Circle Bindery, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 861 (N.L.R.B. 1975)

CIRCLE BINDERY 861
Cilrcle Bindery, Inc. and Graphic Arts International
Union, Local 16-B, AFL-CIO, Case 1-CA-9460
June 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 11, 1974, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,i and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Contrary to the Administrative Law Judge, we find
that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employee Peter Verrochi for
engaging in union and protected concerted activities.
On November 26, 1973, Respondent, a nonunion
bindery, temporarily employed Verrochi, known by
Respondent to be a union member, while he was on
layoff status from his permanent employer, a
unionized shop. Verrochi had similarly worked for
Respondent on a temporary basis on several previous
occasions . During the several days he worked for
Respondent on this occasion, he attempted to
organize Respondent's employees and spoke to
several employees for that purpose. He was also
greatly disturbed to discover that Respondent was
performing bindery work on a booklet, which, having
been printed by Excelsior Press, Inc., a union firm,
bore a union label on its cover. Excelsior's placement
of the union label and its identifying number on
printed material it produces is governed by the terms
of a licensing agreement it entered into with the
Allied Printing Trades Council, an organization
composed of Boston area unions in the printing
industry, including the Union herein. Verrochi
believed that under the terms of the licensing
agreement Excelsior should have contracted the
binding of this union-labeled material to a union
shop. Consequently, when he left work the first day,
he took several copies of the booklet with him and
left them on the desk of Mel Rawson, vice president
_To
1 The following inadvertent errors ,, in the Administrative Law Judge's
Decision are hereby noted : the complaint against the Respondent was
issued by the General Counsel on January 9, 1974, instead of November 30,
19'73; Venachi discussed the Umaa on Tuesday, November 27, and
2118 NLRB No. 123
of the Union and a business agent of the Allied
Printing Trades Council. Thereafter, Verrochi, along
with another union official, contacted Rawson to
express their belief that something should be done
about Excelsior's breach of its agreement with the
Council to contract work bearing the union label to
union firms because, as Verrochi testified, if the
booklet job "were where it was supposed to be, it
could possibly mean that myself and other people
that were laid off [at unionized binderies] could be
working on jobs like this in a union shop, enjoying
the pay and the benefits." Thus, it is plain that
Verrochi's activities in this regard were directed
solely to protecting himself and his fellow members
of the Union by preventing misuse of the union label
which could undercut the Union's standards and,
accordingly, were concerted and within the protec-
tion of the Act.
Verrochi's protests about Excelsior's misuse of the
union label were effective. Acting on Verrochi's
urgings, Business Agent Rawson called Excelsior and
demanded that it immediately withdraw the booklet
binding job from Respondent'2 Excelsior, in turn,
called Respondent's president, Herbert Martell, and
demanded that the booklet job be returned to it. An
hour before he received Excelsior's call Martell was
informed that Verrochi had been seen taking
booklets out of the plant. Connecting Excelsior's
withdrawal of the booklet job with Verrochi's taking
of the booklets, Martell angrily confronted Verrochi
and fired him. When Verrochi questioned the
discharge, Martell angrily accused him of being "a
big mouth union man." Explaining further, he told
Verrochi, "I can't have you people coming around
here disrupting my organization and talking to my
people. Furthermore, I just received a phone call to
stop processing on this job."
On the basis of the record before us, we can only
conclude that Respondent decided to rid itself of
Verrochi for dual reasons, i.e., he was talking union
to Respondent's employees and he had been instru-
mental in Respondent's losing a job from a union
printing firm. The Administrative Law Judge, how-
ever, found that only the latter of these two reasons
motivated the Respondent in discharging Verrochi.
He was convinced that Verrochi's conversations with
other of Respondent's employees about the Union
had nothing to do with Verrochi's dismissal. We
disagree. The evidence cited above is clear and
undisputed. Martell's description of Verrochi as a
"big mouth union man" considered in context with
his admonition against Verrochi's "disrupting my
Wednesday , November 28, with several Circle Bindery employees rather
than with several Excelsior employees.
2 There is no charge alleging that the Union's conduct in this respect
exceeded permissible hmits.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization and talking to my people" leads to but
one conclusion : Respondent was aware of Verrochi's
organizational efforts in behalf of the Union and was
not going to allow Verrochi to remain in its employ
so as to enable him to further such efforts. No other
explanation makes sense or gives meaning to
Martell's words ; hence, we fmd Verrochi's discharge
to be discriminatorily motivated within the meaning
of Section 8(a)(3) of the Act insofar as it is based on
this reason.
