NTA Graphics

National Labor Relations Board - Board Decisions

Jul 21, 1991

303 N.L.R.B. 801 (N.L.R.B. 1991)

801
303 NLRB No. 155
NTA GRAPHICS
1 The parties have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent’s operations manager,
David Tremonti, threatened employees with a loss of benefits if they chose
union representation, we note that many of the credited witnesses testified that
Tremonti spoke of specific existing benefits, such as work boots, uniforms,
and insurance that would be lost. We also note that the threat was made in
an atmosphere pervaded with other violations. See Kenrich Petrochemicals,
294 NLRB 519 (1989), enfd. in relevant part 893 F.2d 1468, 907 F.2d 400,
en banc (3d Cir. 1990), cert. denied 111 S.Ct. 509 (1990).
The judge found that numerous violations had been committed by Super-
visors Scott and Hollis Shaffer. The Respondent argues that the judge failed
to identify with sufficient clarity the Shaffer brother who committed each vio-
lation. We find this contention without merit. A comparison of the violations
found with the judge’s recital of the underlying facts reveals that it was Scott
Shaffer who threatened cancellation of employees’ health insurance and threat-
ened employees with lower wages and harsher discipline in the event of a
union victory; and that it was Hollis Shaffer who threatened that the plant
would close if the Union prevailed, indicated the futility of selecting union
representation by telling employees that the Union would be kept out for 6
years, and threatened an employee that he would be fired if he attended a
union meeting. (Several other violations were committed by the Shaffer broth-
ers, but no exceptions were filed concerning those violations.)
3 See, e.g., Our Way, Inc., 268 NLRB 394, 411 (1983).
4 Tri-County Medical Center, 222 NLRB 1089 (1976).
5 All dates are in 1987.
NTA Graphics, Inc. and Graphic Communications
International Union, Detroit-Toledo Local 289
AFL–CIO–CLC. Cases 8–CA–20167, 8–CA–
20458, 8–CA–20732, and 8–RC–13648
July 21, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 31, 1989, Administrative Law Judge
Hubert E. Lott issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions
and supporting briefs, and the Respondent filed cross-
exceptions and a supporting brief. Both the Charging
Party and the Respondent filed answering briefs.
On April 4, 1990, the National Labor Relations
Board remanded these proceedings to the judge for ad-
ditional credibility determinations and factual findings.
On July 5, 1990, the judge issued the attached supple-
mental decision, containing his additional credibility
determinations, findings, and conclusions. All parties
filed additional exceptions and supporting briefs.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision, supplemental
decision, and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions only to
the extent consistent with this Decision and Order.
1. The judge found that the Respondent violated
Section 8(a)(1) of the Act in numerous respects de-
tailed in his two decisions. We adopt the judge’s find-
ings2 except as follows.
a. The Respondent promulgated an employee hand-
book that contained the following provisions:
(1) Employees are not permitted to distribute ad-
vertising material, handbooks, or printed or writ-
ten material of any kind in production and work-
ing areas of the plant during working hours or
when not working.
(2) Employees are not permitted access to the in-
terior of NTA facilities or other internal or outside
work areas during off duty hours. This includes
the parking lot.
The judge found that those provisions did not prohibit
the distribution of union literature in nonworking areas
such as lunchrooms or rest areas. However, because he
found that the Respondent’s operations manager, David
Tremonti, had orally promulgated a rule forbidding the
distribution of union literature anywhere on the Re-
spondent’s property, the judge found the quoted rules
to be overly broad, and that they violated Section
8(a)(1). The Respondent excepts to the judge’s finding.
Although we agree with the judge that Tremonti’s
orally promulgated no-distribution rule was unlawfully
broad, we do not find, as the judge did, that the first
paragraph of the rule as stated in the handbook was
rendered unlawful by Tremonti’s statement. That para-
graph, standing alone, is in conformity with established
Board law that employers may lawfully prohibit the
distribution of union literature in working areas of the
plant.3 Although, as the judge found, Tremonti’s state-
ment may have confused employees regarding the
sweep of the Respondent’s policy concerning union so-
licitation and distribution of union literature, the notice
we are requiring the Respondent to post will make
clear that employees are not precluded from engaging
in all such solicitation and distribution.
Like the judge, we find that the second paragraph
quoted above is unlawful, but we do so for a different
reason. The Respondent’s barring of off-duty employ-
ees from its parking lot, with no adequate explanation,
is unlawful on its face.4 Accordingly, we shall require
the Respondent to rescind the second paragraph set
forth above insofar as it denies access to the parking
lot on the part of off-duty employees.
b. The second amended complaint alleges that about
October 13, 1987,5 Tremonti threatened an employee
(Phillip Rogers) that if the Union was voted in, his
progress toward becoming an apprentice and a journey-
man printer would be slowed, and that Tremonti
threatened an employee with unspecified reprisals on
that same date. Rogers testified that on October 13,
Tremonti told him that if the Union came in, he could
demote Rogers to apprentice and that it would take
Rogers 4 to 8 years to get a journeyman’s card. Rogers
also testified that Tremonti said that he could make
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We find that the threat was closely related to the subject matter of the
complaint, and that the issue was fully and fairly litigated.
7 There is no allegation that either the promulgation of the handbook or the
requirement that employees sign it violated the Act.
8 These findings are based on the testimony of the General Counsel’s wit-
nesses, whom the judge broadly credited concerning the meeting.
Rogers quit by demoting him to jogger at $4 an hour.
Tremonti testified that, apparently in the same con-
versation, he told Rogers that under the Union’s labor
agreement, Rogers would have to enter an apprentice-
ship program that could take up to 4 years, and that
it would take up to 8 years for Rogers to become a
journeyman. Tremonti did not deny having threatened
to demote Rogers to jogger at $4 an hour.
The judge found that Tremonti did not act unlaw-
fully by telling Rogers that he could be demoted to ap-
prentice if the Union came in, because Tremonti was
discussing what could happen under a union contract.
We adopt that finding. However, the judge made no
specific finding concerning Tremonti’s alleged threat
to make Rogers quit by demoting him to jogger at $4
an hour. On the basis of Rogers’ unrebutted testimony
and the judge’s general crediting of Rogers’ version of
the October 13 conversation, we find that Tremonti did
make the threat as Rogers testified, and thereby vio-
lated Section 8(a)(1).6
c. The judge found that Tremonti threatened to dis-
cipline any employee who violated the Respondent’s
unlawfully broad no-distribution/no-solicitation rule,
but he inadvertently omitted a cease-and-desist provi-
sion in the Order or the notice concerning this viola-
tion of Section 8(a)(1). We shall amend the Order and
the notice to add such provisions.
2. The complaint alleges that about June 6, the Re-
spondent unlawfully discharged or otherwise termi-
nated 16 named employees because of their union-re-
lated activities and because they engaged in other pro-
tected concerted activities. The judge dismissed this al-
legation, and the General Counsel and the Union ex-
cept. We reverse.
The pertinent facts are set forth fully in the judge’s
decision. On May 28, Tremonti called meetings of all
employees at which he distributed the Respondent’s
newly promulgated employee handbooks. The hand-
books contained provisions stating that the relationship
between the Respondent and its employees was one of
employment at will (which the judge found to be con-
sistent with Ohio law). They also contained an agree-
ment stating that the employees have read, understand,
and will abide by company rules. Tremonti instructed
the employees to read the handbooks and to sign them
before returning to work the following week.7 Accord-
ing to the credited testimony, however, Tremonti did
not mention any penalty for failing to sign the hand-
books.
On May 30, some 30 to 35 employees attended a
union organizing meeting, at which many employees
expressed dissatisfaction with certain portions of the
handbook, including the at-will provision and certain
provisions concerning safety, and indicated that they
were unwilling to sign the handbooks. It also became
reasonably clear at the meeting which employees in at-
tendance supported the Union and which did not.8
Both the employees’ opposition to signing the hand-
books and the identities of many of the prounion em-
ployees were revealed to the Respondent at the meet-
ing because, as the judge found, two of the Respond-
ent’s supervisors engaged in unlawful surveillance of
the meeting. On June 1, after the employees on the
first shift reported to work, they were told by Super-
visor Scott Shaffer that they would have to sign the
handbooks if they wanted to work. When three of the
employees answered that they were still reviewing the
language of the handbooks and were unwilling to sign,
Shaffer sent them home, saying that if they did not
sign the handbooks they could be terminated. That
evening, 10 third-shift employees reported for work
without having signed the handbooks. They were told
by Tremonti that they could work if they signed the
handbooks, but the employees refused and left the
premises.
