appears to maximize
discontinuing its policy of providing free coffee to its
employees; and by stating to Douglas Halter that
since he had always worked in union shops he should
let the Union get him a raise, in retaliation against
the employees for designating the Union as their col-
lective`bargaining agent, Respondent interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act."
"7. By denying Douglas Halter a wage increase on
or about the end of November 1974, Respondent has
engaged in an unfair labor practice within the mean-
ing of Section 8(a)(3) and has thereby interfered with
and coerced employees in the exercise of rights guar-
anteed in Section 7, thereby violating Section 8(a)(1)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
M. S. P. Industries, Inc., d/b/a The Larimer Press,
Denver, Colorado, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Graphic Arts In-
ternational Union, Local No. 276, AFL-CIO, or in
any other labor organization of its employees, by re-
ducing their hours of work, laying off_ or otherwise
terminating or refusing to reinstate any of its em-
ployees, or in any manner discriminating in regard to
the hire or tenure or terms or conditions of employ-
ment of any of its employees or engaging in any acts
of retaliation against said employees because they
had voted to elect the Union as their bargaining
agent or because of their union affiliation or activi-
ties.
(b) Stating to employees that wages should be re-
duced rather than increased under union conditions;
that it would refuse to bargain with the "Union and
would go bankrupt before doing so; that the employ-
ees were in the predicament in which they found
themselves because they had voted for the Union;
and that because they had worked in union shops
they should let the Union get them their raises.
(c) Changing working conditions of its employees
because they had selected the Union as their bargain-
ing representative.
(d) Denying wage increases to its employees be-
cause they had selected the Union as their bargaining
representative.
(e) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
right to self-organization, to form labor organiza-
tions, to loin or assist Graphic Arts International
THE LARIMER PRESS 223
Union, Local No. 276, AFL-CIO, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other
protected concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act, or to refrain
from any and all such activities, except to_the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of, employment, as authorized in Section
8(a)(3) of the Act.
2. Take- the following affirmative action which, it
is found, will effectuate the policies of the Act:
(a) Offer John Filben and Rodney Olguin imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority and other rights and privileges, and make
each of them, as well as Henry Erlacher, Gonzalo
Botello, and Rafael Gonzalez, whole forlany loss of
earnings they may have suffered by reason of the
discrimination against them, in the manner set forth
in the section of the Administrative Law Judge's De-
cision entitled "The Remedy."
(b) Make Douglas Halter whole by paying to him
the difference between his actual wages and the wag-
es he would have received had he not been denied a
wage increase about the end of November 1974.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the-terms of this Order.
(d) Post at its plant in Denver, Colorado, copies of
the attached notice marked "Appendix." 7 Copies of
said notice,- on forms provided by the Regional Di-
rector for Region 27, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
r In the event that 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 National 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."
IT IS FURTHER ORDERED that in all other respects the
complaint be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Graphic Arts International Union, Local No.
276, AFL-CIO, or any- other labor organization
of our employees, by reducing the number of
hours of work, laying off, or otherwise discrimi-
nating in regard to the hire and tenure or terms
or conditions of employment of our employees
because of their union affiliation or protected
concerted activities, except -to the extent author-
ized by the proviso to Section 8(a)(3) of the Act,
as amended.
WE WILL NOT make statements to our employ-
ees that wages will be reduced rather than in-
creased under union conditions; that we will re-
fuse to bargain with the Union and go bankrupt
before doing so; that our employees are in the
predicament in which they find themselves be-
cause they voted for the Union; or that wage
increases will be denied because our employees
have selected the Union as their bargaining rep-
resentative. -
WE WILL NOT change the working conditions
of our employees because they have selected the
Union as their bargaining representative.
WE WILL NOT deny wage increases to our em-
ployees because they selected the Union as their
bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist Graphic
Arts International Union, Local No. 276, AFL-
CIO, or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for
the purpose of mutual aid or protection, or to
refrain from engaging in any and all of such ac-
tivities, except to the extent that said rights may
be affected by an agreement requiring member-
ship in a labor organization as authorized in
Section 8(a)(3) of the Act.
WE WILL offer John Filben and Rodney 01-
guin immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, with-
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out prejudice to their seniority and other rights
and privileges, and make each of them, as well
as Henry Erlacher, Gonzalo Botello, and Rafael
Gonzalez, whole for any loss of earnings they
may have suffered by reason of the discrimina-
tion against them.
WE WILL make Douglas Halter whole by pay-
ing to him the difference between his actual
wages and the wages he would have received
had he not been denied a wage increase about
.the end of November 1974.
All our employees are free to become and remain
or refrain from becoming or remaining members of
the above-named labor organization or any other la-
bor organization, except to the extent that such right
may be affected by an agreement authorized by Sec-
tion 8(a)(3) of the Act.
M. S. P. INDUSTRIES,,INC., d/b/a THE
LARIMER PRESS
DECISION
Respondent's answer admits generally the procedural
and jurisdictional allegations of the complaint, and admits
and denies other allegations of the complaint but denies
generally that it has engaged in any unfair labor practices.;
Pursuant to due notice, a hearing was held before me on
April 1 to 4, inclusive, April 9 to 11, inclusive, and April 21
to 23, inclusive, 1975, at Denver, Colorado. All parties
were represented by counsel, were afforded full opportuni-
ty to be heard, to examine and cross-examine witnesses, to
introduce oral and documentary evidence relevant and ma-
terial to the issues, to argue orally, and to file briefs and
proposed findings of fact and conclusions of law. At the
close of the General Counsel' s case, Respondent moved to
dismiss the complaint for failure to establish a prima facie
case. The motion was denied, with leave to renew prior to
the close of the hearing. The motion was not renewed. The
General Counsel's motion to conform the pleadings to the
proof with respect to formal matters was allowed. Pursuant
to an extension duly granted, all parties filed briefs duly
postmarked May 28,` 1975. Only Respondent has filed pro-
posed findings of fact or conclusions of law, which are duly
disposed hereinafter. Upon the entire record in the case,
and based upon the appearance and demeanor of the wit-
nesses, and the briefs of the parties, which have been duly
considered, I make the following:
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge: The com-
plaint, issued January 31, 1975, as amended at the hearing
upon prior notice, alleges that Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Specifically, the complaint, as amended, alleges that Re-
spondent (1) since about October 1, 1974, and, more par-
ticularly, on or about November 18, 1974, has engaged in
specific acts of interference, restraint, and coercion, by
changing working conditions of employees because they
had selected the Union as their bargaining representative,
and by stating to employees that it would conduct its busi-
ness as it wished irrespective of whether the Union won the
election; (2) on or about November 18, 1974, discharged,
and has since failed and refused to reinstate Douglas Wes-
cott, and has discontinued the full-time employment of
named employees,' and informed them that they would be
notified on a day-to-day basis whether work would be
available for them; (3) on or about December 3, laid off or
terminated the employment of John Filben and Rodney
Olguin, and failed and refused to reinstate them; (4) late in
November 1974 told an employee that, since he had always
worked in union shops, the Union could procure a wage
increase for him; and (5) late in November 1974 denied
Douglas Halter a wage increase and thereafter, toward the
end of February 1975, changed his employment status
from indefinite to temporary, all because, of their union
membership and activities, and by all the foregoing con-
duct, has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act .2
i John Filbert, Henry Erlacher, Rodney Olgum, Gonzalo Botello, and
Rafael Gonzalez.
2 The allegations covered by (4) and (5) were added by amendment at the
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that, at all times material herein,
M. S. P. Industries, Inc., a Colorado corporation, d/b/a
The Larimer Press, has been engaged at its plant in Den-
ver, Colorado, in the business of commercial printing. In
the conduct of its business, Respondent purchases and re-
ceives goods and materials valued in excess of $50,000 an-
nually, directly from points outside the State of Colorado.
The complaint further alleges, Respondent's answer ad-
mits, and it is hereby found that, at all times material here-
in, Respondent has been an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent 's answer admits, and
it is hereby found that, at all times material herein , Graphic
Arts International Union, Local No. 276, AFL-CIO, the
Union herein, has been a labor organization within the
meaning of Section 2 (5) of the Act.
outset of the hearing.
3 Designations herein are as follows : The General Counsel, unless other-
wise stated or required by the context , his representative at the hearing,
M. S. P. Industries , Inc., d/b /a The Lanmer Press, Respondent , the Com-
pany, or the Employer, Graphic Arts International Union, Local No. 276,
AFL-CIO, the Charging Party or the Union, the National Labor Relations
Act, as amended (61 Star. 136, 73 Stat 519, 29 U.S.C. Sec . 151, et seq ), the
Act, the National Labor Relations Board, the Board . The original charge
was filed and served on November 26, 1974 , the amended charge, on De-
cember 18, 1974, the second amended charge , on January 28, 1975, and the
third amended charge , on March 6, 1975.
THE LARIMER PRESS 225
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, on or about November 18, 1974, Respon-
dent changed the working conditions of its employees, in
specific respects, in retaliation for the election of the Union
as their exclusive representative, in violation of Section
8(a)(1) of the Act.
2. Whether, on or about November 18, 1974, Respon-
dent stated to employees that he would conduct his busi-
ness as he pleased irrespective of whether the -Union won
the election, and thereby violated Section 8(a)(1) of the
Act.
3. Whether, late in November 1974, Respondent stated
to an employee that, since he had always worked in union
shops, he should look to the Union to obtain a wage in-
crease, thereby violating Section 8(a)(1) of the Act.
4. Whether, on or about November 18, 1974, Respon-
dent discontinued the full-time employment of named em-
ployees, and notified them that they would be required to
call in daily to ascertain whether work would be available,
thereby discriminating in regard to their hire and tenure of
employment because of their union membership and activ-
ities, in violation of Section 8(a)(3) of the Act.
5. Whether, on or about December 2, 1974, Respondent
laid off or terminated the employment of John Filben, and
engaged in intermittent layoffs of Rodney Olguin, because
of their union membership and activities, in violation of
Section 8(a)(3) of the Act.
6. Whether, on or about November 18, 1974, Respon-
dent terminated the employment of Douglas Wescott be-
cause of his union membership and activities, in violation
of Section 8(a)(3) of the Act.
7. Whether,-late in November 1974, Respondent denied
Douglas Halter a wage- increase and, toward the end of
February 1975, changed his employment from indefinite to
temporary status or laid him off permanently because of
his union membership and activities, in violation of Section
8(a)(3) of the Act.
B. The Structure of the Company
M. S. P. Industries, Inc., a Colorado corporation, orga-
nized in August 1967, is engaged in the general commercial
printing business under the firm name of The Larimer
Press. As a minor part of its operation, the corporation
manufactures and distributes a specialty item, under the
trademark "Tel-Guide," a plastic card containing direct
dialing instructions which can be-attached to a telephone
instrument.
Ray L. Scott, Respondent's highest managerial official,
commenced his employment with the Company as a sales-
man on October 15, 1967. After working in that capacity
for 4 years, he became general manager for 2 years until
February 1973, when he acquired complete supervision of
the Company responsible only to the board of directors.
Although he held no official title and served, according to
him, without salary or compensation, he considered him-
self advisor to the board of directors, a title which he
claims was assigned to him by the Regional Office, pre-
sumably during representation proceedings. Nancy C. (La-
cey) Scott, wife of Ray Scott, the sole stockholder of the
corporation, Hubert T. Weinshienk, corporate attorney,
and Betty Haasis, corporate secretary, who also serves as
Scott's personal secretary, constitute the board of directors.
Roger Johnson, former plant superintendent, and since
February 1974, general manager, reports directly to Scott.
Since September 1974, Benjamin T. Ewing has occupied
the position of plant superintendent, succeeding John Eld-
er, who held the position from late 1971 until July 1, 1974,
and John Stumpf, who was employed in that capacity for
about 3 weeks from August 12, 1974, to September 6, 1974.
It is conceded that, during the periods of their respective
tenure, all these persons were supervisors within the mean-
ing of the Act.
At the outset of Respondent's operations in 1967, it was
primarily engaged in the printing and distribution of adver-
tising for outlets such as supermarkets, shopping centers,
and chain stores. At this time, only 5 percent of its business
consisted of commercial printing. By November 1972,
however, when Respondent moved its business to new
quarters, it had discontinued the distribution of advertising
and devoted itself exclusively to the business of commer-
cial printing.
Respondent's operations are divided into three depart-
ments: the art department, which prepares the copy sup-
plied by the customer; the preparatory department, con-
sisting of the camera and stripping department, in which
the negatives and proofs are prepared for platemaking;
and the production department, which includes the press-
room, bindery, and delivery department. In general, Re-
spondent secures its orders by submitting bids, based on
estimates, compiled by employees designated as "estima-
tors," from timesheets maintained by employees indicating
the time spent on specific jobs. Respondent maintains its
books and records so as to allocate costs, as well as revenue
from sales, to each of these departments.
C. The Representation Proceedings
The Union filed a representation petition on September
17, 1974, and on October 15, 1974, the parties entered into
a Stipulation for Certification Upon Consent Election.
