American Printing Co.

National Labor Relations Board - Board Decisions

Oct 2, 1968

173 N.L.R.B. 73 (N.L.R.B. 1968)

AMERICAN PRINTING COMPANY
American Printing Company and International Press-
men and Assistants Union of North America,
AFL-CIO. Case 28-CA-1644
October 2, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On July 9, 1968, Trial Examiner Howard Myers
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and a brief
-in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's
Decision, the exceptions, and the brief, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
73
Printing Company, herein called Respondent, duly filed on
March 11, 1968.
The complaint, based upon a charge duly filed by Inter-
national Pressmen and Assistants Union of North America,
AFL-CIO, herein called the Union, on January 19, 1968,
alleged that Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended from time to time,
herein called the Act.'
Upon the entire record in the case3 and from my
observation of the witnesses, I make the following.
FINDINGS OF FACT
I RESPONDENT'S BUSINESS OPERATIONS
Respondent, an Arizona corporation, at all material times
has maintained and now maintains, its principal offices and
plant at Phoenix, Arizona, where it is engaged in newspaper
publication and the printing business.
During the 12-month period immediately preceding the
issuance of the complaint herein, Respondent, in the conduct
of its newspaper publication, held membership in and/or
subscribed to interstate news services, published nationally
syndicated features, and advertised nationally sold products.
During said 12-month period, Respondent's gross revenues
exceeded $200,000 and its out-of-State purchases of materials
and products used in the course and conduct of its business
amounted to $50,000 in value
Upon the basis of the above undisputed facts, I find, in line
with established Board authority, that Respondent is, and at
all times material was, engaged in commerce or in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act and that its business operations meet the
standards fixed by the Board for the assertion of jurisdiction
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS,Trial Examiner This proceeding, with all
parties represented, came on to be heard at Phoenix, Arizona,
on May 6, 7, and 8, 1968, upon a complaint, dated February
28, 1968, issued by the General Counsel of the National Labor
Relations Board, herein respectively called the General Coun-
sel' and the Board, through the Regional Director for Region
28 (Albuquerque, New Mexico), and the answer of American
173 NLRB No. 17
I This term specifically includes counsel for the General Counsel
appearing at the hearing
2 As to the unfair labor practices , the complaint , as amended at the
hearing, alleged , in substance , that Respondent ( 1) violated Section
8(a)(1) of the Act when (a) on or about January 15, 1968, and
thereafter , through certain named supervisors , by means of certain
stated acts and conduct interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, (b) on or about January 15 , 1968 , it demoted press foreman
William Penrod to a more onerous , less desirable , and more difficult job
because Penrod had testified and had given testimony adverse to
Respondent , on or about January 10 , 1968 , in a Board hearing in Case
28-CA -1565 and (c) on or about January 15 , 1968 , it constructively
discharged Penrod because he testified in the aforementioned Board
hearing, and (2) violated Section 8 (a)(5) by (a) refusing , since January
15, 1968, to bargain with the Union , the statutory collective -bargaining
representative of Respondent's employees in the unit found appropriate
in Case 28-RC-1686, although requested to do so by the Union, and
(b) attempting to induce the unit employees to bargain directly with it
concerning rates of pay , wages, hours of employment and other terms
and conditions of employment -
3 The briefs filed by the General Counsel and by Respondent (in
letter form) on June 3, 1968, have been carefully considered.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership
employees of Respondent.
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Alleged Discrimination
Against William Penrod
Penrod first started to work for Respondent about mid-
August 1963, as a pressman About 6 months later he was
made an assistant to the pressroom foreman and "within the
following year" he was appointed pressroom foreman 4
From about May 24 or 25 to about June 8, 9, or 10, 1967,
Penrod was absent from the plant on vacation Upon his return
to the plant, on or about June 10, Penrod heard some
pressmen under his supervision discussing the advisibility of
having a union represent them. In fact, some of said men asked
him how he "felt" about having a union in the plant After
advising the men that he had belonged to the Pressmen Union,
the Charging Party herein, when he had been employed some
years ago in Marion, Indiana, suggested that the Respondent's
pressmen not be too hasty about bringing a union in the plant,
and then suggested they meet at his home to discuss the
matter, adding, "There will be no union representation there,
we will just talk all over the place before a cup of coffee and
we can't have everybody wanting a different wage or some-
thing like that ...we will just draw up what ...we feel is fair
for the people and the company and work from there "
Penrod, at some undisclosed date, but, in any event, prior
to the men meeting at his home, which meeting is discussed
immediately below, told Evan Mecham,5 Respondent's pres-
ident, "There had been some union talk among the men, that
it wasn't very strong yet. .that [he] knew that just two or
three of the people has had coffee with a union member."
