Dayton Typographic Service, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1969

176 N.L.R.B. 357 (N.L.R.B. 1969)

DAYTON TYPOGRAPHIC SERVICE 357
Dayton Typographic Service , Inc. and Thomas L.
Johnston . Case 9-CA-4698
June 3, 1969
DECISION AND ORDER
BY CIIAIRMAN M('CULI OCH AND MI-MBERS
BROWN AND ZAGORIA
On March 28, 1969, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practice conduct alleged
in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Decision
and a supporting brief and Respondent filed
cross-exceptions and an answering 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
to reinstate Johnston because of his activities on behalf of
the Union or other concerted activities, all in violation of
Section 8(a)(3) and (1) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein
called the Act). The issues arise on a complaint issued on
September 30, 1968, by General Counsel of the Board
through the Board's Regional Director for Region 9,' and
answer of Respondent admitting jurisdiction but denying
the commission of any unfair labor practices. At the close
of the testimony the parties waived oral argument but
later filed written briefs which have been carefully
considered in the preparation of this Decision.'
Upon the entire record in the case, and from my
observation of the witnesses on the stand, I make the
following:
FINDINGS OF FACT
1. RESPONDENTS BUSINESS AND THE LABOR
ORGAN IZATION
Respondent is an Ohio corporation engaged in the
business of typesetting for the printing industry at its plant
in Dayton, Ohio. Respondent in its business has an annual
direct inflow of goods and materials valued in excess of
$50,000, and annually receives over $50,000 for services it
performs for customers located outside the State of Ohio.
Respondent admits, and I find, that it is an employer
engaged in operations affecting commerce within the
meaning 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 History
ORDER
It is ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
MI•MBER BROWN, dissenting:
For the reasons stated in my dissenting opinion in
Thor Power Tool Company,' I would not, at this
time, reach the merits of this matter, but would
require the parties to resume arbitration
proceedings.
'148 NLRB 1379.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: The issues in this
case , which was tried before Trial Examiner Eugene F.
Frey at Dayton , Ohio, on December 5 and 6 , 1968, with
all parties represented by counsel , are whether or not
Respondent ( 1) refused to allow an agent of Dayton
Typographical Union No. 57, affiliated with International
Typographical Union , AFL-CIO (herein called the
Union ), to be present at a meeting allegedly called by
Respondent with Thomas L. Johnston and another
employee for the purpose of reprimanding and disciplining
Johnston about his work , and (2 ) later laid off and refused
176 NLRB No. 48
The Union is a statutory collective-bargaining agent of
employees in Respondent's plant in an appropriate unit set
forth in an agreement executed by the Printers League of
Dayton (of which Respondent is a member) and the
Union in March 1967, and still in effect. Respondent,
either in its present or earlier corporate form and under
its present or earlier names, has had successive contracts
with the Union since at least 1924. In this period
Respondent has never had an unfair labor practice charge
filed against it arising out of its relations with employees
or the Union; it was subjected to the general strike of
1937 when the Union was organizing the printing industry
in Dayton after passage of the original Wagner Act, and
two wildcat strikes in the last 2 years; it has been involved
in only two arbitration proceedings under existing or prior
contracts. It was also a pioneer in the "union label"
movement in 1924, and has held official union label
licenses from labor organizations ever since . The founder
of Respondent's predecessor was a member of the ITU,
parent of the Union, over 40 years. A subsidiary concern
which makes products for the printing trade in the same
building has had contracts with two other printing trade
'The complaint issued after Board investigation of a charge filed by
Thomas L . Johnston on April 22, 1968
'After the close of the hearing , counsel for General Counsel filed a
motion , with notice to all parties , to correct the transcript of testimony in
certain respects . As no other party has objected , the motions is hereby
granted , and the transcript shall be deemed corrected in the four places
indicated in the motion , which is marked in evidence as G.C. Exh.5.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unions since its mception.-
B. The Johnston Case
1. The March 7, 1968, meeting
Thomas L. Johnston was first employed by Respondent
in January 1966 as a "T.T.S. perforator." He was laid off
in late 1966, but he exercised his priority and claimed a
proofreading ,lob,' and worked thereafter at that job until
his layoff of March 22, 1968, which is now in question.
On March 7, 1968, Plant Foreman William J. Santner
(an admitted supervisor under the Act) brought Johnston
and Mary F. Fisher, both proofreaders on second shift, to
a "quality control" meeting with him and William C.
Taylor, production manager of Respondent.' At the
outset, Santner explained he was there to discuss a critical
subject, the quality of the proofreading, but by being
present he was not making any concessions to the Union,
or reflecting in any way on Respondent's position about
the Union's insistence that the foreman must always be
present at these meetings. He said he was very much
concerned about the great number of errors in the
proofreading, that one customer in particular, E.F.M. Art,
had been "raising Cain" about errors in its work. He said
he felt that Johnston and Fisher had been making most of
them, that something would have to be done about it, and
that he would have to take some "drastic action." He
then produced a group of reproduction proofs, which is
the final form of printing work that goes out of the plant,
of work done by Johnston, Fisher, Charles Benzinger,
Paul Cook, and a few other proofreaders; he or other
officials had marked proofreading errors on them, as well
as the numbers of the proofreaders who had made them.
He went over the proofs in detail with Fisher. She asked
to see the "A" and "B" (earlier) proof to find out who
actually made the errors, arguing that she and Johnston
did not do all the proofreading, that some was done by
day-shift and third-shift readers, and she felt the day
personnel made more errors than she and Johnston.