On June 2, six of the first-shift employees reported
for work but refused to sign the handbooks. When
Scott Shaffer told them to leave, they refused, stating
that they wished to obtain written statements of dis-
charge. They remained on the premises for about 2
hours, until they were escorted out by the police.
On June 4 and 6, all 16 of the employees who had
refused to sign their handbooks were sent letters from
the Respondent stating that they had voluntarily quit
their jobs. The six first-shift employees who had re-
fused to leave on June 2 also were informed in their
letters that their refusal to leave was an additional
ground for discharge. Fifteen of the 16 employees had
attended the May 30 union meeting and signed author-
ization cards on that date. The 16th signed a card on
June 2.
All other employees signed the handbooks and were
allowed to work.
Contrary to the judge, we find that the 16 employees
who refused to sign the handbook were discharged in
violation of Section 8(a)(3). In this regard, we find,
first, that the General Counsel has established a prima
facie case that the Respondent’s actions were unlaw-
fully motivated. Thus, there can be no doubt, on this
record, that the Respondent harbored animus against
the Union. We also have found that the Respondent
had, by reason of its illegal surveillance of the union
meeting, become aware of the identities of many of the
prounion employees and of the employees’ opposition
to signing the handbooks. Finally, the timing of the
discharges–only a few days after the union meeting–in-
803NTA GRAPHICS
9 Freeze had attended and been an active participant at the May 30 meeting.
Shaffer denied making the statement attributed to him by Freeze. The judge,
however, broadly credited the General Counsel’s witnesses, including Freeze,
and broadly discredited both the Shaffer brothers. We find that Freeze’s testi-
mony on this point was implicitly credited.
10 In finding the discharges to be unlawful, we do not rely on the fact, as
found above, that the Respondent’s handbook contained an unlawful no-access
rule. There is no evidence that the employees’ refusal to sign the handbooks
was based in any way on the inclusion of the unlawful provision.
Because we have found that the Respondent discharged the 16 employees
in retaliation for their union activities, in violation of Sec. 8(a)(3) and (1), we
find it unnecessary to decide whether the employees’ refusal to sign the hand-
books was protected concerted activity, and thus whether the Respondent’s ter-
mination of those employees for refusing to sign constituted an independent
violation of Sec. 8(a)(1). The finding of such a violation would not affect the
remedy.
11 See Cone Mills Corp., 298 NLRB 661 (1990).
12 The Respondent has excepted to the judge’s finding that the unit found
appropriate by the Regional Director is, in fact, an appropriate unit for bar-
gaining. We find no merit to this exception. The unit issue has been fully liti-
gated, and the Board has previously denied the Respondent’s request for re-
view. We shall not revisit this issue in this proceeding.
13 Employee Phillip Rogers also received sacrifice benefits. Rogers was not
among the employees who were unlawfully discharged, but was suspended
(initially indefinitely) for his involvement in an argument with an employee
who did not support the Union. Because no action was taken against the other
employee, the Union treated Rogers’ suspension (which it erroneously believed
was a discharge) as a retaliation against his union sympathies, and accordingly
authorized the payment of sacrifice benefits. The payments ceased when Rog-
ers returned to work a few days later.
14 Dart Container, 277 NLRB 1369 (1985). Thus, this case is distinguish-
able from Mailing Services, 293 NLRB 565 (1989), in which benefits appar-
ently were made available to employees regardless of whether they were union
members. Nor were employees here required to join the Union before the elec-
tion in order to qualify for sacrifice benefits. Cf. Wagner Electric Corp., 167
NLRB 532 (1967).
Nothing in Mailing Services should be interpreted as indicating that a union
will be found to have interfered with an election merely by providing to its
Continued
dicates that the Respondent acted in retaliation against
the employees’ demonstrated support of the Union.
We further find that the Respondent’s reliance on
the employees’ refusal to sign the handbooks was
merely a pretext for ridding itself of a group of known
or suspected union supporters. We base our finding on
several factors. First, and most critical, is that the Re-
spondent did not inform the employees that failure to
sign the handbooks would result in discharge until
after it had learned that a large number of prounion
employees were opposed to signing. The significance
of this intelligence could not have been lost on
Tremonti and his fellow managers: all the Respondent
had to do was to announce a new rule that probably
would not be obeyed by numerous union supporters,
and then to rely on those employees’ refusal to obey
that rule as the stated reason for discharging them (or,
which is the same thing, treating them as though they
had resigned). Nor would it have mattered under the
Respondent’s plan whether it had actual knowledge of
the nonsigners’ union sympathies. Their refusal to sign
would suffice to identify them in the mind of the Re-
spondent as likely union supporters.
The Respondent’s unlawful intentions are further
disclosed by two statements made by Scott Shaffer on
the morning of June 1. Union supporter Joe Freeze tes-
tified that when he arrived for work that day, Shaffer
greeted him by saying, ‘‘Good morning, Mr. Freeze, I
hope you can find a new job.’’9 Later that morning,
Shaffer told Scott Baker that the employees would be
sent home early (at noon) that day. When Baker asked
why, Shaffer said, ‘‘You guys should know why. You
went to the Union meeting.’’
Finally, we observe that the Respondent did not
have a practice of disciplining employees who refused
to sign disciplinary warning notices. However, after
the employees’ union sympathies became known, it
imposed the requirement that employees sign the hand-
books as a condition of continued employment.10
The judge also found that the Respondent would
have been justified in denying reinstatement to the six
first-shift employees who refused to leave the premises
on June 2. Again, we reverse.
As we have seen, the Respondent promulgated the
penalty of discharge for failure to sign the handbooks
in an unlawful attempt to get rid of the union adher-
ents. The first-shift employees’ refusal to leave the
plant, after being directed to leave when they refused
to sign the handbook, was a direct result of the imple-
mentation of the Respondent’s unlawful scheme. The
employees’ peaceful refusal to leave the plant thus was
provoked by the unlawful actions of the Respondent.
In these circumstances, we find that the employees did
not lose the protection of the Act by refusing to leave
the plant for about 2 hours on June 2.11
Having found that the 16 employees who refused to
sign the handbooks were unlawfully discharged, we
shall order that they be offered reinstatement and be
made whole for any loss of earnings and other bene-
fits, as set forth in the remedy section of the judge’s
decision, and that all references to their unlawful dis-
charges be expunged from the Respondent’s records.
3. An election was held on September 25 in the unit
found appropriate,12 and the Respondent filed four ob-
jections. Two of the objections were overruled by the
Regional Director, and the other two were overruled
by the judge. The Respondent excepts only to the
judge’s overruling of its Objection 1, which alleges
that the Union impaired the employees’ free choice in
the election by paying money to current and former
employees. We find no merit to that exception.
The payments in question, styled ‘‘sacrifice bene-
fits,’’ were paid to employees who had joined the
Union and who had been unlawfully terminated by the
Respondent.13 As the judge found, sacrifice benefits
have been provided for in the International Union’s
constitution ‘‘as long as anyone could remember.’’ The
benefits are intended to compensate members who
have been discharged for union activities. The pay-
ments here were not gifts, but instead were a normal
incident of union membership.14 The record does not
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
new members, even during the critical period, benefits to which they would
normally be entitled by virtue of their union membership.
15 In this regard, the sacrifice benefits paid here are analogous to the insur-
ance premiums paid by the union in Turnberry Isle Country Club, 253 NLRB
416 (1980), in which the employer ceased to make the contractually required
premium payments on behalf of the employees. The Board found that the
union had not enhanced the employees’ benefits, but had merely enabled the
employees to maintain the status quo. Here, the sacrifice benefits, paid in lieu
of the discharged and suspended employees’ lost earnings, did not even restore
the status quo, and thus clearly were not unreasonable. To similar effect, see
Kux Mfg. Co. v. NLRB, 890 F.2d 804 (6th Cir. 1989) (reasonable union pay-
ments to election observers not objectionable).
16 The Respondent argues that one of the recipients of the sacrifice benefits
claimed, in a conversation in a bar, that employees had been paid money to
help ‘‘get the Union involved in the Company,’’ or ‘‘for being with the
Union.’’ Those statements, if there were such, were made on or about June
5, before the critical period began on June 12, and are therefore
unobjectionable.
In agreeing with the judge that the Respondent’s Objection 1 should be
overruled, we do not rely, as the judge did, on the fact that the sacrifice ben-
efit payments were not made with the intent of inducing employees to vote
for the Union. See Easco Tools, 248 NLRB 700 (1980).
