Fort Dearborn Corporation

National Labor Relations Board - Administrative Judge Opinions

Nov 30, 2011

13-CA-046331 (N.L.R.B. Nov. 30, 2011)

JD–73–11
Niles, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FORT DEARBORN COMPANY
and Case No. 13-CA-46331
DISTRICT COUNCIL FOUR, GRAPHIC
COMMUNICATIONS CONFERENCE OF
THE INTERNATONAL BROTHERHOOD OF
TEAMSTERS
Helen Gutierrez, Esq.
for the General Counsel.
Richard L. Marcus, Esq., (SNR Denton US, LLP)
Chicago, Illinois, for the Respondent.
Thomas D. Allison, Esq. (Allison, Slutsky & Kennedy, P.C.)
Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Chicago, Illinois on
October 13-14, 2011. District Council Four, Graphic Communications Conference of the
International Brotherhood of Teamsters, (the Union) filed the initial charge on September 30,
2011 and the General Counsel issued the complaint on December 10, 2010. The principal issue
herein is whether Respondent violated the Act by suspending and then, on September 14, 2010,
terminating the employment of employee and Chief Union Steward Marcus Hedger.
The deferral issue
On January 18, 2011 the Region deferred this case to the grievance/arbitration procedures
of the collective bargaining agreement between Respondent and the Union. On July 11, 2011,
Respondent withdrew from the arbitration. The Region revoked the deferral and issued a new
complaint on August 8, 2011.
Respondent asserts that the Region improperly ordered the resumption of the processing
of this matter and that the complaint should be dismissed. The company has not cited any
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2
binding authority for this proposition.1 Respondent asserts that it withdrew from the arbitration
due to the Union’s insistence that the arbitrator decide whether it violated the Act, as opposed to
simply determining whether Respondent violated the collective bargaining agreement.
The Union, by Hedger, filed two grievances regarding his termination, G.C. Exhs. 17 & 5
18. Respondent denied both. The Union’s grievances came before Arbitrator Martin H. Malin,
Professor of Law at Chicago-Kent Law School on June 13, 2011, R. Exh. 2. The Union
contended that Arbitrator Malin should consider whether the Hedger discharge violated the Act,
in addition to whether it violated the parties’ collective bargaining agreement. Respondent
refused to proceed with the arbitration if Professor Malin also addressed the statutory issue.10
I find that this case is properly before me. Given Respondent’s refusal to proceed with
the arbitration, it is unclear what standard Arbitrator Malin would have applied to the contractual
issue. Since the case on its face involves a claim of employer animosity to Hedger’s exercise of
protected rights, deferral to arbitration would only have been appropriate if the Arbitrator would 15
have determined whether Hedger would have been discharged in the absence of his activities as
union steward.2
On the entire record,3 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I 20
make the following
FINDINGS OF FACT
I. JURISDICTION25
Respondent, Fort Dearborn Company, a corporation, prints labels for food and other
product containers and at its facility in Niles, Illinois, where it annually purchases and receives
goods valued in excess of $50,000 from outside of the State of Illinois. Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) 30
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act.

1 At pages 8-9 of its brief, it is not clear whether Respondent’s reference to “the cited case” is to
United Technologies, 268 NLRB 557 (1984) or an Advice Memo in Veolia Water. Assuming it is the
latter, a General Counsel Advice Memo is not binding on an Administrative Law Judge. On the other
hand, United Technologies is completely irrelevant to the instant case. There the Union refused to go to
arbitration. I would also note that the Board in United Technologies dismissed the complaint provided
that the matter either be resolved or be submitted to an arbitrator. Thus, to dismiss this case and sent it
back to the arbitrator would, at a minimum, unduly delay resolution of the merits of this case.
2 It strikes me that the arbitrator could have made such a determination by reference to Article 26.2 of
the parties’ collective bargaining agreement, G.C. Exh. 6, which forbids disciplinary action against a shop
steward for performing his normal duties. However, one cannot determine whether the Arbitrator would
have applied the standards applied by the Board in deciding a Section 8(a)(3) case due to Respondent’s
refusal to go forward with the arbitration.
