Arrow Press

National Labor Relations Board - Board Decisions

Jan 12, 1959

122 N.L.R.B. 890 (N.L.R.B. 1959)

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The names of all employees whose ballots were challenged were
included on the list submitted by the Employer and checked and
approved by both the Intervenor and the Petitioner prior to the
election. We agree with the conclusion of the Regional Director,
therefore, that the parties were in agreement that the challenged
individuals were eligible to vote, except for the contentions dis-
cussed above, which we have found to be without merit. Under
these circumstances, we adopt the Regional Director's recommenda-
tion that the challenges be overruled, and we shall direct that the
ballots be opened and counted.
[The Board directed that the Regional Director for the Fourteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the 31 challenged ballots, and serve upon the parties
a supplemental tally of ballots.]
Charles J. Kaye , Saima Kaye , David J. Kaye, and Joan K.
Engberg, d/b/a Arrow Press and Local 7, Amalgamated
Lithographers of America , Charging Party. Case No. 13-CA-
2771. January 12, 1959,
DECISION AND ORDER
On October 6, 1958, Trial Examiner Samuel Ross issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with a supporting
brief.
Pursuant to the provisions of-Section 3(b) of the National Labor
Relations act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Leedom
and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
122 NLRB No. 101.
ARROW PRESS 891
Relations hereby orders that Charles J. Kaye, Saima Kaye, David
J. Kaye, and Joan K. Engberg, d/b/a Arrow Press, Milwaukee,
Wisconsin, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of
Local 7, Amalgamated Lithographers of America, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees, or in any other manner discrimiating in regard
to' their hire or tenure of employment, or any term or condition of
employment.
(b) Prohibiting employees from distributing union cards or litera-
ture on company property during nonworking hours, absent a rule
which is promulgated for legitimate business considerations and
which does not constitute an unreasonable impediment to the em-
ployees' right of self-organization in violation of Section 8(a) (1)
of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Local 7, Amalgamated
Lithographers of America, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from en-
gaging in such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8(a)
(3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Donald J. Hentz, immediate and full reinstatement
to his former or to a substantially equivalent position without preju-
dice to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a result of
the discrimination against him, as provided in the section of the
Intermediate Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payments, timecards, personnel records and reports, and all
records necessary to analyze the amount of back pay due under terms
of this Order.
(c) Post at its plant at Milwaukee, Wisconsin, copies of the notice
attached hereto marked "Appendix A.7' Copies of said notice, to be
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision.and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing-an Order."
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced-
or covered 'by any other material.
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what
steps it' has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in, or activities on behalf
of. Local 7, Amalgamated Lithographers of America, or any
other labor organization, by discharging or refusing to reinstate
any of our employees or in any other manner discriminating
against our employees in regard to their hire or tenure of em-
ployment, or any term or condition of employment.
WE WILL NOT prohibit any of our employees from distributing
union cards or literature on our property during nonworking
hours, absent a rule which is promulgated for legitimate business
considerations and which does not constitute an unreasonable
impediment to the employees' right of self-organization in vio-
lation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist Local 7,
Amalgamated Lithographers of America, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except
to the extent that such right 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.
WE WILL offer to Donald J. Hentz, immediate and full
reinstatement to his former or a substantially equivalent posi-
tion,, without prejudice to any seniority or other rights and
ARROW PRESS 893
privileges previously enjoyed , and make him whole for any loss
of pay suffered as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining , members of Local 7, Amalgamated Lithogra-
phers of America , or any other labor organization , except to the
extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act.
CHARLES J. KAYE, SAIMA KAYE, DAVID J.
KAYE, AND JOAN K. ENGBERG, D/B/A
ARROW PRESS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In substance, the complaint herein as amended at the hearing, alleges that on
or about March 5, 1958, Respondent violated Section 8(a)(1) of the Act, by issuing
a discriminatory rule or prohibition against the distribution of union authorization
cards in the plant and that on the same day, Respondent discharged Donald J.
