Banta Catalog Group

National Labor Relations Board - Board Decisions

Sep 28, 2004

342 N.L.R.B. 1311 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 132
1311
Banta Catalog Group, a Division of Banta Corpora-
tion and Graphic Communications International
Union, Local 1–M. Cases 18–CA–16512 and 18–
CA–16710
September 28, 2004
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On May 28, 2004, Administrative Law Judge William
L. Schmidt issued the attached decision. The Respon-
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Some of the Respondent’s exceptions imply that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit.
In addition, the Respondent, subsequent to its brief, called to the
Board’s attention Alexandria NE LLC, 342 NLRB No. 23 (2004), a
recent case. However, we find Alexandria NE LLC, distinguishable
because the lack of evidence of animus was noted there in dismissing
the allegation.
Finally, the Respondent has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 Although we agree with the judge’s conclusion that the Respondent
unlawfully issued Blazek a documented verbal warning for leaving
work early, we find that he erred in applying the analytical framework
established in Burnup & Sims, 379 U.S. 21 (1964). In Burnup & Sims,
the Supreme Court affirmed the Board’s rule that an employer violates
Sec. 8(a)(1) by discharging or disciplining an employee based on its
good-faith but mistaken belief that the employee engaged in miscon-
duct in the course of protected activity. Id. at 23–24. The judge essen-
tially found, however, that Blazek was disciplined for acting as a union
observer, clearly a union activity, and the Respondent’s asserted rea-
sons for the discipline were pretextual. In these circumstances, involv-
ing a violation of Sec. 8(a)(3) rather than an independent violation of
Sec. 8(a)(1), the proper analytical framework is found in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), and the judge’s analysis comports with
Wright Line. Accordingly, we find that the Respondent violated Sec.
8(a)(3) by issuing Blazek a documented verbal warning for leaving
work early.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by suspending and discharging employee Mike Blazek,
Members Schaumber and Meisburg note that this finding is not to sug-
gest that in an appropriate case an employer is not within its rights to
discipline employees who commit costly production errors. Here,
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Banta Catalog Group, a Divi-
sion of Banta Corporation, Maple Grove, Minnesota, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.

Sandra C. Francis and James L. Fox, Attys., for the General
Counsel.
Frances T. Coleman, Atty., of Washington, D.C.
and Dennis M. Devaney, Atty., of Detroit, Michigan, for Re-
spondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. At issue
here is whether the termination of pressman Mike Blazek and
the preliminary disciplinary action leading up to his termination
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (Act). Based on the findings made below, I have con-
cluded that a preponderance of the credible evidence supports
the allegations in the General Counsel’s complaint.
The Graphic Communications International Union, Local 1–
M (the Union or Charging Party) commenced this proceeding
by filing the charges against Banta Catalog Group, a Division
of Banta Corporation (Respondent or Company) in Cases 18–
CA–16512–1 and 18–CA–16710 on July 15 and December 19,
2002,1 respectively. The Union amended the charge in Case
18–CA–16512 on October 15 and it amended the charge Case
18–CA–16710 on April 25, 2003. On May 7, 2003, the Re-
gional Director issued an order consolidating cases, consoli-
dated complaint and notice of hearing. The consolidated com-
plaint alleges Respondent violated Section 8(a)(1) and (3) in
connection with various disciplinary actions taken against
Blazek, including his suspension and subsequent termination on
December 13 and 19, respectively. Respondent filed a timely
answer denying that it engaged in the unfair labor practices
alleged.
I heard this case at Minneapolis, Minnesota, on June 24–26,
and July 23 and 24, 2003. All parties had the opportunity to
call and examine witnesses, to present documentary evidence,
and to provide argument in support of their position. General
Counsel and Respondent filed lengthy posthearing briefs.
Based on my careful consideration of the record, the briefs, and
the demeanor of the witnesses, I now make the following