3 Tr. 216 line 24 should read: “Feeder was Tony Sass.”
The parties’ November 22, 2011 joint motion to substitute a correct copy of G.C. Exh. 1(j), the
January 18, 2011 deferral letter signed by the Regional Director, is granted.
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3
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated Section 8(a)(3) and (1) by
suspending employee Marcus Hedger on August 18, 2010 and then discharging him on 5
September 14, 2010. He also alleges that Respondent, by William Johnstone, Senior Vice-
President for Operations, violated Section 8(a)(1) of the Act by threatening Hedger with closer
scrutiny and termination during contract negotiations on June 4, 2010.
Hedger worked for Respondent as a pressman for 9 years. At the time of his termination 10
Hedger was working on the second shift, 3:00 p.m. to 11:00 p.m. Hedger had been a union
steward for 6 years at the time of his termination and Chief Steward for 2 of the 3 bargaining
units; the lithography unit and bindery (finishing), shipping and sheeting unit, for about 1 year.4
In this capacity Hedger filed and processed grievances and participated in collective bargaining
negotiations.15
At the time of Hedger’s termination, there were usually no management personnel
present for the second half of the second shift. Pressroom Manager Thomas Vlahos usually left
work between 6:00 and 7:00 p.m. After Vlahos left, the ranking employee at the plant was
Robert Schmitt, a “working foreman” and bargaining unit member.20
The Section 8(a)(1) allegations
On June 4, 2010, Respondent and the Union met to negotiate a successor collective
bargaining agreement. This was the first negotiating session after employees in the “litho” unit25
had voted against accepting Respondent’s contract proposal by a vote of 41-19. At this meeting,
Respondent’s Vice-President Johnstone held up a union flyer and asked who had been using
Respondent’s copying equipment for non-company business. According to Hedger, he denied
the flyer had been copied on company equipment. Then Hedger testified that Johnstone said,
“we’re watching you, we are going to catch you and we are going to fire you.” Hedger’s 30
testimony was corroborated by David Ishac, who still works for Respondent.
Johnstone denied telling Hedger that Respondent was going to watch him, catch him and
fire him, or anything similar. Johnstone testified that he threatened to discipline any employee
using company property for non-company business.35
The Board gives great weight to the fact that current employees who testify adversely to
their employer do so at considerable risk of economic reprisal. This plus the fact that
Respondent terminated Hedger two months later under very questionable grounds, leads me to
credit Hedger and Ishac. However, as Respondent argues in its brief, it is not clear whether or 40
not Johnstone was referring to catching Hedger using company copying equipment, as opposed
to conduct that is protected. Therefore, I dismiss complaint paragraph V.

4 The terms bindery and finishing are used interchangeably, Tr. 242. The third unit was the cutting
unit, Tr. 73.
JD–73–11
4
The events of August 12, 2010 which led to Hedger’s termination
Some time after 8:00 p.m. on August 12, 2010, an employee in Respondent’s warehouse
paged Hedger. Hedger ignored the page until he was finished with the task on which he was
working, the wash-up after a production run. Kis Kako, the leadman in the shipping/warehouse 5
department, apparently sent employee Daniel Nevins to get Hedger, Tr. 179.5 Hedger then left
his press at about 8:40 p.m. and went to the warehouse/shipping department. A friend of
Hedger’s, Peter Schmidt, who is also a member of the Union, was waiting for Hedger in the
shipping department. Peter Schmidt had a bicycle (not a motorbike) with him.
10
Hedger and Schmidt walked through the plant. Schmidt walked with his bicycle; he did
not ride it inside the plant. At some point they encountered leadman Robert Schmitt. Hedger
and Schmitt testified at hearing that Robert Schmitt gave Hedger permission to walk Peter
Schmidt through the plant. However, Robert Schmitt denied this when interrogated by
management two weeks after the incident.6 The leadman in the finishing department, Marcin 15
Golifit, also saw Hedger and Peter Schmidt. Golifit told management that Hedger and Peter
Schmidt looked into the finishing room and then proceeded out of the plant.
