Ironton Publications

National Labor Relations Board - Board Decisions

May 9, 1994

313 N.L.R.B. 1208 (N.L.R.B. 1994)

1208
313 NLRB No. 214
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were taken to the judge’s refusal to defer certain
issues to the arbitral process.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. III,C, par. 10 of his decision, the judge inadvertently stated
that two new part-time employees were hired to work in the press-
room, rather than the mailroom.
The judge inadvertently failed to include injunctive provisions in
his recommended Order to remedy the violations involving the un-
lawful rule against discussion of wages and the unlawful discipline
and probation of employees Jeff Clutters, Roger Jenkins, and Shawn
Jenkins. We have modified the recommended Order and notice to
employees to provide for such relief.
We agree with the judge that the Respondent violated Sec. 8(a)(3)
and (1) by reducing employee Jeff Clutters’ work hours. In this re-
gard, we find that the General Counsel established by a preponder-
ance of the evidence that Clutters’ union activity was a motivating
factor in the Respondent’s decision and that the Respondent did not
carry its burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of
demonstrating that it would have reduced Clutters’ hours even absent
his protected concerted activities.
The judge found that the Respondent unlawfully treated pressroom
employee Jack Day as a supervisor in order to reduce the size of
the bargaining unit to one person. Although we agree with the judge
that the assistant foreman position is not supervisory, the issue of
reducing the unit to one person was neither alleged in the complaint
nor litigated at the hearing. Therefore, we shall vacate the judge’s
finding in this regard and modify the recommended Order and notice
to employees accordingly.
3 The Respondent excepts to the judge’s conclusion that the Re-
spondent’s unilateral imposition of daily floormopping duties on the
pressroom employees violated Sec. 8(a)(5) of the Act. The Respond-
ent argues, inter alia, that the management-rights clause—art. IV—
of the collective-bargaining agreement gave the Respondent the right
to take this action without bargaining with the Union. We disagree.
Although art. IV(f) does give the Respondent the right to ‘‘change
. . . assignments,’’ it permits such changes only ‘‘in accordance
with the terms of this Agreement.’’ It is at least arguable that art.
II of the agreement, the recognition and jurisdiction provision, which
makes the agreement applicable to all printing presses and associated
devices within the pressroom, qualifies art. IV(f) so as to withhold
from the Respondent the right unilaterally to impose new tasks on
the pressroom employees that are not directly related to the press-
room equipment. The management-rights clause therefore does not
clearly waive the Union’s right to bargain over this subject. Accord-
ingly, we agree with the judge that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally adding mopping of the pressroom
floor to the unit employees’ duties.
4 We amend the judge’s remedy to provide that backpay shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987). We have modified the rec-
ommended Order and notice to reflect these changes. Additionally,
we have modified the recommended Order and notice to conform to
the make-whole language traditionally used by the Board.
5 Nothing in this Order shall preclude the Respondent from notify-
ing and providing the Union an opportunity to bargain over changing
James Jenkins’ terms and conditions of employment to be consistent
with the contractual terms and conditions.
Ironton Publications, Inc. and Athens Printing
Pressmen and Assistants Union No. 269–M, af-
filiated with Graphic Communications Inter-
national Union, AFL–CIO–CLC. Cases 9–CA–
27061, 9–CA–30300, 9–CA–30366, 9–CA–30398,
9–CA–30450, 9–CA–30481, 9–CA–30520, 9–CA–
30527, 9–CA–30633, and 9–CA–30664
May 12, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On October 13, 1993, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions3 and to adopt the recommended Order as
modified and set forth below.4
ORDER5
The National Labor Relations Board orders that the
Respondent, Ironton Publications, Inc., Ironton, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that new employees in the
bargaining unit represented by the Union who choose
not to become union members can participate in the
Respondent’s profit-sharing plan, but those bargaining
unit employees who become union members cannot
participate in the plan.
(b) Promulgating and maintaining a rule prohibiting
employees from discussing their wages, salaries, and
pay increases with other employees.
