Publishers Printing Co.

National Labor Relations Board - Board Decisions

Jun 23, 1995

317 N.L.R.B. 933 (N.L.R.B. 1995)

933
317 NLRB No. 132
PUBLISHERS PRINTING CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall modify par. 1(b) of the judge’s recommended Order so
that it conforms to the violations found. In addition, we shall modify
par. 2(b) of the judge’s recommended Order to order the Respondent
to rescind the unlawful portion of its ‘‘Statement on Unionism’’ and
to advise employees in writing that it has been rescinded. See, e.g.,
Ford Motor Co., 315 NLRB 609, 616 (1994). Finally, we shall also
substitute a new notice so that it conforms to the Order as modified.
Publishers Printing Co., Inc. and General Drivers,
Warehousemen and Helpers, Local Union No.
89, an affiliate of the International Brother-
hood of Teamsters, AFL–CIO. Case 9–CA–
31638–1
June 23, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On April 3, 1995, Administrative Law Judge Rich-
ard A. Scully issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pub-
lishers Printing Co., Inc., Shepherdsville, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Maintaining a rule in its employee handbook
that is overbroad and discriminatorily prohibits union
solicitation.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Rescind the last two full sentences of the sec-
tion of its employee handbook entitled ‘Statement on
Unionism’ and advise employees in writing that those
sentences have been rescinded.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT instruct our employees through the
employee handbook or otherwise to inform manage-
ment of the identity of union solicitors whose activities
they subjectively perceive as offensive.
WE WILL NOT maintain rules in our employee hand-
book that are overbroad or that discriminatorily pro-
hibit union solicitation.
WE WILL NOT create the impression that our em-
ployees’ union activities are under surveillance.
WE WILL NOT coercively question you about your
union support or activities or those of other employees.
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 rescind the last two full sentences of the
section of our employee handbook entitled ‘‘Statement
on Unionism’’ and we will advise you in writing that
those sentences have been rescinded.
PUBLISHERS PRINTING CO., INC.
Donald Becher, Esq., for the General Counsel.
David B. Sandler, Esq., of Louisville, Kentucky, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On a
charge filed on March 3, 1994, by General Drivers, Ware-
housemen and Helpers, Local Union No. 89, an affiliate of
the International Brotherhood of Teamsters, AFL–CIO (the
Union) the Regional Director for Region 9 of the National
Labor Relations Board (the Board) issued a complaint and
amended complaint on May 12 and October 17, 1994, re-
spectively, alleging that Publishers Printing Co., Inc. (the Re-
spondent) committed certain violations of Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). The Re-
spondent filed timely answers denying that it has committed
any violation of the Act.
A hearing was held at Shepherdsville, Kentucky, on No-
vember 15, 1994, at which all parties were given a full op-
portunity to participate, to examine and cross-examine wit-
nesses, and to present other evidence and argument. Briefs
submitted on behalf of the General Counsel and the Re-
spondent have been given due consideration. On the entire
record and from my observation of the demeanor of the wit-
nesses, I make the following
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Willamette Industries, 306 NLRB 1010 fn. 2 (1992); Our
Way, Inc., 268 NLRB 394, 395 (1983).
2 Hereinafter, all dates are in 1994 unless otherwise indicated.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
engaged in the business of printing and distributing maga-
zines at facilities in Shepherdsville and Lebanon Junction,
Kentucky.
During the 12-month period preceding October 17, 1994,
the Respondent, in conducting its business operations, sold
and shipped from its Shepherdsville, Kentucky facility goods
valued in excess of $50,000 directly to points outside the
Commonwealth of Kentucky. The Respondent admits, and I
find, that at all times material it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Section 8(a)(1)
1. Handbook statement concerning union organizing
activities
The handbook that all employees are issued at the start of
their employment contains a section entitled ‘‘Statement on
Unionism’’ in which the Respondent states that it operates a
nonunion plant and that it intends to operate its business so
that its employees ‘‘will never feel it necessary to belong to
a union.’’ The handbook section concludes with the follow-
ing statement:
Also, if anybody should at any time cause any of our
employees any trouble at work or put them under any
sort of pressure to join a Union, our employees should
let the Company know about it and we will see that this
is stopped. Everyone should also know that no person
will be allowed to carry on Union Organizing activities
on the job and that anyone who does so and thereby
neglects his or her own work or interferes with the
work of others will be subject to serious disciplinary
action.
The General Counsel contends that this handbook provi-
sion interferes with employees’ rights in violation of Section
8(a)(1) of the Act because (1) it is overly broad and includes
within its prohibition lawful attempts by union supporters to
persuade other employees to engage in such support; (2) the
prohibition of union solicitation ‘‘on the job’’ is overly broad
and could reasonably be construed to prohibit such solicita-
tion during nonworktime; and (3) on its face, the prohibition
applies only to ‘‘union’’ solicitation and permits other types.