17 The Union requested recognition on June 11. On the basis of a payroll
list dated June 10, the judge found that there were 18 employees in the unit
at the time of the Union’s recognition request, of whom only 6 had signed
cards. However, because we have found that the 16 employees who refused
to sign the employee handbook were unlawfully discharged, and because those
16 were unit members who had signed authorization cards, there were 34 em-
ployees in the unit when the Union requested recognition, of whom 22—a
clear majority—were card signers.
18 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
19 In subsequent cases, the phrase ‘‘meritorious objection’’ has been broadly
defined. See the summary of the case law in White Plains Lincoln Mercury,
288 NLRB 1133 (1988). However, in White Plains and in each of the deci-
sions cited in relevant part therein, id. at 1136–1139, the union had challenged
the validity of the election by filing objections. In this case the Union filed
no objections.
20 We are aware of only one instance in which the Board issued a bar-
gaining order despite the union’s having filed no election objections. In Peo-
ples Gas System, 238 NLRB 1008, 1010–1011 (1978), enf. denied on other
grounds 629 F.2d 35 (D.C. Cir. 1980), the employer initially had been found
to have lawfully withdrawn recognition from the union. Subsequently, how-
ever, the Board reversed itself and found the withdrawal of recognition unlaw-
ful. In an election held in the interim, the union failed to file objections. The
Board nevertheless imposed a bargaining order. It reasoned that the union was
not seeking initial recognition, but instead was trying to recover the recogni-
tion that had unlawfully been withdrawn from it. Moreover, in view of the
Board’s original finding, it would have been futile for the union to have ob-
jected to the election on the basis of the employer’s withdrawal of recognition.
Those reasons for distinguishing Peoples Gas from Irving Air Chute do not
exist here.
We disagree with Member Cracraft that a bargaining order would be appro-
priate if the Union proves to have won the election. The decisions she relies
on all involved unions that had filed meritorious election objections, and there-
fore do not control this case. Contrary to her contention, we do not believe
that the judge’s brief transitional language in Pope Maintenance Corp., 228
NLRB 326, 343 (1977), in which the issue now before us did not arise, is
a compelling basis for concluding that the Board in that case would have im-
posed a bargaining order had the union not filed election objections. Nor do
we see anything anomalous (or onerous) about requiring unions to file election
objections if they wish to preserve the possibility of obtaining bargaining or-
ders. Indeed, Member Cracraft’s proposed treatment of nonobjecting unions
would have the anomalous effect of giving bargaining relief, not to unions
whose organizing efforts had been irreparably damaged by employers’ unfair
labor practices, but only to those who did not need such relief because their
efforts had succeeded in spite of employers’ unlawful actions in the election.
21 Member Cracraft would retain jurisdiction over the case in order to deter-
mine whether a Gissel bargaining order is warranted. While she agrees with
her colleagues that the Union is not entitled to a Gissel bargaining order in
the event that it has lost the election, this conclusion is premised on well-es-
tablished precedent providing that ‘‘[i]n the absence of meritorious objections,
an election is deemed valid; and the union, having failed to demonstrate its
majority status, is obviously not entitled to a Board order compelling the em-
ployer to bargain with it.’’ Bandag, Inc., 225 NLRB 72 (1976), citing Irving
Air Chute, 149 NLRB at 629–630. On the other hand, if the Union has won
the election, under Board precedent it may be entitled to a bargaining order
in addition to a certification of representative. See Regency Manor Nursing
Home, 275 NLRB 1261 fn. 5 (1985); Gordonsville Industries, 252 NLRB 563,
604 (1980), and the cases cited therein. The distinction her colleagues draw
between these cases and the instant case, i.e., that the unions in Regency
Manor and Gordonsville Industries had filed meritorious objections, is a dis-
tinction without meaning. If the union wins the election, there is no certifi-
cation of results to bar the issuance of a bargaining order. Her colleagues’ po-
sition leads to the anomalous result of requiring a union to file objections to
an election it knows it has won in order to receive a Gissel bargaining order
that it is otherwise entitled to. There is no basis in logic or law for imposing
such a requirement. The Board recognized as much in Pope Maintenance
Corp., 228 NLRB 326, 343 (1977), when it adopted the judge’s decision find-
ing that it was necessary to consider the union’s objections only ‘‘[i]n the
event the revised amended tally of ballots shows that the Union did not get
a majority of votes cast.’’
22 Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on
other grounds 512 F.2d 684 (8th Cir. 1975).
indicate that the size of the benefits paid was greater
than the income the employees would have received
had their employment with the Respondent contin-
ued.15 Sacrifice benefits were paid not only before the
critical period that began with the filing of the election
petition, but also were paid after the election in the
case of Michael Rogers and Robert Miller. Under all
of these circumstances, we agree with the judge that
the payment of sacrifice benefits did not interfere with
the conduct of the election.16
4. The General Counsel has excepted to the judge’s
failure to impose a bargaining order based on the
Union’s having obtained authorization cards from a
majority of the unit employees 17 and on the Respond-
ent’s pervasive unfair labor practices.18 We find no
merit to that exception.
The Board, under appropriate circumstances, will af-
ford bargaining relief even to a union that has lost an
election. It will do so, however, only if the election is
set aside on the basis of meritorious objections. Irving
Air Chute Co., 149 NLRB 627, 629–630 (1964), enfd.
350 F.2d 176 (1965).19 In this case, the Union filed no
objections to the election, and all the Respondent’s ob-
jections have been overruled. There is, therefore, no
basis for issuing a Gissel order. Irving Air Chute
stands for the proposition that a party that does not ob-
ject to an election has implicitly agreed to be bound
by its result.20 We see no reason why the Union
should not be bound by the result of the election in
this case, if it does not receive a majority of the valid
votes cast.21
5. In November, after the election, the Respondent
unilaterally, and without bargaining with the Union,
changed the shift hours of the unit employees. Because
he found no basis for imposing a bargaining order, the
judge recommended dismissal of the allegation that the
Respondent’s unilateral change was unlawful. In reach-
ing this result, the judge overlooked the possibility that
the Union may have won the election. If it did, the Re-
spondent’s unilateral change, made during the pend-
ency of election objections, was unlawful.22 Until the
805NTA GRAPHICS
23 Including, of course, the ballots of the employees who were unlawfully
discharged for failing to sign the employee handbooks.
24 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
determinative challenged ballots23 have been counted,
we shall not know whether the Union received a ma-
jority of the votes cast, and thus we cannot rule on
whether the unilateral change was lawful or unlawful.
We shall, therefore, hold that portion of the case in
abeyance, and retain jurisdiction over it, until the Re-
gional Director has counted the challenged ballots and
issued the appropriate certification. When we are in-
formed of the outcome of the election, we shall issue
a supplemental decision on the issue of the unilateral
change in hours.
ORDER
The Respondent, NTA Graphics, Inc., Toledo, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating an invalid no-access rule in the
employees’ handbook.
(b) Announcing an invalid no-solicitation/no-dis-
tribution rule to employees.
(c) Threatening to discipline any employee who vio-
lates an invalid no-solicitation/no-distribution rule.
(d) Threatening to keep the union from representing
the employees for 6 years.
(e) Threatening employees with loss of benefits if
they choose a union.
(f) Creating the impression among employees that
their union activities are under surveillance.
(g) Telling employees that it delayed an NLRB elec-
tion.
(h) Soliciting employees to engage in employee sur-
veillance.
(i) Interrogating employees about their union activity
and that of other employees.
(j) Threatening employees with cancellation of their
health insurance if they select union representation.
(k) Engaging in surveillance of a union meeting.
(l) Threatening employees with lower wages, plant
closure, and harsher disciplinary policy if a union rep-
resented them.
(m) Threatening employees with discharge if they
attend a union meeting.
(n) Indicating the futility of selecting a union.
(o) Coercively informing employees that their
prounion sympathies are traitorous.
(p) Vilifying and coercing an employee by throwing
a union leaflet at him and telling him to stick it up his
ass.
(q) Threatening to cause an employee to quit, by de-
moting him and reducing his wages, if the union is se-
lected as the employees’ bargaining representative.
(r) Discharging or otherwise discriminating against
any employee supporting Graphic Communications
International Union, Detroit-Toledo Local 289, AFL–
CIO–CLC.
(s) In any like or related manner interfering with, re-
straining, 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 from its employee handbook the provi-
sion denying off-duty employees access to its parking
lot.