Hentz because he engaged in concerted activity on behalf of the Charging Party,
thereby violating Section 8(a)(3) and (1) of the Act.
Respondent's answer denies the allegations of the complaint and the commission
of unfair labor practices. Pursuant to notice, a hearing was held before me in
Milwaukee, Wisconsin, on July 29 and 30, 1958. All parties were represented at
the hearing by counsel and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence pertinent to the
issues. At the conclusion of the hearing, Respondent's counsel presented oral
argument, and pursuant to leave granted the parties, the General Counsel and
the Respondent filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following findings of fact:
1. COMMERCE
Respondent is engaged at Milwaukee, Wisconsin, in the business of commercial
printing and lithography. The complaint alleges and the answer admits that during
the calendar year of 1957, a representative period, Respondent printed, sold, and
shipped materials valued in excess of $600,000, of which goods valued in excess
of $200,000 were sold and shipped to customers of Respondent in the State of
Wisconsin, each of which during the same period, sold and shipped finished prod-
ucts valued in excess of $50,000 directly to customers located outside the State
of Wisconsin.
On the foregoing, I find that Respondent is engaged in interstate commerce
within the meaning of the Act.'
11. THE LABOR ORGANIZATION INVOLVED
The uncontradicted evidence discloses that the Charging Party, Local 7, Amal-
gamated Lithographers of America, is an organization in which employees par-
ticipate, which exists for the purpose of dealing with employers concerning
grievances, labor disputes, rates of pay, hours of employment, and other conditions
of employment. Accordingly, I find that the Charging Party is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
i Whippany Motor Co., Inc., 115 NLRB 52.
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
A. Background
As aforestated, Respondent is engaged in the business of commercial printing
and lithography in Milwaukee, Wisconsin. It employs approximately 38 employees.
There are six departments in the plant: general office, sales, composing room,
letterpress , the bindery and the lithographic press (also known as the offset press)
department.
The alleged discriminatee , Donald J. Hentz, was hired by Respondent in
March 1952, to work as a pressman in the offset press department. This depart-
ment was first started by Respondent in 1951. At that time, Doerfler, the president
of the Charging Party, was reluctant to refer employees to Respondent because
terms and conditions of employment at Respondent's plant were inferior to those
in union shops and because Respondent was not a signatory to the Union's contract
with the employers' group . In order to secure referrals, Respondent orally agreed
"to go along with their [Charging Party's] rules and regulations up to the point
they might become unfair as far as the other employees were concerned." 2
Pursuant to this arrangement, Ralph Ihlenfeld was referred to the Charging Party
and hired by Respondent as its first offset press employee and Respondent agreed
that his workweek would be 371/2 hours, the then union standard.3 Hentz was
the second employee referred and hired for the offset press department. At the
time he was hired, Hentz was interviewed by Charles J. Kaye and Earl Haeger,
Respondent's office manager , and told by them that he would work under the
same working conditions as in a union shop and would receive the same benefits
with respect to vacations, hours, wages, overtime, and paid holidays. Respondent
agreed that his regular workweek before overtime would be 35 hours, the then
union standard.
On March 5, 1958, the date of Hentz' discharge, Respondent had eight regular
employees in the offset press department and one who worked there part time.4
All but two of the regular employees were members of the Charging Party.5
However, Respondent had no contract with either the Charging. Party or with any
other union as the representative of any of its employees.
B. Commencement of union recognition efforts in the offset press department
In December 1957 the Respondent's offset press employees were advised by
Foreman Joe Steib 6 that they would not be paid for the day before Christmas
as a paid holiday.? Thereupon, a committee of the employees consisting of
Ihlenfeld, Hentz, and Hench met with Kaye on December 23, 1957, and protested
to no avail, the deviation from union working conditions. Kaye replied that it
would adversely affect the morale of other employees in the plant if the offset press
employees were given a paid holiday on December 24. As a result, rather than
work on the union-observed holiday, the employees in Respondent's offset press
department did not work on December 24, 1957, and were not paid for that day.