however, the General Counsel has met the initial burden under Wright
Line, and the Respondent has not demonstrated through comparatives
that it has excepted like misconduct from its progressive disciplinary
system. The Respondent, therefore, has failed to carry its burden of
demonstrating that it would have taken the same action in the absence
of Blazek’s protected activity.
1 If not shown otherwise, all dates refer to the 2002 calendar year.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1312
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Wisconsin corporation with an office and
place of business at Maple Grove, Minnesota, is engaged in
printing and binding catalogs and other materials. During the
12-month period preceding the issuance of the complaint, Re-
spondent sold and shipped goods and materials valued in excess
of $50,000 from its Maple Grove facility directly to locations
outside the State of Minnesota. Based on these activities, I find
the Board has statutory jurisdiction over Respondent’s Maple
Grove operation and that it would effectuate the Act for the
Board to exercise its jurisdiction to resolve this labor dispute.
In addition, I find that the Union is a labor organization within
the MEANING of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Complaint and the Answer
The complaint paragraphs 5(a) and (b) allege that two super-
visors, Jim Winters Jr. and Max Hopkins, respectively, threat-
ened an employee by informing him in December 2002 or
January 2003 that another employee had been terminated be-
cause of his union or other protected concerted activity. Com-
plaint paragraph 6 contains the remainder of the substantive
allegation and they all pertain to Blazek.
Complaint paragraph 6(a) charges that Respondent unlaw-
fully prohibited Blazek from entering the pre-press room be-
ginning around June 24. Complaint paragraph 6(b) alleges that
that Respondent unlawfully issued a documented verbal warn-
ing to Blazek on July 13. Complaint paragraphs 6(c), (d), and
(e) are interrelated. Read together, complaint paragraphs 6(c)
and 6(d) charge that, under Respondent’s progressive discipli-
nary system, the unlawful July 13 warning enhanced a legiti-
mate warning issued to Blazek on August 28 to the level of a
written warning. Complaint paragraph 6(e) alleges that Re-
spondent denied Blazek “a wage increase and other potential
benefits” because of the written warning alleged in complaint
paragraph 6(c). Complaint paragraphs 6(f) and (g) allege that
Respondent suspended Blazek on December 13 and then termi-
nated him on December 19.
Respondent’s answer denies complaint paragraphs 5(a) and
(b), and 6(a). It also pleads affirmatively that the allegations in
5(a) and (b) should be dismissed because they were never al-
leged in any charge. Affirmative defenses 12. Although Re-
spondent admits the conduct alleged in paragraphs 6(b)–(g), it
denies that it took the action described there for an unlawful
motive. Affirmatively, Respondent’s answer alleges it was
“privileged to take the actions it did under the Act as its actions
were taken in good faith for legitimate business reasons unre-
lated to the existence of any rights guaranteed in the Act.”
Affirmative defenses 1 and 10.
B. Relevant Facts
1. Introduction
Banta Corporation has 11 printing facilities located around
the country. The case deals with its facility at Maple Grove,
Minnesota, a suburb northwest of Minneapolis. The Maple
Grove operation is a part of the division known as Banta Cata-
log Group. The 313,000 square foot Maple Grove facility is
described as the “most technologically advanced web offset
catalog printing facility in America.” (Jt. Exh. 5: 4–5.) Rich-
ard Johnson, Respondent’s executive vice president of manu-
facturing, oversees the Maple Grove operations. Terry Chote
became the general manager of production about a month be-
fore the hearing and, hence, played no role in the events at issue
here. Mike Scherbing, the pressroom manager, played a sub-
stantial role in virtually all aspects of this dispute.
Respondent’s Maple Grove facility houses five large web
presses. Each press is approximately 150 feet long, up to 15
feet wide, and 16 to 18 feet tall. Banta schedules these presses
for operation round the clock, 7 days a week. Each press re-
quires a crew of four or five employees, the first and second
pressmen, a roll tender, and one or two general helpers or
stacker techs, sometimes called joggers. In general, the first
pressman has overall responsibility for the quality of the prod-
uct produced on the press. Altogether, 96 employees work on
the 5 press crews. Fewer than 10 employees work in the pre-
press department where the press plates are prepared. About
200 employees work in the bindery department, and approxi-
mately 40 employees perform the various warehouse functions,
including shipping and receiving.
Blazek, the principal subject of this case, worked at the Ma-
ple Grove facility for over 13 years. He started as a stacker
technician, progressed to a second pressman, and then to the
first pressman’s position, which he held for 5 years before his
termination. Mark Twomey, Blazek’s shift supervisor, de-
scribed him as a “good printer . . . [who] ran numbers,” mean-
ing that he was a very productive employee. When Respondent
suspended Blazek in December, Jim Winters Jr., who became
Blazek’s supervisor after Twomey’s termination in September,
told an employee, “Mike’s one of my best producers and he’s a
hard worker . . . this really bums me out to lose him . . . because
. . . it hurts my numbers directly to lose a good pressman.”
Banta’s employee handbook provides that “[a]ny time an
employee is planning a future absence . . . an Employee Time
Office Notice must be completed . . . and approved by the em-
ployee’s supervisor . . . as soon as practical in order to maintain
accurate payroll and attendance records.” (Jt. Exh. 5: 10.)
Even under handbook provisions dealing with inclement
weather absences, the employee must notify her/his supervisor
before leaving early. In practice, the procedure works some-
what informally. If an employee needs a short amount of time
off on any given day, he/she typically arranges for a replace-
ment worker and tells the supervisor “I got so-and-so coming in
for me.” Regardless, supervisors must be notified in advance
and approve employee requests to leave work early.
The employee handbook also contains a progressive disci-
pline system that provides for a verbal warning followed by a
written warning, then a suspension and, ultimately, termination.
However, the system is riddled with loopholes, which suggest
that strict adherence should not always be expected. Thus, the
handbook states: “Banta Catalog Group reserves the right, in its
sole discretion, to omit any or all of the [progressive discipline]
steps, or add or modify steps, in any particular situation.” The
handbook then points out, by way of example, that in some
BANTA CATALOG GROUP 1313
circumstances a written warning not preceded by a verbal warn-
ing may be warranted and that in other situations immediate
termination without prior warning may be appropriate. (Jt.
Exh. 5:42.) Nevertheless, the progressive system appears to
have been utilized in Blazek’s case.
2. The organizational efforts
The Union commenced its effort to organize the Maple
Grove press employees in January 2002. At that time, a union
representative met with Mike Blazek and perhaps others at a
nearby restaurant. Over the next few months, the Union held
meetings with groups of press employees before it began col-
lecting authorization cards. Blazek attended these early meet-
ings and otherwise assisted the organizing effort by telling his
fellow employees about scheduled union meetings, distributing
union literature, and soliciting employees to sign authorization
cards. On some occasions, Blazek joined union representatives
outside the plant gate to help them distinguish the pressroom
personnel from other employees as they left the plant.
After management learned of the organizing drive, it began a
full-court press. Beginning in approximately April 2002, man-
agers conducted weekly meetings to provide direction for the
floor supervisors. Human Resources Manager Lynn Weiss and
Company Counsel Coleman attended virtually all of these
meetings; Scherbing attended several; and Vice President John-
son, as well as Corporate Vice President for Human Resources
Ricardo Orozco, attended a few. During these meetings, the
floor supervisors received instructions about keeping employ-
ees at their workstations unless they had a specific reason to be
elsewhere and to avoid allowing employees to congregate in
small clusters. In addition, the managers instructed floor su-
pervisors to watch and report “who was talking to who.” Sev-
eral of these meetings involved discussions between the man-
agers and the floor supervisors seeking to identify employees
who favored and opposed unionization. By late April or early
May, Blazek had been identified as a prounion sympathizer.
Twomey, Blazek’s shift supervisor, first learned of the orga-
nizing campaign in April 2002 and attended the management
meetings dealing with the organizing drive. As one of the
meetings broke up, Twomey found himself leaving the meeting
room alongside Johnson. He took the opportunity to ask John-
son “what happens after the union vote” and whether they
could “get back to printing” if the Union lost the election.
Johnson responded by saying that it might take a little while to
get back to printing and then added “the people that are in-
volved . . . usually leave on their own or leave for discipline
issues or peer pressure.”
Out in the shop, management’s directives to the floor super-
visors soon became apparent. On one occasion during the or-
ganizing drive, Weiss intercepted Twomey and told him that
she had seen Blazek at someone else’s press. She queried
Twomey about Blazek’s reason for being at another press.
Twomey could not provide an immediate answer but promised
to look into the matter and let her know.
Blazek came under intense pressure from management be-
cause of his prounion sympathies. On three different occasions
preceding the NLRB election, Vice President Johnson came to
Blazek’s press to speak with him. On these occasions, Johnson
would instruct Blazek to shut the press down and then took him
aside to “debate” unionization of the plant while the rest of the
crew stood around with little to do. One of these sessions
lasted for nearly an hour and the others for approximately 45
minutes. In addition, Sherbing passed out T-shirts with a “vote
no” message. On a couple of occasions, he pressured Blazek to
take one of these T-shirts and put it on even though by that time
Blazek normally wore a union cap around the plant. Similarly,
floor supervisors often would yell out “vote no” as they passed
by press no. 1 where Blazek usually worked during this period.
The Union filed an RC petition on April 30, 2002. That re-
sulted eventually in a Regional Director directed election con-
ducted on June 25 and 26. According to Shift Supervisor
Twomey, Blazek became uncharacteristically cautious about
his work in the weeks preceding the election, frequently seek-
ing direction and rarely speaking of anything other than his
immediate printing task. As Twomey perceived it, Blazek ap-
peared to be “[v]ery worried about what he was doing and who
was watching him.” However, Blazek served as the Union’s
observer at both election sessions. The Union failed to obtain a
majority of the votes cast. The Regional Director certified the
results on July 5. (Jt. Exhs. 3 and 4.)
When the press department organizing effort became well
known, a group of the bindery and warehouse employees also
began discussing unionization. Jason White held a couple of
meetings at his home and another meeting was held at a bar in
Osseo, Minnesota. James Berry, a saddle stitch operator in the
bindery who had belonged to a union while working for another
industry employer, attended these meetings to provide informa-
tion about operations in an organized shop.
Following the first meeting at White’s house, Berry dis-
cussed it with his supervisor. Shortly thereafter Berry and
White were called to a meeting in a front office conference
room with Bob Byers, the bindery manager, Weiss, and John-
son. Johnson started off by asking the two employees if the
bindery employees were talking about organizing a union and
why. Over the course of the next 1-1/2 or 2 hours, the three
managers sought to obtain information from the two employees
about the source of the bindery workers’ discontent that would
lead them to consider unionization. Subsequently, Johnson
visited with Berry for about 45 minutes at his machine to seek
suggestions for improving conditions in the bindery. Manage-
ment later held two group meetings with the bindery operators
in the training room during which they continued to probe the
basis for discontent in the bindery and to seek suggestions for
improvements. Johnson, Byers, and Weiss all attended the first
of these two general meetings and at least Byers and Weiss
attended the second.
3. Relevant events
During the course of their work, pressmen, on occasion, go
into the pre-press room to pick up printing plates, to have cor-
rections made to a problem plate, or to review proofs. Supervi-
sor Twomey acknowledged that it would not be at all unusual
for a pressman to engage in idle chitchat with pre-press em-
ployees about weather, sports, or the like during work-related
visits to the pre-press room. In fact, he remembered some
pressmen with friends in pre-press who would occasionally go
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1314
to the pre-press room solely to talk with them about nonwork
matters.
On June 20, Blazek filled in for another pressman on press
no. 2. He occupied the second pressman spot; Dewayne
Boeckermen occupied the first pressman position. At some
point, they discovered defects in the plates received from pre-
press. Boeckermen directed Blazek to go to pre-press to get the
problem corrected while he tended to another matter. On his
first trip into the pre-press room, Blazek spoke with Anita
Schneider, a pre-press employee who had worked on that par-
ticular job. Schneider made some corrections on her portion of
the work then turned the plate project over to Gary Hoff, the
pre-press employee who actually produced the plates. During
Blazek’s visits to the pre-press room that day, he observed
Steve Mallek, the pre-press manager, working on large blue
signs that read: “GCIU Go Home.”
After his initial consultation with Schneider, Blazek subse-
quently returned three more times for short periods of time
essentially to monitor Hoff’s progress in reconstructing the
plates. On his last visit to check on Hoff’s progress, Mallek
immediately confronted Blazek. Mallek questioned Blazek
about what he was doing there and then asked whether he
(Mallek) could help him with anything. Blazek explained the
purpose of his visits and left.
About 15 minutes later, acting pressroom manager Scherbing
approached Blazek and Boeckermen at the press console.
Scherbing asked to speak with Blazek and then told him:
“Look, you can’t be going into pre-press any more . . . A man-
ager . . . observed you in there and we think you are talking to
people about the union so you can’t go into pre-press any
more.” Blazek asked Scherbing how he expected him to do his
job without going into pre-press but Scherbing brushed off
Blazek’s observation by saying: “Well, we can’t have you go-
ing in there any more.” Boeckermen, who purportedly over-
heard Scherbing’s remarks, told Blazek that he would take care
of the plates and the matter went no further that day.
Before his involvement with the Union, Blazek had never
been barred from any area of the facility where his work re-
quired him to go. Between June 20 and July 19, Blazek never
entered the pre-press room. In fact, on one occasion when he
encountered a problem with a plate, Blazek observed Scherbing
speaking with Tom Krysiak near the pressroom office. Blazek
took the plate to Scherbing and pointed out the problem. When
Scherbing told Blazek to go have the plate repaired, Blazek
reminded him that he was not “allowed in pre-press anymore.”
Scherbing replied, “Oh, that’s right. I’ll take care of it.”
Scherbing then took the plate from Blazek and went into the
pre-press room himself.
Employees who need to leave work early or who anticipate
being late for the start of a shift ordinarily notify their shift
supervisor for approval and then arrange for a substitute to take
their place. In situations involving pressmen, the substitute
must also be a pressman but a first pressman can arrange to
have a second pressman perform the substitute service.
The NLRB conducted a representation election among the
pressroom employees on June 26 and 27. Over the weekend
preceding the election, a union representative asked Blazek to
serve as the Union’s observer at both election sessions. The
union agent instructed Blazek to obtain permission from his
foreman to leave his workstation early in order to perform the
observer duties.
When Blazek went to work on Monday, June 24, he stopped
by the pressroom office before his shift started and learned that
Tim Nolen would be the acting shift supervisor that day due to
the absence of the regular shift supervisor, Mark Twomey.
Blazek told Nolen: “Look, I was asked to be the union observer
on Wednesday and Thursday. I need to get off at 5:30 and I
have Mark Waltz working for me.” Nolen simply responded,
“Okay.”2 Subsequently, Blazek arranged for Mark Waltz, a
second pressman, to report for work early and serve as his re-
placement for roughly an hour and a half, the time that would
be required at the polling area before the end of his shift.
Twomey claims that Waltz was a capable pressman.
By the first day of the election on Wednesday, June 26, Su-
pervisor Twomey had returned to work. At about 11:30 a.m.,
Blazek told Twomey that Mark Waltz would be in at around
5:30 p.m. to substitute for him because he had to leave to be the
union observer. Twomey nodded and said “Okay.” Around
5:15 p.m., Waltz arrived at the plant and came to press no. 1.
Blazek briefed Waltz on what was going on and Waltz left to
change into his uniform. Blazek then told Mike Walters, his
second pressman, that if he needed him he would be in the
room where the election was being held. Blazek then punched
out and changed out of his uniform.
When Blazek arrived at the polling area, he was introduced
to numerous officials of Respondent, including Richard John-
son, as the Union’s observer. No evidence shows that Blazek’s
absence for the election June 26 created the kind of a problem
that either necessitated summoning him away from his election
duties or requiring him to report for duty after the election ses-
sion. When Blazek came to work on June 27, the second day of
the NLRB election, he immediately told Shift Supervisor Max
Hopkins that he would be leaving early to be an election ob-
server. Hopkins too told Blazek that would be okay.
No manager or supervisor spoke to Blazek about his early
departures to serve as the election observer until July 2. At
about 1:30 p.m. that day Scherbing stopped briefly at Blazek’s
press and told Blazek he wanted to get “all this union stuff
behind us” and “just get on with printing” now that the election
was over. Blazek agreed and Scherbing left.
About 3 hours later, Scherbing came back to Blazek’s press.
This time he told Blazek that he was “really disappointed” that
Blazek had not told him that he would be leaving to be the un-
ion observer. Blazek responded that he had told the shift su-
pervisor about it. Scherbing told Blazek that Richard Eliason, a
folder machine repair specialist employed by one of Respon-
dent’s vendors who was present at the plant to make adjust-
ments on press no. 1’s folder device, became very irritated