The preponderance of the evidence is that Hedger and Peter Schmidt spent no more than
11 minutes in the plant from the time Hedger met Schmidt in the Shipping Department until 20
Schmidt left the plant.7 Peter Schmidt left the plant at 8:51 p.m. None of the three leadmen at
the plant on the second shift on August 12, Robert Schmitt, Marcin Golifit and Kis Kako
objected to Hedger’s walking Peter Schmidt through the plant or reported it management.8
On August 17, 2010, Plant Manager Robert Kester reviewed a video tape which showed 25
Peter Schmidt leaving the plant with his bicycle on August 12. Hedger was with Peter Schmidt
when he exited from the plant. Kester met with Pressroom Manager Thomas Vlahos, who
apparently was unaware of this incident. Kester and Vlahos then interviewed Robert Schmitt,
Marcin Golifit, and several other employees. One of the employees, Robert Hayden, told Kester
that the individual who walked through the plant with Hedger was Peter Schmidt and that Peter 30
Schmidt was a member of the Union.
Kester then contacted Vice President William Johnstone and Corporate Human
Resources Director William Samuels. On August 18, Kester summoned Hedger to a meeting

5 Kako, Nevins, and Marcin Golifit, the leadman in the bindery/finishing department, did not testify at
this hearing. Thus all testimony as to the truth of what they said is hearsay.
6 I find that whether Robert Schmitt gave Hedger permission to take Peter Schmidt through the plant
makes no difference to the outcome of this case. However, I would note that at the start of its
interrogation, Respondent advised Robert Schmitt, who was close to retirement, that he could be
discharged on the basis of the answers to its questions. Thus, it would not be surprising if Schmitt denied
giving Hedger permission even if he did so.
7 Plant manger Robert Kester estimated that Hedger and Peter Schmidt walked through the plant for
about 50 minutes however, there is no support in the record for this testimony. Kester was not present at
the plant on August 12 and his investigation, if anything, corroborates Hedger’s testimony as to the
brevity of the incident.
8 While Kako was aware that somebody came to the warehouse door to see Hedger, it is not clear that
he was aware that Hedger walked Peter Schmidt through the plant.
JD–73–11
5
with himself, Samuels and Evelyn Vasquez, the human resource director for the Niles plant. At
the start of the meeting, Kester warned Hedger that he could be terminated if he did not
cooperate in the investigation. There was a discussion as to who would be an acceptable union
representative for the meeting. Hedger insisted that Frank Golden, a union business agent, serve
as his representative. When Golden was contacted by telephone, he asked that the meeting be 5
postponed until he could participate in person; Respondent refused. Golden participated in the
interview via speakerphone.
William Samuels interrogated Hedger from a prepared text. He asked Hedger if he
brought somebody into the plant on August 12, the name of the person who was with him in the 10
plant on August 12 and whether he knew Martin Fletcher9 or Peter Schmidt. Hedger replied that
he did not recall to all of these questions. After the interview Kester sent Hedger home. Hedger
has not worked for Respondent since August 18, although he was paid through September 14,
when he was terminated.
15
Kester and Samuels met again with Hedger on August 23. Frank Golden, the union
business agent, attended this meeting in person. Samuels again threatened to discipline or
discharge Hedger if he failed to cooperate with the inquiry. This time Hedger acknowledged that
a man with a bicycle came to see him. He recounted that he had been paged and that later an
employee from the shipping department came to get him.20
Samuels asked Hedger if he knew Martin Fletcher. Hedger responded that he did not.
Then Samuels asked for the name of the person who was with him on August 12. Golden
objected to the relevance of the question and directed Hedger not to answer. Samuels asked if
the person was Peter Schmidt. Golden again directed Hedger not to answer. Samuels asked if 25
the man was a union member; Hedger said that he was. Samuels asked if the person was a union
official and Hedger answered that he was not. Golden corrected Hedger and stated that the
visitor held a union position10 and was unemployed on August 12. Respondent concedes that on
August 23, Hedger answered all of its questions except identifying Peter Schmidt.
