D. M. Rotary Press, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1974

208 N.L.R.B. 366 (N.L.R.B. 1974)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. M. Rotary Press, Inc. and Graphic Arts Interna-
tional Union , Local 508, AFL-CIO. Case
9-CA-7635
January 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 31, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding . Thereafter , Respondent 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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, D. M. Rotary Press,
Inc., Sharonville, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
i While Chairman Miller agrees that a bargaining order is appropriate
herein, he would , for the reasons stated in his separate concurrence in
United Packing Company of Iowa, Inc, 187 NLRB 878, predicate this
remedy solely on the 8 (a)(1) and (3) violations found herein
DECISION
RAMEY DONOVAN, Administrative Law Judge: The
charge was filed on March 7, 1973, by Graphic Arts
International Union, Local 508, AFL-CIO, herein the
Union. The complaint issued on April 25, 1973, against D.
M. Rotary Press, Inc., herein Respondent or Rotary. It is
alleged in the complaint that Respondent violated Section
8(a)(l), (3), and (5) of the Act by interrogation, threats,
indication of benefits for information regarding union
activity, the granting of wage increases to discourage union
activity, discharging employees because of union activity,
refusing to recognize and bargain in the appropriate unit,
and rendering impossible by its conduct the holding of a
free and fair election. Respondent, in its answer, denies the
majority status of the Union and the allegations of unfair
labor practices.
i Juanita Anderson is employed by Market She is the mother of Joseph
Anderson, mentioned hereinafter
The case was tried in Cincinnati , Ohio , on June 19 and
20, 1973. Briefs were received on July 30, 1973.
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is an Ohio corporation engaged in various
types of printing at its plant in Sharonville, Ohio. During
the past 12-month period, a representative time , Respon-
dent had an indirect outflow of goods and materials,
valued in excess of $50,000, that it sold to a firm or firms
that each had a direct outflow of its products, in interstate
commerce, which the firm or firms sold and caused to be
shipped to locations outside Ohio directly from points
within Ohio.
At all times material, Respondent is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Market Development Corporation, herein Market, is
described by its president, Raymond Anderson, as a mass
mail merchandiser. The Company had in the past sold
sewing machines, using salesmen paid on commission.
These machines were sold in the home to potential
customers. In 1971 Raymond Anderson conceived and
used the idea of selling a "treasure chest" through the mail
and the sewing machines were also promoted through the
mail. The treasure chest program entailed the mailing out
of a particular letter that Raymond Anderson had
evidently developed. The letter in the treasure chest
promotion suggested or stated that the recipient of the
letter had won a prize in the nature of 3 days in Florida
and some food and that, if the recipient wished to claim the
prize, he or she was asked to send $15 to the Company,
Market. Printing of material, advertising, and postage were
major items in the mass merchandising of tens or hundreds
of thousand of treasure chest promotional materials.
Market found that its use of outside printing firms for its
printing needs was not satisfactory, principally because of
delays in production and delivery in securing printed
materials from these firms. In June or July, 1972, Rotary
was incorporated and began operations in October 1972.
Rotary performs printing work required by Market and the
latter is Rotary's sole customer. The building in Sharon-
ville, Ohio, in which Rotary is located is approximately 10
or 12 miles from Market's premises in Cincinnati, Ohio.
Raymond Anderson is president of Market and Rotary
and owns a controlling stock interest in Rotary. Juanita
Anderson, former wife of Raymond, owns a small amount
of the Rotary stock, as does Case, the comptroller of
Rotary and Market.' Alberta Saul, mother of Raymond
Anderson, owns the stock of Market.
208 NLRB No. 56
D. M. ROTARY PRESS, INC.
From October 1972 to January 19, 1973, George Schauer
had been hired and retained by Raymond Anderson as the
manager of Rotary. Marilyn Schauer, wife of George, was
also employed by Rotary. Such payroll records as appear
in the record indicate that George Schauer was earning
over $600 per week in January 1973 and his wife was
earning approximately $75. Testimony in the record
regarding Marilyn Schauer had reference to her as "office
manager." Schauer was terminated on January 19, 1973,
for inefficiency. His wife was also terminated at that time.
The indication is that neither of the Schauers was in the
plant after the terminations.
Joseph Anderson, son of Raymond, testified that prior to
January 1, 1973, he had "always been of the premises"
where Rotary had its operations and that he had run "the
sales force from out of that office."2 From January 1, 1973,
until Schauer's termination on January 19, Joseph Ander-
son testified that he was "what you might call an overseer
of Mr. Schauer." Anderson states that beginning from the
period of his "overseership" in early January and from
January 19 on, when he became manager of Rotary in
place of Schauer, he found that no one in Rotary seemed
to be in charge, that Schauer had been absent a great deal,
that a great deal of paper was being wasted, and that there
were no production records. Anderson states that he made
a rough estimate that about 29 employees distributed on
three shifts were turning out 20,000 to 40,000 completed
documents a day for mailing.
Before considering what, if any, steps, the Andersons
took to cope with the alleged bad situation above-de-
scribed from January 1 to February 19, 1973, there are
some other factors to be considered.
Market's merchandising is carried on by mail throughout
the United States.3 According to Raymond Anderson,
whom the evidence shows to be the kingpin in the entire
Market and Rotary situation, the best markets for Market's
particular merchandising are, in order of rank, 1) New
York, 2) New Jersey, and 3) Ohio, with other states
following.
In September 1972, Market was suspended from or
agreed to suspend mailing its treasure chest solicitation or
promotion letter in New York.4 Though the New York
facet is not explicated fully by Raymond Anderson, the
record as a whole and the general context warrants the
conclusion that the New York suspension involved the
appropriate state office, probably the attorney general. The
same situation existed as to New Jersey, where the letter
was suspended on January 25, 1973. Early in December
1972, the attorney general of Ohio, the state in which
E The reference is apparently to the prior sales force of salesmen who had
sold sewing machines at the homes of individual customers This sales force
had been terminated effective January 1, 1973, when home solicitation was
discontinued
3 The evidence warrants the premise that because Market is the sole
customer of Rotary and because the latter is overwhelmingly intertwined
with Market, the economic health or lack of health of Market is, for all
practical purposes, the determining factor in Rotary's operation What is
good for Market is good for Rotary and what is bad for Market is bad for
Rotary
4 Anderson testified that "the problems with the States" began with some
mention of the operation in Jack Anderson's syndicated newspaper column
in June, 1972
5 "Long before the first of the year," according to Anderson, the treasure
chest letter to Michigan residents was suspended
367
Market and Rotary had their place of business, advised
Market that there was a "problem" about the treasure
chest letter of solicitation.5 The net result was that Market
suspended sending out its original treasure chest letter
nationally. Anderson then, under guidance or supervision
of the Ohio attorney general's office, evolved a revised
treasure chest letter. The revised or "sanitized" letter,
however, did not bring in the business on the scale of the
original letter. A series of revised letters was equally
unsuccessful at least in comparison to the original letter.
