Petition for Writ of Certiorari — Middle Earth Graphics, Inc. v. National Labor Relations Board
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UNITED STATES
October Term 1989
MIDDLE EARTH GRAPHICS, INC.,
Petitioner
LS
NATIONAL LABOR RELATIONS BOARD,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTT R. MERRILL
Counsel of Record
CHARITY KENYON
JAMES M. NELSON
DIEPENBROCK, WULFF, PLANT and HANNEGAN
300 Capitol Mall, Suite 1700 P.O. Box 3034
Sacramento, CA 95812-3034
(916)444-3910
Counsel for Petitioner,
MIDDLE EARTH GRAPHICS, INC.
QUESTIONS PRESENTED FOR REVIEW
1. Whether the First Amendment and Section 8(c) of
the National Labor Relations Act (29 U.S.C. Sec. 158(c))
prohibit the National Labor Relations Board from using as
evidence of an unfair labor practice an anti-union
statement by an employer which contains no threats of
reprisal or force or promises of benefit and is thus
protected free speech?
2. | Whether there was substantial evidence to support
the findings of fact of the National Labor Relations Board?
TOPICAL INDEX
Constitutional Provisions Involved. ........ 2.0.6... cece wees 2
Statutory Provisions Involved. ........ 6.2.6... eee e cece eens 2
Neen ne ne cee eeesenseeons
The Board’s Finding That Petitioner’s Statement of Opposi-
tion to Unions Constituted Evidence of Animus Violated the
Freedom of Speech Provisions of Both the First Amendment
and Section 8(c) of the National Labor Relations Act.
A. Decisions of This Court ................0005 8
B. Legislative History of Section 8(c)............ 10
. Decisions of the Circuit Courts of Appeal. ....15
1. Circuits Which Permit Use of Protected
SII, 6 vou catasanccccscccces 15
ee Circuits Which Do Not Permit Use of
Protected Speech As Evidence. .............. 17
II
There Was Not Substantial Evidence to Support
the Board’s Finding That the Company Was
Motivated by Anti-Union Animus ................5:. 21
EE GHRUNSSSSKS ee Surencurececcccccccceuees .22
PU 5 Ses nsweronnnnnccccgnncesscesccccces la-65a
i
AUTHORITIES CITED
Consolidated Edision Co. v. NLRB,
ER AUREDERGRGGONe es cocccccsscecseesccees 21
Coppus Engineering Corp. v. NLRB,
ee Os Re IE GS NOUR onc ccccccccccccccscesecs 17
Darlington Manufacturing Co. v. NLRB,
Soe ©. Bh FOO CO Cota, ISGE). .. occ ccc cece ences 17
Gem International, Inc. v. NLRB,
Sal F. 2d G26 Gti Circuit, 1963)... ccc cece ce eeees 18
Hendrix Manufacturing Co. v. NLRB,
SURE Wh Ge PIII, EID, once cc ccc ccccccccneecens 16
Indiana Metal Products Corp. v. NLRB,
ee Os IES BOUID. o scenes ccc ccccncecseceess 18
Linn v. United Plant Guard Workers,
EG L shee si cescccccesscccccescess 9,11, 15
New York Times v. Sullivan,
lh ETE STOTT CT EET TTT OTT CTE TET 10, 20
NLRB v. Arkansas Grain Corp., |
et 18
NLRB v. Birdsall Co., 487 2d 288 (Sth Circuit, 1973)............. 16
NLR ¥. Brown, S00 US. 276 (1SGS). ... wee ccc cece eens 7
NLRB v. Builders Supply Co. of Houston,
steht che ey be ere re tno EEE EEE 16
NLRB v. Colonial Lincoln Mercury Sales, Inc.,
et 16
NLRB v. Colvert Dairy Products Co.,
317 F. 2d 44 (10th Circuit, 163). ........... 02.600. 16, 18, 19, 20
NLRB v. Exchange Parts Co.,
wa censeccseccengesanskeensen 9,15
NLRB v. Gissell Packing Co.,
EEE oe ee ee 8,15
NLRB v. Great Dane Trailers, Inc.,
iin teas cdscncccsactesceauckeas 7
NLRB v. Howard Quarries, Inc.,
962 F. 2d 236 (6th Circuit, 1966)... 2.2... ccc cece cece cenes 17
NLRB v. McGahey,
SPs Ae GM, BOO, ccc ccc ccccccnesccssas 16
NLRB v. Putnam Tool Co.,
Ges ahi pa nan sccebacsonnsvkeeadouue 17
NLRB v. Lowell Sun Publishing Co.
ee Se Se CR HUD oo nce cc cenaccccccnccces 17
ii
AUTHORITIES CITED (cont'd.)
NLRB v. Rockwell Manufacturing Co. (DuBois Div.)
271 F. 2d 109 Grd Circuit, 1959). .... 2... eee eee eee 17,19
NLRB v. Transportation Management Corp.,
QGR US. SEB GSGRD. occ iinccceccccccces. paeawheesenesqaees 7
NLRB v. United Steel Workers (Nu Tone, Inc.),
RIT OTT TTT TT TETT TET ETE EE 21
NLRB v. Virginia Electric and Power Co.,
EN PT ee TTT eTTT TELE EEE TTT TT 21
NLRB v. Wright Line, a Division of Wright Line, Inc.,
662 F. 2d 907 (ist Circuit 1981), cert. denied
ES OPPO TTT TTT ETE EEE TEE Ee 17
Orchard Corp. of America v. NLRB,
408 F. 2d 341 (8th Circuit, 1969)... . 2... cece ee eee eee eens 17
Pennekamp v. Florida,
TT OTIS TT ITTETEPT TTT ETE L ETT 20
Pittsburgh S.S. Co. v. NLRB,
180 F.2d 731 (6th Circuit, 1950) aff’d 340 U.S. 498 (1951)...... 18
Roper Corp. v. NLRB,
712 F. 2d (7th Circuit, 1983). ..... 6.2.6... cece ee eee Won een 18
Rosenblat v. Baer,
Ra ia oS UWhiWs sede wet eKbaWekievereeians 20
Texas v. Johnson,
491 US. ___, 109 S. Ct. 2533, 105 L. Ed 2d 342 (1989).......... 10
United Auto Workers v. NLRB (Aero Corp.),
363 F. 2D 702 (D.C. Circuit, 1966). ..... 2.6.6... eee eee eee 17, 20
Universal Camera Corp. v. NLRB,
as SNS BO Ne Seca cindec cccednswcsseceeaes 21
STATUTES
Wiatiomel Later Batatiams ACE Gee. Fac cnc cccccccccccncccsccsess 2
National Labor Relations Act, Sec 8(a) (1)................. 1235
National Labor Relations Act, Sec 8(a) (3). ..............45. 2, 3,5
National Labor Relations Act, Sec. 8(c)............... 2 (seriatim)
National Labor Relations Act, Sec. 10(e). ..... 2.2.6.6... ee eee 2,3
PUBLICATIONS
Legislative History of the Labor Management
Relations Act of 1947, 1959 Reprint 1985. ........... Appenix E
iii
ciaceeaeiiei
Petitioner Middle Earth Graphics, Inc. (hereinafter sometimes re-
ferred to as “Middle Earth” or “Petitioner”) respectfully prays that a
Writ of Certiorari be issued to review the judgment of the United States
Court of Appeals for the Sixth Circuit in this case.
OPINIONS BELOW
- The unpublished opinion of the court of appeals dated April
24, 1989 and the denial of the petition for rehearing en banc, dated July
6, 1989, are reprinted in the Appendix. (App., infra 1a, 2a). Thedecision
and order of the National Labor Relations Board (App. infra 3a-43a) are
reported at 283 NLRB No. 156, and 126 LRRM 1010 (1987).
QUESTIONS PRESENTED FOR REVIEW
In its decision and order, the National Labor Relations Board
(NLRB or Board) found “clear evidence of animus which should be
considered in placing the events . . . in proper focus.” The clear evi-
dence was in fact a statement, printed and distributed by petitioner's
president on a humorous poster which purported to create a new state
out of Western Michigan. The offending statement in its entirety read:
Access to the State of Six-One-Six (Western Michi-
gan) will be severely restricted. Draw bridges will be
raised to keep out such undesirable elements as labor
organizers, dead beats, carpetbagging politicians,
and itinerant lawyers. (See Appendix F, infra)
On the basis of that statement, the Board found the requisite
anti-union animus and thereafter held that petitioner had violated
Sections 8(a)(1) and (3) of the National Labor Relations Act (29 U.S.C.
§158(a)(1) and (3)) by terminating employees. Inso doing, thedecision
of the Board raises the following questions:
(1) Can the NLRB use, as evidence of an unfair
labor practice, a statement which contains no threat of reprisal or force
or promise of benefit, if such statement is otherwise protected free
speech?
(a) Ifthe NLRB has impermissibly used as
evidence of animus a statement which is protected free speech, are the
subsequent findings of unfair labor practices likewise tainted?
(b) Is the entire decision tainted where the
Board has used a protected statement as evidence of animus and
considered such statements when evaluating such alleged unfair
labor practice?
(2) Whether there was substantial evidence to
support the Board’s findings of fact.
TURISDICTION
The jurisdiction of this Court is invoked under 28
US.C. 1254(1). Jurisdiction properly obtained before the court of
appeals for the Sixth Circuit pursuant to Sections 10(e) of the National
Labor Relations Act, 28 U.S.C. §10(e), since the alleged unfair labor
practices occurred in Kalamazoo, Michigan. The judgment of the
court of appeals (App. infra, 2a) was entered on April 24, 1989 and a
petition for rehearing was denied on July 6, 1989 (App. infra, 1a).
CONSTITUTIONAL PROVISION INVOLVED
United States Constitution, Amendment 1:
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the
press; or the right of the people to peacefully as-
semble, and to petition the Government for redress of
grievances.
STATUTORY PROVISIONS INVOLVED
Section 8(c) of the National Labor Relations Act, (NLRA)
29 US.C. Section 158(c) provides:
The expressing of any views, argument or opinion, or
thedissemination thereof, whether in written, printed,
graphic, or visual form shall not constitute or be
evidence of an unfair labor practice under any of the
provisions of this subchapter, if such expression
contains no threat of reprisal or force or promise of
benefit.
Section 7 of the NLRA, 29 U.S.C. Section 157 provides:
Employees shall have the right to self-organization,
to form, join or assist labor organizations, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
2
ee ee
mutual aid or protection, and shall also have the right
to refrain from any or all of such activities except to
the extent that such right may be affected by an
agreement requiring membership in a labor organi-
zation as acondition of employment as authorized in
Section 158(a)(3) of this title.
Sections 8(a)(1) and (3) of the NLRA, 29 U.S.C. Section 158(a)(1)
and (3) provide:
It shall be an unfair labor practice for an employer —
(1) to interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 157 of this
title;
see
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employ-
ment to encourage or discourage membership in any
labor organization ....
Section 10(e) of the NLRA, 29 U.S.C. Section 160(e) provides:
The Board shall have power to petition any court of
appeals of the United States . . . wherein the unfair
labor practice in question occurred or wherein such
person resides or transacts business, for the enforce-
ment of such order and for appropriate temporary
relief or restraining order, and shall file in the court
the record in the proceedings, as provided in section
2112 of Title 28.
see.
The findings of the Board with respect to questions of
fact if supported by substantial evidence on the rec-
ord considered as a whole shall be conclusive.
STATEMENT OF FACTS
During a period of economic slowdown, petitioner employer
transferred its employees known as “bindery workers” from
petitioner's payroll to the payroll of Manpower, Inc.,a temporary help
agency. The National Labor Relations Board (NLRB or Board) found
that the petitioner's decision to transfer bindery workers to Man-
power was initially limited to those bindery workers referred to as
“mergers” and that petitioner unlawfully enlarged that decision to
include all bindery workers after petitioner learned of a union organ-
izational attempt among the bindery workers. Petitioner subse-
quently terminated several employees who refused to transfer to
Manpower.
The NLRB concluded that petitioner's decision was unlaw-
fully motivated by anti-union animus. In finding such anti-union
animus, the Board relied upon a statement contained in a poster
distributed by petitioner to promote a new printing press. The poster
indicated that petitioner’s president was opposed to unions.
The Board issued a decision and order directing petitioner to
reinstate the terminated employees and compensate them for back
wages. The court of appeals enforced the Board’s order without
opinion. A subsequent petition for rehearing en banc was denied.
Petitioner seeks review of the Board’s decision, which presents
important First Amendment and statutory questions on which the
circuits are divided, some of which are contrary to the decisions of this
Court.
Petitioner, Middle Earth Graphics, Inc., isa Michigan corpora-
tion formed in 1974 and engaged primarily in commercial and spe-
cialty printing in Kalamazoo, Michigan. Louis Hall (Hall) is the
founder, owner and president of petitioner. From 1974 until 1984,
petitioner employed an average of 10 to 12 employees. In March 1984,
Middle Earth received a purchase order from its largest customer,
Cadaco, to print, cut and supply 25,000 “sets” or “games” of playing
cards for a new game known as “Bible Trivia”, a game patterned after
the popular “Trivial Pursuit.” The game became an overnight success.
Cadaco then increased the purchase order and Middle Earth devoted
virtually its entire operation to meeting Cadaco’s production require-
ments. To meet these requirements, Hall hired 40 to 50 employees to
work primarily in the bindery area. In the fall of 1984, the Cadaco
business began to wane. Hall also experienced employee manage-
ment difficulties. In November 1984, Hall met with a representative
from Manpower, Inc.,a temporary employment agency, and accepted
a written proposal to pay Manpower a fee for transferring the bindery
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workers to Manpower for payroll purposes and assuming all payroll
obligations.
On November 7, the bindery workers were informed of the
planned transfer to Manpower’s payroll and on November 9, the first
group of employees (which included primarily “merging” employees
and a collatorassistant) were enrolled with Manpower. On November
10, several employees met at an employee’s home for the first time
with a union business agent.to discuss organizing a drive for the
Paperworkers’ Union.
On November 12, employees were informed that the deadline
for enrolling with Manpower was November 15. By November 15 all
but four bindery workers had enrolled with Manpower. The four
bindery workers asserted a right to refuse to enroll with Manpower.
Hall informed them that they would be fired unless they complied
with the direction to enroll with Manpower. One individual con-
sented; the other three were fired. Approximately one week later, an
employee who had enrolled the first day announced that he had
revoked his Manpower enrollment card. Hall fired him.
Between November 13 and November 29, 1984, the union filed
unfair labor practices with the Board, alleging violations of Sections
8(a)(1) and (3) of the NLRA, 29 U.S.C. §158(a)(1) and (3), and on
December 31, 1984, a complaint was issued. A settlement agreement
was reached on April 22, 1985. Additional charges were filed between
August 2 and September 26, 1985, alleging that Middle Earth had not
complied with the terms of the settlement agreement and had not
properly reinstated the alleged discriminatees. The regional director
of the Board set aside thesettlement agreement and issued an amended
consolidated complaint on October 30, 1985. The hearing was held
from January 28 to February 5, 1986.
The ALJ found that petitioner violated the Act when it dis-
charged six employees. To support these findings, the ALJ first
concluded that petitioner demonstrated “clear evidence of animus” in
the poster distributed by Middle Earth:
1. Evidence of Animus
Quite apart from any specific violations of the
Act alleged and found in this case, the Respondent
(petitioner herein) demonstrated clear evidence of
animus which should be considered in placing the
events described herein in proper focus. Among the
documents in the record is a large multi-colored bro-
5
chure which the Respondent (petitioner herein) has
printed and circulated to advertise the capability of
its new multi-color press. The document is a humor-
ous elaboration of Hall’s tongue-in-cheek proposal
for a new 51st state, to be carved out of the existing
state of Michigan and named Six-One-Six after the
telephone area code for Western Michigan. Entitled
“A New State. A New Start.”, the brochure features
Hall as its centerfold, dressed in regal attire and
holding a sword and scepter. Also portrayed on this
page are two cartoon figures, dressed as attendants
from an insane asylum, who are chasing Hall and are
making ready to apprehend him and place him ina
straightjacket. Inside the brochure is a large map of
Michigan. The eastern half is portrayed as a barren
wasteland while the western half — State Six-One-
Six — is shown asa flourishing, verdant paradise. At
the center of State Six-One-Six is its capital, Kalama-
zoo. Access to Six-One-Six from Eastern Michigan is
limited to a drawbridge over a moat. This feature is
captioned:
Access to the State of Six-One-Six will be
severely restricted. Drawbridges will be
raised to keep out such undesirable elements
as labor organizers, dead beats, carpetbag-
ging politicians, and itinerant lawyers.