(b) Offer Bernard Buhr, Neal Davis, Nathan Elfring,
Douglas Filas, David Rarick, Steven Reed, Gerald
Rose, Clayton Russell, John Schultz, James Szachta,
Scott Baker, Steven Lonchyna, Joseph Freeze, Kenneth
Arnold, Michael Coleman, Robert Emerson, and Mi-
chael Rogers immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights and privileges pre-
viously enjoyed.
(c) Make each of the above-named employees whole
for the loss of any pay and any other benefits he may
have suffered as set forth in the remedy section of the
judge’s decision.
(d) Remove from its files any references to the un-
lawful discharges, and notify the employees in writing
that this has been done and that the discharges 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 its facility in Toledo, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’24 Copies of the
notice, on forms provided by the Regional Director for
Region 8, 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.
IT IS FURTHER ORDERED that the challenges to the
ballots of the above-named employees are overruled.
IT IS FURTHER ORDERED that Case 8–RC–13648 is
severed from these proceedings and remanded to the
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director for the purpose of opening and
counting the ballots of the above-named employees, as
well as that of John Jackson, preparing a revised tally
of ballots, and issuing the appropriate certification.
IT IS FURTHER ORDERED that the allegation that the
Respondent unlawfully changed the shift hours of unit
employees is held in abeyance, and jurisdiction of that
issue is retained, pending the Regional Director’s ac-
tions in the representation case.
APPENDIX
NOTICE TO EMPLOYEEES
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.
WE WILL NOT forbid all solicitation or distribution
of materials for the Union.
WE WILL NOT threaten to discipline employees who
do not comply with an unlawful no-solicitation/no-dis-
tribution rule.
WE WILL NOT deny off-duty employees access to
our parking lot.
WE WILL NOT threaten to keep the union from rep-
resenting employees for 6 years.
WE WILL NOT threaten employees with loss of bene-
fits if they choose a union.
WE WILL NOT create the impression among our em-
ployees that their union activities are under surveil-
lance.
WE WILL NOT tell employees that we delayed an
NLRB election.
WE WILL NOT solicit employees to engage in em-
ployee surveillance.
WE WILL NOT interrogate employees about their and
others’ union activity.
WE WILL NOT threaten employees with cancellation
of their health insurance if they select union represen-
tation.
WE WILL NOT engage in surveillance of a union
meeting.
WE WILL NOT threaten employees with lower wages,
plant closure, and harsher disciplinary policy if a union
represents them.
WE WILL NOT threaten employees with discharge if
they attend a union meeting.
WE WILL NOT indicate the futility of selecting a
union.
WE WILL NOT coercively inform employees that
their prounion sympathies are traitorous.
WE WILL NOT throw union leaflets at employees and
tell them to stick them up their ass.
WE WILL NOT threaten to cause an employee to quit,
by demoting him and reducing his wages, if a union
is selected as the employees’ bargaining representative.
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 delete from our employee handbook the
provision denying off-duty employees access to our
parking lot.
WE WILL offer Kenneth Arnold, Michael Baker,
Bernard Buhr, Michael Coleman, Neal Davis, Nathan
Elfring, Robert Emerson, Douglas Filas, Joseph Freeze,
Steven Lonchyna, David Rarick, Steven Reed, Gerald
Rose, Clayton Russell, John Schultz, James Szachta,
and Michael Rogers immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights and privileges pre-
viously enjoyed.
WE WILL make the above-named employees whole,
with interest, for any loss of pay and benefits they may
have suffered as a result of their discriminatory dis-
charges.
WE WILL remove from our files any reference to the
unlawful discharges and notify the employees in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
WE WILL allow employees to distribute union mate-
rials and solicit for the union in nonwork areas when
employees are on nonwork time.
NTA GRAPHICS, INC.
Nancy Recko, Esq., for the General Counsel.
Timothy McCarthy and Patricia Spengler, Esqs. (Shoemaker,
Loop & Kendric), of Toledo, Ohio, for the Respondent.
Samuel McKnight, Esq. (Klimist, McKnight, Sale &
McCloud), of Southfield, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. The consoli-
dated cases were heard in Toledo, Ohio, on August 22, 23,
24, and 25, 1988. Unfair labor practice charges were filed by
Graphic Communications International Union, Detroit-Toledo
Local 289, AFL–CIO–CLC (the Union) against NTA Graph-
ics, Inc. (the Respondent) on June 12 and October 9, 1987,
and February 9, 1988. Supplemental decision and order di-
recting hearing on objections and challenges issued October
22, 1987, and final order consolidating cases and amended
complaint issued March 31, 1988.
The complaint alleges multiple independent 8(a)(1) viola-
tions. It also alleges 18 discriminatory discharges in violation
of Section 8(a)(3). The complaint charges the Respondent
with violations of Section 8(a)(5) of the Act for refusing to
recognize and bargain with the Union as exclusive bargain-
ing representative of all the employees in a unit found appro-
807NTA GRAPHICS
1 All dates refer to 1987 unless otherwise indicated.
2 There are several agreements in the back of the employee handbook, i.e.,
uniform agreement, tool agreement, hearing aide agreement, shoe agreement,
and also an agreement that the employees have read, understand, and will
abide by the company rules. This agreement also contains an ‘‘at will’’ clause
stating, inter alia, that the booklet is not a binding employment contract and
that employees may be terminated at any time.
priate and for unilaterally changing hours of employment.
Also at issue are 2 employer objections and 18 challenged
ballots emanating from the Board conducted election on Sep-
tember 25, 1987.
The parties were afforded an opportunity to be heard, to
call, to examine and cross examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from the parties.
On the entire record and based on my observation of the
witnesses, and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent NTA Graphics, Inc. is an Ohio corporation
with an office and place of business in Toledo, Ohio. Annu-
ally, Respondent, in the course and conduct of its business
operations sells and ships from its Toledo, Ohio facility
products, goods and materials valued in excess of $50,000
directly to points outside the State of Ohio.
The Company admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The 8(a)(1) Violations Attributed to David Tremonti
David Tremonti is operations manager of NTA and an ad-
mitted supervisor.
Several witnesses for counsel for the General Counsel,
namely Neal Davis, Steve Lonchyna, Michael Baker, Gerald
Rose, Joseph Freeze, and James Szachta testified that they at-
tended a company sponsored meeting of all employees in the
lunch room on May 28,1 where David Tremonti distributed
an employee handbook telling the employees to read and
sign it if they agreed with the contents. According to these
witnesses, Tremonti also said that the employees had many
benefits such as safety shoes, uniforms, and health insurance
which were given to them by the Company but if the union
got in, the Company would start negotiations from zero. He
further stated that he knew who the union ringleaders were,
but he did not care; he just did not want employees talking
about the union or distributing union literature on company
property. Neal testified Tremonti said that if he found out
who was distributing union material, action would be taken.
Baker testified that Tremonti said if he found out who the
union ringleaders were, they would be terminated. Szachta
testified that Tremonti said, as he held a union leaflet in his
hand; if he found out who distributed another union leaflet,
he would reprimand or discharge him.
Kenneth Arnold testified that on June 11 when he and
other discharged employees returned to the plant to clean out
their lockers, he overheard Tremonti tell Rick and David
Mossing that before he would allow the discharged employ-
ees to return to work, he would close the plant. Arnold was
standing in line outside the plant gate about a foot from
Tremonti when he heard the remark. Rick Mossing is a
maintenance man and his brother David Mossing operates a
steel shop on NTA property. Tremonti and the Mossings
were inside the fence on company property. William
Ruckreigle testified that on or about September 11, 2 weeks
before the Board election, Tremonti held a meeting of all
employees and told them that he could keep the union out
of the plant for 6 years. He further told employees not to
vote for the union out of sympathy for the discharged em-
ployees because they would not be coming back unless by
court order and if they did come back, they would be laid
off because the Company lost the Foodland account.
Phillip Rogers testified that on October 13, when he re-
ceived a warning from Tremonti for excessive absenteeism,
Tremonti told him that if the union came in, he could demote
Rogers to apprentice and it would take him 4 to 6 years to
get a journeyman’s card. That he could make Rogers quit by
demoting him to jogger at $4 an hour. Tremonti further told
Rogers that he could delay the union coming in for 2 to 4
years and by that time all the employees would have other
jobs and Rogers would be alone with the union. Tremonti
told him he got the NLRB election delayed until 1988 and
that he knew how all the employees voted, that Rogers, Rog-
ers’ brother, Jim Danford, Dave Cortez, Tracy Davis, Bob
Miller, and Bill Ruckreigle voted for the union. He felt that
Tracy Davis had stabbed him in the back.
