Knuth Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1975

218 N.L.R.B. 869 (N.L.R.B. 1975)

KNUTH BROS., INC. 869
Knuth Bros., Inc. and Milwaukee Printing Pressmen
& Assistants Union No. 7. Case 30-CA-2705
June 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 29, 1974, Administrative Law Judge
Jennie M. Sarrica, issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 1 of the Administrative Law Judge and to
adopt her recommended Order.
In asserting that he would dismiss the complaint,
our dissenting colleague finds that Popovitch com-
mitted misconduct consisting of flagrant disloyalty to
his employer, and as such his activities were not
protected under the Act. Such a finding fails to give
sufficient weight to the credibility findings made by
the Administrative Law Judge and her analysis of the
acts, which we believe are proper and fully support-
ed by the record as a whole.
The Administrative Law Judge properly found that
Respondent's discharge of Popovitch was not caused
by any breach of confidentiality on the part of
Popovitch, but rather by an unfounded fear on the
part of Gary Knuth, Respondent's vice president,
that Popovitch was, attempting to initiate a secondary
boycott against Respondent by putting pressure on
its customers to send business to a union shop-an
action which Respondent felt could cost it "many
dollars in business ." In support of this finding, the
credited evidence shows that Respondent did not in
fact practice such a high degree of confidentiality as
it asserts is necessary in its business. Rather, the
evidence shows , inter alia, that Respondent has
entertained in its ,plant several different dealers at
1 See also Circle Bindery, Inc., 218 NLRB 861 (1975). However, since we
find that under the circumstances of this case the discharge of Popovitch
was clearly in violation of Sec. 8(axl) of the Act, we find it unnecessary to
pass on the Administrative Law Judge's finding that such action also
violated Sec . 8(a)(3). N.L.RB. v. Bunnrp & Sims, Inc, 379 U.S. 21 ( 1964).
2 In light of this specific credibility finding made by the Administrative
Law Judge in fn. 13 of her Decision , her finding in fn. 14 that Gary Knuth's
testimony was revealed to be something less than candid, and the admission
of Gary Knuth that he hired both Popovitch and Mollet , Member
Kennedy 's reliance on the "credited" testimony of Gary Knuth to establish
that he advised each new employee of the confidential nature of
Respondent's business is misplaced.
218 NLRB No. 125
one time, an activity which detracts from its assertion
that its association with one dealer must not be
revealed to another dealer. Also, Respondent has no
rule or policy requiring secrecy as to its identity
which was publicized to its employees. Popovitch
and employee Mollot both credibly testified that
there was no mention made to them forbidding
contact with the ultimate customer or of any
confidentiality concerning the business relation-
ships.2
Knuth's own testimony reveals that Respondent
discharged Popovitch because of its belief that he
was engaging in secondary boycott activity. Howev-
er, the Administrative Law Judge properly found
that there was no such intent behind Popovitch's
inquiries of Schlitz. Rather, he was attempting to
gather information he thought would be helpful in
organizing Respondent's production employees, a
purpose of which Knuth was clearly aware prior to
his discharging Popovitch.3
The Administrative Law Judge was correct in her
finding that Popovitch's inquiries constituted con-
certed union activities which were protected by the
Act, and that nothing he did stripped him of such
protection. As Respondent was aware of the nature
of such activities, and the basis for its discharge of
Popovitch was an alleged act of misconduct in the
course of that activity-which misconduct was not in
fact committed, such discharge clearly violated
Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Knuth Bros., Inc.,
Milwaukee, Wisconsin, its officers, agents , succes-
sors , and assigns, shall take the action set forth in the
said recommended Order.
MEMBER KENNEDY, dissenting:
My colleagues conclude that Respondent violated
Section 8(a)(1) of the Act by discharging employee
Popovitch despite his deliberate, breach of the
confidentiality of Respondent's job-shop printing
3 In fn. 6 of his dissent , Member Kennedy states that, at his discharge
interview, Popovitch admitted he knew that his conduct could have cost
Respondent $ 100,000 in business . As this statement implies that Popovitch
knew at the time he made the inquiries of Schlitz that it could hurt
Respondent's business , it is important to point out that even a reading of the
record to the best advantage of Respondent does not support such an
implication, but rather the most that can be said is that, when Knuth
asserted to Popovitch at the discharge interview that Popovitch 's activities
could have caused such a loss , Popovitch acknowledged that he then
understood the assertion to that effect . This in no way shows that
Popovitch , at the time he made the inquiries , had any knowledge that his
actions could cause such a loss.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business relationship with Prismagraphics. I do not
agree.
In my view, Popovitch's conduct, despite its remote
connection with his union organizing campaign in
Respondent 's plant, was beyond the purview of
Section 7 of the Act.4 For that reason, I find it
unnecessary to consider the Administrative Law
Judge's musings about Popovitch's "malicious"
intent, or the ultimate impact of his conduct.
The essential facts are undisputed. Respondent
operates a printing shop which performs jobs
subcontracted to it by dealers such as Prismagraph-
ics. The dealers who bid for and receive contracts on
printing jobs often ford it necessary to subcontract
the actual work. Obviously, this practice makes the
ultimate product more expensive to the customer
than if the contract has been made directly with the
printing shops, and therefore the dealers require the
shop to keep confidential the relationship between it
and the shop.