2 I base the findings in this paragraph on Blazek’s uncontradicted ac-
count, which I credit. Nolen did not testify nor was his absence ex-
plained. At the hearing, counsel for the General Counsel argued that
Nolen, then classified as a nonsupervisor trainer, served as Respon-
dent’s agent at this particular occasion because he filled in for the ab-
sent Supervisor Twomey. I agree. In fact, Respondent regularly util-
ized Nolen to substitute for absent shift supervisors.
BANTA CATALOG GROUP 1315
because Blazek left early and second pressman Mike Walters
just stood around doing nothing.
Scherbing explained at some length that Blazek’s absence
had a profound impact on getting operations up and running on
press no. 1 late that day. He explained that Respondent had
flown Eliason from Boston to Minneapolis that day to deal with
the problem folder and that neither Walters nor Waltz had suf-
ficient experience to competently assist Eliason as Blazek
would have been able to do. Sherbing persistently denied that
Eliason became upset because no oil could be located for the
folder’s pumps as Blazek claimed. Sherbing insisted that
Blazek’s early departure hampered Eliason’s work and pre-
vented him from getting press no. 1 running until Jim Walters,
the night shift first pressman who allegedly had considerable
experience as a trainer on that type of press, arrived to assist.
As it turned out, Respondent’s records demonstrated that Wal-
ters did not work that night.
On July 13, Twomey called Blazek off his press and took
him to the office of Human Resources Manager Lynn Weiss.
Scherbing was present when they arrived. At that time, Sherb-
ing issued Blazek a documented verbal warning for leaving his
press early on June 26. The warning states in pertinent part:
Following our discussion last week about your leaving your
workstation early on Wednesday, June 26, 2002, I met with the
supervisory team in the pressroom. I learned that none of them
had given you permission to leave early.
Mike, it is important that you understand that this type of ac-
tion was inappropriate. All changes to your work schedule
require your supervisor or the department manager’s approval.
It is our expectation that in the future you will seek the appro-
priate approvals prior to your departure, and that if you do not
have approval that you will continue to work according to your
schedule.
Blazek protested claiming that he informed both Nolen and
Twomey that he planned to leave early on the days of the elec-
tion to act as the observer and that he had arranged for a re-
placement. Weiss and Scherbing shrugged that off. Twomey
said nothing during the disciplinary meeting but at the hearing
he denied that Blazek had informed him that he would be leav-
ing early on June 26.
Blazek questioned why he was only receiving a warning for
leaving early on Wednesday when he did the same thing on
Thursday. Scherbing explained that Supervisor Hopkins ac-
knowledged that Blazek had provided advance notice to him of
his early departure on Thursday. Later in the meeting, Scherb-
ing shook the writeup at Blazek and stated with “kind of a
smile” that he would “be happy to tear this up if you can re-
member who it was you spoke to.” Blazek responded by stat-
ing: “Look, I’ve told you guys about three times now I told Tim
Nolen right away on Monday morning and I also told Mark
Twomey around 11:30 on Wednesday.”3 Blazek refused to
signed the writeup because he felt that it was “completely

3 Twomey did not work on Monday, June 24. Twomey claimed that
Scherbing called him around 5:30 or 5:45 p.m. on June 26 inquiring
into Blazek’s whereabouts. Until then, Twomey claimed that he knew
nothing about Blazek’s intention to leave early that day. Twomey
denied that Blazek told him about having arranged for a replacement at
the end of his shift on June 26.
wrong.” After being assured there was nothing further, Blazek
returned to work.
Although Blazek’s shift supervisor, Twomey, earlier told
Sherbing and Weiss that he had not approved Blazek’s early
departure on June 26, he also told them that in his opinion a
warning so soon after the election would be inappropriate and
that he did not think it was right. Twomey told the two manag-
ers that he thought they were picking on Blazek.4
On July 15, the Union filed Case 18–CA–16512–1 charging
that Respondent “made a unilateral change in Mike Blazek’s
working conditions by not allowing him to go into the pre-press
department in retaliation for Blazek’s involvement in the orga-
nizing drive at the plant.” It further alleged that Respondent
“wrote up Mike Blazek in retaliation of Blazek’s involvement
as the union observer at a representation election conducted on
June 26–27, 2002.”
Sherbing met with Blazek on July 19 and withdrew the re-
striction against entering the pre-press room in the course of a
meeting arranged ostensibly after Weiss told Sherbing she had
received a complaint about Blazek leaving materials outside the
pre-press room. Sherbing instructed Twomey to bring Blazek
to his office in order to clarify the claim that Blazek had been
barred from the pre-press department. Blazek requested to
have Randy Hart, another pressman, present and that too was
arranged. In addition, Blazek surreptitiously tape-recorded the
meeting. The recording and the transcript reflect lengthy quib-
bling about the documented verbal warning Blazek received on
July 13 relating to his early departure from his workstation on
June 26 to act as the election observer. This exchange occurred
concerning the source of Eliason’s anger discussed earlier:

Scherbing: This is what I have to say, though,
OK? Where I’m coming from is I
was up since midnight or 2 a.m. that
night with that folder. I was in here
about 3:30. I had Richard Eliason
on the phone at 4 a.m. at his home.
OK? He flew in here on an emer-
gency to get that and he worked with
Brian all day.

Blazek: Right.

Scherbing: I’ve come around over here, come
out of the truck, or something, it was
quarter to six and I come through
there, he was leaning up against
some baskets, really upset.

Blazek: And he was mad. And do you
know why he was mad?

Scherbing: Because he was—I said, “What’s
up?” “I don’t know.” I said, “What
do you mean you don’t know?

4 In September, Respondent terminated Twomey because he had a
“bad attitude.” No evidence links Twomey’s termination to his mini-
mal support for Blazek on this occasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1316
What’s going on?” “Waiting for
some God damn oil.”

Blazek: He was mad because there was
not one drop of DTE light oil in the
building.
Sherbing: I see.

Blazek: That when Mark – that’s where
Mark Waltz was. That’s where he
was the whole time. That’s why
Mark. . .he was looking all over the
building. There was not a drop.
Richard was getting pissed off be-
cause Mark came back three times
with different oils and none of them
were right and they wouldn’t work,
and the closest thing he could find
was a 630 gear lube for our units and
it wouldn’t work in there. The [in-
audible] had been dumped out and
cleaned. Well, nobody was aware of
that. That’s what Richard was ticked
off about.

As for the issue over Blazek’s access to the pre-press area,
all agree that Scherbing removed any prior restriction. Later
that day, Sherbing sent Blazek a memorandum stating that his
job required him to go to pre-press from time to time and that
when “your job requires you to go into pre-press, we expect
you to do so.” (Jt. Exh. 7).
On August 8, Blazek and Paul Engelstad had an altercation
of some sort. Eventually both received a performance warning
about the incident between them. Because no allegation per-
tains to the incident itself, no one adduced evidence as to what
precisely occurred that led to the subsequent disciplinary action
described below.
Until Blazek’s last couple of years at Banta, the management
conducted employee reviews in a somewhat erratic fashion.
Most generally, management would establish a fixed percent-
age for annual across-the-board wage increases and would im-
plement those increases in September or October without con-
ducting reviews for most employees. Until 2002, Blazek re-
ceived the across-the-board increase every year.
Around August 20, Respondent adopted new “Plant Wage
Structure Procedures” effective September 2. (R. Exh. 15.)
The portion relevant here (the 6-month rule) states: “An em-
ployee who has received a written warning in the past six
months, will not be eligible for the salary increase at this time.”
The employee will be eligible for the raise at their next review
date, but will be dependent on performance improvement.”
General Counsel makes no claim that Respondent adopted this
6-month rule for discriminatory purposes.
On August 28, Human Resources Manager Weiss and
Scherbing summoned Blazek to a meeting in the Scherbing’s
office. At that time, Weiss informed Blazek that the meeting
amounted to his wage review and that he would not receive a
pay increase under the new 6-month rule because he received a
prior warning (referring to the unlawful July 13 warning) and
would soon be receiving a written warning for the incident with
Engelstad on August 8. Blazek protested that they, in effect,
were conducting a disciplinary meeting and told the two man-
agers that he would not “sit in here and talk to you without a
witness.” Blazek then got up to leave. As he walked out, he
claims that he overheard Weiss sternly tell Scherbing, “You
have to support me on this.” Both Weiss and Scherbing deny
that claim by Blazek. Weiss claims that she followed Blazek
out the door and urged him to return three times without suc-
cess.
On September 3, Weiss arranged to have Blazek brought to
her office where she issued the written warning, dated August
29, for the Engelstad incident that occurred on August 8. In
addition to Blazek and herself, Scherbing and Twomey were
present. The warning states in pertinent part:

Both you and Paul conducted yourselves in an inap-
propriate manner by engaging in a shouting match, dis-
rupting other employees and creating a bad impression on
a customer who was in the area. In addition, you were in-
volved in a collision with the forklift that Paul Engelstad
was operating. This incident not only involved unsafe
driving, but could have caused damage to our product and
equipment and could have also resulted in serious injury to
you and to others.