(c) Reducing the work hours of employees because
they engage in protected concerted activity.
(d) Denying employees Christmas bonuses because
they engage in protected concerted activity.
(e) Denying employees participation in our profit-
sharing plan because they engage in protected con-
certed activity.
(f) Reducing employees’ vacation times because
they engage in protected concerted activity.
(g) Refusing to permit employees to reschedule holi-
days because they engage in protected concerted activ-
ity.
1209IRONTON PUBLICATIONS
6 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.’’
(h) Placing employees in a 4-year formal training
program in retaliation for engaging in protected con-
certed activity.
(i) Transferring employees out of the pressroom bar-
gaining unit because they engage in protected con-
certed activity.
(j) Failing and refusing to promote employees be-
cause they engage in protected concerted activity.
(k) Failing to pay employees extra compensation for
serving as assistant foreman because they engage in
protected concerted activity.
(l) Issuing written discipline to employees and plac-
ing employees on probation because they engage in
protected concerted activity.
(m) Unilaterally changing employees’ hours and
other terms and conditions of employment without giv-
ing the Union prior notice and opportunity to bargain.
(n) Unilaterally imposing additional duties on bar-
gaining unit employees without giving the Union prior
notice and opportunity to bargain.
(o) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Remove James Jenkins from the 4-year training
program, promote him to assistant foreman in the
pressroom, and make him whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
remedy section of this decision.
(b) Transfer Roger Jenkins to the pressroom as a
full-time employee, and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him in the manner set forth
in the remedy section of this decision.
(c) Make whole Jeff Clutters for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him in the manner set forth in the
remedy section of this decision.
(d) Remove from its files any reference to the April
1993 discipline of Jeff Clutters, Roger Jenkins, and
Shawn Jenkins and notify them in writing that this has
been done and that the discipline will not be used
against them in any way.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Ironton, Ohio facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT inform employees that new employ-
ees in the bargaining unit represented by Athens Print-
ing Pressmen and Assistants Union No. 269–M, affili-
ated with Graphic Communications International
Union, AFL–CIO–CLC, who choose not to become
union members can participate in our profit-sharing
plan, but those bargaining unit employees who become
union members cannot participate in the plan.
WE WILL NOT promulgate or maintain a rule prohib-
iting you from discussing your wages, salaries, and pay
increases with other employees.
WE WILL NOT reduce your work hours because you
engage in protected concerted activity.
WE WILL NOT deny you Christmas bonuses because
you engage in protected concerted activity.
WE WILL NOT deny you participation in our profit-
sharing plan because you engage in protected con-
certed activity.
WE WILL NOT reduce your vacation time because
you engage in protected concerted activity.
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to permit you to reschedule
holidays because you engage in protected concerted ac-
tivity.
WE WILL NOT place you in a 4-year formal training
program in retaliation for engaging in protected con-
certed activity.
WE WILL NOT transfer you out of the pressroom bar-
gaining unit because you engage in protected concerted
activity.
WE WILL NOT fail or refuse to promote you because
you engage in protected concerted activity.
WE WILL NOT fail to pay you extra compensation
for serving as assistant foreman because you engage in
protected concerted activity.
WE WILL NOT issue written discipline or put you on
probation because you engage in protected concerted
activity.
WE WILL NOT unilaterally change your hours or
other terms and conditions of employment without giv-
ing the Union prior notice and opportunity to bargain.
WE WILL NOT unilaterally impose additional duties
on you without giving the Union prior notice and op-
portunity to bargain.
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 remove James Jenkins from the 4-year
training program,
WE WILL promote him to assistant foreman in the
pressroom, and
WE WILL make him whole for any loss of earnings
and other benefits resulting from the failure to pro-
mote, plus interest.
WE WILL transfer Roger Jenkins to the pressroom as
a full-time employee, and WE WILL make him whole
for any loss of earnings and other benefits resulting
from the failure to transfer, plus interest.