In this case employee Popovitch breached this
confidentiality by directly informing the Schlitz
brewery and that his Employer, the Respondent here,
was performing its printing work. As Popovitch
admittedly knew, Respondent was performing that
work pursuant to its subcontract with Prismagraph-
ics. Schlitz thereafter informed Prismagraphics that
Schlitz had been told that Respondent was doing its
work. Apparently, in this instance Schlitz knew that
Prismagraphics had subcontracted its work, although
it had not known to whom.
Prismagraphics was, in the words of the Adminis-
trative Law Judge, "irate." It accused Respondent of
"violating a trust and questioned whether Prisma-
graphics could continue doing business with Knuth
in the circumstances." Prismagraphics is Respon-
dent's first and oldest dealer account. The prospect
of losing Prismagraphic's account was a serious
matter to Respondent, apart from the Schlitz job
itself, since a major portion of Respondent' s business
comes from such dealer accounts .5 Accordingly,
Respondent discharged Popovitch.6
My colleagues state that "under the circumstances
of this case the discharge of Popovitch was clearly in
violation of Sec. 8(a)(l) of the Act" and cite for
support N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964). In Burnup & Sims the employer was told that
two employee union organizers had threatened to use
dynamite to get the union in if the union did not
acquire sufficient authorization cards. The employer
relied on this advice in good faith and discharged the
4 I agree with the Administrative Law Judge's conclusion that Respon-
dent discharged Popovitch for breaching the confidentiality of Respon-
dent's business relationship with Prismagraphics, and that this reason was
not used by Respondent as a pretext to mask any other reason for the
discharge.
5 Respondent converted to a wholesale operation in 1954 . At that time it
two employees. The Supreme Court upheld the
Board's fording of a violation of Section 8(a)(1),
holding:
In sum, § 8(a)(1) is violated if it is shown that the
discharged employee was at the time engaged in a
protected activity, that the employer knew it was
such, that the basis of the discharge was an
alleged act of misconduct in the course of that
activity, and that the employee was not, in fact,
guilty of that misconduct. [379 U.S. at 23.1
In the instant case, however, Popovitch did commit
the misconduct involved. Furthermore, I would find
that his conduct was not protected by Section 7 of
the Act.
In N.L.RB. v. Local Union No. 1229, International
Brotherhood of Electrical Workers [Jefferson Standard
Broadcasting Company], 346 U.S. 464 (1953), the
Supreme Court upheld the Board's finding that
employee strikers were discharged "for cause" when,
while on strike, they made a sharp public attack on
the quality of their employer's product. This attack,
said the Court, was "reasonably calculated to harm
the company's reputation and reduce its income."
The Court continued:
There is no more element cause for discharge of
an employee than disloyalty to his employer. It is
equally elemental that the Taft-Hartley Act seeks
to strengthen, rather than to weaken, that
cooperation, continuity of service and cordial
contractual relation between employer and em-
ployee that is born of loyalty to their common
enterprise. [346 U.S. at 472.]
If the majority would take me to task for not, in
their view, according sufficient weight to the Admin-
istrative Law Judge's credibility findings, then I
suggest that they should not ignore those findings
themselves. The credited testimony of Vice President
Knuth establishes - that until 2 years before the
hearing he hired all employees and that in each case
he made very clear to each the nature of Respon-
dent's business and the fact that they never had any
contact with the ultimate customer for whom the
work was performed. Furthermore, it is Respon-
dent's anonymity with respect to the ultimate
purchaser which Respondent seeks most to preserve
from disclosure to others. Since the majority attempts
to state a case for me other than the one I choose, I
shall state it so simply that no one can miss it.
disbanded its sales force and retained only a few customer accounts.
In the only other instance where a customer discovered that Respondent
had done the work , due to Respondent's inadvertent forwarding of the
invoice, Respondent never received another order from the dealer.
6 At his discharge interview , Popovitch admitted he knew that his
conduct could have cost Respondent $100,000 of business.
KNUTH BROS., INC. 871
It is my view that Popovitch"s conduct, which
indisputably did occur, is not protected by the Act.
This compulsion accords with the principles set forth
by the Supreme Court. (Contrary to the majority, I
shall adhere to the statute's command for a de novo
review, and shall therefore independently analyze the
facts found by the Administrative Law Judge, as I
am obligated to do.) That Respondent Vice President
Knuth used the words "breach of trust" and/or
"secondary boycott" at the discharge interview does
not impress me. As uttered by a layman, it is
inaccurate to use them as if they were words of art.
Yet the majority opinion persists, adding a plea for
sympathy for Popovitch on the grounds that he was
never explicitly forbidden to contact Respondent's
ultimate customers . Since Popovitch was a pressman,
he never had any excuse whatever for meddling in his
Employer's dealings with its customers, and an
explicit prohibition would not be necessary. Popo-
vitch's conduct was clearly far beyond the scope of
duties for which he was paid, and thus he must be
held to have been aware that he was meddling in his
Employer's business affairs without authorization.
T11erefore, Respondent was legally entitled to treat
him just as it would any other employee who so
seriously disrupts his employer's business.
In my view, Popovitch was clearly and flagrantly
disloyal to his Employer. His conduct posed a serious
threat to his Employer's business. Such conduct is
just cause ' for discharge. Accordingly, I would
dismiss the complaint in its entirety.