When Mecham inquired whether employee Kautnik was the
instigator of the union movement and also asked what labor
organization was involved, Penrod replied he did not know
who started the union movement, but the labor organization
involved was the Pressmen Union of which he was a member
In June or July, a meeting of Respondent's pressmen, and,
perhaps, some of their coworkers, met at Penrod's home and,
without any labor organization representative being present,
drew up and addressed an undated letter to the National Labor
Relations Board, Evan Mecham, Mr Brown (Respondent's
then general manager), and William Penrod containing pro-
posed increased wage scales and revised working conditions for
Respondent's pressmen, cameramen, and mailroom em-
ployees.6
The letter, referred to immediately above, requesting that
the proposed changes go into effect July 26, 1967, signed by
Penrod and 12 other Respondent employees, was delivered by
Penrod to Edward Brown, Respondent's then general manager
who, after reading it hurriedly, remarked, "the company
would need about ten days to think this over, to come up with
some kind of agreement "
4 As foreman , Penrod vv as a supervisor within the meaning of the
Act
5 Evan Mecham will be referred to herein as Mecham and his
brother, Willard . will be referred to by his full name.
When management failed to meet with its employees or to
reply to the above-referred-to undated letter, as Brown had
promised it would do, the employees "got their cards to
authorize an election " At about the time the employees "got
their cards," Penrod informed Brown, "the Union talk is very
strong now ... if it comes to a vote, it would be 97 per cent"
in favor of union representation
Pursuant to a petition filed by the Union with the Board
(Case 28-RC-1686) seeking to be certified as the statutory
collective-bargaining representative of Respondent's employees
in a certain claimed appropriate unit, an election was held on
or about November 8, 1967, under the auspices of the
Regional Director for Region 28, which election the Union
won. On or about November 22, 1967, the Board certified the
Union as the statutory collective-bargaining representative of
Respondent's pressmen, platemakers, cameramen, and strip-
pers.
Mecham testified, and the undersigned finds, that Re-
spondent's dissatisfaction7 with Penrod came to a head in the
fall of 1967, when it became evident to him that Penrod
"obviously was far more sympathetic with helping the causes
of the employees than he was with the work of American
Printing Company", that Penrod's sympathies in behalf of the
rank-and-file employees became increasingly greater and his
sympathies in behalf of management became increasingly less
as time went on, that throughout the fall months, he came to
the conclusion that as soon as he could find a suitable
pressroom foreman he would relieve Penrod of that job, and
that when Ronald Boyles applied for a job in the latter part of
December, he hired him to replace Penrod
That Respondent had lost its confidence in Penrod's
qualifications as part of management and had expressed its
dissatisfaction prior to the hiring of Boyles is amply illustrated
by the following testimony of Penrod on direct examination
by the General Counsel
Q. Between the time of your original employment and
the 15th of January of 1968, that was the day before you
left your employment, were you ever criticized? Were you
ever criticized by Mr. Mecham about the quality of your
work?
A Well, on different occasions there might be some-
thing as far as color or maybe an ink color wasn't up bright
enough or out of compensation or things of this sort,
pertaining to the press and we may have had words to that
effect
Q. Did he ever criticize you for not being loyal to
management?
A. No, not until-
Q Before the 15th of January, I am sorry
A The only time that I ever had any talk concerning
management or what not, would be I believe, the Friday
before Christmas, 1967. We were standing in the hall
between the pressroom and the front office and Mr
Mecham said that my attitude had changed around there,
and I told him that my attitude had changed, that he had
changed also, and that I also told him that my attitude has
changed but it hasn't affected my work. I'm still putting the
6 The appropriate unit found by the Board in Case 28-RC-1681
consisted of, "All pressmen , platemakers , cameramen and strip-
pers .. "
7 Mecham, as president and principal stockholder of Respondent
was, in fact, its actual managing head
AMERICAN PRINTING COMPANY
newspaper out on schedule and as nearly right as can be
with the condition of the press.