When asked at the hearing if he was opposed to
unions, Hall replied: ‘Just inSix-One-Six.’ (App.infra
at 25a-26a)
The ALJ concluded that the terminations of six employees
were not for “cause” but were based on anti-union motivation. He
further found that petitioner violated the Act when Hall and two
supervisors made statements regarding the union.
The Board affirmed the decision and order of ALJ on May 19,
1987, in an opinion reported at 283 NLRB No. 156, 126 LRRM 1010.
(Appendix C, infra, at 3a)
The Court of Appeals, in a per curiam decision, enforced the
Board’s order, without comment, on April 24, 1989. A petition for
rehearing en banc was denied on July 6, 1989. (App.., infra, at 1a).
6
REASONS FOR GRANTING THE PETITION
There are three elements required to prove a violation of
Section 8(a)(3): (1) knowledge of protected, concerted activity; (2) con-
duct which discriminates against and discourages union member-
ship; and (3) unlawful motivation or intent based on anti-union
animus. NLRB v. Brown, 380 U.S. 278, 286 (1965) and NLRB v.
Transportation Management Corp., 462 U.S. 393, 398 (1983) (“if the
employer fires an employee for having engaged in union activities and
has no other basis for the discharge ... the employer commits an unfair
labor practice.”).
The essential element, however, is the employer motivation.
NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967) (“the finding of
a violation normally turns on whether the discriminating conduct was
motivated by an anti-union purpose.”) and NLRB v. Brown, supra, 380
US. at 287 (“we have determined that the ‘real motive’ of the employer
in an alleged § 8(a)(3) violation is decisive”).
Theultimate issue in this case, therefore, is whether petitioner's
decision to discharge its employees was unlawfully motivated by anti-
union animus. The Board found “evidence of animus” contained in
the anti-union statement in the poster. There were no threats or
coercive statements in the poster, so it is without question, protected
free speech. Section 8(c) of the Act prohibits the use of such statements
as “evidence of an unfair labor practice.” Therefore, the Board, in
finding “evidence of animus” has reached the dispositive issue in a
determination of whether the petitioner violated the Act. That is the
error.
The decision of the Board is plainly contrary to both the express
letter and spirit of Section 8(c) of the Act, which provides that such
statements, “shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act. . . .” (Emphasis
supplied). Although the Court has addressed the issue of freedom of
speech in the labor relations context, the Board and the courts have
nullified the free speech protections of Section 8(c) and they have
curtailed the free expressionand interchange of ideas in the workplace.
Although the Board purports to respect the First Amendment rights of
employers, decisions such as the case below have a substantial and in-
tolerable chilling effect upon such expression.
The Board explains that, while the statement in the poster is
not, in and of itself, an unfair labor practice, it is “evidence of animus.”
The Board then considered this evidence of animus in order to “place
the events” in “proper focus,” and determine whether it was more or
—s
7
less likely that the employer committed the alleged unfair labor
practice. At that point the statement became “evidence of an unfair
labor practice,” contrary to the express prohibition of by Section 8(c).
The courts of appeal are apparently divided on the scope of the
Section 8(c) prohibition. While most circuits purport to recognize the
principle of freedom of speech as it applies in the labor relations area,
they are undecided as to the evidentiary weight to be given to a
statement which is protected free speech. Under Section 8(c), the
answer is clear — no evidentiary use whatsoever may be made of a
protected statement.
Review of the Board’s and the court of appeals’ decisions is
therefore warranted and necessary to protect the free speech rights of
employers, to enforce the congressional mandate of Section 8(c) and to
achieve unanimity of results among the circuits.
DISCUSSION
I. The Board’s Finding That Petitioner’s Statement Of Opposi-
tion To Unions Constituted Evidence of Animus Violated
The Freedom Of Speech Provisions Of Both The First Amend-
ment and Section 8(c) Of The National Labor Relations Act.
The Board’s decision to use a statement which is otherwise
protected free speech as evidence of animus is in violation of funda-
mental constitutional rights and will chill free interchange of opinions
and ideas between management and labor in the workplace. An
employer certainly cannot freely express his opinions if speech critical
of unions may be used as evidence of an unfair labor practice.
A. DECISIONS OF THIS COURT
This Court has long recognized that where an employer's anti-union
statement contains no threat it is protected free speech and may not be
- used as evidence against an employer.
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Court
found that Section 8(c) is the equivalent of the First Amendment:
[A]n employer's free speech right to communicate to
his employees is firmly established and cannot be
infringed by a union or the Board. Thus, § 8(c)(29
US.C. § 158(c)) merely implements the First Amend-
ment by requiring that the expression of “any views,
argument, or opinion” shall not be “evidence of an
8
unfair labor practice,” so long as such expression
contains “no threat of reprisal or force or promise of
benefit” in violation of § 8(a)(1). 395 U.S. at 617.
Likewise, in NLRB v. United Steelworkers (Nu Tone, Inc.), 357 U.S. 357,
362 (1958), the Court noted:
Nor is the claim made that an employer may not,
under proper circumstances, engage in non-coercive
anti-union solicitation; indeed, his right to do so is
protected by the so-called “employer free speech”
provision of § 8(c) of the Act.
In NLRB v. Exchange Parts Co., 375 US. 405 (1964), the Board
found that the employer violated the Act when it announced to its
employees, shortly before a union election, a new birthday holiday
and increased overtime and vacation benefits. This Court affirmed the
Board’s conclusion as to the timing of the announcement, but refused
to place any reliance on an anti-union letter to employees:
The inference was made almost explicit in Exchange
Parts’ letter to its employees of March 4, already
quoted, which said “The Union can’t put any of those
... [benefits] in your envelope— only the Company can
do that.” (Original italics.) We place no reliance
however, on these or other words of the respondent
disassociated from its conduct. Section 8(c) of the
Act... provides that the expression or dissemination
of “any views, argument, or opinion” “shall not
constitute or be evidence of an unfair labor practice
... if such expression contains no threat of reprisal or
force or promise of benefit.”
See also Linn v. United Plant Guard Workers, 383 U.S. 53, 62 (1966), “the
enactment of § 8(c) manifests a congressional intent to encourage free
debate on issues dividing labor and management.” The Court in Linn
then compared the labor-management free speech dilemma with
other non-labor free speech situations:
[A]s we stated in another context, cases involving
speech are to be considered “against the background
of a profound . . . commitment to the principle that
9
debate . . . should be uninhibited, robust, and wide
open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks.” New
York Times v. Sullivan, 376 U.S. 254, 270 (1964). Such
considerations likewise weigh heavily here; the most
repulsive speech enjoys immunity provided it falls
short of a deliberate or reckless untruth. 383 U.S. at
62-63.
Most recently, in the flag-burning case, Texas v. Johnson, 491
US.__, 109 S.Ct. 2533, 105 L. Ed 2d 342 (1989) this Court reaffirmed
its commitment to unlimited free expression of ideas regardless of
whether there is a possibility that some may take “serious offense at
the particular expression.” 109S.Ct. at 2541. The Court noted that the
precedents establish that:
A principal “function of free speech under our sys-
tem of government is to invite dispute. It may indeed
best serve its high purpose when it induces a condi-
tion of unrest, creates dissatisfaction with conditions
as they are, or even stirs people to anger.” Id. at 2541.
* hd > *
If there is a bedrock principle underlying the First
Amendment, it is that the Government may not
prohibit the expression of an idea because society
finds the idea itself offensive or disagreeable. Id. at
2544
The Board’s decision is contrary to these principles. Thereis no
doubt that anti-union comment is offensive or disagreeable to some.
However, rather than fostering or encouraging debate, the Board
limits it. The employer is thus well-cautioned never to make any
comment or express any opinion (even if in jest) which is remotely
anti-union as there is always the possibility of a future unfair labor
practice allegation and that the statement may be used as “back-
ground evidence” to support the allegation.
B. LEGISLATIVE HISTORY OF SECTION 8(c)
This Court’s commitment to “free debate” also finds signifi-
cant support in the legislative history of Section 8(c) of the Act.
10
a
The critical inquiry into the legislative history of Section 8(c)
focuses on a single word: “evidence”. That word was the primary
source of congressional debate with respect to the entire section. It is
quite clear that here, the word “evidence” hasa particular significance.
If Congress had only wanted to ensure that an anti-union statement
would not, by itself, constitute an unfair labor practice, the word
“evidence” could have been dropped from the statute as superfluous.
Thus, the statute would have read:
“The expressing of any views, argument, or
opinion. . . shall not constitute... an unfair labor
practice. . ..”
However, Congress deliberately, and over presidential veto,
drafted the section to read:
“The expressing of any views, argument, or opinion
shall not constitute or be evidence of an unfair labor
practice.” (Emphasis supplied.)
This Court recognized that legislative intent in Linn v. United
Plant Guard Workers, supra, 383 U.S. at 62, footnote 5:
It is more likely that Congress adopted this section
for a narrower purpose, i.e., to prevent the Board from
attributing anti-union motive toan employer on the basis
of his past statements. See H.R. Rep. No. 510, 80th
Cong., Ist Sess. 45 (1947). Comparison with the
| express protection given union members to criticize
the management of their unions and the conduct of
their officers, 73 Stat. 523 (1959) 29 U.S.C. § 411(a)(2)
(1964 ed.), strengthens this interpretation of congres-
sional intent. (Emphasis supplied.)
An examination of the legislative history of the Labor Manage-
ment Relations Act of 1947 (LMRA) establishes that Section 8(c) was
indeed enacted, “to prevent the Board from attributing anti-union
motive to an employer on the basis of his past statements.”*
The free speech provision was enacted in reaction to decisions
' 8(c) (29 U.S.C. § 158(c)) was incorporated into the National Labor
Relations Act (29 U.S.C. § 151 et seq.), through the Labor Management Relations Act of
1947. For convenience’ sake, citations to Section 8(c) refer to both the NLRA and
11
of the Board and courts which found violations of the Act based upon
non-coercive statements of the employer. Virtually the entire debate
with respect to Section 8(c) centered on whether or not a noncoercive
anti-union statement could be used as evidence to demonstrate
unlawful motive.
Initially there were two versions of the bill - the Senate’s (sponsored by
Senator Taft) and the House version (sponsored by Representative .
Hartley). With respect to the section which would become Section
8(c), House Report No. 245 on H.R. 3020, criticized the decisions of the
Board which found an unfair practice based in part upon previous,
non-coercive anti-union statements of the employer and stated the
purpose for the section:
The bill corrects this, providing that nothing that
anyone says shall constitute or be evidence of an
unfair labor practice unless it, by its own express
terms, threatens force or economic reprisal. . This
means that a statement may not be used against the
person making it unless it, standing alone, is unfair
within the express terms of sections 7 and 8 of the
amended act. (Legis. History, Vol. I, 324) (App. infra
at 44a).
The House Minority iat objected to the inclusion of the
term “evidence”:
But these provisions go far beyond mere protection
of an admitted constitutional right. By saying that
statements are not to be considered as evidence, they
insist that the Board and the courts close their eyes to
the plain implications of speech and disregard clear
and probative evident. In no field of the law are a
man’s statements excluded as evidence of an illegal
intention. Here, again, a deep-seated intention to
protect employers in the commission of unfair labor
practices is evidence. Here, again, the laudable pur-
pose of protecting free speech cloaks an evil design to
LMRA. Citations to the legislative history refer to Legislative History of the Labor Man-
agement Relations Act of 1947, Volumes land II, U.S.Government Printing Office, Wash-
ington, 1959 Reprint (1985). Selected portions of the Legislative History are reprinted
infra at Appendix E. :
12
nian ienea tienen
encourage unfair labor practices by employers. (Legis.
History, Vol. I, 375-376) (App. infra_at 45a)
The Senate version, which also criticized the Board’s decisions
on the issue of free speech did not contain a restrictive provision
regarding evidence:
The committee believes these decisions to be too
restrictive and, in this section, provides that if, under
all circumstances, there is neither an expressed or
implied threat of reprisal, force, or offer ofbenefit, the
Board shall not predicate any finding of unfair labor
practice upon the statement. The Board, of course,
will not be precluded from considering such statements as
evidence. (Emphasis supplied) (Legis. History, Vol. I,
429-30) (App. infra at 46a)
Ultimately, the House version was adopted by the committee:
The practice which the Board has had in the
past of using speeches and publications of employers
concerning labor organizations and collective bar-
gaining arrangements as evidence, no matter how
irrelevant or immaterial, that some later act of the
employer had an illegal purpose gave rise to the
necessity for this change in the law. The purpose is to
protect the right of free speech when what the em-
ployer says or writes is not of a threatening nature or
does not promise a prohibited favorable discrimina-
tion. (Legis. History, Vol. I, 549) (App. infra at 51a)
In the debate on Section 8(c) which followed the conference
report the discussion again centered almost exclusively on the word
“evidence”.
Mr. PEPPER . . . Under that provision (Section 8(c)),
if an employer were to say on Monday, “1 hate labor
unions, and I think they are a menace to this coun-
try”, and if he fired a man on Thursday and the
question was whether that man was fired for cause or
fired because he was agitating for a union in the
plant, would the statement made on Monday, in
which the man said, “1 = labor unions are a
1
menace to this country” be admissible in evidence as
bearing on the question of the reason for the dis-
charge?
Mr. TAFT. All these questions involve a considera-
tion of the surrounding circumstances. It would
depend upon the facts. Under the facts generally
stated by the Senator, I think that statement would
not be evidence of any threat. There would have to be
some other circumstances to tie in with the act of the
employer. If the act of discharging is illegal and an
unfair labor practice, consideration of such a state-
ment would be proper. But it would not be proper to
consider as evidence in such a case a speech which in
itself contained no threat express or implied. That is
the effect of the House language which we accepted.
Mr. PEPPER. If the Senator will permit, that is the
point I want to emphasize —
Mr. TAFT. That is the effect of the House language.
Mr. PEPPER. That under the criminal law at the
present time any statement a man may make prior to
a given act which the court may try to evaluate may
be admitted in evidence as having some relationship
to his intentions. But the conference report deliber-
ately excludes statements of that sort, unless the
Statement contains an actual threat, thereby depriv-
ing the Board of the full evidence in the case.
Mr. TAFT. So long as the Board has a statement of
that kind the employer’s mouth is practically shut. In
case he makes a speech later on and is charged with
some unfair or unlawful labor practice, and that can
be considered in evidence, it means that he cannot
afford to speak at all. Without that provision there is
not freedom of speech. I say that is one thing a man
ought to have. He ought to have freedom of speech,
and it seems to me we should put in the word
“evidence.” (Legis. History, Vol. II, 1545-46) (App.
infra at 54a-55a)
14
——— SSS. aaaE---~-~S-~—S
Senators Morse and Murray were also among the critics of the
conference report.
The House version was ultimately adopted and sent to Presi-
dent Truman, who vetoed it. In his veto message, the President made
specific mention of Section 8(c):
The bill would introduce a unique handicap,
unknown in ordinary law, upon the use of state-
ments as evidence of unfair labor practices. An anti-
union statement by an employer, for example, could
: not be considered as evidence of motive, unless it
contained an explicit threat of reprisal or force or
promise of benefit. (Legis. History, Vol. I, 915, 918)
(App. infra at 63a)
The veto was overridden by Congress and the House version
of Section (c) became the law. Despite this abundantly clear discussion
between both the proponents and opponents of Section 8(c) and this
Court's discussion of that section in Gissel Packing, Linn v. United Plant
Guard Workers , Exchange Parts and NLRB v. United Steelworkers, supra,
the Board and the courts have continued to do precisely what is
forbidden oy statute and by the First Amendment. They continue to
use employers’ protected statements as evidence of anti-union motive
and unfair labor practices.
In this case petitioner's statements in the poster contained no
threats, coercion or promise of benefit. The employer's speech is
protected by Section 8(c) and by the First Amendment. The Board
contends that it is not using the statement as “evidence of unfair labor
practice” but merely as “background” evidence of animus, “which
shall be considered in placing the events described herein in proper
focus.” (Decision of the Board, App. infra at 25a). This is a distinction
without a difference.
a DECISIONS OF THE CIRCUIT COURTS OF APPEAL
The courts of appeal are divided on use of statements that constitute
protected speech.
. Their comments are contained in the appendix, infra, at S6a, 57a and 58a.
15
eeaeneenelll
used as
uruon:
1, Circuits Which Permit Use Of Protected Speech As
Evidence.