Santner disagreed, saying more were made by night-shift
readers. He had some "A" proofs there, but said it was
not necessary to go over all "A" and "B" proofs, or even
the original proofs, that the samples of errors he had there
were enough, as he wanted to consider the overall problem
of too many errors going out in the final product. He
indicated that, due to the number of errors, Respondent
had taken steps to double-proof and triple-proof the
E.F.M. Art work for several weeks, and was considering
double-proofing work of other customers.
After reviewing apparent errors in her work with
Fisher, Santner turned to Johnston, remarked that the
conversation had been onesided to that point, as he had
said nothing at all, and said "I want to hear what you've
got to say." Johnston replied that he had previously told
'The above facts are found on documentary proof and uncontradicted
testimony of William C. Taylor and John C. Taylor. Sr (father of
William).
'While "T.T.S. perforator" is not explained in the record , the current
contract between Respondent and the Union indicates that this denotes an
operator of a tape perforating machine in the composing room. On his
1966 layoff, Johnston apparently claimed and secured the proofreading
work under section 29 of the contract which provides that the employee
with lowest priority standing in the shop in the class of work involved in
the layoff shall be laid off first, but he may claim other work in the office
which he is competent to do, and may "bump" out of that work an
employee of lower priority standing . Priority standing in an office or shop
is established on a shopwide basis, not by classification of work.
'The "quality control program" with periodic "superior quality"
meetings is explained below in considering Respondent's defense
Santner to bring Johnston's errors directly to him as soon
as possible, as he wanted to be a good proofreader and
did not want Santner to think he was trying to make these
errors. He then said "You called me up here to criticize
my work, you are blaming me for errors and threatening
drastic action, and this sounds like a disciplinary meeting,
is that right?" Santner replied "You can so consider it."
Johnston then said "I will not discuss anything further
about my work without the presence of my chapel
chairman. I wish to be represented here by my chapel
chairman." Taylor spoke up, saying "That is a poor
choice of words, this is not a disciplinary meeting."
Johnston turned to him, waved his hands at him, and said
"I don't have to talk to you," and repeated this again.
Santner pointed to Fisher, saying "There is your
representative, your witness." Johnston replied Fisher was
"more a co-defendant than a witness," and repeated his
demand for presence of the chapel chairman, saying that
he did not wish to refuse to cooperate, and he would
cooperate, for he was concerned about errors as they
were, but he felt he needed representation by his chapel
chairman if they talked about his errors. Santner
commented "Your witness is here, and how can you say
that you do not refuse to cooperate?" Johnston insisted he
still needed the chairman present, but Santner refused to
call him in. Both men became rather heated in this
exchange, so Taylor finally told Santner to "end this
meeting , we are not going to have any of this at this
meeting," that Johnston was "refusing to cooperate."
Johnston denied he was refusing to cooperate, and
Santner replied "Yes, it looks like you are refusing to
co-operate, that is unfortunate." The meeting then broke
up. As Johnston was leaving the room, Taylor told him
that if he were being disciplined, he would be told that
and then he could have the chapel chairman present.'
When Johnston returned to his work, he talked to
Santner and Paul Stewart, the night chapel chairman,
about the meeting, telling Santner he was not refusing to
cooperate with him, and asking if he had any complaints
about his work. Santner replied that he felt Johnston had
always been cooperative, that he had no complaints about
his work, and that he had told Taylor beforehand that the
meeting would turn out as it did. Johnston asked Santner
to bring any complaints about his work directly to him,
and Santner said he would. Santner also said he realized
that he had an obligation to the employees as well as
management to protect their rights, but he could not
always do this, as he had three bosses to answer to,
because at times the three Taylors each told him to do
things differently. He told Johnston not to worry about it,
just to go back and do his job. Johnston commented in
the talk that he felt Santner's purpose in holding these
meetings was "above board," but he thought Taylor's
motive was to set up some kind of employee review
system, in which he could call them in individually and
grade them on their "attitude, and intimidate them, and
so forth," to which Santner agreed.
On Wednesday, March 20, Santner told Johnston he
had to lay him off at the end of the week because there
was not enough work. Johnston told Ward E. Downs, the
day chapel chairman of the shop and vice president of the
Union, of the impending layoff, and Downs advised him
that under the ITU law and the contract he had the right
to "switch" classifications and .claim any job other than
*The above facts are found from a composite of mutually corroborative
testimony of Johnston, Fisher, and Taylor. Testimony of any of these
witnesses at variance therewith is not credited
DAYTON TYPOGRAPHIC SERVICE 359
proofreader, if it was held by an employee of lower
priority, and if he felt he was competent to claim that job,
otherwise he could put his name on the "extra board" as
available for work as a proofreader.
On Friday, March 22, Johnston again talked to Downs
about his rights, and both went to see Santner. Johnston
told Santner he thought he was competent for "floor
work" and asked Santner if he agreed. Santner said he
did not. Johnston argued that he had worked the required
number of shifts in order to be considered competent
under the contract for that work,' and asked Santner to
produce company records to find out if this was true.
Santner said he could not do that. Downs then told
Santner that, if he did not consider Johnston competent
"on the floor," Johnston wanted work as an "extra" in
the proofroom only, and that he had a right to that work
under ITU law. Santner agreed. Johnston was laid off at
the end of his regular shift that day. .