WE WILL make whole Jeff Clutters for any loss of
earnings and other benefits resulting from the reduc-
tion of his work hours, less any net interim earnings,
plus interest.
WE WILL remove from our files any reference to the
April 1993 discipline of Jeff Clutters, Roger Jenkins,
and Shawn Jenkins, and WE WILL notify them in writ-
ing that this has been done and that the discipline will
not be used against them in any way.
IRONTON PUBLICATIONS, INC.
Earl L. Ledford, Esq. and Mary Elizabeth Walker-McBride,
Esq., for the General Counsel.
Craig A. Allen, Esq., of Ironton, Ohio, for the Respondent.
Walter L. Martin, International Representative, of Dayton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Decem-
ber 1, 1989, the charge in Case 9–CA–27061 was filed by
the Union against Ironton Publications, Inc. (Respondent).
Thereafter, between January 7 and May 25, 1993, charges
and amended charges were filed in Cases 9–CA–30300, 9–
CA–30366, 9–CA–30398, 9–CA–30450, 9–CA–30481, 9–
CA–30520, 9–CA–30527, 9–CA–30633, and 9–CA–30664.
On May 28, 1993, the National Labor Relations Board, by
the Regional Director for Region 9, issued a fourth consoli-
dated complaint alleging that the Respondent violated Sec-
tion 8(a)(1), (3), (4), and (5) of the National Labor Relations
Act (the Act).
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me in Ironton, Ohio, on June
15, 16, and 17, 1993.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a corporation, has been
engaged in the publication, circulation, and distribution of
‘‘The Ironton Tribune’’ in the Ironton, Ohio area.
During the past 12 months, Respondent, in conducting its
operations described above, derived gross revenues in excess
of $200,000, held membership in or subscribed to various
interstate news services, including The Associated Press,
published various nationally syndicated features, including
Columnist Ann Landers and the comic strip Garfield, and ad-
vertised various nationally sold products and services, includ-
ing Maytag products.
Respondent admits and I find that, at all material times,
Respondent has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Respondent publishes a newspaper. Numerous unfair labor
practices are alleged in the complaint tried before me. Essen-
tially they break down into two areas of activity at the news-
paper, namely, the pressroom and the mailroom. I will first
address the alleged unfair labor practices in the pressroom
and then address the alleged unfair labor practices in the
mailroom.
B. The Pressroom
Since 1963 the Union has been the designated exclusive
collective-bargaining representative of the employees in the
following unit:
1211IRONTON PUBLICATIONS
All employees employed in the operation of the press-
room, including the camera, offset platemaking and all
press operations, excluding all other employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
In other words, the Union represented all employees in the
unit and not just union members.
On November 1, 1989, representatives of the Employer
and the Union met at a Ramada Inn in Southpoint, Ohio, for
a negotiating session.
At the session Respondent was represented by Jennifer
Allen and John Mathew. Union Representative Walter Martin
wanted to negotiate the people he represented into Respond-
ent’s profit-sharing plan and made an inquiry regarding new
employees and was told by John Mathew, an admitted agent
of Respondent, that if a new employee was hired in the unit,
completed the probationary period and did not join the Union
he could enroll in the profit-sharing plan but if he did join
the Union he could not participate in the profit-sharing plan.
The Union filed a charge over this (Case 9–CA–27061),
which was settled between the Respondent and the Regional
Director for Region 9 with the posting of a notice over the
signature of Jennifer Allen, publisher and CEO of Respond-
ent. In the notice Respondent promised that it would not tell
employees in the bargaining unit that they could participate
in Respondent’s profit-sharing plan if they did not join the
Union but could not participate if they did join the Union.
The notice was dated May 7, 1990.
Clearly what John Mathew said on November 1, 1989,
was a violation of Section 8(a)(1) of the Act because it dis-
criminated between employees on the basis of their union
membership, i.e., union members could not participate in the
profit-sharing plan but nonmembers could participate. The
parties did agree to a contract which by its terms ran from
May 8, 1990, to May 7, 1993. The settlement was set aside
by the Regional Director for Region 9 because of what Re-
spondent allegedly said and did to James Jenkins regarding
the profit-sharing plan once it learned that Jenkins had joined
the Union.