Pursuant to said stipulation, an election was held on No-
vember 15, 1974. According to the tally of ballots, of 31
eligible voters, 15 voted in favor of the Union, 6 against the
Union, and 8 voted challenged ballots. Since these ballots
did not affect the outcome of the election, the challenges
were not resolved. Respondent filed timely objections to
conduct affecting the results of the election and on January
31, 1975, after an investigation, the Regional Director is-
sued his report recommending that the objections be over-
ruled. On February 24, 1975, Respondent filed exceptions
to the Regional Director's report, which were pending at
the time of the hearing in this proceeding. On May 31,
1975, since the close of the hearing in this matter, the
Board issued its Decision and Certification of Representa-
tive, adopting the Regional Director's findings and recom-
mendations, and certifying the Union as the exclusive rep-
226 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
resentative of Respondent's employees, in the appropriate
unit, as defined in the stipulation.4
D. Interference, Restraint, and Coercion
On Monday morning, November 18, the first regular
working day after the-election, Ray Scott, accompanied by
General Manager Roger A. Johnson and Plant Superinten-
dent Benjamin T. Ewing, approached the employees as
they arrived at work, and ordered them to proceed directly
to their work stations. Soon afterward, the management
representatives went to each work station, where Scott an-
nounced to each employee, individually, a set of work
rules. Using a document prepared by Johnson after the
election, Scott told each employee that (1) employees
would not be permitted to leave their work stations, except
in connection with their duties; (2) they were not to engage
in personal conversation among themselves unrelated to
their work; (3) they would be required to eat their lunches
in the company lunchroom; (4) the lunch period would
thereafter be staggered; and (5) employees would be re-
quired to punch out when they had completed their last job
of the day and call in each day to ascertain whether there
would be work for them the following day. Violation of
any of the rules, Scott told them, would subject them to
dismissal. Scott also announced that the Company was dis-
continuing the policy of providing free coffee. According
to several employees, including Henry Erlacher and Rob-
ert Hammell, Scott spoke in a loud and belligerent voice,
though it is probable their impression was influenced by
their resentment of the action taken.
(1) Unnecessary talking and visiting: Respondent main-
tains that in stating the rule against unnecessary talking
and visiting it was merely reiterating a policy which had
always existed in the plant, and which was specifically in-
corporated in the employees' handbook, in existence at
least since the summer of 1973, long before the advent of
the Union. The substance of this rule appears in the section
entitled, "Safety," which states, in part "distracting conver-
sation, etc., (sic) will not be tolerated." The fact that the
handbook does not specifically provide that violation of
the rule would furnish grounds for discharge does not ren-
der the rule any less enforceable.
Respondent contends that it had long been concerned
with excessive talking and visiting among employees, and
cited an interoffice memorandum, dated February 20,
1974, from Scott to General Manager Johnson and then
Plant Superintendent Elder, complaining of "too much vis-
iting and nonproductive time," which was discussed at a
meeting with these supervisors soon afterwards. Addition-
ally, Johnson testified that, at a meeting held in July 1974,
following Plant Superintendent Elder's resignation, where
the need for increased productivity was discussed, Johnson
urged that a 10-percent increase in production could be
achieved by eliminating needless conversation. Admitted-
ly, however, Johnson did not notify employees that exces-
sive talking would be cause for termination. Scott also tes-
4The appropriate unit-is described as
All production and maintenance employees including Art Department
employees; excluding all office clerical employees, salesmen, profes-
sional employees, guards and supervisors as defined by the Act.
tified that he discussed the subject of excessive talking over
a period of months and even years with employees Erlach-
er, Filben, and employees in the art department.
Early in September 1974, Scott called employees Filben,
Dale Stout, and Phil Jenkins to his office ostensibly to ob-
tain their opinion as to whether Plant Superintendent
Stumpf should be dismissed. During this discussion, Scott
testified, he reproached them for excessive talking and re-
monstrated with them that they should be setting an exam-
ple for the newer employees. According to Filben, the dis-
cussion was limited to Stumpf's future in the plant, and the
subject of excessive talking or visiting among employees
was not mentioned. In view of the ultimate determination
of the issue, it is unnecessary to resolve this conflict.
Stumpf was, however, subsequently discharged.
Stout, leadman in the bindery, conceded that he had
been "chewed out" so often by both Scott and Johnson for
engaging in conversations with other-employees and leav-
ing his work station that he could not recall the number of
times. Furthermore, Scott testified that he discharged two
employees, Paul Geudner in the summer of 1973 and John
Sebring in November 1973, for violating the company rule
regarding unnecessary conversation with employees and
leaving their work stations, although, in Sebring's case, he
admitted that the primary consideration was lack of work,
as well as visiting in other departments on working time.
With respect to Erlacher, a chronic offender, according
to Scott, he had been obliged at one time or another during
Erlacher's employment to order him out of every depart-
ment or area in the plant, between 25 and 50 times, warn-
ing Erlacher that he would be discharged if he persisted in
this conduct. Denying Scott's testimony, Erlacher main-
tained that the first time he had been warned not to leave
his work area was on November 18, although he conceded
that Scott had told him to refrain from distracting Ham-
mell by unnecessary conversation. Scott also testified that
he had warned Filben on three or four occasions to discon-
tinue his talking and to remain at his work station. As with
other employees, Filben denied that he had ever been
warned.
Apart from Scott's testimony that he complained to em-
ployees repeatedly about unnecessary conversation and
visiting, the record fairly establishes that for a considerable
period of time prior to November 18, at least as early as the
time of the issuance of the employees' handbook, in the
summer of 1973, Respondent had maintained a rule
against "distracting conversation," which by reasonable
implication may be held to encompass leaving one's work
station and visiting employees in other departments. In any
event, it is sufficiently established that Respondent had re-
peatedly notified employees that they were not to engage in
unnecessary conversation or visiting. It is specious to argue
that because Respondent had not explicitly warned em-
ployees that infraction of the rule or policy would consti-
tute grounds for discharge, it was precluded from imposing
such discipline. The handbook rule itself recites, "distract-
ing conversation, etc., will not be tolerated." Granted, the
rule does not say, "will be grounds for discharge" or some
such similar language. But we must not lose sight of the
fact that we are not called on to decide whether an employ-
ee who has been discharged for violation of the rule should
have reasonably been aware that the penalty for such in-
THE LARIMER PRESS 227
fraction was discharge. It is not alleged, or contended, that
any employee involved here was discharged for this- dere-
liction. The issue is-(1) whether Respondent-changed the
working conditions of its employees or announced a new
policy with regard to unnecessary conversation and vis-
iting, violation of which would render employees subject to
dismissal ; and (2) whether such change was made in retah-
ation against said employees because they had elected the
Union their bargaining agent.
The record leaves little doubt that, although Scott and
Johnson had reproached and admonished employees for
excessive talking and visiting, and had actually discharged
two employees for this reason, Respondent's overall atti-
tude regarding this policy had been one of permissiveness.
Nevertheless, this -did not require Respondent to tolerate
this conduct indefinitely. Respondent had a legitimate pur-
pose in enforcing its policy against needless conversation
and visiting and, while the timing of the reiteration of the
policy may raise suspicions regarding Respondent' s moti-
vation, it cannot be said that the announcement constitut-
ed a change in,working conditions or that it was prompted
by a purpose to retaliate against the employees for the se-
lection of -the Union as bargaining agent.
(2) Discontinuance of free coffee: For some time prior to
1974, Respondent had been providing its employees with
free coffee to be consumed at the plant. In December 1973,
at a management meeting held at the Broadmoor Hotel,
Colorado Springs, it was decided to discontinue the policy
of furnishing free coffee both as an economy measure and
because large quantities of- coffee were disappearing unac-
countably. According to Scott, he had been attempting to
procure installation of a coffee vending machine but had
been unable to negotiate a satisfactory, arrangement with
the vending machine supplier. Admittedly, however, no an-
nouncement was made to the employees at any time prior
to November 18 either that Respondent was discontinuing
the policy or arranging to install a coffee vending machine.
Although, according to Respondent, management had de-
cided to delay the announcement of an admitted change in
policy, until after Scott had succeeded in his negotiations
with the vending machine operator, Scott used the occa-
sion on November 18, when he notified the employees of
other changes, that free coffee would no longer be provid-
ed. Acoffee vending machine was not actually installed in
the plant until February 1975. -
Respondent argues that the decision to discontinue free
coffee was motivated entirely by economic considerations,
wholly unrelated to the union activities of its employees.
Obviously, Respondent was under no obligation to furnish
its employees with free coffee, and it is not contended that
this was regarded by either the employer or the employees
as a perquisite of their employment or a fringe benefit. The
issue is whether Respondent withdrew the free coffee privi-
lege in retaliation against its employees for selecting the
Union as their bargaining agent or for the reasons assigned
by Respondent. Although the matter is not wholly free
from doubt, especially in view of the delay of nearly a year
in implementing its decision, and the timing of the action
taken, Respondent has sufficiently established that its ac-
tion was prompted solely by economic reasons.
(3) The change in lunch period: It is undisputed that Scott
notified the employees on the morning of November 18
that the lunch periods would be thenceforth staggered.
Prior to-November 18, the lunch period for .all employees
was a half hour from 12 noon to 12:30 p.m. Under the, new
schedule, production and maintenance employees would
be divided into three groups, and their lunch period stag-
gered at half-hour intervals, starting at 1 l;30. The compa-
ny lunchroom accommodated about 10 persons and, as of
November 18 the Company employed about 30 production
and maintenance employees, in addition to occasional
part-time or temporary employees. Some employees had
complained of congested conditions and poor ventilation
in the lunchroom. Prior to November 18, relatively few
employees ate in the lunchroom, many eating lunch on the
loading dock, storage area, in personal automobiles, and
restaurants outside the plant. Respondent contends that it
initiated the staggered lunch period in response to employ-
ee complaints and to obtain adherence to an allegedly
longstanding policy against eating lunch on company
premises elsewhere then in the lunchroom.5 -
The General Counsel contends that Respondent initiat-
ed the change in lunch period as a means of depriving
employees of an opportunity to meet and presumably dis-
cuss union matters . He argues that, despite the fact that the
Union had won the election, Respondent could, and did,
file objections and if the election were set aside and a sec-
ond election ordered, the staggered lunch periods would
have interfered with the right of employees to engage in
union discussions during lunch penods. The argument is
farfetched, and it is improbable that the idea occurred to
Respondent. Since November 1972, according to Scott, he
had repeatedly instructed employees to eat in the lunch-
room because he objected to the unsightly appearance of
employees eating in various areas about the plant and the
unfavorable impression this made on customers visiting the
plant. Since the lunchroom could only accommodate 10
persons at a time, and employees had complained of con-
gestion and inadequate ventilation, he decided on having
three lunch periods. This, of course, does not explain why
Respondent waited so long before initiating the new lunch
penods. Inertia and procrastination, all too human failings,
may account for the delay; but the evidence does not war-
rant a finding that Respondent changed the lunch period
either in retaliation for its employees ' union activities or for
the purpose of preventing them from discussing union mat-
ters during lunch. -
(4) Changing clothes and waskup: The complaint alleges
that one of the changes in working conditions, announced
by Scott on November 18 was the elimination of washup
and clothes changing on company time. Neither the Gener-
al Counsel nor the Charging, Party, has adverted to this
alleged change in the briefs. The employee's handbook,
however, contains the following rule:
PERSONAL WASH-UP TIME
Personal wash-up and clothes changing must be
done before and after, work hours-not during the pe-
riod registered on the time card.
5 According to Scott, employees in the art department, included in the
unit in which the election was conducted, had taken their lunch period at a
time other than that of production and maintenance employees.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Scott, in his discussion with employees on the
morning of November 18, he merely reiterated company
policy which had existed even long before the handbook
was published. Rodney Olguin testified that, late in Octo-
ber or early in November, before the election, Scott men-
tioned to him that employees were washing up before
punching out, but that he was not really "pressing" the
issue. While this gives rise to an inference that Respondent
may have been willing to overlook infractions of this rule
until it learned that the employees had selected the Union
as their representative, Scott's statement to the employees
on this subject cannot be said to have constituted a change
in working rules, and the mere designation of the Union as
bargaining agent could not deprive the Employer of the
right to require obedience to the rule.
(5) Removal of pay telephone: No evidence was intro-
duced in support of the allegation that, as means of retalia-
tion against the employees, Respondent removed a pay
telephone from the plant. The allegation has not been men-
tioned in the briefs of the General Counsel or the Charging
Party, and has presumably been abandoned. It will, there-
fore, be recommended that this allegation of the complaint
be dismissed.
(6) The requirement for accounting for materials and sup-
plies: Although not specifically alleged as a violation of
Section 8(a)(1) of the Act, the General Counsel introduced
evidence, without objection, that statements made by Scott
to John Filben, concerning the requirement to account for
materials and supplies in the platemaking room, constitut-
ed a change in work rules. It is undisputed that on Thurs-
day of the week of November 18 Respondent posted the
following notice:
PLATE DEPARTMENT
Please record as accurately as possible, each time
sheet entry. Use the back of the job ticket for all plates
and materials and exposures. Mark plates with appro-
priate identification i.e. by name, job number, color,
form number, etc.