Among the earlier decisions to hold that free speech may be
evidence” is Hendrix Manufacturing Co. v. NLRB,
321 F.2d 100, 103 (Sth Cir. 1963) (Hendrix). The Hendrix Court first
acknowledged that the company had the “legal right” to oppose the
As was its legal right, NLRB v. McGahey, 233 F.2d 406,
409 (Sth Cir. 1956), the Employer made no bones
about its opposition to the Union. ... It was neither
charged nor found that the speech, as such, was a
violation of the Act. The Board, with ample justifica-
tion did regard this as an emphatic statement of anti-
union attitude. In this sense it is properly “back-
ground” against which to measure statements, con-
duct, and the like made by spokesmen, especially in
terms of the interpretation which the employees
reasonably could put on such actions. More specifi-
cally, this would bear on the question whether, from
the listeners’ point of view, these statements by sub-
ordinate management constituted forbidden coer-
cion, threats or intimidation. (Id. at 103-104).
The court then attempted to explain in a footnote how the
Board could use the protected free speech:
frees
We do not regard this as a left-handed finding that
Trippe’s statement was illegal. Cf. NLRB v. Colvert
Dairy Products Co., 10th Cir. 1963, 317 F.2d 44.
Of course the purpose of the speech, as was quite
proper, was to state management’s reasons why a
union was not needed and why it hoped the employ-
ees would vote it down. It was, therefore, anti-union.
But it was legally anti-union. (Jd. at 104, n. 6).
The Fifth Circuit again permitted the Board to use protected
peech in NLRB v. Builders Supply Co. of Houston, 410 F.2d 606, 608
(Sth Cir. 1969), as background “against which to examine these (other)
statements and conduct which were in fact found to be unlawful.” Id.
at 608. See also : NLRB v. Colonial Lincoln Mercury Sales, Inc., 485 F.2d
16
eT
455, 456 (Sth Cir. 1973) and NLRB v. Birdsall Construction Co., 487 F.2d
288, 291 (Sth Cir. 1973).
In Orchard Corp. of America v. NLRB, 408 F.2d 341 (8th Cir. 1969),
the court concluded that while the company had the right to campaign
vigorously against the union, the employer's background of “strong
anti-union posture” could be considered as “the overall background
surrounding the parties lends substance to the Board’s finding of
violations. ...” (Id. at 342).
Similar uses of protected speech as “background” have been
permitted in the Fourth Circuit: Darlington Manufacturing Co. v. NLRB,
397 F.2d 760, 769 (4th Cir. 1968) (sanctioning the use of protected
statements to draw background of controversy and <o place other
nonverbal acts in proper perspective), the Sixth Circuit: NLRB v.
Putnam Tool Co., 290 F.2d 663, 665 (6th Cir. 1961) (permitting the use of
a four-year-old anti-union letter) and the District of Columbia Circuit:
United Auto Workers v. NLRB (Aero Corp.}, 363 F.2d 702, 707 (D.C. Cir.
1966) (sanctioning the “limited use” of reterences to protected speech
to place other nonverbal acts in “proper” perspective).
The First Circuit, although it has fluctuated on this issue, has
also concluded that the protected “views” of supervisors “lend a
significance to otherwise ambiguous events when the question is
whethera given course of conduct is motivated by anti-union animus.”
NLRB v. Lowell Sun Publishing Co., 320 F.2d 835, 840 (ist Cir. 1963),
approved in NLRB v. Wright Line, a Division of Wright Line, Inc., 662 F.2d
907, n. 14 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982).
2. Circuits Which Do Not Permit Use Of Protected
Speech As Evidence.
Other circuits concluded that the Board may not use state-
ments protected by the First Amendment and Section 8(c). In Coppus
Engineering Corp. v. NLRB, 240 F.2d 564, 571 (Ist Cir. 1957) the First
Circuit held, contrary to its holdings in Lowell Sun and Wright Line,
supra, that, “an employer's statement cannot be used as background
material for the finding of an unfair labor practice where such state-
ment falls short of restraint or coercion.”
The Third Circuit denied enforcement to the Board's
order in NLRB v. Rockwell Manufacturing Co. (DuBois Div.), 271 F.2d 109
(3d Cir. 1959), finding fault with the Board’s use of protected free
speech:
17
The Board’s attempt to hoist by its own boot-straps,
so to say, its findings that the statements were viola-
tive of the Act by reason of the respondent's hostility
to the union as evidenced by the general manager's
speech must be assessed in view of its holding that
the speech was “privileged” and not violative of the
Act. The Act (§ 8(c)) specifically provides that privi-
leged communications “*** shall not*** be evidence
of an unfair labor practice.* * *”
In an apparent split within a circuit, the Sixth Circuit, quoting
the Legislative History of Taft-Hartley, found that it was impermis-
sible for the Board’s use of non-coercive letters. Pittsburgh S.S. Co. v.
NLRB, 180 F.2d 731 (6th Cir. 1950):
With reference to the right of free speech the legisla-
tive history show that the amendment embodied in §
8(c) of the Taft-Hartley Act was specifically intended
to prevent the Board from using unrelated non-
coercive expressions of opinion on union matters as
evidence of a general cause of unfair labor conduct.
Id. at 735)
The Seventh Circuit, quoting Pittsburgh S.S. Co., supra, would
not permit the Board to use non-coercive letters as background of
union animus to support a finding that an employee was unlawfully
terminated. Indiana Metal Products Corp. v. NLRB, 202 F.2d 613,617 (7th
Cir. 1953). See also: Roper Corp. v. NLRB, 712 F.2d 306, 311 (7th Cir. 1983)
(“An employer is not required either to say something nice or say
nothing at all about a union.”)
The Eighth Circuit is also apparently split on the use of
protected free speech as “background evidence”. See NLRB v. Howard
Quarries, Inc.,362 F.2d 236, 239-40 (8th Cir. 1966) (“It is well established
that otherwise legal acts cannot be the basis for an inference of anti-
union animus.”), NLRB v. Arkansas Grain Corp., 392 F.2d 161, 165 (8th
Cir. 1968) and Gem International, Inc. v. NLRB, 321 F.2d 626 (8th Cir.
1963) (“The speech made... to the employees lends no support to the
3
Pittsburgh S.S. Co. was affirmed by the U.S. Supreme Court, see: 340 US. 498,
501 (1951) ina companion case to Universal Camera Corp v. NLRB, 340 U.S. 474 (1951).
Thecourtagreed with the Sixth Circuit onotner grounds that substantial evidence was
lacking and therefore, expressed “no opinion on the possible effect of § 8(c) of the Taft-
Hartley Act.”
18
Ce eer al DR) NS ne NR Coe NL Pel ita ars lad sete SE SA bbe
unfair labor practices charged.”).
Finally, the Tenth Circuit, in NLRB v. Colvert Dairy Products Co.,
317 F.2d 44 (10th Cir. 1963), held that it was a “specific error” to use
protected free speech as evidence of an unlawful motive:
The campaign immediately preceding a Board elec-
i tion is usually such a situation and the Act provides
both affirmative rights and prohibited acts govern-
ing the conduct of both management and union.
Each is accorded the right of persuasion and denied
theuse of coercion. But it would be unrealistic indeed
to expect management to use words of conviction in
i an effort to persuade an employee to vote against
unionization without the presence of “anti-union
animus.” In the matter of the election the manage-
ment is, of course, anti-union. The union is equally
anti-company. It is necessarily so. And hostility
toward each other in such regard is not an unfair
labor practice. The Act (sec. 8(c)) specifically pro-
vides that privileged communications between em-
ployer and employee shall not be evidence of an
unfair labor practice. To allow the privileged communi-
cations to become an instrument of destruction by indirec-
tion is to frustrate the right of free speech and the privilege
of persuasion. Management cannot effectually attempt
lawful persuasion if by so doing there is an ever-present
penalty of “anti-union animus” for inherent in every
campaign that is strenuously but lawfully waged is the
expressed resistance to the views and claims of the oppo-
nent. The weakness of contra-position is often a
premise of successful persuasion.
ee ee ee
In the case at bar the Board specifically acknowledges
that the remarks of the general manager were privi-
leged and lawful but nevertheless uses them as
damaging background evidence in its consideration
of the charges of violation of Sec. 8(a)(1). To do so, is,
in the language of the Third Circuit, an “attempt to
hoist by its own boots-traps, so to say, its own find-
ings ***.” N. L. R. B. v. Rockwell Manufacturing
Company, 271 F.2d 109. The right of management to
freely express its views in opposition to unionization
19
cannot be burdened by indirection and thus de-
stroyed through technical rationalization. (317 F.2d
at 46-47) (Emphasis supplied).
One court has suggested that there is a “vast difference be-
tween the use of protected statements as evidence of an unfair labor
practice, and the use of such to draw the background of the contro-
versy and place other nonverbal acts in proper perspective.” United
Auto Workers v. NLRB, supra, 363 F.2d at 707. Petitioner submits that
there is no difference between the two uses. The court in United Auto
Workers also concluded that a “limited use” of protected free speech is
“sanctioned,” suggesting, in effect, that a “limited” chilling effect on
First Amendment expression is to be tolerated.
Since the decisions of this Court establish the First Amend-
ment right of the employer to make statements which are anti-union
in nature and the legislative history of Section 8(c) makes it clear that
constitutionally protected communication must not be used as evi-
dence, even background evidence, but the Board has indicated that it will
continue to use protected free speech as “evidence of animus” and
since the courts of appeal are roughly evenly split on this issue, the
Court should grant this petition to resolve an important issue of
constitutional law upon which the circuits are split.
The effect of this split is to frustrate the national labor policy as
mandated by the Act. Thus, if an employer has two factories - one
located in Michigan (6th Circuit) and one located in Wisconsin (7th
Circuit), the same anti-union letter, which is conceded to be protected
speech, could be used as background evidence of animus in Michigan
and not used at all in Wisconsin. Whether an employer is found to
have violated the Act should not depend upon which side of Lake
Michigan the speaker is standing. This is especially so when First
Amendment protected speech is at issue.
Our decision in New York Times, moreover,
draws its force from the constitutional protection
afforded free expression. The standards that set the
scope of its principles cannot therefore be such that
“the constitutional limits of free expression in the
nation would vary with state lines.”
Rosenblat v. Baer, 383 U.S. 75, 84 (1966), quoting: Pennekamp v. Florida,
328 U.S. 331, 335 (1946).
The severity of disagreement among the circuits on this issue
20
ee a ee
Pn adheres
requires definitive resolution so that the First Amendment and Section
8(c) can offer the same protection nationwide.
I THERE WAS NOT SUBSTANTIAL EVIDENCE TO SUP-
PORT THE BOARD’S FINDING THAT THE COMPANY
WAS MOTIVATED BY ANTI-UNION ANIMUS.
This Court established the standard for review of the Board’s
decisions in Universal Camera Corp. v. NLRB, 340 US. 474 (1951). Thus,
where a reviewing court “cannot conscientiously find that the evi-
dence supporting that decision is substantial, when viewed in the light
that the record in its entirety furnishes, including the body of evidence
opposed to the Board’s view” it may set aside the Board's decision. 340
US. at 488.
Substantial evidence has been defined as, “more than a mere
scintilla. It means such evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938). Substantial evidence also “must do more than
create a suspicion of the existence of the fact to be established." NLRB
v. Columbia Enameling & Stamping Co., 306 U.S. 292 (1939).
If substantial evidence is lacking, the Court must reverse the
Board. Where, as here, the evidence is based in part upon protected
free speech the case should be remanded to the Board for a redetermi-
nation of the issues without the influence of the improper evidence.
NLRB v. Virginia Electric and Power Co., 314 U.S. 469, 479-80 (1941).
There are several key events which must be considered by this
Court in making a determination as to whether there is substantial
evidence to support its findings.
The Board found that the initial decisions to accept the Man-
‘power written proposal was not motivated by anti-union animus and
was limited to just the “merger” employees. The violation occurred,
according to the Board, when the company, in response to union
activity, “enlarged” the Manpower group to include all bindery
workers. The undisputed facts make it quite clear that the Board's
finding is not supported by substantial evidence.
The Manpower written proposal entered into on November 6
covered “bindery workers”. The Board stipulated at the hearing that
collator operators and helpers, thecutter trimmer operators, the merg-
ers and the banders, were all classified as “bindery workers”. The first
day that bindery workers enrolled with Manpower was November 9.
On that day Wayne Ford, a collator-helper (and not a “merger”) was
enrolled with Manpower as well. One of the Board’s own witnesses
21
conceded that all bindery employees were required to enroll with
Manpower and each of the employer’s witnesses unequivocally stated
that the decision was for all bindery employees.
The Board also found that Middle Earth had violated the Act
by terminating two individuals because of their union activities.
Again, these findings are not supported by substantial evidence.
In the case at bar, if the petition is granted, petitioner will be
able to demonstrate in its brief, the lack of substantial evidence. Thus,
where the Board’s decision is not artificially imbalanced with the
consideration of protected free speech as evidence of anti-union
animus, it will become abundantly clear that reversal is justified.
CONCLUSION
This petition for writ of certiorari should be granted in order
for this Court to firmly establish what evidentiary use may be made of
protected free speech. Since the Board and the courts apparently
recognize that protected (non-coercive) statements are free speech
and cannot constitute, by themselves, unfair labor practices, yet read-
ily admit such protected free speech as “evidence of animus”, this
Court should consider this petition. It is a recurring dilemma and a
clear decision resurrecting the First Amendment and Section 8(c) of
the Act is necessary. Petitioner respectfully submits that this case
contains the necessary elements for such a decision.
Dated: October 2, 1989
By: Scott Merrill,
Counsel of Record
Diepenbrock, Wulff, Plant and Hannegan
Rika. ite AB OY Tyee nik Vs
APPENDIX A
No. 88-5269
: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, )
) ORDER
Petitioner, )
)
vs. )
MIDDLE EARTH GRAPHICS, INCORPORATED, )
Respondent. )
)
Filed July 6, 1989
BEFORE: NORRIS and RYAN, Circuit Judges; and ALLEN",
UnitedStates District Judge.
The Court having received a petition for rehearing en banc,
and the petition having been circulated not only to the original
panel members but also to all other active judges of this Court, and
no judge of this Court having requested a vote on the suggestion
for rehearing en banc, the petition for rehearing has been referred to
the original hearing panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the case.
Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
Leonard Green, Clerk
‘i Hon. Charles M. Allen sitting by designation from
the Western District of Kentucky.
la
APPENDIX B
NOT RECOMMENDED FOR PUBLICATION
88-5269
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD,) ON PETITION FOR
) ENFORCEMENT OF
Petitioner, ) AN ORDER OF
) THE NATIONAL
) LABOR RELATIONS
vs ) BOARD
)
MIDDLE EARTH GRAPHICS, )
INCORPORATED, )
Respondent. )
)
Decided and Filed April 24, 1989.
BEFORE: RYAN and NORRIS, Circuit Judges, and ALLEN,
Senior District Judge’.
PER CURIAM. The National Labor Relations Board
asks this court to enforce its unfair labor practice order against
respondent, Middle Earth Graphics, Incorporated.
Having had the benefit of oral argument, and having
carefully considered the record on appeal and the briefs of the parties,
we conclude that the findings and order of the Board are in accordance
with law and supported by substantial evidence, and that its order
should be enforced.
Accordingly, for the reasons set forth in the order and
in the decision of the Administrative Law Judge, the order of the board
dated May 29, 1987 is enforced in all respects.
4 The Honorable Charles M. Allen, Senior District Judge for the
Western District of Kentucky, sitting bydesignation.
2a
APPENDIX C
283 NLRB No. 156
MIDDLE EARTH GRAPHICS, INC.
and
JAMES CANNON, JR.
LIDELL FORD, JR.
WAYNE FORD
KAREN ROOT
CLARK OLSON
PATRICIA ANN COLE
GARRY WAYNE ROOT
LAMAR EDWARDS
UNITED PAPER WORKERS INTERNATIONAL UNION, AFL-CIO
Cases 7-CA-24013(1), 7-CA24019, Cases 7-CA24013(2),
7-CA24914(1), Cases 7-CA24013(3), 7-CA-24856(2), Cases
7-CA24030(1), 74CA25033, Cases 7-CA24030(2), 7-CA24856(3),
7-CA24914(2), 7-~CA24953, Case 7-CA24030(3), Case 7-CA24030(5),
Case 7-CA-24052, Case 7-CA24921
NATIONAL LABOR RELATIONS BOARD
May 19, 1987
DECISION AND ORDER
By Donald L. Dotson, Chairman; Wilford W. Johansen,
Member; Mary Miller Cracraft, Member
OPINION
On 6 June 1986 Administrative Law Judge Walter H. Maloney,
Jr. issued the attached decision. The respondent filed exceptions and
a supporting brief.
The National Labor Relations Board has delegated its author-
ity in this proceeding to a three-member panel.