But assuming, arguendo, that Respondent's presi-
dent did not really mean what he said and discharged
Verrochi only because the latter lodged a complaint
with his Union, it would seem obvious that Verro-
chi's reliance upon the Union's contract restricting
union work to union shops was for the mutual aid
and protection of himself and other union members,
as noted above. Clearly, a union's purpose in
authorizing the use of its label is to provide work for
union members under union conditions of employ-
ment. To the extent a licensee such as Excelsior
violates its agreement with a union or, as here, the
Council, union members are deprived of work
contractually reserved to them. This was Verrochi's
chief concern. He preferred working in a union shop
with union pay. As an ardent union member and
official, he was prepared to jeopardize his employ-
ment with Respondent because that job under
nonunion conditions meant less to him than the
principle of protecting the use of his Union's label.
He believed that in so doing he could better secure
and improve conditions of employment for himself
and others- similarly situated.
Contrary to the Administrative Law Judge, we do
not read the Supreme Court's opinion in N.L.R.B. v.
Local Union No. 1229, International Brotherhood of
Electrical Workers [Jefferson Standard Broadcasting
Company], 346 U.S. 464 (1953), as authority to
support his fmding that Verrochi was not engaged in
protected concerted activity in his efforts to preserve
the integrity of the union label, but instead was
engaged in conduct that was not related to a valid
union objective and for the purpose to "injure or
destroy his employer' s business." In our view, the
instant case is totally distinguishable from Jefferson
Standard There, the Court pointed out that the
circulation of a handbill by union members which
disparaged their employer's product "related itself to
no labor practice of the company. It ' made no
reference to wages, hours or working conditions. The
policies attacked were those of finance and public
relations for which management, not technicians,
must be responsible . The attack asked for no public
sympathy or support. It was a continuing attack,
initiated while off duty, upon the very interests which
the attackers were being paid to conserve or develop.
Nothing could be further from the purpose of the Act
than to require an employer to finance such
activities."
On the other hand , in the instant case Verrochi's
conduct in seeking Excelsior 's adherence to union
label rules, unlike that of the striking employees in
Jefferson Standard, was related to his status as a
union member and his desire to protect the interests
of his fellow members in the industry by insuring, to
the extent possible, that work would be directed
towards union shops . Admittedly, Respondent lost
business as a result of Verrochi 's efforts in this
regard. But that loss of business was not the result of
any disparagement of the merits of Respondent's
product or of the competence of Excelsior's or
Respondent's contribution to the product . Rather, as
we have seen, it came about because of their invasion
of the standards that the Union sought to protect. In
this respect, it is no different from the loss of business
caused by lawful picketing. Edir, Inc., d/b/a Wole's,
159 NLRB 686 (1966). Consequently, Respondent's
business loss is not such an injury for which
Verrochi , seeking to promote unionism through
proper use of the union label, must be held
accountable . To conclude otherwise and deny to
Verrochi's conduct the same protection afforded
lawful picketing would in our opinion exalt a loss of
business over the statutory right of an employee to
make common cause with his fellow employees in the
protection of a vital union asset , the union label.
It is well settled that concerted employee action
does not lose its protected status merely because it
results , or may result, in a loss of customer business.
Pioneer Natural Gas Company, 158 NLRB 1067
(1966); Fort Wayne Corrugated Paper Company, 14
NLRB 1 (1939), enfd. 111 F .2d 869 (C.A. 7, 1940).
With respect to the parameters of protected activity
under the Act, Judge Learned Hand aptly observed
that concerted conduct is protected even though
"such activities may be highly prejudicial to [the]
employer; his customers may refuse to deal with
him; he may incur the enmity of many in the
community whose disfavor will bear hard upon him;
but the statute forbids him by a discharge to rid
himself of those who lay such burdens upon him."
N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates
Company, Inc., 130 F.2d 503, 506 (C.A. 2, 1942).
Accordingly, as Verrochi was discharged because
he attempted to organize Respondent's employees
and protested the unauthorized use of the union
label, we fmd that he was discharged because he
engaged in protected union and other - concerted
activities and that Respondent thereby violated
Section 8(a)(3) and (1 ) of the Act.
CIRCLE BINDERY 863
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
•m.eaning of Section 2(5) of the Act.
