Eau Claire Press Company

National Labor Relations Board - Board Decisions

Mar 19, 1982

260 N.L.R.B. 1072 (N.L.R.B. 1982)

D ECISIONS OF NATIONAL LABOR REL.ATIONS BOARD
Eau Claire Press Company and General Drivers and
Helpers Union, Local 662, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case
18-CA-6590
March 19, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JI NKINS, AND
ZIMMIRMNAN
On July 2, 1981, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the Charging
Party filed exceptions and a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Eau Claire
Press Company, Eau Claire, Wisconsin, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STAIE-MENT OF IHIE CASF
AL-MIRA ABBOT ST EVENSON, Administrative Law
Judge: This case was heard in Eau Claire, Wisconsin, on
May 1, 1981. The charge was served on the Respondent
on March 3, 1980; the complaint was issued on August
22, 1980, and amended on April 14, 1981. The Respond-
ent duly answered the complaint as amended.
The issues are whether or not the Respondent violated
Section 8(a)(1) of the National Labor Relations Act, as
amended, by interrogating Diane Anger, creating the im-
pression that employees' union activities were under sur-
veillance, and instructing her to stop the Union's organi-
zational campaign before the election was held; and
whether it violated Section 8(a)(3) and (4) of the Act by
discharging Anger because of her union activities and be-
cause she testified at a representation case hearing ' For
' No issue is presented as I, jurisdiction or labor organlizatilon status
Based on the allegations of the amended complaint and admlisilons ill the
answer. I find thal Ihe Resprondent is an emploser engaged in ncommerce
and the Charging Party Union is a labior orgailniatir
260 NLRB No. 148
the reasons given below I conclude that the Respondent
committed only the 8(a)(1) violations.
Upon the entire record, my observation of the demea-
nor of the witnesses, and the briefs submitted by the
General Counsel and the Respondent, I make the follow-
ing:
FINDING S 01 FAC'I ANI) CONCI USIONS Oi LAW
1. 'IIt UNFAIR ISABOR PRACTICIES2
A. Introducrion
The Respondent is engaged at Eau Claire, Wisconsin,
in publishing a daily newspaper. Charles Graaskamp is
general manager. Distribution is the responsibility of
Ralph Long, circulation manager, to whom Paul Kerri-
gan, district manager, reports. I find that they are super-
visors and agents of the Respondent.
On October 22, 1979, the Union filed a petition in Case
18-RC 12449 for an election among the Respondent's
route drivers. On November 7, 1979, a hearing was con-
ducted on the issue of whether or not long haul, motor
route, and relay route drivers are independent contrac-
tors as the Employer contended, or whether they are
employees appropriately includable in the unit with the
local (city) drivers as the Union contended. On
November 23 the Acting Regional Director issued a De-
cision and Direction of Election finding the disputed
classifications to be employees and not independent con-
tractors, and directed an election in an appropriate unit
of all full-time and regular part-time circulation
department drivers, including local, long haul, relay
route, and motor route drivers. The election was held on
December 21; the vote was 10 for and 9 against the
Union with I challenged ballot. The Employer filed ob-
jections to the election. In a Supplemental Decision and
Order issued on February 5. 1980, the Regional Director
sustained the challenge and the objection, set aside the
election, and ordered that a new election be held.:'
Diane Anger was hired by the Respondent in May
1978 as a city (or local) driver and she drove a company-
owned distribution truck until August of that year. In
August 1978, Anger became one of three long-haul driv-
ers delivering bundles of newspapers to carriers, vendors,
and retail outlets outside the city of Eau Claire in their
own vehicles. Her immediate supervisor was District
Manager Paul Kerrigan.
Anger attended the first union organizational meeting
in October 1979 and signed an authorization card. She
was admittedly known by Kerrigan and Long to be an
active advocate of the Union, Long considering her a
yes vote in the coming election. Along with drivers Jef-
frey Soller and Daniel Spanel, she testified for the Union
in the representation case hearing on November 7, 1979.