The Board has considered the decision and the record in light
of the exceptions and brief and has decided to affirm the judge’s
3a
rulings, findings,’ and conclusions and the adopt the recommended
Order.*
We agree with the judge’s finding that the Respondent failed
to comply with the reinstatement provisions of the settlement agree-
ment. In agreeing with the judge, we recognize that the Respondent
experienced a significant reduction in orders for Cadaco game cards
in 1985. The Respondent hired the discriminatees in May and June
1984 when its business was expanding dramatically because of the
Cadaco contract. The employees were discharged in November 1984
and the settlement agreement was executed on 22 April 1985. By the
summer of 1985, orders for Cadaco game cards had decreased, with a
resulting decline in bindery work. Although the amount of bindery
work available after the settlement agreement was substantially less
than what existed in 1984, the record shows that the Respondent
periodically produced game cards for Cadaco throughout 1985. The
record further shows that on numerous occasions the Respondent
bypassed the discriminatees and used employees with less seniority,
including individuals referred by temporary employment services, to
perform the Cadaco work. In view of this evidence, we find that the
Respondent did not abide by the reinstatement provisions of the
settlement agreement.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent,
Middle Earth Graphics, Inc., Kalamazoo, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth in the Order.
: The Respondent has excepted to some of the judge’s credibility
findings. The Board's established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings. We further find totally without merit the
Respondent's allegations of bias and prejudice on the part of the judge. On our full
consideration of the record and the judge's decision, we perceive no evidence that the
judge prejudged thecase, made prejudicial rulings, or demonstrated a bias against the
Respondent in his analysis or discussion of the evidence. We also find nothing
improper in the judge’s questions to the Respondent's witnesses.
. We correct the judge’s inadvertent error in par. 2(b) of his recom-
mended Order, under which the Respondentis to notify the employees in writing that
the discharges and warning will not be used against them in any way.
4a
APPENDIX D
JDD—154—86
Kalamazoo, Michigan
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MIDDLE EARTH GRAPHICS, INC
and
JAMES CANNON, JR., LIDELL FORD, JR.
WAYNE FORD, KAREN ROOT, CLARK OLSON,
PATRICIA ANN COLE, GARRY WAYNE ROOT,
and LAMAR EDWARDS, Individuals
and
UNITED PAPERWORKERS INTERNATIONAL
UNION, AFL-CIO-CLC
A. , of Grand Rapids,
Michigan, and
of Detroit, Michigan, for the General Counsel.
Clare Annen, International Representative,
of Scotts, Michigan, for the Charging
Party (Union).
, and Scott R.
Francis T. Coleman ;
of Washington, D.C., for the Respondent.
Case Nos.
GR-7—CA-—24013(1)
GR-7—CA-24019
GR-7—CA—24013(2)
GR-7—CA—24013(3)
GR-7—CA—24030(1)
GR-7—CA-24030(2)
GR-7—CA-24030(3)
GR-7—CA-24030(5)
Sa
GR-7—CA—24052
GR-7—CA—24856(2)
GR-7—CA-~-24856(3)
GR-7—CA—24914(2)
GR-7—CA—24953
GR-7—CA—24914(1)
GR-7—CA-—24921
GR-7—CA-25033
DECISION
I. Findings of Fact
A. Statement of the Case
WALTER H. MALONEY, JR., Administrative Law 7
The first nine of these consolidated cases initially came on
hearing before the undersigned on April 22, 1985, and alll of them
came on for hearing ultimately on January 28 thru February 5, 1986,
at Kalamazoo, Mi upon consolidated complaints’ issued by
the Director of the Board’s Seventh Region which allege that Re-
spondent Middle Earth Graphics, Inc.,? violated Sections 8(a)(1), (3),
and (4) of the Act and that it failed to comply with the provisions of
asettlement agreement, thereby authorizing the Director to set aside
the agreement and to prosecute earlier unfair labor practices osten-
sibly settled therein. More : ee the Consolidated Com-
plaint alleges that the Respondent repeatedly threatened employees
with plant rey if they unionized, created the impression among
ee a union activities were the subject of company
e, threatened to fire employees if they joined a union,
threatened to discharge employees and require them to become
employees of a temporary employment referral service if they
continued to discuss unionization, attempted to suborn perjury by
an employee in a Board proceeding, coercively interrogated
- The principal docket entries in these consolidated cases are as follows:
filed herein by James Cannon, Jr., Lidell Ford, Jr., Wayne Ford, Karen Root,
Clark Olson, Patricia Ann Cole, Garry Wayne Root, and Lamar Edwards, respec-
tively, against Respondent Middle Earth Graphics, Inc., between November 13,
1984 and November 29, 1984, in Cases Nos. GR—7—CA—24013(1), 24019, 24013(2),
24013(3), 24030(1), 24030(2), 24030(3), 24030(5) and 24052; Consolidated Complaint
issued by the Regional Director, Region 7, against the Respondent on December 31,
1984; Respondent's Answer filed on January 8, 1985; Hearing scheduled for Kalama-
zoo, Michigan, on April 22, 1985; Informal settlement agreement executed by all
. The Respondent admits, and I find, thatitisa Michigan corporation which
maintains its principal place of business in Kalamazoo, Michigan, where it is
engaged in the commercial printing business. In the course and conduct of this
business Respondent, during the preceding twelve months, sold and distributed
from its Kalamazoo, Michigan, place of business, products valued in excess of
$100,000, of which products valued in excess of $50,000 were shipped directly to
points and places located outside the State of Michigan. Accordingly, a
is anemployer engaged in commerce within the meaning of Sections 2(2), 2(6), and
2(7) of the Act. The Union isa labor organization within the meaning of Section 2(5)
of the Act.
6a
employees, threatened to fire employees who supported the union
and to prevent them from receiving unemployment compensation,
threatened an employee with reprisal upon returning to work if he
Be etn activities, issued disci warnings to em-
were union —
Caron, je, Lick Jr., Lidell Jr., Karen esen Bed, Ganry Wayne Root, Clas
Cun, ani iesabteal beaendal daivadantieengeton ont
activities, contracted out work in order to prevent unionization by
removing union sympathizers from its payroll and placing them on
pa of a temporary employment referral service, failed to
Ford to work and discharged him because of his
pee oe sympathies and activities, harassed, demoted, and trans-
Ford, Jr., upon his return to work because of his union
ae thies and activities, and, since September, 1985, failed to
Karen Root from layoff because of her union sympathies and
activities. The Respondent denies the commission of any inde-
pendent violations of Section 8(a)(1) of the Act, asserts that it
discharged Lidell Ford, Jr., because he sabotaged company ma-
chinery, wage pes Cannon, Jr., because of his poor work
rmance, and discharged Garry Wayne Root, Karen =
Olson, and Wayne Ford because they refused to sign ~
the temporary employment referral service that it had emp
Itcontends that it failed to recall employees because of lack of <o0
and that Lidell Ford, Jr., was demoted upon his return to the job
because he was unable to perform assigned work. The Respondent
also contends that violations settled by an agreement concluded on
April 22, 1985, are barred from prosecution by limitations. Upon
these conteritions the issues herein were joined.*
B. The Unfair Labor Practices Alleged
Respondent Middle Earth Graphics, Inc., is a small printing
charging parties, the General Counsel, and the Respondent and approved by the under-
signed on April 22, 1985; Charges filed against the Respondent by Wayne Ford, Clark
Olson, Lidell Ford, Jr., United Paperworkers International Union, AFL. CIU ,CLC (herein
called Union), and Karen Root, respectively, between August 2, 1985 and Scptember 26,
1985, in Cases Nos. GR--7--CA--24856(2), 24856(3), 24914(2), 24953, 24914(1), 24921,
and 25033; Consolidated Complaint issued against Respondent by Director, Region 7, on
September 30, 1985, and First Amended Consolidated Complaint issued against Respon-
dent by Director, Region 7, on Octobes~ 30, 1985; Respondent's Answer filed on November
7, 1985; Hearing held in Kalamazoo, Michigan, on January 28 thru February 5, 1986; Briefs
filed by the General Counsel and the Respondent with the undersigned on or before April
28, 1986.
’ The transcript herein is hereby corrected as follows:
1. On page 30, line 13, insert “Root” after “Karen”
2. On page 50, line 1, change “bet” to “get”
7a
firm located on the north side of Kalamazoo, Michigan. It is owned
and operated by Louis Hall, who founded the business about 12
years ago. Until the spring of 1984, it employed about 10-15
individuals and was engaged we oy handling small and
medium-sized comm printing jo the spring of that year,
it obtained a contract from a Chicago firm, Great Cadaco Games, a
Division of Rapid Mounting & Finishing Co. (Cadaco), to uce
sets of question-and-answer cards in a game modeled after
Trivial its. The Cadaco game is known as “Bible Trivia.”
Subsequent orders received from Cadaco included printing of
ion-and-answer cards for two similar games, “Children’s
ible Trivia” and “Catholic Trivia.” Taking on these orders meant
a rapid increase in the staffing of the Respondent's plant, particu-
larly in unskilled employees in the bindery who performed such
functions as merging, collating, and banding. The discriminatees
involved in this case were hired in May or June of 1984 when this
upsurge in business began. Concurrently with the increase in staff,
the plant began to operate on and occasionally on an
around-the-clock basis during the regular workweek. The initial
Cadaco order was only for 25,000 sets of “Bible Trivia” cards, but,
as that order was filled, other orders followed rapidly. Respondent
continues to produce Cadaco game cards but not at the hectic pace
it experienced in 1984. At the same point in 1984 Hall began to
enlarge the physical facilities of his plant and to acquire new
machinery for his expanded operation.
The bindery operation involves the cutting of large “signa-
tures” or printed sheets into quarters, collating them on a nine-
sheet collator, merging these collated sheets into larger bundles by
what is, in effect, a hand-collating process, cutting or “trimming”
the newly formed bundles of question-and-answer sheets into
individual game sets, and then putting rubber bands around
individual sets before they are boxed for shipment. In this —
tion, Lidell Ford, Jr., operated a collator (sometimes called a
multi-stitcher); James Cannon, Jr., was a merger; Karen Root was a
bander; Lidell Ford’s brother, Wayne Ford, worked asa mergerand
collator helper; and Karen Root’s brother, Clark Olson, was a
bander. Karen Root’s husband, Garry Root, had a semi-skilled job
as trimmer operator.
In June, 1984, shortly after they had been hired, Garry and
Karen Root were carrying on a conversation in the office with Hall.
Hall had been talking with Jim English, a salesman from another
print shop, Kalamazoo Label, and was repeating to the Roots what
the salesman had said. Hall noted that Kalamazoo Label was
running at about 1/3 capacity because of union work rules and a
high union scale. Karen Root asked Hall what would happen if a
union came into Middle Earth Graphics. Hall replied that a union
would never “get in here. I will close my doors before I will let a
union in here.
Sometime in May or June, Lidell Ford was working with
Hall at the collator and asked Hall if he would ever have a union in
the = Hall replied that he would “close the g.d. doors” before
he ee ee . Ford had a similar
conversation at this same point in time with Chalker. Chalker
expressed the opinion that Hall would close the plant defore he
would permit it to become unionized.
During the summer of 1984, Wayne Ford was engaged ina
conversation with Foreman Don Antolovich and fellow employee
Mike Ibeck at Antolovich’s home. Ford observed that, if the plant
were unionized, the Company would stop a lot of activities which
Ford objected to, such as twelve-hour workdays and cutting incen-
tive rates. Antolovich replied that a union would be nice but there
was “no chance of it.”
Early in the fall, Mrs. Root became — by an incident at
the plant involving her son, employee Steve Kilburn. Kilburn was
attacked by a dog which had been tied up behind the plant and had
been allowed to stay there for plant security reasons. Kilburn was
not injured but had been frightened by the dog’s aggressive behav-
ior. Upon learning of this incident, Mrs. Root complained to the
Plant me Keith Tap, and the General Foreman, Rod Chalker,
but received a rebuff. Upon returning to her job station, she angrily
shouted to employees in the merging area of the plant, “Like hell we
don’t need a union.” Antolovich was present when these remarks
were made.
Shortly thereafter, Mrs. Root phoned the office of the
United Paperworkers Union and sought information on how to go
about organizing a union at the Respondent's plant. She did not
follow up immediately on this information but, along with other
employees, began to discuss the co unionization. Much
of this talk took place at the merging line. On one occasion,
Antolovich told employees on the aoe that the Respon-
dent was keeping a complete file on who talked union at the plant.
On Friday, November 2, 1984, the Respondent staged an
open house at the plant. Respondent had just completed an
addition to the company premises, and this milestone provided the
occasion for the celebration. Customers, friends, and public offi-
9a
cials were invited to view the enlarged building, see the plant in
actual operation, and join Hall and others for a light lunch and a
ceremonial ribbon cutting. A humorous program booklet, pre-
pared and distributed for the open house, was introduced into
evidence. Among the visitors was Patrick Allgood, the ee
Manager for Manpower, a supplier of temporary help. _—
suggested to Hall that Manpower could be of help in providing him
with extra help during periods, and Hall was amenable to the
suggestion. He told Allgood to prepare a specific proposal and
present it.
The following Tuesday, November 2, Allgood visited Hall
and presented a written proposal. The document in question
appears to have been derived froma word processor, with individ-
ual name changes on the cover and an individual quotation ofa rate
for temporary help at $4.92 an hour. This igure represented the
og y Manpower to Middle Earth Gra While the pro-
posal did not say so, record evidence indicated that this al
eo py an actual payout rate to em rh 6 of about $3.50 or
75 an hour. The balance represented deductions and supple-
ments for withholding and insurance, payroll computations, and
Manpower’s profit. It became clear that Hall had in mind not
merely procuring additional help from Manpower but was inter-
ested in placing a number of his current employees on Manpower’s
payroll, thus treating them as temporary help. Hall insisted to
Allgood that none of the employees he wished transferred from the
Middle Earth Graphics payroll to the Manpower payroll should
experience reductions in their hourly rate, although it is clear that
eventually all of them lost benefits, inasmuch as they were covered
by a health insurance program as Respondent’s employees while
Manpower had no such program forthe temporary help it supplies.
Both Hall and his management employees were quite evasive
about the actual hourly rate they were being called upon to pay to
Manpower in order to maintain a $4.00 payout rate to current
employees. Eventually, another Manpower representative, Debra
Kuhn, who assisted in the implementation of Manpower'’s contract
with the Respondent, testified that, for employees earning $4.00 per
hour, Manpower charged the Respondent $5.65 per hour for exist-
ing employees being transferred to its payroll and $5.88 for new
employees supplied from Manpower sources. Billing records and
invoices in evidence confirm this testimony. The differential in
rates represented Manpower’s recruiting costs. Higher rated
employees were billed at other amounts. Miss Kuhn testified that
the Manpower markup was from 17%-30%, although a simple
arithmetic calculation makes it clear that the Manpower markup on
the $4.00-an-hour employees was about 41%.
10a
On the afternoon of Wednesday, November 7, Greg Hen-
derson, a representative of Manpower, talked to the mergers in the
merging area about signing up for Manpower. Both Chalker and
Antolovich were present. There was some objection from
Respondent’s employees te the idea of leaving the Respondent's
payroll and transferring to seme Bese The objections centered on
the fear of losing their jobs of receiving cuts in pay. As the
discussion drew to a close, Lidell Ford, who was not a merger but
who ha to be in the area, told the assembled mergers that,
if they signed up for Manpower, their action would be tantamount
to quitting Middle Earth Graphics and they would have no stand-
ing to organize a union among the Respondent’s employees.
Antolovich admits reporting this or similar statements on the part
of L. Ford to Hall.‘
On the evening of the same day, Ford phoned Clare Annen,
the Union’s representative in the Kalamazoo area, told him what
was de st at Middle Earth Graphics among the mergers, and
arranged for Annen to meet with interested employees at Ford’s
home on Saturday, November 10. On the morning of Thursday,
November 8, Hall summoned Ford to his office. In the course of a
private interview, Hall told Ford that he was in possession of
written proof that Ford had wilfully damaged the Respondent’s
collating machine and proceeded to fire Ford for doing so. Ford
denied the accusation and asked to see the statements that Hall had
referred to. He also asked Hall to produce the second-shift employ-
ees who had made the written allegations. Hall declined and said
they would be given to him with his final paycheck. Ford protested
this action and claimed he could run the collator better than any two
employees. He told Hall to “cut out the bullshit” and accused Hall
of using him as a scapegoat. Hall’s only response was that nobody
would run the Company but Hall himself. When Ford picked up
his paycheck the following day, he asked Comptroller Joseph
Hagenbarth for the statements and Hagenbarth refused to produce
them upon advice of counsel. No such statements have ever been
mY
.