Filben conceded in his testimony that this requirement had
existed at least since July 1974, when General Manager
Johnson addressed the meeting of employees. At this meet-
ing, Filben testified, Johnson reminded the employees
making plates that they were required to fill out all job
tickets. Filben admitted that Scott's statement on the sub-
ject on November 18 merely confirmed preexisting proce-
dures and did not amount to a new work rule. Again, nei-
ther the General Counsel nor the Charging Party has
adverted to this work rule in their respective briefs, and it is
assumed that this aspect of the alleged unfair labor practic-
es has been abandoned. In any event, no finding will be
based thereon.
Finally, the most serious change in working conditions
concerned the announcement that employees would there-
after be required to clock out when they had no work, and
call in every day to inquire whether work was available for
them. Respondent concedes that this constituted a change
in working conditions but contends that this action was
necessitated by legitimate economic considerations, unaf-
fected by union animus or a purpose to discriminate or
retaliate against its employees.
Before considering Respondent's economic defenses, it
may be desirable to review the employment history of the
employees directly affected by the change.
E. Discrimination in Regard to Hire and Tenure of
Employment
1. John W. Filben, a journeyman platemaker for more
than 23 years, was hired by Respondent on April 1, 1974,
after answering a help-wanted ad in the local newspapers.
Filben was then employed by Riedel Lithographing Com-
pany. He was interviewed first by General Manager John-
son and several days later by both Johnson and Scott. Fil-
ben had been a member of the Graphic Arts International
Union or its predecessors during his entire period of em-
ployment, having transferred from the Cleveland, Ohio, lo-
cal to the Denver local in January 1974. According to Fil-
ben, he told these management representatives before he
was hired that he would not leave a permanent job, which
he then held, unless Respondent could offer him perma-
nent employment, at no reduction in pay. Filben also stat-
ed that his employer had offered him a 2-week paid vaca-
tion if he would postpone it until the end of the year. It was
then agreed, according to Filben, that Respondent would
hire him at the same rate of pay, and grant him a 2-week
paid vacation. At Johnson's suggestion, Filben agreed to
work part-time to help alleviate Respondent's workload
and to enable both parties to determine whether the ar-
rangement was mutually satisfactory. After working sever-
al evenings, Filben told Scott and Johnson that he wanted
to give his previous employer 2 weeks' notice, and that he
could not start working full time for Respondent until he
had worked out his notice. With Scott's approval, Filben
gave his notice and, on or about April 4, started work with
Respondent on a full-time basis.
Filben's duties as a journeyman offset platemaker con-
sisted of making plates, brown lines, and color keys, as well
as filing negatives, maintaining and oiling equipment,
changing carbons, cleaning vacuum frames and perform-
ing similar duties. At times, perhaps as often as once a
week, Filben was also called on to make corrections on the
cylinder of the press to obviate the necessity of removing
the plate from the cylinder. Occasionally, Filben corrected
stripping errors, until Superintendent Elder told him that,
although he appreciated Filbert's efforts, he preferred that
Filben take the job back to the stripper to make correc-
tions, so that Elder could point out the mistake to the strip-
per. In connection with his duties, Filben had occasion to
go to the stripping room to check for possible errors before
making the plate, color key, or brown print.
Filben attended all the union as well as company pre-
election meetings. At one company meeting, Filben raised
questions about the Company's profit-sharing plan and, at
another meeting on November 14, the day before the elec-
tion, challenged Scott's explanation of the Union 's pension
plan and gave his own version to the assembled employees.
Filben voted in the election, and was thereafter appointed
a union committee member, of which Respondent was lat-
er apprised. On November 20, the Union distributed a cir-
cular letter, addressed to all production and maintenance
THE LARIMER PRESS 229
employees at Larimer Press, confirming the results of the
election, and notifying the employees that the Union in-
tended to commence negotiations with the Employer.6
During the first week of November , some 2 weeks before
the election, Scott and Johnson asked Filben to step out of
the plate room to the adjacent storage area. Scott then
asked Filben how old he was, and the latter gave his age as
54. With that, Scott asked Filben, "Do you think that I
would ever lay you off?" Filben replied, "I sure hope not."
Thereupon, according to Filben, Scott remarked, "Do you
know if the Union gets in here I will have no control over
the layoffs in this plant?" Filben said that he was not aware
of that, that he had never given it much thought but that he
assumed that the matter was covered by collective-bargam-
mg agreement. Scott rejoined, "I think you should give this
a little bit of thought, and let this govern how you vote."
Although Scott at first denied discussing the subject of
layoffs with Filben in this conversation, Scott, who placed
this conversation in October , testified that he pointed out
that under a collective-bargaining agreement, in the event
of layoffs, strippers with more seniority than Filben would
receive preference over employees like Filben with less se-
niority. It is significant, in this context, that Scott, accord-
ing to Filben's testimony, substantially corroborated by
Johnson, in discussing the Company's policy of providing
employees with "make-work" tasks, said he would prefer to
retain employees whom it wanted , as in the case of Filben,
performing make-work tasks-rather than laying them off,
but that if the Union were voted in, it would be entitled to
be consulted regarding layoffs.
During this conversation, or in another in the same time
interval, in a discussion about the Company's profit-shar-
ing plan, Scott questioned Filben about the Union's pen-
sion plan and dues requirements. Scott asked Filben to
procure a copy of the Union's bylaws, as well as the collec-
tive-bargaming agreement between Hirschfield Press, an-
other employer in the area, and the Union. Under cross-
examination, Scott admitted that he had had a copy of the
Union's bylaws, as well as the collective-bargaining agree-
ment, but testified, in effect, that he sought to have Filben
obtain updated information. When Filben reported to
Scott the following day, and furnished the desired informa-
tion, Scott, according to Filben, called him a "damn liar."
b The letter listed new journeymen rates in the area , effective January 1,
1975 , and furnished the names of the six union committee members, includ-
ing Henry Erlacher, Robert Hammel] , Rodney Olgum , and John Filben
Though Scott admitted that he saw a copy of this letter on his desk, he was
uncertain of the date that it first came to his attention . According to Scott,
he attended the Prmt'74 Trade Show in Chicago between November 18 and
28 but returned to his office on November 25. He left the following day, and
was away from his desk until December 3. He was in his office December 3
and 4, and was gone from December 4 to 9. The earliest date he could have
seen a copy of the union letter, according to him, was December 3 or 4, and
probably not until after December 9 , in either case, according to Scott, after
Filben's layoff on December 2. In view of results of the election held on
November 15, of which Scott was obviously aware before he left for Chica-
go on November 18, it is highly improbable that the letter would not have
been brought to Scott's attention prior to December 2, on the occasions
when he was actually in his office In any event , whether or not Scott was
aware of Filben 's membership on the union committee prior to December 2,
the record leaves no doubt that he was aware of Filben's adherence to and
sponsorship of the Union prior to November 18 and certainly before De-
cember 2, when , as will later appear, Filben was permanently laid off.
Scott, however, testified that Filben had reported to him
that he had been unable to obtain a copy of the bylaws and
the requested information, and that it was this that pro-
voked him to use this characterization.
In his encounter with Filben on the morning of Novem-
ber 18, when Scott apprised him of what Filben referred to
as the "new work rules," Scott instructed Filben to confine
his work exclusively to the making of plates and to punch
out when there was no platework to be done. Scott then
proceeded to enumerate the other rules, previously dis-
cussed, and stated that violation of any of the rules would
furnish grounds for dismissal.
Later, the same day, November 18, at or about 12:15
p.m., after Filben had completed his platework for the day,
Plant Superintendent Benjamin Ewing instructed him to
clock out and call back that night to ascertain whether
there would be work for him the following day. Shortly
before 5 o'clock, however, Ewing notified Filben that the
Company had 4 hours work for him and instructed him to
report to work the following day. Filben reported, as di-
rected, next day, Tuesday, November 19. Shortly after
noon , Scott went to the plate room, where Filben was
working, and remarked , "Well, we're still in operation,
aren't we?" When Filben replied, "I had no doubt that you
would be," Scott told him that six employees had quoted
Filben as saying, when he left the plant the day before, that
he would have the plant shut down and on strike the fol-
lowing morning. "It didn't work, did it?" Scott taunted.
Filben denied talking to any one at the plant when he left
the day before, and challenged Scott to confront him with
these employees so he could prove that they were lying.
Later, Scott admitted that only one employee, James Bent-
ley, a pressman, had said that ' Filben intended to call a
strike, and that as to the rest, 'his testimony was based on
mere rumor. Bentley denied that he told Scott that Filben
intended to call a strike. In fact, according to Bentley, it
was Scott who told him that Filben had threatened to call
a strike and had advised Bentley that he had a right to
cross the picket line, advice which Scott admittedly gave
the other employees the same day. Scott acknowledged
that about noon of that day his attorney notified him that
he had received a telephone call from a union representa-
tive protesting the alleged rule changes , and hinting at the
possibility of a strike. That same night, Scott left for Chica-
go to attend the Print '74 show.
According to Scott, Filben did not deny that he had
threatened to call a strike, although Filben admittedly de-
fied him to confront him with his accusers . Scott declined
to reveal the identity of his other informants. No strike,
however, was called on Tuesday, November 19, or at any
time thereafter. According to Bentley, Scott remarked to
him that morning, "Well , we're still in business."
Filben continued working part-time from November 18
to December 2, 1974, when Plant Superintendent Ewing
notified him that the Company had no further need for a
full-time platemaker and that his job was being eliminated.
According to Scott, the decision to terminate Filben was
made on Monday, November 25, as a result of a consensus
among Scott, Johnson and Ewing.
According to Scott, Filben was the only full-time plate-
maker employed by the Company since its inception. Re-
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent maintains that, prior to the date Filben was
hired, the job had been performed by strippers, and when
the Company abolished the job of full-time platemaker,
and terminated Filben, it merely reverted to its former pol-
icy of-having the work done by the strippers, in addition to
their other duties. The record establishes, however, that
John Sebring worked primarily as a platemaker between
April and November 1973, although he also performed
some work as a -stripper during this period. This was con-
firmed not only by other employees but by Scott himself
and Thomas Harding, the Company's accountant at the
time . Earlier, before Sebring was hired, Supervisor Johnson
had performed the work of platemaker, and he was fol-
lowed by part-time employees until Sebring was hired.
When Sebring left Respondent's employ, Richard Westra
made plates on _a full-time basis, while performing strip-
ping operations at times. According to Erlacher's uncon-
tradicted testimony, the Company had been seeking a per-
manent platemaker, and Johnson had asked him if he
knew of any one qualified for the job. It was in response to
Respondent's help-wanted advertisement that Filben was
hired as a full-time platemaker. According to Filben's
timesheets , from the time he was hired until his termination
on December 2, he worked a full 40-hour week, with rare
exceptions (until November 18, when he was placed on
part-time employment, although he also worked substan-
tial amounts of overtime).
Filben testified that work kept him occupied most of the
time and estimated that 90 percent of his time was spent in
production, and the remaining 10 percent on his other du-
ties. Most of his overtime during the summer months was
worked on Friday afternoons and Saturday due tothe sea-
sonal work schedule., During a portion of Filben's employ-
ment, Respondent also employed Jim Bailey and Joe Si-
mone to work part-time making plates, although Bailey
performed some stripping while Simone was principally oc-
cupied making plates. It is also significant that during
Filben's tenure the Company acquired a second platemak-
ing machine, which expanded productive capacity of the
platemaking department.
Apart from its position that Filben's permanent layoff
was dictated by economic considerations, later discussed,
Respondent contended that Filben was actually idle a
great deal of the time for lack of platemaking work. Scott
testified that Filben himself admitted this on more than
one occasion, and in a discussion of the Company's eco-
nomic problems, in July 1974, conceded to Scott that he
was occupied less than 30 percent of the time. Filben cited
an instance when, according to Scott, he had waited for
work all day only to be required to work overtime to get a
job out. On other occasions, Scott testified, Filben refused
to work overtime because he had not been given anything
to do all day.-Filben denied telling Scott that he had stood
around all day with nothing to do, but Scott testified that
he was personally aware of an occasion when Filben had
had no work to perform during an 8-hour period, and then
worked overtime to complete a proof, which Scott attribut-
ed to Filbert's proclivity for "visiting." The record indi-
cates, however, that because of the nature of Respondent's
operation, it was not unusual for a platemaker to work
overtime to complete a special job which might not have
been ready for the platemaker during his regular work
shift.
Harding, Respondent's former accountant, testified that,
according to a timestudy he had conducted, only 40 per-
cent of Filbert's time was devoted to productive work. Rei-
man, Harding's successor, later conducted timestudies of
employees' nonproductive time based on their daily time-
sheets, but did not include Filben in his studies. In any
case, Filben had-not been required to maintain daily time-
sheets but only a record of materials used, to be noted on
the job tickets. Harding testified that his study of
Filbert's nonproductive time covered a 2- or 3-week period
in May or June 1974, and that, since no timesheets were
available for Filben, he relied on -information obtained
from General.Manager Johnson or Plant Superintendent
Ewing to determine the number of plates required for -each
job and the number of "burns" required for each plate.