B. The 8(a)(l) Violations
I. The complaint alleges in effect that, at the beginning
of December 1979, District Manager Paul Kerrigan in-
I txccpt ushere ,crcdihliit is speciicalli discussed. the fals, aire suh-
sltallatll y ulltindisputed
'No fove vic mionll \,i hbe held until final disposittm oif thin proceeding
1072
EAIl CL AIRE PRESS COMPANY
terrogated Diane Anger about her union activities. The
Respondent denies that the conversation was coercive.
In early December. before the election, Anger ap-
proached Kerrigan to protest what she considered to be
a proposed change in her job duties. Anger informed
Kerrigan that the Union told the employees they did not
have to do anything they had not been doing before the
advent of the Union. Kerrigan then asked Anger [what
she expected to get from the Union] if they had one.
Anger mentioned vacation benefits. Kerrigan said there
would be no way to figure vacation pay for employees
like her who are paid on a mileage basis; Anger respond-
ed that he would have to find some way to figure it out;
and Kerrigan commented. "Well, we will just see about
that."4
I find no merit in the Respondent's contention that this
conversation was not coercive. In view of my findings
below, it was not isolated, and the fact that it was Anger
who introduced the Union into the conversation does not
lessen the coerciveness of Kerrigan's remarks. The Board
has recently ruled, with respect to questions such as that
asked here as to what an employee thinks the union
would do for employees or what it would accomplish,
. . .inquiries of this nature constitute probing into
employees' union sentiments which, even when ad-
dressed to employees who have openly declared
their union adherence, reasonably tend to coerce
employees in the exercise of their Section 7 rights.
We have further found such probing to be coercive
even in the absence of threats of reprisals or prom-
ises of benefits. The type of questioning at issue
conveys an employer's displeasure with employees'
union activity and thereby discourages such activity
in the future. The coercive impact of these ques-
tions is not diminished by the employees' open
union support or by the absence of attendant
threats. 5
I therefore find that District Manager Paul Kerrigan
coercively interrogated Diane Anger about her union ac-
tivities and I conclude that the Respondent thereby vio-
lated Section 8(a)(1) as alleged in the complaint.
2. The complaint alleges in effect and the answer
denies that on December 17, 1979, Circulation Manager
Ralph Long interrogated Diane Anger, created the im-
pression that employees' union activities were under sur-
veillance, and instructed Anger to stop the Union's orga-
nizational campaign before the election was held.
According to Diane Anger's credited testimony, on
December 17, 4 days before the election, Circulation
Manager Long called Anger into his office where Dis-
trict Manager Kerrigan was also present and said he
wanted to talk to her "about the election or the vote that
was going to be held Friday." The ensuing conversation
was in part as follows:
4 Based on all a lllgamlliIln ofr Ihel .i-k rnll gicns e h Alnger ;lild Ker
rigan which do not ; iars ulh'lllhaillla .slh re.gard to this, i e, ;nrlmd the
pronbabilties in ligh t of the x h lct leord
PP(; Induiriro, In I, tmig, io Pl/ac I hr (,!a, O),mtvo . 25l NI RH
1146. 1 147 ( IJ80))
Mr. Long said to me, "I know you're the one
behind this, who started this, and you can stop it
before the election goes through." I told him that,
"No, I am behind it 100 per cent." Mr. Long then
said, "Well, O.K., what do you expect to get; what
has the union promised you?" I said, "Well, they
haven't promised me anything. All they have done
is told me can [sic] and cannot do."
Then Mr. Long said, "Well, just what do you
want?" And I said, "Well, I would like to get a few
vacation benefits and sick pay if I'm sick." And Mr.
Long then said, "Well, if you would have come to
me sooner with this, maybe I could have done
something about it."
The interview ended with Long's telling Anger, "Well,
as far as I'm concerned the negotiations will never go
through," and Anger's responding, "Well, we will just
wait and see how Friday turns out."6
I agree with the Respondent that by her own account,
set forth in part above, Anger does not seem to have
been intimidated by these remarks of Long's. But, as the
General Counsel points out, that is not relevant. The
Board, citing Hanes Hosiery, Inc., 219 NLRB 338 (1975),
recently' reiterated,
We long have recognized that the test of interfer-
ence, restraint, and coercion under Section 8(a)(1)
of the Act does not turn on Respondent's motive,
courtesy, or gentleness, or on whether the coercion
succeeded or failed. The test is whether Respondent
has engaged in conduct which reasonably tends to
interfere with the free exercise of employee rights
under the Act. 7
And the Board has held that remarks of the kind made
here have such a tendency.
