Publishers Offset, Inc.

National Labor Relations Board - Board DecisionsAug 25, 1976

225 N.L.R.B. 1045 (N.L.R.B. 1976)

PUBLISHERS ' OFFSET, INC. Publishers' Offset , Inc. and International Printing and Graphic Communications Union . Case 21-CA- 13371 August 25, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On December 30, 1975, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Re- spondent filed cross-exceptions and a supporting brief. The General Counsel also filed a brief in an- swer to Respondent's cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. We agree with the Administrative Law Judge that Respondent, through its general manager, Ac- hord, unlawfully interrogated employee Nancy Wal- die concerning the union activities of her fellow em- ployees by asking her, on January 28, 1975,2 whether union cards were being distributed in the composing room. We also find, on facts found by the Adminis- trative Law Judge but from which he failed to draw legal conclusions, that Achord's statement to Waldie that he suspected employee Jeanette Cochran of cir- culating union authorization cards created the im- pression of surveillance of employees' union activi- ties in violation of Section 8(a)(1) of the Act, as alleged in the complaint. This statement conveyed to Waldie the unmistakable impression that Respon- dent was maintaining surveillance of employees who were soliciting signatures for union authorization cards.' We also agree with the Administrative Law Judge, for the reasons stated by him, that, in laying off Press II employees Stephen DeLong, Manuel Gonzales, i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge R is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find that no basis exists for reversing his findings 2 All dates are in 1975 3 Stephens Manufacturing Co, Inc, 196 NLRB 47 (1972) 1045 and David Johnson, Respondent's production man- ager, Trousch, unlawfully threatened them with loss of recall unless they refrained from engaging in pro- union activity when he said, "if you guys will only go along with us, you'll be alright and you'll probably get your job [sic] back in a couple of weeks, and if you don't, you'll lose." We disagree, however, with the Administrative Law Judge's finding that Respondent did not violate Section 8(a)(1) of the Act when, on January 29, Trousch asked DeLong whether any union organiz- ers had been in contact with employees at Press II, a fact that DeLong, in answering, readily acknowl- edged. The Administrative Law Judge erroneously did not find this inquiry unlawful because DeLong was not asked whether he or other employees were involved in union activities. We find the suggested distinction to be meaningless. Whether directed to union activities in general or at DeLong's or others' personal involvement in the union organizational drive, the interrogation was not made for a permissi- ble purpose and was not accompanied by assurances against reprisals.4 Furthermore, it called for an an- swer which encompassed the union activities of De- Long and his fellow employees.5 Accordingly, we find the violation as alleged. Likewise, we find, contrary to the Administrative Law Judge, that Foreman Salyer's questioning of em- ployee Brad Marlowe on February 13 constituted unlawful interrogation. On that date, Marlowe en- gaged in a conversation at the plant with laid-off em- ployees Robert and Kathleen Lewis. After the con- versation had ended and the Lewises had left, Salyer approached Marlowe and asked him whether R. Lewis had said anything to him about the Union, to which the former replied negatively. Salyer then asked Marlowe whether he had seen what was writ- ten on the walls in the pressmen's toilet facilities, in- dicating that he (Salyer) thought R. Lewis had done it. The Administrative Law Judge did not find any violation in this incident because he viewed Salyer's conduct as an attempt to discover the author of cer- tain prounion graffiti on the wall of the pressmen's toilet facilities rather than an inquiry as to any employee's union activities. We disagree. We see no connection between Salyer's asking Marlowe wheth- er a recently laid-off employee had discussed union activity with him and his further questioning about R. Lewis' being responsible for graffiti written on the walls of the lavatory. Obviously, the two subject mat- ters are totally unrelated. Hence, we conclude that, in questioning Marlowe, Salyer was in fact concerned with whether R. Lewis had tried to solicit support for the Union. That being the case, we find the interro- 4 Webb Tractor and Equipment Company, 167 NLRB 383 (1967) 5Abex Corporation-Engineered Products Division, 162 NLRB 328 (1966) 225 NLRB No. 149 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation to be coercive and in violation of Section 8(a)(1) of the Act.6 2. Respondent operates two plants designated as Press I and Press II. The main facility is Press I with 21 employees; Press II is leased and has a smaller work force of 3 to 4 employees. On February 1, 3 to 4 days after union supporters began to solicit em- ployees to sign union authorization cards, Respon- dent laid off Press I employees Pascarellf, R. Lewis, Richards, and Sills. Respondent also laid off the full- time Press II work force consisting of DeLong, John- son, and Gonzales and notified K. Lewis, wife of R. Lewis and a part-time jobber at Press II, that no fur- ther work would be assigned to her.' Despite the fact that the layoffs took their greatest toll among the employees who had solicited and/or signed union authorization cards,' the Administrative Law Judge found, as urged by Respondent, that the layoffs were economically motivated and therefore did not violate the Act. We find, however, for the reasons that fol- low, that the evidence supports a contrary conclu- sion. The record establishes, and the Administrative Law Judge found, that, on January 28, the Union be- gan its organizational drive with a meeting attended by employees DeLong, Gonzales, Pascarelli, and Robert and Kathleen Lewis, all of whom signed