Because Market concluded that the decline in the number
of customers who were sending in $15 for the treasure
chest was due to the lack of selling appeal in the revised
treasure chest letters, Anderson resumed sending out the
original treasure chest letter on about February 15 or 16,
1973. However, this original letter was not resumed in
Ohio.
B. January and February Events
On January 8, 1973, a Federal District Court in
Cincinnati, at the instance of the United States postal
authorities, issued a temporary restraining order against
Market. In effect, the restraining order embargoed all
Market's incoming mail for I week, January 8-15. This
meant that Market was receiving no treasure chest checks
from the public and its principal and main source of
money inflow was cut off. Respondent, therefore, on
Friday, January 12, 1973, laid off the Rotary employees
until Monday or Tuesday, January 15 or 16, when the
employees were all returned to work.6
Market's problems with Federal postal authorities and
with the attorneys general of various states regarding its
business operations can be described as serious from a
legal and a business standpoint. As early as September
1972, as we have seen, the use of the treasure chest
solicitation letter was suspended in New York, which state
was described by Anderson as the Company's number one
market. In early December 1972, legal problems began
with the State of Ohio, the Company's home base and situs
and a major market for the Company's merchandising.
There were problems in other states. As mentioned, the
postal restraining order issued on January 8, 1973.
Respondent has also introduced into evidence various
financial statements showing the financial situation of
Market and Rotary in January and February 1973.7 These
statements were prepared by Case, the comptroller and
accountant for Market and Rotary. The picture conveyed
by the financial statements is one of financial distress.
6 Since the payroll records indicate that most of the employees did not
customarily work on Saturday and Sunday (in fact it is not clear that any
employee did), the layoff in January was not a particularly drastic step,
considering the fact that Anderson, in the instant hearing, portrays the
January 8 restraining order as a major disaster to its business The layoff did
not occur until January 12 and encompassed 2 working days, Friday,
January 12, and Monday, January 15 In January, at least, Respondent did
not perceive a drastic termination of the Rotary printing plant employees as
the way to deal with a cutting off of money inflow
7 Information regarding prior years is of a limited nature For instance,
Case testified that in 1971 gross receipts of Market were $450,000, and
$2,500,000 in 1972 In 1972 Raymond Anderson received nearly $400,000 in
commissions from the Company, part in cash and part in notes Anderson
loaned his company various amounts in 1972 totalling $392,000, part in
cash
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raymond Anderson contends, and I believe that he is
correct, that Market's financial distress arose primarily
from a falling off of the inflow of cash from people who
sent in $15 checks in response to the treasure chest letter.
This falling off was attributed to the legal problems with
the states and the postal authorities. The original treasure
chest letter when revised to the satisfaction of the
authorities aforementioned did not pull in the money in
sufficient amounts. This basic problem was known to
Anderson in December 1972, after Market, as a result of its
encounter with the attorney general of Ohio, suspended the
mailing of its original treasure chest letters. Market then
put out a number of variously revised treasure chest letters
but they did not produce satisfactory financial responses
from the thousands of recipients. Anderson testified that
"at the end of this period, at the end of December I said
I've got to do something . . . I went and put out what we
call our original letter, the one that put us in business." In
January 1973, a controlled test by Market had confirmed
that the revised letters simply lacked the appeal or pulling
power necessary for the business. Market, then, by
February 15 or 16, 1973, began sending out the original
treasure chest letter, the proven money maker, to all states
except Ohio. It is difficult to perceive, therefore, that on
and after February 16 and in succeeding days Market's
picture was worse or as bad as in December and January
when it was in the midst of legal difficulties with states and
postal authorities and had suspended its original letter and
had known in December and January that various revised
letters were bereft of the necessary pulling power.
In December 1972, and January, and the first half of
February 1973, there is no indication that the Andersons
regarded a drastic cut in the production personnel of
Rotary as a necessary solution for the basic financial
problem of Market. On January 8-15, 1973, a Federal
court restraining order had stopped all mail to Market.
This, of course, eliminated all cash inflow from the treasure
chest letters and this inflow was the jugular vein of the
entire enterprise . The Andersons, as is evidenced by the
evidence introduced by Respondent herein to show its
parlous financial state, were aware of their critical financial
situation. But evidently it was not believed that the
salvation of the enterprise depended upon a sustained deep
cut in the Rotary production complement. As previously
stated, it was not until Friday, January 12, that the
employees were laid off and they were all back at work on
Tuesday, January 16. Joseph Anderson had, in his words,
been "overseeing" the Rotary operation since January 1,
1973. He became manager on January 19. He testified that
in January he became convinced that the Rotary payroll
was padded, i.e., that there were five or six employees that
were not needed . He also states that his father, Raymond,
had spoken to him at various times about operating on an
economical basis. On the average, Raymond and Joseph
conversed with each other five or six times a day in the
8 A rough approximation is that the 28 employees had an average hourly
wage of $2 25 per hour or $90 per week or approximately $2,500 total These
employees printed , folded , and inserted the treasure chest letters and other
literature that were the vital source of any money that was received by
Market in its merchandising by mail enterprise
9 According to Wehmeir, one of the principal causes for the financial
troubles of the Company was the January 8 restraining order on incoming
course of running the Market-Rotary enterprise. However,
Joseph testified that even after he took over the Rotary
operation in January 1973, the full complement of 28
Rotary employees was retained until February 19. At the
latter date virtually the entire complement was terminated.
Our interest is, of course, in what motivated the
terminations on the particular date of February 19. Up to
this point the trigger for this particular date or any date has
not been discernible as a forewarner of such drastic
personnel action. The business had been beset by troubles
since last December but the nature of the business and the
nature of its virtual owner and dominant force, Raymond
Anderson, required and evidently had, a resiliency and
persistence that were not easily daunted. However obsta-
cles were to be overcome and however the business was to
be maintained, in the period from December to February
18 it is not discernible that the Andersons believed that
saving a few hundreds or thousands of dollars in personnel
funds was the solutions
In the first part of February, up to February 20, most of
the Rotary supervisors received pay increases, e.g. Betz,
Hayden, and Ryan; employees Braun , DeBorde, Doyle,
Gregory, Hall, Pease, Reno, and Karen Schauer also
received pay increases during this period. Joseph Anderson
testified that in January , after he had taken over the
Rotary operation, employee Lovins told him that the prior
manager, Schauer, had hired her at $1.65 per hour.
