Bond Press, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1981

254 N.L.R.B. 1227 (N.L.R.B. 1981)

39-
a
Inc.. F.2d (3d
11.
In
prehear-
r e
Inc.. 179 d
1 (1%1)),
Rossley's
layom Rmsley
Rmsley's
Sec. 8(aX3)
Fwds Inc.,
(1979).
w e
unnecesssry
1qc)
l(b):
self-orga-
nization,
1227 THE BOND PRESS, INC.
The Bond Press, Inc. and Thomas J. Rossley and
Herbert C. Sylvester. Cases 39-CA-2 and
CA-53
March 10, 1981
DECISION AND ORDER
On October 15, 1980, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel resubmitted the brief on behalf of counsel for
the General Counsel to the Administrative Law
Judge in support of the Administrative Law
Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as
modified herein.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950). enfd. 188 362 Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
We note that the Administrative Law Judge admitted into evidence
portions of four letters dated December 4, 5, and 27, 1979, and February
1980. These letters were from Respondent's counsel to the counsel for
the General Counsel after Respondent had been informed by the Region-
al Director of the filing of unfair labor practice charges. her Decision.
the Administrative Law Judge relied on these letters to demonstrate that
Respondent's arguments at the hearing were inconsistent with its
ing positions. Respondent's excepts to the Administrative Law Judge's
liance on the letters arguing that its position is not inconsistent. While it
is well settled that the admission of these letters into evidence was proper
(Stew Aloi Ford. NLRB 229. fn. 2 (1969); Ablon Poultry Egg
Company, 134 NLRB 827, fn. we find it unnecessary to rely on
them inasmuch as the other findings and conclusions of the Administra-
tive Law Judge, including Respondent's awareness of and Syl-
vester's union activity through their participation in negotiating sessions
and their persistent plant searches for Bond's use of the union label in
front of supervisors, the fact that the of Sylvester and
eliminated all union influence in Respondent's operations, the timing of
the layoffs, Respondent's exaggeration of Sylvester's and lack
of skills and versatility, and Respondent's sudden intolerance of their tar-
diness and absenteeism while tolerating similar behavior from Hodges,
the least senior composing room floorman, are sufficient to establish that
the layoffs of Sylvester and Rossley were in violation of of
the Act.
Respondent has excepted to the Administrative Law Judge's recom-
mended broad cease-and-desist order. In Hickmott 242 NLRB
1357 we held that such broad injunctive language is warranted
only when a respondent has been shown to have a proclivity to violate
the Act, or has engaged in such egregious or widespread misconduct as
t o demonstrate a general disregard for the employees' fundamental statu-
tory rights. Contrary to the Administrative Law Judge, we d o not find
that the instant violations meet this test. Consequently, shall modify
the Administrative Law Judge's recommended Order to require Re-
spondent to cease and desist from violating the Act "in any like or relat-
ed manner."
Member Jenkins would affirm the Decision of the Administrative Law
Judge, but would find it to rely on Wright Line. A Division of
Wright Line, Inc.. 251 NLRB 1083 (1980). or analyze the case under that
principle, for here, after all the detailed examination of Respondent's rea-
sons for o r defenses of the discharges, the upshot is that its reasons must
254 NLRB No. 152
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
The Bond Press, Inc., Hartford, Connecticut, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
so modified:
1. Substitute the following for paragraph
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
be rejected as untrue, and the case is thus one of "pretext," as to which a
Wright Line analysis adds nothing.
APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

After a hearing at which all parties participated
and offered evidence, the National Labor Relations
Board has found that we unlawfully laid off
Thomas J. Rossley and Herbert C. Sylvester be-
cause they engaged in lawfully protected union ac-
tivities, and it has ordered us to post this notice
and abide by the following:
WE WILL NOT discourage membership in
Central Connecticut Typographical Union,
Local 679, or any other labor organization, by
unlawfully laying off any employees or dis-
criminating against them in any other manner
with respect to their hire or tenure of employ-
ment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National Labor Rela-
tions Act, as amended, to engage in
to form, join, or assist any union, to
bargain collectively through representatives of
their own choosing, to engage in activities to-
gether for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from the exercise of any or all such activities.