On December 28, 1967, Boyles went to Respondent's plant
and applied for either a pressroom or a cameraroom job. He
was first interviewed, as was Respondent's custom when a new
applicant seeks a job such as Boyles then sought, by Willard
Mecham, Respondent's secretary-treasurer After a short dis-
cussion with Boyles regarding his previous employment and
experience, Willard Mecham decided that Boyles' qualifications
were such as to warrant being interviewed by his brother,
Evan.8 Willard Mecham testified that he thought his brother
would be interested in Boyles because in the various conversa-
tions he and his brother had had previously to Boyles' applying
for a job, they "had concluded that it was imperative that we
make some change in press foreman, we had to have somebody
that was looking out for the interests of our company "
After talking with Boyles for a considerable length of time
and going into great detail regarding Boyles' background,
places where he had worked, and especially what his duties
were at his then job in Gardena, California, Mecham came to
the conclusion that Boyles was the person he wanted to
replace Penrod and so told Boyles.
The December 28, 1967 decision to hire Boyles as Penrod's
replacement was primarily based, as the credited evidence
establishes, on the fact that Boyles (a) had been a pressroom
foreman, (b) had experience as a cameraman, (c) had com-
posing room experience, (d) had handled custom job printing
work, (e) had engaged in public relations work for his then
employer, (f) had experience as a business solicitor, on a
percentage renumeration basis, in Southern California, where
Mecham had been of late attempting to secure printing
business for Respondent
At the conclusion of the aforementioned Boyles-Mecham
December 28 conversation, it was mutually agreed that Boyles
would assume his pressroom foreman duties on or about
January 15, 1968
On January 9 and 10, 1968, a hearing was held in Phoenix,
Arizona, in Case 28-CA-1568, before Trial Examiner Martin
S. Bennett. Penrod testified in that hearing as a General
Counsel witness and gave evidence adverse to his employer, the
Respondent herein, and his testimony was in several instances
in direct conflict with that of Mecham
On January 10, 1968, Boyles and his family moved from
Gardena, California, to Phoenix.
On January 15, Mecham called Penrod at his home and
asked Penrod to come to his office directly upon reporting for
work instead of proceeding to the pressroom Upon reaching
the plant at about 11'30 that morning, Penrod went directly
to Mecham's office and was informed by Mecham that Boyles
was reporting for work about 1 o'clock that afternoon, that
Boyles was going to take over as pressroom foreman; that he
would like Penrod to remain as pressman. Mecham, after
saying that since Penrod would be a pressman, one of the
pressmen then on the job would have to be laid off, asked who
Penrod thought should be selected for layoff. Penrod replied,
to quote from his testimony, "If anyone should go it should be
me because I have more qualifications than some of the other
men."9
Upon leaving Mecham's office, Penrod went into the
8 Such procedure was customary at Respondent 's plant , that is, if an
applicant for a job in the printing end of the business made a favorable
impression upon Willard Mecham he would take or send the applicant to
his brother for further interview.
75
pressroom, told the pressmen that he had been replaced by
Boyles. Although it was Penrod's intention, as expressed to
Mecham during the conversation referred to immediately
above, to remain until the Friday of that week, Penrod
decided, and did, quit at the end of the workday of January
15
Upon the entire record in the case, as epitomized above, I
am convinced, and find, that the allegations of the complaint,
as amended at the hearing, that Penrod was discriminatorily
demoted and then constructively discharged on or about
January 15, 1968, because he had testified in a hearing on
unfair labor practices charges before the Board, in violation of
Section 8(a)(1) of the Act are not supported by substantial
evidence Accordingly, I recommend that the allegations of the
complaint, as amended, with respect to Penrod be dismissed
This finding becomes inescapable when consideration is given
to the undenied and credited testimony of Willard Mecham,
Evan Mecham, and Boyles that Boyles was hired as pressroom
foreman on December 28, 1967, whereas Penrod did not
testify in the Board hearing until about 2 weeks later. It is
true, as the General Counsel has pointed out in his brief and at
the hearing that Mecham had openly expressed his disapproval
of Penrod's testifying against Respondent and that Mecham
had stated to some of the employees that Penrod had lied at
said proceeding, nonetheless, the fact remains that Penrod's
replacement had been selected and hired about 2 weeks before
Penrod testified before Trial Examiner Bennett.