However, when she was assigned the additional task of
transporting Schauer's child to school, she had her wage
raised to $2.10. She asked Anderson if she would continue
to receive $2.10 now that Schauer was terminated and no
longer in the plant. Anderson continued to pay Lovins
$2 10 per hour. While we do not wish to disparage this
considerate treatment of an employee, the action is
scarcely consistent with that of an employer who viewed
personnel costs as an area in which retrenchment in such
costs was vital to its survival . In fact , at one point in his
testimony Joseph Anderson, when asked, denied that
"salaries paid to employees were a consideration in [our]
moves to economize."
Wehmeir , who testified that he is in the business of
securing money for various kinds of companies, and who
had known Raymond Anderson for 15 or 20 years, testified
that Raymond Anderson contacted him in early February
1973 After checking into the financial affairs of Market,
Wehmeir agreed with Anderson that Market was in need
of cash. For a finder's fee of $4,500, Wehmeir introduced
Anderson to two sources of capital , Renaldi Investment
and Save Incorporated, and they loaned Anderson $60,000
for a short term at high interest rates.9
Kramer was a foreman and supervisor who attended a
management meeting at Martinelli's Restaraunt on Wed-
nesday, February 14, 1973. Others present were Joseph
Anderson, the plant manager of Rotary; Case, the
comptroller for Market and Rotary, and the various other
mail to Market Wehmeir testified that it was his understanding that
Market's mail had been withheld for about 30 days, "and consequently his
money , which normally came in the mail, was withheld from him, which
helped put him in this financial bind " The restraining order was actually in
effect from January 8- 15 and as soon as it was lifted, accumulated and
current mail was received by Market
D. M ROTARY PRESS, INC
supervisors in the plant. There were only 2 working days
after February 14 and before February 19, when Respon-
dent terminated approximately 20-24 of its 28 employ-
ees.10 There was nothing said at the February 14
management meeting about the possibility of a large-scale
layoff. Kramer testified that on February 14 the topics
were various means of increasing production and the
possibility of terminating five employees who were not
producing as they should. The purchase of another folder
machine was also discussed. Foreman Hayden who, unlike
Kramer, was not terminated on February 19, was called as
a witness by Respondent. Hayden stated that on February
14 the discussion was about trying to increase production
and about the possible purchase of new or other machinery.
He did not recall any discussion of possible terminations
of employees. Joseph Anderson testified that around the
first of February, he had concluded that the Rotary payroll
had about five or six employees more than were needed.
However, Anderson states, regarding the February 14
meeting with the supervisors, that the purpose of the
meeting was to keep open the lines of communication
between top management and the supervisors and there
was also discussion about ways of increasing production.
He states that he did not discuss the layoff of a large
number of employees with supervisors on February 14. In
fact, the evidence is rather clear that no such termination
was contemplated. Anderson also states that on February
14, "actually at that particular meeting . .. we talked
about discharging a few employees for economic rea-
sons. . . ... It was in this connection that Anderson
testified, as previously described, that salaries paid to
employees were not a consideration in the Company's
desire to economize. This assertion is apparently borne out
by the Company's attitude toward the pay of employee
Lovins, previously described, and the granting of pay
increases to various employees in February shortly before
the terminations on February 19. It is also a fact that
Anderson agrees, as testified to by Kramer, that on
February 14, Kramer asked Anderson what he planned to
do about the union matter and Anderson said he would
worry about it "when it came up." 11
Four days after the February 14 management meeting, a
Substantial number of employees attended a meeting in the
Union's office on Sunday, February 18, 1973. The Union
had been contacted by Marilyn Schauer, a former
employee of Rotary. She arranged the meeting with the
Union after informing the union representative that a
group of Rotary employees was interested in the Union.
At the February 18 meeting or after the meeting on the
same date, 20 production and maintenance employees in a
unit, excluding supervisors, guards and watchman, and
office clerical employees, that I find to be appropriate,
signed an authorization sheet under the following heading:
10 Kramer was also terminated on February 19
11 I interpret the quoted phrase to mean that when the union situation
came to a head or became serious, the Company would give it full attention
Up to February 14 there had been rather vague talk about an unidentified
union or union activity for a considerable period of time and Anderson
states that he was aware of the fact In Anderson's words, he told Kramer
on February 14 that regarding a union "we would cross it when we came to
it"
12 Schauer was terminated January 19 Staley last appears on the payroll
on January 10 1 note that on a union card that Staley also signed on
Authorization
369
We, the undersigned , employees of the D. M. Rotary
Press, Inc, do hereby appoint the Graphic Arts
International Union , Local No. 508 Cincinnati,
AFL-CIO, our true and lawful agent for us in our place
and stead , to bargain collectively with D M . Rotary
Press, Inc.
Although there are 23 signatures on the above authoriza-
tion, I do not count those of Marilyn Schauer and Hutson
Staley, who were former and not current employees.12 I
also exclude Kramer since the evidence shows him to be a
supervisor. This leaves 20 authorizations from unit employ-
ees out of a payroll of 28 unit employees and constitutes a
majority. Many employees also signed union cards on
February 18 in addition to signing the above authorization.
A few employees had signed union cards but not the
authorization sheet. A few other signed the authorization
sheet but not cards. I consider the authorization sheet
alone to be a valid designation of the union although the
cards are also valid.13
In addition to Joseph Anderson's testimony that he had
heard of union activity for many months and the testimony
that on February 14 he had told foreman Kramer that he
would meet the union situation when he had to or when it
came to a head, there is other evidence of employer interest
in the February 1973 union situation.
Employee Pease had a conversation about the Union
with Marilyn Schauer about February I1 or 12. About 2
days later, Pease's foreman, Betz, a supervisor, approached
Pease three or four times at Pease's work station in the
plant. In these conversations, Betz asked Pease what was
being said about joining the union and when the meeting
would be held at which the employees would vote whether
or not to join the Union. Pease professed ignorance,
although he apparently was aware of the scheduled
February 18 meeting. Betz said that there might be a pay
raise for some employees; he said there was talk of raises
for a few "of you" and asked Pease "if it would work."
Betz also asked what other employees were in the union
movement.
Pease had started working for Rotary in September 1972.
