T.B.C. Graphics, Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1974

214 N.L.R.B. 1003 (N.L.R.B. 1974)

T B.C. GRAPHICS, INC.
T.B.C. Graphics, Inc. and Michele Rijock . Case 2-
CA-13276
November 15, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On August 28, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 the light of the exceptions and
brief and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as hereafter
modified and hereby orders that the Respondent, T.
B.C. Graphics, Inc., Spring Valley, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order with
the following modifications:
1. Substitute the following paragraph for para-
graph 1(b):
"(b) In any manner maintaining, giving effect to,
or enforcing any rule prohibiting any of its employ-
ees from soliciting any other employees on its prem-
ises during nonworking time to participate in any
protected concerted activity, or in any activities for
or on behalf of any labor organization."
2. Add the following as paragraphs 1(c) and (d),
respectively:
"(c) In any manner maintaining, giving effect to,
or enforcing any rule prohibiting employees from
distributing literature in nonworking areas on non-
working time on behalf of any labor organization or
other matters related to the exercise by employees of
their Section 7 rights.
"(d) In any like or related manner interfering
with, restraining, or coercing any employee in the
exercise of the rights granted to them by Section 7 of
the National Labor Relations Act; to engage in self-
1003
organization; to form, join, or assist labor organiza-
tions; to bargain collectively through a representative
of their own choosing; to act together for collective
bargaining, or other mutual aid or protection; or to
refrain from any and all these things."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
1 No exceptions were taken to the violation findings made by the Admin-
istrative Law Judge We, therefore, adopt them pro forma
The General Counsel has taken exception to the failure of the Adminis-
trative Law Judge to find that the no-distribution part of Respondent's rule
was also invalid We find merit in this exception and conclude, accordingly,
that Respondent's rule unduly prohibits rights of employees to distribute
literature
2 We have modified the Order and notice as requested by the General
Counsel to reflect the additional finding in In I and to more specifically
delineate Respondent's remedial obligations vis-a-vis its employees
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to
introduce testimony and other evidence it has been
decided that we violated the National Labor Rela-
tions Act, as amended, by discharging Michele Ri-
jock for engaging in concerted activities protected by
Section 7 of the National Labor Relations Act, as
amended.
WE WILL offer Michele Rijock her job or, if
her job no longer exists, a substantially equiva-
lent job.
WE WILL restore her seniority and pay her the
backpay she lost because we discharged her.
WE WILL NOT unlawfully discharge any of our
employees for engaging in concerted activities
protected by Section 7 of the National Labor
Relations Act, as amended.
WE WILL NOT maintain, give effect to, or en-
force any rule which prohibits any employee
from soliciting any other employee during non-
working time to participate in any protected
concerted activity or in any activities for or on
behalf of any labor organization.
WE WILL NOT maintain, give effect to, or en-
force any rule which prohibits employees from
distributing literature in nonworking areas on
nonworking time on behalf of any labor organi-
zation or other matters related to the exercise by
employees of their Section 7 rights.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce any of our em-
214 NLRB No. 156
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the exercise of the rights granted to
them by Section 7 of the National Labor Rela-
tions Act:
To engage in self-organization
To form, join, or assist unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection or
To refrain from any and all of these things.
T.B.C. GRAPHICS, INC.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Michele Rijock against T.B.C. Graphics,
Inc., the Respondent herein, on April 9, 1974, was served
on the Respondent on or about April 11, 1974. A com-
plaint and notice of hearing was issued on May 17, 1974.
The complaint charged that the Respondent discharged
Michele Rijock on February 8, 1974, in violation of Section
8(a)(1) of the National Labor Relations Act, as amended,
herein referred to as the Act, because she engaged in con-
certed activity for the purpose of collective bargaining and
mutual aid and protection. The complaint also alleged that
the Respondent maintained an illegal no-solicitation rule.
The Respondent filed a timely answer denying that it
had engaged in any of the unfair labor practices alleged.
The case came on for trial at New York, New York, on
June 20 and 21, 1974. Each party was afforded full oppor-
tunity to be heard, to call, examine, and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All
briefs have been carefully considered.