Following this incident, there was discussion among the employees in this de-
partment about obtaining recognition for the Charging Party. Apparently,
nothing transpired as a result of these discussions.8
Subsequently, on February 28, 1958, Kaye called a meeting at the plant of
the offset press employees and told them that Respondent "could no longer go
along with the union and its 35 hours week." 8 Kaye further stated that in view
of the arrangements made when Hentz was hired, he could remain on the 35-hour
week but the rest of the offset press employees would have to work on the basis
s Testimony of Respondent's part owner and general manager, Charles J. Kaye.
3Ihlenfeld was later designated foreman of Respondent's offset press department and
continued In this status until November 8, 1957, when he was replaced in that position
by Joe Steib. Ihlenfeld continued to work for Respondent as a pressman in the depart-
ment until January 18, 1958, when he terminated his employment with Respondent.
4 The regular employees were Joe Steib, foreman, Donald J. Hentz, Otto Passolt, Ray
Hutts, Richard McGuire, Ervin Hollmaier, William Flemming, and Ward Hench. The
part-time employee was John Hodach who was regularly foreman of the letter press
department but helped In the offset press department when work in his own shop was slack.
s Hollmaier and Flemming.
11 Respondent's answer admits that Steib is a supervisor within the meaning of the Act.
December 24 was -a paid holiday under the terms of the then current contract between
the Charging Party and the union lithography shops in the Milwaukee area.
9 The record does not disclose whether Respondent was aware of the discussions among
the offset press employees regarding union recognition.
9 The quotes are from the uncontradicted testimony of Donald J. Rentz.
ARROW PRESS 895
of a 40-hour week before overtime . This announcement precipitated further dis-
cussion of a union contract among the employees in the lithographic department.
Many of them asked Rentz ' advice on how to go about getting a union contract.
A number of the employees , including Rentz, went to the union office to talk
about it with Mr. Norman Simon , the current president of the Charging Party.
C. The discharge of Hentz
On March 4 , 1958, at 4 : 15 p.m. Otto Passolt , a union member who worked on
the second shift in Respondent 's lithographic department , delivered to Donald Rentz
an envelope from the union containing union authorization cards. Rentz put
them in the drawer of his work table. On the morning of March 5, 1958, be-
tween 8 and 9 a.m., Rentz spoke to General Manager Kaye, showed him one of
the cards and asked permission to pass them out among the offset press depart-
ment employees . '() Kaye read the card, returned it to Rentz and said, "Don, let
me think about it." Several hours later, Kaye told Rentz not to pass out the
cards . " Rentz thereupon went back to work . Later that day Kaye notified
Foreman Joe Steib that Rentz "had figured on passing out" union authorization
cards to the offset press employees , that Kaye considered it "solicitation" and
advised Rentz not to do it . 12 Kaye testified that the reason he told Steib about
Rentz' request and his denial thereof was that Steib "should know what was going
on in the [Steib 's] department ." Kaye denied , however, that he requested Steib
to report if Rentz distributed the union authorization cards.
Rentz continued to work the rest of that day. His shift and that of the other
day employees in the offset press department ended at 4 : 30 p.m. At approximately
4:32 or 4:33 , 13 Rentz, without speaking to any of the employees, passed out the
cards to each of the employees in the lithographic department , including the two
employees , Otto Passolt and John Hodach , who had just reported for work on
the second shift. Thereupon , Foreman Steib called General Manager Kaye and
advised him that Rentz had distributed the union cards to the employees in the
lithographic department . 14 Kaye thereupon came out to the washroom where
Rentz was cleaning up and dressing preparatory to going home and told Rentz
that he was through. No reason was given to Rentz for his discharge.