3. By discharging employee Peter Verrochi be-
cause he attempted to organize Respondent's em-
ployees and protested the misuse of the union label
by Excelsior Press, Inc., Respondent has violated
Section 8(a)(3) and (1) of the Act.
4, The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the, mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the purposes
and policies of the Act.
The record establishes , and the Administrative
Law Judge found, that Verrochi was hired by
Respondent on a temporary basis while on layoff
status from Trembly Trade Bindery, and that by the
time of the hearing herein he had been recalled by
the latter and had returned to work there. Normally,
in such circumstances , we would cut off an employ-
ee's right to reinstatement and backpay as of the date
he was reemployed by his permanent employer on
the ground that the duration of his temporary
employment ultimately would have been terminated
by that occurrence absent the discrimination prac-
ticed against him by his temporary employer. Here,
however, the Administrative Law Judge found that
in the course of being hired for temporary work
Verrochi was asked if he would be interested in
permanent employment with the Respondent, rather
than returning to Trembly Trade and, further, that
this matter was left unresolved between the parties.
The record evidence supports these findings. Thus,
when so questioned , Verrochi replied that he might
consider it if the terms and conditions of employ-
ment were "good enough." The record further
reveals that Martell countered that he wanted time to
think about the benefits which Verrochi then had
specified he would want before accepting such a
position and that Respondent first would like to try
him in the job on a month's trial basis. Obviously,
Verrochi's unlawful discharge a few days later
3 We do find, however, that at the minimum Verroehi would be entitled
to for the period between the date of his discharge herein and his
reemployment by Trembly Trade computed in accordance with the Board's
established standards as set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), plus interest at 6 percent, Isis Plumbing & Heating Co., 138
foreclosed further consideration by the parties of
whether eventually he would have become a perma-
nent employee of Respondent. Nonetheless, at the
hearing Verrochi testified that he might desire
reinstatement by Respondent, albeit for "the purpose
of finishing [the organizing] that I started over
there."
Although the above circumstances raise questions
concerning whether a firm offer of permanent
employment. was really before Verrochi or, if one had
been made, he had not rejected it by his conditioning
acceptance . of it on, his terms, or Respondent had
withdrawn it because of his stated preconditions for
considering permanent employee status, we shall
issue our customary reinstatement and backpay
order for him. However, because on the state of this
record we do not have all the relevant information
sufficient to enable us to clearly resolve the questions
posed above, and because of Verrochi's equivocal
response to the question about whether he desired
reinstatement and the limited purpose for which he
expressed he would be willing to accept it, we find it
necessary to further pursue the issues of whether
Verrochi qualifies for reinstatement and the full
extent of the backpay period for him3 at the
compliance stage of this case . Thus, it is not intended
to require Verrochi's reinstatement or backpay
beyond the date of his reemployment by Trembly
Trade if it appears in the compliance part of this
proceeding that he is not entitled thereto under
Board precedent .4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Circle Bindery, Inc., Boston, Massachusetts, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment,
or any term or condition of employment, because of
their union or protected concerted activities.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
found will effectuate the policies of the Act:
(a) Offer Peter Verrochi reinstatement to his former
job or, if that job no longer exists , to a substantially
equivalent position of employment, and make him
NLRB 716 (1962).
4 See, e.g., Temperature Systems Corporation, 195 NLRB 1023 (1972); The
Cavern Supply Company, Inc, 187 NLRB 160, 170 (1970); and Combustion
Engineering, Inc., 130 NLRB 184, 185 (1961). Cf. Nelson Manufacturing
Company, 138 NLRB 883 , 884 (1962).
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole for any loss of earnings he may have suffered
for the discrimination practiced against him in the
manner set forth in the section entitled "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,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at Respondent's facility at Boston, Massa-
chusetts; copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms
provided by the Regional Director for Region 1, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by Respondent
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, I agree with, the
Administrative Law Judge that Respondent dis-
charged temporary employee Peter Verrochi solely
because of his efforts to cause a customer to
withdraw work from Respondent; that Verrochi
thereby deliberately sought to injure or destroy
Respondent's business; that such activities are
unprotected by the Act; and therefore Respondent's
discharge of Verrochi did not violate the Act.
The majority finds that Respondent discharged
Verrochi in order to prevent him from organizing
Respondent's employees. This conclusion rests upon
Respondent President Martell's statements to Verro-
chi, as to which the majority finds that the "evidence
is clear and undisputed." But the majority gives only
a part of the context.