WE WILL offer Thomas J. Rossley and Her-
bert C. Sylvester immediate and full reinstate-
ment to their former jobs or, if those jobs no
8(a)(l)
$50,000
$50,000
2(2),
' O'Leary, Esq..
entered
Lasky,
679),
2(5)
f l o ~ r m e n , ~
Swen-
(1935), (1947),
(1948), (1969),
A1 Norbut,
floorrnen
floorman
rnateri-
al.3
Elrod
function^.^
*
makeuu. ooerated Elrod
1960's,
a Rnpondent
movement
Respondent employees
amoulrt
floormen
changn,
'
Rnpondent's
1228 D E C I S I O N S O F N A T I O N A L L A B O R R E L A T I O N S B O A R D
longer exist, to substantially equivalent jobs,
without prejudice t o their seniority o r any
other rights o r privileges previously enjoyed,
and WE WILL make them whole, with interest,
for any loss of earnings they may suffered be-
cause w e unlawfully laid them off.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge: Upon
charges filed on November 23 and December 18, 1979,
against The Bond Press, Inc. (hereinafter the Respond-
ent), the General Counsel issued an order consolidating
cases, and complaint and notice of hearing on December
19, 1979. The complaint alleged that on July 24, 1979,
the Respondent unlawfully laid off employees Herbert C.
Sylvester and Thomas J. Rossley for engaging in con-
certed activities in violation of Section and (3) of
the National Labor Relations Act, as amended (herein-
after the Act). The Respondent filed a timely answer
denying the commission of the alleged unfair labor prac-
tices.
Thereafter, on June 10, 11, and 23 and on August 1,
1979, a hearing was held before me in Hartford, Con-
necticut, at which time all parties were given an oppor-
tunity to examine and cross-examine witnesses.' Subse-
quently, briefs were submitted by the General Counsel
and the Respondent. In addition, the Respondent was
permitted to file a reply brief addressed solely to the
General Counsel's arguments based on statements in the
Respondent's pre-trial position papers.
Upon consideration of these briefs and the entire
record, and based on my observation of the witnesses'
demeanor, I make the following:
A. Jurisdictional Findings
1. The business of the Respondent
The Respondent, a corporation having its office and
place of business in Hartford, Connecticut, is in the com-
mercial printing business. During the calendar year
ending December 31, 1979, the Respondent, in the
course and conduct of its operations, sold and shipped
from its Hartford facility products, goods, and materials
valued in excess of directly to points outside the
State of Connecticut and received goods and materials
valued in excess of from outside the State. Upon
the foregoing facts, the General Counsel alleges, the Re-
spondent concedes, and I find that the Respondent is en-
gaged in commerce within the meaning of Section
(6). and (7) of the Act.
On August I , the final day of the hearing. Timothy
his appearance for the General Counsel replacing the former
counsel, Ronald Esq.
2. The labor organization involved
The Central Connecticut Typographical Union, Local
679 (hereinafter Local is now, and has been at all
times material herein, a labor organization within the
meaning of Section of the Act.
B. The Alleged Unfair Labor Practices
I . Background
The Respondent prints and reproduces a wide variety
of materials ranging from bond proposals to insurance
booklets. The Company is divided into 12 functional di-
visions with a total work force of approximately 65 em-
ployees. In 1979, one of these divisions, the composing
room, had a labor force of nine men, five of whom were
categorized generally as and four of whom
were linotype operators.
The floormen, listed by date of hire, were Eric
son Herbert Sylvester Herman Hecker
Thomas Rossley- and James Hodges
(1972). The linotype operators by seniority were Stanley
Flower, Sam Limanni, and Frank Murtha.
Work was assigned to the on a daily basis by
a supervisor. Although they performed a variety of tasks,
and work was somewhat interchangeable, each
was assigned primarily to one or two particular func-
tions. Thus, Swenson was especially engaged in working
on page makeup but also did lockup work, pulled repro-
duction proofs, and collected and assembled line
Sylvester's work records show that he did extensive
lockup work and spent lesser percentages of his time
working on repro proofs, galley proofs, and makeup. On
occasion he also ran the Ludlow and machines.
Hecker cleaned up around the machines prior to the start
of the workday, corrected galleys, placed them into
longer galleys, and assisted with the smelting
Rossley, like Swenson, did a substantial amount of page
but also the and Ludlow ma-
chines and pulled reproduction proofs. Hodges did much
of the reproduction proof presswork and also did page
makeup, handled smelting functions, and did some lino-
type work on a backup basis.
In the early
s .

Respondent entered into a collec-
tive-bargaining relationship with Local 127 of the Cen-
tral Connecticut Typographical Union. As a signatory to
successive union contracts and an employer of union
members, the Respondent was authorized to imprint the
CTU union label on materials such as union pension
booklets or political campaign literature.
The term "floormen" is used by the to identify those
composing room employees whose work requires around the
floor of the shop rather than remaining stationary at one machine.