au- thorization cards and took additional cards to dis- tribute to other employees. Following the meeting, DeLong went to work and, in the presence of Press II Foreman Hawkins, solicited employee Johnson's sig- nature to a card. The next day, Pascarelli and R. Lewis openly solicited employees, including Sills, to sign authorization cards in the presence of other su- pervisors. Pascarellf also solicited Press I Foreman Milts to sign a card. Meanwhile, Respondent's general manager, Ac- hord, learned of the employees' union activity on January 28 when employee Wirges informed him that Pascarellf was distributing authorization cards for the Union. In response to that information, Ac- hord immediately called a meeting of all department managers and informed them that a union campaign was underway. As described previously he then called employee Waldie into his office where he coer- cively interrogated her about other employees' union activities. During their meeting, he also created the impression that the employees' activities were under the unlawful surveillance of Respondent. The next day, Trousch unlawfully questioned DeLong about 6 Id 7 Respondent also laid off Press I Supervisor Milts and Press 11 Supervi- sor Hawkins 8 No charges were filed concerning the layoffs of Sills and Richards, and their layoffs are not alleged to be in violation of the Act in the complaint While the record establishes that Sills signed an authorization card, the record does not indicate whether or not Richards signed one the union activities at Press II, and on February 1, in telling DeLong, Johnson, and Gonzales of their lay- offs, illegally advised them that they would not be recalled unless they refrained from engaging in fur- ther union activities. In addition, it is uncontroverted in the record, although not found by the Administra- tive Law Judge, that Respondent's general foreman, Rayburn, told Milts that he suspected R. Lewis and Gonzales of distributing authorization cards. The credible evidence establishes, as found by the Administrative Law Judge, that no layoffs had been decided upon prior to the time the union campaign began. Within 2 days of the inception of the Union's organizational efforts, however, Achord and Taxel, his superior,9 met and decided that a layoff, effective February 1, was required, allegedly for economic reasons. We find that by then, January 30, Respon- dent knew that DeLong, Pascarelli, and R. Lewis were distributing union authorization cards and sus- pected Gonzales of doing the same. We also find that it knew that Johnson had signed a card for the Union. As for K. Lewis, in light of her relationship to R. Lewis, a known supporter of the Union, the small size of the pressroom, and Respondent's knowledge that the Union's efforts to organize the other employ- ees employed at Press II were completely successful, we conclude that there is a firm basis for inferring that Respondent at the least suspected her of sup- porting the Union, if in fact it did not know that to be the case,10 We so find. In view of the foregoing, it is clear that all the elements are present for finding that the layoffs of the six alleged discriminatees were motivated sub- stantially by their union activities. Thus, there is the precipitous nature and timing of the layoffs; the se- lection of employees for layoff, most of whom were known adherents of the Union; Respondent's dem- onstrated union animus as evidenced by coercive in- terrogations; the impression of surveillance, and in particular, Trousch's unlawful admonition to the three full-time Press II employees to forego their union activities if they wanted to be recalled; and lastly, our conclusion, for the reasons set forth below, that Respondent's asserted economic defense cannot withstand close scrutiny. For all these reasons, we find, contrary to the Administrative Law Judge, that Respondent laid off the six alleged discriminatees in part, if not entirely, to thwart the Union's budding organizational drive by eliminating from its payroll for various periods of time those employees who it 9 Respondent was controlled by Harte-Hanks, an enterprise based in Tex- as Taxel headed Harte-Hanks ' operations in San Diego , where Respondent is located 10 Consequently, we find no merit to Respondent 's contention that the inclusion among the laid-off employees of K Lewis , whose union sympa- thies purportedly were unknown to it, indicates the absence of a discrimina- tory motive for all of the layoffs PUBLISHERS ' OFFSET, INC 1047 knew were, or were suspected of being, active partici- pants in the nascent union campaign. As noted, we find unpersuasive the evidence pre- sented by Respondent in support of its defense that the layoffs were justified by valid economic consider- ations. Granted, Respondent appears to have experi- enced some decline in business in the latter part of 1974 and the early part of 1975. Nevertheless, we deem it significant that Respondent took no steps to lay off any of its employees until after the com- mencement of the employees' organizational cam- paign on January 28. Thus, in December 1974, it was directed to devise means to reduce costs for the first quarter of 1975, and one of the plans submitted called for a reduction of work force and the closing of Press II. But the latter plan was not then imple- mented, although other cost-saving measures not di- rectly involving Respondent's Press I and Press II operations were instituted. In addition, while Re- spondent experienced a further decline in business on or about January 20, when one of its customers, K-Mart, reduced its orders by one-half, there is no evidence that Respondent contemplated any layoff measures at that time. Indeed, 10 days went by be- fore any decision was made to lay off employees in Press I and II. No explanation in purely economic terms has been offered for this lapse in time between the partial reduction of the K-Mart account and Respondent's acting to compensate for it by deciding to reduce its work force. In contrast, the advent of the Union