After the meeting ended, Scherbing told Twomey as the two
walked back to their respective areas together that if “we’d
have had a safety director with balls we’d have had him by
now.”
Respondent’s Exhibit 17 shows that Engelstad received a
verbal warning on August 29, presumably for the same inci-
dent. The General Counsel does not contest the basis for this
written warning to Blazek. Instead, General Counsel only
claims that under the progressive disciplinary system Blazek
would not have received a written warning in the absence of the
prior verbal warning he received on July 13, found unlawful
above.
In October, a Teamsters’ representative prevailed upon
Blazek to attend a meeting on October 17 at a local restaurant
for the purpose of describing the Company’s campaign during
the period when the press department employees attempted to
organize. When Blazek arrived for the meeting he immediately
noticed Jim Winters Jr., his supervisor, seated nearby. Blazek
identified Winters to the union representative and one of the
representatives confronted Winters about the purpose of his
presence. Winters claims that he arranged to meet a friend at
the same restaurant at approximately the same time so his pres-
ence was a happenstance. Regardless, Winters later admitted to
Randy Hart that he had informed Richard Johnson about this
restaurant meeting.
On October 28, Supervisor Winters instructed Blazek that
henceforth the pressmen would be required to put lids on prod-
uct placed in telescopic boxes. Blazek argued with Winters’
directive. He claimed that he already had enough to do and that
his new directive contradicted the decision made a couple of
years before that the shipping employees would perform this
task. Subsequently, Scherbing approached Blazek’s press and
BANTA CATALOG GROUP 1317
instructed him to follow the directive given by Winters. Al-
though Scherbing claims that he agreed to do so, he found that
Blazek still had not started putting the lids on the boxes when
he returned an hour later. On this second visit, Scherbing told
Blazek that he had 15 minutes to start following the instruction
to put the lids on the telescopic boxes and to attach the load
tags on the lids. By the time Scherbing returned a third time, he
found that Blazek had finally begun to install the lids but was
incorrectly attaching the load tags.
In addition, the original complaint in Case 18–CA–16512 is-
sued on October 28. It alleged Respondent violated the Act by
barring Blazek from the pre-press room before the NLRB elec-
tion, by disciplining him for leaving early on June 26 to serve
as the observe, and by issuing him a written warning on August
29 and denying him a pay increase.
On October 30, Scherbing issued a “Final Written Warning”
to Blazek reciting the difficulty encountered obtaining Blazek’s
compliance with the instruction about the box lids on the previ-
ous Monday. The warning concluded with the following:
Your not following the work direction that was given to you
by your supervisor and a second and third time by me is insub-
ordinate and will not be tolerated. Your conduct and defiant,
insubordinate, and belligerent attitude cannot be allowed to
continue. You must change your attitude and your antagonistic
and defiant behavior immediately.
Please be advised that if this issue, or continued failure to
follow management direction, and/or violations of policies and
procedures, will result in immediate disciplinary action up to
and including termination.
Blazek sent a formal written complaint dated November 1 to
Weiss with a copy to Ricardo Orozco, the Company’s human
resources vice president. In it, he complained about being dis-
criminated against and harassed because he supported the Un-
ion during its organizing effort. Without providing specifics
apart from labeling him as not being a “team player,” Blazek
charged that the “actions this Company has taken over the past
few months have caused me to lose sleep and much emotional
distress.” Orozco responded in a letter dated November 7.
Orozco denied that the Company had discriminated against
Blazek because of his union activities and asserted that the
progressive discipline he had recently received was “fully justi-
fied and in line with standard practice.” Orozco expressed
sympathy for the personal problems Blazek described in this
letter and suggested that he seek assistance under the company-
sponsored employee assistance program. Although Orozco
noted the respect the Company managers had acquired for
Blazek over the years, he stated that in recent months his con-
duct had “been one of a defiant attitude that appears designed to
push your managers to the limit and force them to take discipli-
nary measures.” Orozco invited Blazek to furnish more spe-
cific information but he never did.
Blazek worked overtime on November 7 substituting for the
vacationing first pressman on press no. 2. When he reported
for work, Ryan Carter, the second pressman, and he agreed that
Carter would take the first pressman’s position and Blazek
would serve as his second pressman.5 At the time, press no. 2
had been set up to print the Minnesota tax form job in house at
the time. The press crew on the shift about to leave reported to
Carter that they had encountered considerable wrinkling that
required them to repeatedly hand wash the press blankets to
correct.6 To make matters worse, the previous crew overfilled
the ink reservoir just before the shift ended.
As a result, Carter’s crew spent their first hour or two clean-
ing up the ink spill before they began running the press again.
Meanwhile, Carter went to his supervisor, Max Hopkins, to
complain about the press setup as he concluded that the time
wasting hand washing of the blankets resulted from an im-
proper setup. Hopkins insisted that they get the press running
as soon as possible and that he would come out to assist them.
On his way from Hopkins’ office to the press, Carter briefly
encountered Scherbing and complained to him about the press
setup. Scherbing, who was about to leave for his vacation, told
Carter that he should speak to Hopkins who would be serving
as the acting pressroom manager.7
When press no. 2 finally began operating that morning, the
crew encountered an ink buildup problem that caused print with
a three-dimensional look, an effect known in the trade as “dou-
bling.” Carter shut the press down and went back to Hopkins.
This time Hopkins came out to the press and assisted the crew
off and on for nearly 4 hours in their various attempts to solve
the wrinkling and doubling problems that they encountered
repeatedly. Carter provided the following credible and signifi-
cant description of those difficulties:

Q. Okay. After you talked to Mike Scherbing, what
did you do at that point?
A. I went back to the press to find out where my guys
were at, as far as the cleanup, and we started up again and
I found some doubling problems when we started up.
Q. Okay, I’m just going to stop you for a minute.
Would you explain, what’s a doubling problem?
A. A doubling problem is a carry-through where the
ink builds up on units that are not moving and occasion-
ally will show up on the product.
Q. And how do you recognize it on the product? What
does it look like?
A. It looks like a 3-D effect.
Q. Okay, so you went to your press and talked to your
crew about that?
A. No, I went back to my press to get it started.
Q. Okay, I’m sorry.
A. But when I started up the press I notice that prob-
lem right away.
Q. Okay?
A. And so I went back into the office and talked to
Max about it.

5 This type of position switching is not unusual particularly where,
as here, the situation involves an experienced second pressman.
6 In addition to creasing the paper, wrinkling can also cause blurred
print.
7 John Schumacher substituted for Hopkins as the shift supervisor.
Schumacher did not testify and no one suggested that he ever became
involved in the press no. 2 difficulties on November 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
Q. And did you talk to Max?
A. Yes, I did.
Q. And what did you say?
A. I told him that for some reason the ink was transfer-
ring from the other units and I had him come out to the
press to look at it.
Q. And did he say anything?
A. No, he just came out to the press and then we ended
up shutting off some units that were on that didn’t really
need to be the way it was set up.
Q. Okay, would you tell me what the units–when
you’re talking about units–
A. A unit is where the paper runs through and it trans-
fers ink to the paper to give it an image. And there’s 16
units, they’re double-stacked so that there’s actually eight
units that you can print on both sides of the paper.
Q. Is a unit the same thing as a blanket?
A. It is part of the unit.
Q. A blanket’s part of the unit?
A. Correct. There’s two blankets for every unit.
Q. Okay. So Max came over?
A. Uh huh.
Q. And what happened then?
A. We ended up shutting off the impressions on unit 7a
and 3 and 4 because they were causing wrinkles and a
doubling 3-D effect. And it was coming and going de-
pending upon the run length. The longer you run it would
show up and then it would disappear and then it would
show up and then it would disappear.
Q. Okay, and was Max there at this time?
A. Yeah, Max pretty much stayed over there. I mean
coming and going. He had other things going on but he
was back and forth helping us out probably until 11:30 or
so.
Q. Okay, so were you actually printing product?
A. We were. And we were up and down because we
had other problems going on. We had a nip that wasn’t
coating the web. We had to cut off because of the air
pressure or something was messed up on it. And I had
other problems in the units where a wrinkle was coming.
Later we found out it was coming from where the ink
overflowed. It caused a wrinkle on a pipe roller. But I
had Mike working on the folder–
Q. Mike Blazek?
A. Mike Blazek working on the folder at the time so I
could concentrate on the printing unit.
Q. Okay. So what time are we talking about now?
Mike is over on the folder, you’re concentrating on the–
A. Well, from the beginning of the shift Mike was
pretty much in charge of the folder. I was having him
work on it. He was correcting things and Max and I were
working in the units trying to eliminate wrinkles and the
doubling effect.
Q. Okay.
A. Trying to gain control of the press again.
Q. And did you and Max have any further conversa-
tions about it?
A. Other than the fact that he told me that I needed to
get rid of the wrinkle and that’s what we were working on.
Q. Did he tell you how to get rid of it?
A. He made a suggestion that I shut down and change
a blanket or tighten a blanket?
Q. And did you do that?
A. Yes, I did.
Q. And did that work?
A. No, it didn’t.
Q. Okay. Did he say anything else?
A. He came back over and we tried tracking the wrin-
kle further and further back and we found that it was com-
ing from underneath the unit that had overflowed. The ink
had overflowed onto a pipe roller and it cause a build up
which was creating the wrinkle.
Q. And so Max was with you when you found that
out?
A. Yup.
Q. And did he say anything to you about it?
A. Yeah, he asked me to shut down and clean up all
the pipe rollers with a scouring pad.
Q. Did you do that?
A. Yes, I did.
Q. Did that fix it?
A. Yup.
Q. So did you have–first of all, during this time was
there any product produced?
A. Between–I mean there was product being produced
between, I’d say 7:30 and 10:30, but it was up and down,
up and down because we were working on things. So it
wasn’t a continuous run.
Q. And was this product kept?
A. Some of it was and some of it wasn’t.
Q. How did you know what to keep and what not to
keep?
A. Some of was obvious that you wouldn’t keep it and
some of it was not. I mean some of it was questionable
and that’s why I had asked the supervisor about it. [Em-
phasis mine.]
Q. And you asked Max about some product?
A. Some of it, yes.
Q. Okay, what did you say?
A. I said–well first I told him I couldn’t believe the
way it was set up and that this stuff could have been
avoided had the press been set up correctly.
Q. Okay.
A. But he told me that we had to get rid of the wrinkle
and that’s what we did. That’s what we were working on.
Q. Did he say anything about the product at all?
A. I don’t recall.
Q. So after you scoured the blanket–
A. The pipe rollers.
Q. The pipe rollers, I’m sorry, did that take care of the
problem?
A. It took care of the wrinkle.
Q. Okay, and will you explain to me, when you talk
about a wrinkle, what it is you’re talking about?
BANTA CATALOG GROUP 1319
A. Well, the paper is controlled by tension and if it
goes over a surface that is not smooth it will create a wrin-
kle and so it will cause imperfections in the printing?
Q. And how do you know a wrinkle when you see it on
product?

. . . .

THE WITNESS: It’s a crease in the paper. Sort of like
this. I don’t know how to explain that.

. . . .

Q. BY MS. FRANCIS: Is there printing underneath the
crease?
A. There will be printing on both sides. It depends
upon where the wrinkle is created. If it’s created after the
printed product you’ll be able to read it. If it’s created be-
fore the printed product you will not.
Q. Okay. What was the wrinkle you were seeing?
A. We had a few of them.
Q. Oh, different kinds?
A. Right. We had them coming from the nips in the
folder area and that’s what Mike was working on.
Q. Okay.
A. I had some coming from the printed units, which
was not showing type. That was coming before the
printed unit. That’s what Max and I were working on.
Q. Okay. And then that -
A. The doubling effect was found while were were
looking at the wrinkle.
Q. Okay.
A. Because we were going back and forth checking.
Going back and forth and then we happened to open up a
copy and see a 3-D effect and he’s like, “Well, it’s piled
up on these units.” And to eliminate it we shut them off
and cleaned them up.
Q. And that’s how you got rid of that 3-D doubling ef-
fect.
A. Right.
Q. So that was done for the day then?
A. Right.
Q. Okay. So then you scoured that.
A. The pipe rollers.
Q. Okay, you scoured that and that–you and Max fixed
that. What about, you said that Mike had a different wrin-
kle. He was working on the folder?
A. Right. When the nips cause pressure to pull the pa-
per through the press and if the pressure is uneven or un-
balance in some way it can cause the wrinkle. Or it can
cause the wrinkles which are guided by air around these
rollers. And if the air’s not set up right, or if it’s out of–
it’s not set up straight or whatever, it can cause the wrinkle
also. And when it’s printing it can change with the speed
so it’s something you have to continually watch for.
Q. Okay. Did that problem get fixed?
A. Yes, I believe it was.
Q. Okay.
A. I seem to remember the first four hours of the day
were a lot of these little problems and then after that we
seemed to run good. We seemed to basically get rid of all
the problems.