For years three employees worked full time in the press-
room. The foreman was not a member of the unit but the
other two employees, one of whom was an assistant foreman,
were in the unit. Up to May 1990 the full-time people in the
pressroom consisted of Foreman Greg Gilmore, who was not
in the unit, and employees Joe Gann and Bob Kellogg who
were in the unit. Joe Gann for 10 years prior to his retire-
ment in November 1992 was designated assistant foreman.
Prior to that Bob Kellogg had been designated the assistant
foreman.
Beginning in 1989 James Jenkins, who had been hired into
the mailroom, began working in the pressroom on a part-time
basis. In May 1990 when Bob Kellogg suddenly died James
Jenkins took his place in the pressroom. He began a 1-year
training program under the auspices of Pressroom Foreman
Greg Gilmore and Assistant Foreman Joe Gann and success-
fully completed that training program. He received merit pay
increases and very good job performance evaluations.
The contract between the Respondent and the Union con-
tained neither a union-security clause nor a dues-checkoff
provision. Jenkins did not join the Union for over 2 years
and his terms and conditions of employment were governed
by the employee handbook and not by the contract.
Unfortunately Respondent has a fundamental misunder-
standing of the law. If an employee is in the bargaining unit,
as James Jenkins was in this case, then the terms and condi-
tions of his employment are governed by the collective-bar-
gaining agreement then in effect between the Respondent and
the Union. Respondent, in this case, simply decided to apply
the contract to the persons in the bargaining unit if, and only
if, they were members of the Union. If an employee was in
the bargaining unit but not a member of the Union then the
Respondent treated that employee as if he were not a mem-
ber of a bargaining unit represented by a union.
In the fall of 1992 Respondent unilaterally and without
giving prior notice and opportunity to bargain to the Union
added an additional duty to the unit employees in the press-
room, namely, a duty to mop the floor. The duty to mop the
floor had heretofore for many decades been the job of Re-
spondent’s custodial staff or cleaning crew. Mopping the
floor, according to the uncontradicted testimony of James
Jenkins, took about 20 minutes a day. The duty of mopping
the floor in the pressroom is a term or condition of employ-
ment about which the Union should have been given prior
notice and opportunity to bargain. Joe Gann, who had
worked for Respondent for 37-1/2 years, decided to retire
earlier than he had planned because of this added duty of
mopping the pressroom floor. In other words this was not an
insignificant or trivial change in the job but one that drove
a veteran employee to retire somewhat earlier than he had
planned. Respondent violated Section 8(a)(1) and (5) of the
Act when it added mopping duties to the duties of the em-
ployees in the pressroom.
In June 1992, after working in the pressroom for over 2
years as a full-time pressroom employee, James Jenkins,
joined the Union. This fact was not brought to the attention
of Respondent’s management, however, until Joe Gann told
Jennifer Allen in November 1992 that James Jenkins had
joined the Union.
Thereafter, a number of discriminatory actions took place
against James Jenkins. He was informed by either Jennifer
Allen or Greg Gilmore that because he was now a union
member the following would occur:
(1) he could no longer participate in Respondent’s
profit-sharing plan,
(2) he was no longer eligible for a Christmas bonus
and did not get one in December 1992,
(3) his regular hours of work were reduced from 40
to 37-1/2 hours per week and Jenkins testified without
contradiction that he made less money as a result of
this even though overtime would kick in after 37-1/2
hours rather than after 40 hours of work,
(4) his vacation, which he was told would go to 3
weeks per year in 1993 under the provision of the em-
ployee handbook, based on his years of service, would
remain at two weeks per year,
(5) he was put on a 4-year training program even
though he had already successfully completed a 1-year
training program, and
(6) he was not permitted to reschedule his 4th of
July 1993 holiday which fell on his regularly scheduled
day off to a day beyond the week before or the week
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after the 4th of July even though a fellow unit em-
ployee, Jack Day, was permitted to reschedule his Me-
morial Day holiday beyond the 2-week period.