FINDINGS OF FACT,I CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent, a corporation,
has maintained an office and place of business on South
Main Street, Spring Valley, State of New York, where it is,
and has been at all times material herein, continuously en-
gaged in providing typesetting, art work, and related serv-
ices for the composition of books.
During the past year, which period is representative of
i The facts found herein are based on the record as a whole and the
observation of the witnesses . The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses , and the
teaching of N L R B v Walton Manufacturing Company & Loganville Pants
Co, 369 U S 404, 408 (1962) As to those witnesses testifying in contradic-
tion to the findings herein , their testimony has been discredited , either as
having been in conflict with the testimony of credible witnesses or because
it was in and of itself incredible and unworthy of belief All testimony has
been reviewed and weighed in the light of the entire record No testimony
has been pretermitted
its annual operations generally, Respondent, in the course
and conduct of its business, purchased and caused to be
transported and delivered to its place of business various
art and printing supplies and other goods and materials
valued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and delivered
to its place of business in interstate commerce directly
from States of the United States other than the State in
which it is located.
During the past year, which period is representative of
its annual operations generally, Respondent, in the course
and conduct of its business operations, performed services
valued in excess of $50,000 which were performed in and
for various enterprises located in States other than the
State wherein it is located.
During the past year, which period is representative of
its annual operations generally, Respondent, in the course
and conduct of its business operations, manufactured, sold,
and distributed at its place of business, products valued in
excess of $50,000, which products valued in excess of
$50,000 were shipped from said place of business in inter-
state commerce directly to States of the United States other
than the State in which it is located.
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The No-Solicitation Rule
The General Counsel maintains that the following rule
published in the Respondent's employee manual is on its
face violative of Section 8(a)(1) of the Act:
SOLICITATIONS AND CONTRIBUTIONS
No one . . . TBC employees or outsiders . . . is per-
mitted at any time to circulate within TBC during
working hours or in work areas for the purpose of
soliciting or distributing for products or organizations.
Under certain circumstances, requests for contribu-
tions may be made, but only with the approval of a
supervisor. A reasonable solicitation may be for the
purpose of buying a present for someone in the area
who is leaving, being transferred, or promoted.
The rule clearly prohibits union solicitation during work-
ing hours by employees on their own time or in work areas
on their own time. Moreover, the rule does permit certain
other solicitation during working hours or in work areas.
The Supreme Court has said in N L. R. B. v. Magnavox
Co., 415 U.S. 322 (1974): "So long as the distribution is by
employees to employees and so long as the in-plant solici-
tation is on nonworking time, banning of that solicitation
might seriously dilute § 7 rights."2 and in Campbell Soup
2 In Republic Aviation Corp v N L R B, 324 U S 793, 803 (1945), it was
said (quoting LeTourneau Company of Georgia, 54 NLRB 1253, 1260
(1944)) "[It is therefore ] not within the province of an employer to promul-
gate and enforce a rule prohibiting union solicitation by an employee out-
T.B.C. GRAPHICS, INC.
Company v. N.L.R.B., 380 F.2d 372, 373 (C.A. 5, 1967) it
was said "An employee ... has the right to solicit his
fellow employees during their non-working time even
though the solicitation is during company working hours."3
On the same subject the Board has said in Motorist In-
surance Agency, Inc., 182 NLRB 989 (1970): "As the first
sentences of this rule ['Union activity by employees will be
permitted only during non-work time in non-work areas.']
encompasses within it a prohibition of oral solicitation dur-
ing nonwork time in work areas, it is unlawful absent un-
usual circumstances.... " In Farah Manufacturing Com-
pany, 187 NLRB 601 (1970), the Board said "we agree, that
Respondent unduly restricted the organizational rights of
employees to engage in oral union solicitation by maintain-
ing rules which prohibited all solicitation in any working
area of the plant during nonworking time and which fur-
ther denied employees access to any work area other than
their own during rest periods." See also Avon Convalescent
Center, Inc., 200 NLRB 702 (1972); Inland Shoe Mfg. Co.,
Inc., 211 NLRB No. 142 (1974); FMC Corporation, 211
NLRB No. 113 (1974); Essex International, Inc., 211
NLRB No. 112 (1974). Hence, the Respondent's rule which
on its face prohibits employees from soliciting on their own
time during working hours or in work areas is invalid ab-
sent unusual circumstances which do not exist in this case.