Accordingly, I conclude that the Respondent violated
Section 8(a)(1) in this interview by Circulation Manager
Long's coercive interrogation of Diane Anger, asking
her what she expected to get from the Union and what
the Union had promised her;8 creation of the impression
that employees' union activities were under surveillance,
telling her he knew she was the one behind the Union
who started the union activity;9 and suggestion that she
stop the union activity before the election was held. t'
3. The complaint alleges in effect, and the answer
denies, that on January 18, 1980, Circulation Manager
Long threatened Diane Anger with severe disciplinary
action if she continued to talk about the Union.
.Circulation Manager Long admitted calling Anger in for a talk about
the Unionl in )December 17 and agreed in part Pith her version of the
discussion Where his account \aried from hers he seemed unsure of him-
self and s.as theretore unconsincing. and I cannot credit him in those re-
spectl Kerrigan. llhouhgh present. could not remember 'shat vas, said at
(tite ilner"i1ek
7 .orrio (Cnmcrc, l (ompptnr io longl/ ,, Inc . 249 N.RB 127(), 1274
P Rf( Inldtwrlt, . It, I mxlxlmton Plant. itbe'r (f1as I)Dvimin .upra
S irrol InwtOlgzilatil ( Corp , 24q NT RiH i26h. 1I ( I1())
"' See
t
agn,elmt,, (Ci.t nk ( rtipuarii Ir, . 25() NliRH 92 (198I);
Or' a' S.i /,' I -pl rcct", -1 'o ... i, 242 Ni RH 76 ]h )
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawrence Gorton is a city driver with additional
duties in the circulation department. Don Milner is a
nonsupervisory, nonunit employee in the circulation
department who is considered "the second man in the
mailroom under [the] mailroom foreman." After the elec-
tion Gorton informed Diane Anger, in the mailroom,
that Milner had told him his additional duties in the cir-
culation department were to be taken away "because of
the union." Anger responded that Milner was not Gor-
ton's boss and he did not have to take orders from
Milner; that the Union had said the Employer "couldn't
change jobs like that"; and that Gorton should continue
the same work until his boss told him otherwise.
The gist of this conversation was reported to Long by
an employee who overheard it. Long then asked Gorton
if he and Anger had "talked about the union on company
property," and informed Gorton it was his obligation to
obey Milner's instructions. On January 18, 1980, Long
sought out Anger and informed her she had no right to
interfere between Gorton and Milner. Anger started to
explain what the Union had told the employees about job
changes when Long interrupted with, "I don't care what
the union said." Anger protested that neither she nor
Gorton was working at the time of their conversation,
but Long stated,
I don't care. As long as you are in this building and
on these grounds, you will not say anything to
anyone about the union again or I will take action
against you. "
It has long been recognized that employees have the
right, under Section 7 of the Act, to engage in union ac-
tivity and discussion on their employer's premises during
nonworking time, 2 and that a threat of discipline for en-
gaging in such protected activity on the premises with-
out regard to working or nonworking time is a violation
of Section 8(a)(1). 13
I do not agree with the Respondent's contention that
Long's remarks to Anger should not be considered a
threat because his main concern was Anger's interference
in circulation department work procedures. Clearly it
was talking about the Union on the Employer's premises
which would result in Long's "tak[ing] action against"
Anger. I find that Long's statement to Anger quoted
above constituted a threat, and I conclude that the Re-
spondent thereby violated Section 8(a)(1) of the Act.
C. Alleged 8(a)(3) and (4) Violation
The complaint alleges that the Respondent discharged
Diane Anger on February 21, 1980, because she support-
ed the Union and because she testified at the representa-
tion case hearing. The Respondent contends she was dis-
charged because she failed to provide a substitute driver
for an indefinite leave of absence caused by an on-the-job
injury.