The Respondent contends that the provision is not coercive
because (1) it offers assistance only to employees who feel
coerced by other employees or a union and not by the Com-
pany; (2) it should be clear that it applies only to union ac-
tivities that cause employees to neglect their own work or
interfere with the work of others; and (3) another handbook
section, entitled ‘‘Solicitation Rules and Bulletin Boards’’
contains a provision prohibiting solicitations of any kind for
any purpose during ‘‘working time,’’ which makes it clear
that employees should not engage in union solicitations of
other employees at times when they or the other employees
should be working.
Analysis and conclusions
The overall language of the ‘‘Statement on Unionism’’
provision is very similar to and the above-quoted portion,
which is alleged to be unlawful, is nearly identical to that
considered by the Board and found to be unlawful in both
C.O.W. Industries, 276 NLRB 960 (1985), and J. H. Block
& Co., 247 NLRB 262 (1980). As the Board stated in
C.O.W. Industries, the rule in issue had the ‘‘potential dual
effect of encouraging employees to report the identity of
union solicitors who in any way approach employees in a
manner subjectively offensive to the solicited employees and
of correspondingly discouraging union solicitors in their pro-
tected organizational activities.’’ The same is true here.
In C.O.W. Industries, the Board also found the portion of
the rule prohibiting carrying on union organizational activi-
ties on the job was invalid on its face because it was directed
solely against union solicitation, but found it was unneces-
sary to determine whether the ‘‘on the job’’ limitation was
overly broard and impermissible. Here, the Respondent con-
tends that another portion of the handbook, which states that
‘‘there shall be no solicitations of any kind for any purpose
carried on during working time,’’ clears up any confusion in-
volved in the prohibition against union organizing. While
that rule appears to be facially valid,1 I do not agree that it
resolves the matter. The rule under attack here is directed
only to union organizing. It appears on page 11 of the hand-
book in a section entitled ‘‘Statement on Unionism’’ and
states that violations of the rule will ‘‘be subject to serious
disciplinary action.’’ The section dealing with solicitations
during working time is found on page 38 and the language
is significantly different from that dealing with union orga-
nizing. Not only is the prohibition against solicitations lim-
ited to those during working time, which is defined as ‘‘ex-
cluding break periods, meal times, or other specified non-
work periods,’’ but there is no threat of serious disciplinary
action if a violation occurs. I find there is no reasonable
basis to believe that employees would conclude that these
two handbook sections must or should be read together or
that ‘‘on the job’’ and ‘‘working time’’ must or should be
considered synonymous. Accordingly, I find that the rule
prohibiting union organizing on the job is invalid on its face
and that by continuing to maintain it in its employee hand-
book, the Respondent violated Section 8(a)(1) of the Act.
2. Impression of surveillance
The complaint alleges that the Respondent violated Section
8(a)(1) on February 8, 1994,2 when a supervisor asked an
employee to give him a union authorization card. On Feb-
ruary 4, a group of employees, including Scott Maynard, met
with Union Representative Timothy Thompson in Louisville,
Kentucky, to discuss an organizing campaign at the Respond-
ent’s Shepherdsville plant. At that meeting, Maynard signed
935PUBLISHERS PRINTING CO.
3 While it is true that Hopkins’ testimony about the length of the
conversation, that it lasted anywhere from 3 or 4 minutes, 7 minutes,
or 10 minutes, clearly establishes that he has no idea how long it
lasted, I do not consider that this diminishes his credibility as to
what he overheard. He testified that he only listened to the conversa-
tion for 30 seconds to a minute before going about his work. May-
nard testified that the exchange with Sturgeon lasted only about 30
seconds.
a union authorization card and was furnished with additional
cards and pamphlets for distribution to other employees.
Maynard credibly testified that he began soliciting employees
to sign cards before and after work and during breaks at the
plant and after work at a gas station next to the plant. He
distributed 30 to 35 cards, 80 to 90 percent of which were
returned to him and turned over to Thompson.
Maynard testified that about a week after he began solicit-
ing employees to sign cards he was approached by Super-
visor Wayne Sturgeon while he was on a break and was talk-
ing to employees Chris Hopkins and Mark Wilcher at the
Weldetron machine where they were working. Sturgeon came
over and said to Maynard, ‘‘I want one.’’ Maynard asked
what he wanted and Sturgeon said ‘‘I want a card.’’ May-
nard asked what kind of card and Sturgeon replied, ‘‘I want
a union card.’’ When Maynard did not respond, Sturgeon
said, ‘‘It’s not like I didn’t have one in my hands before.’’
Maynard said he didn’t have any and Sturgeon walked away.