He received a raise in pay in December 1972. From that
time until and including the day of February 14, 1973, his
pay was $3 per hour. On the next payday, Friday,
February 16, his pay was $3.25. Pease testified credibly
that he had not asked for a pay increase. Since Betz did not
testify, there can be little doubt that the increase can be
explained in the context of Betz' conversation with Pease
about February 13 or 14 concerning union activity and
February 18, he does not list the name of Rotary as his present employer
although there is a space for such information and Staley filled out other
spaces on the card
13 It is unnecessary to discuss the validity of the signing of the
authorization sheet by Doyle and Schuler and the contention that these
signatures were secured when Marilyn Schauer told them that they would
lose their jobs unless they signed If Doyle and Schuler 's signatures were not
counted there would be 18 valid signatures on the authorization sheet and
this would be a majority of the unit
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Betz' hint that some of the employees might receive an
increase.14
I find that Respondent through supervisor Betz engaged
in illegal interrogation; a thinly veiled promise of a wage
increase ; and the granting of a wage increase; all of which
conduct interfered with and restrained employees in the
exercise of rights guaranteed by Section 7 of the Act; such
conduct is found to constitute violations of Section 8(a)(1)
of the Act.
Employee Karen Schauer testified credibly that around
February 15, 1973, her supervisor, Betz, spoke to her at
work. He asked if she knew anything about a union being
organized. She said she did not.'5
Schauer states that 3 or 4 weeks before her termination
on February 19, she had asked Joseph Anderson for a
wage increase. He gave her no definite answer to indicate
whether she would or would not receive a raise . Thereafter,
Schauer had spoken to Betz about a raise and asked him,
did he know whether or not she would receive a raise. Betz
said he did not know. In the paycheck that Schauer
received on February 19, after her discharge on that day,
she received a wage increase.
Employee Hall testified credibly that around the week of
February 12 he asked his supervisor, Betz, with whom Hall
had a friendly relationship, what he thought about a union
being in the plant. Betz said that he did not know what
would happen but the Company might fold up if a union
came in . Later the same day, Betz initiated a conversation
with Hall. Betz said that the front office "was offering
some money or some sort of price about information on
the union" and he, Betz, "blew it" and "missed out on the
money."
In the first part of January 1973, Hall had asked for a
wage increase.is He asked Betz about this increase on three
or four occasions. Nothing happened until one working
day before Hall's termination on February 19. On that
date, evidently Friday, February 16, the regular payday,
Hall received a wage increase to $2.25 per hour.
Employee Schmidt testified credibly that on February 19
his supervisor, Hayden, came to his work station in the
plant on three occasions.17 The first conversation was
about 5 p.m. Hayden asked about the identity of the union,
who was in charge of it, and what Schmidt knew about it.
About 10-20 minutes later Hayden again returned to
Schmidt and questioned him further about the Union
along the same general lines as in the first conversation.
Hayden told Schmidt that the front office would value
greatly any information that Schmidt had about the Union.
Schmidt told Hayden everything he knew about the Union.
There was another conversation between Hayden and
Schmidt on that same evening, of February 19, apparently
at some time after or around 8 p.m. Two employees,
DeBorde and Gregory, were looking at a copy of a booklet
that was captioned Joint Contract between Graphic Arts
International and D. M. Rotary Press, Inc.18 Hayden came
14 Pease was terminated with others on Monday, February 19
15 Karen was the daughter of Marilyn Schauer
16 Prior to January Hall had received raises that had lifted his wage from
$165 to $2
11 Schmidt was on the second shift , 4 p.m to 12.
18 As we shall see, such an instrument was executed between the Union
and George Schauer, former manager of Rotary, on the evening of
over to Schmidt and asked him if DeBorde and Gregory
were looking at the union booklet. Schmidt said he did not
know. Hayden told Schmidt he was a liar. Shortly
thereafter Hayden again came to Schmidt and once more
asked if the booklet was a union booklet. Schmidt said, yes,
it was a union contract booklet. Schmidt testified that he
believes that Hayden had a copy of the contract booklet
but is not sure. In any- event, Hayden either had a copy of
the contract or was familiar with its contents because he
told Schmidt that Schmidt was worth $2 to $2.50 per hour
but not $5.81.19
Doyle, an employee witness called by Respondent,
testified that she worked the first shift on Tuesday,
February 20, and completed her shift at 4 p.m. She was
placed on layoff for Wednesday and was recalled and
returned to work on Thursday, February 22, and had
worked since that time. Doyle had been hired in September
1972. She received three pay increases, two of them being
prior to January 3, 1973. She received another pay increase
on the payroll of February 14, 1973. One other employee,
Reno, who was terminated on February 19, also received a
raise on February 14. Various other employees, terminated
on February 19, in addition to those previously mentioned,
had received raises on February 19.
Joseph Anderson undertakes to explain the wage
increases that occurred in February 1973, a period that the
Company describes as one of great financial crisis and lack
of operating funds, as attributable to the fact that former
manager Schauer had promised increases to various
employees and the Andersons granted the increases
because they did not wish to "rock the boat." I do not find
this a convincing explanation. Schauer was discharged on
January 19 for inefficiency or, as the Anderson's saw it,
incompetence and neglect of duty. I do not believe that the
Anderson's conceived that they owed anything to Schauer
or his policies or that they had any obligation to give raises
in a period of financial crisis simply because Schauer had
allegedly made some promises. Moreover, there is no
testimony in this record from any employee who received a
February raise that he or she had been promised a raise by
Schauer or that this had been reported to Anderson by the
employee. Some of the employees testified they had asked
Anderson or a foreman for a raise and had received no
commitment from these management people. One employ-
ee testified that he had never raised the question of a wage
increase. Employee Pease, above, a few days after being
interrogated about the Union by Supervisor Betz, received
a raise although he had not asked anyone for such action.
Anderson's further contention is that the wage increases,
received by employees around February 14 and 19, in the
period when Respondent was aware of union activity and
had been interrogating employees on the matter, had been
approved several weeks before and that the Company's
procedural machinery was slow. I find this contention
equally unconvincing. Pease, for instance, was interrogated
February 18, 1973
19 Schmidt's wage was Si 75 Although the record does not contain a
complete copy, including wage scale , of the February 18 "contract," the
scale of wages was admitted substantially higher than the existing Rotary
wages. Apparently $5.81, referred to by Hayden, was what he understood
the union wage scale to be.
D. M. ROTARY PRESS, INC.
about the Union on February 13 or 14 and was told on that
occasion that there might be some raises forthcoming and
was asked. "would it [the granting of raises] work." On
February 19, Pease received a raise.
While Anderson's explanation of many weeks delay in
processing the necessary paper work for raises might carry
conviction if Rotary and Market had a vast bureaucracy of
departments and people, this is not evident in a relatively
small operation such as we have before us. There were
three or four foreman, only one of whom would be
involved in his employee's raise, plus Manager Joseph
Anderson who was in frequent contact with his father,
Raymond. The comptroller, Case, was the financial officer
and he was also available. Although there was some
preliminary paper work prior to a raise becoming effective,
the payroll clerk, as far as appears, wrote, for instance,
"2.25" on the payroll as an employee's hourly rate instead
of "2.00" when a raise was given, and the number of hours
worked would then be computed at the new rate. There is
no indication tiat the payroll department or anyone else
notified an employee in writing of a raise and the employee
generally became aware of a raise when he received his
paycheck. The matter of effecting a raise was, in my
opinion, relatively simple in this small operation dominat-
ed by Raymond Anderson and his son. Joseph.