on the scene and the alleged discrimina- tees' open and active support for it supply an imme- diate and plausible basis for Respondent reaching a decision to lay off the pressroom employees when it did. These events and their proximity to the layoff decision, i.e., within 2 days thereof, strongly imply that the layoffs in question were discriminatorily mo- tivated-an implication which gains further credence when considered in the context of Respondent's other concurrent unfair labor practices. In short, Re- spondent did not display pressing concern over the reduction in its business created by K-Mart's cut- back in orders until the Union made its appearance, at which time the layoffs in question suddenly were deemed an economic necessity. Furthermore, the evidence does not bear out Respondent's assertion that the layoffs were an eco- nomic necessity on February 1. First, the conflicts in the testimony of Taxel and Achord, as to when and why the decline in Respondent's economic fortunes became such as to require a layoff, are irreconcilable and in the end serve to discredit that assertion. In spite of the fact that these two representatives togeth- er made the decision, their versions vary signifi- cantly. Taxel testified that Respondent experienced a general decline in business prior to January 3, and that it was on that date, the third, that he and Ac- hord decided to lay off nine pressroom employees and close Press II. Achord's testimony, however, tied the layoff decision to the reduction in business with K-Mart, which did not happen until January 20, and he fixed the date of that decision as January 30. Achord's version was credited by the Administrative Law Judge, Taxel's was not. But that credibility reso- lution does not explain, nor can it, why the testimony of these two men is so divergent as to suggest that each was talking about a different layoff. Nor does the crediting of Achord in this regard rehabilitate Respondent's economic claims. The deficiency inher- ent in Achord's version of events, i.e., the delay be- tween the economic loss and the decision to lay off employees, has already been exposed above. And had Taxel's testimony been credited instead, this de- ficiency in Respondent's asserted defense would have become all the more pronounced and inexplica- ble. For the anomaly of a layoff occurring almost a month after the decision and the events which osten- sibly precipitated it is self-evident and needs no fur- ther elaboration. Similarly, the reasons given the employees by Trousch in laying them off do not square either with Achord's accepted version or other record facts. Trousch had been assigned the task of selecting the pressroom employees to be laid off. He told them that the economic downturn was due not only to K- Mart's reducing its orders, but also to other custom- ers such as Sears and McMahan cutting back or ter- minating their accounts as well. Trousch did not specify when these other losses occurred; Achord, however, in his testimony concerning the reasons for the layoff drew no connection between it and the Sears or McMahan accounts, and neither the exten- sive documentary evidence relating to Respondent's economic defense nor the statements of any others called to testify herein establish that Respondent in- curred any losses with regard to those two customers. Consequently, we find that Trousch's statements only further serve to make the testimony of Respondent's witnesses the more suspect and uncon- vincing concerning the alleged economic necessity for the layoffs on February 1. Second, contrary to the finding of the Administra- tive Law Judge, the record does not demonstrate that Respondent's economic situation declined after the layoffs through and beyond the first quarter of 1975. The net profits remained essentially unchanged from January through February, and increased by about $7,000 in March, albeit they decreased again in April and May by $14,000 and $5,000, respectively. Like- wise, Respondent's general revenues improved in the first quarter of 1975, from $277,802 in January to $340,678 in March, before going down to $314,583 in 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April, $304,125 in May, and.$254,335 in June. Fur- thermore, the volume of newsprint consumed by Re- spondent in February, March, April, and May sub- stantially increased over that used in January. Finally, in finding that Respondent's economic picture had not improved after February 1 but had remained in a state of deterioration-a finding with which Respondent takes no exception-the Adminis- trative Law Judge appears to have overlooked the fact that, within 3 to 5 months of their layoffs, Re- spondent recalled all of the laid-off employees except DeLong who had moved out of the State. Surely their recall, beginning with Pascarelli's around the middle of May, followed by Gonzales' for I week the latter part of that month, Johnson's in June, R. Lew- is' in late June or early July, and K. Lewis' in July, appears to be inconsistent with Respondent's contin- ued poor business fortunes, particularly at those times. For example, whereas its net profits went up in March, they thereafter decreased substantially in April and May; whereas its general revenues in the months of February, March, April, and May were above those of January; in June, when Johnson was recalled and perhaps R. Lewis, such revenues dropped below January's. And consumption of news- print in June was about the same as in January. Even May's figures in these two areas, while higher in each case than January's, show a substantial decline from March and April, respectively. Thus, the reinstate- ment of the laid-off employees when Respondent's economic outlook was virtually the same as in Janu- ary or again in decline raises the question of how Respondent could afford in May, June, and July what it could not in January and leads us to conclude that the layoffs were made for reasons other than purely economic ones. Consequently, although Respondent may have had some contingency plan to lay off employees