Moreover, the rule is also invalid because "An employer
may not enforce a no-solicitation rule against union activi-
ty while, at the same time, permitting substantial solicita-
tion of other types in the plant." William L Bonnell Com-
pany, Inc. v. N.L.R.B., 405 F.2d 593 (C.A.5, 1969). See also
Peyton Packing Company, Inc., 129 NLRB 1275 (1961).
Accordingly the Respondent, by maintaining in effect an
invalid no-solicitation rule, is in violation of Section 8(a)(1)
of the Act.
B. The Discharge of Michele Ryock
Early in January 1974 Plant Manager Anthony Alteno
and Assistant Plant Manager Shirley Dorin called employ-
ees of the art department, proofreader Peter Burlinghoff,
and typositor Lone Moro individually to private meetings
at which each employee was generally "lectured about
work performance and other related matters ." During the
meeting with employee Isolde Wenzel, sometimes referred
to a "Is," Wenzel expressed a desire to give her "side of the
complaints , too." According to Alteno he responded,
"Well, why don't you think , write them down , and you and
Shirley and I can meet at another date and we will discuss
them."
Thereafter Wenzel discussed the composition of a com-
plaint paper , sometimes referred to as a letter or a position
paper, with other employees and it was decided that a let-
ter be composed for the art department incorporating the
art department employees' suggestions . On January 31,
1974, Wenzel , Michele Rijock , and Sheila Demme gathered
at Wenzel 's home and "took all these suggestions and tried
side of working hours, although on company property "
3 The rule found invalid by the court provided that there could be no
"unauthorized solicitation for contributions, memberships, or sales during
company working hours "
1005
to correlate them into an outline form so that [they] could
make some kind of presentation to Mr. Alteno.... " A
rough draft was prepared and on February 3, 1974, at
lunchtime it was presented to all the employees of the art
department, including Peter Burlinghoff and Vira Setto.
Wenzel read the complaint paper to these assembled em-
ployees who "made their corrections on it." That evening
Wenzel's daughter typed the complaint using Rijock's
typewriter. Thereafter additional Xerox copies were run at
the plant by Wenzel.
The complaint letter was addressed to Mr. Weiner,4 Mr.
Mergenthaler,5 all supervisors, and all department employ-
ees, and was signed "Sincerely, Art Department."
On February 6, 1974, the complaint paper 6 was present-
ed to Alteno by Wenzel and Demme in Alterio's office.?
Wenzel asked Alterio whether they "could distribute these
to Mr. Weiner, Mr. Mergenthaler, all the supervisors of all
the departments." Alterio responded, "Give me a night to
look at it. I'll hold on to it and I'll get back to you."
On February 7, 1974, Wenzel, while passing Alteno in
an aisle , asked him if he had had a chance to look at the
complaint paper. He responded in the negative. On Febru-
ary 8, 1974, as Wenzel was on her way home, she again met
Alterio in an aisle and asked him about the complaint pa-
per and the meeting. He replied, "Oh gee, Is, didn't I get
back to you? We are going to have a meeting on Mon-
day."9 Wenzel then returned to the art department and
obtained copy of the complaint letter from a locker in her
booth and, as she came down the aisle, she announced to
art department employees that a meeting would be held on
Monday. When Wenzel reached Demme's booth she asked
her to distribute the complaint papers to "everybody."
Demme agreed; however, she noted that she was working a
"rush" job. Rijock who was present, said, " . . . I'm work-
ing on a particular job which isn't a rush. I'll hand them
out." Wenzel, who was a part of a car pool, then left the
plant. On her way out, as she had indicated to Rijock and
Demme, she handed a copy of the complaint paper to an
employee in the proofing department. She suggested that
the employee, Emanuel, read it and give it to "Mrs. Jones
when she comes back...... Wenzel had not been told not
to distribute the letter.