In my opinion, the evidence heretofore described amply
warrants the conclusion, and I find, that Respondent
violated Section 8(a)(1) of the Act by interrogating
employees about union activity, and by indicating or
foretelling and granting wage increases to discourage and
interfere with union activity.
We have now seen Respondent's awareness of at least
talk of union activity among employees for a week or more
prior to February 19. We have also seen that Respondent
engaged in unfair labor practices, abovedescribed, during
that period in an effort to thwart the union. But on
Sunday, February 18, the Union attained designations
from a majority of the employees in an appropriate unit.
The evening of February 18, Nichols, vice president of
the Local Union, met with George Schauer. Nichols states
at the time he understood that Schauer was still president
of the Company. Nichols asked for recognition and
presented proof of majority. The end result of the meeting
was that Schauer signed that evening a contract between
Rotary and the Union that Nichols had presented at the
meeting . Neither in the complaint, nor at the hearing, nor
in his brief does the General Counsel contend that the
contract executed by Schauer is binding on the Respon-
dent and the violations alleged in the complaint are not
based or premised on the contract. I, too, attach no weight
to the contract aspect insofar as the issues before me are
concerned. The Nichols-Schauer meeting is simply a
chronological introduction to ensuing events.
20 Evidently the contract contained a checkoff clause
21 Morelli was not aware of many aspects of the matter at this initial
stage and he so informed Boyd. There is no question that Morelli checked
with the Andersons after talking to Boyd and mformed them of what Boyd
had said After receiving information from the Andersons about Schauer
and so forth , Morelli then called Boyd
22 Morelli went a long way toward quickly substantiating his contentions
regarding Schauer. H-: wrote to Schauer on February 19, after the Morelli-
Boyd conversation , with a copy to Boyd. The letter, inter ala, reminded
Schauer that "your services were terminated January 19, 1973, by a written
371
On the following day, Monday. February 19, Nichols
telephoned the union attorney, Boyd, and informed him
that he had signed a contract with Rotary. He asked Boyd
to contact Rotary's attorney, Morelli, and work out the
details of check off of dues and so forth.20 Boyd testified
without contravention that he spoke to Nichols about 2
p.m. on February 19. Boyd called Morelli at about 3 p.m.
He relayed the information from the Union that the Union
had signed a contract with Rotary, with the latter acting
through Schauer. Morelli, in effect, said that he would
check into the matter and would call back 2t Morelli called
Boyd at approximately 4 p.m. He told Boyd that Schauer
had been discharged previously and had no authority to
sign a contract for Rotary. Morelli, in effect, told Boyd
that the contract was worthless. Boyd said that the Union
understood that Schauer was president of Rotary. In any
event, Boyd said, the Union had a clear majority in the
unit , and if Morelli could show him that Schauer was not
the president and had no authority to execute the contract,
the Union was willing td discard the contract if the
Company would recognize the Union and start contract
negotiations from scratch. Morelli replied that he did not
wish to recognize the Union and that the only way he
would recognize the Union was through an election.
Morelli was of course speaking as the attorney for his client
Rotary and Market.
When Morelli in his second conversation with Boyd
disclaimed Schauer and his authority, as well as the
contract executed by Schauer, Boyd, in effect, presented
him with an alternative, subject to Morelli substantiating
the assertion that Schauer was not the president and had
been discharged well before he executed the contract. Since
these contentions had been strongly stated by Morelli, the
means of substantiating the contentions were presumably
(and actually, according to the evidence in this case)
readily available and within the control of Morelli. Boyd as
an alternative, therefore, asked that Respondent recognize
the Union as majority representative of the employees in
the appropriate unit and commences bargaining negotia-
tions for a contract from scratch. Morelli replied that
recognition would be forthcoming only as the result of an
election.22
As regards the Rotary plant and its employees, the
following is the surrounding context in which the events of
February 19, such as the Boyd-Morelli conversations in the
later afternoon of February 19, are to be understood. The
employees had been paid on Friday, February 16, the
regular payday Nothing was said to employees or
supervisors about a layoff or terminations. During this
period there were two shifts in operation, the first shift and
the second shift 23 The first shift completed its work and
the shift went off as usual at 4 p.m, on February 19. There
was no indication of any terminations or layoff or anything
letter. You have not been near the company premises for over four weeks "
Having written such a letter, with a copy to Boyd. Morelli could reasonably
believe that Boyd's alternative request was operative i e recognition of the
Union and commencement of contract negotiations. Morelli , however, had
already rejected this alternative by his statement that recognition would be
forthcoming only as the result of an election.
2J Foreman Kramer , who impressed me as a credible witness, testified
that 2 or 3 weeks before February 19, the third shift had been eliminated
and consolidated into the other shifts and he was moved from the third to
the second shift Kramer stated that no employee was laid off at the time of
(Continued)
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
else out of the ordinary. The second shift began as usual at
4 p.m. and would have completed its shift at 12 midnight.
A few minutes before 12, February 19, the employees on
the second shift were told that they were terminated. The
first shift began its work on the morning of February 20
and went off as usual at 4 p.m. It is not clear which, if any,
employees on the first shift were laid off or terminated
before beginning work on February 20 or after work on
that date. First shift employees such as Doyle, Schuler and
Cooper worked a full shift on February 20. Doyle was
notified of her layoff on the evening of the 20th. She was
returned to work on February 22. Cooper and Schuler were
never laid off. Don Albers worked on the first shift. He
testified that he was terminated in February with everyone
else. The last payroll entry for Albers was February 20.
We now consider the evidence as to how and why
Respondent made the decision to terminate all the second
shift employees on February 19. We have previously
described the telephone conversation between attorneys
Boyd and Morelli in the late' afternoon of February 19.
Boyd referred to the contract executed by Schauer with the
union on February 18 and also claimed that the Union
represented a majority. As an alternative position Boyd
demanded recognition and the negotiation of a contract
from scratch. Morelli said that recognition would only be
forthcoming after an election, thus rejecting the alternative
and, of course, he had already repudiated the Schauer
executed contract.
Because of the claim by Boyd about the contract and the
alternative claim of majority and the demand for recogni-
tion, it requires little imagination to conclude that, after
talking to Boyd, attorney Morelli would have acquainted
his client, Market and Rotary, with the situation. Market
was Raymond Anderson, the dominant and pervading
head of the Market and Rotary enterprise In questioning
at the hearing his witness, Joseph Anderson, son of
Raymond, Morelli asked:
Q. Now, directing your attention to February 19,
1973 . . . You received a phone call from Ray
[Raymond Anderson] as regards this conversation I
had with Boyd, is that correct?