DECISION
STATEMENT OF THE CASE
JENNIE M. SARRICA, Administrative Law Judge: Upon
due notice this proceeding under Section 10(b) of the
National Labor Relations Act, as amended (29 U.S.C. 151,
et seq.), hereinafter referred to as the Act, was tried before
me at Milwaukee, Wisconsin , on July 11, 1974.1 Based on a
charge filed on April 30, a complaint issued on June 11,
presenting allegations that Knuth Bros, Inc., hereinafter
referred to as the Respondent, committed unfair labor
practices within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act. Respondent filed a timely
answer denying that it committed the violations of the Act
alleged. Representatives of all parties were present and
participated in the hearing.
Based on the entire record including my observation of
the witnesses and after due consideration of the arguments
presented in the briefs filed by the General Counsel and
the Respondent, I make the following:
1 All dates are in 1974 unless otherwise indicated.
2 Admittedly Respondent was not a party to any of those contracts. A
provision repeated in the contract reads as follows:
Section 15, Delicate Confidences. The Union realizes delicate confl-
FINDINGS OF FACT AND CONCLUSIONS THEREFOR
1. JURISDICTION
Respondent, a Wisconsin corporation, is engaged prima-
rily in the wholesale printing of business forms. During the
last calendar year, a representative period, Respondent
purchased and received at its Brookfield, Wisconsin, plant,
directly from points located outside the State of Wisconsin,
goods valued in excess of $50,000. Respondent admits and
I find that at all times material herein Respondent has been
and is an employer as defined in Section 2(2) of the Act,
engaged in commerce and in operations affecting com-
merce as defined in Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATION
Respondent admits and I find that at all times material
herein Milwaukee Printing Pressmen and Assistants Union
No. 7, hereinafter called the Union, has been and is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue and Background
The critical question is whether an employee, by
contacting an ultimate consumer of his employer's product
in the course of his union activity, engaged in such an act
of disloyalty or serious breach of business confidentiality
as would cause forfeiture of the protection of Section 7 of
the Act. As a general rule, wholesale printers, which is
Respondent's primary business, perform printing on jobs
obtained from their customers known as dealers. Respon-
dent presented testimony indicating that these dealers
maintain a jealous secrecy from their customers and from
other dealers of information as to who does their printing
and the price list of that wholesale printer. On the job-
ticket form of the Respondent appears a box reading "sold
to (dealers name)." Below that is a box labled "ship in the
name of," and printed in large letters is the word "SAME."
Below that is a box marked "Ship to." In this space appears
the name of the ultimate consumer who is the customer of
the dealer. These job tickets accompany every work order
and are utilized by the pressmen in performing their
assignments as well as by the shipping department.
Respondent has designated specific individuals in its
employ to make any necessary contact for the purpose of
clarification of specifications on the work orders. Those
individuals may contact only the dealers from whom the
work was received to obtain the needed information. As
further proof of the validity of its assertion that such
secrecy is of paramount significance in its type of business,
Respondent points to a provision contained in successive
contracts between the Union and area employees2 safe-
guarding confidentiality. There is no specific rule in
Respondent's employee handbook designating the identity
of the work being performed as confidential, breach of
dences often necessary between the management of a firm and its
employees and agrees to hold any and all private matter acquired by its
members in their employment as a sacred trust not to be imparted to
others or discussed outside the shop in which they are employed.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would be grounds for discharge. Vice President
Gary Knuth 3 testified that he hired all employees until
about 2 years ago and that he made very clear to each the
nature of their business and the fact that they never had
any contact with the ultimate consumer for whom the
printing was performed. He did not warn them that such
contact was forbidden and would be grounds for dis-
missal.4
An election in a unit of the approximately 12 pressmen
employed by Respondent, conducted by the National
Labor Relations Board on July 19, 1973, resulted in a
certification of the Union herein on July 27, 1973. A union-
shop referendum election conducted by the State under the
Wisconsin statute (Sec. 111 .06 (dxl)), on February 15,
1974, resulted in a certificate of authorization on March 26,
1974. It was stipulated that bargaining sessions took place
between the Union and Respondent concerning terms and
conditions of employment for the pressmen unit on various
dates between August 14, 1973, and March 1, 1974, and
that in March by a vote of the pressmen unit employees
Respondent's contract offer was rejected, whereupon the
Union decided that it would organize the rest of the shop
employees in order to strengthen its bargaining position.
Apparently at that time there was discussion by the union
business agent with pressmen employees Frank Mollet and
Philip Popovitch revolving around the subject of unionized
employers requiring or asking that work for them be done
by union people, and "accounts that could be gained if we
did become union." The brewing industry and Schlitz
specifically were mentioned . Pressmen participated in the
organizing campaign which followed. A National Labor
Relations Board election among a unit consisting of the
remaining 32 production employees of Respondent was
conducted on June 20, 1974, and resulted in certification of
the Union herein, on June 28, 1974.
B. The Discharge
Philip Popovitch was employed by Respondent as a
pressman in June 1972. He was a union member and one
of the most active union supporters not only in the
campaigns and various elections involving the pressmen
unit, but also in organizing the remaining production
employees. Popovitch was discharged by Knuth on the
morning of April 29, 1974. The reason given Popovitch for
his discharge was his conduct during the latter part of the
previous week in contacting a ,company which was the
ultimate consumer for a product ' being manufactured in
Respondent's plant for its dealer-customer.