Robert Weiner, president of the Respondent
5 Allan J. Mergenthaler, vice president
6 The paper contained both complaints and demands
7 The complaint paper opened with these sentences
We in the Art Department have come together with a common un-
derstanding to improve our relationships with management and all
concerned at TBC , mainly those conditions that exist in our immediate
department
We offer here suggestions to improve, not hinder
We offer these suggestions in full accord with all concerned
These same suggestions are offered after months of frustration, hope,
and good intent which do not satisfy justification of many injustices
which we would like to bring to your attention
There are misunderstandings which we feel should be discussed and cor-
rected on all levels ours included These suggestions are not meant
as an ultimatum but as a step to a format in which the best qualities
and proper results can be met [Emphasis supplied.]
According to Alterio , Wenzel said that "they had a list of things that
were drawn up by a group of people in the art department that they wanted
to share with management about some grievances that they had "
9 Rijock overheard this conversation
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Wenzel left Rijock commenced distributing copies
of the complaint letter throughout the plant. (Each copy
bore a handwritten name or a department name at the
top.) About 10 or 15 minutes were consumed in the distn-
bution.
Among the employees to whom Rijock gave a complaint
paper was Supervisor Vito V. Palazzolo in the printing de-
partment. As Rijock handed the paper to Palazzolo, she
also said, "Read it, and if you want to add anything to it,
please do so."10
On the afternoon of the same day, while Mergenthaler
was in the camera department, he observed a paper lying
on a table. He "picked it up, looked at it, saw it was the
same as [he ] had received from Mr. Alterio on Wednes-
day."[' Mergenthaler then walked into the press area where
Palazzolo showed him a copy of the complaint letter. Ac-
cording to Mergenthaler, Palazzolo told him that Rijock
had given the copy to him and had "indicated to him to list
any other items on there that he would like."12 Thereafter
Mergenthaler went to Rijock's booth and escorted her to
his office.13
Mergenthaler referred Rijock to a section of the employ-
ees' manual entitled "Grief Squared" for reading.14 After
Rijock had read the section, Mergenthaler, holding the
complaint paper in his hand, said, "If you read that and
you understand that, then why did you do this?" Rijock
answered, "Because we are having problems and we want
to work them out." Mergenthaler indicated that he did not
mean that, but meant the distribution of the paper; that
Rijock was not following company policy in that she
should have gone to her supervisor with any problems. Ri-
jock responded that unknowingly she had followed compa-
ny policy because the art department had gone to Alterio
and "as far as [she] knew" he had given permission for the
letter to be passed out. Mergenthaler asked her who told
her that. Upon informing him that it was Wenzel, Mergen-
thaler said, "If that's true, that Is is in the same situation
you are in."
Mergenthaler further observed that Rijock was under-
mining the Company, acting underhandedly, and "hitting
10 Rijock testified that she had told employees, "If they cared to write
anlithmg or add anything on it, they could feel free to do so
i On February 6, 1974, Alterio had handed Mergenthaler a copy of the
complaint letter According to Mergenthaler, Alterio said that "Mrs Wenzel
and Mrs Demme had spoken to him in his production area and had given
him copies of that letter asking them to be given That they would like
to have Mr Weiner and [Mergenthaler] read and look over the suggestions
and grievances, etc "
iz Palazzolo testified that he told Mergenthaler that Rijock said that he
should "read it, and if [he] had anything [he] wanted to add to it, do so "
13 During the conversation which followed Mergenthaler was much agi-
tated and had difficulty controlling his emotions
14 The section provides
GRIEF2
Unhappiness is akin to a contagious disease When untreated, it tends
to spread Please don't be the employee that starts an unhappiness
epidemic by not letting management know of your complaint If you
have problem, complaint, or grievance , we want you to have every
opportunity to be heard To simplify the handling of a grievance, please
take it up first with your supervisor If it cannot be resolved , ask your
supervisor to arrange a meeting with Mr Mergenthaler , TBC Vice-
President
below the belt." Rijock apologized and explained the pur-
poses for composing the letter. Mergenthaler agreed that
there were valid points in the paper but asserted, "some of
the things are downright lies and the rest of them is
nobody's business." Rijock responded that the employees
wanted "to sit down and discuss those things" but that she
did not understand that the paper was "nobody's busi-
ness." She said, "We are coworkers here. If we work to-
gether and we have problems I think we should work them
out together." She added that she thought the rest of the
people wanted to be included in the problems. Mergenthal-
er insisted that "it wasn't their problem and that [Rijock]
had circumvented company policy . . . that he couldn't
have this in his company, that this was not the way to go
about things at T.B.C."15 Rijock was terminated."