In support of his contention that Mecham was not a
credible witness, the General Counsel, in his brief and at the
hearing, calls attention to the fact that Trial Examiner Bennett
discredited Mecham's testimony and credited Penrod's testi-
mony in certain instances where their testimony conflicted.
Whatever may be said of that observation the fact remains-
despite the ancient maxim falsus in una, falsus in ominbus,
which maxim has been discarded long ago-I find Mecham's
testimony in the instant proceeding to be substantially in
accord with the facts
B The Alleged Refusal to Bargain Collectively
With the Union
As found above, the Union was certified by the Board (Case
28-RC-1686) as the collective-bargaining representative of all
the employees in the appropriate unit on November 22, 1967
About mid-December 1967, the Union forwarded to Re-
spondent a proposed collective-bargaining agreement
Under date of January 2, Mecham wrote the Union
suggesting that a meeting be held on January 17, to discuss the
Union's proposed contract
On January 15, immediately after Penrod had informed the
pressmen that he had been replaced as foreman, that he had
been demoted to a pressman hence one of the pressmen had to
be laid off, the pressmen and Penrod held a meeting at a
nearby lunchroom where they drew up the following docu-
ment which Penrod and the four pressmen present then and
there signed
Mr. Mecham,
We have agreed as a unit not to work tomorrow unless
we can come to an agreement better than the one we are
9 Apparently meaning that he could obtain another job easier than
the other men.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
now under.
We would all like $3 50 per hour which will continue
until our union contract is effective with no less than 40
hours per week
None of the presently employed shall be discharged or
layed-off
Upon returning to the plant one of the pressmen handed the
above quoted document to Boyles, who, in turn, immediately
took it to Mecham
After Mecham had read the document, referred to imme-
diately above, he went into the pressroom and, according to
his credited testimony, the following transpired
Q. (By Mr. Alleyne)i ° Mr. Mecham, you have testified
that the paper which was handed to you by Mr. Boyles was,
or contained proposed wages and hours of work by the
employees Did you thereafter discuss wages and hours of
work with the employees9
A. Yes, I did
Q. During that time did you make a counter proposal
concerning hours and wages9
A. My proposal was that I couldn't meet their demands.
Q And did you propose a demand which in your
opinion you could meet?
A. We had conversations that went back and forth
and-yes, I asked them to let's be a little more reasonable
and work it out, that we could not meet those demands.
Q. Did you propose a reasonable demand?
A. Well, I thought it was reasonable.
Q. Well, first did you propose one? Did you propose a
certain wage?
A. Not a specified program, I told them we could not
meet those, I tried to draw them on, what they would stay
for, I tried to keep them around
Q. Was any Union official present at that time?
A. No, there wasn't
It is thus clear that the foregoing is insufficient to support
the allegation of the complaint, as amended, "Respondent has
attempted to induce employees to, and has bargained directly
with" the unit employees. Accordingly, I recommend that the
above quoted allegation of the complaint, as amended, be
dismissed.
Since no evidence was introduced with respect to the
allegation of the complaint, as amended, "On or about January
15, 1968, and at all times since, the Respondent has refused,
and continues to refuse, to bargain and negotiate with the
Union . . although requested so to do by the Union ... ," I
recommend that said allegation be dismissed.
C. The Alleged Independent 8(a)(1)
Violation
At the conclusion of the taking of the evidence, the General
Counsel moved to further amend the complaint, to include the
allegation, "On or about December 28, 1967, the Employer
interrogated a prospective employee concerning his Union
sympathies and Union membership." The motion was granted.
The only evidence to support this new allegation was the
testimony elicited from Mecham and Boyles regarding what
transpired at Boyles' employment interview on December 28.
It is true that Mecham queried Boyles about his union
affiliations and sympathies during said interview. It is equally
true, however, that Mecham was interviewing Boyles as a
possible supervisor and that Boyles was then and there hired as
such. Under the circumstances, Mecham's questions were not
violative of the Act Accordingly, I recommend that the
allegations of the complaint, as amended, that Respondent
unlawfully interrogated a prospective employee about his
union sympathies and membership be dismissed.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Respondent is engaged in, and during all times material
was engaged in, commerce or in a business affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The allegations of the complaint , as amended, that
Respondent has engaged in, and is engaging in, unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (5) of the Act, have not been sustained by
substantial evidence.
RECOMMENDED ORDER
10 Counsel for the General Counsel
It is recommended that the complaint, as amended, be
dismissed in its entirety.