" Based on Ihe corrhoborative testimony of Gorton and Anger, and ad-
missions against interest in I ong's pretrial affidavit u hich he acknowl-
edged but attempted to avoid on the uitnress stand
BRe-publ/h .viualion Corporauron sv .\ R B. 324 U S 793 (19451
1 ( arolina (Canurvr Inc, 213 N RB 37, 42 (1974): Gred, I;;undrwe,
Inc.. 205 N.RB 39, 4h ( 1973)
Two weeks or so beforehand, Anger injured her back
unloading bundles of newspapers on her route and was
unable to work from February 7 to February 13, 1980.
Anger procured her own substitutes, her husband taking
her route for part of that time, and George Myers, who
had retired from the same route, taking it for the rest of
the time. On February 8, Anger telephoned Circulation
Manager Long and asked him if he would pay Myers di-
rectly for his work instead of paying Anger and leaving
it up to her to pay Myers. Long refused.
On Wednesday, February 20, 1980, Anger's last day of
employment by the Respondent, she injured her back at
work again. She finished her route, returned home, and
telephoned a physician who advised her to take pills,
apply heat, and stay in bed. At her request, her husband,
Terry Anger, called District Manager Kerrigan and and
told him that Anger had injured her back and her physi-
cian had stated she would be unable to work for an in-
definite period of time. Kerrigan asked Terry Anger if he
would be taking the route; he replied he would not be-
cause he was scheduled to attend school at that time of
day. Kerrigan asked if George Myers would be taking
the route; Terry Anger replied no, Myers was going on
vacation. Kerrigan then asked who would be taking the
route and Terry Anger said that would be Kerrigan's re-
sponsibility. Kerrigan stated it was Diane Anger's re-
sponsibility, and Terry Anger said it was his wife's route
and he was just passing information along from her. Ker-
rigan then said, "I'll take it from there."
Kerrigan went to his office and typed up the following
note for Long:
Terry Anger just called me and said that Diane just
re-hurt her back and would not be able to do the
route for an indefinite period. He said he had school
and would not be able to do it either.
The next morning, Thursday, February 21, Long and
Kerrigan discussed the matter and, after reviewing
Anger's testimony at the representation case hearing to
satisfy himself that Anger was aware of her obligation to
provide a substitute, Long decided that Anger had given
up her route. Long directed Kerrigan to advertise the
route as soon as possible, but shortly thereafter recalled
that James Luginbill, a motor route driver making deliv-
eries in the city, had expressed interest in obtaining a
long haul route. Long offered Luginbill Anger's route,
telling him Anger had quit, and Luginbill accepted the
job on February 23.
On Friday, February 22, Anger saw the advertisement
of her route in the newspaper, and unsuccessfully at-
tempted to reach Kerrigan by telephone at the office
twice that afternoon. At 6 p.m. she called his home and
left a message with his wife to have him call her. On
Saturday she called Kerrigan's home again but his wife
said he could not come to the telephone and that Anger
should call on Monday. Anger replied "to either have
him call or the next person he would talk to would be
my lawyer" because "they are advertising for my route
and I didn't quit."
On Monday, February 25, Anger went to Long's
office and presented him with a note from her physician
1074
EAU CLAIRE PRESS COMPANY
stating, "Not able to return to work as of back pain,"
telling him she had not quit. Long informed her it had
been her responsibility to provide a substitute in her ab-
sence and her failure to do so indicated she had aban-
doned her route. He took out a copy of the transcript of
the representation case proceeding and read her testimo-
ny and told her it established that she knew she had to
provide her own substitute. Anger responded that her
testimony applied only to breakdowns and not to inju-
ries. Long asked what Anger expected the Company to
do when it had a truckload of newspapers to go out
every day and she failed to show up or provide a re-
placement to deliver them. Anger in turn asked Long
what he expected her to do, as she was injured and
unable to work.