D. Contention of the parties
The General Counsel contends that Respondent 's March 5 prohibition of the
distribution of union authorization cards was unlawfully promulgated for the
purpose of interfering with and impeding the efforts of its offset press department
employees to secure recognition of the Charging Party and a union contract and
that Rentz was discharged because he engaged in lawful union activity by dis-
tributing the union authorization cards.
Respondent , on the other hand, contends, in effect , that its March 5 prohibition
of union card distribution was not the promulgation of a new rule , but the en-
forcement of a rule that had been in effect in the plant for many years . Thus, in
his opening statement of position , Respondent 's counsel stated that the reasons
for Rentz ' discharge were as follows:
1. "That there was a valid nonsolicitation rule in the plant " and "that the
employee [Rentz ] was not discharged solely for the violation of the rule ," thereby
implying that he was discharged partly for that reason.
2. That immediately prior to his discharge , Rentz had "criticized the men for
turning out . too much production and suggested to them that they not work
so hard and to slow down on their operation."
10 Hentz testified credibly that the reason he asked for permission was that he did not
want Kaye to think he was trying to put anything over on him.
11 According to Kaye, he told Rentz that he (Kaye) would not pass out the cards.
Hentz interpreted this as an instruction not to do so . There is a conflict between the
testimony of Kaye and Hentz as to whether this conversation took place in the shop or
on the telephone , but since I regard it as immaterial , I deem it unnecessary to resolve
this conflict.
12 Kaye testified that for many years Respondent has had a valid plant rule in effect,
known by Hentz . which prohibits all solicitation in the plant . A discussion of the
alleged nonsolicitation rule appears , infra.
is The time is based on Hentz' uncontradicted testimony at page 140 of the transcript.
At page 166, the transcript erroneously states the time of the distribution as "four
twenty-two or three ." It is hereby corrected to read "four thirty-two or three."
14 Allegedly Steib also advised Kaye of a remark that Hentz had made at about
4:20 p . m. to Otto Passolt.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The merits of these conflicting contentions and the testimony regarding them will
.be considered hereinafter.
E. Hentz' violation of the alleged nonsolicitation rule
The gravamen of Respondent's contention regarding the nonsolicitation rule is
that there was a "strict rule of the Company or strict policy" against "solicitation
of any kind in our plant" and that Hentz was discharged in part because, by the
distribution of the union authorization cards, he had "solicited on company time
and that disrupted the men." 15
The nonsolicitation rule was allegedly put into effect by Respondent approxi-
mately 6 years ago for the purpose of terminating the numerous solicitations for
contributions which were being made to employees. Most of these solicitations
originated by requests for charitable contributions received by Respondent's office
which were followed by solicitation among the employees in the plant. The
latter would authorize the deduction from their salaries of specific amounts for
the charitable causes. Allegedly in order to eliminate these interferences with
production and the paper work required by the payroll deductions, Respondent's
General Manager Kaye had suggested to the employees that a "sunshine" fund be
established to which Respondent would contribute an initial $200 and the employees
would contribute by a deduction of one-half of 1 percent from their weekly
earnings. According to the testimony of Mr. Kaye and his Office Manager Earl
Haeger, the establishment of the fund was authorized by unanimous agreement
of the employees. Distributions from the fund were controlled by representatives,
of each of the departments of the plant and Respondent took no part therein..
The fund representatives decided which charitable causes should receive contribu-
tions and the amount thereof.
Kaye testified that with the establishment of the fund, Respondent adopted a
"strict rule or policy" against solicitation for any purpose whatsoever in the plant.
He further testified that new employees were told about the nonsolicitation rule
when they were hired, but his testimony in this respect was not corroborated by
Office Manager Haeger who admittedly did most of the hiring for Respondent.
Haeger testified that new employees were given no instructions regarding solicita-
tion in the plant other than an explanation of the payroll deduction for the
"sunshine" fund. It was admitted by Respondent that the nonsolicitation rule had
never been posted. Although Hentz and all the other employees who testified
were aware of the "sunshine" fund and its purposes, none knew of any rule
against solicitation in the plant.