In the week of March 25-29, Johnston reported for
work daily to the chapel chairman to seek work as an
"extra." Down reported this to Santner. When the latter
indicated he did not want to hire him, Johnston then
claimed 3 accumulated days of overtime work previously
worked by other proofreaders, which had been posted in
the shop according to that contract, and in that way
worked three or four shifts that week (one day and two to
three night shifts) by "bumping" the regular proofreaders
including Fisher, who had accumulated that overtime.
On March 29, when Johnston reported for proofroom
work only, Santner offered him work as an "extra" on the
"floor" on second shift. Johnston replied, in the presence
of night Chairman Stewart, that if Santner would declare
him competent for "floor" work he would hire him for
that work. Santner refused to do so, and Johnston
declined the offer.
On April 1, Johnston reported again for proofroom
work only on day shift. Santner again offered him "floor"
work on day shift. Downs was present and reminded
Santner that they had "gone all through this Friday
evening. You had already declared Mr. Johnston
incompetent on the floor and he was not accepting any
floor work, so that he did not jeopardize his priority to
take another classification ." Downs and Santner had a
heated argument about this, during which Downs accused
Respondent of "trying to freeze Mr. Johnston off of this
board for some reason." Sgntner replied "you and I both
understand how a slip board works. But I've got my
orders from upstairs that I have to follow." When
Johnston reported at the shop that afternoon for
proofroom work, Santner handed him a letter, signed by
Santner for Respondent, stating that, since he had refused
work on March 29 as an "extra" on second shift,
Respondent was barring him from the composing room
for 3 months. Johnston took the letter to Downs, who at
once asked Santner "how . . . are you going to . . . bar a
man if you don't fire him?" arguing "You've got to fire
him before you can bar him [and] you can't fire a man
out of this shop." He also asked Santner to give him a
reason why he did this "so that I will have some defense
against it." Santner replied "The letter speaks for itself.
.. Figure it out yourself."
'Johnston was apparently referring to secs. 5 and 31 of the contract
which provide, in effect, that , if a shop hires a substitute for 10 consecutive
working days, the substitute shall be "recognized as a situation holder,"
and that any employee hired for a period of 10 shifts shall be deemed
competent.
On April 2. Johnston reported as available for work as
an "extra" in the proofroom, but Santner did not hire him
and said he was "under bar." That evening a majority of
second-shift employees engaged in an unauthorized or
"wildcat" strike because of this action, and stayed out for
2 days. On April 4, the dispute was settled at a joint
standing committee held pursuant to the contract, at
which Respondent admitted the "bar" was a mistake and
agreed to pay Johnston 2 days' pay for time lost due to
the "bar," to allow him to go back on the "extra board"
for proofroom work," and thereafter to obey the
"transfer" laws of the ITU which prohibited an employer
from transferring other workers to a classification for
which an employee had presented himself but had been
denied hire ; Respondent also agreed to recognize the
"open slip board." The striking employees then returned
to work.
After the settlement and up to his reinstatement to
regular proofroom work on August 19, Johnston
presented himself for work daily at Respondent's plant
(except for a 3-week period in which he took his paid
vacation, several days of illness in hospital, and a 2-day
period in which he responded to an emergency call from
the chapel chairman in the composing room of a local
newspaper to cover the work of a sick employee), and in
this period he was hired for a total of 20-25 days as an
"extra" in the proofroom.
Respondent took Johnston back as a regular
proofreader on August 19, which job he has held ever
since . His duties apparently have been the same as before
his layoff, however when, shortly before he testified in this
case , he received a card from Respondent on which to
indicate his vacation preference for 1969, he noted
thereon, and learned from discussion with his third-shift
foreman, that he was entitled to only 6 days of vacation,
as against 3 full weeks (as in 1968) to which he would
have been entitled under his original shop priority.'
2. Contentions of the parties, applicable law, and
final conclusions
The first issue is whether Johnston's refusal to talk to
management about the quality of his work in the absence
of a union representative was activity protected by the
Act, such that Respondent ' s refusal to continue such
discussion in face of the demand violated his rights under
the Act. The second issue is whether his ensuing layoff,
"bar" from employment, and failure of reinstatement for
a long period were for economic reasons, or whether the
economics of the situation was created or used merely as
a pretext to conceal a discriminatory layoff and refusal to
reinstate because of his protected activity.