Hopkins testified that he recalled an incident during February
when Maynard, who was on his break, was at the machine
he and Wilcher were setting up. Sturgeon came up and asked
Maynard for a card. When Maynard said that he didn’t have
any cards, Sturgeon again asked for a card and said that he
had seen them before. Hopkins said that he did not hear the
word ‘‘union’’ used, but that he did not hear all of the con-
versation, only about 30 seconds of it, as he was moving
around the machine getting ready to take his break. Wilcher
testified that while he, Maynard, and Hopkins were standing
by the Weldetron machine talking, Sturgeon came over to
them and asked Maynard for a union card. Maynard asked
what he was talking about and Sturgeon said it wasn’t as if
he had never had one in his hand before. Wayne Sturgeon
testified that he never had a conversation in which he asked
Maynard for either a card or a union card. He said he had
never seen Maynard with a union card and was never told
that Maynard had union cards or was involved with the
Union.
Analysis and conclusions
An employer creates an unlawful impression of surveil-
lance in violation of Section 8(a)(1) if ‘‘employees would
reasonably assume from the statement in question that their
union activities have been placed under surveillance.’’ United
Charter Service, 306 NLRB 150 (1992). There is no evi-
dence that Maynard openly distributed cards to the employ-
ees he solicited on behalf of the Union or that he informed
Sturgeon or any other supervisor about what he was doing.
Consequently, if Sturgeon asked him for a union card a short
time later, it would be reasonable for him to assume that
Sturgeon knew that he had been soliciting cards and that his
activities had been under surveillance.
I find the evidence establishes that Sturgeon did ask May-
nard for a union card when he was standing by the
Weldetron machine talking to Hopkins and Wilcher while on
an afternoon break during the second week of February. I
found the testimony of Maynard, Hopkins, and Wilcher
about this incident to be credible and mutually corroborative.
I also find that the minor differences in their versions of
what occurred enhance rather than detract from their credibil-
ity and that there is no merit to the laborious attack mounted
in the Respondent’s brief on their testimony or the contention
that it amounts to three inconsistent versions of a ‘‘con-
cocted’’ story. On the contrary, if they had fabricated the in-
cident, one would expect their versions to be practically
identical, particularly, with respect to Sturgeon asking for a
‘‘union card.’’
Not surprisingly, Maynard, who had been involved in so-
liciting cards and to whom Sturgeon’s comments were di-
rected, had the most detailed recollection of the incident. The
fact that he did not relate the incident in the exact same
words each time he was asked about it does not, as the Re-
spondent contends, indicate he was not telling the truth. I
find that the minor differences in what were essentially simi-
lar descriptions of what happened and what was said by Stur-
geon and himself cast no significant doubt on the credibility
of his testimony about this incident. There is nothing in the
testimony of Hopkins or Wilcher that is in any way incon-
sistent with or contradicts Maynard’s testimony about what
was said. Their testimony was less detailed, as might be ex-
pected, when they were asked 7 months later to recount a
conversation that they had observed but were not directly in-
volved in while working. Hopkins readily admitted that he
did not hear the word ‘‘union’’ used during the conversation
between Sturgeon and Maynard. He also testified that he
only heard the first part of the conversation and that more
was said after he moved away from the machine.3 His testi-
mony was consistent with that of Maynard that Sturgeon first
asked for a card and, when Maynard demurred, said he want-
ed ‘‘a union card.’’ Wilcher’s testimony, which confirmed
that Sturgeon did ask for ‘‘a union card,’’ did not purport
to be a verbatim account of the conversation.
Having observed the demeanor of these witnesses and con-
sidered the content of their testimony about this incident, I
found that testimony more credible than that of Sturgeon
which consisted almost entirely of monosyllabic answers to
leading questions posed by the Respondent’s counsel. I also
find it significant that not only were both Hopkins and
Wilcher still employed by the Respondent at the time they
testified, but Sturgeon was then Wilcher’s immediate super-
visor. Under these circumstances, I find it unlikely that either
would testify untruthfully. See Stanford Realty Associates,
306 NLRB 1061, 1064 (1992); K-Mart Corp., 268 NLRB
246, 250 (1983); Shop-Rite Supermarket, 231 NLRB 500,
505 fn. 22 (1961). I find that Sturgeon’s comments to May-
nard created the impression that his union activities were
under surveillance in violation of Section 8(a)(1) of the Act.
Lucky 7 Limousine, 312 NLRB 770, 771 (1993); Leather
Center, 308 NLRB 16, 27–28 (1992).
3. Interrogation
Former employee Robert Conner testified that on February
14 he observed his supervisor Wayne Sturgeon giving roses
to two female sorters who were working on the machine to
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Sturgeon gave the roses as a St. Valentine’s Day gift to all the
female sorters and a secretary in his office.