According to Harding, by allocating an arbitrary amount
of time to each step in the platemaking operation, he de-
termined the extent of Filben's nonproductive time.
Beginning in February 1975, after Filben's layoff, plate-
making at the plant was done by Mark Thornburgh, a re-
cent high school student. Thornburgh had been hired ini-
tially on September 19, 1974, on a part-time basis under a
vocational training program sponsored by the Denver Pub-
lic School system. Under this program, participating em-
ployers agree to train high school students, with the under-
standing that if the arrangement proves mutually
satisfactory the student will be considered for permanent
employment.
Thornburgh worked on a part-time basis from time to
time in various departments. When Thornburgh was grad-
uated, Johnson hired him as a full-time employee, on a
90-day probationary basis, and provided him with training
as a platemaker. Although Thornburgh continued to per-
form other duties at the plant, he performed increasing
amounts of platemaking under the direction and assistance
of his supervisor. Johnson conceded that since
Thornburgh's graduation from high school, 75 percent of
his work has consisted of platemaking and that his duties
have not differed from those of other platemakers. Thorn-
burgh was not called to testify but, according to timesheets
introduced in evidence, between February 3 and the date
of the hearing, he has averaged approximately 35 hours a
week at platemaking.
During the months of December 1974 and January 1975,
Johnson himself was actively engaged in platemaking,
working 30 hours a week for the first 3 weeks in December.
In January, Ewing also made plates, devoting nearly 80
percent of his time to this task for a 2-week period. Fur-
thermore, Johnson admitted that in December and Janu-
ary he and Ewing spent a considerable amount of time in
platemaking because strippers, who on instructions from
their supervisors also made plates, were too busy with
their own work. Although Filben acknowledged that strip-
pers also made plates during emergencies, according to
him, none of them qualified as an experienced platemaker.
Scott testified that the decision to dispense with a full-
time platemaker was made in July 1974, when he told Fil-
ben, in discussing the Company's economic plight, that un-
less company sales increased substantially it would be nec-
THE LARIMER PRESS - 231
essary to eliminate the platemaker's job. Filben conceded,
in Scott's version, that the platemaker's job was the "most
expendable" and told Scott, in effect, not to be concerned
about him because Filbert's wife had wanted Filben to re-
turn to Ohio in any case. Elsewhere, Scott testified that
Filbert reluctantly agreed with him in this conversation.
For his part, Filben recalled a conversation with Scott in
July, in which Scott conceded that the camera and plate-
making departments were showing a profit, but denied that
elimination of the platemaker's job was discussed. Inci-
dently, Erlacher, the cameraman also testified that Scott
had made a similar statement regarding The profitability of
the two departments, although he was uncertain as to when
the statement was made. According to Filben, the conver-
sation in which he mentioned his wife's desire to return to
Ohio occurred in September and the subject was not dis-
cussed in the July meeting. Although Scott maintained that
Filben agreed in other conversations that it would be logi-
cal to eliminate the platemaker's job, Filben denied that he
had acquiesced in the elimination of the job or in his termi-
nation. In any event, as has been seen, the final decision to
terminate Filben was not made until November 25.
2. Henry Erlacher, the Company's only cameraman, was
hired initially in November 1972. He attended three-com-
pany preelection meetings, during which he was critical of
company policies and working conditions and, at one of
these meetings, expressed indifference to the Company's
profit-sharing plan. When. Scott prided himself on the
agreeable pressroom conditions, Erlacher took issue with
him and commented that such a plant would not be toler-
ated in Germany.
- Until November 18 Erlacher had never been laid off for
lack of work during his entire tenure of employment even
when work was slack, a policy which, according to him has
been traditional in the printing industry. During slack peri-
ods, he had been assigned to various make-work tasks in
the plant.
On Monday, November 18, when Erlacher reported for
work, Scott and Ewing escorted him to his work station
and in no uncertain terms gave him orders not to leave his
work area and to refrain from conversations with employ-
ees on pain of discharge. Although Erlacher had admitted-
ly been criticized frequently for engaging other employees
in conversation, according to him, this was the first time he
was warned that violation of these rules would subject him
to discharge. About an hour and a half later, Ewing or-
dered Erlacher to clock out and instructed him to can in
every evening afterward to ascertain whether there would
be work for him the following day.
According to,payroll records, between November 18 and
late February, Erlacher worked sporadically, averaging, 30
hours a week, between the week ending November 22 and
the week ending March 22, 1975. Since February 18, by
arrangement with Johnson, Erlacher has not been required
to call in, and has been working full time at least 40 hours
a week. During Erlacher's layoff status, Johnson was ob-
served making negatives, and Hammell, a stripper, per-
formed some camerawork.
3. Rodney Olguin, was initially hired in 1973 to operate
the Chief 17 press, as well as to work in the bindery. He
resigned in January 1974 and was rehired on September 5,
1974. He attended three or four company preelection meet-
ings and spoke about the profit-sharing plan at one of the
meetings. -He also attended three union preelection meet-
ings, signed an authorization card, and voted in the elec-
tion. He was listed as one of the members of the union
committee on the circular letter to employees, dated No-
vember 20, previously mentioned. On or about December
18, he was elected shop steward, succeeding Sydney Smith,
who left Respondent's employ. -
On November 18, shortly after Olguin arrived at work,
Scott approached him at his work station and apprised him
of the work rules and- company policies, previously de-
scribed. Later that morning, according to Olguin, Scott re-
turned, and engaged him in a second conversation in which
Scott stated that he would not negotiate with the Union
and that Olguin's wages would be reduced rather than in-
creased? Although Scott denied the statements attributed
to him, according to Bentley, a pressman, who was not
directly affected by the layoffs, and was still in
Respondent's employ at the time of the hearing, Scott also
told him on the same day that he would run the shop as he
pleased and would go bankrupt before he would negotiate
with the Union.
Scott acknowledged a conversation with Olguin on the
day in question, in which the subject of wages was dis-
cussed. In his version of the conversation, Olguin asked to
be transferred to a larger press. Scott told him that if he
accepted a job as feeder on a larger press, according to
Scott's understanding of union contracts, Olguin would be
working at a lower wage scale and that, in, any event, the
matter was one,to be resolved by negotiations with the
Union.
When confronted with his prehearing, affidavit to the
Board agent, on December 30;-which makes no mention of
this alleged second conversation, Olguin insisted that he
had related the conversation to the Board agent several
times but that the latter had failed to include the conversa-
tion in the affidavit. Respondent argues that it is unreason-
able to believe that the Board agent would have omitted
such a crucial statement from the affidavit, and that this
warrants the conclusion that the conversation never oc-
curred.8 While the absence from the prehearing affidavit of
any reference to this conversation, cannot be totally ig-
nored, Scott himself admitted a conversation with Olguin
the- same day regarding Olguin's prospects for a wage in-
crease, though he purportedly placed it in the context of
Olguin's request for a transfer to a larger press. Moreover,
Bentley's testimony furnishes at least partial corroboration
7 Olgum testified-
He said, "Do you know that your wages aren't going up-that they are
going down?" I said, "Is this a threat?" And he said, "No, but your
wages aren't going up-they're going down" And -he said, "Do you
think I' ll negotiate with the Union," and I said, "Probably not." And
he said, "Right."
s Respondent sought to subpena the Board agent who took Olguin's pre-
hearing statement , and requested the General Counsel to permit him to
testify. Pursuant to the Board 's Rules and Regulations and - a motion to
quash the subpena, the request was denied.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Olguin's version.9 Scott, however, testified that in his
conversation with Bentley he was merely countering the
implication that, because the Union had won the election,
management was no longer free to conduct its business as
it pleased. He responded that management would continue
to try to run a successful operation and that until the
Union was certified and a collective-bargaining agreement
reached, the Company would run its operation as it had in
the past. On the basis of the foregoing, and upon the entire
record, and based on the appearance and demeanor of the
witnesses involved, it is found that Scott made the state-
ments imputed to him by Olguin and Bentley. It is further
found that Olguin's testimony has not been successfully
impeached by the absence from the prehearing affidavit of
any mention of the conversation in question.
Olguin worked the week ending Friday, November 22.
Although employees had been asked to work on Saturday,
November 23, so that they could have the day off on Fri-
day, as part of the Thanksgiving holiday, Olguin was un-
available for work the preceding Saturday. He worked
Monday and Tuesday of the following week, and on Tues-
day was told that there would be no work for him the next
day. Consequently, Olguin did not work on Wednesday,
Thursday (Thanksgiving Day), and Friday. He worked
Monday and Tuesday of the following week, December 2
and 3. On the latter date, Plant Manager Ewing notified
him that he was being laid off for lack of work and that the
Company intended to use other personnel to operate his
press. He was recalled on December 19 and worked that
day and the following day, and again, on Thursday and
Friday, the 2 days before Chnstmas.10 Since November 18,
according to Respondent, it has recalled Olguin whenever
it has had a full day's work available on the Chief 17 press.
When work of less than an hour or two was required on
this press, which made it impractical to send for Olguin,
Respondent used Douglas Wright or Arthur Earls, both
pressmen, or Dale Stout, a bindery employee, to operate
the Chief 17 press. Furthermore, Respondent maintained,
Olguin could have obtained more work after December 19,
if he had reported when called. The only instance which
Respondent cited, however, occurred on April 2, the sec-
ond day of the hearing in this proceeding, after Olguin had
testified, when Respondent notified him that there was
work for him but he failed to'report until April 7.
Since Olguin's layoff of December 3, Respondent hired
two new pressroom employees, Roger A. Johnson II, Son
of General Manager Johnson, on December 12, 1974, as a
press feeder, and Arthur Earls, a pressman, on January 3,
1975. Respondent contends, however, that Johnson was
9 Bentley testified.
He said, "This is what you people voted for and this is what you'll get "
Q. What if anything did you say?
A. I said, "Well, the union won the election " And he said, "I don't
care, this is my shop, and I'll run it the way I want " " it's my shop,
and I'll do what I want; and I'll go bankrupt before I'll submit to a
union.
10 According to Olguin's payroll record, he worked approximately 15
hours a week in December; 54-1/2 hours for a 2-week period ending Janu-
ary 11, 39-1/4 hours for the 2-week period ending January 25, 23-1/2 hours
for the 2-week period ending February 22, 67-1/2 hours for the 2-week
period ending March 8; and 46 hours for the 2-week period ending March
22.
hired primarily as a feeder on the four-color press, a job
requiring different skills than that of a pressman on the
Chief 17, and paying a wage rate of $3.25 an hour, as com-
pared to $4 for the Chief 17 press. Moreover, according to
Scott, Johnson had demonstrated greater aptitude in train-
ing for work on another press, designated as the Favorite
Press, and he, too, had been sent home on occasions for
lack of work. Payroll records for Johnson and Earls, how-
ever, indicate that both these employees worked full time,
without layoff, earning substantial overtime as well."
In mid-December, Sydney Smith, a shop steward, was
discharged. Several days later, according to Bentley, the
pressman, Scott asked him if he had heard that Olguin was
to become the new shop steward and remarked, "How
would you like that stupid [expletive deleted] Mexican
being your shop steward and determining your salary on a
bargaining committee?" Bentley said that he would have
no objection if Olguin could handle the job. Robert Lesser,
another _pressroom employee, testified that he overheard
Scott make the scurrilous remark about Olguin.
In Scott's version of the episode, it was Bentley who
mentioned to him the rumor that Olgum was to succeed
Smith as shop steward. Scott made a noncommittal re-
mark, and Bentley said that "[i]t would be interesting to
have a stupid Mexican negotiating my wages." Scott de-
nied referring to Olguin in a disparaging manner, although
he testified that Olguin himself frequently referred to his
ethnic origin in a self-deprecatory manner. Bentley denied
that he initiated the conversation concerning Olguin's pos-
sible appointment as shop steward and further denied re-
ferring to Olguin in a derogatory manner.
Based on Lesser's corroboration of Bentley's testimony,
Scott's predilection for attempting to extricate himself
from compromising situations by ascribing to others re-
marks which more logically emanated from him, and the
appearance and demeanor of the witnesses involved, it is
found that Scott did, in fact, make the statement attributed
to him by Bentley, l2
Shortly after Christmas, Ewing asked Bentley whether he
had heard that Olguin was considering leaving. Bentley re-
plied that he had not been aware of it. Soon afterward,
Scott, too, told Bentley that Olguin intended to quit. Bent-
ley repeated what he had told Ewing. Scott remarked cryp-
tically, "Well, I'll show you." Scott denied this conversa-
tion but Olguin was in fact laid off for about a week
thereafter.