Prior to the discharge interview, Verrochi succeed-
ed in having the Union Printing Trades Council force
Excelsior, Respondent's customer, to cancel its
contract with Respondent. About an hour before he
so heard from Excelsior, Martell learned that
Verrochi had taken samples of the Excelsior job out
of the plant. Recognizing that both incidents were
related, Martell angrily confronted Verrochi and
fired him for his misconduct in causing Respondent
to lose business and a customer . Despite Martell's
reference to other organizing activities, it is clear that annum.
Martell fired Verrochi solely for his interference with
Respondent's customer. The record shows that
Martell regarded Verrochi as "dangerous" because
"there was a problem of losing [a] customer and
work leaving [the] shop and jeopardizing ... and
sabotaging [his] Company." Martell 'had no com-
plaints with Verrochi's activities prior to his learning
of Verrochi's responsibility for the loss of the
Excelsior work, but when he learned of this he
became extremely agitated and immediately -fired
Verrochi. Obviously, in this context it is clear that
but for Verrochi's conduct with respect to the
Excelsior job Respondent would not have fired him.
In my view, Verrochi's activity directed toward
depriving Respondent of business is clearly unpro-
tected by the Act. The cases cited by the majority for
the opposite conclusion are of the Wo fe's6 genre
dealing with employees who picket their employer
during off-duty hours. I agree fully with the Adminis-
trative Law Judge herein that the protection of the
Act extended to those employees does not reach so
far as to give an employee such as Verrochi the right
to receive wages from his employer with his right
hand, while at the same time using his left hand to
destroy his employer's business.
In Knuth Bros., Inc., 218 NLRB 869 (1975), 1 have
set forth my understanding of the United States
Supreme Court's decision in N.LRB. v. Local Union
No. 1229, International Brotherhood of Electrical
Workers [Jefferson Standard Broadcasting Company],
346 U.S. 464 (1953). The Administrative Law Judge's
rationale in this case accords with my view. An
employee "can not collect wages for his employment,
and, at the same time, engage in activities to injure or
destroy his employer's business." 7
Accordingly, I would adopt the Administrative
Law Judge's conclusion that Respondent's discharge
of Verrochi did not violate the Act and dismiss the
complaint.
5 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 Board" shall read "Posted ,Pursuant'to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
6 Edir, Inc., d/b/a Wolfie 's, 159 NLRB 686 (1966).
7 N.L R.B v. Local Union No. 1229, supra at 476, fn. 12.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer reinstatement to Peter Verrochi,
and make him whole for any loss of earnings he
may have suffered, with interest at 6 percent per
CIRCLE BINDERY 865
WE WILL NOT discharge or otherwise discrimi-
nate against employees in regard to hire or tenure
of employment, or any term or condition of
employment, because thdy engaged in union or
protected concerted activities.
WE WILL NOT in any other manner Interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the
National Labor Relations Act, as amended.
CIRCLE BINDERY, INC.
DECISION
STATEMENT OF THE CASE
RALPH WINKLERR, Administrative Law Judge: Upon
charges filed by the Union on November 29, 1973, a
complaint issued on November 30, 1973, by the General
Counsel against Respondent alleging violations of Section
8(a)(1) and (3) of the Act, and Respondent's answer thereto
denying the unfair labor practices alleged; a hearing was
held in Boston, Massachusetts, on February 12, 1974.
Upon the entire record - in the case , including my
observation of the demeanor of witnesses, and upon
consideration of the General Counsel's brief,' I make the
-following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Circle Bindery, Inc., is a Massachusetts corporation with
a bindery plant and principal place of business in Boston.
Upon jurisdictional facts admitted herein , I find, as all
parties agree, that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union, Local 16-B, AFL-
CIO, herein called the Union, is a labor organization
wi thin Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The complaint alleges that Herbert Martell, Respon-
dent's president, threatened and then unlawfully dis-
charged Peter Verrochi on November 28, 1973.2 Respon-
dent admits discharging Verrochi but claims it did so
because Verrochi had engaged in activities unprotected
under the Act.
Verrochi is a member of the Union's organizing
committee and an officer on the Union's executive board.
The Union and other local labor organizations in the
printing industry are the organizational members or
affiliates of Allied Printing Trades Council, hereifi called
the Council.3 The Council enters into so-called licensing
arrangements with employers in the printing industry for
1
Respondent did not file a brief.