Respondent claims it did not violate the Act because in the
collective-bargaining agreement covering the pressroom em-
ployees the employees do not participate in the profit-sharing
plan, do not receive Christmas bonuses, work a 37-1/2 hour
workweek, receive 2 weeks’ vacation, participate in a 4-year
training program when hired, and must receive credit for any
holiday that is rescheduled within the week before or the
week after the holiday.
Suffice it to say Respondent misses the point. Employees
in the bargaining unit have their hours, wages, and other
terms and conditions of employment set by the agreement
reached between the Employer and the Union. James Jen-
kins’ hours, wages, and terms and conditions of employment
should have been governed by the contract. They weren’t.
Respondent cannot, more than 2 years after James Jenkins
became a member of the bargaining unit, decide to apply the
terms and conditions of the contract to Jenkins’ detriment
when Respondent learns for the first time that he joined the
Union. This is discrimination based on union membership
and a violation of Section 8(a)(1) and (3) of the Act since
it is intended to and indeed does interfere with protected con-
certed activity and is designed to undermine the Union. In
fact what Respondent did amounts to a total repudiation of
the collective-bargaining relationship between it and the
Union. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270
(1956). In addition Respondent violated Section 8(a)(1) and
(5) of the Act in changing the hours and terms and condi-
tions of employment for a unit employee without giving
prior notice and opportunity to bargain to the Union.
For some months before Joe Gann retired in November
1992 he had voluntarily reduced his hours of work. James
Jenkins’ brother, Roger Jenkins, who had been also hired
into the mailroom, was detailed to the pressroom to help out.
Roger Jenkins wanted to replace Joe Gann as a full-time em-
ployee in the pressroom. He worked in the pressroom full
time from November 1992 until late January 1993 when he
was abruptly removed from working on a full-time basis in
the pressroom and assigned to work there only part time.
Later, he was totally removed from the pressroom.
The pressroom foreman, Greg Gilmore, told Roger Jenkins
that he thought Roger Jenkins was removed from being full
time in the pressroom because of his brother, James Jenkins,
and the Union.
Prior to being removed from the pressroom Roger Jenkins
had been told by Dale Buie, an agent of Respondent, that he
would be the person to replace Joe Gann when Gann retired.
Indeed, Buie had asked the Jenkins brothers if they had any
problem about both of them in the pressroom full time be-
cause they could no longer take vacations together. They as-
sured Buie that this would not be a problem. Pressroom
Foreman Greg Gilmore told Roger Jenkins that Jennifer
Allen, Respondent’s CEO, had selected him to succeed Joe
Gann. Roger Jenkins sought out Allen and thanked her and
Allen told Roger Jenkins that his good work got him the job.
Allen claims she merely told him that he was in the running
for the job. I credit Roger Jenkins’ version of what Jennifer
Allen said. No one had any complaint whatsoever about the
job performance in the pressroom of Roger Jenkins. But lo
and behold within approximately 2 months of Allen finding
out that James Jenkins has joined the Union, Roger Jenkins
is out as Joe Gann’s replacement. Indeed, just 1 day before
Roger Jenkins was removed as a full-time employee in the
pressroom Jennifer Allen was questioned by a Board agent
in connection with the investigation of the charge in Case 9–
CA–30300. The charge concerned alleged discrimination
against James Jenkins but in the interview Allen was asked
a number of questions about staffing in the pressroom and
the name of Roger Jenkins was mentioned.