30
Respondent never asked the Union for permission to interview Peter Schmidt and made
no attempt to do so. It apparently made no other effort to determine why Peter Schmidt came to
the plant and walked through it on August 12. Respondent never asked the Union where Peter
Schmidt had worked in the past.
35
On September 7, 2010, Kester called Hedger to inform him that he was being terminated
effective September 14. The same day Kester sent Hedger a letter informing him that he was
being terminated because “you brought an unauthorized person into the plant on August 12,
2010, and that you did not respond truthfully to the Company’s questions regarding events on
that date of which you were fully aware,” G.C. Exh. 16.40
The record does not establish who made the decision to terminate Marcus Hedger or why
he was terminated as opposed to being given a lesser penalty pursuant to Respondent’s

9 Warehouse leadman Kis Kako told Kester that Peter Schmidt told Kako that his name was Martin
Fletcher.
10 Peter Schmidt is the Union’s Sergeant at Arms.
JD–73–11
6
progressive discipline policy. Robert Kester testified that he was “involved” in the decision to
terminate Hedger, that he recommended termination and that he consulted with Johnstone and
Samuels, Tr. 307. There is no evidence as to the nature of these deliberations. For example,
there is no evidence as to whether any of those involved in the decision knew or considered the
fact that Hedger had no disciplinary record in his nine years as an employee, other than perhaps a 5
verbal warning for being tardy on one occasion.
Analysis
In order to establish a violation of Section 8(a)(3) and (1), the Board generally requires 10
the General Counsel to make an initial showing sufficient to support an inference that the alleged
discriminatee’s protected conduct was a ‘motivating factor’ in the employer’s decision. Then the
burden shifts to the employer to demonstrate that the same action would have taken place even in
the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management 15
Corp., 462 U.S. 393, 399-403 (1983) ; American Gardens Management Co., 338 NLRB 644
(2002).
The General Counsel’s initial showing usually requires him to prove that (1) the
employee was engaged in protected activity; (2) the employer was aware of the activity; and (3) 20
that animus towards the protected activity was a substantial or motivating reason for the
employer’s action. The National Labor Relations Board may infer discriminatory motive from
the record as a whole and under certain circumstances, indeed not uncommonly, infers
discrimination in the absence of direct evidence.
25
Marcus Hedger engaged in activity protected by Section 7 of the Act in his capacity as
union steward. As the Board stated in Tillford Contractors, 317 NLRB 68 (1995):
When an employee makes an attempt to enforce a collective bargaining agreement, he is
acting in the interest of all employees covered by the contract. It has long been held that 30
such activity is concerted and protected under the Act, Interboro Contractors, 157 NLRB
1295 (1966). An employee making such a complaint need not specifically refer to the
collective-bargaining agreement. As long as the nature of the complaint is reasonably
clear to the person to whom it is communicated, and the complaint does, in fact, refer to a
reasonably perceived violation of the collective bargaining agreement, the35
complaining employee is engaged in the process of enforcing that agreement. Bechtel
Power Corp., 277 NLRB 882, 884 (1985); Roadway Express, 217 NLRB 278, 279
1975); NLRB v. City Disposal Systems, 465 U.S. 822, 840 (1984).
There is no question that Respondent was aware of Hedger’s activities as union steward. 40
Moreover, the record is replete with evidence that establishes substantial animus on the part of
management towards those activities. Respondent in its brief argues that the record establishes
that it does not have animus towards the Union and that there is no evidence of any animus tied
to any particular protected act engaged in by Hedger. Nevertheless, the record does establish
substantial animus towards Hedger’s activities in general as a union steward.45
JD–73–11
7
In mid-2009, Respondent attempted to unilaterally forbid smoking at the Niles plant.