a. The March 7 incident
General Counsel concedes at the outset, and I find from
the record, that the "superior quality" meeting of March
7 was part of a legitimate quality control program
instituted by Respondent in 1967 to upgrade quality of the
work in the plant, and that the monthly meetings under
'In the discussion. Downs suggested Santner could switch a regular
proofreader to the "floor," and lire Johnston as a regular in the
proofreading room, but Santner said there was no one then in the
proofreading room competent to work "on the floor "
'I find the events after March 7 from uncontradicted testimony of
Johnston and Downs, and some stipulated facts. Santner did not testify in
the case.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the program usually involved a review of specific work
and exchange of ideas and suggestions about work
performance and ways in which to upgrade it. I find from
credible testimony of Johnston, Fisher, and Taylor that
Santner made it clear at the beginning of the March 7
meeting that this was his purpose in appearing at the
meeting , but he quickly pinpointed the quality problem as
the disturbing number of errors by proofreaders, including
Johnston and Fisher, about which customers had
complained, and indicated he would have to take
"drastic" action about them, but without explaining the
nature of that action or indicating whether it would be
directed toward individuals or procedures. He then
pursued the main purpose of the quality control program
by discussing with Fisher errors made by her and other
proofreaders in the proofs he displayed, emphasizing to
her that he was not trying to pinpoint her errors and fix
responsibility for them but to consider the whole problem
of too many errors. When he had heard her explanations
and finished the discussion with her, he did not indicate
that he had reached any decision about "drastic" action
toward her or about her work, but instead invited
Johnston to give his views on the problem. He gave no
indication that any discipline could be an outcome of the
meeting until Johnston deliberately raised that issue in a
rather defensive way and then refused to talk to either
official about his own or any other errors without a union
representative present, expressly rejecting Santner's idea
that Fisher could serve as his representative or "witness"
in any discussion of his work. Since his abrupt refusal to
talk about the problem except on his own terms prevented
any further discussion of the errors displayed, and
provoked an argument with Santner, Taylor brought the
meeting to a close, but made it clear to Johnston before
he left that no discipline of any kind had been intended,
and that, if and when it were, he would be advised and
allowed to have union representation . Taylor' s remarks
carry substantial weight as against those of Santner
(which, though equivocal, were put in his mouth by his
fellow union member) for they indicate an attitude of top
management rejecting any idea of imposing discipline then
or later without the Union being advised and present,
which is particularly consistent with
Respondent's long record of amicable relations with the
Union in administration of successive contracts over the
years; and this, plus the fact that Fisher was not warned
at the time about, or later subjected to, any discipline for
her errors, strongly negates any inference of imminent
discipline which might otherwise rest on Santner's
remarks. Again, Santner's lack of disciplinary intent is
apparent from (1) his failure to explain the "drastic
action" in such fashion as to indicate reasonably to both
workers that it probably meant some discipline which
would affect their wages , hours, working conditions, or
tenure of employment, (2) his failure to mention discipline
at all until Johnston brought up the subject, and (3) his
assurances to Johnston and Downs right after the meeting,
that Johnston had always been cooperative, that he had no
complaints about his work, and that Johnston should not
worry but go back to his job, all of which suggests
strongly that at the meeting Respondent only sought
Johnston's "co-operation" on the problem of errors, and
that "discipline" in the ordinary sense was never intended,
as Taylor said during the meeting . " I must conclude from
all these circumstances , contrary to the claim of General
Counsel, that Santner and Taylor held the meeting only to
investigate the reason and source of numerous errors
discovered after complaints from customers to try to
gather ideas from some of the workers responsible for
them about reducing or eliminating them. These
circumstances also offset, if not actually overweigh, any
inference of imminent discipline which might otherwise
arise from the facts that (1) the union contract (section
29) allowed only the foreman, Santner, to administer
discipline or declare an employee incompetent, and (2)
that he appeared at this meeting expressly to take "drastic
action" which did not rule out discipline. In this
connection it also appears that Santner had in recent
months appeared at most quality control meetings, even
though he and management had disagreed with the
Union's views that these meetings were being used for a
purpose detrimental to the employees, which led the
Union to argue that the plant foreman, himself a union
member, must always be present; and there is no proof
that his prior appearances at meetings were preparatory
to, or had resulted in, discipline," all of which tends
further to negate any inference that discipline in the penal
sense was a continuous purpose or a hovering threat over
employees during the program. Finally, it appears that,
even though the Union had a running dispute with
Respondent about the conduct of the program,'r which
General Counsel now tries to use as a legal support for
Johnston's conduct on March 7, Johnston in fact went far
beyond the Union's contention by insisting in effect that
another union agent be present in any situation where an
employee had reason to fear that his foreman might be
preparing a case for discipline, although not yet ready to
impose it. His inordinate apprehension on this point,
which is out of all proportion to the facts including the
amicable and nondisciplinary treatment of Fisher, is
shown by his argumentative testimony that he felt he
needed the chapel chairman present, even though he knew
more about his own work and whether it contained errors
than that union official could know, and his admission
that it would first be necessary to "proceed in such a
manner that would have clearly established that the errors
were made by myself." However, he himself prevented the
condition precedent by his refusal to hold any discussion
which might establish whether any errors were made by
him, how many there were, or what could be done to
eliminate them, which indicates strongly that he knew he
"According to the contract and the testimony of Downs, the only
discipline which Respondent could impose was outright discharge
"To the contrary , I find from uncontradicted testimony of Taylor that at
prior meetings management had discussed their work with various
employees , offering and receiving suggestions about unprovement, in a free
exchange of ideas on the subject.
"For some time past , union members in the chapel had been contending
that the plant foreman , who had the sole right of discharge under the
contract , must be present at all quality control meetings , which the
employees were viewing with alarm as a possible form of employee review
system which might be used for some form of action against the workers.
Hence , they insisted they should not be called to account in such meetings
to anyone but the plant foreman . The dispute reached a head at the
February meeting , where Chapel Chairman Downs was called in for
discussion about plant problems , but refused to answer to anyone except
the foreman , and would not even take orders from anyone but him about
attending the meeting or speaking thereat . As a result Santner sent Downs
a letter on February 21, explaining the purpose of the program, and that
all employees must attend such meetings and participate therein , whether
or not Santner ordered him to attend or attended himself, citing provisions
of the contract and ITU laws which gave him authority to delegate the
conduct of such meetings to others , and that any member of management
also had a right to attend . The dispute over this was still pending in
March ; the Union had not made it the subject of a formal grievance. but
there had been several meetings about it between Downs and members of
management.