It is clear that the removal of Roger Jenkins as a full-time
employee from the pressroom and the reneging by Respond-
ent of its commitment to name him as Joe Gann’s successor
was a violation of Section 8(a)(1) and (3) of the Act. This
is demonstrated not only by the facts set forth above, name-
ly, James Jenkins joins the Union and all sorts of unfair
things happen to him, a charge is filed, Roger Jenkins’ status
in the pressroom is questioned, and all of a sudden Roger
Jenkins, James, brother, is out of the pressroom as a full-time
employee but by the facts surrounding the hiring of Jack Day
to replace Joe Gann in the pressroom.
In early March 1993 Jack Day was hired. Day was an ex-
perienced printer but had never worked a press similar to the
press at the Ironton Tribune. He was hired and put on a 1
year training program. In addition, he was designated as the
assistant foreman even though the assistant foreman’s posi-
tion should have gone to James Jenkins. Further, Respondent
advised its employees that henceforth just three employees
would work in the pressroom, namely, Foreman Greg Gil-
more, Assistant Foreman Jack Day, and James Jenkins. And,
unbelievably, Respondent took the position that Assistant
Foreman Jack Day was a statutory supervisor and not in the
pressroom unit represented by the Union. It did not apply the
collective-bargaining agreement to him even though for more
than 25 years the assistant foreman was always in the unit.
Respondent claims that it gave Day the authority to hire and
fire, which, of course, is preposterous considering the fact
that he was in a department, i.e., the pressroom with just
three people and supposedly this pressroom consisted of two
supervisors but just one employee. Lastly, by claiming that
only three people would work in the pressroom and that two
of them were statutory supervisors the pressroom unit was
reduced to a one person unit under Respondent’s theory and,
therefore, Respondent could legally ignore the Union since a
one person unit is not recognized as an appropriate unit
under the Act. See Searles Refrigeration Co., 297 NLRB 139
(1989). The minimum number required to be in the unit is
two. Needless to say Day had never hired or fired anyone
at the paper. Indeed, Pressroom Foreman Greg Gilmore and
employee James Jenkins trained Jack Day in his job and, ac-
cording to the uncontradicted testimony of foreman Greg
Gilmore on June 15, 1993, before me, James Jenkins had the
skills to put the paper out but Jack Day did not. Respondent
violated the Act in trying to reduce the unit to a one-person
unit.
It is clear to me that based on these violations James Jen-
kins should be promoted to assistant foreman with the extra
compensation that goes with that job and that Roger Jenkins
should be transferred into the pressroom. I note that Shawn
Jenkins, a cousin of James and Roger Jenkins, had worked
in the pressroom on a part-time basis and no longer does.
1213IRONTON PUBLICATIONS
However, I don’t see any violation of the Act in Respond-
ent’s removing Shawn Jenkins from the pressroom.
C. The Mailroom
The mailroom employees were responsible for, among
other things, putting advertising inserts into the newspaper.
The foreman in the mailroom was Gary Cochran until
April 8, 1993, when he left Respondent’s employ. The assist-
ant foreman was Roger Jenkins. This is the same Roger Jen-
kins referred to in section III,B, above. A number of other
employees worked either full time or part time in the mail-
room.
Jeff Clutters, a part-time employee in the mailroom, who
also worked full time for Rich Oil, spoke, at James Jenkins’
suggestion, with International Union Representative Walter
Martin about getting the Union to represent the employees in
the mailroom. Clutters and Martin spoke over the phone
about union representation on March 28, 1993.
Clutters was instructed by Martin to let him know the
names, addresses, and phone numbers of the employees in
the mailroom. Open discussions were held at work about the
Union among the mailroom employees. Those participating
in such open discussions included Jeff Clutters, Roger Jen-
kins, Shawn Jenkins, and David Mart. These discussions took
place in the mailroom in full view of those others at the
paper, management or otherwise, inclined to look and listen.
In addition, Jeff Clutters and Shawn Jenkins could be heard
hollering ‘‘majority rules’’ on numerous occasions within the
mailroom. These union-related conversations and the holler-
ing of ‘‘majority rules,’’ as a practical matter, could not have
escaped the notice of management.