A. Yes.
Raymond therefore on February 19, probably around 5 or
the consolidation As a member of the third shift and a foreman thereon
Kramer was in an excellent position to know the facts Joseph Anderson's
testimony regarding the shifts is a maze of contradictions He testified at
various points as follows At one point Anderson testified, "Q And you
continued to work from January 19 to February 19 with the full
complement of employees that were there when you took over'1 A Yes, sir",
at another point, he was asked about the number of shifts "around February
20, 1973 " His answer was, "A. February 209 We had three shifts, Q Beg
your pardon? A. Three shifts" and added that the three shifts were then cut
back to "one shift " About four pages later, Anderson testified that the third
shift was eliminated at 12 midnight, Sunday, February 18 At a later point in
his testimony Anderson stated that the third shift was eliminated "around
the middle of February, early part of February Q Early part of February's
A Yeah " Anderson stated that he believes Kramer and others on the third
shift were transferred to the first and second shifts but that some employees
were eliminated at the time Although there is a wide choice of assertions
presented by Anderson ' s testimony, I will limit my comment to his
statement ( inconsistent though it is with his other statements) that the third
shift was eliminated at midnight Sunday , February 18 1 am not persuaded
that this is the fact This action, if it occurred, would have followed the
6 p.m. knew what Boyd had said to Morelli about the
Union demands. Although Joseph Anderson, as manager
of Rotary was in that plant office every day, Raymond,
after his talk with Morelli, above, called Joseph at the
latter's home that evening. Joseph so testified. Joseph said
that prior to the call that evening, he and his father had
talked five or six times during that day, which was, he said,
average. I am satisfied that during the day, when the first
shift was working 7:30 a.m. to 4 p.m. and the second shift
started at 4 p.m., nothing was said about taking an
inventory or that the second shift would be terminated on
February 19. Since the alleged reason for the termination
of the second shift was to save money, the maximum
saving would have been realized by terminating the second
shift at 4 p.m. before it started work. However, it was only
later that evening , after Morelli reported to Raymond on
Boyd's union demands, that Raymond called Joseph at the
latter's home at 6:30 or 7 p.m. According to Joseph, his
father referred to the financial situation and told him to
take an inventory of materials on hand.24 Joseph could
recall no mention of the Union in this conversation
although by that time the Andersons were aware of
Morelli's report which was, in effect, that the Union was
figuratively at the gates of, or inside, the plant. I find this
hard to believe. Joseph then called Foreman Hayden at the
plant and told him to take an inventory of the treasure
chest letters on hand. Hayden states that this was at about
8 p.m. Foremen Hayden, Betz, and Kramer then began
taking an inventory. Hayden testified that about I I p.m.
the inventory was completed and he called Joseph and
reported the count. About 11:45 p.m., according to
Hayden, Joseph called him and told him to terminate all
the employees on the second shift. Hayden did so, a few
minutes before 12, the end of the shift. Hayden was not
terminated and came to work the next day on the first
shift.
Joseph testified that in addition to the instruction from
his father at about 6:30 p.m. on February 19 to take an
inventory, his father called him again at about 9 p.m.
According to Joseph, Raymond said that "he didn't think
the financial picture would warrant a second shift. The
expenses, they were out of line. . . . I think that we can
just hop along with an experienced first, strong, solid first
shift." Joseph then states, "And he asked me my opinion. I
said, `I haven't been on the scene long enough to know but
union meeting on the afternoon of February 18, attended by a substantial
number of employees, and would have followed by about 4 hours the
signing of the contract on the evening of the 18th In my opinion some
employees would have notified Nichols, the union representative , who had
presided at the union meeting the afternoon of February 18, that the third
shift had been terminated, including employees thereon, shortly after the
meeting This notification would have been made to Nicholson February
19 or 20 1 find this conclusion to be borne out by the fact that on the
morning of February 20 Nichols received a number of calls from employees
advising him that at the end of the second shift at 12 midnight , February 19,
the entire second shift of employees had been terminated There is no
reason to believe that if the third shift had been eliminated at midnight,
February 18, Nichols would not have been informed of this fact on
February 19 and certainly by February 20
24 Joseph states that he and his father "had discussed the financial
situation that entire weekend " If this is so, they quite evidently had made
no decision about taking an inventory or terminations and had still had
made no decision about taking an inventory or terminations during the
entire day of Monday, February 19
D. M. ROTARY PRESS, INC.
from what I have observed I think that is probably
true.' "25
The foregoing indicates, and I believe on this aspect
correctly, that Raymond Anderson made the decision to
terminate the second shift sometime in the evening of
February 19 after Morelli had reported that the union
claimed to represent a majority of employees and had
demanded recognition, as well as having claimed an
executed contract. Quite clearly Joseph simply went along
with the decision that the plant could operate with only the
first shift and he told his father in that conversation that "I
haven't been on the scene long enough to know" but your
conclusion "is probably true." This certainly does not
indicate that Joseph at an earlier time or at that time had
made a definite and independent decision to terminate the
second shift and to operate the plant with only the first
shift.
Joseph also refers to a conversation that he had with
attorney Morelli on February 19. The exact time of this
conversation is not entirely clear. In my view of the
evidence, Morelli did telephone not only Raymond but
also Joseph on February 19 after Morelli had his
conversation with Boyd. It was probably around 5 p.m. or
shortly after. Morelli reported Boyd's union demands. For
some reason, either as precautionary advice or because
Joseph's reaction to Morelli's report was that he would
discharge the whole second shift, Morelli advised Joseph
not to discharge anybody, indicating possible National
Labor Relations Board intervention. In short, I am
disposed to view Joseph's state of mind or his intent as
expressed to Morelli as a reaction to the news conveyed by
Morelli rather than the revelation of an existing plan to
terminate the second shift. If Joseph, at 5 p.m. on February
19, in talking to Morelli, had already decided on terminat-
ing the second shift and getting along with only the first
shift, Joseph's conversation with Raymond Anderson 4
hours later that night would have been quite different than
it actually was. Thus, as we have seen, at 9 p.m. Raymond
told Joseph that he thought that they could get rid of the
second shift and get along with dust the first shift.
Raymond asked Joseph for his opinion and the latter said,
"I haven't been on the scene long enough to know . . .
adding that what Raymond had said was "probably true."
It is Respondent's contention that the terminations that
were decided upon and effectuated on the evening of
February 19 were due solely to the financial stresses under
which Rotary and Market were operating. As stated in
Respondent's brief, the financial stress was due to "distress
in profits from its mail order operation because of bad
publicity and numerous legal problems with the Post
Office Department and the Attorney General offices of
several states, the ineffectiveness of new copy letters, and
the high interest rates necessary to borrow money in order
to pay creditors." Respondent also introduced evidence
that it owed substantial sums to various creditors.