On one occasion about this time, when there was no
work on the Chief 17 press, Ewing assigned Olguin to work
with Bentley as feeder on his press. When Scott saw this, he
ordered Olguin to punch out. According to Scott, Bentley
had complained about Olguin's work, referring to him as a
"stupid Mexican." Bentley emphatically denied complain-
"According to Earls' payroll record, he started at $4 an hour and was
receiving $4 75 at the time of the hearing Johnson , who started at $2.50 an
hour, was receiving $3 50 at the time of the hearing
12 Since Scott 's statement has not been alleged to constitute an 8(a)(1)
violation , no such finding is based thereon While the ethnic slur, however
reprehensible , may not in itself violate Sec 8(a)(1), when coupled with an
effort to influence adversely an employee's choice of a member of a negoti-
ating committee , it may well constitute interference , restraint, or coercion
In any event, the evidence has been considered only in determining
Respondent's motivation for its conduct
THE LARIMER PRESS 233
ing to Scott about Olguin, and Lesser, who overheard the
discussion, corroborated Bentley's testimony. For reasons
previously stated, Scotts testimony regarding this episode
is not credited. His attribution to Bentley of the ethnic slur
appears to have been a clumsy attempt to substantiate his
claim that Bentley had used the expression in their earlier
conversation. Scott's asserted reason for removing Olguin
from the feeder job was that he was unwilling to pay a
pressman's wages of $4 an hour to a feeder. On another
occasion during this penod, when Scott discovered that
Ewing had assigned Olguin to the bindery, he relieved 01-
guin of the assignment, and Lesser, the pressroom employ-
ee, completed the job. Apparently, the higher wage differ-
ential in Lesser's case proved no impediment to this
assignment.
Soon after Olguin's initial layoff, Bentley started operat-
ing the Chief 17 press. According to the timesheets, Bent-
ley, as well as Douglas Wright, operated this press fre-
quently during December. After January 3, 1975, when
Arthur Earls, also known as Sam Earls, was hired as a
pressman, he operated the Chief 17 press full time. Accord-
ing to his timesheets, Earls operated the Chief 17 press
from January 28 to February 17, 1975, a period during
which Olguin was offered no work, despite that, according
to Ewing, Earls was to have operated that press only until
Olguin "could get back on."
In addition to his work as a pressman on the Chief 17
press, Olguin, as Respondent was aware, had had previous
experience in operating bindery machines, such as the cut-
ter and folder, comparable to machines operated by Re-
spondent. Olguin had, on occasion, used the cutter to pre-
pare stock for his press. He was also familiar with the
operation of the Macey Multibinder, and had occasionally
operated other presses. Lesser, a press feeder without prior
experience in the job, was trained by the Company and
within a week was able to "wash" the press and in about a
month handle paper. Olguin, the first pressroom employee
to be laid off, had worked substantial amounts of overtime
prior to November 18 but very little since. Bentley, who
had been hired less than a month before Olguin, was never
laid off (until after the hearing in this proceeding), and
worked substantial amounts of overtime.
4. Gonzalo Botello and Rafael Gonzalez: Both men were
hired as strippers by John Stumpf, Ewing's predecessor, for
whom they had worked in Texas. Stumpf had called both
men in Texas and offered them employment with the Com-
pany, assuring them that there would be considerable over-
time. Botello was hired on or about August 19, 1974, at an
hourly rate of $5.75. Some 2 weeks after Botello was hired,
General Manager Johnson informed him that Stumpf was
no longer employed by the Company but that Botello need
have no concern about his job. Botello expressed relief be-
cause he had been hesitating to move his family to Denver
from Texas.
Bottello attended all the company preelection meetings,
as well as several union meetings, and signed a union au-
thorization card. Until November 18 he had worked full
time, as well as overtime.
On the morning of November 18, when Botello reported
for work, Scott instructed him not to punch in. Plant Su-
perintendent Ewing later told Botello that he was being
temporarily laid off for lack of work and, as Botello did not
have a telephone, instructed him to call in each day to
ascertain whether there was work for him. Botello then
spoke to Scott and reminded him that he had been assured
of job security. According to Botello, Scotttold him that he
had brought the situation on himself by voting for the
Union. Botello protested -that he had not voted for the
Union, but Scott remained unconvinced.
In Scott's version of this conversation, Bottello, visibly
upset and on the verge of tears, asked him why he had been
laid off, considering that he had voted against the Union.
Scott told him that he was being laid off for economic
reasons and that the decision had been based on seniority.
Scott denied that Botello had raised any issue of job securi-
ty and further denied stating that Botello had brought his
situation on himself by voting for the Union. Botello, for
his part, denied that he volunteered how he had voted in
the election and also denied that Scott had attributed the
layoff to economic reasons.
Botello remained out of work until November 21. He
worked 16 hours during the week ending November 22; 32
hours the week ending November 29; and the last time on
December 2.13
Botello obtained a telephone in January 1975, but failed
to furnish Respondent with his telephone number, al-
though required to do so in the employees' handbook.
About 4 or 5 days after his original layoff on November 18,
Botello secured other employment, but continued to call
Respondent in the interim. On February 7, 1975, General
Manager Johnson called Botello to offer him work, but
Botello declined the offer, having accepted, other employ-
ment.
As has been noted, Gonzalez, too, was offered employ-
ment by Stumpf while Gonzalez was still residing in Texas.
He reported for work on September 9, only to discover that
Stumpf had been discharged. He was referred to Ewing,
and later spoke to Johnson, who confirmed the hiring ar-
rangements made with Stumpf, except for moving expen-
ses. About mid-October, Gonzalez obtained permission to
return to Texas to move his family to Denver.
As of November 18, Respondent employed four strip-
pers, including Botello and Gonzalez. The other two strip-
pers, Robert Hammell and John Dennis, bad more senior-
ity than either of the others. When Gonzalez reported for
work on the evening shift on November 18, Ewing told him
to return next day on the day shift. Meanwhile, Dennis,
who had tendered his resignation, changed his mind, and
when Gonzalez reported on November 19, Ewing informed
him that Dennis was not leaving and that there was no
work for Gonzalez. Ewing suggested, however, that Gonza-
lez call in each evening to inquire whether work was avail-
able for him. Gonzalez called on November 20 and 21,
without avail. On Friday, November 22, Gonzalez called
Ewing and inquired whether there would be any work for
him the first 3 days of the Thanksgiving week because he
wished to return to Texas to move his family to Denver.
Ewing agreed that Gonzalez might leave for Texas. On his
return to Denver the following week, Gonzalez called Ew-
13 Botello did not work on Thursday (Thanksgiving Day) or Friday, No-
vember 29
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, but was told that there was no work for him. Gonzalez
thereupon requested Ewing to call him if work became
available, and Ewing agreed. Ewing denied that Gonzalez
called him on his return from Texas,- and consequently de-
med that he -had agreed to call Gonzalez, though he admit-
ted that Gonzalez had previously given him his telephone
number. Gonzalez heard nothing further from Respondent
until February, when Johnson notified Gonzalez that there
was work,for him. On February 10, Gonzalez returned to
work. He was still working at the time of the hearing.
On December 18, Dennis, one of the two senior strip-
pers, was terminated. Due- to the heavy workload at this
time, both Johnson and' Ewing performed a substantial
amount of stripping. During this period, the Company also
placed a help-wanted advertisement for a stripper. On Jan-
uary 20, Respondent hired Joseph "Joe" Simone, a previ-
ous part-time stripper to replace Dennis.
Respondent contends that, before hiring Simone, it had
attempted to reach both Botello and Gonzalez, without
success, because both men had failed to keep in touch with
the Company, and it had no means of reaching them. Ac-
cording to Scott, his secretary made an effort to reach both
men in December but there was no telephone listing for
either of them. No effort was made to reach these men by
mail or telegram, Scott testified, because this would have
entailed undue delay. This, however, did not deter Respon-
dent from advertising for a stripper. Scott also asserted that
he personally drove by Botello's last-known address but
found no one there.
According to Botello, he had had a listed telephone
number since January 1975. He had resided at the same
address in Colorado, had received various communications
from the Company, including his W-2 form, in December
1974, the Company's preelection campaign letters, and the
notice confirming his layoff on November 18.
Admittedly, Gonzalez had furnished Ewing with his tele-
phone number, which was also listed in the directory, but
Ewing had misplaced the number and made no effort to
obtain it through directory assistance. Scott's secretary,
who allegedly did make the effort, was, for some unac-
countable reason, unsuccessful. Johnson apparently en-
countered no difficulty in reaching Gonzalez when he de-
cided to recall him in February.
Respondent further contends that it had justifiably con-
cluded, from the fact that it had received an unemploy-
ment compensation form from the Texas Employment
Commission, dated December 10, 1974, that Gonzalez had
returned to Texas. Gonzalez testified, however, that, al-
though his unemployment benefits were forwarded to him
from Texas, his application for unemployment insurance
had been made with the State of Colorado.
In sum, Respondent contends that it was obliged as a
matter of business necessity to lay off two strippers, on
November 18, because of lack of work, and that Botello
and Gonzalez were selected because they had the least se-
niority. Moreover, Respondent argues, the fact that it re-
called both these employees in February, Botello declining
and Gonzalez accepting the offer, should dispel any infer-
ence of unlawful motivation.
5. Douglas Halter, a typesetter by vocation, was hired on
October 31, 1974, to work in the bindery as a Macey Multi-
binder operator, at a starting rate of $4.25 an hour: Halter
had been a member of the International Typographical
Union for 8 or 9 years and had- previously worked iii vari-
ous union shops. Halter was hired on the recommendation
of Bentley, a friend of Halter's, after Bentley had ascer-
tained from Ewing that there was -work available in the
bindery. According to Ewing, he had-told Bentley the work
was temporary. After some discussion, Ewing and Halter
agreed on the hourly wage rate, with the understanding,
according to Halter, that his wage rate would be reviewed
in 2 weeks. Ewing, however, testified that he merely told
Halter that under company policy his wages would be re-
viewed in 3 months. Halter commenced work on the Ma-
cey machine under Dale Stout. -
Late in November or early in December, Halter met
with Scott, Johnson, and Ewing for the first time to review
his wages. Ewing fixed the date as some time in mid-Febru-
ary, although Scott and Johnson agreed with Halter re-
garding the time of the meeting. Halter testified that, in the
discussion, which lasted about 1 hour and 45 minutes,
Scott commented that Halter had worked exclusively in
union shops, and declared, "Let the [expletive deleted]
union get you your raise." When Halter protested that he
was being discriminated against because of his union back-
ground, Scott countered that the Company could not grant
him a raise because it was involved in a union organiza-
tional campaign. In the ensuing discussion about the pros
and cons of unionism, Scott referred to Halter's previous
employer, The Ray Frey Company, where Halter had been
foreman of the composing room. Scott maintained that the
firm had been forced into bankruptcy because it had been
a union shop. Scott further stated that, if the Union were
successful, employees like Bentley would end up losing
money because of union initiation fees and dues and that
Bentley would probably be unable to qualify as a journey-
man pressman.
All three management, officials denied that Scott made
the remark attributed to him by Halter about letting the
Union get him a raise but did not deny Scott's remaining
remarks. Johnson did, however, acknowledge that Scott
stated that if the Union were certified employees would
surrender their individual right to bargain about wage in-
creases.
It is found that Scott did, in fact, make the statements
attributed to him by Halter, which were consistent with
Scott's attitude on unionism as manifested in his state-
ments to employees both before and after the election.
Scott's remarks to Halter on the occasion in question, while
manifesting his displeasure with the efforts at self-organi-
zation of the employees, contained no threat of reprisal or
promise of benefit and, therefore, were not violative of. Sec-
tion 8(a)(1) of the Act.
During this discussion, Scott told Halter that work in the
bindery was slackening and that there was a strong likeli-
hood of a layoff. Halter said that under the circumstances
he assumed Scott would not object to his looking for an-
other job. Scott told him that that was his privilege, but,
considering his limited experience and the existing work-
load, the Company would not grant him a raise.
Some time in December, Halter again brought up the
subject of a raise with Scott. Scott asked him whether he
THE LARIMER PRESS 235
would -be earning $4.25 an hour if the Company were a
union shop. According to Scott, Halter conceded that he
would not and volunteered that he would probably be clas-
sified as either a Bookbinder II or apprentice at $3.85 an
hour or less.-Scott pointed out that by working in a non-
union shop-Halter had been able to start at $4.25 an hour.
Scott concluded by telling Halter that the Company would
consider him for an increase as soon as he was worthy of it.
Later the same month, Halter told-Scott, that he could
not afford to work for $4.25 an hour, that he needed more
money and job security, and that he was-looking for anoth-
er job. Halter told Scott that he had an appointment for an
employment interview that night at another printing estab-
lishment and that he thought he would be hired, Scott
wished him luck but told him that he would expect 2
weeks' notice if Halter took the job. Halter told him that if
he were hired he would be obliged to start work on the new
job immediately. Scott replied that since there was still
some work available for him the Company was entitled to
notice. Halter said that if he could arrange it he would try
to give the Company several days notice unless his pro-
spective employer wanted him to start the- next day. Scott
admittedly told Halter 'that, if he failed to give the-Compa-
ny notice, this would appear on his work record and that
any future employer- would be informed that he had quit
without notice. Halter accused Scott- of trying to "black-
ball" him, and Scott said he was in no position to blackball
anyone, but reiterated what he had said about -Halter's
quitting without notice. When Halter was interviewed for
the job that night, he learned that it was not available and
returned to work for the Company next day.