The existence of such a rule is further negated by the numerous incidents of
solicitation which occurred in the plant with Respondent's knowledge and apparent
acquiescence. Thus, a number of the employees testified without contradiction
that there were frequent solicitations of employees in the plant to participate in
baseball pools, particularly on the outcome of the world's series games between
the Milwaukee Braves and the New York Yankees, to participate in bowling
tournaments for poultry prizes before Thanksgiving Day of 1956 and 1957, to
participate in pools based on the outcome of football games and boxing contests,
to purchase chances sold on behalf of the American Legion on a drawing for
an outboard motor and to purchase a gift for Ralph Ihlenfeld when he quit
Respondent's employ. Respondent, although aware of these solicitations initiated
by its employees, never objected thereto and never reprimanded or in any way
disciplined any employee for engaging in such solicitation. Indeed, some of
Respondent's foremen, more particularly Ihlenfeld and Steib, engaged in such
solicitations, and others, including General Manager Kaye, were the object of
such solicitations.
From the foregoing, it is apparent that if a rule against solicitation, in fact
existed at Respondent's plant, it was more observed by its breach than by its
enforcement. Significantly, the alleged nonsolicitation rule was not called to
Hentz' attention on the morning of March 5, 1958, when he suggested to Mr.
Kaye that he intended to distribute the union authorization cards to the employees
in the lithographic department. On the foregoing record, I find that prior to
March 5, 1958, the date of Hentz' discharge, there was no rule against solicitation
in effect at Respondent's plant.16
is Testimony of Charles J. Kaye.
16 In view of this conclusion, it is unnecessary to consider Respondent's further con-
tention that Rentz' discharge, insofar as it was attributable to violation of the non-
solicitation rule, was lawful under the Supreme Court's recent decision in N.L.R.B. v.
United Steelworkers of America (Nutone, Inc., Intervenor) and N.L.R.B. v. Avondale
Mills, 357 U.S. 357.
ARROW PRESS 897
F. The prohibition against the distribution of union authorization cards
Having concluded that, contrary to Respondent 's contentions , there was no rule
against solicitation in Respondent 's plant, there still remains the question of
whether the instruction issued to Hentz on the morning of March 5 , not to dis-
tribute the union authorization cards, was a lawfully imposed order, or as charged
in the complaint , an unlawful infringement on the right of Respondent 's employees
to engage in collective bargaining.
Section 7 of the Act guarantees to employees "the right to self-organization .. .
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.... " On the other hand, an employer, in the
exercise of his right to control the use of his property and to obtain the best pro-
ductive effort of his employees , may impose reasonable rules relating to their
behavior for the purpose of preserving and protecting his property and maintaining
order, discipline , and efficiency in the plant. As the Board said in Peyton Packing
Company, Inc., 49 NLRB 828, 843, enfd . 142 F. 2d 1009 (C.A. 5), cert. denied
323 U.S. 730:
The Act, of course, does not prevent an employer from making and enforcing
reasonable rules governing the conduct of employees on company time. Work-
ing time is for work. It is therefore within the province of an employer to
promulgate and enforce a rule prohibiting union solicitation during working
hours. Such a rule must be presumed to be valid in the absence of evidence
that it was adopted for a discriminatory purpose.
It follows, therefore , that if Respondent 's prohibition against the distribution of the
union cards was issued for legitimate management purposes , it was lawful, but
if it was promulgated to impede Respondent 's employees in the exercise of their
statutory rights rather than for legitimate business reasons, the instruction was an
unlawful infringement upon employees ' rights and violated Section 8(a)(1) of the
Act.