According to the credited testimony of David Mart, who
is still employed by Respondent, Sherry Beckman, who is
circulation manager and who oversees the mailroom, knew of
the union activity of Jeff Clutters, Roger Jenkins, and Shawn
Jenkins, because David Mart heard Mark Fields tell Sherry
Beckman that Jeff Clutters, Roger Jenkins, and Shawn Jen-
kins were the primary union supporters in the mailroom.
On March 24, 1993, management held a meeting with the
mailroom employees. CEO Jennifer Allen and Circulation
Manager Sherry Beckman ran the meeting. The subject mat-
ter was problems with inserts. At the meeting management
told the mailroom employees that there would be no
fingerpointing regarding insert problems, e.g., not putting the
correct advertising insert into the paper, and that the entire
mailroom staff was responsible for seeing that inserts were
properly handled.
On April 16, 1993, there was an insert problem. A
Chrysler/Dodge advertising insert was not placed in the
paper until a number of copies of the paper had gone out.
Circulation Manager Sherry Berkman first saw the problem
several hours after the inserts should have been inserted in
the paper. A number of papers went out prior to the problem
being discovered.
Jeff Clutters, Roger Jenkins, and Shawn Jenkins, the three
employees pointed out to Sherry Beckman as the principal
union supporters by Mark Fields, all received written dis-
cipline and were placed on 90 days’ probation. Clutters was
a part-time employee and Roger and Shawn Jenkins were full
time. Other mailroom employees who were working at the
time, i.e., David Mart and Doris Boyd, were not disciplined.
Only these three were disciplined even though just a few
weeks before on March 24, 1993, the mailroom staff had
been told that there would be no fingerpointing and that the
entire staff was responsible for making sure that the inserts
were handled in a proper fashion. Further, subsequent to the
insert problem with the Chrysler/Dodge ad there were two
more insert problems, one with a grocery store named
Wolohan’s and one with a business named Auto Works.
However, no one was disciplined for these two insert prob-
lems. Lastly, Shawn Jenkins, it turned out, was not working
in the mailroom at the time of the discovery of the
Chrysler/Dodge insert problem. He brought this to manage-
ment’s attention and was told the discipline would be with-
drawn but it hadn’t been withdrawn by the time of the hear-
ing before me. The disciplining of these three prounion em-
ployees was done in violation of Section 8(a)(1) and (3) of
the Act.
These same three union supporters, Jeff Clutters, Roger
Jenkins, and Shawn Jenkins, were also denied pay increases
when similarly situated employees received pay increases.
However, not all mailroom employees received raises, only
David Mart and Doris Boyd, and Respondent made a good
case that Mart got a raise because he was an outstanding em-
ployee and Boyd got a raise because she switched from piece
work to an hourly wage. I find no violation of the Act in
these three not receiving pay raises.
Jeff Clutters’ hours of work were reduced at the same time
that Respondent learned of his union activity. Respondent ad-
mits that it reduced Clutters’ hours of work but claims it was
due to lack of work. I find this claim to be specious because
at the same time Clutters’ hours were reduced for several
weeks from 25 hours a week to 11 hours a week two new
part-time employees were hired in the pressroom, i.e., Julia
Clark on April 5, 1993, and Larry Lee Wilson on April 13,
1993.
As noted above Roger Jenkins was the assistant foreman
in the mailroom and traditionally received $5 per day when
he worked as foreman, i.e., when the foreman was on vaca-
tion or ill or otherwise absent. Yet for 3 weeks after Gary
Cochran left Respondent’s employ Roger Jenkins did not re-
ceive the extra compensation to which he was entitled on the
grounds, according to Respondent, that Sherry Beckman was
doing Cochran’s job rather than Roger Jenkins. I credit the
testimony of Roger Jenkins that he filled in during this pe-
riod for Cochran and should have received the extra com-
pensation and that Beckman did what she normally did when
Cochran was absent. The failure of Respondent to give
Roger Jenkins this extra compensation was a violation of
Section 8(a)(1) and (3) of the Act since prompted by Roger
Jenkins’ prounion activity.