Hopkins’ account does not differ substantially from Carter’s.
Although he denied that he ever instructed Carter to keep de-
fective product, he did not address Carter’s reference to more
borderline product. According to Hopkins, the “first pressman
—head pressman is—is responsible for the product coming out
the press and the person taking the time stamp is also held re-
sponsible for inspecting the product coming off the press.”
Once press no. 2 became fully operational, Blazek took the
time stamps.8 In the time stamp taken at the 525,000 impres-
sion interval, Blazek noted, “paper wrinkling off and on.”
Carter admits that he saw some wrinkling but he did not deem
it bad enough to warrant throwing the product away because
the material was still readable.
At the November 20 production meeting, Scherbing learned
from Debra Youngblood, the account manager for the Minne-
sota tax form project, that the Minnesota State officials had
print quality problems with the tax forms. She said the State
officials reported wrinkling and blurring on some of the product
shipped to the State that made some of the tax tables impossible
to read. Sherbing asked to have the defective product returned
to the plant. As a result, the State of Minnesota sent back a
total of 75 skids of tax form booklets, 225,000 booklets, or
roughly a third of the total project.
Once the product returned, Scherbing put together a crew of
light duty and temporary employees to go through the returned
materials in search for defects. The crew located and discarded
47,000 defective booklets after salvaging the enclosed enve-
lopes. On December 12, the Company reprinted replacements
for this discarded product. Scherbing put the cost of locating
and replacing this defective product at $50,000 to 60,000.
Lynn Weiss identified a precise calculation prepared by Re-
spondent’s accounting department that put the cost at
$65,732.93 without transportation expenses estimated to be
approximately $2000. See Respondent’s Exhibit 18. During
2002, Respondent incurred other spoilage expenses in ranges
below and above that amount. They were as follows: Smile-
makers job in March–$40, 900; Disney job in July—$111,780;
Dream Products job in October—$39,213; and Swanson Health
jobs in November and December—$46,086 and 50,000, respec-
tively. Weiss professed an inability to remember if any of the
employees involved in these errors had been terminated or dis-
ciplined.
Meanwhile, Scherbing began perusing the production re-
cords for the project in an effort to locate precisely when and
who produced the defective work. Although he admitted that
once the product leaves the plant it would be impossible to tell,
just from the item itself, which crew produced the defective
work, he set out to identify when the defective work occurred.
As a result of reviewing the crew sheets, time stamps, the load
flags, the bindery pulls, skid tally sheets, and after speaking
with all of the crews, Scherbing concluded that the defective

8 On this project, the crews pulled time stamps randomly ranging in
intervals from 10,000 to 25,000 signatures. Scherbing found evidence
of wrinkling and blurring on the time stamps Blazek pulled at the
475,000, 500,000, and 525,000 signature intervals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
work had been produced by Carter’s crew somewhere from the
start of their shift up to about noon. Thus, Scherbing testified as
follows:

So after talking with him [Carter] and the other crews to me it
appeared that it was isolated to that time frame from the start
of that shift up until the first part of the one that they had got
into according to the time cards up and around about 11 a.m.,
maybe even into noon.

According to Scherbing, the other crews denied that they had a
wrinkling problem to their crew reports both reflect consider-
able amount of hand washing of blanket, the same remedy
Hopkins suggested to Carter in order to cure his wrinkling
problem. Sherbing also claims that Carter “was under the im-
pression that none of the defective product got into the bind-
ery.”
Carter, on the other hand, claims that he had two meetings
with Scherbing and Weiss over the Minnesota tax form job.
When Scherbing showed him the Blazek’s time stamps contain-
ing the wrinkles, Carter told them, in effect, that he would not
have thrown the product away based on those time stamps be-
cause it was still readable and that he had seen a lot worse work
leave the plant. In addition, Carter told them that Hopkins had
been there at the time, that he had been shown product, and that
Hopkins never directed him to throw anything away. Accord-
ing to both Carter and Blazek, during the Scherbing-Weiss
investigation, no one ever showed him any of the tax forms
actually returned by the State of Minnesota.9 However, Win-
ters took Randy Hart to some pallets containing the Minnesota
tax forms and showed some to him containing slurred and dis-
torted images. Winters reacted by saying “Oh, wow.” Hart
said their exchange then continued as follows:

“Mike ran this” Mike Blazek. And I go, “Really?” He goes,
“Yeah, Mike ran this,”—and then he said, “You know, every-
body thinks the company is after Mike”— he goes, “But how
can we defend something like this?” And I said, “Well, I—I
don’t know anything about it.” I says, “This is the first I’ve
seen or heard of it.” And he goes, “Well, I don’t know”–he
says, “what they’re going to do about it.” He goes, “But this
stuff is going to have to be reran. The customer—you know,
isn’t happy with it,” and so forth. And at that time, he said—
he goes, “Well, don’t you think somebody kind of pressed a
little bit. Don’t you think this is something that somebody
should be written up for,” and I says, “Well,” I said, “If a
pressman ran this and he knew it and he didn’t tell anybody
and he put it on a pallet, I can see an employee being written
up for something like this.”

In the second meeting with Scherbing and Weiss, Carter was
told that he would probably receive either a verbal or a written
warning over the work performed on November 7. Carter
claims that in this meeting Scherbing and Weiss began discuss-
ing assessing greater responsibility to Blazek because he was a
first pressman and should have provided him with more sup-

9 Carter saw some of the forms after Blazek’s termination. By the
time of the hearing, however, the forms returned by the State of Minne-
sota had been discarded much to the consternation of the General
Counsel.
port. Carter again told the two managers that he had made the
decision to keep the allegedly defective product.
Regardless, Scherbing felt that both Carter and Blazek
shared the responsibility “to ensure the quality of product being
produced on that press.” By Scherbing’s reasoning, since
Blazek took the time stamps he obviously would have been in
the area where the final product came off the press and, hence,
he had a greater “responsibility to catch this defective product”
and discard it away before it got to the bindery. Even though
Scherbing concluded that the defective work had been pro-
duced and passed along to the bindery during the period of
greatest oversight by Acting Pressroom Manager Hopkins,
Scherbing made no mention of consulting with Hopkins during
his investigation and in his testimony, Hopkins merely alluded
to speaking with Scherbing during his investigation in response
to a leading question. When Scherbing and Weiss questioned
Blazek extensively about the Minnesota tax form job in a
“coaching” session on December 6, he told them that Hopkins
had been had been at the press no. 2 “between twelve and fif-
teen times” on the morning of November 7.
In the period from late November until February, Respon-
dent also printed tax booklets for the Federal Government.
Unlike the State of Minnesota, the U.S. Government Printing
Office (GPO) assigned inspectors to plant operations to monitor
quality. At a production meeting on December 2, Scherbing
learned that the government inspectors had quality issues with
the Federal tax booklets recently produced. In particular, the
inspectors claimed the perforations that permit a form to be
easily torn from the booklet were not centered in the backbone
of the booklet as the specifications required.10
Scherbing and two unidentified supervisors set out to inves-
tigate this problem. Four skids of perforated pages had been set
aside in the bindery because of the out-of-place perforation
found by the GPO inspectors. Because the problem had been
identified early in the bindery process, these pages had not yet
been incorporated into a completed booklet. Scherbing and the
supervisors had the skids returned to the press area and began
going through them to locate perforations problems. They
found about 10,000 forms with the perforations anywhere from
a quarter to half an inch off the backbone. Scherbing claims
that the load flags demonstrated that the defective products
came from Blazek’s press on November 29.11 Blazek flatly
denies that claim.
On December 5 when Blazek next returned to work, Sherb-
ing spoke to him at approximately 8 a.m. and showed him some
of the defective perforations. Scherbing claims that he stressed
the importance of keeping the perforations on the backbone or
within limits and told Blazek that the GPO was not happy with
the work so far. Around noon, Scherbing returned to press no.
1 where Blazek worked and again stressed the need to keep

10 The specification permitted a deviation up to sixteenth of an inch
outside the backbone.
11 R. Exhs. 8(a)-(d) contains three load tags which appear to bear
Blazek’s initials and a sample of a tax form with the defective perfora-
tions. The General Counsel’s brief argues that only Scherbing’s testi-
mony links these three load flags to the defective form and that I should
not credit that testimony for a variety of reasons. As noted, Blazek
flatly denies that he produced the defective form at press no. 1.
BANTA CATALOG GROUP 1321
control of the perforations. Shortly thereafter, Scherbing par-
ticipated in a conference call with a GPO official in Washing-
ton, a company account manager in Chicago, the three GPO
inspectors at the Maple Grove plant, Tom Krysiak (a longtime
Banta manager then serving as a pressroom consultant), and
Vice President Johnson. The GPO officials supposedly stressed
their displeasure with the misaligned perforations produced at
Maple Grove and other defective work performed elsewhere.
Scherbing claims that following the meeting, Johnson stressed
to him that he needed to get the perforation problem under con-
trol.
Following the meeting, Scherbing and Krysiak returned to
press no. 1. Around that particular time, Blazek claims that he
noticed the perforation starting to wonder off the backbone so
he slowed the press to the makeready speed, instructed the sec-
ond pressman to begin throwing away product upon his instruc-
tion, and climbed up on the ribbon deck to make a particular
adjustment. When he returned, Scherbing and Krysiak were at
the folder area throwing away product. Scherbing, according to
Blazek, asked why he was keeping the product with the perfo-
rations out of position. Blazek claims that he told the two man-
agers that he did not intend to keep the product because it had
been produced while he was making adjustments and the help-
ers were supposed to be throwing it away.
For his part, Scherbing claims that when he arrived with
Krysiak, Blazek was standing by the folder watching the prod-
uct coming off the press. According to Scherbing, they pulled
samples from the skid containing material to be saved and it
was obviously defective. He immediately questioned Blazek as
to why he was saving the product. Purportedly, Blazek re-
sponded that he was not saving it and that one of the helpers
simply failed to throw it away. Scherbing testified:

When we—Tom and I came out of the front office and where
the door comes out of the front office into the production area
is actually on the back side of press 1. As we came around
and started walking towards the folder it’s about 125 feet ap-
proximately to the folder and the folder is in clear sight. The
whole time that I’m walking up—Tom and I are walking up I
believe I seen Ken Larson starting to pull almost full skids
from the—off of the press and Mike Blazek was standing
there by the folder monitoring what was being–what was
coming off the press at the time.