The undisputed record in this case shows that Kaye issued his instruction to
Hentz not to distribute the union cards after he had read the cards and con-
sidered the request for several hours. Furthermore , the instruction was issued
less than I week after Kaye, on February 28, had withdrawn from all his offset
press employees except Hentz, union benefits (the 35-hour workweek) previously
enjoyed by them. Kaye knew that all but 1 or 2 of the employees in the depart-
ment were members of the Union. 17 The distribution of the union authorization
cards was quite obviously an initial step by Respondent 's employees preliminary
to a demand for recognition and a contract . Kaye assigned no reason to Hentz
for the prohibition against the distribution and no legitimate management objec-
tive or prerogative appears to have been promoted by the prohibition. Thus, the
time required for the card distribution , a matter of seconds, was obviously less
than that involved in the numerous solicitations , hereinbefore described , in which
Respondent 's employees engaged with its acquiescence . Accordingly, no inter-
ference with efficiency or production was involved in the union card distribution.
Moreover, such distribution to employees , most of whom already were union
members , unlike the distribution of union literature , involved no problem of plant
littering.19
In the context of this record , the inference is inescapable that the issuance of
the prohibition against the distribution of the union authorization cards was in-
tended to impede or prevent the efforts of Respondent 's employees to engage in
collective bargaining and therefore violated Section 8(a)(1) of the Act.19
G. Analysis of the evidence and concluding findings with regard
to the reason for Hentz' discharge
Respondent 's General Manager Kaye testified that the principal reason 20 for
which he discharged Hentz was that the latter , just before the shift change on
17 Kaye so testified.
11 Monolith Portland Cement Company, 94 NLRB 1358, 1366; cf. N.L.R.B. v. LeTourneau
Company of Georgia, 324 U. S. 793.
19 Cf. Commercial Controls Corporation, 118 NLRB 1344; Jaques Power Saw Company,
85 NLRB 440.
Kaye originally testified that Rentz was discharged partly because of his violation of
the alleged nonsolicitation rule, but subsequently testified that the attempted interference
with production was the only reason he fired Rentz.
505395-59-vol. 122-5'8
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 5, 1958, attempted to slow down production in the offset press department.
The incident, upon which Respondent bases the discharge, occurred as follows:
Otto Passolt, who worked on the second, or night shift which begins at 4:30 p.m.,
came to work on March 5, about 15 or 20 minutes before starting time. He was
scheduled to work on the same press on which Hentz had worked during the day
shift. At about 4:20 p.m., 21 Passolt came over to the press where Hentz was
working and asked what was running on the press. Hentz, who was under the
impression that Passolt had, contrary to union rules, operated two presses the
night before, replied to Passolt, "You are twice as good a pressman as me, be-
cause I am capable only of operating one press and you are capable of operating
two, so I feel I am incapable of telling you anything." 22 Foreman Steib who
overhead the remark, testified at first that Hentz said, "You ought to know. You
are so smart, you are running two presses last night." When asked if Hentz
said anything else, Steib then testified that Hentz said, "You ought to know. You
are knocking hell out of production. You are running two presses." 23 Both
Passolt and Foreman Steib assured Hentz that Passolt had operated only one
machine and that John Hodach, who occasionally works in the offset press de-
partment, had operated the second. Steib then told Passolt what job to work
on and resumed a conversation in which he had been engaged with John Hodach
and another employee about a "job standing on the floor at the time." Steib
did nothing else at that time. He did not in any way criticize Hentz or even tell
him that he was attempting to interfere with production. As aforestated, about
10 minutes later, Hentz distributed the union authorization cards to the offset press
employees including Steib, and then Steib immediately called Kaye and reported
that fact to him. Thereupon, the latter came out into the plant and fired Hentz.