Rogers finally testified that the Union was holding weekly
meetings after the election and on October 20 Tremonti
asked him if he had gone to the union meetings. Then asked
him if he would report to him what was happening at those
meetings.
Respondent’s Evidence
David Tremonti testified that he held meetings for all em-
ployees on May 28, at which time he explained the contents
of the employee handbook which had been ordered on Feb-
ruary 25 and delivered on May 22. He asked the employees
to review it, sign the agreements2 in the back, and return
them to the Company the following week. He specifically
denied telling employees that they only had to sign the
agreements if they agreed with them. He testified that he
read some of the contents of a company letter to employees
dated May 26, which set forth various company benefits that
the employees receive and how the cost of doing business,
including benefits, has increased. The letter also explains in
detail the disadvantages of joining a union. He told employ-
ees that he did not know who was involved with the union,
did not want to know and did not care. He held up a union
leaflet and said he found it in a working area and if he found
anymore in working areas and who was responsible, he
would reprimand that person. He also told employees that if
the union came in, the Company would start negotiations at
zero. Tremonti testified that the above is all he told the em-
ployees.
Tremonti testified that on June 11 when he was standing
out in front of the plant, he did not say that he would close
the plant before the discharged employees would return to
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work. This denial was supported by employee Rick Mossing
who was standing with him on that day.
Tremonti recalled having a conversation with Phillip Rog-
ers in mid-October when he issued him a written warning for
absenteeism. He was holding a labor agreement in his hand,
and told Rogers that under the labor agreement he would
have to enter an apprentice program which could take up to
4 years to complete and that it would take up to 8 years to
become a journeyman pressman. Tremonti stated that he
never told anyone that he got an NLRB trial postponed. He
merely told enquiring employees that the trial date had been
postponed. He did predict in a note to Supervisor Hollis
Shaffer that when Phillip Rogers was discharged, the trial
would be postponed because another unfair labor practice
charge would be filed.
Rick Mossing and employees Ricky Carter, Paul Cortez,
and John Jackson testified that at the May 28 meeting
Tremonti asked all employees to sign the handbook agree-
ments and turn them in the following week. Mossing stated
that Tremonti told employees that if the union came in bene-
fits and everything would start at zero and be negotiated and
they possibly could lose some benefits. Mossing testified that
Tremonti told employees he did not want union literature
distributed on company time in the press room and he did
not hear anything about discharging union leaders.
Employee David Gates testified that Tremonti told em-
ployees they could distribute union leaflets in the parking lot
or breakroom but not on work time. He heard nothing about
union ringleaders. However, Tremonti mentioned that if the
union came in, the Company would bargain from scratch.
Ricky Carter, Paul Cortez, and John Jackson testified that
Tremonti said he did not want the union but he did not want
to know who was involved. He did not say employees would
lose benefits or that union sympathizers would be dis-
ciplined.
B. The 8(a)(1) Violations Attributed to Scott Shaffer
and Hollis Shaffer
Steve Lonchyna testified that on May 26 and May 27,
Scott Shaffer approached him in the pressroom and said he
heard that Lonchyna was the union ring-leader. Lonchyna de-
nied it. Shaffer then wanted to know if Scott Baker and Joe
Freeze were the ringleaders on the day shift. Lonchyna said
he did not know. Shaffer then told him that he knew who
the ringleaders were on midnight shift. Lonchyna further tes-
tified that on May 29 Shaffer told Scott Baker, Joe Freeze,
and himself that their health insurance was expiring and if
the Union prevailed, it would be canceled and used by the
Company as a bargaining tool. This testimony was supported
by the testimony of Scott Baker and Joe Freeze.
On May 30, the Union held a meeting for all employees
at Comfort Inn. Both Scott and Hollis Shaffer attended the
meeting. Scott Shaffer was asked to leave by regional orga-
nizer Thelma McConnell, which he did. As he was leaving,
Scott Baker heard him tell employees that they better know
what they are doing. Supervisors Randy Purdue and Hollis
Shaffer remained in the meeting up until the time union au-
thorization cards were about to be signed.
On Monday, June 1, which was maintenance day, Scott
Baker testified that Scott Shaffer told the employees they
would be sent home at noon. When they asked why, Shaffer
said, ‘‘You went to the union meeting.’’ Baker asked what
that had to do with anything and Shaffer replied, ‘‘You’re
fucking with the family.’’ On that same day, Shaffer asked
Baker twice who the union ringleaders were.
Joseph Freeze testified that on May 26 Scott Shaffer asked
him if he was going to the union meeting. Shaffer told him
that if the union got in, they would get lower wages and he,
Shaffer would really be a prick and send Freeze home for
more reasons such as web break (paper breaks and press is
down). Freeze testified that on Friday, May 29, Shaffer asked
him if he knew who the union ringleaders were. He accused
Freeze of being a ring leader because Shaffer saw him talk-
ing to Jerry Rose and David Rarick, who were trouble mak-
ers.
Nathan Elfring testified that on May 28 at 8 a.m. Scott
Shaffer said to Hollis Shaffer, ‘‘There’s one of the ring-
leaders.’’ He asked Hollis what Scott meant and Hollis said,
‘‘You don’t know anything about the union?’’ Elfring said
no. Hollis Shaffer then said that if the union got in, they
would just close the doors and move the plant elsewhere.
John Schultz testified that on May 28 Scott Shaffer threw
a union leaflet at him and told him to stick it up his ass.
Robert Miller testified that on September 27 he was in the
locker room with Phillip Rogers when Scott Shaffer entered
and said he heard Miller voted yes and that he had a Bene-
dict Arnold on his hands.
Gerald Rose testified that on May 26 Hollis Shaffer asked
him if he was going to the union meeting. Rose said yes and
Shaffer replied, ‘‘Well, you know, if you go David Tremonti
will fire you.’’ Then Shaffer asked him who the ringleaders
were.
William Ruckreigle testified that he and press operator
John Jackson had a conversation with Hollis Shaffer on
about October 15, wherein Shaffer told them that the union
would be kept out for 6 years.
Respondent’s Evidence
Scott Shaffer admitted interrogating Joe Freeze about who
started the union. During the week of May 25 he told Freeze
that if he kept coming in 10 minutes late, he would have to
give him written warnings instead of verbal warnings. After
he found out about the Union, he told Freeze that if they
worked under union rules he would have to be stricter.
Shaffer testified that on May 28, he did not talk to Nathan
Elfring and he did not tell John Schultz to stick a union leaf-
let up his ass. He had no conversation with him. In the con-
versation with Freeze, Lonchyna, and Baker, on June 1,
Shaffer told them that the medical insurance had expired and
a new policy was under negotiation between Tremonti and
the insurance company. David Tremonti also testified that the
Company’s health insurance contract expired on May 31 and
the company had a 30-day grace period in which to negotiate
a new service agreement with the Toledo health plan. Scott
Shaffer denied ever saying that health insurance was can-
celed because of the Union. He further denied telling Freeze
that he hoped he could find a new job. He stated that he had
no conversation with Robert Miller on September 27.
Hollis Shaffer testified that he had a conversation with
Gerald Rose on May 26 wherein Rose asked him if he knew
anything about the Union. Shaffer replied that he was going
to ask Rose the same question. Shaffer told Rose they were
going about it the wrong way and they were just trying to
shove it up his ass and then said he did not want to talk
809NTA GRAPHICS
about it anymore. Shaffer admitted talking to Nathan Elfring
on May 28, telling Elfring that it would not surprise him if
Tremonti closed the plant if the Union got in. Shaffer further
admitted to a conversation with William Ruckreigle in mid-
October wherein he told Ruckreigle that it would not surprise
him if the Union would be kept out (of the plant) for 6 years
and benefits would be reduced.
Both Scott Shaffer and his brother Hollis admit attending
the union meeting on May 30 with another supervisor, Randy
Purdue. The events took place as described by General
Counsel’s witnesses.
Analysis and Conclusions
I find, based on the demeanor of the witnesses, that David
Tremonti did announce an invalid no-distribution rule at the
May 28 employee meeting. I further find that Tremonti
threatened to discipline any employee who violated the in-
valid no distribution rule. I further find that because many
rank-and-file employees corroborated Tremonti’s denial, that
General Counsel did not prove by a preponderance of the
evidence that Tremonti said he knew who the union ring-
leaders were or that he would discharge them.