5 There is no record evidence to support the Respondent’s claim
that Conner was ‘‘smiling and smirking’’ throughout cross-examina-
tion by its counsel. When counsel suggested this on the record at
the hearing, Conner denied it. I found nothing in his demeanor to
suggest that he did not take these proceedings seriously or which de-
tracted from his credibility.
which Conner was assigned that day.4 As he did so, Sturgeon
asked them if they had heard anything about a union in their
area. When they did not respond, he told them if they did
‘‘hear anything about it,’’ to let him or someone in manage-
ment know about it. The complaint alleges that this was an
unlawful interrogation in violation of Section 8(a)(1). Stur-
geon testified that he did not ask these women if they knew
anything about union activities.
Analysis and conclusions
I credit Conner’s testimony and find that this incident oc-
curred as he described it. I do not find the fact that Conner
was fired by the Respondent or the fact that the Union filed
a charge with the Board alleging that he was discriminatorily
discharged, which was later withdrawn, without more, are
sufficient to discredit his otherwise believeable testimony.5
Unlike the case of the incident involving Maynard, discussed
above, Sturgeon did not deny the incident occurred. Instead
of describing what was said in his own words, however, his
testimony again consisted of little more than a series of nega-
tive answers to leading questions posed by the Respondent’s
counsel. I find it is entitled to little weight. Conner’s testi-
mony was more credible and that there is no reason to be-
lieve that he harbors hostility against the Respondent to the
extent that he would commit perjury in a case which would
afford him no direct benefit. Both counsel for the General
Counsel and for the Respondent contend that a negative in-
ference should be drawn from the other’s failure to call as
witnesses the two women to whom Sturgeon directed his
questioning. I do not agree. Although they would obviously
have direct and pertinent knowledge bearing on this disputed
factual issue, given the Respondent’s antiunion philosophy, it
cannot reasonably be assumed that they would be favorably
disposed toward the Union, on whose charge the complaint
was based. As for the Respondent, it did not learn of their
identities until after the beginning of what was a 1-day hear-
ing, there was no evidence that they were still employed by
it, and there was no basis on which to assume that they
would be favorably disposed toward it to the extent that an
unfavorable inference would be warranted. Under these cir-
cumstances, I decline to draw an unfavorable inference
against either side. International Automated Machines, 285
NLRB 1122, 1123 (1987).
Having found that the testimony of Conner establishes that
the incident occurred as he described it, the question remains
whether it constituted a violation of the Act. All the cir-
cumstances surrounding the incident must be considered in
order to determine if it was unlawfully coercive under the
standards of the Board’s decision in Rossmore House, 269
NLRB 1176, 1177–1178 (1984). There is no evidence that
either of the women was an open supporter of the Union or
that either introduced the subject of a union in the conversa-
tion. Sturgeon made no threats or promises to the women
during the conversation; however, that is not essential for a
violation of the Act to occur. Advo System, 297 NLRB 926,
933 (1990). While the incident began as a friendly, generous
act of gift giving on Sturgeon’s part, it was followed by an
inquiry about the possibility of union activity on the part of
the Respondent’s employees and his statement that they
should tell him or other members of management if they
learned of any such activities, which had no purpose other
than to get them to inform on the protected activities of their
coworkers. Sturgeon’s action went beyond even the Respond-
ent’s employee handbook provision concerning employees
who felt offended by union solicitations, which was found
herein to be unlawful. He sought out these employees, ques-
tioned them concerning their knowledge of union activity,
and told them they they should report any such activity, not
limiting it to that which they might find subjectively offen-
sive. I find that Sturgeon’s interrogation would reasonably
tend to coerce and interfere with these employees’ rights for
the same reasons that the handbook provision would. It had
the potential dual effect of encouraging them to inform on
other employees who engaged in lawful protected activities,
while discouraging them from engaging in such activities.
Accordingly, I find that this constituted an unlawful interro-
gation in violation of Section 8(a)(1).
B. Section 8(a)(3) and (1)
The complaint alleges that the Respondent issued a dis-
ciplinary warning to Scott Maynard on February 14 and dis-
charged him on February 26 in order to retaliate against him
for engaging in protected activity in support of the Union
and to discourage other employees from doing so. The Re-
spondent contends that the warning and discharge of May-
nard were not discriminatory and were based on good cause.
It contends that the warning was issued after Maynard left
work at the end of his shift leaving behind a number of
unrepaired magazines (referred to as ‘‘books’’) that he was
responsible for fixing and that he was discharged for leaving
work at the end of his shift on February 25 without correct-
ing an error involving the number of rows of books in loads
placed on skids which he had caused and which he had been
specifically directed to correct by his supervisor.