25 The majority of the employees worked on the second shift on
February 19 As far as I can determine, there were either three to five or six
nonsupervisors on the first shift
26 The Andersons talked with each other five or six times during the day
but it is not claimed that anything was said about terminating the second
shift on February 19. Raymond states that mail receipts were very low on
Monday, February 19 Assuming this to be true, the fact would have been
373
While I believe that the evidence does show grave
problems, financial and legal, in the intermeshed Rotary
and Market mail order merchandising business, these
problems existed in December, January, and February,
prior to the evening of February 19 when Respondent
decided to and did terminate its second shift, where
approximately 80 percent of its employees worked. The
debts and the creditors were not of February or February
19 origin; the legal problems with the states and the postal
authorities were critical in December and January; on
January 8-15 there was in effect a restraining order
stopping all incoming money to the business; in January,
Respondent was aware that a series of revised treasure
chest solicitation letters were not bringing in the money in
the same quantity as had the original letter which had
given rise to legal problems with law enforcement
authorities.
Raymond Anderson admitted that on Friday, January
12, when Respondent laid off all its employees and recalled
them all on Tuesday, January 16, the financial situation
was not any different than it was on February 19 and "was
dust about the same." The financial situation by the end of
the prior week and on payday, Friday, February 16, was
surely no different than it was on Monday, February 19. If,
as Joseph Anderson asserts, he and his father spent the
entire weekend before Monday, February 19, discussing
finances and economy, they did not decide to terminate the
second shift. There was ample time on Monday, February
19, from 7:30 a.m. on, for Raymond Anderson or both
Andersons to decide to terminate the second shift before
its commencement at 4 p.m.26 This would have saved the
expense of allowing the entire second shift to work 8 hours
until midnight. Inventory could have been taken on the
first shift on February 19 as well as on the second since it
was an inventory of material in the plant. As a matter of
fact, the inventory, that was ordered and that was taken on
the evening of February 19 after Morelli had reported to
the Andersons regarding the Union claims and demands,
appears to have been undeter minative of the termination
decision. Hayden, who was in charge of the inventory, did
not complete it and report the results to Joseph Anderson
until I1 p.m. but Raymond Anderson, with the concur-
rance of Joseph, had, at 9 p.m., reached the decision to
terminate the second shift.
Whatever the stress of bills and creditors in Respon-
dent's business, one fact is apparent. Unless Respondent
produced and disseminated to the public its treasure chest
letters and other advertising material, no money would be
coming in to the Company and there would be little hope
of paying either existing or future financial obligations.
That was the nature of the business. Notwithstanding the
vital necessity for the production by Rotary of most of the
aforedescribed advertising material, Respondent made a
drastic cut in the Rotary production personnel on
February 19-20, 1973.
known during the day and in ample time to make a decision regarding
terminations A low amount of incoming mail on a particular Monday did
not mean that the roof had fallen in The postal system being what it is, mail
dispatched the previous week does not always arrive on Monday even
though in the past the receipt of mail by a particular addressee may have
been heavy on Monday
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Anderson testified that there were no production
records maintained by Rotary when he took over as
manager on January 19, 1973. Anderson did not start
keeping production records at Rotary until March 1, 1973.
There also had been no "time studies made or any job
evaluations or anything like that," pnor to February 19-20,
1973. It is reasonably clear; therefore, that Respondent, on
February 19, had neither definitive information on existing
production with a complement of 28 employees nor of the
production that could be expected from a greatly decimat-
ed staff after February 19-20.
We do not know exactly what happened to production
immediately after the February 19-20 cut, but we do know
that between some indefinite time, after February 19-20
and up to and including the date of hearing in June 1973,
production has improved. Three of Respondent's witness-
es, Hayden, Doyle, and Joseph Anderson, testified on this
aspect but they gave no precise time other than "after or
since February 19-20" that Respondent acquired new
machines for Rotary and thereby improved production.
Doyle, for instance, testified that from February 22 "up to
today [June 20, 1973 ]," the Company acquired two new
machines, "one inserter and one folder " In short,
sometime after February 19-22, Respondent acquired a
new inserter and a new folder to supplement or to supplant
existing machines. These machines are large and are not in
the cost range of simply a few hundreds or a few thousands
of dollars. Although Respondent points out that the "new"
machines were bought second hand and were used
machines, they were new in the sense of being newly
acquired by Respondent. These machines obviously
required an expenditure of funds, either in the form of cash
or the incurring of a debt. The expenditure was clearly a
new expenditure. The new machines improved production.
Concerning the new folder, for instance, foreman Hayden
testified, "It works almost perfect. It increased my
production up to at least a hundred thousand a day .. .
where, in comparison [with the old folder] . . . I think the
most we would ever get out a day would be approximately
around thirty, forty thousand." But there is no indication
that Respondent was aware beforehand that the new
machines would be vastly superior to the old machines or
that the new machines had been purchased or acquired
pnor to the February 19-20 terminations. The new
machines may have been purchased at some recent time
after the February terminations to compensate for a
depleted personnel complement. Thus Joseph Anderson
testified in terms of production at the time of hearing and
not of production on February 26 or March or other
months after the terminations.27
27 He testified , "at the present time we average between fifty and sixty
thousand completed mailings a day," as compared with Anderson 's estimate
of predischarge production of 30 ,000-40,000
28 On January 8, although a restraining order had cut off completely all
mail income to Respondent, Respondent did not layoff any employees until
the end of the week , January 12
29 Case , the comptroller , testified that Market's operations depend
directly on the mailing of advertising material punted by Rotary I assume
that this means that the treasure chest letters and other advertising and
soliciting materials that are printed and mailed by Rotary bring mailed
responses from the public in the form of checks and so forth to Market
Market presumably opens and sorts the incoming responses and handles
correspondence . Case states that at the time of the Rotary terminations
While the evidence of financial stress persuades me that
Respondent would have taken steps to save money,
including reducing personnel , by sometime possibly in the
latter part of February or early March ,28 the evidence does
not persuade me that it would have acted when and how it
did and that it would have terminated the entire second
shift on the particular night of Monday , February 19,
absent the report of the union claim of majority and union
demands which Respondent received in the late afternoon
of February 19. 1 do not believe that the timing of
Respondent 's action is explainable as a simple coincidence.