I further discredit the uncorroborated testimony of Kenneth
Arnold that Tremonti threatened to close the plant.
Tremonti’s denial was supported by a rank-and-file em-
ployee. I credit the testimony of William Ruckreigle because
he was still employed when he testified and it is supported
by admissions of other supervisors. Accordingly, I find that
Tremonti threatened to keep the union out of the plant for
6 years. However, I do not find a violation in Tremonti’s
statement that discharged employees would only be re-
admitted by court order or that they would be laid off be-
cause he lost the Foodland account. I further find that
Tremonti threatened employees with loss of benefits because
there was simply no general discussion of the negotiating
process and it was stated in the context of other violations.
I credit David Tremonti’s testimony over that of Phillip
Rogers’ testimony with respect to demoting Rogers to ap-
prentice if the Union came in, because I find that Tremonti
was discussing what could occur under a union contract.
However, I will credit the balance of Rogers’ testimony re-
lating to delaying the Union’s representation in the NLRB
election and knowing who voted for the Union. I also credit
Rogers’ testimony relating to the October 20 conversation
wherein Tremonti questioned him about the union meeting
and solicited him to engaged in surveillance. Rogers’ testi-
mony relating to these allegations is not denied.
Scott Shaffer, Hollis Shaffer and Randy Purdue are admit-
ted supervisors. I have credited all the testimony of General
Counsel’s witnesses relating to these supervisors because it
was more believable than the denial’s of the Shaffer brothers.
Moreover, much of General Counsel’s testimony was cor-
roborated and undenied or admitted by the Shaffers. Accord-
ingly, I find that the Shaffers:
(l) Created the impression that employees were under
surveillance.
(2) Interrogated employees concerning their and
other employees’ union activities.
(3) Threatened employees with cancellation of their
health insurance.
(4) Engaged in surveillance of a union meeting.
(5) Threatened employees with lower wages and
harsher disciplinary policy if the union prevailed.
(6) Threatened employees with plant closure if the
union prevailed.
(7) Indicated the futility of selecting a union.
(8) Coercively informed employees that their pro-
union sympathies were traitorous.
(9) Threatened employees with discharge if he at-
tended a union meeting.
(10) Vilified and coerced an employee by throwing
a union leaflet at him and telling him to stick it up his
ass.
C. No-Distribution Rule in Employee Handbook
The employee handbook contains the following rules:
(l) Employees are not permitted to distribute adver-
tising material, handbooks, or printed or written mate-
rial of any kind in production and working areas of the
plant during working hours or when not working.
(2) Employees are not permitted access to the inte-
rior of NTA facilities or other internal or outside work
areas during off duty hours, this includes the parking
lot.
General Counsel contends that these two rules, in conjunc-
tion, effectively prohibited the employees from distributing
any union information and such prohibition is a violation of
Section 8(a)(1) of the Act.
It should be noted that the above rules do not prohibit dis-
tribution of union literature in nonworking areas such as the
lunchroom, the locker room or rest areas. However, these
rules are virtually impossible to interpret given what
Tremonti stated at the May 28 meetings, i.e., that he did not
want employees distributing union literature on company
property. In light of this admonition, I find that the above
rules are overly broad and violate Section 8(a)(1) of the Act.
D. Discharge of 16 Employees for Failure to Sign
Employee Handbook
For several months an employee handbook was being for-
mulated by David Tremonti. The booklet was ordered in
February and because it was being constructed and printed
by in-house employees in their spare time, it was not deliv-
ered until May 22. The handbook was presented to employ-
ees at the May 28 meetings. At this time Tremonti explained
the contents and called their attention to certain agreements
in the book which are explained above in footnote 2. The
‘‘At Will’’ provision, which is part of one agreement, states
that employees are terminable, at will, which is the law in
Ohio. Tremonti testified that he instructed employees to sign
the handbook agreements before returning to work the fol-
lowing week. All the company witnesses testified that they
were instructed to sign the agreements. All General Coun-
sel’s witnesses testified that they were requested to sign the
agreements only if they agreed with them. Three employees
Scott Baker, Steve Lonchyna, and Joe Freeze reported to
work on a skeleton maintenance crew on Monday, June 1,
without signing the agreements. Shift Supervisor Scott
Shaffer told them they would have to sign the agreements or
they could not work. They responded that they were still re-
viewing the language and would not sign. Scott Shaffer sent
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employees home with instructions to sign the agreements
or their employment would be terminated. John Wilhelm and
Timothy Brewer signed the agreements and remained at
work. After this incident Tremonti instructed his secretary to
call all employees and remind them to have the signed agree-
ments when they came to work beginning with the midnight
shift that evening. She testified that she did this.
When the midnight shift reported, 10 employees had not
signed the agreements. Hollis Shaffer asked them if they
were going to sign the agreements and Rose testified that he
said no, they wanted to talk about what they did not agree
with, but nothing specific was mentioned. Hollis Shaffer tes-
tified that all Rose and the other employees complained
about was the ‘‘At Will’’ provision. Tremonti, who was
present, told the employees that all they had to do was sign
the agreements and they could go to work. Gerald Rose and
the others refused to sign and Rose wanted to know whether
he was being fired. If so, he wanted it in writing. Ten em-
ployees, Bernard Buhr, Neal Davis, Nathan Elfring, Douglas
Filas, David Rarick, Steven Reed, Gerald Rose, Clayton Rus-
sell, John Schultz, and James Szachta left the company prem-
ises.
The first shift reported to work on Tuesday, June 2. Baker,
Freeze, Lonchyna, Kenneth Arnold, Michael Coleman, and
Robert Emerson refused to sign the agreements after Scott
Shaffer asked them to. Scott Shaffer instructed the employees
to leave. They refused, stating that they wanted their dis-
charge in writing. Finally, the police were called and es-
corted the employees off company property. Two hours
elapsed from the time the employees were instructed to leave
until they finally departed.
Gerald Rose testified that the discharged employees went
to the plant at midnight on June 2, but the gate was closed.
He asked if he had been discharged and the security guard
said they would be notified of their status by mail.
An emergency union meeting was held at 10 a.m. on June
2, and the employees were advised by the union to sign the
handbook agreements under protest. On June 3, Joe Freeze,
and several employees went to the company gate where
Freeze said they were there to sign the agreements. Accord-
ing to these employees, plant superintendent Frank Skwiera
told them they were on a restricted list and would not be al-
lowed in. Frank Skwiera denied hearing any employees say
they would sign the agreements on June 3.
On June 4 and 6 all the above discharged employees re-
ceived a letter from the Company stating that they had vol-
untarily quit their jobs.
Tremonti testified that the Company had between 50 and
55 employees at the time of this incident and all but the 16
discharged employees signed the handbook agreements and
were allowed to work.
Fifteen of the sixteen discharged employees had attended
the May 30 union meeting and signed union authorization
cards on that date. Robert Emerson signed a union authoriza-
tion card after his discharge on June 2. Between 30 and 35
employees attended the May 30 union meeting.
Gerald Rose was the union’s employee contact and was
very active in the union movement both inside and outside
the plant.
Analysis and Conclusions
General Counsel asserts that the 16 employees were dis-
charged for engaging in protected concerted conduct. Re-
spondent, because of its surveillance of the union meeting on
May 30 knew the employees had concerns over signing the
agreements and based on this knowledge, abruptly switched
its position making the signing a condition of employment,
thus trapping the employees into either signing the agree-
ments or being discharged. She cites no cases in support of
her concerted activity theory. Counsel for Respondent argues
that the employees knew they had to sign the agreements be-
fore the May 30 union meeting and simply refused to do so
because of the ‘‘At Will’’ clause. He further argues that the
employees’ concerted activity was not protected because
their action constituted a refusal to observe the employer’s
right to set work rules and, in effect, insisted that they be
permitted to work on their own terms citing inter alia, Bird
Engineering, 270 NLRB 1415 (1984), and Inner Link Cable
Systems, 285 NLRB 304 (1987).
It must be noted at the outset that there are no allegations
that the issuance of the handbook or the insistence that the
employees sign the agreements violated the Act. There is
also no evidence of disparate treatment since the signing con-
dition applied to all employees. All but 16 of the 55 employ-
ees signed the agreements and were allowed to work. This
includes over half the employees who attended the May 30
union meeting and since there were 27 union card signers;
this also includes 9 card signers who signed the agreements
and were allowed to work.