Hedger requested a meeting between management and employees who smoked. At this meeting
Hedger told Kester that management could not unilaterally change the policy. As a result the
policy did not change as it did at another of Respondent’s facilities. At this meeting, Kester
testified:5
I said something as simple as a smoking policy we can’t even come to an agreement on?
I thought it was kind of ridiculous. It was a very small issue. We were trying to comply
with the state new regulation. The company was changing a policy. I explained that if
we keep making big issues over little things, management isn’t going to continue to deal 10
with it. That’s what I said.
Tr. 226-27.
Employee David Ishac recalled Kester saying, “Marcus, you’re punching the 15
management in the face, and you’re going to cause the place to close [if] you keep punching us
in the face,” Tr. 100-101.
Also in 2009, Kester went to Hedger’s machine to inform him that the husband of
employee Linda Gonzalez, a friend of Hedger’s, had died suddenly. Kester testified:20
…my comment to Marcus was we don’t see eye to eye on everything, but this really puts
things in perspective. Life is way too short for the bickering between he and I. And
that’s all I said. And I turned around and went back to my office.
25
Tr. 233.11
The Union’s counsel asked Kester if he was aware of any other discipline that Hedger
had received, other than a verbal warning for tardiness. Kester responded:
30
I know that I’ve had several conversations with Marcus regarding aggressive behavior
towards management and other associates.
Tr. 263.
35
Kester’s testimony as to how long Peter Schmidt and Hedger were together inside the
plant, for which there is no foundation, is also indicative of Kester’s animus towards Hedger as a
result of his activities as union steward.12

11 Hedger’s testimony is that Kester took this opportunity to convey a veiled threat that he could be
terminated suddenly and without warning, just as Gonzalez’s husband had died suddenly, Tr. 33-35. I
credit Kester’s account of the conversation.
12 Respondent relies heavily on Robert Schmitt’s testimony that he first saw Hedger and Peter
Schmidt “a little bit after 8:00 o’clock,” Tr. 119, 144. I do not view this as an attempt by Schmitt to pin
point the time in question and do not see it as inconsistent with Hedger’s testimony.
Respondent continues to argue that Hedger was away from his press for between 50 minutes to over
an hour, Respondent brief at pages 23-24, Tr. 191. It has no credible evidence to support this assertion,
JD–73–11
8
When the Respondent’s stated reasons for its actions are found to be false (i.e.,
“pretextual reasons”), discriminatory motive may be inferred. In turn, “pretext” is sometimes, if
not often, inferred from a blatant disparity in the manner is which an alleged discriminatee is
treated as compared with similarly situated employees with no known union sympathies or
activities (i.e., disparate treatment), New Otani Hotel & Garden, 325 NLRB 928 fn. 2 (1998); 5
Fluor Daniel, Inc., 304 NLRB 970 (1991); Citizens Investment Services Corp., 342 NLRB 316,
330-331 (2004). I conclude that Respondent’s stated reasons for Hedger’s discharge are
pretextual and on this basis conclude that Hedger’s termination was discriminatorily motivated
and violates the Act.
10
First of all, to the extent Respondent relies on Hedger’s violation of company policy, it is
clear that policy was not enforced on the second and third shifts. Secondly, Respondent has
utterly failed to show that why it did not apply its progressive discipline policy to Hedger for
violating a policy that was not enforced. Respondent’s reliance on its assertion that Hedger was
away from his press for over an hour and its failure to adequately investigate this concern is 15
another factor on which I rely in concluding that the stated reasons for discharge are pretextual.
Finally, Respondent’s disparate treatment of Hedger is an additional basis upon which I infer
discriminatory motive.
Respondent fired Hedger, but imposed no discipline on three leadmen, who failed to 20
report Hedger’s alleged violation of its policy prohibiting unescorted nonemployees through the
plant. Moreover, after Hedger’s termination, employees who allowed a former employee into
the plant, after being told this was prohibited, were suspended for one day, not terminated as was
Hedger, Tr. 109-113, 264.