In Mergenthaler's testimony before the New York State
Department of Labor Unemployment Insurance Referee
Section, he testified that Rijock broke the rule, Grief
Squared, because "The claimant did not-if she did not or
anybody would not receive what they felt would be a satis-
factory reply, as the procedure indicates here, that the next
thing to do was to ask the supervisor to arrange a meeting
with me."" According to Mergenthaler the rule was bro-
ken when Rijock did not ask to see him. Mergenthaler also
testified that the employer "would like to discourage [em-
ployees] from going to other employees to discuss their
grievances rather than coming to [the employer] directly in
the first instance," and that the employer would rather deal
with individuals.
The employee manual does not cite the violation of
"Grief Squared" as a cause for discharge.18
Prior to leaving the plant Rijock informed Demme of
her discharge. Demme then went to Alterio's office. Mer-
genthaler was there and said that if Demme wanted to dis-
cuss Rijock she should come to his office. This she did and
among other things Mergenthaler said that "it wasn't really
as much the letter he was upset about, it was what Michele
had said when she was handing the letter out," i.e., "that
she had asked the other members of the staff to add their
comments on the back of the letter." "... it was what she
said, not the fact that she had given out the papers. " (Empha-
15 According to Mergenthaler he said to Rijock on this subject, "You've
circumvented procedure and that I can no longer have that type of reaction
and your services are no longer required "
16 Mergenthaler referred to Rijock's adventure as the "straw that broke
the camel's back " Mergenthaler agreed with the General Counsel that this
meant- "the straw that broke the camel's back, at least one of the reasons,
and the primary reason that you discharged Miss Rijock, was that she dis-
tributed this grievance letter and made the comment, 'if you have anything
else to add to it, write it down,' in places other than the art department in
contravention of the Grief Squared Clause contained in the company manu-
al " Mergenthaler also said that he considered Rijock's remarks to the em-
ployees to whom she delivered the letters inflammatory because he " felt she
was going around in a busybody way trying to involve and influence other
people outside the department that she was addressing this to and to which
she brought it to [his ] and the other members of the firm's attention "
17 The question was , "Now, in what respect did claimant break the rule in
question'?"
is At the trial the Respondent claimed that additional elements figured in
Rijock's discharge, i e , poor work performance and distributing the com-
plaint letter on company time As to Rijock's work performance apparently
there was some dissatisfaction , however, as explained by Alterio to Mergen-
thaler, he preferred to "keep her on " The Employer was busy and they
needed additional people and he wanted to see "if possibly we could work it
out"
T.B C. GRAPHICS, INC.
sis supplied.) Mergenthaler also said that Rijock had not
been "following rules and that there was a clause in the
employee manual that indicated that we were supposed to
go to our supervisor with complaints.... "
When Rijock reached home she phoned Wenzel and told
her she had been fired and that Wenzel might be fired too.
Wenzel immediately phoned Mergenthaler and asked him
why he had fired Rijock. He said, "I don't want to have
anybody undermining the company. It was a very divisive
and underhanded act." Wenzel protested the charge and
Mergenthaler replied that if the employee had a grievance
she should have come to him. Wenzel said, "But we did go
to a supervisor." Wenzel added that she did not think it
was "right" and felt that she also should be fired.
On Monday morning , February 11, 1974, Wenzel again
talked with Mergenthaler. Her testimony was as follows:
Well, it was very pleasant and he said-I said that,
you know, "This is a terrible thing and I feel very
badly about the whole thing," and he agreed.
He felt that way, too.
And I said, "Well, am I employed or am I not em-
ployed?"
And he said, "As far as I'm concerned, you are."
And I said that I had handed one of those out to Mrs.
Emanuel, one of the letters to Mrs. Emanuel, and he
said-and I said, "I still take issue with you saying it
was divisive and underhanded. We did not do any-
thing like that and the whole intent was a different
purpose."
And he said, "No, it wasn't that Michele had hand-
ed it out. It was what she had said while she was handing
it out "
And I said, "What did she say?" And Mr. Mergen-
thaler said something to the effect, when she was
handing it out to each person in the department, she
had said, "Add your own comments, whatever you want
to write onto the letter."