Although there is some confusion in the record concerning the sequence
of events which surrounded the appears, as detailed later, that damage had been
done to a collator the previous afternoon or evening, which the Respondent
attributed to Ford. Ford was discharged for this infraction on November 8, the
morning following his statement to the mergers recited above.
lia
furnished, even in response to the General Counsel’s subpoena. I
conclude that they never existed in the first place.°
During the next few days, several supervisors made state-
ments to various employees indicating that only ers would be
required to sign up for Manpower. On Friday, November 9,
Chalker spoke to several employees, including | Root, near
the trimmer and indicated to them that Manpower was only for
mergers, explaining that mergers were part-time employees and
that the Respondent was taking this action because it was not sure
how long orders for Cadaco games would last so it wanted to be
sure that the mergers had some alternative source of employment
if the Cadacocontract ran out. Later on in theday, Garry Root spoke
to Antolovich and asked him if Manpower was just for mergers.
Antolovich assured him that this was so. On the same day, Patricia
Ann Cole, a merger;cametothe ng to pick up her paycheck. She
spoke to Antolovich and asked him if she had to join Manpower.
He told her that she would have to sign up and stated that this
requirement applied only to mergers because ry baw, regarded
as part-time employees. Chalker had also told k Olson that
only the mergers were being required to transfer to the Manpower
payroll.
Debra L. Schrock worked asa collator helper on the evening
shift. On November 9, she asked Chalker if she had to sign up for
Manpower. Chalker’s reply was, “Not as long as you don’t talk
union.” Later on in the following week, Tap asked Mrs. Schrock if
she had signed up for Manpower. Her reply was that Chalker told
her she did not have to sign up so long as she did not talk about
, Respondent's second-shiftem ployees, Mihally Csiszarand Mrs. Schrock,
gave diametrically opposed statements concerning making written statements on
November 11. Csiszar, who is Hungarian and has trouble writing English,
testified that he and Mrs. Schrock prepared a joint statement in their own
handwriting upon being questioned by management about vandalism performed
on the collator and turned the statement over to their supervisor. Mrs. Schrock
testified that she prepared no such statement and, in fact, was never interviewed
by management concerning the events of November 6 until, on November 14, she
and Csiszar were presented with a typewritten statement, dated November 12,
detailing the damage done to the collator and accusing Ford by necessary impli-
cation of doing the damage. Sheinsisted that the statement be modified before she
would sign it and it was changed. This statement, signed both by her and by
Csiszar, isin evidence. At the hearing in this case, Hall admitted that he had been
“mistaken” when he said that he had statements in his possession alleging Ford’s
responsibility for vandalism before Ford was fired.
r Ata much later point in time Mrs. Schrock became a merger.
12a
“onions.” She used the word “onions” to avoid mentioning the
forbidden term “union.” Tap told her at that time that everyone
had to sign up, so she did the following day.
The mergers worked on Saturday, November 10. During
the course of this workday, Mrs. Cole made the observation to her
fellow employees and nie Antolovich that the only reason the
Compan aan wer was because of union organ-
izing activity. Antolovich’s reply was that, if there was any further
mention of unions, em ae ams vical be laid off permanently and
the plant doors would send. Antolovich admitted making this
statement but explained for the record that he was just expressing
his opinion. He also stated for the record that Hall was the “kind of
guy who will cut off his nose to spite his face” and ventured the
statement that “if he doesn’t get his way, nobody will.”
A union meeting took place the same evening at Lidell
Ford’s home. Among those who attended were the Roots, Olson,
Cannon, and Wayne Ford. As noted previously, Ford had been
ed by this time. Among the questions discussed was
whether employees should obey a directive to sign up for Man-
power. Annen replied that it was up to each employee as to
whether he or she signed Aap each employee would have to
make this judgment on the basis of what +4 could afford to do if
faced with discharge. Annen expressed an opinion that it was an
unfair labor practice for an employer to force employees off its
payroll and felt it would be appropriate to filea charge. He did not
state that he felt that employees who signed would be disenfran-
chised from participating in a representation election. Union
authorization cards were distributed on this occasion and every
employee who attended signed a card.
At or about this same time, Antolovich met Mrs. Cole at a
wees ees oir her testimony to the effect that Antolovich
told her that the Com was to make a case against Lidell
Ford and asked her ne ane Oe poh! like to make $25? She flippantly
replied, “What do I have to do - kill someone?” Antolovich told her
that all she would have to do was to go into court and say she saw
Ford tampering with machinery. Mrs. Cole objected, saying that
she did not know anything about the machinery. Antolovich
replied that she could just say that she saw him tampering with
valves and hoses. Mrs. Cole refused, insisting that she would not
lie either for or against Ford.
On Monday, November 12, Respondent's supervisors, in-
cluding Hail, and Manpower representatives Allkins and Kuhn,
13a
met with all shop employees. At this time Hall announced that all
employees, except for “the original ten”, would be required to
transfer from the Middle Earth Graphics payroll to the Manpower
payroll. The “original ten” was Hall’s way of describing the
employees who had been working for him before the work force
expansion took place in spring of 1984. This number included the
pressmen, all supervisors and the office staff. The Manpower
representatives were asked a series of questions about seniority
and other matters. They answered some tions and were
unable to answer others. Hall was asked why this was taking place
and his only answer was, “No comment.” Cole and Cannon then
stated aloud that the only reason the transfer to Manpower was
taking place was because of the union. Hall said it was taking place
so that he could protect himself from what Lidell Ford had done the
preceding week.
Later on that day in a private conversation, Mrs. Cole asked
Hall what would happen if she refused to sign up for Manpower.
He replied that she would be fired. She said that she did not want
to become a “rent-a-jerk.” Hall told her that he did not care if a
union did come into the plant, observing that he had enough
money and could quit and close the doors. After consulting with
her husband, Mrs. Cole resigned.
On the following day Cannon was terminated just after he
reported for work. When Antolovich gave him the news his reply
was, “I knew it was coming.” Antolovich told Cannon that he
found a number of mistakes in Cannon’s work the day before.
Cannon argued that Antolovich was in no position to complain
about Cannon’s work when Antolovich’s brother, Walter, also a
merger, was “goofing off.” Antolovich said that he would divide
up the mistakes which had been found between Cannon and his
brother. However, Walter Antolovich was not disciplined.
On Wednesday, November 14, a third meeting was held
between a Manpower representative and the production and
maintenance employees. Miss Kuhn represented Manpower on
this occasion. She attempted to answer employee questions which
had been left unanswered during previous meetings. Thereafter,
she conducted private interviews at which time she solicited appli-
cations from those who were being required to transfer.
On November 14, Tap called Garry Root into his office and
asked Root if he had heard about any union activities. Root replied
that he had talked to someone about the union the previous week.
Tap asked Root whom he had talked with, but Root refused to
l4a
answer. Tap went on to ask Root if he had seen any union cards.
Root replied untruthfully that he had not seen any.
At orabout this same point in time, Tap had a conversation
with Lamar Edwards, the janitor and maintenance man. He asked
Edwards if Edwards had signed for the union. Edwards replied
that he had not done so. Tap then asked Edwards if Edwards had
received a union card from Garry Root. Edwards had in fact re-
ceived a union card from Garry Root. After engaging in a conver-
sation with another employee named Dove, Edwards showed the
card to Tap. Tap if he could make a copy of the card and
Edwards consented. Tap then asked Edwards if Garry Root had
signed him up on the Company property. Edwards replied that
Root had come to his house and signed him up there. Tap then told
Edwards that Garry Root had “lied to save his own ass” because
Root had told Tap something else. He then instructed Edwards to
return to the merging line.
On the morning of Thursday, November 15, both Root and
Olson came to work wearing union buttons. They had attended a
union meeting the night before and presumably had obtained the
buttons at the meeting. Hagenbarth asked them when they arrived
whether they had signed up for Manpower. All three replied that
they had not done so. Hagenbarth told them that, if they had not
signed with Manpower, they would have to leave the plant. Garry
Root replied that he did not work for Manpower, “I work for
Middle Earth Graphics.” Hagenbarth told Root that he could not
give him his check until he signed for Manpower. Root told
Hagenbarth to get someone with authority.
Mrs. Root went to her job and began to work. Some of her
fellow employees asked her if she had signed up for Manpower.
She replied that she had not done so and that she was not going to
so do because she was trying to get a union into the plant. Not long
thereafter, Mrs. Root heard Antolovich report this conversation to
Hall in Hall’s office. Antolovich told Hall, “You’ve got to do
something. Those people are downtalking Manpower and talking
union. We've got to them out of there.”
Before long, Hall, Tap and Antolovich came into the bind-
ery and went up to Garry Root. Hall asked Root if he had signed up
for Manpower. Root said that he had not done so, adding that he
was working to get a union into the plant. Hall stepped toward
Root, backed him into a machine, and called himans.o.b. Root said
tauntingly that Hall would love to have an excuse to hit him. Hall
replied that he knew a hundred people in Kalamazoo who would
15a
like to hurt Root. Hall then instructed Tap to call the police. Shortly
thereafter, they arrived. Hall pointed to both Root and Olson and
asked the police to remove them. As the police began to do so, Mrs.
Root asked one of the officers why she was re ee to leave
and he replied, “Trespassing.” She objected, telling the office that
she had punched in and was just doing her job. Hall insisted that
she be removed as well and she was.
Wayne Ford had originally signed an application for Man-
power but then withdrew it on ~ S 16 by calling the Man-
power office. On November 19 when he went to work, Tap asked
him if he had signed for Manpower. W. Ford replied that he had
done so but had withdrawn his application. e: en told him that
“we no longer need | er whereupon W. Ford left the plant.
Manpower’s invoices for the first two weeks of its contract with the
Respondent indicate that it supplied the Respondent with 11
newly-recruited employees during this period — Lynne M. Alston,
Sheila A. Forney, James A. Feringa, wwe. J. Hosteller, Michael
J. Stanfill, Gerald L. Stump, Veronica D. Swift, Deborah E. Tailey,
Cheryl A. Heighton, Julie K. Kimball, and Jerome W. Phelps. They
also indicate that 19 former Middle Earth Graphics employees were
transferred to the Manpower payroll — Walter Antolovich, James
H. Butler, Dale E. Croy, Houston B. Ford, Bonnie K. Garton, Mary
Ann Hollis, Michael J. Ibach, Scott R. Kellogg, Lamar Edwards,
Mytris McCants, Ricardo Nunn, Margaret A. Ross, Debra L. Schrock,
Calvin C. Shafer, Jr., Brenda K. Van Tilberg, Charles J. Deneau,
Tamara Stickney, Janet M. Van Tilberg, and Phyllis J. Narlock.
Between November 13 and November 29, the first series of
unfair labor practice charges in this dispute were filed. On Novem-
ber 21, the union filed a representation petition seeking to represent
the Respondent’s production and maintenance employees. That
petition is still pending, having been blocked by the outstanding
unfair labor practice charges against the Respondent.
Lidell Ford’s brother Houston Ford continued to work at
the Respondent's plant on the Manpower payroll. Sometime later
in November, Hall spoke with H. Ford about his brother's dis-
charge. He told H. Ford that he hated to fire Lidell but that Lidell
had been harassing employees and had tampered with the collator,
so that others who worked on the machine were prevented from
operating it to full capacity and making their full piecework incen-
tive rate. Hall added that Lidell was trying to bring a union into the
pliant, and there was “no way in hell” that he would permit a union
to come into the company.
16a
Hall also had a private conversation with Lamar Edwards
in late November, in the course of which he told Edwards that he
did not want to give anyone any trouble and he did not want
anyone to give him any trouble. words were that if someone
ve him trouble, “he would give it to him back”, mentioning that
e had an = who was a real troublemaker. Shortly there-
after, Hall told Edwards that he would be laid off for lack of work.
Edwards said that he would quit and apply for unemployment
compensation.
The original consolidated unfair labor practice complaint
was issued by the Regional Director on December 31, 1984. The
case was set for hearing on April 22, 1985. On that date, the parties
executed an informal settlement agreement, which included an
undertaking on the part of the Respondent to pay specified sums of
money to both Roots, Olson, Wayne Ford, Lidell Ford, and Cannon
in settlement of the outstanding complaint. It also obligated the
Respondent to offer these six individuals “full and immediate
reinstatement to their former jobs without prejudice to their senior-
ity or other rights and privil previously enjoyed” and to cease
and desist from committing er unfair labor practices.
There is no dispute that the Respondent paid to the six
discriminatees the sums required under the settlement agreement
or that it posted the required notice. At issue herein is whether the
Respondent offered these individuals full and immediate rein-
statement to their former jobs and whether it refrained from com-
mitting further unfair labor practices. Of the six discriminatees
who were parties to the April 22 agreement, only three ever worked
for the Respondent thereafter. Two did not begin to work until June
28 and the third did not start back to work until August 19. Neither
was working when the case came on for hearing again on January
28, 1986.
On May 9, 1985, Hall wrote identical letters to all six dis-
criminatees who were involved in the settlement agreement. The
letter read:
Pursuant to the terms of the settlement
agreement entered into between Middle Earth Graphics,
Inc., and the National Labor Relations Board, on April
22, 1985, you are hereby notified that you are reinstated
to your former position as an employee and any refer-
ence to your discharge and/or layoff has been removed
from your file.
17a
pe eet ot menpe requirements, there is
no work available for you at this time. However, you
will be given the normal notice when that does occur.
Therefore, you should keep us advised of your cur-
rent address.
During this same period in time, the ndent trans-
ferred nine former employees whom it was continuing to utilize on
the Manpower payroll back to their former status as Middle Earth
Graphics employees. These included Ann Ross, Charles Deneau,
Beth Breed, Debra Schrock, James Butler, Scott Kellogg, Bonnie
Garton, Calvin Schaeffer, and Brenda Van Tilberg. Some resumed
their places on the Middle Earth Graphics payroll on or before June
26, 1985, when the first two discriminatees came back to the plant.
All were back by August 19 when the third discriminatee returned.
Chalker explained that he had been told by Hagenbarth that it was
more expensive to maintain these individuals on the Manpower
payroll, with the attendant markup for Manpower’s services, than
to employ them directly as Middie Earth Graphics employees.
Hagenbarth testified that the anticipated savings in administrative
costs in the preparation of payrolls did not materialize. Hall was
asked why he transferred these individuals from the Respondent's
payroll to Manpowerand then back again. Hesaid that he assumed
that it was fora reason other than cost effectiveness but he could not
quite recall what that reason was.’ Nobody explained why it took
the Respondent over six months to come to the conclusion that it
was costing more to employ former employees on the Manpower
payroll than it cost to hire them directly.
Mrs. Root was recalled on June 28 to her position as a
bander. She was laid off again on July 2. She was recalled a second
time on July 30 and worked about two weeks, when she took sick
leave. She returned again on August 20 and worked until Septem-
ber 20, when she was laid off ostensibly for lack of work. She has not
worked since that time.®
7
Hall had a very selective memory and professed absence of recollection
on crucial matters relating to events in this case. He also was evasive in the
answers he did give. I note also his profane outburst during the hearing, the fact
that he was photographing witnesses in the hallway outside the hearing room as
they sat waiting to testify, and that he was coaching a company witness in the
hallway, prior to her testimony, notwithstanding the existence of a sequestration
order. In short, his partisanship at trial was unrestrained and out of control. |
discredit his testimony.
_ Mrs. Root testified that, during this period of her employment,
she wore a union button to work.
18a
Late in July when Mrs. Root was notified a second time to
report for work, her brother, Clark Olson, was at her home. Upon
learning of his sister’s recall, Olson phoned Chalker and asked hi
if he should come back to work as well. Chalker informed Olson
that there was no work for him and that there would be no work for
him in the near future. On or about August 9, an office employee,
identified only as Brenda, phoned Mrs. s home and asked for
Olson. He was not there. Upon receiving this information, Olson
phoned Chalker, who informed him that he had to op, he arr
updated as to his current phone number. Olson told that
he had the correct phone number. Chalker said nothing about
Olson’s reporting for work. He admitted at the hearing that he had
no work for Olson at that time. Shortly thereafter, Olson received
a letter, dated August 10 and ne, Hall, in which Hall simply
noted that Company records indi that Olson’s phone number
was the same as his sister’s number and reminded Olson that it was
his responsibility to keep the Respondent informed as to any
change in his address or phone number. It said nothing about
reporting for work. A few days later, Olson received a letter from
Hall, dated August 20, informing him that he was being dis-
charged, effective August 20, for his failure to report to work on
August 19.° Olson insisted at the hearing that he never received any
letter or other communication instructing him to report for work on
August 19 or any other date. Respondent insists that it mailed
Olson such a letter a few days before this date. While the Respon-
dent was able to produce copies of other similar correspondence
with its employees, it failed, in response to a subpoena by the
General Counsel, to produce a copy of the disputed notification
letter to Olson. I conclude that no such letter ever existed or was
ever sent.