The required that its maintain daily job cards
on which they recorded the of time expended on various func-
tions. The functions performed by are listed on the job cards
and include tasks identified as hand composition, office corrections.
makeup, lockup, press special proofs, repro proofs, galley
proofs, type distribution, unlocking and storing, cutting material, kill
type, smelting, cleanup repairs, and idle.
Smelting entails transferring 30 pound trays of used type from the
composing room to the roof of the plant where it is melted
down into ingots for reuse.
Swenson,
onlv Res~ondent's com~osine -
employees, a;ld
members hi^.
18,
$600 backpay
5600
15,
of
51,000 52,000
Ross-
furthir acknowledged
chargea-
1229 THE BOND PRESS. INC.
The 1973 contract, like its predecessors, provided that,
where reductions in the composing room staff were nec-
essary, "The employee with lowest priority standing in
the office engaged upon the class of work indicated shall
be discharged first." The contract also defined the appro-
priate bargaining unit as covering "all composing room
work" and listed an extensive series of job classifications
including, among others, "hand compositors; . . . type-
setting machine operators; . . . makeup men; . . . lineup
and lockup . . . and proof-press operators." The Re-
spondent asserted that, according to these contractual
job classifications, Hecker, and Rossley, in
order of seniority, were hand-compositors and page
makeup men; Sylvester was the lockup man, and James
Hodges, the proof press operator. This contract expired
in 1976 and, although Local 127 offered to resume nego-
tiations, no new contract was executed.
2. Recent bargaining efforts
By 1978, Local 127 was defunct5 and its remaining
members had affiliated with a brother Local No. 679. By
1979, two of the nine .
room Sylvester Rossley, retained their
union Neither man had received a waee in-"
crease since the expiration of the previous bargaining
agreement although raises had been granted to the bal-
ance of the composing room staff.
The Respondent's chief officers mentioned to Sylves-
ter on several occasions in 1978 that they doubted
whether the Company needed either the union or the
union label. Nevertheless, early in 1979, the Respondent
commenced negotiations with Local 679 together with
two other area printers. After five joint bargaining ses-
sions were held between January and March, the parties
recognized that the issue of retroactive pay for Sylvester
and Rossley affected only the Respondent and agreed
that separate meetings to resolve that problem were war-
ranted. At the first of these separate meetings on March
Oswald Johnson and John Keller, Respondent's presi-
dent and executive vice president, respectively, met with
John Leach, secretary of Local 679, Sylvester, Rossley,
who then was chapel chairman6 and several other union
representatives. At this time, Respondent's initial offer of
in to Sylvester and Rossley was rejected.
At a second meeting on May 10, with the same people in
attendance, management officials again offered for
each man. The Union rejected the offer out of hand and
also advised the Respondent that it was withdrawing the
right to use the union label except for work in progress.
Immediately thereafter, Rossley collected three or four
union labels from the composing room. The following
day, he and Sylvester made further efforts to obtain
other union labels which were in the plant. About the
same time, the Respondent informed some of its clients
that it no longer had the use of the union label.
On May in an effort to restore use of the label,
Johnson telephoned Leach and Rossley, requesting an-
other meeting. Rossley told Johnson he was reluctant to
The Local's membership was located principally at a Hartford news-
paper which went out business in 1978.
In the CTU Local, the chapel chairman performed the functions of a
shop steward.
meet again unless there would be substantial movement
beyond the Respondent's previous bargaining position.
However, at Johnson's urging, a third meeting was ar-
ranged for the same day. The Respondent proffered
and then to Sylvester and Rossley with an
offer to retrain Sylvester for a photomechanical position.
The union representatives, including Sylvester and
ley, responded that the latest proposal still was unaccep-
table. Sometime after this last meeting, Johnson advised
the Union by letter that it no longer represented a major-
ity of Bond Press employees and that there would be no
further negotiations.
Throughout the next several months, on a daily basis
and in plain view of several of the Respondent's supervi-
sors, Rossley and Sylvester made spot inspections
throughout the plant to check on whether the Respond-
ent was producing printed material with the union label.
On one such occasion in mid-June, Respondent's plant
superintendent, William Kocher, asked the men if they
knew how much business the Respondent was losing be-
cause it could no longer print certain jobs for Connecti-
cut General Life. Insurance Company, a substantial cus-
tomer of materials requiring the union imprimatur.