A month later, on March 25, Anger visited the plant
again and finding Kerrigan absent, left another note by
her physician dated March 24 to the following effect:
Diane Anger may return to work as of tomorrow,
however she should not do heavy lifting (over
25#). "
In my opinion the following facts establish for the
General Counsel a prima facie case that antiunion consid-
erations were a motivating factor in Anger's discharge:
(1) Anger was an active advocate of the Union. (2) Man-
agement was aware of her union activity and considered
her a yes vote. (3) Management coercively interrogated
Anger on two separate occasions by asking her what she
expected to gain from a union victory. (4) Management
informed Anger it held her responsible for the advent of
the Union and suggested that she put a stop to it, a sug-
gestion which she rejected affirming instead her loyalty
to the union cause. (5) Management threatened Anger
with disciplinary action if she continued to discuss the
Union on company premises. (6) The record also shows
that Circulation Manager Long revealed his resentment
toward Anger, after she reported his threat of disciplin-
ary action to the Union's vice president who protested to
the Respondent's attorney, by refusing on one occasion
to talk to her because "every time he did he heard back
from it." (7) The discharge occurred after the election
had been set aside and while a new election was pending.
This evidence demonstrates the Respondent's union
animus and its hostility toward Anger for her protected
conduct in supporting the Union's cause, and the timing
of the discharge suggests a causal relationship between
the two. S
" These facts are based on an amalgamation of the testimon, of the
witnesses to these events Where accounts differ, I have considered rela-
tive candor and recall, corroboration, and the probabilities Although
Long testified that drivers consitstently carry loads heavier than 25
pounds. the Respondent does not rely on Anger's inability tlo do s a s s
reason for her discharge
,' I find that the record fails to support the General Counsel's conten-
tion that Anger's testimony at the representation case hearing played a
part in the Respondent's decision to discharge her Although the Acting
Regional Directorr relied to some extent on Anger's testimons in finding.
contrary to the Respondent's contention in that proceeding. that long
haul drivers are employees and not independent contractors. (lrculatlio
Manager Long testified that her testimony did not differ subs;iantialls
from his. and there is no eidencoe iionltrar tI t his In the record and no
indication that any member of m;lriagenetlIl referred tr her ltestinmon ill
any derogatory maniner In these clrcumstlalces. I credit l ong that he felt
The General Counsel further contends that the Re-
spondent had no policy of requiring long-haul drivers to
provide their own substitutes when unable to work be-
cause of on-the-job injuries and, presumably, that the
reason advanced by the Respondent for its discharge of
Anger was therefore a pretext.
The evidence establishes that the Respondent has
never published to its drivers any rule with respect to
providing substitutes. All witnesses agreed, however,
that it is the Respondent's policy and practice to provide
substitutes when its city drivers, who operate trucks
owned by the Respondent, are absent for any reason.
Three management witnesses, General Manager Charles
Graaskamp, Circulation Manager Long, and District
Manager Kerrigan, testified that it has been company
policy for many years'6 to require all drivers who drive
their own trucks, including long-haul drivers such as
Diane Anger, to provide their own substitutes whenever
they cannot work their routes for any reason. 17 Long ex-
plained that part and parcel of this basic policy is the
concomitant policy of paying long haul drivers for trips
made by their substitutes, the Respondent taking no part
in paying substitutes, leaving their pay to be arranged be-
tween the substitute and the driver. Diane Anger ad-
mitted that this "might have been the custom" at Eau
Claire Press.
Anger testified that, when she changed from city
driver to long-haul driver, no one in management told
her there was any difference between the two jobs with
regard to substitutes, and there is no evidence to the con-
trary. However, she admitted that since becoming a
long-haul driver in 1978 she has procured her own sub-
stitutes whenever she could not take her route because of
breakdowns or illnesses, using as replacements her hus-
band and George Myers; and that the Respondent paid
her on all those occasions and she paid her replacements.
As found above, she obtained the same substitutes to
cover her absence because of the same kind of on-the-job
injury only a week or two before her discharge, and
Long refused her request to pay Myers directly.
Anger also admitted that she knew it was her obliga-
tion to provide her own replacement in case of a break-
down. She asserted, however, that this policy did not
apply if she was injured on the job. She formed this im-
pression, she said, because management provided a re-
placement for motor route driver Jeffrey Soller when he
missed 3 months' work in 1976 because he broke his
neck in a motorcycle accident. Long and Kerrigan had
no knowledge of the incident, which occurred before
their, and Anger's, employment by the Respondent.