Both Kaye and Steib testified that when Steib called Kaye, he reported not only
the distribution of the union cards but also the statement that Hentz had made
to Passolt. Although theirs is the only testimony regarding the content of the
telephonic report, I do not credit the testimony of either that Hentz' remark to
Passolt was reported for the following reasons:
(1) Steib's conduct and statements to Hentz at the time the remark was made
to Passolt indicated that Steib did not regard the incident or the remark as anything
significant. As aforestated, he did not rebuke Hentz therefor, he merely assured
Hentz that two presses had not been operated by one employee, "and that was
the end of the incident," according to Steib.24
(2) Steib three times denied that his telephonic report to Kaye concerned any-
thing but the distribution of the union cards before he finally testified that he
reported Hentz' remark to Kaye. Thus, on direct examination by Respondent's
counsel , Steib testified as follows:
Q. What did you say to Mr. Kaye?
A. I told Mr. Kaye that Don [Hentz] had passed out some cards to us.
Q. Did you tell him anything else?
A. No, that is all.
Q. Was that the first time you called him?
A. That is right.
Q. What did you say to him?
A. That Don passed out those cards to us on the floor.
Q. You said nothing else to him? Can you remember anything else you
might have said to him at that time?
A. No. I didn't mention anything about any other incident.
* *
21 The time estimate is based on the testimony of both Hentz and Passolt.
sa This finding as based on the credible testimony of Hentz which was corroborated by
Passolt. The latter's version of Bentz' statement was, "You are so damned smart, you
run two presses, you ought to know yourself."
21 I do not credit Steib's testimony that Hentz said, "You are knocking hell out of
production," for the following reasons: (1) This version of Hentz' remark was in-
consistent with that of both Hentz and Passolt which I do credit; (2) it was not
referred to in Steib's original testimony concerning Rentz' remark; (3) when Steib later
allegedly reported the remark to Kaye, Steib testified that Hentz said. "You ought to
know. You are so damn smart. You are running two presses at night," thus again
omitting any reference to "knocking hell out of production."
1A There is a telephone in the pressroom about 25 feet away from the place where
Rentz spoke to Passolt. Steib subsequently used this phone to report the card distribu-
tion and obviously could have used it to report Hentz' remark to Passolt if he regarded
it as significant.
ARROW PRESS 899
Q. Was there anything said other than about passing out the cards?
TRIAL EXAMINER: When you called Mr. Kaye.
The WITNESS: I called Mr. Kaye and told him that Don had passed out
some cards.
Then, after three times denying that he reported anything else to Kaye, Steib
testified that he also said to Mr. Kaye:
I said Otto [Passolt] came in and asked Don what was on the press and told
him Don had swore at him, "You ought to know. You are so damn smart,
you are running two presses at night." Then he handed out some cards,
and that is what I told Mr. Kaye.
(3) Kaye's version of the telephonic report from Steib was not consistent with
that of Steib. According to Kaye, Steib told him "I don't know what to do back
here. Hentz is raising hell because the fellows turned out too much work last
night." Kaye allegedly replied, "I will be out to see you, Joe." Thus, according
to Kaye's version of the conversation, Steib was reporting a current "commotion"
in the plant with which Steib was unable to cope, whereas the record clearly dis-
closes that Steib's telephone report was made approximately 10 minutes after Rentz
had made his remark to Passolt and the incident had ended. Kaye further testified
that he then immediately went out to the plant where he again spoke to Steib.
On the other hand, Steib testified that he had reported to Kaye on the telephone
only, not in the plant. Steib's version of his report to Kaye was that other than
advising Kaye that Hentz had distributed the union authorization cards, he had
told Kaye that Hentz had spoken to Passolt only, and that Hentz had said, "You
ought to know, you are so damn smart. You are running two presses at night."
Kaye's version of Steib's report embellished this as follows: That Rentz was
"raising hell" with the "fellows" for "turning out too much work," for "trying to
set a production record."