In the belief that they had uncovered instances after
May 10 of the Respondent's improperly affixing the
union label to printed materials, Sylvester and Rossley
led the Local to write to the Respondent warning that
continued use of the label was unlawful and would sub-
ject it to the penalties of law. In fact, business records
introduced by the Respondent at the hearing tend to
show that materials bearing the union label which left
the Bond Press facility after May 10 had been ordered
and printed prior to that date.
3. The layoffs
According to the Respondent, adverse economic cir-
cumstances compelled the reduction of the composing
room labor force. The Respondent's witnesses described
a situation in which the Company's financial health had
been on the wane for several years. John Keller, Bond
Press executive vice president, explained that technologi-
cal innovations accounted for some of the Company's
losses. In particular, a change from hot metal composi-
tion to photoprinting was substantially eroding the com-
posing room's traditional work. This problem was exac-
erbated for Bond Press by an alteration in the Connecti-
cut Supreme Court rules permitting the preparation of
legal briefs by the photoprinting technique. Keller also
suggested that a general decline in the economy account-
ed for a reduction in the quantity of Bond proposal
orders. Moreover, in April 1979, the Company learned
that it no longer would be called upon to print a quarter-
ly scholarly journal. Keller that
the withdrawal of the union label and consequent loss of
business from such important insurance company clients
as Aetna, Connecticut General, and Travelers struck a
major blow to the Respondent's economic well-being. A
reduction in what the Respondent referred to as
ble
to
been
Hodges
'
parlicular
floorman
unreliability
floorman
Rossley's hours
floorman
floormen
Qtr.
Qtr.
- -
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time7 for the composing room employees, from an
average of 2,964 hours in each quarter between June
1978 and March 1979 to 1,671 hours in the third quarter
of 1979, suggests that the loss of the union label had an
adverse impact on their workload. Business records in-
troduced into evidence documented the Respondent's
economic decline. Thus, a monthly statement of Income
and Retained Earnings revealed that Respondent's annual
net loss in 1978 was $67,329. The net loss figure in Janu-
ary 1979, was $12,752; in February it was $46,615. By
April, the statement showed another net loss of $21,451
and, in May, this deficit was $20,275. On or about July
20, a 6-month summary documented a loss after taxes of
$57,720 compared to a $4,102 profit for the same period
of time in the preceding year.
After reviewing this summary, Oliver Johnson advised
the other officers of the Company that changes were
mandatory. Taking into account the long-term loss of
business, as well as the recent negative effects of the
withdrawal of the union label, the Respondent's manage-
ment team decided that layoffs were necessary and that
they would have to occur in the composing room which,
unlike other departments, had not been reduced in size
since 1977.
On July 24, the Respondent notified four composing
room employees-Sylvester, Rossley, and the two most
junior linotype operators, Limanni and Murtha, that they
were laid off due to lack of work. Sylvester received his
notice of layoff by mail on July 24, the last day of his
vacation. Rossley was informed orally at the plant by
Keller. When Rossley asked why he could not bump
Hodges, Anthony Buxh, vice president for sales, replied
that there was no union contract.
In position papers submitted the General Counsel
prior to the hearing, the Respondent stated that the se-
lection of Rossley and Sylvester for layoff was based on
seniority and ability to d o the composing room work.
Seniority, as the Respondent defined it, was based on the
job classifications specified in the 1973 collective-bar-
gaining agreement. Therefore, according to its construc-
tion of this agreement. Sylvester, as the sole lockup man,
and Rossley, as the most junior compositor, were proper-
ly selected as the employees having the least seniority in
their respective job classifications.
At the hearing and in its brief, the Respondent sug-
gested that it had no duty to follow seniority in laying
off employees, for the union contract had expired. The
Respondent also submitted that the seniority principle
had not guided layoffs in the past and did not control the
recent composing room separations. T o illustrate its ar-
gument that seniority had not affected past layoffs, the
Respondent's vice president, Anthony Busch, testified
that linotype operators, Murtha and Limanni, were laid
off in 1974 and 1975 while a junior employee, James
Hodges, was retained. However, on cross-examination,
Busch admitted that he did not know if Hodges had
hired as a linotype operator. In fact, other portions of
Busch's testimony suggest that was regarded as a
Chargeable hours refers to blocks of a composing room employee's
time which can be directly billed to a specific job for a cus-
tomer.
who had some capacity to do backup linotype
work.
At the hearing, Busch stated that, in selecting Sylves-
ter and Rossley for layoffs, the Respondent was motivat-
ed by their comparative lack of versatility in job skills,
their relatively small number of chargeable hours, and,
most important, their in terms of their at-
tendance.