2 'All dates are in 1973 unless otherwise indicated.
s The Council is the local representative of International Allied Printing
the use of a union label or "bug" ands ,t all material times
here, there was such operative arrangement between the
Council and Excelsior Press, Inc. Excelsior is a printing
(not a bindery) concern located in Boston; Its owners are
Arthur Felicani and his brother. Excelsior has collective-
bargaining agreements with the, Typographical Union and
the Pressman's Union, both of which are affiliated with the
Council; Excelsior's employees are not represented by the
Union, these employees do not perform bindery work, and
it has no collective-bargaining agreement with the Union.
The mentioned licensing arrangement between Excelsior
and the Council provides in part:
That the licensee [Excelsior] in consideration of the
license to the use of the label of the INTERNATION-
AL ALLIED PRINTING TRADES ASSOCIATION,
licensor, hereby represents that he now employs and
hereby proposes during the continuance of this license
to employ in the printing, milling, binding and
production of all printed matter, photo-engravings,
electrotypes, sterotypes and all other illustrative matter
entering into printing and printing products, members
in good standing of unions which are now and
hereafter may become affiliated with the licensor, and
to faithfully carry out all of his contracts or agreements
of employment with such unions. The licensee shall not
loan or sell the type, plates or matrices used or
produced in its office to any other office unless such
office complies in every respect with the terms and
conditions set forth in this label license. The license
herein granted shall be non-transferable and non-
assignable.
Excelsior, as a label licensee' of the Council, places the
union "bug" and its assigned identifying number "74" on
printed materials produced by it. George Carlsen is
president of the Union and chairman of the Council's label
committee. The General Counsel stated that "the purpose
of a union label is to preserve work for union members,"
and Carlsen testified that the union label indicates "that all
work processed on any jobs bearing the Union label, would
have to be ... handled by union personnel" from "start to
finish." Carlsen further testified that the "purpose for the
union, label is that first off a customer that requests a union
label will request it from a union employer. A union
employer is responsible under a license agreement to see
that all of this work is processed by union personnel."
Carlsen and Felicani of Excelsior testified that the labeling
arrangement in effect prohibits Excelsior from sending
printed matter containing the "bug" to any bindery
employer for binding operations unless the bindery
employees of such employer are members of and covered
by collective-bargaining agreements with Council-affiliated
unions . No printing trades union represents a majority of
Respondent's employees, and Respondent has no contract
with any union affiliated with the Council.
Verrochi works in the printing trades in a bindery
classification. On or about November 19 he was temporari-
ly laid off for economic reasons by his full-time employer,
Trades Association , composed of International Unions in the printing
trades.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a bindery concern called Trembly Trade whose employees
are covered by a contract with the Union. Verrochi
discussed the matter of his layoff with Union President and
Council Chairman Carlsen. Carlsen suggested that Verro-
chi seek employment with Respondent during this tempo-
rary layoff period, explaining that such employment would
give Verrochi an opportunity to organize Respondent's
employees. (Carlsen testified concerning conversations he
had with Respondent's President Martell in 1969, 1970,
and 1971. Carlsen requested Martell on these occasions to
sign contracts with the Union, and he told Martell , in
effect, that such contract would be advantageous to
Martell as Martell would then be permitted to handle
union jobs. The Union did not represent Respondent's
employees at those times.)
Verrochi spoke with Martell during the week of
November 19, and applied for temporary work. Verrochi
had worked for Respondent on several occasions on a
temporary basis and Martell knew of Verrochi's union
membership on, November 19. Martell once more engaged
Verrochi for temporary work and inquired whether
Verrochi might be interested in permanent employment -
rather than eventually, returning to Trembly Trade. This
latter matter was not resolved, and Verrochi began
working for Respondent on Monday, November 26.
Verrochi discussed the Union with several Excelsior
employees on Tuesday and Wednesday of that week.
Whether or not Martell heard or was. informed of these
conversations, I am convinced and find that the conversa-
tions had nothing to do with Verrochi's discharge on
Wednesday, November 28.