I credit Respondent’s witnesses when they testified that on
May 28 they were told by Tremonti that they must sign the
agreements, each of which had an employee signature line.
It just does not make any sense to have agreements with em-
ployee signature lines and then make signing voluntary, or
only if the employees agreed with the contents of the em-
ployee handbook. Therefore, I conclude and find, based on
Inner Link Cable Systems and Bird Engineering that the em-
ployees, in refusing to sign the agreements while at the same
time insisting that they had not quit their employment were
not engaged in protected activity. They instead were attempt-
ing to set their own terms of employment and were defying
the employer’s right to operate his business. Moreover, I find
that the employees did not inform the Respondent that it was
willing to sign the agreements after the fact since this testi-
mony only came to light on rebuttal and was denied. How-
ever, I am not persuaded that it would make any difference.
Respondent would be justified in refusing reinstatement since
many employees refused to leave the company premises after
being discharged and required a police escort to remove them
hours later.
Accordingly, since Respondent satisfied its Wright Line,
251 NLRB 1083 (1980), burden of proof and General Coun-
sel did not meet its Wright Line burden, I will recommend
that the allegations pertaining to these 16 employees be dis-
missed.
E. Discharge of Michael Rogers on September 10
Michael Rogers began work for the Company in Novem-
ber 1986. Rogers had first worked in the maintenance area
for a few weeks, then served as a jogger in the pressroom
until the spring of 1987. At that time Rogers asked Tremonti
811NTA GRAPHICS
if he could go to part-time status because he had obtained
a job on a construction project. Tremonti agreed as long as
he worked 15 to 20 hours per week. Rogers was employed
as a part-time janitorial employee. In this capacity he was
permitted to work his own schedule, and had little direct su-
pervision. Rogers was never counseled or reprimanded when
he failed to work 15 hours per week. Rogers attended the
May 30 union meeting and signed a union authorization card.
From April 12 to August 16 he worked 15 hours or more
seven times. His last week he worked 5-3/4 hours. At that
time plant superintendent Frank Skwiera discharged Rogers
because his work was substandard and because the Company
was eliminating part-time help.
In early September, Tremonti rehired Rogers as a full-time
employee on third shift. He worked a full week his first
week back and during this time he told Hollis Shaffer that
the employees needed a union in order to correct the inequi-
ties that existed. Hollis told him that unions were no good
and all they wanted was his money. On Tuesday, September
8, Rogers took sick at work and told Scott Shaffer that he
could not continue working. Shaffer gave him permission to
leave. On Thursday, September 10, Rogers came to work and
handed Scott Shaffer a doctor’s excuse. Shaffer told him it
was no good and fired him. Rogers went to see Tremonti,
who said the same thing. The note Rogers brought Shaffer
is mostly illegible but appears to be notes written on a pa-
tient’s chart. Part of the note reads, ‘‘Need work slip—
dizzy—diarrhea, nauseated started Tuesday.’’
According to Shaffer, Rogers was discharged because of
his poor attendance, because he left work on September 9
and because of the fake doctor’s excuse. Scott Shaffer admit-
ted that he never undertook any investigation of Rogers’ doc-
tor’s excuse. He also admitted not looking at Rogers’ per-
sonnel file before discharging him, nor was he aware that
Rogers had only one warning dated February 23, in his per-
sonnel file. Shaffer further admitted that employees routinely
do not provide doctor’s slips when they are sick and that the
Company has no policy with regard to doctor’s excuses.
David Tremonti admitted that several employees had more
warnings for absenteeism but were not discharged because
they were pressmen and he needed them more than Rogers.
He also stated that he believes in progressive discipline and
that the company written warning notice has space for three
warnings before discharge.
Analysis and Conclusion
I find that Rogers had some union activity and the Re-
spondent was aware of it and that the crucial factor was Rog-
ers’ conversation with Hollis Shaffer after his return to full-
time work in September, just before the NLRB election. I
further find that General Counsel established a prima facie
case and Respondent failed to meet its Wright Line burden
because their whole defense collapsed by their own admis-
sions.
Accordingly, I find that Michael Rogers was discharged
because of his union activities.
F. Discharge of Robert Miller on November 12
When Robert Miller was first employed in November
1986, he informed Respondent that he attended school during
the day. Miller was assigned third shift, which at that time
ran from midnight to 8:30 a.m. Consequently, his work
schedule did not interfere with school. In the early spring,
Miller was transferred to first shift because Hollis Shaffer
said he needed experienced joggers on that shift. When Mil-
ler was transferred to first shift Scott Shaffer was his super-
visor and at that time Miller told Shaffer he would not be
able to work first shift because it was interfering with his at-
tendance at school. After 1 week, Miller was transferred to
another shift. Miller attended the May 30 union meeting and
signed a union authorization card. He also attended the union
meeting held on June 2. Miller testified that he and employee
Phil Rogers were frequent companions who rode to work to-
gether. Prior to the September 25 NLRB election, Miller was
given a bumper sticker reading, ‘‘I Believe Union’’ which he
put on the rear bumper of his car. He parked his car near
the entrance to the plant. Phil Rogers testified that the bump-
er sticker was on Miller’s car shortly before the election and
that Scott Shaffer asked him what he was doing with that
shit on his car. Rogers explained that his father had given
the bumper sticker to Miller. Rogers also testified that Hollis
Shaffer observed the bumper sticker on Miller’s car. Accord-
ing to Rogers, Tremonti frequently called Robert Miller,
Phil’s ‘‘little union buddy.’’ This started shortly before the
election. Shortly after the election, Scott Shaffer approached
Miller and Phil Rogers and said he heard Miller voted yes
and that he had a Benedict Arnold on his hands.
During the week of November 9, Miller was scheduled to
take midterm exams on Thursday and Friday which were
scheduled to start at 8 a.m. During this period, Miller’s shift
hours were from 7 p.m. to 7 a.m.. On Tuesday Miller re-
ported to work at 7 p.m. and was informed by Shaffer that
there had been a shift change and the hours had been
changed to 8 p.m to 8 a.m.. Miller told Shaffer that he could
not work until 8 a.m. because he had exams on Thursday and
Friday. Scott Shaffer said he would talk to Tremonti and get
back to him. Shaffer later told Miller that he could leave
early that day but in the future he had to make other plans
because of the shift change. According to Miller when he left
work on November 11 he told Scott that he would not be
able to work until 8 a.m. the rest of the week. Scott said he
would talk to Tremonti and get back to him. On Thursday,
November 12, Miller left work at 7 a.m. He stated that he
presumed it was alright because Scott never got back to him.
Miller reported to work at 8 p.m. on November 12 and
Tremonti confronted him saying that if he ever walked out
again without permission he would be considered a voluntary
quit. Miller said he would not work until 8 a.m because
exams were more important. Later that evening, Miller was
told by a supervisor named Dale, in the presence of Hollis
Shaffer, that he would have to work until 8 a.m. and Miller
flatly refused. His timecard was punched out and Miller left.
Analysis and Conclusions
I find that Miller was a known union adherent and that
Respondent committed an 8(a)(1) violation against him.
However, I also find that there is no evidence that Respond-
ent changed its work schedule to create a constructive dis-
charge. I find that although Respondent accommodated Mil-
ler by changing his shift, in the spring, and again in Novem-
ber for the 1 day so he could attend school, Miller received
several written warnings for missing work and being late.
These written warnings began long before any union activity.
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On February 23, Rogers received a warning for being absent.
Miller received another written warning on March 24 when
he was absent although he said he would report to work.
Miller received another written warning on April 6 for being
absent. On October 9, he received a written warning because
he said he would be late and never showed. He received an-
other written warning on October 20 when he came to work
2-1/2 hours late. On November 13, Miller flatly refused to
work the scheduled hours.
Although General Counsel made a strong prima facie case,
I find that Respondent satisfied its Wright Line burden with
evidence that it would have discharged Miller, notwith-
standing his union activities. Respondent’s evidence con-
sisted of several written warnings which were caused by
school conflicts and Miller’s flat refusal to work the sched-
uled hours.
Accordingly, I recommend dismissing the allegation relat-
ing to Robert Miller.
G. The Alleged 8(a)(5) Violations
1. Bargaining unit
Although Respondent denied the appropriateness of the
bargaining unit, no evidence was presented in support of its
denial. The unit was fully litigated and a Decision and Direc-
tion of Election was issued by the Regional Director on Au-
gust 19. Respondent’s request for review on the unit issue
was denied by the Board on September 25.