With respect to Sylvester's lack of versatility, Busch
and Plant Superintendent Kocher contended that he was
incapable of performing other than lockup work, that
this work had virtually vanished and they had been un-
successful in retraining him for other work. Further, al-
though Sylvester occasionally helped out in the bindery
shop, it was costly for the Respondent to continue this
practice for he was paid at a higher wage rate than was
earned by bindery room employees.
As to Rossley, Busch testified that he did not have the
technical skills needed to run the repro proof press or
the linotype machine. James Hodges, on the other hand,
could perform both these functions. Rossley testified,
however, that he had been the Respondent's night-shift
repro proof press operator from 1%9 to 1971 and had
worked a linotype machine on a prior job although he
was uncertain whether this was known to Bond Press su-
pervisors. Further, the Respondent relied on the fact that
neither Rossley nor Sylvester was physically capable of
engaging in smelting operationss so that Hodges. and
Hecker were needed to do this work.
Busch also alleged that Sylvester and Rossley were
singled out because of their low productivity in terms of
chargeable hours, that is, working time which can be
billed directly to a specific job order. Thus, Respondent
pointed out that Sylvester consistently earned the fewest
chargeable hours per quarter of any while
chargeable were generally less than
those of Swenson, the most senior in the com-
posing room. The following table, based on the Respond-
ent's records, compares the number of chargeable hours e
produced by the five and the percentages these
hours were of the employees' total working time in two
representative quarters:
1978 4th
hour percent
Swenson

Sylvester

Heckler

Rossley

Hodges

1979 2d
hour percent
Swenson

Sylvester

Sylvester suffered a heart attack in 1975 and Rossley sustained a back
injury in 1976 and, therefore, were unable to assist with the smelting.
INC.
2d
185
Hodges
OT)
B u x h
floormen
composing
Hodges
Inc.,
(1980),
j2cie
Rossley's
su~erintendent's
regarding ~ o n n e c t i -
business
C
THE BOND PRESS, 1231
1979 Qrr.
hour percent
Heckler 37
Rossley 309 62
212 43
(19%
stressed reliability as the principal determinant
in the layoff selection process. Because Sylvester and
Rossley often arrived to work late, missed days of work
more frequently than did other and did not vol-
unteer for overtime, Busch stated they were the most
dispensable members of the room staff. The
floormen's attendance records for 1978 and 1979 show
that Sylvester and Rossley frequently arrived for work
anywhere from 5 to 20 minutes after the 8 a.m. starting
time and left shortly before the end of the working day.
Busch conceded, however, that neither man had re-
ceived any warnings about tardiness and that overtime
was on a voluntary basis. Further, the Charging Parties
indicated that their absences were due primarily to medi-
cal reasons and that this was known to management.
They further implied that the Respondent was aware of
and tolerated malingering by who wasted sever-
al hours every day chatting with other employees
throughout the plant, playing cards with supervisors
beyond the end of the lunch period, and standing in
watch while women employees left work from a nearby
building.
Discussion and Conclusions
There is little question that economic exigencies led
the Respondent to reduce its composing room staff.
However, even if it is conceded that there had to be a
work force reduction, the question remains as to whether
the Respondent chose Rossley and Sylvester for layoff
because of their union activities o r for legitimate business
considerations.
In dual motive cases such as this where legitimate and
invidious motives may coexist, the Board recently an-
nounced in Wright Line, A Division of Wright Line,
251 NLRB 1083 that a two-step test must be ap-
plied to the task of determining whether o r not a causal
relationship existed between the employees' union activi-
ties and the actions of the employer which detrimentally
affected them. Thus, the Board has imposed upon the
General Counsel the initial burden of making a prima
showing sufficient to support the inference that the
protected conduct of the employees was a motivating
factor in the employer's decision. Once this is accom-
plished, the burden is shifted to the employer to demon-
strate by a preponderance of the evidence that it would
have reached the same decision even in the absence of
the protected conduct. Wright Line, supra
Application of Wright Line to the Instant Case
Here, uncontroverted facts provide the groundwork
for the General Counsel's case-in-chief. First, it is obvi-
ous that the Respondent's officers all were keenly aware
of and Sylvester's participation in union activi-
ties. The employees played a prominent part in every
bargaining session from January through May 1979.
They initiated the demand for retroactive pay and par-
ticipated in the rejection of each of the Respondent's
successively higher wage proposals. They were instru-
mental in the Union's decision to withdraw the Respond-
ent's privilege of using the union label.