Turning now to the discharge incident. In the course of
his regular duties,on the first day of his employment with
Respondent, Verrochi saw copies of a union-labeled
booklet being bound by Respondent for, and pursuant to a
contract with, Excelsior. Excelsior's identifying number
"74" was alongside the union bug on the cover page of the
document . Verrochi, without permission, took several
copies of the booklet to the Council's office and he left a
copy of the booklet on a desk shared by Union President
Carlsen and Mel Rawson. Rawson is vice president of the
Union and business agent of the Council and, as indicated
above, Carlsen also is a council officer. On the morning of
November 28, Rawson told Arthur Felicani of Excelsior to
pull the booklet job from Respondent regardless of the
status of the job and Rawson explained to Felicani that
Respondent was nonunion and that the booklet job should
have been done in a union bindery because it bore a union
label. - Felicani then called Martell and instructed him to
return the booklet job; the job was within an hour of
completion ' at the time and Respondent managed to
complete the binding operation before returning it.
It was meanwhile reported to Martell that Verrochi had
removed 'copies of the booklet from the plant and he
believed that Verrochi was responsible for the aforedes-
cribed chain of events culminating in the call from Felicani
to return the booklet order. Telling Verrochi that he was "a
big mouth union man," Martell thereupon fired Verrochi
on Wednesday, November 28. Although Verrochi testified
that Martell also said something about Verrochi disrupting
the place and talking to other employees ,4 Verrochi
testified that Martell was upset about Felicani 's pulling
back of the booklet job and that Martell was concerned
that he might not be paid for the job.
Verrochi, as stated above , is a member of the Union's
organizing committee and an officer on the Union's
executive board and he also testified that he attends
meetings of the Council . He testified that he left a copy of
the mentioned booklet on the Carlsen -Rawson desk at the
council office with a note indicating it had come from
Respondent's shop . Later that day Verrochi met with Carl
Feroni who is the union steward at Trembly Trade and
representative of the Union to the Printing Trades Council.
Verrochi inquired whether any action would be taken
respecting the mentioned booklet matter , and Feroni
replied that Carlsen preferred to let the matter "ride for
now," Carlsen's stated reason being that Verrochi would
lose his job if action were taken and that Carlsen would
prefer having a man on the "inside" to organize Respon-
dent's shop. Verrochi, however, was not satisfied to let the
matter "ride," and he then called upon Rawson, the
business agent of the Council, to explain his "feelings"
congerning the matter . According to Verrochi , Rawson
thereupon agreed with Verrochi that "something should be
done about it." Verrochi testified, in explanation , and as he
told Rawson , that there had been a misuse of the union
label and that if the booklet job "were where it was
supposed to be, it could possibly mean that myself and
other people that were laid off [at Trembly Trade ] could be
working on jobs like this in a union shop, enjoying the pay
rates and the benefits ." While denying that he had wanted
Rawson "to pull" the job from Respondent , Verrochi also
testified that Respondent should never have had the job.
As indicated, Rawson did pull the job after speaking with
Verrochi, and Carlsen testified that the such "pulling"
action "generally happens" in these situations. I fmd that
Verrochi did urge that such action be taken against
Respondent.
The day after Verrochi 's discharge, Rawson notified
Felicani that Felicani would be in trouble with the Union
because of the discharge, and Rawson told Felicani about
bringing charges against Felicani before the Council for
having the union labeled booklet processed in a nonunion
bindery . Rawson also told Felicani that the Union might
take it "easier" on Felicani if Felicani could have Verrochi
reinstated. (Felicani testified that he did "have" to appear
before the Council a week or two later to e.-* ain why he
had the union labeled booklet bound by Re,' dent.)
Verrochi was recalled by Trembly Trade sometime after
his discharge on November 28, and he was actually
working there at the time of the hearing in this case.
Verrochi testified that he nonetheless might desire re-
instatement by Respondent for "the purpose of finishing
[the "organizing" ] that I started over there."
4 The General Counsel alleges a separate violation based on these entire incident was directed to Verrochi's role in bringing about the call
statements. It would be artificial, in my opinion, to treat these remarks apart
from the discharge context in which they were made, for the thrust of the
Felicani and Martell's concern as to financial loss in that connection.
CIRCLE BINDERY 867
Contentions
The facts are these in brief: Verrochi was laid off for
economic reasons by Trembly Trade, a unionized bindery,
at the same time that Respondent, a nonunionized bindery,
was performing union-label work for Excelsior. Verrochi
believed that Excelsior's assignment of such work to
Respondent eroded - by the amount of such assignment
- the job opportunities of employees of Trembly Trade
and other unionized binderies and he was particularly
concerned about the matter in view of his layoff status with
Trembly Trade. Thus, in order to protect the job
opportunities of employees at Trembly Trade and other
unionized binderies, Verrochi took steps to have Excel-
sior's union-labeledworkremovedfrom Respondent and he
knowingly and purposefully caused the Council to pressure
Excelsior to "pull" the work in question from Respondent.