And I said, "But I don't see anything wrong." And
he said, "Well, you weren't there. You don't know
what happened."
And I said that was true. And I said, "But I can see
Michele just offhandedly saying that." So he said
something to the effect, "No, it was wrong, and the
company policy is you shouldn't do that." And again he
mentioned the divisiveness, and then we got around to
whether I was still there or not. And he said, "Well, if
you want to still work for this company, you are still
employed, there is no question about it, but we cannot
have this kind of procedure going on."
And I agreed to stay and I left for the day because
I was very upset at that time. [Emphasis supplied.]"
After the discharge of Rijock the employees asked for no
further meetings with the Respondent. As explained by
Demme "the atmosphere wasn 't conducive to any further
talks "
19 Wenzel's credible testimony is set out verbatim since it reveals the true
purpose for Rijock's discharge
Conclusions and Reasons Therefor
1007
"Section 7 guarantees , and § 8(a)(1) protects from em-
ployer interference the rights of employees to engage in
concerted activities... ... N.L.R.B. v. Erie Resistor Corp.,
373 U.S. 221, 233 (1963). Section 7 provides: "Employees
shall have the right to . . . engage in . . . concerted activi-
ties for the purpose of collective bargaining or other mutu-
al aid or protection." Wenzel's involvement of other em-
ployees in the synergic effort of framing and presenting
employee complaints and demands 20 gave rise to concert-
ed activities sheltered by the panoply of Section 7 and pro-
tected by Section 8(a)(1) of the Act. See N.L.R.B. v. Wash-
ington Aluminum Co., 370 U.S. 9(1962); Pacific Electricord
Company v. N.L.R.B., 361 F.2d 310 (C.A. 9, 1966); Hugh
H. Wilson Company v. N.L.R.B., 414 F.2d 1345 (C.A. 3,
1969). The Respondent's employees had a legitimate inter-
est under Section 7 of the Act "to ameliorate both present
and future working conditions," Bob's Casing Crews, Inc. v.
N. L. R. B., 458 F.2d 1301 (C.A. 5, 1972), and "acting con-
certedly in making known their views to management with-
out being discharged for that interest." N.L.R.B. v. Phoenix
Mutual Life Insurance Co., 167 F.2d 983, 988 (C.A. 7,
1948). Rijock as a participant in the group activity of
Respondent's employees was entitled, a fortiori, to the
Act's protection, which not only included her distribution
of the position paper to the Respondent's employees, but
also her solicitation of their comments and suggestions.
These latter activities, in furtherance of the group 's aspira-
tions, were an inseparable part of the group's concerted
activities. Solicitation of other employees for a group cause
is cardinal manifestation of concerted activity. Rijock's ac-
tivity was not unlike that of a union solicitor either seeking
union authorizations or passing out handbills . It was enti-
tled to the same Section 7 and 8(a)(l) protection. More-
over, Rijock's involvement as well as that of other employ-
ees related to a labor dispute 21 which was in the first in-
stance provoked by Alterio's "lecturing" of the art
department employees.
The credible record leaves no room for doubt that the
Respondent fired Rijock because she solicited employee
comments and suggestions while distributing the group's
letter. As noted this activity was protected by Section
8(a)(1) of the Act. Thus, unless the Respondent is excused
by reason of a justifiable defense under the law, it is guilty
of a violation of Section 8(a)(l) of the Act.
The Respondent points to its rule, "Grief Squared."
20 For example, the position letter disclosed
We wish to
A Establish work standards
♦ t t
B Establish monetary standards
♦ ♦
C Suggest grievance panel or personnel dept
I without fear of personalities or gossip suspect
21 See Sec 2(9) of the Act
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, this rule, as interpreted by the Respondent, is
invalid.22 The rule as applied to Rijock restricted employ-
ees to a procedure which allowed the presentation of em-
ployee problems, complaints, or grievances only by the in-
dividual employee. Thus, in essence, it banned concerted
activity in this respect and, as thus construed, contravened
the requirements of Section 7 of the Act. A shop rule which
permits an employer to do that which Section 7 of the Act
prohibits may not be relied upon to justify the discharge of
an employee. See N.L.R.B. v. Washington Aluminum Co.,
supra. Ergo, the Respondent's defense based upon "Grief
Squared" must fail.