Long conceded he had arranged for substitutes on two
occasions-once for Soller when he was too ill to drive
she testified accuralely arid that neither he nor General Manager (raas-
kamp harbored an, resentment against Anger because of her prior tesl-
mon, I recommend that the (la)(4) allegation he dismissed
"' (iraaskanip lestified this policy has been in effect since 1970 L ong
and Kerrigan testified the polic.y was in effect since before they were
hired by the Respondent in 1978 and 1977, respectliely
t7 Kerrigan Itstified that his predecessor, District Manager Ramsdell,
told him that in a dire emergency he could pros'ide long-haul drivers
sonme names of polssible suhstitules thes could contacl It is clear. howev-
er. that Anger did not niake such a request
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to obtain a replacement in 1978 (Soller placed the oc-
casion in 1979), and once for long-haul driver Wayne
Gullickson when his vehicle was severely damaged in a
blizzard. Long distinguished those occasions on the
ground that only I day's absence was involved in each of
them, whereas Anger's absence was for an indefinite
period of time. Anger apparently was unaware of those
incidents.
Anger's relevant testimony at the representation case
proceeding was as follows:
Q. Isn't it a fact that for health reasons, recently,
you had to take a week off?
A. Yes.
Q. Isn't it also a fact that you got your own sub-
stitute and during that week you were paid and you
had made your own arrangements to pay the sub?
A. Yes.
Q. If you had a breakdown on your route who
would you call to rectify the problem?
A. Probably my father.
Q. So you would have to make arrangements for
the deliveries of the paper then?
A. Yes.
Q. When you have been absent other times has
there ever been an instance when the company has
obtained a substitute for you?
A. When I was driving the company truck there
was.
Q. The company provided a substitute for you?
A. Yes. My district manager took a run for me.
Q.... If you were driving a company truck
today, in answer to the question that the Examiner
asked you, what would you do and who would you
call in the event of a breakdown? You would prob-
ably call the company, rather than your father,
wouldn't you?
A. Yes, I would.
Q .... If you could not contact your father
what would you, then, do?
A. Then I would have to call the company, call
my manager.
Q. Have you ever done so, had occasion to do
so?
A. No, I never have.
Anger declared to Long on February 25, and at this
hearing, that she did not refer to job injuries in her rep-
resentation case testimony, but the above excerpt shows
that she did refer to her recent absence "for health rea-
sons" which was in fact due to an on-the-job injury.
I find that the above evidence preponderates in favor
of the Respondent's policy contention. Although such a
policy was never published in writing to the employees,
Anger conceded that such practice was followed by the
Company, and by herself up until February 20. More-
over, her testimony at the representation case hearing
conformed with the existence of such a policy, as did
Long's refusal of her February 8 request that he pay her
replacement directly. Anger's attempts to establish that
any such policy applied only to breakdowns and not to
on-the-job injuries was unconvincing. Thus, she said she
was never told the policies were different for long haul
drivers and city drivers, and yet she conceded she knew
they were different with respect to obtaining substitutes
for breakdowns. And the 3-month replacement of Soller
had occurred 4 years before her discharge before she,
Long, or Kerrigan had been hired, and was not, in any
event, due to an on-the-job injury. I noted also that the
Acting Regional Director, in his Decision and Direction
of Election of November 23, 1979, based on the hearing
at which Anger testified, found that,
. . . if long haul drivers cannot perform their own
deliveries, they must provide substitutes, who are
paid under arrangements made between the driver
and the substitutes. These substitutes are chosen by
the driver, with the Employer's only requirement
being that they be safe drivers.
As, therefore, the purported policy advanced by the
Respondent did in fact exist and as the record shows that
the Respondent did in fact rely on the policy in effecting
Anger's discharge, I find that it was not a pretext. As I
have found that Anger's protected conduct was a moti-
vating factor in her discharge, this, then, is what the
Board refers to as a "mixed motive" discharge, and it is
the Respondent's burden to show that it would have dis-
charged Anger even in the absence of any protected
conduct. 18
There is no doubt that Anger failed to supply her own
replacement as required by the rule. Moreover, although
Kerrigan refused to return Anger's calls and no one in
management attempted in the usual sense to obtain her
views before the discharge decision was made, Kerrigan
expressed concern to Anger's husband (and agent for this
purpose) over who would make her deliveries and did
inform him it was Anger's responsibility to provide her
own substitute, only to meet with indifference and
denial. Thereafter, when Anger's views were made
known to Long, they consisted of another attempt to
avoid responsibility for providing her own replacement
contrary to management's reasonable interpretation of
her previous testimony and her own practice, that she
knew it was her responsibility, and a protest that she had
not quit, contrary to management's reasonable view that
absence for an indefinite period without a substitute was
tantamount to abandonment of the route.