Martell was upset because of Excelsior's call to return the
booklet job and because of the possibility he might not be
paid for the job and was in effect losing Excelsior as a
customer . Upon learning of Verrochi's role in these events
and considering Verrochi's action as disloyal conduct by
an employee, Martell discharged Verrochi for such reason.
At the hearing in this matter, questions were raised
concerning possible secondary boycott implications in
regard to the- enforcement of the union-label licensing
arrangement and Verrochi's role therein. This is a
substantial issue,5 but which I need not discuss here, for I
resolve this proceeding on other grounds. Also raised at the
hearing was a question concerning Verrochi's status as a
bona fide employee; however, this issue is also unnecessary
to resolve, for it involves considerations of remedy only
should a violation be found
The General Counsel contends that Verrochi's conduct
in removing the union-labeled booklets without permission
and taking them to the Council's officials was concerted
activity for "mutual aid or protection" protected under the
Act. The General Counsel asserts in this connection that
Verrochi's activities ended at this point and that Verrochi
did not seek to have the union-labeled work pulled from
Respondent. However, I have found otherwise. The issue
presented, therefore, is not whether the unauthorized
taking of the booklets to the Council's offices is itself
protected under the Act. Rather, the question is whether
Verrochi's conduct is protected upon a showing that
Verrochi took further action to have the Council cause
withdrawal of the work in question from Respondent.
This discussion begins with N.L.RB. v. Local Union No.
1229, International Brotherhood of Electrical Workers
[Jefferson Standard Broadcasting Company], 346 U.S. 464
(1953), where nonstriking employees engaged in off-duty
picketing in the course of a bargaining dispute. The
employer discharged nine of these nonstriking employees
for distributing handbills on the picket line and elsewhere;
these handbills, according to the Court, made "a sharp,
public, disparaging attack upon the company's product
and its business policies, in a manner reasonably calculated
5 See, for example, Amalgamated Lithographers of America etc. (Miami
Post Company), 130 NLRB 968 (1961), enfd. as modified 301 F .2d 20 (C.A.
5, 1962), Amalgamated Lithographers of America (Graphic Arts Employer's
Association), 130 NLRB 985 (1961), enfd. 309 F.2d 31 (C.A. 9, 1962), cert.
denied 372 U.S. 943; Amalgamated Lithographers of America (Chicago
to harm the company's reputation and reduce its income"
(346 U.S. at 471). Stating that this was "a concerted
separable attack purporting to be made in the interest of
the public rather than in that of the employees," the Court
held that the distribution of the leaflets deprived the
participating employees of the protection of the Act even if
the leaflets in question "were to be treated . . . as a
concerted activity wholly or partly within the scope of
those mentioned in Section 7 . . . " (346 U.S. at 477-478).
The Court accordingly agreed with the employer's conten-
tion that the handbill under consideration - the sole issue
presented to the Court - demonstrated "such detrimental
disloyalty as to provide 'cause for [discharge] ... " (346
U.S. at 472).
A fair reading of the Court's decision is that the
distribution of the leaflet in Jefferson Standard was
unprotected, whether circulated by striking or nonstriking
employees. The Court nonetheless further stated, as to the
nonstriking aspect of the employees involved, that the Act
does not require an employer to finance the activities there
in question, and it appended the following footnote at this
point (346 U.S. at 476):
12 "... An employee can not work and strike at the same time. He
can not continue in his employment and openly or secretly refuse to do
his work. He can not collect wages for his employment , and, at the
same time, engage in activities to injure or destroy his employer's
business." Hoover Co. v. N.LRB., 191 F.2d 380, 389, and see N.L R.B.
v. Montgomery Ward & Co., 157 F.2d 486, 496; United Biscuit Co. v.
N.LRB., 128 F.2d 771.
The Hoover case cited by the Court in its footnote 12,
above, involved a strike and the strikers' sponsorship of a
nationwide consumer boycott of the company's products,
for the purpose of achieving union recognition for the
company's employees. Strikers applied for reinstatement
and the company rejected such request and discharged
employees upon the employees' refusal to give up their
boycott activities. The court of appeals sustained the
company's action. In the Montgomery Ward case, also cited
in footnote 12, the court of appeals held that employees
could strike to assist the company's striking employees at
another plant, but "they could not continue to work and
remain at their positions, accept the wages paid to them,
and at the same time select what part of their allotted tasks
they cared to perform of their own volition, or refuse
openly or secretly, to the employer's damage, to do other
work" (157 F.2d at 496.)