On June 24, 1985, Csiszar, who by this time had become a
supervisor, phoned the Root house for the purpose of requesting
Garry Root to return to work. He spoke with Mrs. Root. Upon
learning of the call, Garry Root returned it and was told by Csiszar
that there was work available on a six-hour-a-day basis and re-
quested Root to report the following morning. Root said he could
not do so, since he was working for Merchant’s Publishing Com-
pany and would be obligated to give them two weeks’ notice.
Csiszar informed Root that the job in question would last only two
weeks. Hall testified that Root was only being offered a couple of
days’ work. Root told Csiszar that he would have to have two
weeks’ notice of any offer to return and further informed Csiszar he
. Chalker stated at the hearing that he had only a day or two of work for
Olson on August 19 and that the purported offer was for temporary work.
19a
would not come back to work for the ndent on a six-hour-a-
pe Mar wed many Seed reed ene pho ~ as part-time. On the
following day, Garry Root received a letter from Hall, in which Hall
stated:
This letter is confirming the telephone conversation
Mike Csiszar had with wife Karen on Monday,
June 24. You were advieed t sepest to werk on
Tuesday, June 25, 1985, no later than 8:00 a.m.
Root did not report for work on June 25. Instead, he wrote Hall a
letter on that date which stated:
This letter is to acknowledge my conversation that I
had with Mr. Csiszar late in the afternoon of June 24,
1985.
As you are aware, Iam presently employed and it is
my contention that less than twenty-four hours no-
tice to return to work is less than adequate.
As stated in the settlement agreement, I am to be
reinstated to my former position with benefits as a
full-time employee. Mr. Csiszar informed me that
his offer was fora six-hour shift whichis less than full
time, and consequently without benefits.
Therefore, I am advising you that at this time your
offer is unsuitable and does not constitute compli-
ance with the settlement agreement. However, ifand
when a position of fulltime employment does open,
I would expect to be properly notified within (sic) a
timely fashion.
Root has heard nothing from the Respondent since that
time.
On June 26, 1985, Hall sent a certified letter to Cannon
instructing him to rt to work no later than Friday morning,
June 28, at 8 a.m. The letter was sent to Cannon at 207 Alamo Hills,
Kalamazoo. At that time Cannon had temporarily moved back to
his parents’ home in Grand Rapids in order to assist in caring for his
father, who was ill. When Cannon eventually received the letter, he
— the shop and spoke to a secretary identified only as Sandy.
e asked to speak with Hall and with other supervisors. He was
told by Sandy that they were busy and could not speak with him.
20a
This is the last communication that he has received from the
Respondent.
A letter, dated June 26, was sent by the Respondent to
Wayne Ford him to report for work on June 28 no later
than8 a.m. W. Ford did so and was assigned to run the collator.
Later that day, Chalker moved him to the line. W. Ford
was employed as a collator operator before his This was
sabolana tad iematiriond eats ekientiod o's. Eswever
rate which was attached to it. However,
anyh abomen 0} wha here without incentive. W.
Pout we til July 2 when he was laid off. At that
time he asked A Antolovich w when he would be recalled. Antolovich
told him that he would give him a call or stop by his apartment to
inform him when work would again be available.
W. Ford heard nothing more from the Respondent for
nearly a month, so he went to the plant and spoke with Chalker.
Chalker told him at this time that, in order to come back to work, he
would have to have a phone so that he could be notified at short
notice that work be available. Ford pressed Chalker to learn
when work would be available. Chalker’s only reply was to let him
know when he had a phone installed in his apartment because he
did not want to have to go through third parties in order to cal] him
back to work. On August 9, W. Ford received the following letter
from Hall:
Rod Chalker called your phone number on August
7, 1985, that you have given us to call. He received a
recording stating that the number had been discon-
nected.
The scheduling of the work that you qualified for
does not allow the time to notify you by mail.
It is your responsibility, as an employee, to in-
form Middle Earth Graphics, Inc. of any changes of
your address and/or phone number.
Respondent sent W. Ford another letter, dated August 13
and signed by Hall. It read:
This letter is to confirm Rod Chalkers [sic] in-
struction of August 12 when you came into the shop,
that we need a phone number to reach you when
there is work.
2la
|
Our work load does not permit the time to notify
people by letter.
If we do not hear from you by Monday the 19th,
we will assume that you do not want to work here.
On Monday, August 19, at about 3:50 a.m., Chalker gave W.
Ford a call from yee 7 shan bo doe malcom froma “V7
engagement and, going to a to contact
Ford to tell him to come to work that morning. Chalker reached a
neighbor of Ford who lived ina downstairs apartment. He told the
r that he was Ford’s boss and wanted to speak with him.
The neighbor went upstairs, knocked on the door of Ford’s apart-
ment, and a him to relay this messa Meanwhile,
Chalker was placed on hold. By the time that Ford had dressed and
had come downstairs to take the phone call, Chalker had hung up
without disclosing to anyone the substance of what he wanted to
say to Ford. Ford went back to bed. The next day, Ford received a
letter, dated August 20 and signed by Hall, which stated:
This is to inform you that your failure to report to
work by Monday, August 19, 1985, results in the
termination of youremployment Middle Earth Graph-
ics (sic) as of August 20, 1985.
Chalker stated in his testimony that he had only one to three days’
work available for W. Ford at that time.
In mid-July, Lidell Ford com - oe to the Board agent who was
supervising compliance with the settlement agreement that he
had not been recalled to work. On Au 1, 1985, Production
es Douglas B. Harris wrote L. Ford a letter, which stated as
llows:
This letter is to inform you that as of August 1,
1985, Middle Earth Graphics is giving you a two
week notice to report to work.
There is presently work available for vee If you
desire work, please let us know i iately and
report to work no later than 7:30 a.m. August 19, 1985.
Shortly after receiving this letter L. Ford called the plant and spoke
with er. He told Chalker that he would like to come back to
work on August 12 but was not sure that he could make it by that
date because he was having car trouble and wanted to get his car
22a
mg at tenn SS He also told Chalker that, if he could
preg men hes ov 2, he would certainly be back to work by the
19th. Chalker told him that he should simply call the plant during
business hours and let the Company know the date on which he
would actually return. Ford asked Chalker if he would
experience any trouble after he came back. Chalker replied that he
would have no trouble “as long as (he) did his work, kept (his) nose
clean, and didn’t talk union.” On or about Au 15, Ford called
the plant, talked to a clerical employee named Brenda, and told her
that he would be in on August 19 at 7:30 a.m.
When Ford reported for work on August 19, Chalker told
him to go to work on the coilator he used before being
discharged but instructed him to set it up in the stitcher mode for
a practice run. While operating this machine (sometimes called a
Harris multibinder) in 1984, Ford had used it only for collating
pages of the Cadaco games into sets of nine. With the addition of
dif t accessories, the multibinder can also be used to fold pages
of printed material and to stitch or = the folded pages together
into booklets. To operate the in a stitcher mode, it is
necessary to attach the stitcher head, insert a spool of wire used for
stitching, attach different receiving trays, and make various adjust-
ments in order to permit the e to perform these facets of the
operation in proper sequence. Timing is of critical importance in
setting up the machine in the stitcher mode.
Ford had never before set up the machine in the stitcher
mode, nor had he operated it as such. His familiarity with the
machine was Jimited to its use as a collator. During the interim
while the discriminatees were away, the Respondent had pur-
chased a new collator which assembled packets of 10 pages rather
pore Dates om lhe we see urpose and
relegated the older machine to occasional use as a stitcher. The only
person employed by the Respondent who was skilled in setting it
up and operating it in the stitcher mode was Csiszar. He was on
vacation on August 19. Chalker was familiar with this aspect of the
operation but did not regularly operate the machine for stitching.
Hall had instructed Chalker to assign Ford to the stitcher
upon his return to the plant. Chalker admits that he had reason to
believe that Ford have difficulty in setting up the machine
and in operating it in the stitcher mode. He was correct in his
assumption. After working on the machine for several hours, Ford
was unable to set it up to get it into operation. He could not
attach the collator to the stitcher. On several occasions, he asked
Chalker for assistance in setting it up and each time Chalker refused
23a
to help him, claiming that he was too busy with other matters. Ford
asked for the machine manual and Chalker brought it to him, but
Ford was unable to complete the set up work with the assistance of
the manual. Two other employees, including Houston Ford, came
over to help L. Ford on their lunch hour but Chalker told them to
leave L. Ford alone.
By early afternoon, Ford still did not have the machine in
operation and Chalker reported this fact to Hall.” He told Hall that
Ford could not set up the machine and was not getting out any
production. Respondent then made up a written statement, dated
August 20, 1985, which read:
I cannot set up and run the muitibinder that Rod
Chalker has asked me to set up and run.
There wasa place following this statement for Ford’s signature and
the signature of a witness.
Chalker took the blank statement to Ford and asked him to
sign it. Ford insisted that he could get the machine in operation and
declined to do so. After Ford had worked unsuccessfully for
another hour orso on the multibinder, Chalker again presented the
paper for Ford’s signature and insisted that he sign it. Ford did so
but told Chalker that he was signing it under protest. Chalker then
summoned Margaret Ann Ross to the machine and asked her to
sign the statement as a witness.
At this time, Ford was reassigned to become a collator
operator's helper. Chalker explained that this was the only other
job available.. In doing so, he took a cut in pay from $5.50 to $4.00
an hour, without incentive bonuses.’ Ford continued to work at
this job until September 20, when he was laid off, ostensibly for lack
of work. He has not worked at the plant since that time.
10
There is no contention that Ford was malingering. Chalker testified that
he felt that Ford was making his best effort to get the stitcher in operation.
= Inaddition to demoting Ford, Chalker then gave him a disciplinary write-
up, which he dated August 13. The write-up stated:
Lidell called me at my mother’s house on 8-3-85 and said that
he would come to work on... 8-12-85. He didn’t call in a day later. He
has had 2 verbal warnings before and 1 wk. suspension.
Action taken: 3rd verbal warning. Next action taken will be
suspension and after that termination.
24a
Salis det Cnihiil
In order for the Board to set aside the settlement agreement
of April 22, 1985, it is necessary for it to find that the conduct of the
Respondent following the execution of this agreement either vio-
lated specific und ings set forth therein, or that the Respondent
committed additional unfair labor es, which, in general
terms, it also agreed to avoid when it signed the settlement. As
discussed in more detail, infra, the Respondent failed utterly in its
obligation to offer the six discriminatees full and immediate rein-
statement to their former or substantially equivalent positions.
Moreover, the Respondent committed additional ir labor
practices which also vitiated any accom it might otherwise
enjoy from prosecution for unfair labor practices committed before
the settlement was signed. In order to treat the events in this record
in approximate chronological sequence, the analysis of the record
should begin with a consideration of the Respondent's pre-settle-
ment conduct.
1. Evidence of Animus
Quite apart from any specific violations of the Act alleged
and found in this case, the Respondent demonstrated clear evi-
dence of animus which should be considered in placing the events
described herein in proper focus. Among the documents in the
record is a large multi-colored brochure which the Respondent has
printed and circulated to advertise the capability of its new multi-
color press. The document is a humorous elaboration of Hall’s
tongue-in-cheek proposal for a new 51st state, to be carved out of
the existing state of Michigan and named Six-One-Six after the
telephone area code for Western Michigan. Entitled “A New State.
A New Start.”, the brochure features Hall as its centerfold, dressed
in regal attire and holding a sword and scepter. Also portrayed on
this page are two cartoon figures, dressed as attendants from an
insane asylum, who are chasing Hall and are making ready to
apprehend him and place him in a straightjacket. ide the
brochure is a large map of Michigan. The eastern half is portrayed
as a barren wasteland while the western half - State Six-One-Six - is
shownasa flourishing, verdant paradise. At the center of State Six-
One-Six is its capital, Kalamazoo. Access to Six-One-Six from
Eastern Michigan is limited to a drawbridge over a moat. This
feature is captioned:
Access to the State of Six-One-Six will be severely
_ restricted. Drawbridges will be raised to keep out
such undesirable elements as labor organizers, dead
25a
beats, carpetbagging politicians, and itinerant law-
yers.
When asked at the hearing if he was opposed to unions, Hall
replied: “Just in Six-One-Six.”
2. Independent Violations of Section
8(a)(1) of the Act
(a) When, in June of 1984, Hall told the Roots that a union
would never come into the plant and that he would close the doors
before letting a union come in, the Respondent violated Section
8(a)(1) of the Act.
(b)When, in late May or June of 1984, Hall told Lidell Ford
_that he would “close the g.d. doors” before he would permita union
tocome into the shop, the Respondent violated Section 8(a)(1) of the
Act.
(c)When, during the same period of time, Chalker told
Lidell Ford that he felt that Hall would close the plant before he
would permit it to become unionized, the Respondent violated
Section 8(a)(1) of the Act.
(d)When, on November 9, Chalker told Debra Schrock that
she did not have to sign up for Manpower if she did not talk union
in the shop, the Respondent violated Section 8(a)(1) of the Act.
(e) When, on November 10, Antolovich told the mergers
that any further talk of unionization would cause the Respondent
to close the plant doors and lay off its employees permanently, the
Respondent violated Section 8(a)(1) of the Act.
(f)When, on or about November 9, Antolovich solicited Pa-
tricia Ann Cole to commit perjury in order to support the
Respondent's case against Lidell Ford, the Respondent violated
Section 8(a)(1) of the Act.
(g)When, on November 14, Tap coercively interrogated
Garry Root in his office as to whether Root had heard about any
union activities, with whom he had discussed unionization, and
whether he had seen any union cards, the Respondent violated
Section 8(a)(1) of the Act.
(1)When, on or about November 14, Tap asked Edwards if
he had signed a union card and when he asked Edwards if he could
26a
duplicate a copy of a union card in Edwards’ possession, the
ndent violated Section 8(a)(1) of the Act. When, in the course
of the same conversation, Tap told Edwards that Garry Root had
lied about Root’s union activities “to save his ass”, the Respondent
further violated Section 8(a)(1) of the Act.
(i) When, in late November, Hall told Houston Ford that he
had fired Ford’s brother in part because he was trying to bring a
union into the plant, and when he told H. Ford that there was “no
way in hell” that a union would come into the plant, the Respon-
dent violated Section 8(a)(1) of the Act.
(j) When, in August, 1985, Chalker told Lidell Ford in the
course of a phone conversation that there would be no reprisals
against Ford when he returned to the plant so long as Ford did his
work, kept his nose clean, and did not talk union, the Respondent
violated Section 8(a)(1) of the Act.
3. The Discharges of the Roots, both Fords,
Olson, and Cannon in November, 1984
All six discriminatees named in the original Complaint and
made parties to the Settlement Agreement were union supporters.
Except for Lidell Ford, all had signed union cards before they were
discharged. Mrs. Root was the original contact between the
Respondent's employees and the Union. Ford had renewed this
contact the night before he was discharged. All were discharged by
an irascible and outspoken employer whose intense and impla-
pe anti-union sentiments have been itemized and documented
above.
All six were also known to the Respondent to be union
sympathizers. Mrs. Root made known her views in September
when, in the presence of Antolovich, she shouted angrily to other
employees that they needed a union because she couid obtain no
redress of a grievance concerning the maintenance of [sic] watch-
dog behind the plant. Lidell Ford warned mergers on the afternoon
of November 7 that they would forfeit their right to organize the
Middle Earth Graphics plantif they became Manpower employees.
His remarks were immediately rted to Hall In a private
conversation in the summer of 1984, Wayne Ford had made his pro-
union sympathies known to Antolovich. Moreover, his close
family relationship with Lidell certainly placed him under suspi-
cion that he harbored the same sentiments which his brother
essed. Cannon voiced pro-union sentiments on the merging
line in Antolovich’s presence and again at a meeting of employees
27a
attended by Hall and other supervisors. Olson and Garry Root
were close relatives of Karen Root and, like Ford’s brother, likely
candidates for Company suspicion that they engaged in union
activities. Garry Root was the subject of considerable interrogation
by Tap and also the subject of Tap’s statement to Edwards that G.
Root had lied about union activities “to save his ass.” Both Roots
and Olson wore union buttons to work the day they were dis-
charged. I have also credited a reported statement in the record by
Antolovich that the Company was maintaining a complete record
of who talked union at the plant. Certainly sucha record must have
contained the names of most, if not all, of the above-named employ-
ees since they did discuss unionization at the plant.