For the foregoing reasons and from the fact that the telephone report of Steib
to Kaye occurred immediately after the card distribution and not when the
alleged "commotion" occurred, I find and conclude that Steib reported to Kaye
only that Hentz had distributed the union cards concerning which Kaye had di-
rected Steib's attention in their conversation earlier in the day.25
As aforestated, the remark of Rentz to Passolt described above was the only
incident on which Kaye relied on concluding that Rentz was attempting to interfere
with or slow down production.26
Of course, if Respondent, in fact discharged Rentz for believing that he inter-
fered with production, it would not be unlawful even if Respondent's belief in
regard thereto was incorrect. However, Rentz had never before been critiziced
for interference with production and no one advised him on this occasion that
he had attempted to interfere therewith. It seems incredible that if Respondent,
in good faith, regarded Rentz' remark to Passolt as interference with production,
Rentz would not have been so advised either for Foreman Steib at the time the
remark was made or by Kaye at the time he fired Hentz. Rentz' discharge,
coming as it did immediately after his distribution of the union cards to Re-
spondent's employees contrary to Kaye's instruction not to do so, and the at-
tempted embellishment of Rentz' remark to one employee, compel my conclusion
that Respondent did not, in good faith regard the remark as interference with
production.
25 Moreover, from my observation of them and. their demeanor while testifying, I do
not regard either Kaye or Steib as wholly reliable. witnesses.
26 Passolt, a witness for Respondent, testified, that on prior occasions when there was
not too much work, Hentz had told Passolt to take it easy, otherwise Passolt would run
himself out of a job. Assuming this were true, the record does not disclose that Respond-
ent was ever aware thereof and Kaye (lid not attribute his discharge of Hentz to any
prior attempts to slow down production. Moreover, I do not regard Passolt's testimony
in this regard as reliable. Passolt was admittedly indebted to Respondent for bringing
him into the States, providing him with employment and for loaning him "several hundred
dollars." This, no doubt, colored his testimony in favor of Respondent. Moreover,
Passolt regarded Hentz with some animus, specifically charging him with having pressured
Passolt into joining the Union and for picking on him on the job. Hentz, on the other
hand, appeared to be a truthful witness who freely admitted his remarks to Passolt
regarding the operation of two presses and I credit his denial that he ever attempted
to slow down production.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon the entire record in this case, including : ( 1) Respondent's assertion
at one point in the record that Hentz was discharged partly for violation of the
nonsolicitation rule in the plant which it later disclaimed as having any bearing
on the discharge ; (2) my finding and conclusion that there was no rule against
solicitation in Respondent's plant; (3) Respondent 's prohibition of the distribution
of the union authorization cards although such distribution was not contrary to
any existing company rule and involved no interference with plant order , produc-
tion, efficiency , or cleanliness ; (4) the timing of the discharge immediately after
the union card distribution and not when Hentz made the remark to Passolt,
alleged by Respondent as interference with production ; (5) the embellishment of
that remark by Respondent ; and (6 ) the failure to state at the time of the discharge,
the reason therefor ; I am convinced and find the reasons asserted by Respondent
for the discharge of Hentz were seized upon as pretexts and that the sole reason
therefor was Hentz ' distribution of the union authorization cards to the employees
in the lithographic press department . By such conduct , Respondent discriminated
with regard to the hire and tenure of employment of Hentz, thereby discouraging
membership in the Charging Party in violation of Section 8(a)(3) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Donald J. Hentz was discriminated against with respect to his
hire and tenure of employment , I will recommend that the Respondent be ordered
to offer him immediate and full reinstatement to his former or substantially equiva-
lent position , without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suffered because of the
discrimination against him , by payment of a sum of money equal to the amount
he normally would have earned as wages from the date of his discharge to the
date of the offer of reinstatement , less his net earnings during said period, with
back pay computed on a quarterly basis in the manner established by the Board
in F. W. Woolworth, 90 NLRB 289, 291-294. I will also recommend that the
Respondent make available to the Board upon request, payroll and other records
to facilitate the determination of the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed , the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from
in any manner infringing upon rights guaranteed to its employees by Section 7 of
the Act.
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. By discriminating in regard to the hire and tenure of employment of Donald
J. Hentz, thereby discouraging membership in Local 7, Amalgamated Lithographers
of America, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
2. By the foregoing conduct and by ordering Donald J. Hentz not to distribute
union authorization cards on behalf of the Charging Party, Respondent has inter-
fered with, restrained , and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
[Recommendations omitted from publication.]