In support of his contention that Verrochi engaged in
protected activity in communicating with the Council
concerning Respondent's processing of the union-labeled
booklet, the General Counsel cites Edir, Inc. d/b/a
Wole's, 159 NLRB 686 (1966). This case involved the
discharge of nonstriking waitresses who, during their ofd
duty hours, picketed their employer's restaurant with
picket signs urging the public to boycott the establishment.
The objective of the picketing was to achieve bargaining
recognition for the employees' union . Finding that the
Lithographers Association), 137 NLRB 1663 (1962); N.L.RB. v. Local 751,
Carpenters [Mengel Co.], 285 F.2d 633 (C.A. 9, 1960), enfd. as modified 123
NLRB 1321 (1959); N.LRB. v. Washington-Oregon Shingle-Weavers'
Council, (Sound Shingle Company), 211 F.2d 149 (C.A. 9, 1954).
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supreme Court in Jefferson Standard did not determine the
off-duty picketing rights of nonstriking employees, the
Board concluded that the off-duty picketing by the
waitresses was protected activity and that Wolfie's violated
the Act by discharging these employees for such activity.
As an original issue and with all respect for the Board, I
would decide the Wole's issue otherwise, and I also
consider the Wolfie's resolution to be contrary to footnote
12, particularly the cited Hoover case, in Jefferson Standard
supra, and as also inconsistent with the underlying
rationale of the Board's long-established line of
"slowdown" cases .6 But Wole's is not a "sport" case, for
the Board has applied its holding in subsequent cases,7 and
that decision is accordingly binding here.
The Wole's case therefore protects the right of employ-
ees to work and receive wages from their employer even
while, during off-duty hours, they concertedly urge the
public to withhold its patronage from their employer.
Verrochi also claims a right to work while concurrently
seeking and causing a curtailment of his employer's
business. Unlike the situation in Wole's, however,
Verrochi's objective was to promote the employment
opportunities of other employers' employees, whereas
6 E.g., Underwood Machinery Company, 74 NLRB 641, 646 (1947); Elk
Lumber Company, 91 NLRB 333, 336-339 ((1950) (citing the Montgomery
Ward case that later appears in fn. 12 in the Jefferson Standard opinion);
Montgomery Ward & Company, 108 NLRB 1175, 1176-77 (1954) (citing the
Hoover case that later appears in Jefferson Standard fn- 12); Phelps Dodge
Copper Products Corp., 101 NLRB 360, 368 (1952) (citing International
Union, UA W, et al. v. Wisconsin Employment Relations Board et al., 336 U.S.
245, 257-264 (1949)); Lenscraft Optical Corp., 128 NLRB 807, 808, 831
Wolfie's waitresses sought to advance their own interests
and working conditions. In the language of Jefferson
Standard, Verrochi may be said to have engaged in activity
"in the interest of [the employees of other union shops]
... rather than in that of the employees [of his own
nonorganized shop]."
.Whatever the scope of the statutory protections afforded
Wolfie's waitresses to work and simultaneously boycott
their employer, I find that such protection does not extend
so far as to entitle Verrochi "to injure or destroy his
employer's business" (Hoover Co. v. N.L.RB., cited above
in the Jefferson Standard case) where his purpose was to
secure the employment opportunities of other employers'
employees as opposed and in effect to the detriment of his
own employer's employees. Assuming, arguendo only, that
Verrochi's conduct be considered as concerted activity, I
conclude that his conduct was not within the protective
mantle of the Wole's doctrine and that Respondent did
not violate the Act by discharging Verrochi for such
conduct.
[Recommended Order for dismissal omitted from publi-
cation.]
(1960); Raleigh Water Heater Mfg. Co., Inc., 136 NLRB 76, 80 (1962);
General Electric Company, 155 NLRB 208, 220-221 (1965); Engineered
Building Products, Inc., 162 NLRB 649,662 (1967); Stems Sash & Door Co.,
164 NLRB 468,480 (1967).
7 Sears, Roebuck & Co, 168 NLRB 955, 956-957 (1967), Burns Ford
Inc, 182 NLRB 753, 760-761 (1970); Thrift Drug Company, 204 NLRB 41
(1973).