and close Press II, and notwithstanding a decline in its business most notably on January 20, we find that Respondent has failed to explain satisfactorily why it did not decide to make any layoffs until January 30, only 2 days after it had learned of the Union's orga- nizational campaign and shortly after it had de- termined the identity of its leading adherents. As pre- viously indicated, the latter events give rise to the inference, which has not been rebutted here, that the presence of the Union and the employees' active sup- port of it triggered their layoffs. In any event, Trousch's warning to three of the laid-off employees to the effect that they would be reinstated only if they abandoned their support for the Union provides direct evidence that union activity was a moving force behind the layoffs and belies Respondent's as- sertion that such were made wholly for economic reasons. For it indicates that Respondent specifically selected these employees for layoff because of their known or presumed roles in the unionization drive. Therefore, we find that whatever part Respon- dent's economic situation might have played in its decision to lay off the six alleged discriminatees the immediate circumstances surrounding the layoffs es- tablish that Respondent was primarily motivated by their organizational activities." Accordingly, we find that Respondent seized upon its economic situation of the preceding 2 months as a means of seeking to effectuate the layoff of leading union adherents,12 and, consequently, their layoffs violated Section 8(a)(3) of the Act. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusions of Law 3, 5, 6, and 8, respectively, in the Administrative Law Judge's Decision: "3. The Company violated Section 8(a)(1) and (3) of the Act in its layoff of DeLong, Gonzales, Johnson, R. Lewis, and Pascarelli on February 1 and its failure to employ K. Lewis as a part-time employee after that date. "5. Achord's remarks to Waldie on January 28,1975, created the impression he was maintaining surveillance of company employees' union activities. "6. Trousch's question to DeLong on January 29 concerning whether union organizers had contacted employees at Press II constituted an unlawful interro- gation of DeLong in violation of Section 8(a)(1) of the Act. "8. Salyer's asking of Marlowe on February 13 whether R. Lewis said anything about the Union consti- tuted an unlawful interrogation of Marlowe concerning his and other employees' union activities and thus violated Section 8(a)(1) of the Act." THE REMEDY In order to effectuate the policies of the Act, it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found above and from any other invasions of its employees' rights under Section 7 of the Act; to take certain affirmative action, 11 In so finding, we have treated Respondent's refusal on February 1 to employ K Lewis as a layoff We do not attach any significance to the absence of any allegation in the complaint concerning the layoff of Sills who had signed a union authori- zation card We are concerned in this proceeding only with the allegations of discrimination against the individuals named in the complaint and our Order is effective only as to those individuals Contrary to the position of Respondent, we find it purely speculative, on the record before us, to de- termine the reason for the absence of any allegations concerning Sills' layoff and, accordingly , we are unable to attach any adverse inference thereto Similarly , we are not disposed to place any great weight on the absence of Richards from the complaint The record does not reveal whether he did or did not engage in union activities , and the issue was not litigated by the parties In these circumstances , that he was or was not laid off has little or no bearing on the question of whether the layoffs in issue were lawful or not PUBLISHERS' OFFSET, INC. 1049 including, to the extent not done so, offering reinstate- ment to Stephen DeLong, Robert Pascarelli, Manuel Gonzales, Robert Lewis, Kathleen Lewis, and David Johnson to their former or substantially equivalent positions of employment without loss of seniority or other rights, as well as the payment of backpay for earnings lost by them as a result of the layoffs and/or the refusal to assign work to them. The amount of backpay to be due them is to be determined in the compliance stage of this proceeding. Backpay shall be computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Publishers' Offset, Inc., San Diego, California, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities or the union activities of other em- ployees, creating the impression of surveillance of the union activities of employees, and making either veiled or direct threats to take economic reprisals against employees unless they refrain from support of the International Printing and Graphic Communi- cations Union, or any other labor organization. (b) Discouraging membership in International Printing and Graphic Communications Union, or any other labor organization, by laying off or other- wise discriminating against any employee with re- spect to hire, tenure, or any other term or condition of employment. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Stephen DeLong, Robert Pascarelli, Manuel Gonzales, Robert Lewis, Kathleen Lewis, and David Johnson to the extent not done so, rein- statement to their former jobs or, if they no longer exist, to substantially equivalent fobs, without preju- dice to their seniority and other rights and privileges, and make them whole in the manner described in the Remedy section of this decision. (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 reports, and all other records necessary to analyze the amount of backpay due. (c) Post at its premises copies of the attached no- tice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees con- cerning the activities of other employees on behalf of International Printing Graphic Com- munications Union, or any other labor organization. WE WILL NOT, either by implication or directly, threaten our employees with economic reprisal unless they refrain from support of the above or any other labor organization. WE WILL NOT create the impression of surveil- lance of the union activities of our employees. WE WILL NOT discourage membership in Inter- national Printing and Graphic Communications Union, or any other labor organization, by lay- ing off employees or otherwise discriminating against them because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL offer Stephen DeLong, Robert Pas- carelli, Manuel Gonzales, Robert Lewis, Kath- leen Lewis, and David Johnson, to the extent we have not already done so, full reinstatement to their former jobs and WE WILL make them whole for any wage losses they may have suffered as a result of our discrimination against them. PUBLISHERS' OFFSET, INC. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On August 27, 1975,' I conducted a hearing at San Diego, Cal- ifornia, to hear issues raised by a complaint issued on April 15 pursuant to a charge and amended charge filed by the Union on February 5 and April 14, rrespectively. The complaint alleged that Publishers' Offset, Inc., here- inafter called the Company, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (here- after called the Act), by discharging and failing or refusing to recall six of its employees because they engaged in con- certed activities protected under the Act. The complaint further alleged the Company committed independent vio- lations of Section 8(a)(1) of the Act on Januuary 28 and 29 and February 1 and 13. The Company denied it committed the acts alleged as independent violations of Section 8(a)(1) of the Act; stated it laid off rather than discharged the six employees on Feb- ruary 1 and has since recalled them; and denied it laid the six off for engaging in concerted activities protected under the Act. The issues are whether the Company: 1. Committed the various acts alleged as independent violations of Section 8(a)(1) of the Act and thereby violat- ed the Act. 2. Laid off or terminated six employees for engaging in concerted activities protected under the Act or for cause. 3. Failed or refused to recall the six. The parties appeared by counsel at the hearing, were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record,2 observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find the Company at all times pertinent was an employer en- gaged in commerce and in a business affecting commerce and International Printing and Graphic Communications Union, hereinafter called the Union, was a labor organiza- tion, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At times pertinent to this proceeding, the Company and the San Diego Publishing Company were separate compa- nies controlled by Harte-Hanks Newspapers, headquar- tered in San Antonio, Texas. All printing of the six Harte- ' Read 1975 after all future date references omitting the year 2 Certain errors in the transcript have been noted and corrected Hanks newspapers and printing of certain publications for merchants in the area were performed by the Company at 5060 Convoy Street, San Diego (Press I), and 348 W. Mar- ket Street, San Diego (Press II). Press II was acquired by the Company by lease agree- ment in May 1974 from its former owner, Charles Haw- kins, who operated Press II under the name Western Offset Company. At the time the Company leased Press II from Hawkins, it hired him as general foreman at Press II and also hired Hawkins' employees-Russ Salyer (foreman/ press operator), Robert Lewis (apprentice), and Manuel Gonzales (jobber). The Company later hired David John- son (apprentice) and Stephen DeLong ( assistant press op- erator) at Press II. Prior to the Company's acquisition and operation of Press II, the United Steelworkers Union of America was decertified as the collective-bargaining representative of the Company's pressroom and other employees. B. The Union's Organizational Campaign DeLong contacted the Union in late December 1974, with a view towards securing representation for the Company's pressroom employees. A union representative (William Torrance) suggested DeLong contact other em- ployees to see if they were interested in union representa- tion and, if so, to then meet with him. DeLong contacted a number of employees, ascertained they were interested in union representation, and arranged to meet with Torrance on January 28. The January 28 meeting was attended by Torrance, DeLong, Gonzales, Robert Pascarelli, and Rob- ert and Kathleen Lewis.3 Torrance explained the advan- tages of union representation and asked those attending the meeting to sign cards authorizing the Union to act as their representative for the purpose of bargaining collec- tively with the Company concerning their rates of pay, wages, hours, and working conditions. The five employees in attendance at the meeting signed the cards and gave them to Torrance Torrance then asked the five to take blank authorization cards and secure the signatures of their fellow employees. They agreed to do so and took the cards. DeLong, R. Lewis, and Pascarelli began soliciting signa- tures to the cards the same day and secured the signatures of Johnson, William Sills (a journeyman press operator at Press I), and Michael Milts (a foreman/press operator at Press I). DeLong openly solicited signatures at Press II in the presence of the general foreman, Hawkins; R. Lewis and Pascarelli openly solicited signatures at Press I, includ- ing solicitation of one of the foremen, Milts. C. The Alleged January 28 Violation of Section 8(a)(1) Chester Achord, the Company's general manager,' re- ceived a report from employee John Wirges at approxi- mately 2 p.m. on January 28 that Pascarelli had solicited him to sign a union authorization card and encouraged Wirges not to sign the card. Achord immediately called a meeting of all department managers, told them a union organizational drive was un- 3 Kathleen Lewis was employed at Press II on a part-time basis as a bobber, Pascarelli was employed at Press I as a journeyman press operator 4 An