Around April 22, Popovitch had a conversation with
Mollet, the leading union organizer in the shop and union
chapel chairman, in which Mollet commented "it seemed
strange to him" they were performing in the shop work for
Schlitz Brewing, an organized company, "considering the
fact that they5 were not a union shop," Popovitch
pondered over this comment and later told Mollet he was
going to contact Schlitz and try to ascertain why their
company was getting Schlitz work. With respect to his
reason for doing so, Popovitch testified that he knew
Schlitz employees were represented by a union; the press
department employees were represented and they and their
union were trying to organize the other shop employees at
Respondent; and, he thought it would be very beneficial to
their campaign to know that the Respondent's shop was
getting work from unionized companies because the
pressmen were represented by a union, for, in organizing
the remainder of the shop, they could tell the employees
that by joining the Union they could generate more
business for the company and more work for themselves.
On Thursday, April 25, Popovitch called the public
relations department of Schlitz and was eventually referred
to the purchasing department where he spoke with one
Janet Wisch. As he had told the public relations man with
whom he spoke, Popovitch informed Janet Wisch that he
knew the Schlitz employees were all union; he worked for
Respondent; the press department of Respondent was
organized; he was a member of the Union; the Union was
organizing the rest of Respondent's shop employees; they
had a Schlitz job in the shop; and he wanted to find out
whether they had that work because Schutz "gave its work
to union shops, non-union shops or if it made no
difference." Wisch told Popovitch she would need the
3 Other family members, corporate officers of Respondent , were not
prominent in the events herein and did not testify. Accordingly, hereinafter
where Knuth refers to the individual, Gary Knuth is intended.
4 Specifically, Knuth testified on direct examination:
when I interview somebody and explain what our business is, I
make It very clear that we are a wholesale manufacturer of business
forms. We ship in the name of the dealer and our name never appears
anywhere. And I can vouch for that. That I've told that to virtually
everybody.
On cross-examination the following appears:
Q. During your hire interview of Popovitch you, of course, told
him that there would be absolutely no contact with a dealers customer.
Under penalty of termination.
A. I never told him under penalty of termination. But I did make
it very clear that our business is a wholesale business. We ship in the
name of the dealer. We have no contact with the end user customer.
Q. That's what you told him.
A. I say it to every employee that I hire.
Q. Do you ever tell your employees they could be be fired for that
contact?
A. I don't remember ever saying directly that we're going to fire
you if you do that. I'm not going to hold that over somebody's head
when I'm interviewing them.
Q. You're not going to hold it over their head?
A. I'm not going to look at them and say, this is our business, if
you do that I'm going to fire you.
Q. Why not? Wasn't it that important?
A. It's never been done before. Nobody ever-
Q. What's never been done before?
A. Nobody ever picked up the phone and called an end user
customer before and said ....
Q. But you did say that you warned these people about not
making any contact.
A. Not warned. I explained the nature of our business.
Q. Tell me once again what you believe you would tell prospective
employees concerning these types of matters that were talking about
now.
A. As I'm interviewing somebody and naturally want to know
what type of business we're in, I explain the nature 'of our business.
That we're a wholesale manufacturer of business forms . We take orders
from a dealer. We do not have contact with the end user customer, we
ship in his name . And that's the reason we ship in his name. Because
unless he chooses to tell where he sent it , its not up to us to contact
that customer.
5 In the context of other testimony this clearly ^ had, reference to
Respondent's shop and the fact that Respondent's production employees
were not yet represented by a union.
KNUTH BROS., INC. 873
name of the dealer, the name of the salesman, and the job
description. Popovitch called her again the following day
and supplied the information. Wisch informed Popovitch
she would call the dealer for the information he requested
and call him later .6 The dealer involved was Prismagraph-
ics and the salesman, Mr. Schmaelzle, is the son of the
owner of that company.
About 4 that afternoon, Schmaelzle called Popovitch and
asked why he had called Schlitz. Popovitch explained his
purpose for the call. Schmaelzle then informed Popovitch
that it was none of his concern why Knuth got the work
and that had Schlitz not known that ,Prrismagraphics had
"farmed out the work" he, the salesmatn, would have been
in trouble. Popovitch assured Schmaellzle he would not
pursue the matter further.
Respondent's manager, Thomas Schwartz, received a
phone call from Schmaelzle concerning Popovitch's call to
his customer. Schmaelzle was very irate. All of the
Respondent's corporate officers wereun Atlanta, Georgia,
on other business, and Schwartz was unable to locate the
Respondent's attorney. He therefore contacted Respon
dent's employee relations consultant who told him to "sit
on ii" until Knuth returned. The labor relations consultant
relayed information concerning these events to Knuth in
Atlanta, and when Knuth returned to Milwaukee on
Saturday, Schwartz, also informed him in further detail
concerning the call from Schmaelzle. Knuth then contact-
ed Schmaelzle who, according to the testimony of Knuth,
was still very upset over Popovitch's contact with Schlitz.
The salesman accused Knuth of violating a trust and
questioned whether Prismagraphics could continue doing
business with Knuth in the circumstances.? After consult-
ing with Respondent's attorney, Knuth decided upon
discharge.