DAYTON TYPOGRAPHIC SERVICE 361
was at fault and was trying, contrary to Fisher," by any
means to insulate himself from any discussions,
suggestions , or orders of his Employer which might show
up his errors and require him to correct them. In effect,
he was indulging in a form of insubordination which
would make it impossible for his Employer to exercise any
control over him or his work, except on his own terms. If
such conduct were to be held protected activity, it would
drastically limit Respondent's legitimate right to manage
its business by discussing operations and performance of
its employees through any officials directly charged by it
with responsibility thereof, other than the union foreman,
a serious limitation on management which does not
appear in the contract, the ITU constitution or bylaws,
nor in any of the cases cited by General Counsel, and has
not been urged by the Union in its dispute with
Respondent.
The Board has recognized that the Act does not require
that a labor organization must be privy to management
conferences and investigations concerning its business
operations, even where they involve discussions with
employees, or that such employees when represented by a
union must be shielded by that agent from employer
inquiries every time the employer starts an investigation to
determine what is wrong with its operations or whether
plant rules, practices, or disciplines have been breached.
Chevron Oil Company, 168 NLRB No. 84;
Jacobe-Pearson Ford, Inc., 172 NLRB No. 84. It is only
where an employee is called into a discussion with
management on a problem involving his performance,
which has gone beyond the factfinding or investigation
state to a point where management has decided that
discipline of that specific employee is appropriate, that the
employer is required on demand of either the employee or
his bargaining agent to permit that agent to be present.
Texaco, Inc., Houston Producing Division, 168 NLRB
No. 49. Here, I am satisfied from the facts found above,
including the actual treatment of Fisher at the March 7
meeting and later, and remarks of top management to
Johnston at the meeting, that management was merely
investigating the reasons for proofreading errors by
seeking the help of two employees who had made some of
them , in efforts to find ways of reducing or eliminating
them, and that Johnston had no reasonable grounds for
believing from anything said or done at that meeting or
immediately thereafter that discipline directed to him or
any other employee was imminent or even probable.
Hence, the case falls within the rulings of the Chevron Oil
and Jacobe-Pearson Ford cases cited above," and is
different on the facts from the situation in the Texaco
case. Hence, I cannot find that Johnston's refusal to
discuss his work without a union agent present constituted
a form of concerted activity, such as presentation of a
grievance, for the benefit of himself and other workers; he
was only there at management request to help in the
solution of an operating problem which concerned
Respondent. Nor can I agree with General Counsel that
Johnston ' s conduct was merely an extension of an existing
dispute between Respondent and the Union about the
conduct of the superior quality program meetings , for the
presence of the foreman at the March 7 meeting (although
stated without prejudice to Respondent's position as to
whether he must be the only management representative
present at such meetings ) was substantially a compliance
"The record shows that Fisher had no apprehension or trouble about
discussing her own and other errors with Santner , that nothing happened
to her later , but in fact Respondent tried to alleviate the financial loss to
her when Johnston "bumped" her from her regular work several times.
with the main objective of the Union's contention about
the program, and Johnston's demand for the presence of
another union representative went far beyond the Union's
claim, as found above. For the same reasons , I cannot
agree that Johnston's action was an attempt to
"implement" terms of the existing contract which
recognized the Union as the statutory bargaining agent of
all employees in the stated unit.
I conclude and find on all the pertinent facts and
circumstances that General Counsel has failed to prove,
either on the facts or under applicable law, that
Respondent violated the Act by not acceding to
Johnston's demand that a union representative be present
during the factfinding meeting of March 7. I therefore
grant Respondent's request to dismiss so much of the
complaint as alleges that such conduct violated Section
8(a)(1) or (3) of the Act, and shall recommend that the
complaint be dismissed in that respect.'s
b. The layoff of Johnston
General Counsel claims Johnston was laid off in
reprisal for his protected assertion of his right to be
represented by the Union at the March 7 meeting, and
that Respondent concocted and offered the alleged
economic reason as a pretext to conceal the
discriminatory motive, arguing that the pretext is shown
by Respondent's continual switching of workers from
other classifications to assist in proofreading after his
layoff, while failing to "switch" Johnston to other work
he could do, the hiring of other workers during the layoff,
and the treatment of proofreader Fisher after she was
"bumped" from regular work by Johnston in the first
week of his layoff. Of course, one support for his claim is
weakened by my findings that Respondent did not violate
the Act by refusing to accede to Johnston's refusal to
discuss his work with management officials, including his
foreman, in the absence of a union representative, and
that the meeting was limited to discussion of Fisher's
"In both cases, specific misconduct of an employee had been
investigated , a preliminary decision to mete out discipline had been made,
and the meeting with the employee was held to get his side of the story,
which might provide additional support for the discipline or produce
adequate explanation to make it unnecessary . In this aspect, both cases are
far stronger on the facts than the case at bar.
"Respondent argues strongly that the Board should not exercise its
jurisdiction to decide the issues here, because the problem has already been
brought up by the Union under the grievance procedure in the contract,
that it has been considered fully by a joint standing committee, and then
taken to arbitration by the Union, where the matter is still pending While
the Board has indicated that it might stay its hand and withhold decision
on an issue pending before an arbitrator where the dispute involved
essentially the resolution of facts on narrow issue ; which have little impact
on national labor policy as defined in the Act (see Combined Paper Mills.