1. The warning issued to Maynard on February 14
Maynard testified that after the incident in which Sturgeon
asked him for a union card, he noticed that Second-Shift
Plant Superintendent Kelly Reeser seemed to be in his area
more often observing his work and that Plant Superintendent
Walt Deersing, who rarely came into his area previously,
would be there two or three times a week standing with
Reeser observing him. During 1994, Maynard’s position was
assistant operator on a Perfect Binder machine. Maynard tes-
tified that on February 15, during the middle of his shift, he
was taken to an office by Supervisor Kevin Hodge, who in-
formed him he was being given a verbal warning for leaving
a stack of books unrepaired at the end of his shift on the pre-
vious night. He told Hodge that there had been a crew from
Lebanon Junction working on the machine until 10:30 that
night and when they left there had been a mess to clean up.
He cleaned up until the end of his shift but did not get to
about 25 or 30 books that needed to be repaired. Despite his
explanation, Hodge gave him the warning which had already
937PUBLISHERS PRINTING CO.
6 Although Sturgeon was a low-level supervisor, the evidence con-
cerning the interrogation of the two women employees supports the
inference that he was interested in finding out if there was union ac-
tivity going on in the plant and that he would have imparted any
knowledge he had to his superiors. Except for Sturgeon, none of the
supervisory employees who testified concerning their actions in this
matter specifically denied having knowledge of Maynard’s union ac-
tivities at the time those actions were taken.
7 Similarly, I do not find the generalized testimony by Wilcher,
that one shift may have to fix the ‘‘screw-ups’’ of another shift as
often as twice a month, sufficient to establish that such ‘‘screw-ups’’
were comparable to Maynard’s failure to complete his assigned work
on February 9 or that the Respondent commonly condoned such con-
duct. From all that appears, Maynard made no arrangements to see
that the unrepaired books he left behind would be taken care of by
the next crew. He simply walked off and left them.
been prepared before their meeting started. He was required
to sign the warning but was not given a copy. When he
asked for a copy during his break, Hodge said he had been
told not to give him one. Maynard testifed that, ordinarily,
the operator who ran the Perfect Binder on the following
shift would have repaired the books he left behind and that
he has done similar small things for other operators.
Analysis and conclusions
The evidence establishes that the incidents on which the
Respondent based the disciplinary actions against Maynard
did occur and are not pretexts; consequently, the legality of
those actions depends on its motivation. In cases where the
employer’s motivation is in issue, its actions must be ana-
lyzed in accordance with the test outlined by the Board in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Under Wright Line, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision. Once that has been done, the burden shifts to the
Respondent to demonstrate that it would have taken the same
action even in the absence of protected activity on the part
of its employees.
I find that the General Counsel has made such a prima
facie showing here. Direct evidence of unlawful motivation
is difficult to obtain and is not essential. Circumstantial evi-
dence and the inferences drawn therefrom may be relied on
to establish motivation. Abbey’s Transportation Services, 284
NLRB 698, 701 (1987); NLRB v. Pete’s Pic-Pac Super-
markets, 707 F.2d 236, 240 (6th Cir. 1983). There is clear
evidence of the Respondent’s union animus in the record,
consisting of the violations of Section 8(a)(1) found here,
which occurred at about the same time as these disciplinary
actions, and the Respondent’s opposition to union representa-
tion of its employees, as stated in its employee handbook and
its labor policy statement entitled, ‘‘The Open Shop at Pub-
lishers Printing Company, Inc.,’’ both of which are distrib-
uted to all employees. See NLRB v. Vemco, Inc., 989 F.2d
1468, 1477 (6th Cir. 1993).
The evidence shows that Maynard was an active supporter
of the Union who attended union meetings, signed a union
authorization card, and solicited employees to sign cards at
or near the Respondent’s plant, beginning in early February.
He obtained approximately 30 signed cards before his dis-
charge. As discussed above, the evidence supports the infer-
ence that Supervisor Wayne Sturgeon was aware of
Maynard’s solicitation of cards for the Union. His knowledge
of Maynard’s union activity is imputed to the Respondent.6
There must be a nexus between the disciplinary actions in
question and the employer’s animus, which must be ‘‘strong
enough to support a conclusion that the Respondent was will-
ing to violate the law, by discriminating against its employ-
ees, in order to keep the Union out.’’ Raysel-IDE, Inc., 284
NLRB 879, 880 (1987). The Respondent contends that this
is disproved by evidence that during the spring of 1994 Su-
pervisor Steve Sahloff was informed by employee Mark
Wilcher that he was a supporter of the Union and had tried
to get it into the plant, shortly before Wilcher was accused
of harassment by a coworker. Notwithstanding that knowl-
edge on the Respondent’s part, no adverse action was taken
against Wilcher, thus, proving it would not discriminate
against its employees because of their union activity. I do not
find that conclusion follows for three reasons. First, ‘‘it is
well established that a discriminatory motive, otherwise es-
tablished, is not disproved by an employer’s proof that it did
not weed out all union adherents.’’ Nachman Corp. v. NLRB,
337 F.2d 421, 424 (7th Cir. 1964). Second, by the time this
accusation was made against Wilcher, the charge in this mat-
ter had already been filed and investigated by the Board.