Popovitch, who worked the night shift from 11 p.m. to 7
amt., was scheduled to change to the day shift the following
Monday morning. When he arrived at or about 6:45 a.m.
he discovered that his timecard was not in the rack. The
day-shift foreman told him that Knuth wanted to see him
in the front office. Knuth testified that he asked Popovitch
why he would do such a thing and Popovitch said he
wanted an honest answer to his question. Popovitch
admitted to Knuth he knew the salesman was very upset
and stated he now realized his action could have cost
Respondent $100,000 of business. Knuth told Popovitch
his conduct had cost him his job and that there was no
alternative because this was something they could not have
happen because their dealers would not have it. According
to `Popovitch, Knuth said, "I suppose you know why you
are in here" and he replied that he did not. Knuth then
said, "Well who do you think you are getting in touch with
Schlitz? For what purpose did you get in touch with
Schutz?" Popovitch stated he wanted to learn whether they
had Schutz' work in the plant because the pressmen were
represented by the Union, and that he wanted to use that
information in the campaign to organize the balance of the
employees by informing them that through selecting the
Union they could benefit by obtaining additional work not
only from Schlitz but from other unionized companies.8
Knuth questioned why he had not sought that information
from Knuth or from the Union and he stated he had not
chosen to do so because he wanted an honest, unbiased
answer. Knuth told Popovitch he could have jeopardized
the Respondent's account with the dealer involving over
$100,O00 worth of business. Knuth asked him who he
contacted at Schlitz and what that person said, then told
him the information he sought was none of his business
and that what he did was restraint of trade and had cost
him his job .9 At the end of this conversation Knuth handed
Popovitch his final paycheck which admittedly was
prepared before the interview.
Knuth admitted that he did not investigate or contact
anyone at Schlitz or speak with Popovitch to ascertain the
reasons for his conduct or ask him for his version of what
had happened before the discharge decision was made.
Knuth testified that basically the reason he decided to
discharge Popovitch was "the violation of the trust that we
have with our dealers not to contact their customers.10 But
this was ... only ... part of it .... We felt that he was
... actually performing a boycott which is what we feel is
an act of disloyalty ... causing pressure on our dealer to
send business to a union shop." Knuth further asserted
that Popovitch's conduct violated three ' of the- handbook
rules 11 and that this justified his discharge. In° support of
C Contrary to Respondent's assertion, I find that Wisch's testimony to
the extent of her recollection , and her appreciation of the nuances of the
inquiry being made, corroborates rather than contradicts in important parts
the testimony of Popovitch with respect to the calls made by him.
it Knuth testified that Respondent's relationship with Prismagraphics is
very typical of its dealer relationships except for the fact that Pnsmagraph-
ics also does some of its own printing. Upon further questioning it
developed that when Respondent converted to a wholesale operation in
1954, retaining only a few consumer accounts, it disbanded all of its sales
activities except for one salesman and gave most of its house accounts to
another of its salesmen who went to work at, and is still with,
Pnismagraphics . Thus, Prismagrapbics is the Respondent's first and oldest
dealer account. Further, Knuth testified that the Schlitz job on which
Popovitch made his inquiry was canceled and that he could not recall the
reason for the cancellation. However, he admitted he may have told the
Board investigator that the order was canceled because of a paper shortage
Respondent was experiencing and that the cancellation had nothing to do
with the discharge. Knuth stated that the paper shortage had caused "most"
of the "many" cancellations Respondent experienced during that period.
9 Apparently the amount of work available was of some concern among
employees. At one company meeting during one of the organizing
campaigns , Popovitch had pointed out to management that a majority of
the pressmen were working part time and half of them, including himself,
found it necessary to hold second jobs. Popovitch was one of the highest
paid employees in the plant.
9 Popovitch further testified, and Knuth did not deny, that in this
conversation Knuth also asked him who he thought he was getting in touch
with Panela, an employee who worked in the bindery section of the shop,
and telling her it was not legal for her to work in the department at 5 a.m. by
herself. Popovitch's response was, "If it was the truth, what harm was it."
Knuth then stated, "Your interests are not in the Company." There is no
need to determine whether the conversation with Panela was concerted
activity, as I find no indication that it was part of the reason for the
discharge. However, it does have a bearing upon the state of mind of Knuth
at the time of discharge.
10 Knuth testified, "There was only one other instance that an end
customer ever found out that a job was being jobbed to us, and that was
when ... I sent the invoice inadvertently. That was quite a few years ago.
We never got another order from this particular dealer.... We lost the
account totally ......
I The rules specified were numbers 6, 8, and 14, which are:
6. An employee shall not neglect his job , duties or responsibilities nor
refuse to perform work assigned to him, or in the manner directed by
(Continued)
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this, Knuth related a prior instance of an employee being
discharged for breach of such rules, the offense being the
removal from the premises of Respondent's price list.
Record evidence concerning Popovitch's union activities
and of Respondent's knowledge thereof is not set forth
herein for the reasons hereinafter indicated.
C. Contentions of the Parties
The General Counsel contends that the Respondent
terminated the employment of Philip Popovitch discrimi-
natorily in that it seized upon his plan to boost the
organizational campaign in the production unit as a pretext
for discharging Popovitch because of his union activities
and that, in any event, Respondent's discharge of Popo-
vitch for making the telephone call was in itself violative of
Section 8(a)(3) of the Act because Popovitch, in making the
call, was engaged in protected union activity.