admitted supervisor and agent of the Company acting on its behalf at all time pertinent PUBLISHERS' OFFSET, INC 1051 derway, and passed out a guide for supervisors and manag- ers to follow during a union organizational drive. He told the managers to read and comply with the guide. Achord then called Nancy Waldie, a proofreader, into his office.5 Achord testified he told Waldie union authori- zation cards were being circulated in the plant, it looked like the Company was facing another election, and urged Waldie not to sign a card or support the union organiza- tional drive. Waldie testified Achord asked her if any union authorization cards were being circulated in the composing room, that she replied she did not know of any such circulation, no one had approached her; Achord then stated he thought Jeanette Cochran, a proofreader, was cir- culating the cards; she replied she doubted it, since Coch- ran had never previously been interested in union activi- ties; Achord then stated he didn't want the same thing to happen that happened the last time; and she replied she agreed. I credit Waldie's testimony. She was a direct, forthright witness with a clear recollection of the conversation in question, while Achord's testimony was neither as precise nor direct. I therefore find and conclude that the Company, by Ac- hord, on January 28, interrogated an employee, Waldie, concerning another employee's union activities and there- by violated Section 8(a)(l) of the Act. D. The Alleged January 29 Violation of Section 8(a)(1) DeLong went to Press I on January 29 and solicited em- ployees there to sign union authorization cards; while he was at Press I, he went into offices shared by William Trousch, the Company's postpress production manager, and Paul Rayburn, the Company's general foreman at Press 1.1 Trousch asked him if any union organizers had been in contact with the employees at Press II, to which he replied in the affirmative.7 I find this brief and casual exchange insufficient basis for a finding that Trousch interrogated DeLong concern- ing his and other employees' union activities; Trousch was curious about whether the Union's organizational cam- paign had extended to Press II and merely asked DeLong if a union organizer had been there contacting the employ- ees and not whether DeLong or any other employees were involved in union activities. I therefore shall recommend dismissal of those portions of the complaint alleging Trousch's January 29 questioning of DeLong constituted an unlawful interrogation in viola- tion of Section 8(a)(1) of the Act. E. The Alleged February 1 Violation of Section 8(a)(1) On Saturday, February 1, Trousch met with Johnson, DeLong, and Gonzales after they concluded their work 5 Waldte had been secretary-treasurer and shop steward of the Steelwork- ers Union prior to its 1974 decertification as representative of the Company's employees, following such decertification, Waldie continued to bring employee complaints to Achord for attempted resolution, and he con- ferred with her from time to time regarding personnel problems 6 Both were admitted supervisors and agents of the Company acting on its behalf at all times pertinent r Trousch corroborated DeLong's testimony to this exchange between them shift that day. Trousch began with a comment he presumed they knew why he was there, while handing them their paychecks.' DeLong testified he then asked Trousch why they were being laid off; Trousch replied the Company had lost the Sears and K-Mart accounts and the McMahan run was shaky;9 he then asked Trousch when they would get their jobs back; Trousch replied he didn't know, but the Compa- ny would not contest their receipt of unemployment com- pensation; he then asked Trousch whether they were being laid off because of the union campaign, and while Trousch made no immediate reply, he later stated, "If you guys go along with us, you will probably be all right and get your jobs back in a couple of weeks and if you don't, you'll lose." Johnson corroborated DeLong's testimony that Trousch attributed the layoff to the lost accounts, and testified that when DeLong asked Trousch when they were going to get their jobs back and whether their layoff was due to the union campaign, Trousch replied with advice for them not to do anything to Jeopardize their Jobs. Gonzales corroborated DeLong's testimony almost en- tirely, testifying, with regard to the key remark attributed to Trousch by DeLong, that Trousch said if the employees went along with the Company, they would get their jobs back in a couple of weeks; they would be foolish to fight the Company; and if they went along with the Company, they would be all right. Trousch testified that he explained to the men the layoff was an economic layoff due to the loss of the runs noted heretofore, that he stated he couldn't see any immediate recall, it looked like business activity was going to be slow for some time. He testified he advised the employees the Company would not contest their receipt of unemployment benefits and that he told them he had telephoned almost all the printing firms in San Diego County to see if he could secure work for them but had not been successful . He stat- ed that when some of them expressed their belief the layoff was due to the union campaign, he explained that was not true, it was due to economic conditions. He neither con- firmed nor denied telling the men if they "went along" with the Company, they would get their jobs back in a few weeks and be all right, but would "lose" if they did not. I credit the mutually corroborative testimony of De- Long, Johnson, and Gonzales. I therefore find and con- clude that on Saturday, February 1, Trousch told DeLong, Johnson, and Gonzales that they would probably be all right and get their jobs back in a couple of weeks if they went along with the Company but would lose if they did not go along with the Company. Trousch's remark is somewhat ambiguous, but certainly seems to imply the employees risked loss of recall if they didn't "go along with" the Company. In