Third, at that point, it may well have felt no additional action
was necessary to keep the Union out. I find the evidence
concerning animus in this record is strong enough to warrant
the inference that it would violate the Act in order to keep
a union out, as it has in the past. See Publisher’s Printing
Co., 233 NLRB 1070 (1977).
I find that the evidence is sufficient to establish a nexus
between the Respondent’s animus and its actions against
Maynard. The timing of an employer’s actions can be per-
suasive evidence of its motivation. Limestone Apparel Corp.,
255 NLRB 722, 736 (1981). Here, the warning and subse-
quent discharge of Maynard, who was employed by the Re-
spondent for over 3 years, occurred within a 3-week period
after he began soliciting union authorization cards from em-
ployees. Considering all the foregoing, I find it is sufficient
to establish a prima facie showing that the Respondent had
knowledge of Maynard’s union support and activity and that
the disciplinary actions it took against him were the result of
its union animus.
I also find that the Respondent has carried the burden
under Wright Line, supra, of establishing that it would have
taken the same disciplinary action against Maynard even in
the absence of union activity on his part. The record shows
that all new employees are given an instruction sheet which
provides, inter alia, ‘‘If you fall behind on your work, you
are responsible to stay over and catch it up.’’ It also shows
that the operating procedures for operators and crew in effect
at the time provides, inter alia, ‘‘Each shift repairs their own
bad books.’’ I do not find the testimony of Maynard, that it
was not uncommon for operators on different shifts to do
small things for each other, is sufficient to establish that his
failure to finish repairing all of his books before he left work
on the night of February 9 was not a violation of the work
rules or that such violations were commonly condoned by
the Respondent.7
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Maynard’s story about a crew from Lebanon Junction working on
his machine that night provided no basis for excusing his failure to
complete his work.
9 Alberts admitted she does not like the Union. After considering
her demeanor and testimony as a whole, I find no reason not to
credit her testimony.
10 The record does not show whether Sturgeon was aware of
Sahloff’s dissatisfaction with Maynard’s job performance or their
meeting about it on January 6. There was some evidence that part
of Maynard’s problem was that he was spending time assisting
Wilcher, who was under Sturgeon’s supervision, on the Weldetron
machine that Maynard had previously operated when he was sup-
posed to be working on the Perfect Binder.
Maynard’s testimony concerning the warning was not
credible and in any event offered no real excuse for his fail-
ure to complete his assigned work. It appears that, although
his work was not done at 11 p.m., the normal quitting time,
he simply left without finishing it or making arrangements
for someone else to do it. He said he was called in by Hodge
the following day and given a warning that had already been
written up before he was asked for an explanation. If that
were true, it might indicate an unlawful motive behind the
warning. The Board has considered an employer’s failure to
conduct a fair investigation and to give employees the oppor-
tunity to explain their actions before imposing disciplinary
action to be significant factors in findings of discriminatory
motivation. E.g., Burger King Corp., 279 NLRB 227, 239
(1986); Syncro Corp., 234 NLRB 550, 551 (1978); Firestone
Textile Co., 203 NLRB 89, 95 (1973). That, however, was
not the case here. Sahloff credibly testified that, after the
shift had ended on February 9, he came on Tony Waldridge,
the operator of the Perfect Binder on Maynard’s shift, work-
ing on the repair books. Waldridge complained that Maynard
had left behind a mess that he had to stay over and clean
it up. Sahloff directed Hodge to talk with Maynard the next
day and find out what happened. After he did so and re-
ported back, Sahloff determined that the warning should be
issued.8 I find that the Respondent did investigate this inci-
dent and gave Maynard a chance to explain his conduct be-
fore the warning was issued. That explains why the warning
was not issued until February 14, 5 days after the incident,
and not on the following day, as Maynard claimed.