I do not think that management's haste in permanently
replacing Anger is significant in circumstances where, as
Long explained, "we had a truckload of papers to go out
a4 1rright lI.n. a Divio)n oyj ,right Line. Inc., 251 NLRH 1083 (1980).
1076
EAt' CI AIRI I'RESS COMPANY
every day and she had no substitute to deliver them."
Nor can I agree with the General Counsel that the Re-
spondent treated Anger in a disparate manner. Only two
exceptions to the rule, other than the old one discussed
above, were shown, and management's replacement of
drivers for 1 day on each of those occasions is not com-
parable to replacing or finding a replacement to cover a
long-haul route for an indefinite period of time. a factor
which Kerrigan stressed in his note to Long written im-
mediately after his conversation with Anger's husband.
In all the circumstances, therefore, including Anger's
failure to supply a substitute for an indefinitely long ab-
sence, her husband's indifference and denial of Kerri-
gan's forewarning, the lack of substance in her protests,
the reasonableness of the Respondent's haste in replacing
Anger, and the absence of disparate treatment, I find that
as testified to by Circulation Manager Long and cor-
roborated by District Manager Kerrigan the Respondent
would have discharged Anger for being absent an indefi-
nite period of time w ithout providing a replacement to
deliver newspapers on her route, even if she had not en-
gaged in union activity. Accordingly, I conclude that the
8(a)(3) allegation should be dismissed " '
Timi Ri MI )DY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommend that it be or-
dered to cease and desist therefrom and from any like or
related unfair labor practices. I also recommend that the
Respondent be ordered to take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 20
The Respondent, Eau Claire Press Company, Eau
Claire, Wisconsin, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees about their
union activities; conveying the impression that employ-
ees' union activities are under surveillance; suggesting
that employees stop the union activity before an election
is held; or threatening employees with disciplinary action
if they discuss the Union on company premises.
'9 Peavte Companpyv . .L.1R.B.. 648 F 2d 40) (7th Cir 1981)
:o In the esveit no exceptions are filed a' pros ided h) Sec 102 4h ,of
the Rules and Regulations of the National l.abor Relaturits Board, the
findings. conclusions, arid reonmmended Order herein shall, as prosxided
in Sec 102 48 of the Rules and Regulalions. he adopted hy the Hoard and
become its findings, conclusions, and Order. and all ibhlcltions thereto
shall he deemed waised flr all purpuose
(b) In any like or related manner interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed by Section 7 of the National Labor Relations
Act,
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Eau Claire, Wisconsin, place of business
copies of tile attached notice. 2' Copies of said notice, on
forms provided by the Regional Director for Region 18.
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
1' IS FURiHE R ORDLRFI) that all violations alleged in
the complaint hut not specifically found herein be dis-
missed.
:' In the cc nt thlt I[its Order is elnforced h , a Judgment of a !United
Stal es Coulrt a-1' Appeals. the ',words in the nlotice reading "'Posted h'
Order it the Na;l, onal I abhor Relations HBoard" shall read "'Posted IPuru-
al3t ti ;I Judgmn'lllt of the United States (lourt of Appeals tnfircling an
)Order of the National I abor Relatiins HBoard
APPENDIX
NorilCt To EMPI.OYEI:FS
POSTFl) BY ORDFR 01' TtHI
NAiIONAI LABOR Ri I ATIONS BOARD
An Agency of the United States Government
Wi WtlL NOT coercively interrogate employees
about their union activities; convey the impression
that employees' union activities are under surveil-
lance; suggest that employees stop the union activi-
ty before an election is held; or threaten employees
with disciplinary action if they discuss the Union on
company premises.
WE wil I NOT in any like or related manner in-
terfere with, coerce, or restrain employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act.
EA\U Cl AIRt PREISS COMPANY
1077