Several days later, Scott told Halter that the Company
was in a position to procure "a very large Government
contract," -but that it would necessitate the operation of the
Macey machine 24 hours a day for 2 or 3 weeks and asked
Halter whether he would be willing to work the 12-hour
shift, from 6 p.m. to 6 a.m. for the duration of the job.
Otherwise, Scott told Halter, he would be laid off since
there was only 1 or 2 days' work left on the Macey ma-
chme. Halter agreed to work the shift and, later that day,
Scott told him that when the job was completed, he would
receive a 25-cent-an-hour raise. At the end of the 2-week
period, following completion of the Government job on or
about January 11, Halter received the raise.
On January 13, Halter resumed operation of the Macey
machine on the-day shift. Meantime, according to Halter,
the Company had acquired an additional Government
contract and Scott asked him if he would, be willing to
work nights again. Halter declined.
Scott also mentioned that someone had been in the plant
looking for a man with Halter's qualifications, but when
Halter asked him who it was, he refused to reveal his iden-
tity, remarking, according to Halter, "I'm not going to tell
you that now because I'm not through with you yet." Hal-
ter told Scott that in that case he might not come in on
Monday.- -
Halter was laid off on January 30 and told to call in the
following Monday. When he did, he was told not to come
in. He did not call on Tuesday, but when he called the
following day, Wednesday, he was told to report for work
the next day, Thursday, February 6. After reporting that
day, he asked the bookkeeper whether he was still eligible
for group insurance since, except for his layoff, he had
been in the Company's- employ 90 days as of January 29.
The bookkeeper could not answer his question but agreed
to consult the secretary of the corporation.
Next morning, Friday, February 7, Halter was sum-
moned to Ewing's office and told that, as he was aware,
there was not much work. According to Halter, this came
as a complete surprise because when he was recalled on the
night of February 5 and asked Ewing how, long he ,would
be working,-Ewing had said that he could expect to-be
working, in Ewing's words, "[f]or an extended period of
time." -
Johnson told Halter that- he was not eligible for insur-
ance but that he and Scott had discussed transferring him
to the estimating department, where he would be eligible.
Johnson suggested that Halter consider the proposition
over the weekend. Halter said that thatwould not be neces-
sary, that he was eager to transfer to the estimating depart-
ment because it would provide him with an opportunity for
advancement. Johnson told Halter that his starting salary
would be $180 a week, with a salary review at the end of 30
days. - -
On Monday, February 10, Johnson told Halter that
Scott wanted to talk to him personally but, as,he was leav-
ing the city, would interview him on his return about Feb-
ruary 24. The interview was scheduled for February 25 but
Halter was unavailable due to some family medical prob-
lem. When Halter notified Scott about this, Scott, remarked
that if Halter did not "give a damn about the position,"
there was no reason for Scott to be concerned. Nothing
further was mentioned about the interview and, the follow-
ing day, Halter told Johnson that he was available, though
he assumed that he probably had lost the opportunity be-
cause he had been unable to appear for the scheduled in-
terview. Halter asked Johnson about his insurance cover-
age and Johnson agreed,to look into the matter.
On February 28, Johnson informed Halter that as a tem-
porary employee he did not qualify for insurance. Halter
protested that Ewing had not told him at the time of his
employment interview that the job was temporary and that
this was the first time he had heard it. Next morning Halter
asked Ewing whether he had hired him as a temporary
employee. According to Halter, Ewing replied, "No. All I
know is that I hired a Macey operator." Later that day,
Johnson notified Halter of a meeting in Scott's office to
discuss Halter's situation.
On Monday afternoon, March 3, after clocking out, Hal-
ter went to Scott's office, where he met with Scott and
Johnson. Scott told Halter that since he was a temporary
employee, he did not qualify for the insurance, an& that he
was not being considered for the estimator's job because he
did not have enough stripping experience. Halter protested
that he would never have quit a full-time job to accept
temporary employment with the Company, - and com-
plained -that it was unfair to treat him as a ,temporary em-
ployee after 4 months' employment. Scott remarked that
Halter was primarily a typesetter, and that -he would prob-
ably be returning to that trade. Halter agreed but stated
that he had made no effort to obtain that type of employ-
ment. Scott repeated that Halter would probably be facing
a layoff.
Halter worked on March 4 and the morning of March 5.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At or about 2:15 that afternoon, Stout, the bindery lead-
man, told him that there was no further work for him be-
cause the Macey Multi-Binder had been shut down due to
the installation of other equipment. Nothing was said to
Halter about calling in to find out whether there was work
for him. Halter asked Bentley, with whom he drove to
work, to check with Ewing every morning as to whether
there was work for Halter. Halter heard nothing further
from the Company and has not been back to work since.
On the basis of the record thus made, the General Coun-
sel alleges that Respondent denied Halter a raise in No-
vember 1974 and, thereafter late in February 1975,
changed his employment status from that of "indefinite" to
temporary because of his union membership or activities or
because the employees had selected the Union as their ex-
clusive representative.
The preponderance of the credible evidence fails to es-
tablish that at the time Halter was hired, Ewing told him
that he would receive a wage review, much less a wage
increase, after 2 weeks. Nor does the evidence warrant a
finding that Ewing told him that he would be employed
indefinitely. On the contrary, it is more likely, as Ewing
testified, that he told Bentley, who had inquired about the
job for Halter, that the work would be temporary. Halter
assumed that because Ewing did not specifically state that
the job would be temporary he was justified in concluding
that his employment would be of indefinite duration. Even
so, this would not prevent Respondent from terminating
Halter's employment for any reason save that proscribed
by the Act. There is no probative evidence, that Ewing
made any commitment to Halter regarding the duration of
his employment, and it is unlikely that Ewing would have
done so in view of Halter's relative lack of experience as a
bindery employee and the uncertainty of available work in
that department.
As to Scott's remark about letting the Union get him a
raise , while it may indicate the measure of Scott's antipathy
toward unions, it is insufficient to establish that Halter was
denied a raise because of his staunch union adherence.
Moreover, the fact that Scott did, in fact, grant Halter a
raise of 25 cents an hour in January, albeit as a reward for
working the late shift on the Government contract, negates
a discriminatory motive in denying him the raise in No-
vember.
It is found that the allegations with regard to Halter have
not been sustained by the fair preponderance of the evi-
dence.
6. Douglas Wescott: Wescott was hired as a warehouse-
man on October 14, 1974, and worked until November 18,
1974, approximately 5 weeks, when his employment was
terminated. Although not eligible to vote in the election, he
had attended three company preelection meetings. At one
of these, he persistently questioned Scott about the identity
of the owners of the Company and the trustees of the prof-
it-sharing program. Scott revealed that his wife was the sole
stockholder and that he, his wife and Betty Haasis, his
secretary, constituted the board of directors.
- About a week before the election, Douglas Wright, an
estimator, asked Wescott whether he considered Wright,
who had been included in the list of voters, eligible to vote.
Wescott told Wright that he did not consider him eligible.
Scott overheard Wescott and told him that it was none of
his concern since he was not even eligible to vote.
On Saturday, November 2, Wescott attended a union
meeting. The following Monday, Stout, the bindery lead-
man, told Wescott that he had been unable to attend the
union meeting, and asked Wescott what had occurred.
Asked how he knew that Wescott had attended the meet-
ing, Stout changed the subject and left. -
Early in November, in response to a question by Dale
Reiman, the Company's accountant, Wescott told him that
he believed that the Union would win the election by a
slight margin and ventured as one of the reasons that Scott
had been constantly harassing the employees.
On the night of the election, after the balloting had taken
place, Wescott returned to the plant after making his deliv-
eries and asked Paul Talbee, a pressman, the outcome of
the election. Talbee told him the results. The two men were
engaged in conversation, with the press running, when
Scott and Ewing approached them and asked Wescott
whether he was a pressman. Wescott replied that he was
not, and Scott ordered him away from the press. As Wes-
cott started to walk away, Ewing told him to punch out.
The following Monday, November 18, Wescott arrived
at work between 2 and 3 hours late, probably the latest he
had ever come to work. Wescott conceded that he had
been late repeatedly during his 5 weeks of employment but
attributed this to the condition of his car. Ewing had been
indulgent with Wescott to the point of letting him make up
his tardiness by working after hours. On the morning of the
election, however, convinced that he could not be more
punctual, Wescott offered to quit. Ewing tried to dissuade
him, saying that the Company needed him, and even of-
fered to sell Wescott his Volkswagen van if he could ar-
range financing.
On the morning in question, shortly after Wescott
punched in, Scott reproved him for being late, told him he
was fired, and ordered him to punch out. Wescott told
Scott of his alleged understanding with Ewing, but Scott
declared that as employer he had the right to require his
employees to be on time. After Scott left, Wescott re-
marked to Ewing, who had been present but had remained
silent during this conversation, "This wouldn't have hap-
pened had the union lost the election on Friday." Accord-
mg to Wescott, Ewing replied, "Perhaps you're right." Ew-
ing denied that this dialogue took place, and in view of the
self-serving nature, of Wescott's remark and his obvious
attempts to elicit a damaging admission from Ewing, it is
found that Ewing did not agree with Wescott' s assertion.
There is no question of Wescott's habitual tardiness dur-
ing his brief period of employment. According to his time-
cards, out of 23 regular working days and two Saturdays,
he reported punctually at 7:30 a.m. only once, on Thurs-
day, October 17. On 3 regular working days, he was absent
altogether. On 22 days he was tardy, at least an hour on
eight occasions, and more than 4 hours on four occasions.
Although Ewing had permitted him to work after regular
hours to make up his tardiness so that he could attain a
40-hour week, Ewing warned him repeatedly about his
poor attendance, although according to Wescott, he never
THE LARIMER PRESS 237
threatened him with discharge.
According to Ewing, about a week before the election,
Wescott gave him 2-weeks' notice of his intention to quit.
Stout, Wescott's leadman, confirmed that Wescott had told
him, of his intention about the same time. Denying that he
discharged Wescott, Scott testified that he merely told him
that, if he intended to finish out the last week of his notice,
he would have to report on time and that Wescott there-
upon quit and obtained his final paycheck. According to
Stout, Wescott told him before leaving the plant that he
had quit.
It goes without saying that the fact that Wescott may not
have had adequate means of transportation did not excuse
his tardiness. The employees' handbook, which had been
furnished Wescott, contained a statement of policy, of
which Wescott was admittedly aware, that repeated tardi-
ness would furnish ground for dismissal. The fact that Ew-
ing tolerated Wescott's tardiness, and even permitted him
to make up the time, did not constitute condonation or
require Respondent to permit such tardiness indefinitely.
This is especially true since Ewing repeatedly admonished
Wescott about his tardiness and although he never threat-
ened him with discharge, advised him to make other trans-
portation arrangements.
It is unnecessary to decide whether Wescott quit volun-
tarily or whether Scott discharged him. It is clear that
Wescott's separation was a direct result of his habitual tar-
diness, which had furnished ample grounds for his dis-
charge, and the fact that he may have exhibited a militant
prounion attitude, as shown by the incidents previously
related, did not insulate him against discharge for habitual
tardiness.
It is therefore found that Wescott's employment was ter-
minated on November 18 for good cause, unrelated to any
purposes proscribed by the Act.
Analysis of Contentions; Conclusions
1. Respondent's economic defenses
Respondent's basic contention is that its change in poli-
cy of retaining employees during slack periods by provid-
ing make-work tasks was dictated solely by reasons of eco-
nomic expediency, and not as an instrument of retaliation
against its employees for converting Respondent's plant
into a union shop. In support of its position, Respondent
introduced financial data, including profit-and-loss state-
ments, as well as its Federal income tax return for fiscal
year 1973.
Respondent has operated on a fiscal year, ending May
31, since its inception. Since 1967, to and including May
31, 1973,' Respondent had operated at a profit. In the fiscal
year ending May 31, 1974, Respondent sustained a net op-
erating loss of $119,823, for tax purposes, and $51,884, as a
book loss. According to the annual report for the calendar
year ending December 31, 1973, filed-with the secretary of
state, the corporation had realized a gain in net worth of
$66,866. This, however, according to Respondent, did not
represent operating profit but rather capitalization of a
proprietary interest in art work, plates, and other capital
assets, amounting to $90,000.
During 1973, according to Scott, although the Company
was experiencing economic problems, it undertook to ex-
pand its operations. In December 1973, Scott and other
management representatives, including its accountant, met
at the Broadinoor Hotel, in Colorado Springs, to review its
fiscal situation and formulate plans for the future. Despite
the fact that Respondent's sales had declined in December
1973, the Company, nevertheless, continued its policy of
retaining full-time employees in the performance of non-
productive or make-work tasks, in the expectation of in-
creased sales. To this end, the Company decided to in-
crease its sales staff by three employees.