Rossley and Sylvester were the union gadflies in the
plant conducting daily searches for evidence of unau-
thorized use of the union label. Although there is insuffi-
cient evidence to establish that the label was used im-
properly after May 11, the persistent spot checks con-
ducted by the Charging Parties, in full view of their su-
pervisors; could not-have ingratiated them with manage-
ment. Moreover. the rhetorical auestion
to them a reduction of orders from
cut General Life Insurance suggests that the Respondent
held them personally responsible for the loss of thou-
sands of dollars of Sylvester and Rossley were
the only union members remaining in the Respondent's
employ by 1979. In laying them off, the Respondent was
able to rid itself altogether of union influence. Given all
these attending circumstances, the layoffs of the only
two union proponents in the plant cannot be ascribed
solely to coincidence.
T h e Respondent argued that the reduction in force, in-
cluding the separation of Sylvester and Rossley, came
about because of a decline in company business. The
record shows, however, that the decline was occurring
over a considerable period of time and that, although the
Company could have expected a diminished demand for
hot metal composition work, no mention was made of a
possible reduction in the composing room work force
prior to July. Indeed, despite known losses revealed
every month in 1979, Respondent continued negotiations
until mid-May regarding retroactive pay demands for
both Rossley and Sylvester.
In the third quarter of 1979, the number of chargeable
hours of work in the composing room dropped radically
following the loss of the Respondent's right to use the
union label. Because of the loss in revenues, which the
Respondent knew had stemmed from the withdrawal of
the label, it laid off four workers in the composing room,
including Rossley and Sylvester, the two men it held di-
rectly responsible for those losses. The suspicious timing
of the Respondent's abrupt decision, coupled with its in-
evitable resentment toward employees who dealt the
Company a devastating blow, provides an ample basis
for inferring that the layoffs were in retaliation for the
employees' protected activity.
As further proof that the layoffs by Sylvester and
Rossley were in reprisal for their union activity, the
General Counsel argued that the Respondent ignored the
seniority provisions of the collective-bargaining agree-
ment.
T h e Company's response to this argument is inconsist-
ent and unconvincing. A t the hearing and in its brief, it
contended it was not bound by the agreement and did
not take seniority into account in deciding who would be
laid off. However, in its position papers submitted prior
to the hearing, the Respondent took a contrary position
stating that seniority was a consideration in the layoffs.
floormen
floor-
~espondent
room.9
collective-
at., 1108 N.L.R.B. Tekner-
F.2d (1st
179
O I t
Murtha
alleged. a
Hodges
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, it interpreted the seniority provisions of the (1) Versatility
agreement in a manner which required release of Rossley
as the least senior hand compositor and Sylvester as the
sole lockup man. This interpretation does not survive
close scrutiny.
It is clear from the entire record that composing room
employees were not stratified into the rigid job classifica-
tions suggested by the Respondent but were regarded
simply as linotype operators or as who per-
formed a variety of functions, some more frequently than
others. If the Respondent had a seniority system which
governed layoffs it would be based on these two catego-
ries. The job classifications created by the Respondent in
its initial position papers are, then, nothing more than
references to the various tasks performed by the
men. It is apparent that the superimposed an
arbitrary system of job classifications on its composing
room employees in order to support the contention in its
position papers that Sylvester and Rossley were laid off
in compliance with the seniority clause in the union con-
tract.
There would be little quarrel with the validity of the
Respondent's approach had it elected to lay off employ-
ees on the basis of a neutral standard which accurately
reflected the seniority structure in its composing
However, the Respondent subsequently abandoned the
theory advanced in its position papers that the
bargaining agreement was controlling, and denied that
seniority influenced the layoffs. In fact, the Respondent's
contract with Local 127 expired in 1976 and was not re-
newed. Where, as here, a collective-bargaining agree-
ment has expired, an employer is under no obligation to
observe seniority in taking any personnel actions includ-
ing temporary separations. See Midwest Stock Exchange,
Inc., et 244 NLRB (1979); v.
Apex Co., 468 692, 694 Cir. 1972). The issue,
then, is not whether Respondent was bound by and un-
lawfully deviated from a seniority clause in a contract.
Rather, the issue is one of credibility. Why did the Re-
spondent first claim adherence to a seniority standard
and then deny that the layoffs were governed by them.
When an employer vacillates in offering a rational and
consistent account of its actions, an inference may be
drawn that the real reason is not among those advanced.
Steve Aloi Ford, Inc., NLRB 229 (1969). Such an in-
ference is warranted here.
From all the foregoing, I conclude that the General
Counsel has made a prima facie showing that Sylvester
and Rossley's union activity was a significant factor mo-
tivating their layoffs.