Therefore, I find that the unit set forth below is appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time pressroom employ-
ees employed by the employer at its Toledo, Ohio facil-
ity, excluding all office clerical employees and profes-
sional employees, guards and supervisors as defined in
the act and all other employees.
2. Authorization cards and demand
The Union made a demand for recognition in a letter to
Respondent dated June 11. The demand was received and de-
nied by Respondent’s letter dated June 15. No one disputes
that a proper demand was made.
Twenty-three union authorization cards were signed, dated
and witnessed at the May 30 union meeting. Two union au-
thorization cards were signed, dated, and witnessed on June
2 and 5. Two more union authorization cards were signed
dated and witnessed on June 11 for a total of 27 signed
union authorization cards whose validity and authenticity
were not at issue.
3. Union’s majority status
The Respondent furnished a payroll list, dated June 10,
containing 18 employee names in the appropriate unit. I de-
leted the names of Hollis and Scott Shaffer because of their
supervisory status and added the names of Robert Miller,
jogger in the press department and Michael Rogers who was
a janitor in the press department. Both had signed union au-
thorization cards and were discharged long after the demand.
Thus, there were 18 employees in the unit, 6 of which had
signed union authorization cards. Accordingly, on the date of
the demand and thereafter the union represented 6 of 18 unit
employees and did not represent a majority either then or any
other time material herein.
4. Applicability of a bargaining order
Having found that at no time material herein, did the
Union represent a majority of Respondent’s employees in the
unit found appropriate, I will not recommend the imposition
of a bargaining order and will recommend dismissing this re-
fusal to bargain allegation.
5. Respondent’s unilateral change in working hours
Respondent admits that it changed the shift hours of the
unit employees in November and the evidence is clear that
it did not notify and bargain with the union over this change.
However, since I found that the union did not represent the
employees in the appropriate bargaining unit; I find that Re-
spondent was under no obligation to notify and bargain with
the Union over this change. Accordingly, I recommend dis-
missing this 8(a)(5) allegation.
H. Employer’s Objections to the Election
A petition for election was filed by the Union on June 12
and an election was conducted on September 25. After the
election, the employer filed four objections to the election.
Two objections were overruled by the Regional Director and
evidence was taken on the remaining two objections.
Objection 1 alleges that petitioner paid sums of money to
current and former employees which impaired the employees
free choice in the election.
The evidence established that when the 16 employees were
discharged on June 1 and June 2, the union paid each dis-
charged employee who had become members of the union a
sacrifice benefit of $100 per week. For the first 2 weeks after
their discharge the local paid them an additional $50 per
week until they received their back wages. Again, before the
employees received their unemployment checks the local
paid the employees an additional $50 per week for 4 weeks.
After that the employees received $100 per week from the
International Union. Sacrifice benefits are authorized in the
International’s constitution, article 27, section C, and have
been in existence as long as anyone could remember. Pay-
ment of the sacrifice benefits was also authorized by the
President of the International Union by telegram dated July
1 and a followup letter dated July 15. There was no evidence
that employees were paid any money to induce them to vote
for the union. Accordingly, I shall recommend overruling
Objection 1. Objection 3 asserts that petitioner and his agents
made threats of physical harm to employees who did not
favor unionization.
The evidence offered established that on June 4 employees
David Gates and Gerald Rose got into a fist fight at a local
gas station. Since this employee conduct occurred outside the
critical period, I will recommend overruling this objection.
I. Challenges
A tally of ballots issued after the election shows that ap-
proximately 14 voters were listed as eligible. Thirty-one cast
ballots, of which seven were cast for and five against the pe-
titioner. There were 19 challenge ballots.
The challenge ballot of John Jackson was withdrawn by
the employer. The challenge to Hollis Shaffer will be sus-
813NTA GRAPHICS
tained since he is an admitted supervisor. The challenge bal-
lots of Michael Rogers will be overruled because I have
found him to be discriminatorily discharged. The challenges
to the 16 employees discharged on June 1 and 2 namely,
Kenneth Arnold, Michael Baker, Bernard Buhr, Michael
Coleman, Neal Davis, Nathan Elfring, Robert Emerson,
Douglas Filas, Joseph Freeze, Steven Lochyna, David Rarick,
Steven Reed, Gerald Rose, Clayton Russell, John Schultz,
and James Szachta should be sustained because they were
not employed on the date of the election and were not dis-
charged in violation of the Act.
CONCLUSIONS OF LAW
1. Respondent NTA Graphics, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Graphic Communications International Union, Detroit–
Toledo Local 289, AFL–CIO–CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time pressroom employees
employed by the employer at its Toledo, Ohio facility, ex-
cluding all office clerical employees and professional em-
ployees, guards and supervisors, as defined in the Act, and
all other employees constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. Respondent violated Section 8(a)(1) of the Act by:
(a) Promulgating an invalid no-distribution rule in the em-
ployee’s handbook.
(b) By announcing an invalid no-distribution rule to em-
ployees.
(c) By threatening to keep the union from representing the
employees for 6 years.
(d) Threatening employees with loss of benefits if they
chose a union.
(e) Creating the impression, among employees, that their
union activities are under surveillance.
(f) Telling employees that it delayed an NLRB election.
(g) Soliciting employees to engage in employee surveil-
lance.
(h) Interrogating employees about their and other’s union
activity.
(i) Threatening employees with cancellation of their health
insurance.
(j) Engaging in surveillance of a union meeting.
(k) Threatening employees with lower wages, plant closure
and harsher disciplinary policy if the union represented them.
(l) Threatening employees with discharge if they attended
a union meeting.
(m) Indicating the futility of selecting a union.
(n) Coercively informing employees that there prounion
sympathies are traitorous.
(o) Vilifying and coercing an employee by throwing a
union leaflet at him and telling him to stick it up his ass.
5. Respondent violated Section 8(a)(3) of the Act by dis-
charging Michael Rogers.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
7. All other allegations not mentioned above were not
found to be violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer reinstatement and make whole for any
loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987), and to remove from his files any and all ref-
erence to the discharge and warnings given to him.
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION
On October 31, 1989, I issued a decision entitled NTA
Graphics, Inc., JD– 264–89. On April 4, 1990, the Board re-
manded the case to me for further findings of fact and credi-
bility resolutions.
Paragraph 1 Findings and Conclusions
I find based on the evidence that two issues are involved
in resolving credibility. The first issue is whether as not
Tremonti told employees on May 28 that they must sign the
handbook agreements before returning to work. I resolved
that issue by crediting Respondent’s witnesses for reasons
stated in my decision. The second issue is whether or not
Tremonti on May 28 made signing the agreements a condi-
tion of further employment. A review of the testimony of all
the witnesses including Ricky Carter indicates that notwith-
standing Carter’s testimony, Tremonti did not mention any
penalty on May 28 for failing to sign the agreements. The
evidence supports a finding that employees were first told of
the consequences of not signing on Monday June 1, 1987.
However, the credibility resolution does not change my deci-
sion since establishing a penalty for not signing the agree-
ments is consistent with Respondent’s prior insistence that
they sign, which predated the union meeting. The evidence
indicates and I find that the penalty was triggered when em-
ployees showed up for work on June 1 and told Scott Shaffer
they had not signed or were not going to sign the agree-
ments.
There is in my opinion insufficient evidence to establish
that Respondent promulgated the penalty to force a construc-
tive discharge because the penalty was to be applied evenly
to all employees and, in fact, was. Half the employees (ap-
proximately 17) who attended the May 30 union meeting
signed the handbook agreements and were not discharged.
Moreover, there is no direct evidence of a causal relationship
between events transpiring at the May 30 union meeting and
Respondent’s decision to discharge any employee who re-
fused to sign the agreements. Other evidentiary findings re-
ferred to in the remand do not change the burden of proof
or alter the weight of evidence.
Paragraph 2 Findings and Conclusions
With respect to Tremonti’s 8(a)(1) violations or May 28,
I credited the testimony of all General Counsel witnesses
listed on page 2 of my decision except where indicated on
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
page 6. I credited the testimony of all the page 2 witnesses
and summarized their testimony regarding loss of benefits
because they said essentially the same thing.
Paragraph 3 Findings and Conclusions
Several witnesses namely Lonchyna, Baker, Rose, and
Freeze testified that on May 28 Tremonti told employees that
he wanted no discussion of the union on company property.
Respondent did not specifically contradict this testimony. Ac-
cordingly, I find that Respondent on May 28 promulgated an
unlawful no solicitation rule in violation of Section 8(a)(1)
of the Act.