Respondent, on the other hand, asserts that it discharged
Popovitch solely because he contacted the customer of the
Respondent's dealer, something he had not been author-
ized to do, for the purpose of divulging sensitive confiden-
tial information and putting pressure on a customer of
Respondent's dealer. Respondent asserts that this conduct
constituted just cause for discharge, not only because it
violated three of the Respondent's shop rules, but also
because it was a breach of the trust existing between
Respondent and its dealers, and demonstrated an extreme
act of disloyalty designed to cost the Respondent the loss
of 10 percent of its business and put 8 to 10 fellow
employees out of work, conduct which is "indefensible"
and beyond the protection of Section 7 of the Act.
Analysis and Conclusions
I do not find sufficient evidence in this record to support
the General Counsel's contention that the purported
reason for the discharge of Popovitch was pretextual,
designed to conceal Respondent's real purpose of ridding
itself of one of the most active union organizers at the
height of the production unit campaign. Although no
contract had yet been concluded with the Union since the
July 1973 certification covering the pressmen unit, and
union campaigns were conducted in connection with
February 1974 referendum, the March contract vote and
the April-June organizing campaign for the production
unit, there is no allegation that Respondent committed any
other unfair labor practices, and no evidence of other
unlawful conduct, which would support a finding of union
animus, in these circumstances deemed necessary to
support a violation based on pretext.
Nor do I accept as valid the alleged breach of shop rules
advanced by Respondent as a part of the reason for the
discharge of Popovitch. Contrary to his testimony I am not
convinced that this reason entered into Knuth's considera-
tion at the time . None of the rules make specific reference
to the action taken by Popovitch and Knuth was not able
his supervisor;
8. An employee shall not restrict production and shall not advise,
counsel , suggest or encourage any other employee to engage in such
conduct;
14. Misusing or removing from company property without proper
written authorization , company property , records or other materials.
to intelligibly articulate precisely in what manner Popo-
vitch's conduct fit into the scope of any of the rules
identified. Further, I cannot equate Popovitch's disclosure
of the identity of the manufacturer to the consumer with
the earlier incident wherein an employee removed Respon-
dent's price list from the premises, clearly a serious breach
of the rules, or even with Knuth's own inadvertently
missent invoice, an incident which presumably would have
revealed to the consumer the profit being made by the
middleman, Respondent's dealer.
Respondent relies heavily on the allegation that Popo-
vitch's call to Schlitz constituted an "indefensible" divul-
gence of sensitive confidential information which removed
his conduct from the protection of Section 7 under
Jefferson Standard 12 Although there may well exist
between Respondent and its dealers a "trust" not to
divulge certain information affecting competitive positions,
I find that such confidentiality with respect to the identity
of the manufacturer is not as significant as Respondent
would have one believe. As a normal proposition produc-
ers are pleased to have their product identified, and
Respondent had no rule or policy protecting any secrecy as
to its identity which was publicized to its employees.
Merely explaining the nature of the business to a new or
prospective employee hardly puts employees on notice that
some critical secrecy is involved in this respect,13 and the
fact that such information, as to the manufacturer, the
dealer, and the ultimate consumer accompanies the work
throughout the shop, as part of the job ticket which
includes both the specifications and the shipping instruc-
tions, detracts significantly from any conclusion that these
matters were confidential. The mere fact that the shipping
instructions for most of the shipments were made to the
consumer in the name of the dealer, even if this were
observed by employees other than those in shipping, does
not convey the idea that the employer's identity as the
manufacturer is confidential. This would seem particularly
so where, as here, the manufacturer sometimes ships forms
in its own name and also maintains some "house accounts"
- consumers who are its own customers. Nor.do I view the
fact that Respondent has designated certain individuals to
contact dealers for needed clarification of specifications as
either proof of the secrecy of the manufacturer's identity or
as notice to pressmen that the identity of the employer
must not be divulged. Even the contract provisions on
confidentiality between the Union and the area employer
association, to which Respondent is not a party but which
Respondent advances to 'support its assertion, fail to
indicate that reference is to the identity of the manufactur-
er vis-a-vis the end customer. Further, the fact that
Respondent has entertained in its plant several different
dealers at the same time detracts from its assertion that its
association with one dealer must not be revealed to
another dealer. Finally, the lack of significance of the
disclosure of Respondent's identity in this instance is
underscored by the fact that Knuth did not even bother to
12 N.L R.B. v. Local Union No. 1229, international Brotherhood of
Electrical Workers [Jefferson Standard Broadcasting Co.), 346 U.S. 464
(1953).
13 I credit the testimony of both Popovitch and Mollet that there was no
mention made to them forbidding contact with the ultimate customer or of
any confidentiality concerning the business relationships.
KNUTH BROS., INC.
observe whether Popovitch 's disclosure had any effect on
the amount of work which Respondent subsequently
received from Prismagraphic , and could not even remem-
ber why the Schlitz order involved was subsequently
canceled, although Knuth admitted that he may have told
the Board agent it was because of the paper shortage at
that time.14
On the other hand , Respondent was clearly aware of the
union content of Popovitch's call to Schlitz . Both Schwartz
and Knuth spoke to Schmaelzle, the Prismagraphics
salesman, after the latter called Popovitch and was
informed of the nature and content of the inquiry he made
of Schutz. Both relied on Schmaelzle's information as to
what transpired in the telephone conversation between
Popovitch and Schutz. Neither contacted Popovitch for his
version. Any version given includes reference to work
contracts on the basis of union versus non-union shops.