The discharge of Lidell Ford was a clumsy fabrication from
beginning to end. Apparently someone vandalized the collator on
November 6. The Respondent admits that anyone in the plant
could have damaged the machine. Having heard of Lidell Ford’s
union outburst the following day, he then became the likely candi-
date, and was the subject of an investigation designed not to find
out who actually damaged the machine but to a rap on Ford as
the guilty party. Following the procedure of “verdict first, trial
later”, three supervisors came to the conclusion that Ford was the
culprit. He was never asked if he was the one who damaged the
machine. Hall admitted lying to Ford during the discharge inter-
view by telling Ford that he had in his possession written state-
ments naming Ford as the guilty party. He had nosuch statements.
Serious efforts were taken to obtain such evidence in the days
following Ford’s discharge. One supervisor asked another em-
ployee to lie about seeing Ford tamper with thecollator. Two other
employees - whose stories were at wide variance - ultimately
signed a paper implicating, though not directly naming, Ford as the
one who damaged the machine. However, this statement was not
in Company hands until long after Ford was discharged. Like the
hearing examiner at the Michigan Employment Security Commis-
sion who heard this same defense during an unemployment com-
pensation case, I conclude that there is not a shred of evidence that
Ford damaged the Respondent's collator, either deliberately or
through negligence. Moreover, the behavior of the Respondent
makes it abundantly clear that it had no reasonable grounds to
believe that Ford had done so and was scurrying about to find an
evidentiary basis to support an action it had already taken. Later
on, Hall admitted to Ford’s brother that Ford’s union activities
played a partial role in his discharge. Coming as it did one day after
Ford had urged mergers to refrain from signing up for Manpower
so they could continue their organizing efforts, Ford’s discharge
was the direct result of Ford’s union activities, which were the only
28a
reason for his termination. By wert, at Ford the Respondent
violated Sections 8(a)(1) and (3) of the Act.
Thenext to go was Cannon. Like L. Ford, he was discharged
within twenty-four hours after making a pro-union statement in
the presence of supervisors. He Sper sopane publicly, in the pres-
ence of Hall and others, that the o Prospateshe ams. Sypewal
power into the plant was to stymie the organizing effort. The
asserted reason for Cannon’s discharge was errors made on the
merging line. There is no doubt that he made some errors the day
before in selecting collated of game sheets for merging into
a full orcompleted packet. The exact number of errors is unknown,
as is the magnitude of these errors in the context of the Respondent's
operation. Antolovich’s brother was guilty of similar errors on the
same day and this fact was brought to the attention of Cannon’s
supervisor when the discharge was announced. The only reply
made by D. Antolovich was that he would divide up the errors
found and attribute an equal number to the other merger. How-
ever, he did not exact the same penalty from his brother that he did
from Cannon.
Cannon had been an employee of the Respondent for nearly
six months. His virtues and faili gs as an employee were well
known. His discharge follows the familiar pattern of a marginal
employee whose deficiencies could be overlooked until he became
interested in union activities, at which time they were no longer
tolerable. V
ai KIC : . L iit
The decision of the Respondent in November, 1984, to
require all of its employees other than the “original ten” to sign up
for Manpower bears considerable scrutiny. Expressions in the
record about “signing up for Manpower” tend to obscure the fact
that all of the affected employees were in fact discharged by the
Respondent. Whether or not any such employee signed up for
Manpower after being discharged simply indicated whether or not
he or she continued to perform work in the Respondent's plant.
Those who opted for this route were no longer Middle Earth
Graphics employees any more than were those who left the plant.
Properly viewed, the question at issue is whether the decision of the
Respondent to discharge all except its long time employees was
discriminatorily motivated, or was it prompted by considerations
29a
falling within the scope of business judgment.
This decision was taken at the same point in time that union
activity began to surface at the Respondent's plant. Moreover, the
economic benefits and cost effectiveness of the move were only
casually considered by the Respondent before the decision was
taken, if, indeed, such matters were even considered at all. Thirdly,
at the beginning of May 1985, many of the employees who were
required to become Manpower employees were back on the
Middle Earth Graphics payroll. One of the reasons advanced by
supervisors for this contrary move was that it was costing the
Respondent more to maintain individuals on the Manpower pay-
roll than it was to employ them directly. Hall stated in his
testimony that the later move in 1985 was taken for reasons other
than cost effectiveness. A fourth consideration relates to some of
the reasons offered by Hall for making the move in the first place.
Beginning in May of 1984, Respondent had experienced a sudden
ion of its work force. Many of its new employees proved to
be unreliable and it was occasionally faced with shortages of
unskilled (and sometimes semi-skilled) help to get out Cadaco
orders. As Manpower representatives might well have pointed
out, this was a situation in which a supplier of temporary help
could be of assistance by providing, at short notice, additional
employees to supplement absences or vacancies in an existing
work force. Supplying temporary help for peak production periods
or to replace absentee employees is one of the principal functions
served by such companies. Hectic production problems fail to
answer the question why the Respondent not only asked Man-
power for additional help to get it through peak periods and to
compensate for absenteeism among its regular work force but also
placed some nineteen of its regular employees on the Manpower
payroll under circumstances which admittedly proved more costly
than simply keeping them on as Middle Earth employees and
supplementing their efforts from time to time with temporary
workers supplied by an outside firm.
The only excuse which lends any credence to the legitimacy
of this decision is Respondent's excuse that it was trying to provide
its regular employees with a source of income and employment if
and when the Cadaco job ran out. Actually, the evidence in the
record indicates that the Cadaco jobs continued to be produced in
large quantities throughout the fall and winter of 1984-85. More-
Over, it is also clear from the record that the Respondent’s own
income nearly doubled in 1985 over 1984. It had many commercial
accounts other than the Cadaco job and it continued to service those
accounts.
30a
The record herein discloses that, at the time a union organ-
izing drive surfaced, a bitterly antagonistic employer fired several
key in-house organizers and discharged the bulk of its new em-
loyees, seyret they could continue to earn a liveli-
ood in its t only as the employees of another em-
re be Six months later, whan it was faced with the prospect of
ging union sympathizers back to its payroll, it then transferred
back to the same payrolls admittedly for reasons other than cost
effectiveness, a number of former employees who had continued to
work for it throughout the winter without engaging in any union
activities. The of the second move - g a prospective
unit with employees of another employer power)
to offset the return of union sympathizers - is simply reverse spin
on the same tactic it followed in November. Respondent manipu-
lated its staff to prevent unionization in November by transferring
employees out and, faced witha contrary situation in May, took the
opposite tack for the same underlying reason.
As the General Counsel points out, the Respondent's origi-
nal intention was a use Manpower employees to replace its
merging employees. When evidence evolved that union sentiment
was spreading ae ey the plant, the Respondent enlarged
upon its original plan and discharged all of its bindery employees.
By subcontracting this work to Manpower to avoid the unioniza-
tion of its employees the Respondent violated Sections 8(a)(1) and
(3) of the Act. The General Counsel doe not seek a remedy for all
of the employees who were treated in this fashion. However, the
Roots, Wayne Ford, and Olson were seen as prominent in the union
effort and were discharged as a part of f this defensive scheme.
Accordingly, their discharges violated Sections 8(a)(1) and (3) of
the Act. The fact that any or all of them could have applied for and
obtained jobs with Manpower is an irrelevancy which bears, if
anything, only upon the remedy in this case, not upon a determina-
tion of whether in fact a violation of the Act took place when they
were discharged.
4. Reinstatement and Post-Settlement Activity
Itis well settled that ee activity of a respondent
may be examined and relied upon in assessing its conduct follow-
ing the execution of the settlement agreement to determine if any
st-settlement conduct amounts to an unfair labor practice. La-
borers’ Local 185 (loseph’s Landscaping), 154 NLRB 1385; Lawyers
273 NLRBNo. 31. To warrant
setting aside a settlement agreement, the General Counsel must
establish that, following the execution of the agreement, the Re-
3la
spondent either failed to comply with its specific terms or that it
engaged in su ent unfair labor practices. If the General
Counsel is successful in establishing either or both of these facts,
then the settlement agreement may be treated as if it had not been
executed, and the original complaint, as well as any subsequent
complaint, may be prosecuted as if the settlement had never taken
place. Contrary to contentions made by the Respondent, the mere
execution of a settlement paper constitutes neither the with-
drawal nor the dismissal of a complaint and does not bar future
prosecution if the settlement is not honored.
The ee a on April 22, 1985, to offer to
the six named discriminatees and immediate reinstatement to
their former or to substantially equivalent employmentin the event
that their former jobs no longer existed. What constitutes a valid
offer of reinstatement has been the subject of extensive litigation
extending over a long period of time. In order to constitute a valid
offer of reinstatement, the offer of work must be specific, unequivo-
cal, and unconditional.” The work offered must entail similar
skills, similar pay, and similar working conditions. A mere in-
quiry, directed to an employee for the purpose of ascertaining
whether or not he is available for work, does not constitute an offer
of reinstatement.'* Asking employees to come back to work and
then telling them that business had not picked up sufficiently to
permit reinstatement is a contradiction that accounts to no offer of
reinstatement at all.* An uncommunicated offer of reinstatement
is no offer of reinstatement at all."* An employee has no obligation
to decide whether he wishes to return to work until he has received
a valid offer of reinstatement.'? Only when an offer of reinstate-
ment has been unequivocally rejected is an employer relieved of his
Information Control Corporation, 196 NLRB504;
etc, 208 NLRB 882; Standard Aggregate Corporation, 213 NLRB 154; Moro
Motors, Ltd, 216 NLRB 192.
7 Holiday Radio, Inc, 275 NLRB No. 184.
= Rea Trucking Company, 175 NLRB 520; National Business Forms, 189
NLRB 460.
os W.C. McQuaide, Inc., 220 NLRB 593, enf. in pertinent part 552 F.2d 519
(3rd Cir., 1977)
‘¢ LH. Rutter-Rex Manufacturing Co, 158 NLRB 1414.
17 ‘The Richard W., Kaase Company, 162 NLRB 1230.
32a
duty to reinstate an employee.” An offer of a few days work or an
offer of part-time work to a full-time employee does not constitute
an offer of reinstatement.’® An employee must be given a reason-
able time in which to accept a valid offer of reinstatement. Two and
four days, respectively, as well as three weeks, have been held not
to be a reasonable time to accept such an offer.” Conditioning re-
instatement on avoidance of future union activities is not a valid
offer." If an employer asserts an economic defense, such as un-
availability of jobs, to justify not making a valid offer of reinstate-
ment, the burden is upon it to establish such a defense by a
nderance of le evidence.” Tested by these principles,
the ndent herein has yet to make a valid offer of reinstate-
ment to any of the six discriminatees in this case, with the possible
exception of Karen Root.
Under certain circumstances, dn economic defense may
serve to toll the backpay liability of an employer who is under an
obligation to offer reinstatement to nd employees and does
not do so. However, no economic d short of plant closing
serves to erase the reinstatement obligation of an employer who is
required to offer reinstatement and has failed to do so. In this case,
the Respondent aay fr games with the six discriminatees in an
effort to strike them from its rolls ona permanent basis while giving
lip service to the obligation it incurred when it signed the April 22
settlement. The letter which the Respondent wrote to the six
discriminatees on May 9, offering reinstatement but no jobs, was
patent nonsense. Whether it tolled a backpay liability will be
discussed infra. As satisfaction of a reinstatement obligation it was
a nullity.
It should be noted that all six discriminatees were perma-
nent full-time employees. The definitions of permanent employee
and full-time employee are contained in the Respondent’s hand-
book, either explicitly or by necessary inference. The handbook
vi Leo Rosenblum, d/b/a/ Crown Handbag of California, etc,, 137 NLRB
1162. é
- Flite Chief, Inc, 258 NLRB 1124; C.S. McCrossan, Inc., 272 NLRB 414;
Seyforth Roofing Co. of Alabama, Inc., 263 NLRB 368.
ps Matlock Truck Body and Trailer Corp, 248 NLRB 461; Harowe Servo
Controls, Inc., 250 NLRB 958; Browning Industries, Inc. 213 NLRB 269.
S Standard Aggregate Corporation, supra.
” W.C. McQuaide, Inc, 237NLRB 177
33a
defines probationary employee as one who has worked more than
three months. By implication anyone who had served more than
three months was no longer in this status. If he was also a full-time
em a le for certain stated company benefits. All
of tees had worked at least five months at the — of
their respective discharges and were eligible for company ts.
A full-time employee is defined in booklet 1s om who
works an average of 36 hours a week or more. Thisd ion fitted
all of the discriminatees, many of whom were complaining because
they had been working 50 or 60 hours a week. the Respon-
dent began referring to them and to others similarly situated as
part-time employees, it was not only violating common usage in
the English language but the definition contained in its handbook.
The offer of a few days’ work to Karen Root late in June,
1985, did not constitute reinstatement to her former or substantially
equivalent employment. It was only an offer of a few days’ work,
not permanent employment. Her recall late in July was arguably
reinstatement toa permanent position. However, she worked only
six more weeks before she was laid off again. She has not been
recalled since that layoff. When she was laid off again in Septem-
ber, Plant Manager Harris told her that the layoff would be short,
that he was — operate ona skeleton crew fora week, and that
she would be called back in order of seniority. In fact, throughout
the fall of 1985, others with less seniority than Mrs. Root continued
to work along with employees who were brought in from time to
time from various temporary services. Despite the fact that the
Respondent has continued to prosper and to produce substantial
numbers of Cadaco games along with its regular commercial work,
Mrs. Root has not been working. I conclude that the layoff of Karen
Root on September 20 was discriminatorily motivated, as was her
discharge ten months earlier, and that by laying her off and failin
. recall her, the Respondent herein violated Sections 8(a)(1) and (3
of the Act.
Wayne Ford was recalled to work for two or three days late
in June. Since it was a recall to temporary work, it did not satisfy
the Respondent's reinstatement obligation. Moreover, the letter
which he received at that time giving him only a day’s notice to
report was not sufficient to satisfy a reinstatement obligation,
notwithstanding the fact that Ford was able to respond to it.
In early August, W. Ford called the plant and asked for
work. He was told there was none available. However, he was told
that he would have to maintain a telephone in order to be eligible
for recall. This instruction was confirmed by a letter which was
34a
sent the next day. Placing such a condition upon Ford’s right of
reinstatement violated the terms of the settlement a ent as
well as settled Board law. The call to W. Ford at 3: ee
morning for the asserted purpose of ha him report for two or
three days’ camaaetabae cotosmeneaee likewise is not a valid
offer of reinstatement. Inasmuch as never told Ford to
or even transmitted such a message through a third person,
qoadhwaseatenaiir eae. Rh wassnabdhyenest of hanssement.
Accordingly, I conclude that the Respondent failed utterly in its
obligation to offer W. Ford reinstatement to his former or substan-
equivalent work. Moreover, the ent was not satis-
fied merely to leave W. Ford in the position of an unreinstated
employee. When he did not report at 7:30 a.m. in response to an
offer which he did not receive, either actually or technically, it
discharged him in violation of Sections 8(a)(1) and (3) of the Act.
Late in June, Csiszar spoke with Garry Rootand offered him
what was essentially part-time employment of a temporary nature.
The offer failed to give Root a reasonable opportunity to conclude
his present employment and report for work. The excuse used with
respect to him as well as other employees, namely that the Respon-
dent could not give much advance notice or written notice to report
to work because of the sporadic nature of its operation, simply
illustrates that the offers which it was making to the six discrimi-
natees were not bona fide offers of permanent employment but
were merely attempts to remove the discriminatees from its rolls
while offering colorable compliance with the settlement agree-
ment. I conclude that the overture made to Garry Root was not a
bona fide offer of reinstatement and that the Respondent has failed
to comply with the terms of the settlement agreement with respect
to his employment.
I have concluded that, as a matter of fact, Olson was never
sent a letter of any sort which offered him emplo t of any kind.
Moreover, Chalker testified that the work available for Olson when
the disputed letter was sent was of two or three days’ duration.
Accordingly, Olson was never given a bona fide offer of reinstate-
ment, as required by the terms of the settlement agreement.
Hall's letter to Cannon, dated June 26, instructing him to
report for work no later than June 28, was insufficient notice to
constitute a valid offer of reinstatement. The fact that the letter did
not reach Cannon until several days after June 28 merely com-
pounds the failure of the Respondent to honor its contractual
commitment. When Cannon responded to the letter, the manage-
ment of the Respondent refused to speak to him, thus demonstrat-
35a
ing that the Respondent was simply trying to avoid bringing him
back to work while laying a paper trail suggesting compliance with
the settlement.