the context of the previous question (whether their layoff was attributable to the union campaign), I am inclined to find that Trousch B The shift ended at Press II at approximately 6 to 6.30 p in , the Compa- ny had previously laid off R Lewis and Pascarelli at Press I on the comple- tion of their (graveyard) shift K Lewis telephoned DeLong in the morning to tell him about the layoff of the graveyard shift at Press I e These three accounts formed the major portion of the work performed at Press 11 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was conveying a veiled threat the employees would not be recalled if they persisted in seeking union representation. I therefore find aisd conclude that the Company, by Trousch , on February 1, violated Section 8(a)(1) of the Act by threatening its employees with loss of recall unless they refrained from continued union support and activity. F. The Alleged 8(a)(1) and (3) Violation-the February 1 Layoffs The evidence establishes the Company had ample justifi- cation for reducing its work force , and thereby reducing its labor costs, in early 1975. The Texas corporate offices of the Harte-Hanks chain were advising local managements throughout the last quar- ter of 1974 concerning the general dropoff in corporate revenues due to declining business and suggesting the van- ous departments or divisions plan to lower costs. These advisory letters and bulletins from the Texas cor- porate offices culminated in a December 9, 1974, directive to the San Diego divisions and departments from Harte- Hanks president (Robert Marbut) directing the depart- ments or divisions to devise specific measures to reduce costs during the first quarter of 1975 and advise him of their specific plans by December 30. Immediately upon receipt of the directive , the head of the Harte-Hanks San Diego operations , Harold Taxel, had Robert Cairns , his planning director and accountant, sub- mit plans for cost reductions . Cairns proposed , inter alia, a shutdown of Press II and layoff of its work force as well as layoffs in other portions of the Company's operations. On December 13, the management of the various divi- sions and departments in San Diego met and reviewed the budgets for the first quarter of 1975 with a view toward revision thereof . It was decided to advance the dates for rate increases at several of the publications ; to reduce the circulation of one paper ; to change to a cheaper format at another paper; to cancel planned salary /wage increases and increases in fringes ; and to reduce the managerial, pro- duction , and maintenance staff as conditions warranted. Some of the planned reductions in management staff were made in December by attrition; on her resignation in December 1974, the assistant of the general manager was not replaced and the position was abolished ; on the resig- nation of two area supervisors at Press I in December 1974, no replacements were hired and the positions were abol- ished ; on the resignation of the assistant plate/camera foreman at Press I on or about January 1, no replacement was hired and the position was abolished . In addition, the hours of work in the composing room was reduced by 220 hours per week by reducing full-time employees from 40 to 30 or 20 hours per week. As of January 1, Press II was running approximately 40 hours per week . Its major production was printing advertis- ing circulars for major retail chains, that is, Sears Roebuck, K-Mart , McMahans Furniture Company, and Walker- Scott Company . Of the 40 hours per week , 32 were utilized in printing the K-Mart advertising circular. During January , the amount of punting work declined precipitously . The size of the newspapers dropped due to reductions in advertising and other material ; on January 20, K-Mart notified the Company it was going to a biweek- ly printing rather than a weekly printing of its advertising circular and a smaller run; other commercial work also declined. On January 30, Taxel met with Achord and the two de- cided Press I could do all the printing work still being pro- cessed. They decided to implement Cairns' recommenda- tion to shut down Press II and to lay off nine pressroom employees. Trousch was assigned the task of deciding which pressroom employees would be laid off. At that time, there were 5 supervisory employees and 24 nonsupervisory employees in the pressroom. There were 3 nonsupervisory employees and I supervisory employee working at Press II and 21 nonsupervisory employees and 4 supervisory employees working at Press I. Trousch decided to lay off all the employees then em- ployed at Press II; namely, Hawkins (supervisory), De- Long, Johnson, and Gonzales. As a natural consequence, no further work was assigned to K. Lewis, who worked on call at Press II on a part-time basis as a jobber. One super- visory employee at Press I (Milts) and four nonsupervisory employees were laid off at Press I (Sills, Pascarelli, R. Lew- is, and Richards)." DeLong was the junior employee in his classification (as- sistant operator). Pascarelli was the junior employee in his classification (journeyman press operator). R. Lewis, John- son, and Richards were the three junior employees in their classification (apprentice). Sills was the senior employee in his classification (journeyman press operator) and Gon- zales was fifth in seniority (of 11 employees) in his classifi- cation (jobber) Trousch testified he laid off the employees in question in order to make a balanced reduction in the staff and max- imize cost savings. He testified he generally followed se- niority, but did not do so in Gonzales' case, because Gon- zales had always been employed exclusively at Press II, which was shut down, and because he was an unreliable employee (frequent absences, etc.). He testified he laid off Sills out of classification seniority because he thought the second in seniority, Reynolds, was a more efficient em- ployee than the other two.ti The record establishes all the nonsupervisory employees laid off except Richards were signatories to union authori- zation cards prior to their layoff. The record neither estab- lishes whether Richards signed a card nor how many of the retained employees signed authorization cards.12 The record demonstrated the Company's fortunes con- tinued to decline following the layoff through and beyond the first quarter of 1975, both on the basis of the amount of newsprint consumed and the net profits realized during the months in question. 