25
I conclude that this evidence is sufficient to shift the burden to Respondent to prove that
it would have discharged Hedger in the absence of his protected activities as union steward. This
involves scrutiny of the stated reasons for Hedger’s termination.
30

see, e.g., Tr. 289. None of the employees, including Robert Hayden, who clearly disliked Hedger,
indicated that this was so. Respondent never even bothered to ask Michael Naylor and Tony Sass, the
other members of Hedger’s crew, as to how long Hedger was gone, Tr. 244-47. The time sheet filled out
by Naylor, R-Exh.-10, is consistent with Hedger’s testimony at Tr. 47. Hedger testified he left his press
after finishing the “wash-up” with according to R-10 took place between 7:45 and 8:40. Respondent’s
video shows that Peter Schmidt left the plant at 8:51, 11 minutes after Hedger left his press. To contradict
this testimony, Respondent relies on Kester’s notes of his interview of Hedger on August 23, CP Exh. 1.
I credit Hedger that he left the press when the wash-up phase ended at 8:40.
Robert Kester testified that Tony Sass didn’t want to get involved, Tr. 246-47. However, Respondent
could have threatened Sass with discharge if he did not answer its questions truthfully, just as did with
Hedger and Schmitt. Finally, the record clearly shows that Schmidt came to the warehouse door
sometime before Hedger went to meet him. Thus, the time frames of how long Schmidt was in the
facility and how long Hedger was with him are different.
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9
Respondent’s Affirmative Defenses
The termination letter Respondent sent to Marcus Hedger states two reasons for his
discharge: 1) bringing an unauthorized person into the plant; 2) not responding truthfully to
Respondent’s inquiries, G.C. Exh. 16. As this record shows, unauthorized persons often came 5
into the Niles plant after 6:00 p.m. due to the laxity or nonexistence of Respondent’s security
measures. Hedger certainly displayed a lack of candor when Respondent interviewed him on
August 18, 2010. However, he truthfully answered all the company’s questions on August 23—
other than the name of his visitor. Moreover, he had been directed not to answer this question
(the answer to which Respondent already knew) at the direction of the Union.10
I conclude that Respondent has not proved its affirmative defense that it would have fired
Hedger in the absence of its animus towards his activities as a union steward. Thus, I find that
Respondent violated Section 8(a)(3) in discharging him, although not in suspending him with
pay during its investigation. Respondent has not satisfactorily established that its failure to apply15
it progressive discipline policy under the circumstances was non-discriminatory.
While Hedger’s lack of co-operation during the August 18 interview strikes me as foolish
and unnecessary, Respondent had all the information it needed to investigate whether its
confidential business information had been compromised. Respondent knew that Hedger had 20
walked through the plant with Peter Schmidt, a member of the Union. Through its interviews
with the employees present on August 12, it had the means to determine where Schmidt went in
the plant and how long he was there. Respondent already had information sufficient to
determine whether Peter Schmidt gained access to confidential business information.
25
I also find the Union’s resistance to identifying Peter Schmidt to be unwise and
unnecessary. However, Robert Hayden had already identified Schmidt to management as the
person walking through the plant on August 12. Respondent’s failure to follow up on the
reasons for Peter Schmidt’s visit in conjunction with the lack of security, leads me to believe that
it did not discharge Hedger for compromising confidential business information.30
Respondent also contends that one of the valid non-discriminatory reasons it terminated
Marcus Hedger was that he violated its confidentiality policy by walking Peter Schmidt through
the Niles plant. Respondent’s confidentiality policy which was adopted in 2006 states that all
knowledge and information acquired by an employee, such as policies, procedures, designs, 35
know-how, trade secrets and technical information shall be regarded as strictly confidential and
held in trust, R. Exhs. 7 & 8.
It is unclear how this policy is relevant to Hedger’s conduct on August 12, 2010. Insofar
as Respondent relies on Hedger’s purported violation of policy regarding unauthorized visitors, 40
this policy was not enforced on the second and third shifts.