I also find the evidence fails to establish that Maynard was
being closely watched after the incident with Sturgeon. I
found Maynard’s testimony, that Supervisors Reeser and
Deersing seemed to be around his area more often than be-
fore and were watching him, too vague to establish that he
was under surveillance by the Respondent. I did not believe
his testimony that his sister-in-law Pam Alberts, who works
in the Respondent’s office, asked him about union activity
and told him he was on a list, which was obviously meant
to support the contention that he was singled out because of
his union activities. Alberts credibly testified that after she
had heard a rumor from another employee that Maynard was
trying to get a union in the plant, she ‘‘confronted’’ him
about it and asked him if it were true.9 There is no evidence
that anyone from management spoke to Alberts concerning
Maynard or was responsible for her confronting him about
being involved with the Union. While I credit the testimony
of Wilcher that, about a couple of weeks prior to Maynard’s
discharge, Sturgeon told him he thought Supervisors Hodge
and Sahloff were ‘‘screwing’’ Maynard, it is not clear what
he was referring to or meant. Sturgeon did not refer to
Maynard’s union activity. Given the approximate date of the
comment, he was apparently referring to the written warning
of February 14. The fact that Sturgeon, who at that time was
not Maynard’s supervisor, may have felt the warning was un-
justified, without more, does not establish that it was unwar-
ranted or discriminatory.10
While, as noted above, the timing of the warning creates
an inference that it was related to his union activity, the evi-
dence shows that it was Maynard’s poor job performance
that resulted in the warning being issued and that the proxim-
ity to his union activity was coincidental. There is undisputed
evidence showing that he had been criticized about his per-
formance since being assigned to the Perfect Binder machine.
On January 6, before his union activity began, he was called
to a meeting with Sahloff and Hodge to discuss what they
described as his inconsistent performance and lack of moti-
vation while on that job and the possibility of his being re-
moved from that machine. Maynard asked for the oppor-
tunity to continue on the machine, but a month later he was
in trouble again. The January 6 meeting is referenced in the
warning issued for the incident on February 9, which was
characterized therein as another example of his unacceptable
job performance. I find that the Respondent’s action in
issuing this warning was not unlawfully motivated and that
it would have been issued even if Maynard were not engaged
in union activity. I shall recommend that this complaint alle-
gation be dismissed.
2. The termination of Maynard
Maynard testified that during his shift on February 25, he
misread the directions for the books being run on his ma-
chine which resulted in 10 layers of magazines being put on
the loads instead of 9 layers. He discovered the mistake dur-
ing the shift and informed Supervisor Steve Sahloff. Sahloff
told him do what he could to correct it by 11 p.m. When
he said it was almost 11, Sahloff said, ‘‘just do it.’’ He did
what he could to correct the error until 11, then left at the
end of his scheduled shift expecting that the crew on the fol-
lowing shift would take care of it. When he arrived at work
the following day, he was taken to the office where Super-
visors Sahloff and Gordon Schaney were present. He had a
tape recorder concealed in the pocket of his overalls and re-
corded the meeting. He said that he had the recorder because,
on February 25, Pam Alberts had asked him if he knew any-
thing about union activities and told him to watch out be-
cause his name was on a list.
The recording of the meeting shows that Schaney asked
him about the problem the previous night and if he was sup-
posed to correct it. Maynard said he was told to do what he
could by 11 o’clock. Schaney asked why he did not stay on
to help get it corrected and Maynard responded that he had
a load of wood to deliver and the person wasn’t going to
stay up all night waiting for him. He also said that he was
not asked to stay over to correct the problem. Schaney told
him it was expected of him and that it was his responsibility
to correct it. He referred to the prior incident concerning the
unrepaired books and said that Maynard’s record showed
‘‘about four write-ups for those type of problems in the last
939PUBLISHERS PRINTING CO.
11 It also appears that he was subject to discharge under rule 23
of the handbook. He had been suspended for 3 days in April 1993
for failing to follow orders or procedures and the punishment for a
second similar offense within 12 months is termination.
year and a half or so,’’ which indicated he did not want to
accept responsibility. Schaney said that he was going to re-
lieve him of the responsibility by terminating him and the
meeting ended.
Analysis and conclusions
For the reasons discussed above, I find that the evidence
is sufficient to support an inference that Maynard was dis-
charged because of his union activity and support. I also find
that his termination was the result of his own misconduct and
would have occurred in the absence of union activity on his
part. Sahloff credibly testified that about 10:45 p.m. on Feb-
ruary 25, he learned that Maynard had made a mistake in the
number of loads from third-shift operator Ricky Martin, not
from Maynard, as the latter claimed. Sahloff went to May-
nard asked him what had happened and told him he had to
get the loads back to the machine and the problem corrected.
Maynard responded that he did not have time to do it before
the end of the shift. Sahloff said that he did not care, that
he should go and get the forklift driver to get the loads back
to the machine and that ‘‘it had to be corrected.’’ When he
returned from his rounds a minute or two after 11 p.m., he
found that the problem had not been corrected and that May-
nard had left the plant. Contrary to the testimony of May-
nard, Sahloff said that he did not tell Maynard to do what
he could by 11, but specifically told him to get the problem
corrected. He reported the incident to Bindery Superintendent
Gordon Schaney the next morning and returned to the plant
later in the day to discuss the matter with Personnel Director
Larry Hileman.
Schaney testified that after he learned about this incident
from Sahloff, he had him return to the plant to tell Hileman
about it in person so there would be no miscommunication.