Although no figures were introduced for the period, ac-
cording to Scott, sales for the last 5 months of fiscal year
1974 (January through May) decreased, with the month of
February, the poorest in 3 years.14 Scott conferred with
Thomas Harding, Respondent's accountant, and instructed
him to make recommendations. After analyzing the
Company's financial condition, Harding told Scott that the
Company might be forced into bankruptcy by December
1974 if affirmative action were not undertaken. Harding
concluded that the preparatory department was over-
staffed and operating inefficiently, a substantial cause, ac-
cording to him, of the Company's plight. He, therefore,
recommended- that the Company eliminate the position of
full-time platemaker, then occuped by John Filbert, and
reduce the stripping staff by one or two employees. Har-
ding also recommended that the Company implement ef-
forts to increase sales.
Notwithstanding these recommendations, made soon af-
ter the profit-and-loss statement for the year ended May
31, 1974, became available, Scott took no immediate ac-
tion. His explanation for his inaction was that he did not
wish to move precipitately and that he was still optimistic
that if sales could be increased there would, be no necessity
for reduction in staff. It was not until late October, howev-
er, according to Scott, that he became convinced that affir-
mative action was imperative. Sales for the month of Octo-
ber 1974, amounted to $121,083.46, the highest for any
single month since the Company started doing business.
This compared favorably with sales for the months of
March ($119,394.86) and May ($119,687.48), during each
of which the Company realized a net operating profit in
excess of $4,000., By contrast, on total sales of $121,000
plus, for the month of October, the Company sustained a
net operating loss of over $10,000. Sales for the month of
September 1974, amounting $102,368.67, had resulted in a
loss of $3,783. Sales for July, amounting to $93,579.20, had
resulted in a profit of in excess of $4,000.15 The number of
production employees working at least 20 hours a week
14 Compilations of sales and profit-and- loss statements for the Company
as a whole, as well as for the camera and stripping department, covered only
the period March 1974, through February 1975 During this period, accord-
ing to Respondent, it was obliged to resort to short-term loan financing, for
the first time since its inception. As has already been mentioned earlier, the
net loss for the fiscal year ending May 31, 1974 , amounted to $51,884 ac-
cording to its books. -
15 For the 3 months following reduction in staff, commencing November
18, the corresponding figures were as follows. December,
sales-$103,033 12, net operating profit-$3,676 75, January,
sales-$ 105,363.64, net operating profit-$8,626.55; February,
sales-$66,134.47 (loss-$1,363 31).
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounted to 25 for the week ending August 23; 28 for the
week ending September 20; 32 (the highest number since
the week ending March 27) for the month of October; de-
clining to 24 for the week ending November 22, the period
during which the reduction in force commenced.16
With regard to overstaffing and inefficiency in the pre-
paratory department during the months of October and
November, it is not seriously disputed that production em-
ployees, including Filben, the platemaker, were not fully
occupied every day. This, notwithstanding that Filben
might have been required to work overtime on such days to
complete special projects. The record indicates, however,
that it is not uncommon in the printing industry for em-
ployees in printing shops, such as Respondent's, not to be
fully occupied throughout the day. According to employ-
ees with long experience in the industry, Erlacher, for one,
such nonproductive time is characteristic of.the industry.
Between September and - December 1974, Reiman,
Harding's successor, undertook, on his own initiative, job
studies to determine the amount of nonproductive time
spent,by employees in the preparatory department. In re-
porting the results to Scott, Reiman expressed the opinion
that the department was overstaffed and recommended the
elimination of the position of journeyman platemaker and
reduction in the staff of strippers. Although Erlacher, the
journeyman cameraman, was also laid off temporarily, he
was, as has been seen, later restored to full-time employ-
ment.
In determining the amount of nonproductive time, Rei-
man relied on timesheets prepared by the employees in the
preparatory department. According to his definition, non-
productive time consisted of any time not chargeable to a
specific job. The tasks of filing plates, assisting strippers,
mixing chemicals, and cleaning presses, all essential to
Respondent's general operations, were treated by him as
downtime. Filben, the platemaker, (however, was not re-
quired to keep timesheets but only a record of materials
used, which was noted on the job order.
Based on his analysis of the timesheets, Reiman conclud-
ed that there was a grossly disproportionate amount of
downtime, as high as nearly 50 percent in some instances,
including the case of Olguin, who operated the Chief 17
press. Reiman admitted, however, that he had erroneously
included as nonproductive time work performed by prepa-
ratory department employees, who worked in the bindery
when there was no work in their own department.
According to Reiman, he conducted his studies on a
weekly basis, after making up each payroll, and continued
this until about December 7, furnishing Scott with the re-
16 For the week ending December 27, the number dropped to 19, for the
week ending January 25, 20, and for the week ending February 2, 19 Re-
spondent contends that the peak number of employees in October resulted
from the indiscriminate hiring by John Stumpf, plant superintendent from
August 12 to September 6, and that some of these employees reported for
work after his termination According to a list prepared by the Company,
however, seven of those hired by Stumpf had left by November 18 James
Bentley, hired by Stumpf, is still in Respondent's employ Rafael Gonzalez
and Gonzalo Botello were hired by Stumpf, one of them replacing Richard
Westra, a stripper who left Respondent's employ in July. Olguin, Douglas
Halter, and Douglas Wescott, also alleged to have been discriminated
against, and Mark Thornburgh, were hired in September and October after
Stumpf's termination. --
sults of his studies from time to time. It is noteworthy that
Reiman commenced these studies on his own initiative, ac-
cording to him (about 2 weeks after the filing of the
Union's representation petition), suggesting that the stud-
ies may have been undertaken to establish a predicate for
the reductions in force, which commenced the first work-
ing day after the election.
While'the statistical data introduced by Respondent may
not be conclusive, the evidence is sufficient to warrant a
finding that Respondent's action may have been economi-
cally justified. The issue, however, is whether, in changing
its long-established policy of retaining employees during
slack periods by assigning them to make-work tasks, Re-
spondent was motivated solely by reason of economic ne-
cessity or, in whole or material part, by a purpose to retali-
ate against the employees for electing the Union as their
bargaining agent. -
In resolving this issue, it is appropriate to consider the
background against which Respondent's action was taken.
It should be noted, at the outset, that by its own admission
Respondent had never previously resorted to layoffs or re-
duction in hours of work, even when productive work was
not available. Instead, it kept employees occupied at vari-
ous maintenance and make-work projects.
The employees' handbook, which predated the advent of
the Union, distributed to all employees, recites, "It should
be noted that no one has been laid off in the history of the
Company for lack of work."
This policy was reiterated at a company preelection
meeting by Scott or Johnson and was confirmed by various
employees at the meeting who stated that, during the same
period the year before, they had painted walls and waxed
and sealed floors when there was no regular work for them
to do. On November 7, a week before the election, Scott
distributed a letter to all unit employees, which, while pur-
portedly setting forth their rights to self-determination,
stressed the benefits the Company had provided, including
substantial overtime, a lucrative profit-sharing plan, and
paid hospitalization and insurance, while arguing the ad-
verse effects of strikes and union regimentation. More sig-
nificantly, despite its claim that economic conditions com-
pelled a change in its policy of retaining employees during
slack periods, Respondent wrote:
Your work at the Larimer Press is steady. There has
NEVER been a-layoff in the history of the Compa-
ny-over 7 years! Ask any member of the Union
whether they have been kept on the payroll full time.
When we have been short of work in the plant, rather
than lay off, pressmen have worked in the bindery,
strippers have worked in the bindery, employees from
all departments have been give fill-work-sometimes
painting, etc., so they would receive a full week's pay
at no reduction in their regular pay! The Union will not
permit this! 17
It is undisputed that, as early as December 1973, Re-
spondent was aware of its financial problems. This was
discussed at the management meeting at the Broadmoor
Hotel, when Respondent decided to expand its sales force
in the hope of increasing sales, as well as to eliminate labor
17 It has not been alleged or contended that the letter in its entirety consti-
tutes a violation of Sec 8(a)(1)
THE LARIMER PRESS 239
inefficiencies. Harding was assigned the task of making the
studies with instructions to report to Scott. On February
20, Scott issued a confidential memorandum to General
Manager -Johnson and Plant Superintendent Elder, in
which he expressed the opinion that the Company was
overstaffed in relation -to the volume of work and that the
employees were engaging in too much visiting and incur-
ring excessive nonproductive time. According to Scott, this-
had been a chronic problem.
By March 1974, Scott contended, the Company had "ab-
solutely reached the limit" with regard to nonproductive
time. In July 1974, after the corporate tax return had be-
come available, Scott asked Harding to ,make recommen-
dations. Harding recommended action to increase sales,
eliminate the platemaker's job and the layoff of one strip-
per. Harding also reported overstaffing in the art, press and
bindery departments but made no recommendations with
regard to these departments. Scott took no action on
Harding's recommendations, allegedly because he wanted
to make. "some personal observations." As late as Septem-
ber 17, when the Union filed its representation petition,,
Respondent had taken no action regarding reduction of
staff.
According to Scott, he was still optimistic about the
prospects of increasing sales. Early in November, on ad-
vice of counsel, Scott decided to withhold action while the
election campaign was in progress. Scott testified that a
final decision.to reduce staff was not made until the week
of- November 11, a week before the election. Elsewhere,
Scott testified that the only decision made was that reduc-
tions in staff would be necessary if sales did not increase.
The selection of persons to be laid off was not made until
Friday night, November 15, in a 2-hour meeting, held soon
after the election. On prior advice-of counsel, Scott selected
November-18 as the date for reductions in staff.
Scott testified that the decision to delay action until after
the election was made, upon advice of counsel, to avoid
any charge of unfair labor practices or interference with
the election. No satisfactory explanation has been offered,
however, for Respondent's failure to take action any time
between December 1973, and September 17, 1974, other
than its optimism concerning increased volume of sales.
Such -optimism, in the face of the dire economic circum-
stances which Scott portrayed, appears unrealistic, consid-
ering his evident business acumen.
Moreover, Scott's letter to the employees on November
7, a week before the election, far from giving any hint of
imminent layoffs, reiterates the Company's policy against
layoffs and solicits the allegiance of the employees on that
ground. This statement of position on such a crucial issue
can scarcely be discounted as election propaganda.
This is not to suggest that once an employer has estab-
lished a policy-of -retaining employees during slack periods
by creating make-work tasks, -the employer is permanently
committed to such a policy. Obviously, changed business
conditions may require reconsideration of this policy. But
here, the employer, at a time when it contended that ad-
verse business conditions compelled it to resort to reduc-
tions in force, not only withheld this information from its
employees but shortly before the election, with the obvious
intention of influencing the employees to vote against the
Union, deliberately reiterated a longstanding policy of re-
taining its full complement of employees even during pe-
riods of slack work. This gives rise to the inference either
that Respondent's economic position was not as critical as
it later maintained or that if it was Respondent was content
to continue this' policy-as long as the employees refrained
from selecting the Union as their bargaining agent.
Scott reaffirmed this policy in various discussions -with
individual employees. Thus, Scott told Bentley, before-the
election, that in a ,union shop when work was slack, em-
ployees would- be- laid off in contrast to the situation in
Respondent's plant where, Scott related, that a year earlier,
during the -Christmas period when work was slack,
Respondent's employees` were assigned to painting walls
and- sealing,the floor. On the morning of November 18,
after the election, after- outlining the conditions -under
which employees -would be working, Scott told Bentley,
"This is what you people voted for; and this is what you
will get" In the same conversation, Scott also told Bentley
that, although the Union won the election, he intended to
run the shop in his own way and would "go bankrupt"
before submitting to a union. During the preelection peri-
od, Scott had stated to Filben that if the Union won the
election the Company would have no control over layoffs
and admonished him to "let this govern how you vote."
During this discussion, according to Johnson, who was
present, in discussing the Company's make-work policy,
Scott stated that the Company would prefer to retain em-
ployees of Filben's caliber, performing make-work tasks,
rather than laying them off, whereas if the Union became
bargaining representative, it would be entitled to be con-
sulted regarding layoffs.
Again, on the morning of November 18, when Botello
questioned Scott about the reasons for his layoff, since he
had been led to believe that his job was secure, Scott retort-
ed, "You brought.this upon yourself." "You voted for the
union." Furthermore, on the same morning, Scott ac-
knowledged to Olguin that he probably would not negoti-
ate with the Union. -
The record leaves no doubt that Scott, representing the
policy of the Company, was adamantly opposed to the
unionization of the employees. This was amply demon-
strated in his statements to employees, both at company
preelection meetings, as well as in individual discussions
with the employees both before and "after the election, re-
lated earlier. His remarks to employees after the election
amply demonstrated his chagrin at the results of the elec-
tion. Scott reacted to this almost immediately and, on the
very night of the election, held a meeting of management
representatives at which it was decided to announce reduc-
tion in hours and the call-in requirement, followed by lay-
offs.
Despite Respondent's purported explanation for the de-
lay in instituting the reduction in force, the timing of the
action, the very first working day after the election, can
hardly be accounted as coincidence, considering that Re-
spondent had delayed any action for nearly a year after
discovering its unfavorable financial condition. Rather, the
conclusion is warranted that, whatever its financial condi-
tion for the year preceding the election, Respondent con-
tinued to adhere to its longstanding policy of avoiding lay-
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offs, retaining employees during slack periods, and assign-
ing them to make-work tasks until it became apparent that
the employees had selected the Union as their bargaining
representative.