Respondent also claimed at the trial that Rijock was dis-
charged for "poor work performance" and because she was
distributing the letter on "work time." As noted above the
credited record reveals that Rijock was fired because of the
comments she offered while distributing the letter to em-
ployees. By Rijock's discharge the Respondent sought to
dissuade employee involvement in the art department's
group activity. Nevertheless, assuming, arguendo, that the
Respondent was motivated by other reasons, since "the
primary reason" related to her comments, i.e., "if you have
anything else to add to it, write it down," which were pro-
tected by Section 7, the discharge was unlawful. A dis-
charge motivated in part by illegal consideration is unlaw-
ful. J. P. Stevens & Co. v. N.L.R.B., 380 F.2d 292, 300
(C.A. 2, 1967); N.L.R.B. v. Great Eastern Color Lithograph-
ic Corp., 309 F.2d 352, 355 (C.A. 2, 1962); N.L.R.B. v.
Whitfield Pickle Company, 374 F.2d 576, 582 (C.A. 5, 1967).
That the Respondent sought to gratify its preference for
dealing with its employees on an individual basis rather
than in a group and for deterring involvement of other
employees in the problems of the art department employ-
ees is also manifested in its failure to reverse its discharge
of Rijock after all the facts were known. Rather, it chose to
enjoy the benefits of stifled concerted activity stemming
from the discharge of Rijock which it must have reason-
ably known would have occurred under the circumstances
disclosed in the record, if Rijock were discharged and not
reemployed. The Respondent's conduct was of such a
character as to discourage concerted activities and tended
to destroy rights protected by Section 7.23 Accordingly, the
Respondent by the discharge of Michele Rijock on Febru-
ary 8, 1974, violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act and it will effec-
tuate the purposes of the Act to exercise jurisdiction herein.
2. By interfering with , restraining, and coercing employ-
ees in the exercise of rights guaranteed them by Section 7
of the Act , the Respondent engaged in unfair labor practic-
es within the meaning of Section 8(a)(l) of the Act.
22 It may be noted the "Grief Squared" rule had been followed in the
presentation of the position letter to Alteno However, this was by group
action
23 "In Burnup & Sims the Court held that `the tendency' of the employer's
conduct 'to weaken or destroy' rights protected by § 7 is the controlling
standard for determining a violation of § 8(a)(I) " N L R B v Hudson
Transit Lines, 429 F 2d 1223 (C A 3, 1973)
3. By unlawfully discharging Michele Rijock on Febru-
ary 8, 1974, the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. It having
been found that the Respondent unlawfully discharged Mi-
chele Rijock and thereby violated Section 8(a)(1) of the
Act, it is recommended that the Respondent remedy such
unlawful conduct. It is recommended in accordance with
Board policy 24 that the Respondent offer Michele Rljock
immediate and full reinstatement to her former position or,
if such position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of
earnings she may have suffered as a result of the discrimi-
nation against her by payment to her of a sum of money
equal to the amount she would have earned from the date
of her unlawful discharge to the date of an offer of rein-
statement, less net earnings during said period, to be com-
puted on a quarterly basis in the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and including interest at the rate of 6 percent per annum in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following Order:
ORDER25
The Respondent, T.B.C. Graphics, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging concerted activities of its employees by
unlawfully discharging any of its employees for engaging
in concerted activities protected by Section 7 of the Act.
(b) Maintaining in effect an invalid no-solicitation rule.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Michele Rijock immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to her seniority or other rights and privileges, and
make her whole for any loss of pay that she may have
suffered by reason of the Respondent's discrimination
24 See Rushton Company, 158 NLRB, 1731 (1966)
25 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102
48 of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
T.B.C. GRAPHICS, INC.
against her, in accordance with the recommendation set
forth in the section of this Decision entitled "The Recom-
mended Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records, and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Spring Valley, New York, establishment,
copies of the attached notice marked "Appendix ."26 Copies
26 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
1009
of said notice , on forms provided by the Regional Director
for Region 2, after being duly signed by Respondent's rep-
resentative , shall be posted by it immediately upon receipt
thereof , and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered , defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order , what steps
the Respondent has taken to comply herewith.
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 "