And in explaining the reasoning behind his decision to
discharge Popovitch, Knuth testified that:
In our opinion, [he was] actually performing a boycott
[by] asking somebody why they 're buying business
forms from a non-union shop ... causing pressure on
our dealer to send business to a union shop or trying to
cause that pressure . And we felt ... very strongly that
if that was to happen ... it could conceivably cost us
many dollars in business ... .
My evaluation of the evidence and the demeanor of the
witnesses lead me to conclude that Respondent discharged
Popovitch solely because of the inquiry made by him in the
telephone call to the Schlitz buyer. By the very nature of
the inquiry, concerning which I infer that Respondent was
fully aware,15 Popovitch was engaged in union activity
related to his union organizing efforts in connection with
the production unit 1s and it was this activity for which he
was discharged.
In this connection, Respondent urges that, under the
cited precedent,17 acts of extreme disloyalty to the worker's
employer which are unnecessary to carry on the worker's
14 Knuth's reluctance in this instance, his professed loss of memory
concerning the content of his conversation with his Father concerning
Popovitch's action, ' and his initial characterization of Respondent's
relationship with Prismagraphics as very typical of its dealer relationships
reveal his testimony as something less than candid.
15 Popovitch's frank statement to Schmaelzle of his purpose for the call
to Schlitz, Knuth's complete reliance upon Schmaelzle 's report of the
incident without further investigation , and, after receiving from Popovitch
at the exit interview his complete report of what was said and his reason for
his actions , Knuth's failure to indicate that he had any contrary
information, all support the inference here made.
is Although union activity itself is concerted activity, I note that this was
also concerted activity as revealed by the testimony, which I credit, that in
connection with plans for organizing the production employees , there was a
conversation between the union business agent, Popovitch , and Mollet
concerning the possibility of bringing more work to Respondent 's shop from
organized business, ' particularly the brewing industry, presumably if , they
were successful in making Respondent an all -union shop, and the two
additional conversations between Popovitch and Mollet with respect to the
presence in the shop of a job for Schlitz , Mollett's questioning of whether
their union activity had anything to do with Respondent 's receiving that
order, and Popovitch's stated intention to call Schlitz and find out whether
there was any causative factor related to unionization and, if favorable, use
such information in the campaign . The fact that Respondent may have
performed work for Sch litz in the past in no way disproves that Mollet
raised the question to Popovitch in light of the earlier conversation with the
875
legitimate activities , even when committed in connection
with concerted activity, are "indefensible" and lose the
protection of Section 7.
I do not accept Respondent 's characterization of
Popovitch's conduct as a deliberate effort to take action
where it could do the most damage , or its contention that
Popovitch engaged in such misconduct even though he
realized that it could result in a tremendous loss of business
for his employer and a loss of the jobs of many of his fellow
employees . There is no evidence whatsoever that Popovitch
intended to damage Respondent's business in any way. To
the contrary, the only evidence of his purpose establishes
that it was to obtain verification of a possible campaign
argument before he utilized it. Had Popovitch intended
any harm to Respondent's relationship with its dealers he
would not so readily have volunteered not to pursue the
matter further when Schmaelzle called and protested
Popovitch's inquiry of his customer . Nor is there probative
evidence that Popovitch realized his actions could have
adversely affected Respondent 's business when he called
Schlitz . This was brought to his attention only at the time
of discharge and the most that can be said is that he
acknowledged he then understood the assertion to that
effect advanced by Knuth. This can hardly be translated
retroactively to become a part of his intent and purpose for
his action. Moreover, Knuth's own testimony giving his
own reasoning behind the discharge decision, quoted
above, discloses that any financial loss feared by him
related to the possible effectiveness of what he believed to
be secondary boycott action against Respondent. It also
reveals the real reason Popovitch was discharged.
This raises the question of whether Popovitch's conduct
constituted legitimate protected union activity . Going to
the source to verify whether certain prospective campaign
propaganda is truthful , which I find was Popovitch's
purpose, is a legitimate union organizing activity. Indeed,
in election objection proceedings the Board holds the
parties accountable for reckless disregard of the truth in
such matters . But Respondent concluded , without investi-
union agent . Both Mollet and Popovitch may have been questioning the
accuracy of the business agent's comments as well as speculating upon
whether their own unionizing efforts would have any effect on additional
work , the lack of which they had previously indicated their concern.
These conversations and their content also lend credence to Popovitch's
version of what he said to the Schlitz buyer and to his professed reason for
contacting Schlitz rather than asking Knuth or the union official . Clearly,
his was not an attempt to justify or rationalize his actions. This was the
version Popovitch gave immediately, not only to Schmaelzle when he called,
but also to Knuth at the discharge interview when Popovitch had no idea of
the interpretation Respondent was placing on his conduct . I find Popovitch
a wholly forthright witness and credit his testimony.