It is, therefore, found, upon the basis of the foregoing
and upon the entire record, that Respondent changed its
policy of avoiding layoffs by providing make-work tasks,
and resorted to reduction in hours of work, call-in require-
ments, and layoffs, in whole or substantial part, in retalia-
tion against its employees for designating the Union as
their bargaining agent, in disregard of Respondent's exhor-
tations and admonitions.
It is further found that Respondent selected the employ-
ees involved, excepting Halter and Wescott, for discrimina-
tory treatment because of their known union sympathy
and advocacy. It is unnecessary, in order to establish com-
pany knowledge of their union affiliation, to rely on the
Union's letter of November 20, setting forth the names of
the union committee. Apart from the fact that Respondent
denies that Scott was aware of this letter at any time prior
to December 3, Respondent contends that of the six com-
mittee members names in the letter, only three, Filben, Er-
lacher, and Olguin, are alleged to have been the victims of
discrimination. The fact that none of the other three com-
mittee members was affected by Respondent's action does
not establish the absence of discrimination with respect to
the others.18
The record establishes that Respondent was fully aware
of the union sympathies and allegiance of the employees
affected by Respondent's action. Filben candidly advised
Scott when he was hired of his union, affiliation and em-
ployment at various union shops. He was an outspoken
union advocate at management preelection meetings and,
at a meeting the day before the election, took issue with
Scott regarding the Union's pension plan. He was also
asked by Scott to secure current information about the
Union's dues structure, wage scale, and pension plan and
to procure a copy of the Union's bylaws, as well as the
collective-bargaining contract with another printing plant.
More significantly, on Tuesday, November 19, Scott had
accused Filben of attempting to foment a strike and taunt-
ed him with the remark that Filbert's plan had not worked
and that the plant was "still in operation."
Erlacher, the cameraman, was similarly outspoken in fa-
vor of the Union at preelection management meetings, in
which he expressed indifference to the Company's profit-
18 "An employer's failure to discharge all the union adherents does not
necessarily indicate an absence of discriminatory intent as to those he did
discharge." W C. Nabors, d/b/a W C Nabors Company, 89 NLRB 538
(1950), enfd. 196 F.2d 272 (C.A. 5, 1952); Duro Test Corporation, 81 NLRB
976 (1949); Stewart Warner Corporation, 55 NLRB 593 (1944) It is not
necessary, nor is it ordinarily feasible to discharge or fail to recall every
union member or adherent in order to discourage union activities This may
be accomplished by making "an example" of some of the union adherents.
N L R.B. v. Link-Belt Co, 311 U S. 584, 602 (1941), N L R B v. National
Garment Company, 166 F.2d 233, 238 (C.A. 8, 1948), cert. denied 334 U.S.
845; Montgomery Ward & Co v N.L.R.B., 107 F.2d 555, 559 (C A. 7, 1939);
F. W. Woolworth Co v. N.L.R.B., 121 F2d 648, 661-662 (C.A. 2, 1941),
Shedd-Brown Mfg. Co, 102 NLRB 742 (1953) (Supplemental Decision and
Order, 103 NLRB 905 (1953) ), enfd 213 F.2d 163, 174 (CA. 7, 1954);
Broward Marine Inc., 112 NLRB 1443 (1955), fn 1; Santa Fe Drilling Com-
pany, 171 NLRB 161 (1968).
sharing plan, and made negative remarks about the press-
room, which he compared unfavorably to similar plants in
Germany. It is obvious that Scott assumed that Erlacher
was an active union member. Although Erlacher was laid
off for a comparatively short time before he was ultimately
restored to full employment, this was undoubtedly because
Erlacher was the only regular camera operator in the plant,
performing one of the most essential jobs in Respondent's
operation.
As regards Olguin, he, too, like Filben and Erlacher, was
a member of the union committee-and outspoken on behalf
of the Union at preelection management meetings. On the
morning of November 18, Olguin criticized Scott for what
he regarded as changes in working conditions, and remind-
ed Scott that the employees had elected the Union as their
representative, only to be told that Scott would not negoti-
ate with the Union and that instead of going up Olguin's
wages would go down.
It will also be recalled that, about mid-December, in a
conversation with Bentley, Scott, referring to the rumor
that Olguin was to be appointed shop steward, made the
ethnic slur about Olguin and his ability to act as shop stew-
ard and represent Bentley on the bargaining committee.
Furthermore, it is evident, from Scott's conversations with
Olguin of November 18, and Scott's admitted awareness of
the rumor regarding Olguin's appointment as shop stew-
ard, that Scott was aware of Olguin's union sympathies.
While there may be no direct evidence linking Botello
and Gonzalez with the Union, for reasons hereinafter stat-
ed, this does not preclude a finding of discrimination. Nor
does Scott's testimony that Botello allegedly told him that
he had voted against the Union and wanted to know why
he had been laid off establish that Scott did not himself
believe that Botello supported the Union.
Although the General Counsel attempted to establish
that the employees alleged to have been discriminated
against had engaged in specific union activity, this is not
indispensable to a finding of discrimination. Respondent
was not so much concerned with the,individual activities of
the employees involved as with the fact that a majority of
the employees had voted in favor of the Union, and that it
was determined to punish the employees for exercising
their right of self-determination. Its change of policy,
therefore, affected both prounion employees and those
whose union sympathies were unknown, and thus discour-
aged union activities of all employees, union or non-
union. 19
It is, therefore, unnecesary to establish that Respondent
had actual knowledge of the union activities of Botello and
Gonzalez when it engaged in the discrimination against
them.
It is, therefore, found that, by requiring John Filben,
Henry Erlacher, Gonzalo Botello, Rafael Gonzalez, and
Rodney Olguin, on or after November 18, 1974, to clock
out after completing their last job of the day and to call in
daily thereafter for work assignments, and by discharging
said Filben on December 3, 1974, because of their union or
concerted activity to discourage membership in the Union,
Respondent has engaged in unfair labor practices within
19 Cf. L. B. Foster Company, 192 NLRB 319 (1971)
THE LARIMER PRESS 241
the meaning of Section 8(a)(3) of the Act.
It is further found that, by instituting this change of poli-
cy as a means of retaliation against its employees because
of their union or other concerted activities, particularly in
the selection of the Union as their bargaining agent, Re-
spondent has interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section 7,
thereby engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
Apart from the change in working conditions, the com-
plaint, as amended, alleges as a violation of Section 8(a)(1)
of the Act, two statements by Scott. The first is the-state-
ment to Halter that, since he had always worked in union
shops, he should let the Union get him a raise. The second
is the statement to Olguin that Respondent would operate
its business as it pleased even though the Union won the
election. Both statements are too ambiguous to warrant a
finding of interference, restraint, or coercion.
Scott, however, made numerous statements, previously
related, which have not been alleged as violations of Sec-
tion 8(a)(1), but which were fully litigated. In general, it has
been found that Scott made the statements substantially as
attributed to him. It is, therefore, found that by Scott's
statements to employees that wages would be reduced rath-
er than increased'if the Union became bargaining agent;
that Respondent would refuse to bargain with the Union
and would go bankrupt before doing so; by stating to em-
ployees, after the election, that they were in the predica-
ment in which they found themselves because they had
voted for the Union; and by statements in a similar vein,
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act,
thereby violating Section 8(a)(1) of the Act 20
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent has discriminated in
regard to the hire and tenure of employment of John Fil-
20 Respondent has filed 45 proposed findings of fact and 3 proposed con-
clusions of law. Respondent's proposed findings are, with relatively few
exceptions, so prolix, discursive, and argumentative as to render it impracti-
cal to rule on each separately To the extent they are inconsistent with the
findings of fact made herem, they are to be deemed denied. Respondent's
proposed conclusions of law 1 to 4, inclusive, are hereby denied.
ben, Henry Erlacher, Rodney Olguin, Gonzalo Botello,
and Rafael Gonzalez, by reducing their hours of employ-
ment, requiring them to call in on a daily basis to ascertain
whether work was available for them and laying off said
employees, temporarily or permanently, and by discharg-
ing John Filben, on or about December 3, 1974, and there-
after failing and refusing to reinstate him, all because they
had engaged in protected union activity, to discourage
membership in a labor organization in violation of Section
8(a)(3). Erlacher was reinstated to full-time employment on
or about March 22, 1975, and Botello and Gonzalez were
offered reinstatement on or about February 7, 1975; which
Botello refused but Gonzalez accepted. It will, therefore,
not be required that they be offered reinstatement. It will,
however, be recommended that Respondent offer Filben
and Olguin immediate and full reinstatement to their for-
mer positions or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make said Fil-
ben, Erlacher, Olguin, Botello, and Gonzalez whole for any
loss of pay they may have suffered as a result -of discrimi-
nation against them, as shown below, less their net earn-
ings during such period, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). The periods of backpay for which each of said em-
ployees shall be made whole is as follows:
John Filben-from November 18, 1974, to the date of
Respondent's offer of reinstatement; Henry Erlacher-
from November 18, 1974, to March 22, 1975; Rodney 01-
guin-from November 18, 1974, to the date of
Respondent's offer of reinstatement; Gonzalo Botello-
from November 18, 1974, to February 7, 1975, the date of
Respondent's offer of reinstatement which he refused; Ra-
fael Gonzalez-from November 18, 1974, to February 10,
1975, the date of Respondent's offer of reinstatement,
which he accepted.
At the outset of the hearing, while the Company's excep-
tions to the Regional Director's report and recommenda-
tions in the representation proceedings were still pending
before the Board, the Charging Party put Respondent on
notice that it would seek a Gissel remedy, requiring Re-
spondent to bargain with the Union. The unfair labor prac-
tices in which Respondent has engaged, including discrimi-
nation in regard to hire and tenure of employment, and the
coercive statements by Scott to various employees, previ-
ously detailed, constitute unfair labor practices so perva-
sive as to warrant such a remedy. The rationale for holding
that a bargaining order is the appropriate remedy under
such circumstances is that the employer has engaged in
conduct which prevents the holding of a free and fair elec-
tion, and the coercive effect of those unfair labor practices
on the election atmosphere cannot be dissipated by the use
of traditional Board remedies 21 Here, the election has al-
ready been held, the objections and exceptions overruled,
and the Union finally certified as exclusive bargaining rep-
resentative. The Union argues that if, because of the perva-
sive nature of Respondent's unfair labor practices, it would
21 N L.R.B. v. Gissel Packing Co, Inc., 395 U S. 575 (1969).
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been entitled to a bargaining order even if it had lost
the election, a fortiori logic would dictate that a bargaining
order should issue where the Union has, in fact, achieved
Board certification. This result would appear to be a logi-
cal extension of the Gissel holding. The employees ought
not to be subjected to further delay in obtaining represen-
tation by requiring the filing of another unfair labor prac-
tice charge of refusal to bargain in order to vindicate their
rights under the Act. -
It will, therefore, further be recommended that Respon-
dent be required to bargain with the Union as exclusive
representative of the employees in the appropriate unit.
In view of the pervasive nature of Respondent's unfair
labor practices, including discrimination in regard to the
hire and tenure of its employees, manifesting an attitude of
opposition to the purposes of the Act, it will further- be
recommended, to protect the rights of employees generally,
that Respondent be required to cease and desist in any
manner from interfering with, restraining, -or coercing em-
ployees in the exercise of rights guaranteed in the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. M. S. P. Industries , Inc., d/b/a The Larimer Press,
Respondent herein, is , and all times material herein has
been, an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Graphic Arts International Union, Local No. 276,
AFL-CIO, the Union herein, is, and all times material
herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
3. By the various statements and remarks of Scott to
employees during the preelection campaign and after the
election, previously related; by changing its policy of re-
taining employees to perform nonproductive work when
regular work was not available, and requiring them to
clock out on the completion on the job on which they were
working, and calling in to inquire whether work was avail-
able for them; and, by the totality of such conduct, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7,
thereby violating Section 8(a)(1) of the Act. -
4. By discriminating in regard to the hire and tenure of
employment of John Filben, Henry Erlacher, Rodney 01-
guin, Gonzalo Botello, and, Rafael Gonzalez, in the manner
indicated in the Remedy, because they had engaged in pro-
tected union activities, thereby discriminating in regard to
their hire and tenure of employment to discourage mem-
bership in a labor organization, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(3), and has thereby interfered with, restrained, and
coerced employees in the exercise of rights -guaranteed in
Section 7, thereby violating Section 8(a)(1). of the Act..
5. Respondent has not discriminated in regard to the
hire and tenure of -employment of Douglas Halter and
Douglas Wescott to discourage membership in the Union,
in violation of Section 8(a)(3)-of the Act.
6. All production and maintenance employees including
art department employees; excluding all office clerical em-
ployees, salesmen, professional employees, guards and su-
pervisors as defined in the Act, constitute an appropriate
unit for purposes of collective-bargaining within the mean-
ing of Section 9(b) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]