After hearing that Maynard had walked off the job without
permission and without correcting his mistake and consider-
ing the February 9 incident in which he was warned for leav-
ing without completing his work, Schaney recommended that
he be terminated. Schaney also testified that, although he had
recommended that Maynard be discharged before hearing
from him, if he had learned that Maynard had a good reason
for leaving, such as family emergency, he would have recon-
sidered. When Maynard was asked about the incident on
February 26, he said he left because he had to deliver wood
to somebody. Schaney said that he did not consider that to
be a serious emergency that would justify his leaving without
completing his work. Maynard also said that he did not stay
beyond the end of his shift because no one told him to do
so. Schaney testified that it was Maynard’s responsibility to
complete the job without specifically being told. Hileman
testified that he was aware of the meeting Sahloff had with
Maynard about his job performance on January 6 and the
warning he received on February 9. He was also aware that,
during the previous year, Maynard had been suspended for
3 days for a similar error involving incorrect loads. After
hearing about the February 25 incident from Sahloff, that
Maynard had left without permission without completing a
job that he had been instructed by a supervisor to do, he con-
sidered it insubordination, and concurred in Schaney’s rec-
ommendation that Maynard be terminated.
The credible testimony of Sahloff establishes that Maynard
was told that he had to correct the problem with the loads
before leaving the plant. I did not believe Maynard’s self-
serving testimony that he was told to do what he could by
11 p.m. He left the plant without completing the job and
without telling Sahloff that he was leaving. He did this a lit-
tle over a month after being talked to about his poor per-
formance and lack of motivation on the job and 2 weeks
after being given a formal warning for not completing his as-
signed work. I do not agree with the General Counsel’s con-
tention that this was simply a matter of miscommunication
between supervisor and employee. Sahloff’s directions were
specific about what Maynard was expected to do and May-
nard gave no indication that he did not understand them. He
was clearly on notice that his job performance had been
found to be unacceptable, but he left the plant without com-
pleting the job or getting Sahloff’s permission to do so.
When he was confronted about his conduct by Schaney and
given the opportunity to explain his actions, he not only de-
nied that he was told to correct his error before leaving but
clearly indicated that he felt his obligation to deliver wood
was more important than his responsibility for completing his
assigned work. An employer is entitled to take disciplinary
action when warranted against erring employees, even promi-
nent union supporters, so long as its actions are nondiscrim-
inatory and for sufficient cause. Advertisers Mfg. Co., 275
NLRB 100, 133 (1985). Under the circumstances, I find that
the Respondent had sufficient cause to terminate Maynard
and would have done so even had he not been involved in
union activity.
I find that the record does not support a finding that May-
nard was treated unfairly or the victim of disparate treatment.
This was not simply a matter of an employee leaving work
early or failing to work overtime. Here, Maynard was given
a specific order to correct his own mistake. He not only did
not follow these orders, he walked off the job and left the
problem to be corrected by others. The testimony of
Hileman, who approved the decision to terminate Maynard,
establishes that he considered Maynard’s actions to constitute
insubordination, which according to the employee handbook
rule 10 is punishable by immediate discharge.11 The record
contains several documents taken from employee personnel
files which the General Counsel contends establish that there
were employees who received lesser punishment for greater
offenses than Maynard. I find that these documents alone are
insufficient to establish that any of the employees involved
had work records comparable to Maynard’s or that the situa-
tions which resulted in disciplinary action being taken were
comparable to his. Basing a finding of disparate treatment on
this evidence would be pure speculation. I shall recommend
that this allegation be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Publishers Printing Co., Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Maintaining a rule in its employee handbook concern-
ing union solicitation which is discriminatory and which en-
courages employees to report to management the identity of
union solicitors.
(b) Creating the impression that the union activities of its
employees are under surveillance.
(c) Coercively interrogating employees about union activi-
ties and encouraging them to report such activities to mem-
bers of management.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The Respondent did not engage in the unfair labor prac-
tices alleged in the complaint not specifically found herein.
THE REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Publishers Printing Co., Inc., Shepherds-
ville, Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discouraging employees from engaging in union activi-
ties by maintaining a rule in its employee handbook or other-
wise encouraging employees to inform the Respondent of the
identity of any union solicitors whose activities they subjec-
tively perceive as offensive.
(b) Maintaining a rule in its employee handbook which
discriminatorily prohibits union solicitation.
(c) Creating the impression that its employees’ union ac-
tivities are under surveillance.
(d) Coercively interrogating employees about their union
activities or those of other employees.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Correct the provisions of the section of its employee
handbook entitled ‘‘Statement on Unionism’’ to conform
with the directives set forth above.
(b) Post at its facilities in Shepherdsville and Lebanon
Junction, Kentucky, copies of the attached notice marked
‘‘Appendix.’’13 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent 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 Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found here.