Robert Kester testified as to the uniqueness of Respondent’s processes and its concern
that these not become known to its competitors, particularly the two to three competitors in the
Chicago area. The difficulty with Respondent’s argument in this regard is that it did absolutely 45
nothing to prevent anyone from walking into its plant after 6:00 p.m. Prior to 6:00 p.m. visitors
were required to sign in at the front desk and be escorted. However, after six the desk was
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10
unmanned. There was no gate around the Niles plant, no security and the doors to the facility
were often open. Virtually anyone could walk into the plant.
I would note in this regard that there is no evidence that anyone in authority made any
attempt to prevent Peter Schmidt from walking through the plant. This includes all three 5
leadmen, Schmitt, Golifit and Kis Kako.13
Moreover, the record establishes that many people came into the plant after 6:00 p.m.
when the front desk was not manned. These included food delivery people, former employees,
and truck drivers.14 Individuals delivering food were free to walk through the plant and deliver 10
food to employees at their work station and they did so. Non-employee truck drivers had been
observed by management at vending machines located in the interior of the plant, Tr. 260, 328.
Unlike Peter Schmidt, who was escorted through the facility by Hedger, these individuals walked
into the interior of the plant unescorted. No employee, prior to Marcus Hedger, had ever been
disciplined for allowing unauthorized persons into the plant.15
It is also unclear as to what Peter Schmidt could have learned from his walk through the
plant. Respondent made no attempt to talk to Peter Schmidt to determine what he was doing at
the plant. It appears that the most unique aspects of Respondent’s production process are its lay-
out for the labels and cutting equipment, Tr. 161-62, Respondent’s brief at pages 2-3. There is 20
nothing in the record to indicate that Schmidt observed or learned anything pertaining to lay-out
or cutting.15
Respondent attempts to draw a distinction between the unauthorized presence in the Niles
facility of Peter Schmidt, who had experience in the printing business, and other unauthorized 25
visitors, Respondent’s brief at page 19-20. However, Respondent had no way of knowing
whether other unauthorized visitors also had such experience. If Respondent’s confidential
business processes are as valuable as it asserts, it would not take much imagination for a
competitor to get a person knowledgeable about the printing process inside the plant on the
second and third shift, knowing that the plant had no security after 6:00 p.m.30

13 Since Kako did not testify it is unclear whether he knew that Schmidt walked through the plant or
what he said to Schmidt. Kester’s hearsay testimony at Tr. 179-180 as to what Kako told him is very
implausible. According to this account Kako told Schmidt he had to wait outside but then sent Daniel
Nevins to get Hedger. Afterwards, Hedger and Schmidt walked through the plant without any
interference from Kako or Nevins.
14 Thomas Vlahos testified that pizza delivery people do not enter the plant. However, since he
normally leaves by 6:00 or 7:00 he has no basis for testifying as to what occurs after he leaves. I
therefore credit the testimony of employees who are in the plant the entire 2d shift that it was not
uncommon for food delivery people to come to the machines. This is all the more likely since the press
crews do not get a lunch break and eat at their machines, Tr. 336-38.
15 Respondent interviewed Mike Kuznierez, a cutter, and Nina Abo, a die cutter, Tr. 177-78. Neither
of these individuals testified at the hearing. However, neither the testimony of Robert Kester about his
discussions with Kuznierez and Abo, nor Tom Vlahos’ notes of his discussion with Abo, Exh. G.C.-3,
suggests that Peter Schmidt observed Respondent’s confidential information regarding its cutting
techniques.
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11
Management’s discussion with employees who were present on the evening on August
12, confirmed that Schmidt was in the plant for a very brief time. Marcin Golifit, the leadman in
bindery/finishing, apparently told Kester that Schmidt and Hedger “looked around and proceeded
out of the building,” Tr. 176. Robert Hayden, a pressman known by management to be
unfriendly to Hedger, told management nothing other than the visitor’s name was Peter Schmidt 5
and that he was a member of the Union. Hayden did not indicate that Peter Schmidt lingered
anywhere in the interior of plant, Tr. 272.