Inc., 174 NLRB No. 71), it has also stated that it would not defer to
arbitration where the controversy involves asserted violation of employee
statutory rights, and the issue might have a continuing impact on the
bargaining relationship , so long as it remained unresolved, and particularly
since rights declared by statute have a prior right to protection under the
remedial procedures of the Act, over any aspect of contract interpretation
which might affect them Unit Drop Forge Division Eaton Yale & Towne,
Inc.. 171 NLRB No. 73. Judged by these factors , I conclude the Board
should not withhold judgment on the issues here , because of the type of
unfair labor practices charged , which involve the serious question of the
extent to which day-to-day management dealings with employees in the
normal course can be limited and affected by the presence of a union agent
as an overseer . This is an issue which might have broad and nationwide
impact in all shops in the printing trades which may have contracts with
the ITU or any of its local chapels . See also Wisconsin Southern Gas
Company, Inc, 173 NLRB No. 79.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
errors and then aborted by Johnston's peremptory refusal
to talk to or even recognize the presence of the production
manager, who was obviously present only as an observer
concerned directly with quality of production. More doubt
is thrown on the claim by the circumstance of
Respondent's long and generally amicable dealings with
the Union as the employees' representative, which not
only tends to negate any inference of general union
animus but also would make it very difficult to find or
even infer (without strong proof) that an employer having
such long contractual relationship with the Union" would
go to the lengths of fabricating or manipulating an
economic layoff for the sole purpose of ridding itself of
one employee" who was far less than an outstanding or
militant union member, having filed only one grievance
under the contract during his 7 years with Respondent."
The economic picture supporting the layoff appears
from credible testimony of Production Manager Taylor,
with some corroboration from chapel chairman Downs,
and company records, all of which show that: The
question of a reduction in force was discussed by Taylor
with his father, the company president, and other officials
in January and February, and late in February they
decided a reduction in force was inevitable, particularly in
the proofreading work. The decision was based on
circumstances which pointed to a reduced volume of work
in succeeding months. Thus, early in January Respondent
learned that it would lose a large magazine printing order;
the cutoff date was effective with the May-June issue.
They also noted signs that there would be a dropoff in
orders for printing of book manuscripts in the next 3-4
months. Both trends would affect the plant workload as
early as March or April because of the large leadtime in
book printing work. In addition, Respondent was running
into the normal slowdown in typographic service work
between March and August. All of this created a marked
imbalance in the work force, developing a shortage of
"floormen" including compositors and machine operators
and a surplus of proofreaders. On the basis of these facts
and projections, Respondent laid off proofreader Robert
Neumeier on March 15, 1968, as he was the lowest on the
shop priority list posted by the Union." Early in the next
week Respondent decided to lay off Johnston, who had
the next lowest priority, when it noted that proofreading
work was beginning to slow down=' and the release of
Neumeier had not caused any delay in existing
proofreading work. The slowdown in workload,
consequent reduction of working hours, and reduction in
work force in this period are shown by company records
as follows: Between January and August 1968, the work
force covered by the contract was reduced from 74
journeymen and 5 apprentices to 68 journeymen with 3
apprentices (despite a few interim hirings ); total payroll
hours for the plant decreased steadily each month from
about 14,670 in February to about 10,500 in July,
proofreading hours dropped from about 1,450 to 815, and
overtime hours worked from about 700 to about 5; all of
these figures increased substantially in August, when
"In a realistic sense . Respondent might well be called "union-minded,"
considering it has long had an official union label and viewing the prounion
background of its late founder and its present chief executive.
"At one point , General Counsel argues in his brief that the layoff and
ensuing treatment of Johnston amounted to a constructive discharge.
"Late in 1%7, Johnston filed a formal grievance under the contract
which he admitted was in fact no more than an inquiry whether Foreman
Santner had been proofreading an abnormal amount of work himself, to
the detriment of regular proofreaders . The matter was amicably settled in
discussion with Santner.
Johnston was rehired, and later. As proofreading hours
alone came back to 1,350 in August, Johnston's layoff
during the months of decreasing hours in that
classification, and his prompt recall when that work began
to expand, are together strong proof of a layoff of the
proofreader of lowest priority purely for economic reasons
and militate as strongly against any inference of
discriminatory action against him.
General Counsel refers to various specific personnel
changes to attack the inference of economic motive from
these figures.
1. It appears that in January and February Respondent
employed only seven proofreaders, but had enough work
to keep eight busy, so it resorted to switching employees
from other classifications into that work. This is of no
significance on the March layoffs, however, because the
records show that Respondent was still very busy in those
2 months, and even hired two new "floor" employees, but
this all occurred before the slowdown from seasonal and
other factors noted above began.
2. It is also true that, in the weeks of layoff of
Neumeier and Johnston, Respondent switched three
"floor" compositors to do a total of about 66 hours of
proofreading, but this was clearly caused by the incidence
of a still fairly substantial number of proofreading hours
in that month, though the total was down from February
(1,116 as against 1,441), which shows that the decline in
that work had started but was not enough to warrant
Johnston's layoff until March 22; and the switching of
"floor" men into that work during March and after his
layoff is not significant, in light of Taylor's credible
testimony that: about 35 of the total of 66 "switched"
proofreading hours were performed by one "floor" man,
Benzinger , to replace a regular proofreader who was
absent the whole week of March 18-22; and "switching" is
otherwise a normal requirement of Respondent's
operation, regardless of seasonal fluctuations, because in
its typographic work Respondent usually has between 60
and 100 jobs scheduled each day, so that the workflow in
that type of work has wide fluctuations of peaks and
valleys almost daily, hence constant switching is necessary
in order to get such jobs out on time. In addition, this
situation prevails in all departments, so that, if employees
were not switched as needed, Respondent would be
required to keep about 10 more workers on the payroll,
most of whom would stand idle three-fourths of their
time. Hence, foremen constantly switch workers of
multiple capacities from department to department, as
needed, and the Union allows this in order that
Respondent can maintain an even flow of work
throughout the plant at all times . As an example, in the
proofroom Respondent may need 10 proofreaders for an
hour to complete a specific job on schedule, and then have
no need at all for that work for the next 6 hours or so.