Krysiak, however, disputed Scherbing’s claim that Blazek was
at the folder monitoring the product when they arrived at press
no. 1. He first observed Blazek coming from the other end of
the press. He also identified the principal defect at Blazek’s
press and in the telephone conference earlier that day as being
an insufficient perforation penetration so that the form could
not be properly torn from the booklet.
On December 13, Scherbing took Blazek to the conference
room in the human resources department where Weiss awaited
them. Blazek requested to have Randy Hart present as a wit-
ness. At that time, Weiss informed Blazek that he was being
suspended until the Company completed its investigation con-
cerning his work performance. He received no written notifica-
tion of this action but everyone agrees there was a wide-ranging
discussion about the Minnesota tax form job and the GPO job.
When Hart returned to his workstation following Blazek’s
December 13 suspension, he expressed concern to Winters, his
supervisor, that he would be next. Winters told Hart that there
was “a big difference between you and Mike.” Winters de-
scribed that difference as follows: “When Ken Bret and Dave
were fired and everybody else–everybody backed off . . . but
. . . Mike wouldn’t drop the issue with the union and wouldn’t
back off and you did–and everybody else did.” He added that
Hart should “just do your job and everything will be fine.”
The day after Blazek’s suspension, Ryan Carter told his su-
pervisor, Max Hopkins, that he felt bad about Blazek’s suspen-
sion since he rather than Blazek had been running the press
when the errors on the Minnesota tax form job occurred. Hop-
kins responded by stating: “Mike did it to himself. He just
didn’t know when to quit and you were kind of in the way. On
December 18, Scherbing gave Carter a written warning for
failing to ensure that the defective product produced on No-
vember 7 “did not get to our customer.” His letter alleges that
50,000 copies of defective product had been “found during the
time stamps of 475,000, 500,000, and 525,000.
Neither Winters nor Hopkins flatly contradicted the forego-
ing statements attributed to them. Winters, however, claimed
that his remarks to Hart on this particular occasion really re-
ferred to the fact that Blazek had clammed up after the election
because he feared getting in trouble if he said anything. As a
consequence, Winters claimed, Blazek could not even effec-
tively give directions to, or rely on, his crew members and
wanted to do everything himself to avoid getting written up.
Hopkins attempted to explain away his “didn’t know when to
quit” remark by claiming that he intended to refer to Blazek’s
anger toward the Company following the election and his in-
ability to let go of it. Hopkins never addressed the “you were
kind of in the way” remark that Carter attributed to him.
The following week Weiss contacted Blazek and requested
that he return to the plant. When he came to the plant on De-
cember 19, she notified him of his termination. Referring to the
Minnesota tax form job of November 7, the GPO job of No-
vember 29 and December 5, the termination letter asserted that
he “failed to fulfill the responsibilities” of an experienced
pressman and that his disregard of his basic duties “resulted in
defective product being shipped to the bindery for further proc-
essing.” Blazek’s purported “inattention” to his duties, the
letter asserts contributed to the $50,000-$60,000 loss the Com-
pany incurred and the resultant embarrassment. The letter ad-
vises since the derelictions on the three dates involved followed
closely after a final written warning, the Company had “no
other alternative but to terminate your services effective imme-
diately.”
C. Further Findings and Conclusions
1. The 8(a)(1) allegations
Section 8(a)(1) provides that it is an unfair labor practice for
an employer “to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7. Section 7
grants employees the right “to self-organization, to form, join
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities.”
The Board held that managers or supervisors violate Section
8(a)(1) by telling or implying to employees that another em-
ployee had been terminated for their union or concerted activity
because such statements tend to coerce the hearers in the exer-
cise of Section 7 rights. Aero Metal Forms, 310 NLRB 397,
400 (1993). The General Counsel contends that Winters’ re-
mark to Hart and Hopkins’ remark to Carter following Blazek’s
suspension effectively communicated to those two employees
that he had been terminated for his union activity. Respondent
argues that the circumstances demonstrate that these statements
lack any coercive character. Respondent contends that Win-
ters’ and Hopkins’ statements, made after Blazek’s suspension,
do not constitute threats directed at Hart and Carter, respec-
tively, when considered in context and viewed in light of the
speakers’ explanations.12 In addition, Respondent argues that
General Counsel failed to produce any evidence that the em-
ployees involved felt threatened by the statements of these two
supervisors.
Respondent misperceives the applicable standard. The
Board and the courts employ an objective test when considering
employer statements that allegedly violate Section 8(a)(1). The
test seeks to determine only whether the conduct at issue rea-
sonably tends to interfere with employees’ exercise of their
Section 7 rights. NLRB v. Hitchiner Mfg. Co., 634 F.2d 1110,
1113 (8th Cir. 1980). Hence, the employee’s actual perception
of interference, coercion, or restraint lacks relevance. Nor is
the speaker’s explanation of intent relevant. “The test is not
one of intent . . . but whether the threatened conduct has a ten-
dency to interfere with, restrain or coerce employees in the
exercise of their Section 7 rights.” Cox Fire Protection, 308
NLRB 793 (1992).
Clearly, Hart knew of Blazek’s strong support for union rep-
resentation. Winters’ statement to Hart that Blazek’s failure to
“drop the issue with the union” and to “back off” provides an
unmistakable message that Blazek’s troubles was rooted in his
outspoken stand on behalf of the Union. Likewise, I find it
reasonable to infer that Hopkins also alluded to Blazek’s union
activities with his “just didn’t know when to quit” remark.
When coupled with Hopkins’ effective characterization of
Carter’s warning for the defective Minnesota tax form job as
simply a device designed to lend verisimilitude to Blazek’s
discipline, I find Hopkins’ statement to Carter on December 14
to be coercive. As discussed below, Hopkins’ remark about
Carter being in the way, when considered with his intimate
knowledge about the particular production problems that led to
Blazek’s discharge, betrays a legitimate motivation. Since both
statements project the message that Blazek’s outspoken support
of the Union resulted in retaliation by the Company, I conclude
that Respondent violated Section 8(a)(1) as alleged in com-
plaint paragraphs 5(a) and (b).

12 In addition, Respondent’s argument in its brief suggests that the
recollection of Hart and Carter about these statements may be less than
reliable. I disagree and credit them both. Neither Winters nor Hopkins
disputed the statements attributed to them.
2. The 8(a)(3) allegations
Section 8(a)(3) provides that it is an unfair labor practice for
an employer to discriminate “in regard to hire or tenure of em-
ployment or any term or condition of employment to encourage
or discourage membership in any labor organization.” The
elements of a discrimination case under Section 8(a)(3) include:
(1) showing that the employee engaged in protected activity;
(2) proving that the employer knew about the employee’s pro-
tected activity; and (3) establishing the employer’s hostility
toward the employee’s activity. Best Plumbing Supply, 310
NLRB 143 (1993). NLRB v. Transportation Management
Corp., 462 U.S. 393, 401 (1983), approving the Board’s test in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), sets forth the ana-
lytical model applicable to all 8(a)(3) cases that turn on the
issue of motivation.
Under the Wright Line test, the General Counsel has the bur-
den of showing that union activity constituted a motivating
factor for an employer’s adverse action against an employee.
More precisely, this means that the General Counsel has the
burden of persuading the fact finder that the employee’s pro-
tected conduct, in fact, amounted to a motivating factor for the
employer’s action. Webco Industries, 334 NLRB 608 fn. 3
(2001). In assessing whether the General Counsel has met his
burden of persuasion, the fact finder may consider the explana-
tion provided by the employer for the adverse action. Holo-
Krome Co. v. NLRB, 954 F.2d 108, 113 (2d Cir. 1992). The
Wright Line test applies regardless of whether the case involves
pretextual reasons or dual motivation. USF Dugan, Inc., 332
NLRB 409, 413 (2000). However, a finding of pretext neces-
sarily means that the reasons advanced by the employer either
did not exist or were not in fact relied on, thereby leaving intact
the inference of wrongful motive established by the General
Counsel. Limestone Apparel Corp., 225 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982).
If the General Counsel establishes that the employee’s pro-
tected activity motivated the employer’s decision, the burden of
persuasion shifts to the employer to establish, as an affirmative
defense, that it would have taken the same action even if the
employee had not engaged in the protected conduct. Best
Plumbing Supply, supra. Because the employer bears the bur-
den of persuasion, not merely production, Transportation Man-
agement Corp., supra, it cannot simply recite a legitimate rea-
son for the discharge but must “persuade by a preponderance of
the evidence that the same action would have taken place even
in the absence of the protected conduct.” Roure Bertrand Du-
pont, Inc., 271 NLRB 443 (1984).
On the other hand, an employer violates Section 8(a)(1) of
the Act by taking adverse action against an employee based on
its good-faith but mistaken belief that the employee committed
serious misconduct while engaging in activity protected by
Section 7 of the Act. NLRB v. Burnup & Sims, Inc., 379 U.S.
21 (1964). These types of cases require no specific showing of
a prohibited motive in order to find the employer’s adverse
action unlawful. Tracer Protection Service, 328 NLRB 734
(1999). Where an employer imposes some form of adverse
action against an employee for alleged misconduct arising out
of protected activities, the employer has the burden of showing
BANTA CATALOG GROUP 1323
that it held an honest belief that the employee engaged in seri-
ous misconduct. If the employer meets that burden, the Gen-
eral Counsel must then show affirmatively that the misconduct
did not occur. Pepsi-Cola Co., 330 NLRB 474, 475 (2000);
Rubin Bros. Footwear, Inc., 99 NLRB 610 (1952).
In this case, I conclude that the Burnup & Sims test applies to
the July 13 discipline of Blazek for allegedly leaving his work-
station early in order to serve as the Union’s election observer
on June 26. I conclude that the Wright Line test applies to the
remaining disciplinary actions Respondent took against Blazek.
I turn now to consider each individually.
Complaint Paragraph 6(a)—Barring Blazek from Pre-
press: An employer violates Section 8(a)(1) and (3) of the Act
by changing an employee’s working conditions to deter and
discourage union activities. Nortech Waste, 336 NLRB 554
(2001). (Discriminatorily reassigning a union activist to a job
that would increase her risk of injury and to isolate her from
other employees); Parts Depot, Inc., 332 NLRB 670, 671
(2000). (Discriminatorily restricting an employee’s movements
around the plant after learning about her union activity.); CVN
Cos., 301 NLRB 789, 792 (1991). (Discriminatorily requiring
an employee active in union organizing to provide written veri-
fication from a security guard as to when she left the company
premises.) Generally speaking, an employer cannot ban discus-
sions that pertain to unions or unionization during worktime
while permitting employees to discuss other nonwork matters.
Industrial Wire Products, 317 NLRB 190 (1995).
Here, Respondent permitted pressmen to engage in idle small
talk with the pre-press employees when they went to that area
for work purposes. Occasionally, pressmen even went there
during worktime solely to discuss personal matters with pre-
press employees. Yet, when the union organizing campaign
began, Respondent’s managers encouraged floor supervisors to
limit and restrict small group gatherings of all kinds in an obvi-
ous effort to stifle employee discussions that might relate to
unionizing. In this atmosphere, I credit Blazek’s assertion that
Sherbing barred him from going to the pre-press room on June
20 expressly because another manager feared that he would be
promoting unionism among the pre-press employees during his
visits to that department.13
I reject Respondent’s contention that this amounted to a mere
misunderstanding that Scherbing promptly corrected after he
learned that Blazek had been “childishly” leaving materials in
the pre-press entryway. In fact, Scherbing made no effort to
rectify the situation until immediately after it became the sub-
ject of the first unfair labor practice charge. As this restriction
departed from the standard procedure whereby pressmen rou-
tinely had access to the pre-press department in connection with
their work duties, I find Respondent violated Section 8(a)(1)
and (3) by barring Blazek from the pre-press area in an effort to
stifle his union activity.
Complaint Paragraph 6(b)—The July 13 Verbal Warn-
ing. Section 102.69 of the Board’s Rules and Regulations pro-