Robert Schmitt, who had been advised that his job depended on his answers, told
management that Peter Schmidt had been in the plant for 10 minutes, Tr. 362. It is doubtful that 10
Schmidt would lie to Respondent under the circumstances given that, if contradicted, he could
have been fired. I infer that Respondent knew that Robert Schmitt’s answer to this question was
truthful.
According to Kester’s hearsay testimony, Mike Kuznierez told him that Schmidt and 15
Hedger spent a couple of minutes in the finishing department. However, his notes and/or
memorandum dated August 18, 2010, state that Kusnierez recalled seeing Hedger stop at the
bindery entrance with a man with a bicycle, G.C. Exh. 4. This is consistent with Hedger’s
testimony that they did not enter the bindery or sheeting department, Tr. 50-51.
20
In summary, Respondent’s lack of security after 6:00 p.m. belies its stated degree of
concern concerning the presence of unauthorized individuals in its facility and visual observation
of its equipment and processes. It had left itself wide open to potential industrial espionage.
This was patently obvious after it investigated the August 12 incident, which also failed to
disclose any evidence that Peter Schmidt was in the Niles facility to acquire information about 25
Respondent’s confidential processes. This contributes to my conclusion that Respondent would
not have ignored its progressive discipline policy and fired Marcus Hedger in the absence of its
animus towards his activities as union steward. The same hold true for his lack of candor during
the August 18, 2010 interview. Candid and truthful answers by Hedger on August 18 would not
have provided Respondent with any information of which it was not already aware, Tr. 199-201, 30
C.P. Exh. 2.
Conclusions of Law
Respondent violated Section 8(a)(3) and (1) by terminating Marcus Hedger’s 35
employment on September 14, 2010.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find 40
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged Marcus Hedger, it must offer him
reinstatement and make him whole for any loss of earnings and other benefits, computed on a 45
quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
JD–73–11
12
compounded daily, Kentucky River Medical Center, 356 NLRB No. 8 (October 22, 2010) as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Respondent shall reimburse Marcus Hedger in amounts equal to the difference in taxes
owed upon receipt of a lump-sum backpay award and taxes that would have been owed had there 5
been no discrimination. Respondent shall also take whatever steps are necessary to insure that
the Social Security Administration credits Marcus Hedger’s backpay to the proper quarters on
his Social Security earnings record.
On these findings of fact and conclusions of law and on the entire record, I issue the 10
following recommended16
ORDER
The Respondent, Fort Dearborn Company, Niles, Illinois, its officers, agents, successors, 15
and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any employee for engaging activity 20
reasonably perceived to be the enforcement of a right contained in a collective bargaining
agreement.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Marcus Hedger full
reinstatement to his former job or, if that job no longer exists, to a substantially equivalent 30
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Marcus Hedger whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him as specified in the remedy portion of this decision.
35
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to Marcus Hedger’s unlawful discharge and within 3 days thereafter notify him in
writing that this has been done and that his discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional 40
Director may allow for good cause shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment records, timecards, personnel records

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–73–11
13
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Niles, Illinois facility copies of
the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the 5
Regional Director for Region 13, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 10
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
September 14, 2010. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 15
means, if the Respondent customarily communicates with its employees by such means.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.20
Dated, Washington, D.C., November 30, 2011.
25
____________________
Arthur J. Amchan
Administrative Law Judge
30

17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
14
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discriminate against any of you for attempting to enforce
a reasonably perceived violation of the rights accorded to you in a collective bargaining
agreement.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Marcus Hedger full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Marcus Hedger whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful discharge of Marcus Hedger and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used against him in any way.
FORT DEARBORN COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
15
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
The Rookery Building
209 South LaSalle Street, Suite 900, Chicago, IL 60604-1219
(312) 353-7570, Hours: 8:30 a.m. to 5 p.m.
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 CONCERNING THIS NOTICE
OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (312) 353-7170.