10 Richards was classified as an apprentice and worked as a warehouse- man 11 There were only three journeymen press operators Sills, Reynolds, and Pascarelh The General Counsel did not allege Sills' layoff was discrimina- tory but that Pascarelli's was, even though both Sills and Pascarelh signed union authorization cards 12 From the fact the Union received 18 of the 46 votes cast in a subse- quent election, it is reasonable to surmise employees other than the six alleged discrimmatees, Sills, and Richards signed authorization cards for the Union In any event, the record is inconclusive on this point PUBLISHERS ' OFFSET, INC. 1053 While the timing and selection of employees for layoff appear suspect on their face,13 the economic evidence strongly supports the finding I made at the outset of this section of the Decision; namely, that the Company had ample economic justification for reducing its work force and labor costs and doing so when (January-February) and where (in the pressroom) it did. With reference to employ- ee selection , Trousch's selections appear reasonable (junior employees, with two exceptions, and no complaint by the General Counsel over one of the senior employee/signato- ries, Sills). On the basis of the foregoing, I find and conclude the General Counsel failed to meet his burden of proving, by a preponderance of the evidence, the Company was motivat- ed by the union activities of some of the laid off employees in laying them off. I therefore shall recommend dismissal of those portions of the complaint so alleging. Having so found, I find it unnecessary to resolve the issue of whether or not the Company failed or refused to recall the six alleged discrim- inatees. G. The Alleged February 13 Violation of Section 8(a)(1) Brad Marlowe, an employee in the press/camera room, testified on the evening of February 13, R. and K. Lewis came to Press I and engaged him in conversation and that after they left, Russ Salyer, a foreman in the pressroom at Press I, asked him whether R Lewis said anything to him about the Union, to which he replied no. Marlowe testified Salyer then asked him whether he saw what was written in the pressmen's head, he again replied no, and Salyer closed the conversation with the statement he believed R. Lewis wrote on the walls in the pressmen's head. Marlowe's testimony was uncontradicted and is credited. The General Counsel contends Salyer's first question was an unlawful interrogation concerning Marlowe and other employees' union activities. I do not agree. It is ap- parent something concerning the union campaign was writ- ten on the wall of the pressmen's toilet facilities, Salyer suspected R. Lewis, at that time an exemployee, wrote it and sought verification from Marlowe. It is also apparent that Salyer did not ask Marlowe either his views or the views of any other employees concerning union representa- tion. I therefore shall recommend dismissal of those por- tions of the complaint so alleging. Company; Trousch, the postpress production manager of the Company; Russ Salyer, a foreman at Press I; Paul Rayburn, the Company' s general foreman at Press I; Charles Hawkins, the Company's general foreman at Press II; and Michael Milts, a foreman at Press I, were supervi- sors and agents of the Company acting on its behalf. 3. The Company did not violate Section 8(a)(1) and (3) of the Act in its layoff of DeLong, Gonzales, Johnson, R. Lewis, and Pascarelli on February 1 and its failure to em- ploy K Lewis as a part-time employee after that date. 4. On January 28 the Company, by Achord, violated Section 8(a)(1) of the Act by questioning employee Waldie concerning the union activities of other company employ- ees. 5. Achord's remarks to Waldie on January 28, 1975, did not create the impression he was maintaining a surveillance of company employees' union activities. 6. Trousch's question to DeLong on January 29 con- cerning whether union organizers had contacted employees at Press II did not constitute an unlawful interrogation of DeLong in violation of Section 8(a)(1) of the Act. 7. Trousch's remarks to DeLong, Johnson, and Gon- zales at Press II on February 1 contained a veiled threat they would not be recalled if they continued to support the Union and therefore violated Section 8(a)(1) of the Act. 8. Salyer's asking of Marlowe on February 13 whether R. Lewis said anything about the Union was not an unlaw- ful interrogation of Marlowe concerning his and other em- ployees' union activities and thus did not violate Section 8(a)(1) of the Act. 9. The above unfair labor practices affect interstate commerce as defined in the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connection with the operations of the Company described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent Taxel, the president of the pub- lishing company; Achord, the general manager of the 13 The layoff took place 3-4 days after union supporters began to solicit employees to sign authorizations cards and the layoff took its greatest toll among the pressroom employees who engaged in those solicitations Having found the Company engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend the Company be directed to cease and desist therefrom and take affirmative action designed to effectu- ate the purposes of the Act. It shall be recommended the Company be ordered to cease and desist from interrogating its employees concern- ing the union activities of other employees, to cease and desist from threatening them with economic reprisal unless they refrain from support of the Union, and to post notices to that effect. [Recommended Order omitted from publication.]