In response, Bond Press stated that it laid off Rossley
and Sylvester because they were the least versatile, pro-
ductive, and reliable of its floormen. Having evaluated
the evidence adduced by the Respondent in support of
these reasons, I am unconvinced that the Respondent has
proven that it would have made the same choices had it
not been for the employees' protected conduct.
is noteworthy that the Respondent failed to explain why linotypists
and Limnnni were laid off and subsequently recalled in order of
xniority.
The Respondent's claim that Sylvester was unable to
do any composing room work other than lockup and
that such work was substantially eliminated by the time
of the layoffs finds no support in the record. Sylvester's
timecards establish that he spent much of his day doing
lockup work, but they also show that he accrued an ap-
preciable number of hours each quarter working on
galley proofs, repro press proofs, and corrections. More-
over, although the volume of lockup work may have di-
minished over time, the record further shows that, in the
quarter prior to his layoff, lockup and unlocking con-
sumed 328 hours of his time. It is difficult to imagine that
an employee such as Sylvester, with 32 years' experience
in the Bond Press composing room, could be as inept as
the Respondent At minimum, Sylvester could
have handled all the tasks performed by Hecker, except
for smelting.
The Respondent addressed Rossley's lack of versatility
by comparing him unfavorably to who allegedly
had a greater repertoire of skills. However, the Respond-
ent ignored the fact that Rossley served as repro press
operator during his first 2 or 3 years of employment with
Bond Press. Moreover, although the Respondent's super-
visor may not have been aware that Rossley had prior
experience operating a linotype machine, it is clear that
no one asked him.
Since the Respondent decided it was necessary to cut
its linotype staff in half, the need to have Hodges availa-
ble for backup linotyping could hardly have been as es-
sential as the Respondent claimed. Little thought appar-
ently was given to the ability of the remaining linotypists
to handle expedited demands on an overtime basis. Fur-
ther, smelting was a function which could be performed
by any unskilled laborer, even by employees outside the
composing room, as it had been on prior occasions. In
short, the Respondent's efforts to portray Sylvester and
Rossley as incapable employees lacking in versatility
were overstated and sadly lacking in merit.
(2) Chargeable hours
Equally unconvincing was the Respondent's attempt to
characterize the Charging Parties as unproductive based
on the number of chargeable hours they earned.
The total number of chargeable hours accrued by an
employee depended on the work to which he was as-
signed by his supervisor. If the relatively small number
of chargeable hours earned by Sylvester was a matter of
genuine concern, the Respondent had it within its con-
trol to shift him to other work.
The Respondent also attempted to minimize Rossley's
record for chargeable hours by comparing his to those of
Swenson, the most senior floorman. However, the com-
parison failed for Rossley's chargeable hours did not fall
far below those of Swenson, and in one quarter exceeded
them. More importantly, if seniority were not an opera-
tive factor, and if, as I found above, the work of the
compositor was somewhat interchangeable, the Respond-
ent could have compared Rossley's chargeable hours to
those of any floorman. Its reasons for not doing so are
Inc., 602
unreliability
F.2d
1);
layoff
8(a)(l)
1.
2(5)
2(6)
8(a)(3)
2(6)
F. W
(1950),
1 (1977).la
Hickmott
I q c )
1.
' O Isis & 138
" Sec:102.46
Sec.
THE BOND PRESS. JNC.
evident; apart from Swenson, Rossley had more chargea-
ble hours to his credit than the three other floormen.
(3) Reliability
Timesheets for 1978 and 1979 indicate that both men
often arrived for work late. However, the Respondent
admitted that it tolerated these attendance patterns for
years without so much as a word of warning to these
employees. If reliability were measured not only by an
employee's timely arrival for and departure from work,
but also by how wisely he spent his time, then the Re-
spondent might well have had doubts about Hodges'
work record. Yet, it is clear that the Respondent con-
doned Hodges' habitual malingering. When an employer
becomes resistant to some employees' longstanding prac-
tices on a selective basis, and cites those practices as a
reason for discharge at a time when the employees are
involved in union activities, an inference is warranted
that the employer's sudden condemnation was pretextual.
Norton Concrete Company of Longview, Inc., 249 NLRB
1270 (1980); All Brite Window Cleaning and Maintenance
Service, 235 NLRB 596, (1977).