This situation prevailed in regard to that work throughout
March 1968, just as it had ever since Taylor started to
work in the plant 4 years before."
"Provisions of the current contract and the ITU general laws
incorporated therein provide in effect that the worker with the lowest
priority in the classification to be reduced must be laid off first , and the
identity of such worker is known at all times by all workers and
Respondent from the priority list posted periodically in the shop by the
chapel chairman.
"In February, proofreading hours ran close to 300 per week, but in
March the average was slightly above 250 per week , a 15-percent drop.
"It should also be noted that the drastic drop in proofreading hours
noted above occurred despite the constant "switching" of workers , for the
figures shown in the records in evidence include all proofreading hours
DAYTON TYPOGRAPHIC SERVICE 363
3. General Counsel makes much of the fact that the
foreman offered Johnston "floor" work in the 2 weeks
following his layoff, although he had previously declared
him incompetent to handle that work , giving the sinister
excuse that he had his "orders from upstairs [that] I'll
have to follow ." While this seemingly inconsistent action
by Santner on vague "orders from upstairs " raises some
suspicion that he was trying to prevent Johnston from
getting any work at all in retaliation for his conduct on
March 7, 1 think an inference of discrimination therefrom
is not warranted because it appears that Santner was
offering Johnston work as an "extra" on the floor, not as
a regular "floor" employee , and that Johnston refused any
"floor" work on advice of his chapel chairman because
the foreman had refused to declare him competent for
that work , so at most it appears that Santner was trying
to help Johnston out financially by giving him a chance in
another classification as an extra, without going so far as
to declare him competent to claim a regular position in
"floor" work. Of course, Respondent's attempt to "bar"
Johnston from the whole composing room for 3 months
on the basis of his refusal of "floor " work as an extra is
also suspicious , especially where Respondent, both
through Santner and in the mediation of that action under
the contract during the short strike, admitted its mistake,
reimbursed Johnston for wages lost during the "bar," and
made him eligible for "extra" work in the proofroo
thereafter . However, I can draw no inference of prior
discrimination from this , because Respondent honored its,
commitment by giving Johnston up to 25 days of
proofroom work as an "extra," whenever he made himself
available , until it recalled him for full -time work in that
classification on August 19, which conduct is more
consistent with an inference that it was sincerely trying to
alleviate the financial hardship due to his layoff as much
as it could during the period of reduced workload, than
that it was trying to freeze him out of all work for
discriminatory reasons.
4. General Counsel also would draw unfavorable
inferences from the facts as to Johnston ' s competency,
arguing that during his layoff Johnston was not
"switched" back to the work of a "floor compositor," as
he claims Respondent had done in the past . Johnston
argued in testimony that he had worked enough shifts on
the "floor" long prior to layoff, to make him competent
for that work , and it appears he had been a regular
"floor" worker before becoming competent as a
proofreader. Hence, the failure to switch Johnston back to
that work , or to allow him to "bump " some other
floorman of lower priority, when he was laid off from
proofreading, would support an inference of a
"freeze-out." However , Johnston was not sure that he had
worked the requisite 10 shifts at "floor" work to establish
his competency there, whether as "T.T.S. perforator" or
in some other classification . Hence , it is not clear whether
his total past experience on the "floor" was sufficient to
negate Santner ' s claim during the layoff that Johnston
was not competent for that work . In the arguments about
it on March 22 and 29, Johnston and the chapel chairman
apparently accepted Santner 's ruling on his competency,
because Johnston refused to accept "extra" work on the
"floor" but only reported for "extra" work in
proofreading , which Santner gave to him. It is notable
that he did not try to "bump" a regular "floor" man at
any time, as permitted by the contract and ITU law.
Hence , despite a seeming inconsistency in Santner's
worked by employees who "switched " into that work.
position in offering "extra" work on the "floor" while
claiming Johnston was not competent for that work and
then taking a contrary position at one or more times, I
am not satisfied that General Counsel has adduced
substantial proof to show that Johnston had a competency
in "floor" work which would make Respondent's failure
to "switch" him or allow him to "bump" into that work
substantial proof of a discriminatory motive or that
Santner was deliberately refusing him "floor" work for
which he was competent.
5. General Counsel also sees evidence of a deliberate
"freeze-out" of Johnston in uncontradicted testimony of
Fisher to the effect that: Fisher was "bumped" by
Johnston in accordance with ITU law from her regular
second shift twice in the week of March 18 so that he
could use up 2 days' of overtime accumulated by her.