13 It follows that I do not credit Sherbing’s carefully shaded testi-
mony that eschews any disparate purpose and that implicitly attributed
the limited withdrawal of the restriction on July 19 to something other
than the filing of the unfair labor practice charge a few days before.
vides that “[a]ny party may be represented [at the election] by
observers of its own selection, subject to such limitations as the
Regional Director may provide.” It follows that Section 7 pro-
tects employees who serve as NLRB election observers and that
an employer violates Section 8(a)(1) and (3) of the Act by dis-
ciplining or otherwise interfering with employees who do so.
See, e.g., Lemon Drop Inn v. NLRB, 752 F.2d 323, 326 (8th Cir.
1985); NLRB v. Builders’ Supply Co. of Houston, 410 F.2d 606,
609 (5th Cir. 1969).
The General Counsel argues that a violation has been estab-
lished as to this issue by an analysis of the facts under either
Wright Line or the Burnup & Sims. Respondent, in effect, con-
tends that Blazek abandoned his station at a critical time on
June 26 without obtaining the approval by any supervisor or
manager.
As noted, I find the Burnup & Sims analytical model applies
here. As Respondent concededly disciplined Blazek for alleged
misconduct in connection with his service as the union ob-
server, the General Counsel prevails if no credible basis exists
to find that Blazek, in fact, engaged in the misconduct attrib-
uted to him, i.e., failing to obtain supervisory approval to leave
early so he could serve as the union’s election observer.
I credit Blazek’s claim that he twice obtained approval to
leave his workstation early on June 26. The first occurred on
Monday June 24 when he spoke with Acting Shift Supervisor
Nolen and second occurred shortly before noon on June 26
when he spoke with Supervisor Twomey. As Nolen failed to
testify, nothing contradicts Blazek’s testimony concerning their
brief exchange on the morning of June 24. I find no basis ex-
ists for discrediting Blazek’s uncontradicted testimony about
his brief discussion with Nolen. Sherbing and Weiss’ hearsay
assertions that Nolen denied speaking with Blazek about leav-
ing early on June 26 fail to meet the burden of showing that
Blazek, in fact, engaged in misconduct.
In addition, I credit Blazek’s claim that he spoke directly to
Shift Supervisor Twomey just before noon on June 26 about
leaving early that day to serve as an election observer over
Twomey’s contrary claim. Even though Respondent termi-
nated Twomey in September and he appeared at the hearing as
a General Counsel witness, I nevertheless find it improbable
that Blazek failed to inform Twomey about his early departure
on June 26 for three principal reasons. First, Twomey ac-
knowledged that Blazek became very cautious in the days lead-
ing up to and following the election. Second, everyone ac-
knowledges that Blazek informed Max Hopkins Jr., his shift
supervisor the following day, that he needed to leave early
again to serve as an observer. Third, pressman Randy Hart
recalled that Twomey had told him during the afternoon of June
25 that he had to “look for someone for [Blazek]. He’s got
something to go with the union.” This collection of circum-
stances strongly supports Blazek’s account.
Moreover, I find Respondent’s assertions grounded on Eli-
ason’s presence exaggerated, misleading, and untruthful. Re-
gardless of the time that Eliason actually arrived at the plant,
the July 19 tape recording contains an outright admission by
Scherbing that, as Blazek repeatedly claimed, Eliason became
agitated because of the inability of anyone to locate replace-
ment oil for the folder after he completed his repairs. The
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
claim by Sherbing and Hopkins that every experienced press-
man knows that oil is readily available at each press only con-
tributed to the utterly untruthful quagmire Respondent got itself
into attempting to justify this egregious disciplinary action.
Finally, Scherbing’s failure to even raise the issue with Blazek
until a week later contributes to the conclusion, which I have
reached, that Respondent fabricated the basis for this discipli-
nary action.
Accordingly, I find that Respondent failed to establish with
credible evidence that Blazek engaged in any misconduct in
connection with leaving his workstation 90 minutes early to act
as the Union’s election observer on June 26. It follows that the
documented verbal warning Respondent issued to Blazek on
July 13 violated Section 8(a)(1) and (3), as alleged.
Complaint Paragraphs 6(c), (d), and (e)—The August
29”enhanced” warning and the denial of Blazek’s pay in-
crease. General Counsel does not contest Respondent’s right
to discipline Blazek over the confrontation he had with Engel-
stad on August 8. Instead, the General Counsel asserts that
Blazek would have received only a verbal warning over this
incident under Respondent’s progressive disciplinary system if
Respondent had not previously issued an unlawful verbal warn-
ing to him on July 13. The General Counsel further argues that,
without this particular written warning, Blazek would have
qualified for a pay increase even under Respondent’s new Au-
gust 20 policy but for the August 8 written warning.
Respondent argues that the August 8 incident between
Blazek and Engelstad warranted a written warning and justified
the denial of Blazek’s pay increase on two grounds: first,
Blazek’s prior verbal warning of July 13 fully justified the issu-
ance of a written warning under the progressive disciplinary
policy; and second, the altercation between Blazek and Engel-
stad constituted serious infraction “that disrupted operations,
raised potentially dangerous safety problems that could have
caused bodily injuries as well as damage to product and equip-
ment.” Consequently, Respondent claims that the written
warning for this incident “would have been fully justified” even
in the absence of the prior verbal warning. Since Respondent
believes that this written warning to be fully justified, it was
entitled to deny Blazek’s yearly wage increase.
Discipline that arises from prior unlawful discipline violates
the Act. Care Manor of Farmington, Inc., 318 NLRB 725
(1995); Dynamics Corp., 296 NLRB 1252, 1254 (1989), enfd.
928 F2d 609 (2d Cir. 1991). I find that the General Counsel
has met the Wright Line burden as to these allegations by mak-
ing a prime facie showing that the August 29 warning and the
denial of Blazek’s 2002 pay increase resulted directly from his
unlawful verbal warning in July. In view of my conclusion that
the July 13 warning violated the Act, Respondent’s Wright Line
burden here required it to persuasively show that Blazek mer-
ited a written warning without reference to the July 13 warning.
Teledyne Advanced Materials, 332 NLRB 539 (2000).
Respondent contends that Blazek deserved the August 29
written warning without regard to the unlawful July 13 verbal
warning because of the seriousness of his altercation with
Engelstad. However, Engelstad received a verbal warning over
the incident and Respondent made no attempt to establish
greater culpability on Blazek’s part for whatever occurred be-
tween the two of them. In fact, the record contains virtually no
reference to the incident apart from the vague warning itself
and a very oblique reference to it by Blazek. For this reason, I
find Respondent’s claim that Blazek merited a written warning
under the progressive disciplinary system unpersuasive. In-
stead, the fact that Engelstad, the other participant in the alter-
cation, received a verbal warning for his part in the incident
strongly supports an inference that Blazek too would have re-
ceived the same discipline absent his prior unlawful discipline.
Accordingly, I find Respondent failed to meet its burden of
persuasion under Wright Line and conclude that it violated
Section 8(a)(1) and (3) by issuing Blazek a written warning
concerning his August 8 incident with Engelstad. It follows
that Respondent also violated Section 8(a)(1) and (3), as al-
leged, by applying its new “written warning” policy to deny
Blazek a 2002 wage increase.
Complaint Paragraphs 6(f) and (g)—Blazek’s suspension
and termination. The General Counsel argues that Respondent
targeted Blazek for termination because of his protected union
activity. General Counsel notes that his supervisors all re-
garded him as an excellent pressman who produced a lot of
work and that he had no prior production-related discipline
before the events in November and December 2002. In the
General Counsel’s view, Sherbing’s remark to Twomey after
Respondent issued Blazek a written warning on August 29
warning to the effect that they would have had Blazek by that
time if they had a safety director with “balls” betrays Scherb-
ing’s continuing discriminatory intent. In addition, the General
Counsel contends that the entire basis for the Respondent’s
conclusion that Blazek should be held responsible for the diffi-
culties encountered with the Minnesota tax form and GPO pro-
jects is based primarily on Scherbing’s incredible testimony
and that it is a pretext used to finally rid itself of Blazek.
Respondent argues that Blazek’s became angry and with-
drawn following the Union’s defeat in the June representation
election. Eventually, Respondent contends, his sullen deport-
ment led to his inability to properly direct his crew and pay
attention to his job. Respondent points to the uncontested dis-
ciplinary actions of August 29 and October 30 as well as Kry-
siak’s description of Blazek’s hostile and argumentative actions
at a crew meeting in late October or early November as exam-
ples of his unacceptable behavior that preceded his work defi-
ciencies in November and December. Respondent contends
that Scherbing properly investigated and identified the crews
responsible for the defective work performed on November 7
and 29, and December 5. As a result of this investigation, he
properly concluded that “not only was Blazek directly respon-
sible for failing to prevent these unacceptable signatures from
being discarded, but also that he had improperly allowed them
to be put on pallets and shipped to the bindery where they
would be incorporated with other materials for shipment to the
customer. Following a through consideration of the facts in-
volved in these “instances where his neglect, intentional or
otherwise, resulted in defective product being produced” the
Company’s decision makers unanimously concluded that . . .
termination was the only appropriate action.”
In my judgment, General Counsel has provided a very per-
suasive case that Blazek’s termination actually resulted from
BANTA CATALOG GROUP 1325
Respondent’s strong union animus. All acknowledge Blazek’s
open and militantly prounion stance during the period leading
up to the election. The unlawful conduct directed at Blazek
both before and after the NLRB election, the wide-open and
cynical badgering of Blazek in the preelection period, and man-
agement’s immediate interference with the early organizing
efforts by the warehouse and bindery employees demonstrates
the deeply-held and unrestrained union animus which exists
among Respondent’s managers and supervisors. Johnson’s
response to Twomey suggesting that it would not hesitate to use
its disciplinary procedures to quell the uprising for representa-
tion is consistent with what occurred shortly after the NLRB
election. I find Respondent’s later effort to pin primary respon-
sibility for the Minnesota tax form job on Blazek totally trans-
parent especially in the face of Carter’s specific acknowledg-
ment of responsibility and Hopkins’ nearly continuous presence
when the defective product was allegedly produced. This
strange allocation of responsibility, which I find to be com-
pletely at odds with the plant’s culture concerning the responsi-
bilities of the first and second pressmen, is entirely consistent
with Respondent’s prior, unlawfully-motivated disciplinary
actions against Blazek and the conclusion that Respondent was
simply out to get him. Finally, the remarks by Supervisors
Hopkins and Winters following Blazek’s suspension provide
strong support for concluding that Blazek’s militant union ac-
tivity motivated his suspension and termination.
As the General Counsel met the burden of establishing that
Respondent’s suspension and termination resulted from
Blazek’s protected activity, Respondent had the burden of
showing that it would have taken the same action even absent
that activity. Respondent failed to show persuasively that it
would have occurred. First, even assuming that Blazek had
primary responsibility for the Minnesota tax form job (which I
do not), other evidence shows significant errors occurred on
other jobs throughout the year but Respondent failed to produce
any precise evidence about the nature of the disciplinary action
taken, if any, in those other situations. Such evidence would
have gone a long way toward establishing that the disciplinary
action taken against Blazek was consistent with its usual prac-
tices.
Second, the General Counsel correctly notes that the expla-
nations for the actions taken against Blazek rests almost en-
tirely in the lap of Scherbing, a witness whose veracity I cannot
trust in view of his unsuccessful effort to pin blame on Blazek
for a production interruption of serious proportions when he left
to serve as the election observer. Scherbing’s exaggerated
story about the loss of production time on that occasion until
pressman Walters arrived totally collapsed after it was shown
that Walters did not work at all that night. In addition, I found
Scherbing’s explanation for waiting until July 19, 4 days after
the filing of the first unfair labor practice charge, to correct
Blazek’s alleged misunderstanding about being barred from the
pre-press room entirely disingenuous. Likewise, I find his
bland assertion that the other crews had no wrinkling problems
on the Minnesota job extremely dubious in view of their crew
reports. Krysiak even went out of his way to contradict Scherb-
ing’s positive placement of Blazek at the production end of the
press on the December 5. In short, I find his veracity highly
questionable and I am reluctant to credit his testimony absent
substantial corroboration. Critical portions of Scherbing’s tes-
timony lack the corroboration obviously available.
Third, even though Respondent went to substantial lengths to
attach primary blame on Blazek for failing to attend to his sec-
ond pressman duties on the Minnesota tax job, it completely let
the second pressman off the disciplinary hook for the alleged
defects on the November 29 and December 5 GPO work. This
type of inconsistency, against the background of the extreme
union animus harbored by Respondent’s managers and supervi-
sors and Carter’s explicit acceptance of responsibility for pass-
ing the November 7 work on to the bindery, strikes me as com-
pletely incomprehensible and consistent with its targeting of
Blazek. Nor do I find this inconsistency explained at all by the
disparity in pressman experience. Carter’s conduct on Novem-
ber 7 certainly does not reflect that of an inexperienced press-
man regardless of his classification. Furthermore, Hopkins was
at his side through most of that morning.
Fourth, Respondent’s assertion that Hopkins played no role
in the disciplinary decision taken against Blazek for the No-
vember 7 Minnesota work is either incomprehensible or in-
credible in view of his considerable presence at the scene for
such a lengthy period in his capacity of acting pressroom man-
ager due to Scherbing’s absence. Either way, Respondent’s
failure to demonstrate what type of role its own acting press-
room manager at the scene played in its investigation the Min-
nesota job simply fails to inspire confidence that its motive are
honest. Even a modicum of the discourse that surely occurred
between Scherbing and Hopkins during the investigation he
allegedly conducted concerning the Minnesota project might
have served to explain the legitimacy of Scherbing’s ultimate
assessment of responsibility. Its absence, when considered
together with the fact that Hopkins made a postsuspension
comment strongly implying that Respondent, in effect, had
been out to get Blazek because he did not know when to quit
with his protected activities, lends substantial support to the
conclusion Blazek’s union militancy caused to his suspension.
Fifth, I simply fail to sympathize with the Respondent’s
claim that Blazek’s attitude deteriorated after the NLRB elec-
tion. No doubt, he became very circumspect about Respon-
dent’s motives following the July 13 verbal warning but, in my
judgment, he had good cause to do just that. The hubris so
unquestionably evident in its managers’ refusal to accept
Blazek’s explanation for leaving his station ninety minutes
early to serve as the election observer, their extreme delay in
even questioning this conduct, and the failure to produce Nolen
as a witness simply colored my whole perception of Respon-
dent’s entire defense in this case. That was particularly so
when it turned out that the Blazek’s assertions about the source
of Eliason’s discontent turned out to be admitted by Scherbing
on July 19.
In sum, Respondent failed to persuade me by a preponder-
ance of the evidence that it would have taken the same action
against Blazek even absent his union activity. Here, Respon-
dent adduced a considerable amount of weak evidence when
strong evidence was obviously and readily available. Hence,
the inference is warranted that the stronger evidence would not
support the proposition Respondent advanced. Interstate Cir-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
cuit v. U.S., 306 U.S. 208 (1939). Accordingly, I find Respon-
dent failed to meet its Wright Line burden and that it violated
Section 8(a)(1) and (3) by suspending and discharging Blazek.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act by issuing Mike Blazek a documented
verbal warning on July 13, and by telling employees that an-
other employee had been terminated for engaging in union
activities.
4. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act by discriminatorily denying
Blazek access to the pre-press room, by enhancing Blazek’s
August 29 discipline to the level of a written warning based on
the unlawful July 13 warning, by denying Blazek a wage in-
crease based on the unlawfully enhanced written warning of
August 29, by suspending Blazek on December 13, and by
discharging Blazek on December 19.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
To remedy Blazek’s discriminatory discharge, Respondent
must offer him reinstatement and make him whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950). To remedy the unlawful denial of a
wage increase in September 2002, Respondent will be required
to reimburse Blazek for the difference between what he would
have earned from the date such an increase would have become
effective and what he actually earned to the date of his dis-
charge. Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971). Interest must be added to the
backpay amounts due under both methods of computation as
provided in New Horizons for the Retarded, 283 NLRB 1173,
1174 fn. 12 (1987). For periods following the date of Blazek’s
discharge, the increased wage rate he would have received in
September (as well as other increases he would have received
thereafter) should be used in the backpay remedy ordered.
Respondent must further expunge from any of its records any
reference to Blazek’s July 13 warning, and his subsequent sus-
pension and discharge, and notify him in writing that such ac-
tion has been taken and that any evidence related to those disci-
plinary notices will not be considered in any future personnel
action affecting him. Sterling Sugars, Inc., 261 NLRB 472
(1982). Having concluded that Respondent unlawfully en-
hanced Blazek’s August 29 disciplinary action under it’s pro-
gressive disciplinary system, it will be required to designate
that actions as a documented verbal warning and notify Blazek
in writing that such action has been taken.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, Banta Catalog Group, A Division of Banta
Corporation, Maple Grove, Minnesota, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees by telling them that an employee
had been discharged because of his union or protected con-
certed activity.
(b) Prohibiting access plant areas where employees typically
go in the course of their work in order to prevent employee
discussions about topics protected by Section 7 of the National
Labor Relations Act (Act).
(c) Taking disciplinary action against employees because
they act as union observers at a representation election con-
ducted by the National Labor Relations Board.
(d) Enhancing disciplinary action under its progressive disci-
plinary system based on prior unlawful discipline.
(e) Denying employee wage increases based on unlawfully
enhanced discipline.
(f) Discharging, suspending, or otherwise discriminating
against any employee for supporting Graphic Communications
International Union, Local 1-M, or any other union.
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mike
Blazek full reinstatement to his her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Mike Blazek whole with interest for any loss of
earnings and other benefits suffered because of the discrimina-
tion against him, in the manner set forth in the Remedy section
of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the Mike Blazek’s July 13 disciplinary
action, December 13 suspension, and December 19, 2002 dis-
charge, and within 3 days thereafter notify the Blazek in writing
that this has been done and that these three disciplinary actions
will not be used against him in any way.
(d) Within 14 days from the date of this Order, modify the
disciplinary action taken against Mike Blazek on August 29 to
the level of a documented verbal warning, and within 3 days
thereafter notify Blazek in writing that this has been done.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause

14 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
BANTA CATALOG GROUP 1327
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under this Order.
(f) Within 14 days after service by the Region, post at its fa-
cility in Maple Grove, Minnesota, copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since July 15, 2002.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and pro-
tection
Choose not to engage in any of these protected activities.

WE WILL NOT threaten employees by telling them that another
employee had been discharged because of his union or pro-
tected concerted activities.
WE WILL NOT prohibit access to plant areas where employees
typically go in the course of their work in order to prevent em-
ployee discussions about topics protected by Section 7 of the
Act.
WE WILL NOT take disciplinary action against an employee
because he/she chooses to act as a union observer at a represen-
tation election conducted by the National Labor Relations
Board.
WE WILL NOT enhancing discipline under our progressive
disciplinary system based on prior unlawful discipline.
WE WILL NOT deny employee wage increases based on
unlawfully enhanced discipline.
WE WILL NOT discharge, suspend, or otherwise discriminate
against any employee for supporting Graphic Communications
International Union, Local 1–M, or any other union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees because they chose to exercise
rights guaranteed to them by Section 7 of the Act.
WE WILL offer Mike Blazek full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Mike Blazek whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him together with interest as provided by law.
WE WILL reduce the written warning issue to Mike Blazek on
August 29, 2002, to a documented verbal warning and thereaf-
ter notify Blazek in writing that this has been done.
WE WILL remove from our files any reference to the Mike
Blazek’s July 13 documented verbal warning, his December 13
suspension, and his December 19, 2002 discharge, and thereaf-
ter notify Blazek in writing that this has been done and that
these three disciplinary actions will not be used against him in
the future in any way.
BANTA CATALOG GROUP, A DIVISION OF
BANTA CORPORATION