It is my opinion that the Union demands on February 19
triggered , precipitated , and caused Respondent to termi-
nate its second shift on February 19 as a means of avoiding
the Union problem . I view the action as a hasty and illegal
response and I find that the terminations on February
19-20, 1973, were in violation of Section 8(a)(1) and (3) of
the Act.29
In my opinion , Respondent would have been within its
rights in refusing to accept the executed contract as
binding and Respondent was not obliged to recognize the
Union upon demand , albeit the Union claimed and did
have a majority in an appropriate unit , providing that
Respondent did not otherwise engage in unfair labor
practices to frustrate the union activities of its employees.
Respondent , however , has engaged in violations of Section
8(a)(I) of the Act as found in this Decision and has also
violated Section 8(a)(3) and (1) of the Act by the February
19-20, 1973, terminations . It is difficult to perceive how a
fair election would be possible when , within a few hours
after the Respondent learned of the union claims and
demands , Respondent discriminatorily terminated approx-
imately 80 percent of the plant employees . N.LR.B. v.
Gissel Packing Co., 395 U.S. 575, 613-614 ( 1969).
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
Since I have found that the discharges on February
19-20, 1973, were discriminatory, the customary remedy is
to require Respondent to offer reinstatement to the
discharged employees and to pay them wages lost because
of their discharges from the date of discharge to the date of
the offer of reinstatement 30
Joseph Anderson testified, without contradiction, that, in
the latter part of March 1973, he , and a secretary
telephoned the terminated employees individually. Al-
though Anderson testified that there were only three job
Market laid off five of " the girls in the office" at Market . The layoff at
Market is not in issue in the instant case and only the foregoing limited facts
appear or were offered in the record I assume that when Raymond
Anderson decided on the Rotary terminations on February 19, he decided
that it was an appropriate time to save money at Market He was
undertaking to save money at both Rotary and Market albeit I have found
that the selection of the particular time of February 19 for the Rotary action
was caused and triggered by the union demands a few hours earlier on
February 19
30 The matter of possible terminations for legitimate economic reasons at
some date subsequent to the February 19-20, 1973 . discharges is
appropriately reserved for the compliance stage of the case.
D. M. ROTARY PRESS, INC. 375
openings that he was trying to fill in March, only one of the
discharged employees, Janice Baker, accepted the offer of
reinstatement.31 All other employees declined for various
reasons, such as returning to school and so forth.
Accordingly, the period of backpay is from the date of
discharge on February 19-20, 1973, to the date of the offer
of reinstatement in late March 1973 or whatever the exact
date or dates are shown to be. The amount of backpay that
may be due to individual employees will be less any
intermediate earnings of the employee during the above
period. The computation of backpay due is to be made on
a quarterly basis and with interest at 6 percent.
Having found that the Union, since February 18, 1973,
represented a majority of Respondent's employees in an
appropriate unit, there was a refusal to bargain when
Respondent rejected the Union's alternative demand for
recognition on February 19, 1973, and discriminatonly
discharged employees on February 19-20, 1973. Respon-
dent's conduct made the holding of a fair election
impossible and Respondent had informed the Union that it
would not recognize the Union except through an election.
In my opinion, Respondent's discriminatory discharge of
all but a handful( of its employees just a few hours after the
Union had claimed a majority status and demanded
recognition was conduct that decimated the Union and
made the holding of a fair election impossible. It was the
type of conduct justifying a remedial bargaining order.
Gissel Packing Co., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. On and since February 18, 1973, the Union has been
the exclusive bargaining representative of Respondent's
employees in an appropriate unit consisting of all pro-
duction and maintenance employees, excluding supervisory
employees as defined in the Act, professional employees,
guards and watchmen.
4. Respondent has violated Section 8(a)(1) of the Act as
more fully found hereinabove in the Decision by interroga-
tion of employees concerning union activities, hints or
indications of pay increases, and pay increases as means of
interference with union activities.
5. Respondent has violated Section 8(a)(3) and (1) of
the Act by discriminatorily discharging employees on
February 19-20, 1973, because of union activities.
6. On and since February 19, 1973, Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain collectively with the Union.
ORDER32
D. M. Rotary Press, Inc., its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Illegally interrogating employees regarding union
activities.
(b) Indicating to employees that pay raises might be
forthcoming and granting pay raises , in order to interfere
with and to discourage union activities.
(c) Discouraging union activities by discriminatorily
terminating employees because of union activities.
(d) Refusing to bargain collectively with Graphic Arts
International Union , Local 508 , AFL-CIO, and making a
fair election impossible by engaging in serious unfair labor
practices.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Make whole for any loss of pay all employees
discharged on February 19-20, 1973, from that date until
the date of the offer of reinstatement , less intermediate
earnings and with the computation being made on a
quarterly basis and at 6 percent interest , all as more fully
described in that portion of this Decision entitled "The
Remedy"
(b) Upon request, bargain collectively with Graphic Arts
International Union , Local 508 , as the exclusive bargaining
agent of the employees in the appropriate unit , described in
this Decision, and, if agreement is reached , embody the
said agreement in a signed written contract.
(c) Post at its Sharonville , Ohio , plant, the notice
attached hereto as "Appendix ." 33 Copies of said notice, on
forms provided by the Regional Director for Region 9
shall, after being signed by Respondent , be posted
immediately in conspicuous places and in places where
notices to employees are posted, and be maintained for 60
consecutive days. Reasonable steps shall be taken to ensure
that said notices are not altered , defaced , or covered by
other material.
(d) Notify the said Regional Director , in writing , within
20 days from the date of this Decision, what steps the
Respondent has taken to comply herewith.
31 After her February 19 discharge . Baker next appears on the April 11,
1973, payroll
32 In the event no exceptions are filed as provided by Sec 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
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.
3J In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
As a result of a trial in which all parties were represented
by their attorneys, the Administrative Law Judge of the
National Labor Relations Board, who heard the evidence,
has found that we have committed certain unfair labor
practices and we have been ordered to remedy these unfair
labor practices. Accordingly, we advise you that:
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT illegally interrogate employees regard-
ing union activities.
WE WILL NOT, for the purpose of interfering with or
discouraging union activities, grant wage increases or
other benefits.
WE WILL NOT discharge employees because they
engage in union activities, including the selection of a
Union as their collective-bargaining agent.
WE WILL pay the employees whom we discharged on
February 19-20, 1973, the wages they have lost from
the date of their discharge, as more fully explained in
the Decision of the Admimstrative Law Judge.
WE WILL, upon request, bargain collectively with
Graphic Arts International Union, Local 508, as the
exclusive bargaining agent of the employees in the
appropriate unit, described in the Administrative Law
Judge's Decision, and, if agreement is reached, embody
the said agreement in a signed written contract.
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of rights guaranteed by
Section 7 of the National Labor Relations Act.
Dated By
D. M. ROTARY PRESS, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Federal Office Building
Suite 3003, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 513-684-3686.