D. Rule Prohibiting Discussion of Wages
Since November 6, 1992, Respondent has promulgated and
maintained a rule which prohibits its employees from dis-
cussing their wages, salaries, or pay increases with other em-
ployees. This rule was reemphasized in late January or early
February 1993.
Forgetting the fact that it is ironic indeed that a news-
paper, which routinely, I’m sure like all papers, prints the
salaries and compensation of ball players, movie stars, busi-
ness executives, and government officials, would prohibit its
own employees from telling each other what they are paid
is a serious interference with organizational rights to prevent
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, who may want to organize, to discuss their pay
with each other. Preliminary to any effort to organize would
be for the employees to discuss their hours, wages, and other
terms and conditions of employment.
The promulgation and maintenance of this rule the viola-
tion of which could result, according to Respondent, in dis-
charge violates Section 8(a)(1) of the Act. See Jeanette
Corp., 217 NLRB 653 (1975).
E. Deferral to the Arbitral Process
Respondent argues that this is an appropriate case for de-
ferral to the arbitral process in regards to the unfair labor
practices regarding pressroom employee James Jenkins. I dis-
agree. In attempting to reduce the pressroom unit to a one
person unit Respondent would destroy the Union. The evi-
dence in this case reflects employer animosity to the employ-
ees’ exercise of protected rights and deferral is inappropriate.
See United Technologies Corp., 268 NLRB 557 (1984).
REMEDY
The remedy in this case should include a cease-and-desist
order, the posting of the notice and the additional remedial
action necessary and appropriate in light of the specifics of
Respondent’s unfair labor practices in both the pressroom
and the mailroom, which are spelled out more fully in my
recommended order set forth below. Respondent and the
Union had one negotiating session for a successor agreement
to the one which expired on May 7, 1993. They agreed to
postpone negotiations for a new contract until the instant
complaint is resolved.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of Sec-
tion 2(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 violated Section 8(a)(1) of the Act when on
November 1, 1989, it informed employees that if new em-
ployees in the bargaining unit represented by the Union
chose not to become union members, they could participate
in Respondent’s profit-sharing plan, but if they became union
members, they could not participate in the plan.
4. Respondent violated Section 8(a)(1) and (3) of the Act
when, upon learning that pressroom unit employee James
Jenkins had joined the Union and because he joined the
Union, it informed James Jenkins that his work hours would
be reduced from 40 to 37-1/2 hours and then did reduce his
hours, denied him his 1992 Christmas bonus, denied him
participation in Respondent’s profit-sharing plan, reduced his
vacation from 3 to 2 weeks, refused to permit him to re-
schedule his 4th of July holiday, and placed him in a 4-year
formal training program.
5. Respondent violated Section 8(a)(1) of the Act when it
promulgated and maintained a rule prohibiting employees
from discussing their wages, salaries, or pay increases with
other employees thus interfering with employee protected
concerted activity.
6. Respondent violated Section 8(a)(1) and (3) of the Act
when it reduced the hours of work of Jeff Clutters because
he engaged in protected concerted activity.
7. Respondent violated Section 8(a)(1) and (3) of the Act
when it transferred Roger Jenkins out of the pressroom bar-
gaining unit because he engaged in protected concerted activ-
ity.
8. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed to promote James Jenkins to the position of
assistant foreman.
9. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed to pay Roger Jenkins extra compensation for
serving as ‘‘assistant foreman’’ in the mailroom.
10. Respondent violated Section 8(a)(1) and (3) when in
April 1993 it gave written discipline and put on 90 days,
probation Jeff Clutters, Roger Jenkins, and Shawn Jenkins
because they engaged in protected concerted activity.
11. Respondent violated Section 8(a)(1) and (5) of the Act
when it unilaterally and without prior notice to the Union
gave bargaining unit employees the additional duty of mop-
ping and when it changed the hours and other terms and con-
ditions of employment of James Jenkins.
12. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]