Thereafter, Fisher did not receive any overtime work in
proofreading, although employees from other departments
were at times switched into the proofroom to do that
work partly on overtime. After Johnston' had "bumped"
Fisher for the first time that week on day shift, the night
chapel chairman asked Santner if he wanted to hire Fisher
that evening for second shift. Santner declined. Fisher was
concerned why Santner would not hire her, so asked
second-shift Foreman John Heit what Santner "has
against me ." Heit gave some vague answer. Later that
evening , Fisher telephoned Heit to ask if she should report
at all the next night, as she expected to be "bumped"_
again . Heit said she had to report under ITU law to show
she was available for work, otherwise she could lose her
job. Later, Heit called her back to say he had talked to
Santner about her situation, and Santner had said he
wanted to "reassure" Fisher that he was not angry with
her, but that she should be patient and he would "make
this up to you when this is all over," that he could not
hire her because "that would defeat the company's
purpose if he did." She answered that she was annoyed
because she could not understand why Santner did not
hire her if he had a right to. Heit then said Santner had
told him to tell her that Santner would pay her for the 2
days lost, if she wanted it, and deduct the amount from
future overtime. When Fisher asked how she could accept
the pay without getting in trouble with the Union, since
she had to declare all earnings to it, Heit said the Union
did not have to know anything about it, and hinted that
Santner could adjust her pay on the monthly report to the
chapel chairman. Fisher refused to accept the offer. On
the next night that Fisher worked, Santner told her he was
not mad at her. She said she understood. He asked if she
wanted pay for the 2 days, and she said no. On a Monday
in a later week, Heit called Fisher aside as her shift
ended, with other employees continuing to work overtime
in the proofroom, and said he wanted to tell her
something but "[i]f you repeat it to anybody I'm going to
deny it." He said she was not working overtime because
"I can't ask you to work overtime." She stated her
opinion that she expected Respondent would not let any
more overtime accumulate for proofreaders, so that there
would be no more time for Johnston to "bump." Heit said
that was correct. Fisher did not work any overtime while
Johnston was on layoff. General Counsel would draw the
inference from this uncontradicted story that Respondent
was deliberately manipulating its work hours during
Johnston's layoff to cut out all overtime, so that Johnston
could not get the benefit of it through the "bumping"
process and that the foreman was trying to soften the
financial blow to Fisher from such "bumping" by offering
her secretly at least 2 days' pay to cover two such
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"bumpings." If I had found that rights of Johnston
protected by the Act had been violated by Respondent on
March 7, this testimony would afford strong support for a
finding of discriminatory layoff, but, since I have found
that his action on that date was not protected by the Act
and his rights not violated by Respondent, but rather that
he had taken a stand in derogation of Respondent's right
to run its business in a legitimate manner , which was far
beyond what the Union had been claiming theretofore and
which does not appear to find support in the contract or
ITU law contained therein , I must conclude that at most
Fisher's testimony tends to show that Respondent may
have been expressing some resentment against Johnston's
insubordination by taking steps to see that he was not in a
position to "bump" regular employees during his layoff by
claiming their accumulated overtime. But if his
insubordination was an unprotected activity, this
retaliatory conduct in the form of an indirect discipline
was not a violation of the Act, regardless of whether it
may have violated the contract or ITU law (under which
the only permissible discipline was outright discharge by
the foreman). However, even this inference would be
weakened by the proven fact that overtime hours in the
whole plant fell drastically from about 1,200 in January to
between 600 and 700 in February and March, were less
than 200 in April, diminished to only 12.55 in May, and
faded to 4.15 and 4.75 in June and July, respectively, with
the rate and proportionate decrease therein being fairly in
line with the decreases in total payroll hours and
proofreading hours due to economic reasons in the whole
period . The economic figures raise as strong an inference
that the overtime was reduced because of the drop in
workload (it is
well known that in any economic retrenchment
management curtails the expensive overtime work first of
all) as that overtime was deliberately reduced to
"freeze-out" this lone union employee for discriminatory
reasons; and the inference of a legitimate cut in overtime
becomes the stronger one, in light of the fact that
Respondent readily gave Johnston work as an "extra" in
the proofroom whenever he made himself available for it
and even offered him "extra" work on the "floor," until
business picked up in August when it recalled him to
regular proofroom work. Hence, on balance, Fisher's
testimony , though uncontradicted , does not serve to
establish in a preponderant degree that during the layoff
Respondent continued to act toward Johnston from
discriminatory motives, but at most raises a strong
suspicion thereof. However, suspicion, no matter how
strong, is not proof to support a finding.
Considering all the arguments and facts pro and con, it
appears that , while the issue as to the validity of
Johnston's layoff and treatment during layoff is a close
one, I am compelled to conclude that Respondent has
adduced proof of economic reason for the layoff and to
show that during the layoff it offered him limited work for
which he was competent, as well as some for which he was
not fully competent, to the extent that it could during the
slowdown on work, which is adequate to rebut the prima
facie case of discrimination adduced by General Counsel,
and that General Counsel has failed to sustain the
ultimate burden on the entire record of showing that the
layoff and Johnston's treatment thereafter was
discriminatory." I therefore grant Respondent's motion to
dismiss the complaint insofar as it makes that charge.
Upon the foregoing factual findings and conclusions, I
come to the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in any conduct violative
of the Act as alleged in the complaint.
RECOMMENDED ORDER
I recommend that the complaint herein be dismissed in
its entirety.
"tn reaching this conclusion , I have also noted that the Order in the
Texaco case , supra, was denied enforcement on March 3, 1969, by the
United States Court of Appeals for the Fifth Circuit , which rejected the
Board ' s finding that the employer there had committed itself to
disciplinary action at the time of the crucial interview, in which it sought
only to elicit facts regarding an employee 's conduct, but not to deal with
specific consequences of the misconduct revealed.