17 Fn. 12, supra Respondent also relies on Boeing Airplane Ca, v.
N.L.RB., 238 F .2d 188 (C.A. 9, 1956), setting aside 110 NLRB 147 (1954),
where the dischargee had refused to give up his activities as a licensed
employment agent by which he could place the company's employees with
competitors ; and N.LRB. v. Red Top, Inc., 455 F.2d 721 (C.A. 8, 1972),
enfg. in part 185 NLRB 989 (1970), wherein the employee threatened to take
the dispute to the company which had contracted the work to the employer
rather than to higher officials of the employer according to employer's
procedure; Southeastern Regional ILGWU Health and Welfare Fund 146
NLRB 790 (1964), where the dischargee revealed information concerning
the medical findings of a patient ; and Farlow Rubber Supply, Inc., 193
NLRB 570 (1971) where the discharge was for trying to obtain copies of the
employer's confidential records.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation, that Popovitch's purpose was to engage in or cause
something in the nature of a boycott's which it insists he
could not with impunity do while drawing pay as an
employee.19 I find, on the evidence hereinabove set forth,
that Popovitch's conduct had no such purpose.
In summary, although I have found that Popovitch was
not discharged for breach of any of Respondent's shop
rules, and that Respondent had no written rule against
disclosure of the identity of its business relationships, the
absence of a rule does not in itself afford protection for
indefensible, malicious, or harmful disclosure of informa-
tion in the nature of business or trade secrets. On the basis
of the evidence presented, however, I have found that the
confidential nature of the particular information revealed
by Popovitch's call to Schlitz is not established by the
Respondent's shop practices or the industry contracts, was
never made known to employees generally or to Popovitch
in particular, and was not a significant concern in
Respondent's reason for the discharge. Further, there was
no element of intent to injure Respondent's business
involved in Popovitch's contacting the consumer which
would indicate an act of disloyalty. As I have resolved the
factual issues to the contrary, no analysis or determination
with respect to possible consumer of secondary boycott
implications raised by Respondent's defense is necessary.
It is well settled that an employer's belief that his
employee, in the course of union activity, engaged in
misconduct outside the purview of Section 7, does not
remove that protection where the employee did not in fact
commit the suspected offense, and that a discharge for the
suspected misconduct violates Section 8(a)(1) of the Act 20
Where, as here, the very act for which the employee is
discharged is union activity and the employer knew this to
be the case but erroneously believed that the union activity
was unprotected , that discharge also violates Section
8(a)(3) of the Act.
Accoringly, I find that Respondent, in discharging Philip
Popovitch, violated Section 8(axl) and (3) of the Act.
Posthearing Matters
In a posthearing motion the General Counsel requested
me to take administrative notice of a determination made
by an examiner of the State Board with respect to
Popovitch's claim for unemployment compensation and
that the proffered copy of such decision and the covering
certification be received as General Counsel's Exhibits 2(a)
and (b). The Respondent has filed a statement in
opposition to the General Counsel's motion.
As the considerations basic to the proffered decision are
substantially different from the issues before me, and the
relevant facts were fully litigated herein, no useful purpose
would be served in receiving or considering the decision
rendered on the unemployment compensation claim.
18 See Vitronics, Incorporated 183 NLRB 1067 (1970), but seeN.L.RB.
v. Serviette, 377 U.S.46 (1964).
18 Reliance is place on Hoover Co. v. N.L.RB., 191 F.2d 380 (CA 6,
Accordingly, the General Counsel's motion is denied in its
entirety and the proposed exhibits are hereby rejected.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with- the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. By discharging Philip Popovitch and thereafter
failing and refusing to reinstate him because he engaged in
protected activities on behalf of the Union, Respondent
committed unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in and is
engaging in certain unfair labor practices it will be
recommended that it cease and desist therefrom and take
certain affirmative action deemed necessary to effectuate
the policies of the Act. Having found that Respondent
unlawfully discharged Philip Popovitch on April 29, 1974, I
shall recommend that Respondent offer him immediate
and full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent
position, without prejudice to any seniority or other rights
and privileges he previously enjoyed, and make him whole
for any loss of pay suffered as a result of its discrimination
against him, by payment to him of a sum of money equal
to that which he normally would have earned, absent the
unlawful discharge, with backpay and interest computed
under the established standards of the Board, in accord-
ance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1951), and N.L.RB. v. Montgomery Ward & Co., Inc., 157 F.2d 486 (C.A. 8,
1946).
20 N.L R. B. v. Burnup & Sims, Inc., 379 U.S. 21(1964). Cf. Loggins Meat
Co, 206 NLRB 303 (1973).
KNUTH BROS., INC. 877
ORDER21
The Respondent, Knuth Bros ., Inc., Milwaukee, Wiscon-
sin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from discharging employees or
otherwise discriminating against them with regard to the
tenure of their employment or any other term or condition
of employment for engaging in concerted union activities
for their mutual aid or protection, or in any like or related
manner, interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Philip Popovitch immediate and full reinstate-
ment to his former position or, if such position no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings, in the manner set
forth in "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and all other records necessary for
determination of the amount of backpay due and the rights
of reinstatement under the terms of this recommended
Order.
(c) Post at its place of business in Milwaukee, Wisconsin,
copies of the attached notice marked "Appendix." 22
Copies of such notice signed by an authorized representa-
tive of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT discourage membership in Milwaukee
Printing Pressmen & Assistants Union No. 7 or any
other labor organization by discriminatorily discharg-
ing our employees because of their support of the
Union and their activities in connection therewith.
WE wuz. offer Philip Popovitch immediate and full
reinstatement in his former position or, if it is no longer
in existence, to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
which he may have suffered as a result of the
discrimination against him
KNUTH BROS., INC.