Further, if reliability were as crucial a factor as the
Respondent suggested, it is inconceivable that it was not
mentioned in its position papers. The Respondent submit-
ted, however, that these documents were not necessarily
all-inclusive statements. Yet, these papers were prepared
by the Respondent months after the layoffs occurred and
furnished with the express intent of convincing the Gen-
eral Counsel that the unfair labor practice charges were
groundless and should be dismissed.
The Respondent stated that production records were
reviewed to determine which employees should be re-
tained, but it made no claim that the timesheets also were
examined prior to the layoffs. Therefore, it is likely that
the Respondent contrived the defense of
when they discovered that the timesheets gave an aura
of legitimacy to their otherwise discriminatory decision,
long after the layoffs occurred and the position papers
submitted.
Lawful causes for discharge may exist, yet are no de-
fense where. as here. the evidence shows that the em-
ployer resorted to those reasons as a way of building a
case against an employee because of his union activities.
United Aircraft Corporation v. N.L.R.B., 440 85, 92
(2d Cir. 197 Norton Concrete, supra.
Under other circumstances, the reasons assigned by
the Respondent for laying off Rossley and Sylvester
might be regarded as valid business considerations. In
this case, however, where the Respondent exaggerated
the employees' lack of skills, made slanted comparisons,
marshalled evidence in hindsight, and shifted its reasons
for the layoffs, doubt is cast on all its defenses. Accord-
ingly, I conclude that the Respondent failed to meet its
burden of proving that it would have selected the Charg-
ing Parties for even if they had not participated in
union activity. It follows that the Respondent violated
Section and (3) of the Act by laying off Thomas
Rossley and Herbert Sylvester on July 24, 1979.
The Union is a labor organization within the mean-
ing of Section of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section and (7) of the Act and it will
effectuate the policies of the Act for jurisdiction to be
exercised herein.
3. By unlawfully laying off Thomas J. Rossley and
Herbert C. Sylvester on July 24, 1979, the Respondent
has engaged in unfair labor practices within the meaning
of Section and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion and (7) of the Act.
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes and
policies of the Act. The recommended Order will pro-
vide that the Respondent be ordered to offer Thomas J.
Rossley and Herbert C. Sylvester immediate and full re-
instatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority o r other rights and privi-
leges and make them whole for any loss of earnings they
may have suffered by reason of the Respondent's acts
herein detailed, by payment to them of a sum of money
equal to the amount they would have earned from the
date of their unlawful layoffs to the date of an offer of
reinstatement, less net earnings during such period, with
interest thereon, to be computed on a quarterly basis in
the manner established by the Board in Woolworth
Company, 90 NLRB 289 and Florida Steel Corpo-
ration, 231 NLRB 65
Additionally, because the Respondent's unfair labor
practices are serious and go to the very heart of the Act,
a broad order requiring Respondent to cease and desist
from in any other manner infringing upon rights guaran-
teed to its employees by Section 7 of the Act is recom-
mended. See Foods, Inc., 242 NLRB 1357
(1979).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section of the Act, I hereby issue
the following recommended:
T h e Respondent, The Bond Press, Inc., Hartford, Con-
necticut, its officers, agents, successors, and assigns, shall:
Cease and desist from:
(a) Discouraging membership in the Central Connecti-
cut Typographical Union, Local 679, or any other labor
See. generally, Plumbing Heating Co., NLRB 716 (1962).
In the event no exceptions are filed as provided by of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
8(a)(3)
backpay
"Appendix."lZ
Oficer-in-Charge
officer-inkharge
' l
Bonrd"
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization, by unlawfully laying off any of its employ-
ees o r discriminating against them in any other manner
with respect to their hire o r tenure of employment in
violation of Section of the Act.
(b) In any other manner interfering with, restraining,
o r coercing any employees in the exercise of the rights
guaranteed them by Section 7 of the National Labor Re-
lations Act, as amended, to engage in self-organization,
to bargain collectively through a representative of their
own choosing, to act together for collective bargaining
or other mutual aid o r protection, o r to refrain from any
and all these things.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer to Thomas J. Rossley and Herbert C. Sylves-
ter full and immediate reinstatement to their former o r
substantially equivalent positions, without prejudice to
their seniority o r other rights previously enjoyed and
make them whole for any loss of pay they may have suf-
fered by reason practiced against n of the discrimination
them i the manner described above in the section enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of due
under the terms of this Order.
(c) Post at its Hartford, Connecticut, office copies of
the attached notice marked Copies of said
notice, on forms provided by the for
Subregion 39, after being duly signed by a representative
of the Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by
the Respondent for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent t o insure that said notices are
not altered, defaced, o r covered by any other material.
(d) Notify the for Subregion 39, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."