As noted above, a valid offer of reinstatement must be made
to the same position or to a substantially equivalent one. In the case
of Lidell Ford, he was brought back to work on August 19 at a job
which required the exercise of substantially greater skill than the
one which he vacated when he was The Respondent
had reason to believe that Ford was not capable of performing the
tasks to which he was assigned on August 19 because he had never
performed that job before. As anticipated, Ford was not up to
operating the collator in the stitcher mode nor was he able to set it
up forstitching. The reason he was assigned this was obvious. The
Respondent wanted to embarrass Ford and to put him ina position
in which he would either quit or takea lower paying job. Ford chose
the latter route. Chalker then decided to rub it in by giving him a
reprimand for reporting late for work when in fact he was told in
writing that he had until August 19 to report. The reprimand recites
allegations which were factually false and does so in such a manner
which laid a groundwork for a discharge for cause. The reason for
both of these moves was the Respondent's abiding hostility to
unionization and to Ford, whom it continued to regard as a princi-
pal cause of the union effort in its plant. The August 19 does
not amount to reinstatement and the reprimand, motivated as it
was by anti-union considerations, violated Section 8(a)(1) of the
Act.
Since the Respondent has yet to offer Ford a reinstatement
which comports with its obligations under the April 22 settlement
agreement or under the Act, that obligation remains in order to
remedy the unfair labor practice which it committed on November
8, 1984. During August and September, Ford continued to promote
the union cause actively. On September 20, 1985, he was laid off
along with Karen Root. As in the case of Karen Root, Ford was told
at this time that the layoff was prompted by lack of work and that
he would be called back in order of seniority when work again
became available. Respondent has not recalled Ford but continued
to employ individuals with less seniority, including persons re-
ferred by temporary employment services, throughout the fall of
1985. During this period of time, it has continued to performa large
amount of work both for Cadaco and for its other customers. As in
the case of Karen Root, I conclude that this layoff was discrimina-
torily motivated and, as such, violated Sections 8(a)(1) and (3) of the
Act.
The second Complaint all that certain of the
Respondent's actions violated Section 4) of the Act. There is no
doubt that the six discriminatees herein and others filed
and that certain unlawful acts were committed by the Respondent
following the filing of those charges. However, there is some doubt
that the filing of added anything but context to the actions
taken by the ent, ie., but for the filing of the charges, the
settlement agreement could never have taken place. However,
ent’s underlying motive was, and remained, its impla-
cab ns ge to unionization and to those who engaged in
union ities. The fact that these individuals sought redress with
the Board added nothing to the Respondent's determination to get
rid of them. Accordingly, I would so much of the Consoli-
dated Complaint that & eges that the Respondent violated Section
8(a)(4) of the Act.
eet the foregoing findings of fact and upon the entire
record in considered as a whole, I make the following:
II. Conclusions of Law
1. Respondent Middle Earth Graphics, Inc., is now,
and at all times material herein has been, an employer engaged in
commerce within the meaning of Sections 2(2), 2(6), and 2(7) of the
Act.
2. United Paperworkers International Union, AFL-
CIO-CLC, isa labor organization within the meaning of Section 2(5)
of the Act.
3. By di ing James Cannon, Jr., Lidell Ford, Jr.,
Wayne Ford, Karen Root, Wayne Root, and Clark Olson
because of their union sympathies and activities, and by subcon-
tracting work to another employer and discharging employees in
order to prevent the unionization of the plant, the Respondent
herein violated Section 8(a)(3) of the Act.
4. By the acts and conduct set forth in Conclusion of
Law Number 3; by threatening employees that the Respondent
would close the plant if it became unionized; by coercively interro-
gating employees concerning their union activities and the union
37a
activities of other employees, by telling an employee that she
would not be discharged if she did not talk union in the plant; by
soliciting an employee to commit perjury in order to support the
Respondent’s version of a discharge; by poses, ben ere ogee that
another employee lied to prevent reprisals from
him for his union activities; by telling an employee that it ha fired
another employee because of his union activities, by tellin
employee that no reprisals would be taken against him if he bet
talk about the union; and by issuing a reprimand against an
employee in reprisal for union activities and for the purpose of
laying the groundwork for his eventual discharge, the Respondent
herein violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices have a close,
intimate, substantial, and adverse impact upon the free flow of
commerce within the meaning of Sections 2(6) and 2(7) of the Act.
Il. Remedy
Having found that the Respondent herein has committed
certain unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom and to take other actions designed to
effectuate the purposes and policies of the Act. Since the violations
of the Act found herein are repeated and pervasive, and since they
demonstrate an attitude on the part of this Respondent to behave in
complete disregard of the rights of its employees, I will recommend
to the Board a so-called broad 8(a)(1) remedy designed to suppress
— and all violations of that Section of the Act. Hickmott Foods,
Inc., 242 NLRB 1357. I will also recommend that the Respondent be
required to offer to James Cannon, Jr., Lidell Ford, Jr., Wayne Ford,
Karen Root, Garry Wayne Root, and Clark Olson full and immedi-
ate reinstatement to their former or substantially equi ivalent posi-
tions, without prejudice to their seniority or to aire hts which
they previously enjoyed, and that they be made whole for any loss
of pay or benefits which they may have sustained by reason of the
discriminations + apr ate against them, to be computed in accor-
dance with the Woolworth formula,” with interest thereon at the
adjusted prime rate used by the Internal Revenue Service for the
computation of tax payments. Olympic Medical Corporation, 250
NLRB 246; Isis Plumbing & Heating Company, 138 NLRB 716. I
will recommend that the Respondent be required to expunge from
its records any reference to the unlawful discharges or unlawful
disciplinary warnings relating to the discriminatees herein, and
23 F.W. Woolworth Co., 90 NLRB 289.
38a
that it notify these employees in writing that such acts have been
done and that their unlawful discharges and unlawful discipline
will not be used as a basis for future disciplinary actions against
them. I will also recommend that the Respondent be required to
post the usual notice, advising its employees of their rights and of
the results of this case.
Upon the foregoing findings of fact and conclusions of law,
upon the entire record herein considered as a whole, and pursuant
to Section 10 (c) of the Act, I make the following recommended:
ORDER
Respondent Middle Earth Graphics, Inc., and its officers,
agents, supervisors, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities and the union activities of other employees.
(b)Threatening to close the plant if the employees
become unionized.
(c) Telling employees that they will not be dis-
charged or suggesting that reprisals will not be taken against them
so long as they refrain from talking about the union.
(d) Soliciting employees to commit perjury in order
to support the Respondent's version of a discharge.
(e) Telling employees that other employees lied to
prevent reprisals from being taken against them for their union
activities.
(f) Telling employees that it had fired another em-
ployee because of his union activities.
(g) Issuing reprimands against employees in repri-
sal for their union activities or for the purpose of laying the ground-
work for an eventual discriminatory discharge.
- If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as pro-
vided in Sec. 102.48 of the Rules, be adopted by the Board andall objections to them
shall be deemed waived for all purposes.
39a
(h) Discouraging membership in and activities on
behalf of United Paperworkers International Union, AFL-CIO-
CLC, or any other labor organization, by discharging employees,
contracting out their work, or otherwise discriminating against
them in their hire or tenure or in their terms and conditions of
employment.
(i) By any other means or in any other manner inter-
fering with, restraining, or coercing employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative actions designed
to effectuate the purposes and policies of the Act:
(a) Offer to James Cannon, Jr., Lidell Ford, Jr., Wayne
Ford, Karen Root, Clark Olson, and Garry Wayne Root full and im-
mediate reinstatement to their former positions, or in the event that
such positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or to other rights which
they formerly enjoyed, and make them whole for any loss of pay or
benefits which they may have suffered by reason of the discrimina-
tions found herein, in the manner described above in the Section
entitled “Remedy.”
(b) Expunge from its personnel records any refer-
ence to the discriminatory discharges of the above-named employ-
ees and the unlawful disciplinary warning given to Lidell Ford, Jr.,
and notify each employee in writing that these discharges and
warning will be used as a basis for future discipline against them.
(c) Post at its Kalamazoo, Michigan, plant copies of
the attached notice marked “Appendix.” oy or of the Appendix,
to be furnished to the meatless ani by the ional Director for
Region 7 and signed by a representative of the epeadent shall be
posted by the Respondent immediately upon receipt thereof, and
shall be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, pny tm piaces mere +a
tices to employees are customarily posted nable steps
be taken to insure that such wa fg are not altered, ese ga or
covered by any other material.
™ 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 NA-
TIONAL LABOR RELATIONS BOARD” shall read “POSTED PURSUANT TOA
JUDGMENT OF THE UNITEDSTATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
40a
(d) Preserve and, upon request, make available to
the Board orits agents for examination and copying, all payroll and
other records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this Decision what steps
it has taken to comply herewith.
Insofar as the Consolidated Complaint herein alleges mat-
ters not found to be violative of the Act, the said Consolidated
Complaint is hereby dismissed. ,
Dated, Washington, D.C. June 6, 1986
Walter H. Maloney, Jr.
Administrative Law Judge
4la
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
MIDDLE EARTH GRAPHICS, INC., IS POSTING THIS
NOTICE TO COMPLY WITH THE PROVISIONS OF
AN ORDER OF THE NATIONALLABORRELATIONS
BOARD. THIS ORDER WAS ISSUED AFTER A HEAR-
ING BEFORE AN ADMINISTRATIVE LAW JUDGEIN
WHICH WE WERE FOUND TO HAVE VIOLATED
CERTAIN PROVISIONS OF THE NATIONAL LABOR
RELATIONS ACT.
WE WILL NOT coercively interrogate our employees concerning
their union activities or the union activities of other employees.
WE WILL NOT threaten to close the plant if the employees become
unionized.
WE WILL NOT suggest to employees that they will not be dis-
charged so long as they refrain from talking about the union.
WE WILL NOT solicit employees to commit perjury in order to
support our version of a discharge.
WE WILL NOT tell employees that other employees lied in order
to prevent reprisals from being taken against them for their union
activities.
WE WILLNOT issue reprimands against employees in reprisal for
their union activities or for the purpose of laying the groundwork
for an eventual discriminatory discharge.
WE WILL NOT discourage membership in or activities on behalf of
United Paperworkers International Union, AFL-CIO-CLC, or any
other labor organization, by discharging employees, contracting
out their work, or otherwise discriminating against them in their
hire or tenure or in their terms and conditions of employment.
WE WILL NOT by any other means or in any other manner
interfere with, restrain, or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to JAMES
42a
CANNON, JR., LIDELL FORD, JR., WAYNE FORD, KAREN ROOT,
CLARK OLSON, and GARRY WAYNE ROOT to their former or
substantially equivalent employment, and WE WILL make them
whole for any loss of pay or benefits which they may have suffered
by reason of the discriminations practiced against them, with
interest.
2
WE WILL expunge from our personnel records any reference to the
discharges of the above-named individuals and the unlawful dis-
ciplinary warning given to LIDELL FORD, JR., and we will inform
these individuals in writing that the di and warning will
not be used against them in the future as the basis for disciplinary
action.
(Employer)
Dated
(Representative)(Title)
This is an official notice and must not be defaced by anyone.
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material. Any questions concerning this notice of compliance
with its provisions may be directed to the Board’s Office, Patrick V.
McNamara Federal Building, 477 Michigan Avenue - Room 300,
Detroit, Michigan, 48226, telephone (313) 226-3244.
43a
APPENDIX E
HOUSE REPORT NO. 245 ON H.R. 3020, APRIL 11, 1947
(Legis. History, VoL I, 292, 299, 324)
FREE SPEECH
Although the old Labor Board protests it does not limit
free speech, it is apparent from decisions of the Board itself that what
persons say in the exercise of their right of free speech has been used
against them. The bill provides that the new Board is prohibited from
using as evidence against an employer, an employee, or a union any
statement that by its own terms does not threaten force or economic
reprisal.
esses
Section 8(d)(1)}—This guarantees free speech to em-
ployers, to employees, and to unions. Although the Labor Board says
it does not limit free speech, its decisions show that it uses against
people what the Constitution says they can say freely. Thus, if an
employer criticizes a union, and later a foreman discharges a union
official for gross misconduct, the Board may say that the official’s
misconduct warranted his being discharged, but “infer,” from what
the employer said, perhaps long before, that the discharge was for
union activity, and reinstate the official with back pay. It has similarly
abused the right of free speech in abolishing and penalizing unions of
which it disapproved but which workers wished as their bargaining
agents. The bill corrects this, providing that nothing that anyone says
shall constitute or be evidence of an unfair labor practice unless it, by
its Own express terms, threatens force or economic reprisal. This
means that a statement may not be used against the person making it
unless it, standing alone, is unfair within the express terms of sections
7 and 8 of the amended act.
HOUSE MINORITY REPORT NO. 245 ON H. R. 3020,
(April 12, 1947)
(Legis. History, Vol. I, 355, 375-76)
10. Free Speech
Section 8(d)(1) provides that it shall not constitute
evidence of an unfair labor practice to express “any views, arguments,
or opinions” in written, printed, or visual form if the expression by its
own terms does not threaten force or economic reprisal.
The right to express an opinion is a constitutional one.
In N.L.R.B. v. Virginia Electric & Power Co. (314 U.S. 469), and N.L.R.B.
v. American Tube Bending Co. (134 F.2d 993 (C.C.A.2), certiorari denied
320 U.S. 768), it was held thatthe first amendment protectsan employer's
expressions of noncoercive opinion to his employees respecting union
organization.
These decisions have guided the present Board. in its
own most recent case on the subject, Matter of Bausch and Lomb Optical
Company (72 N.L.R.B. No. 21) the Board held that an employer's
distribution to his employees of an extremely vigorous antiunion
pamphlet, entitled “Let’s Face the Facts,” was not an unfair labor
practice. The Board said:
The pamphlet on its face contains no coercive state-
ments, but consists essentially of statements dispar-
aging unions and of expressions of opinion as to the
disadvantages of labor organization— statements
which standing alone, are protected by the constitu-
tional guaranty of free speech. Nor are the state-
ments coercive when evaluated in the context in
which they were made.
But these provisions go far beyond mere protection of an admitted
constitutional right. By saying that statements are not to be considered
as evidence, they insist that the Board and the courts close their eyes
to the plain implications of speech and disregard clear and probative
evidence. In no field of the law are a man’s statements excluded as
evidence of an illegal intention. Here, again, a deep-seated intention
to protect employers in the commission of unfair labor practices is
evident. Here, again, the laudable purpose of protecting free speech
cloaks an evil design to encourage unfair labor practices by employers.
45a
SENATE REPORT NO. 105 ON S. 1126, APRIL 17, 1947
(Legis. History, Vol. I, 407, 429-30)
Section 8(c): Another amendment to this section would
insure both to employers and labor organizations full freedom to
express their views to employees on labor matters, refrain from threats
of violence, intimation of economic reprisal, or offers of benefit. The
Supreme Court in Thomas v. Collins (323 U.S. 516) held, contrary to
some earlier decisions of the Labor Board, that the Constitution
guarantees freedom of speech on either side in labor controversies and
approved the doctrine of the American Tube Bending case (134 F. 2d
993). The Board has placed a limited construction upon these deci-
sions by holding such speeches by employers to be coercive if the
employer was found guilty of some other unfair labor practice, even
though severable or unrelated (Monumental Life Insurance, 69 N.L.R.B.
247) or if the speech was made in the plant on working time (Clark
Brothers, 70 N.L.R.B. 60). The committee believes these decisions to be
too restrictive and, in this section, provides that if, under all the
circumstances, there is neither an expressed or implied threat of
reprisal, force, or offer of benefit, the Board shall not predicate any
finding of unfair labor practice upon the statement. The Board, of
course, will not be precluded from considering such statements as
evidence.
REMARKS OF SENATOR MORSE
Congressional Record, Senate - May 2, 1947
(p.4555) (Legis. History, Vol. II, 1193-94)
I certainly hope, Mr. President, that we have not
reached the point where it is going to be deemed desirable to have the
National Labor Relations Board take jurisdiction of complaints as to —
whether a union’s statements at the time of organization are true or
false. We certainly do not want to make the National Labor Relations
Board the guardian, as it were, of the intellectual integrity, at the time
of an organizational drive, of the statements made by either labor or
employers. |
In a case involving the validity of a Board order the
Sixth Circuit Court of Appeals ruled that an employer's statement did
not become coercive because it was inaccurate. The court found,
contrary to the Board, that the employer was justified in believing and
stating that the union had been responsible for a protest to a State
agency, which resulted in the agency’s rescinding its approval of
overtime. The court said:
The right of free speech does not depend upon the
accuracy of the ideas expressed. (N.L.R.B. v. Brown-
Brockmeyer Co., 143 F. (2d) 537, at 542.)
The Eighth Circuit Court of Appeals has correctly
stated that—
The trend ofjudicial decision since the Virginia Power
Co. case supports the view that an employer may
disseminate facts within the area of dispute, may
even express his opinion—
Which he certainly should be allowed to do—
on the merits of the controversy even though it in-
volves labor organizations, may indicate a prefer-
ence for individual dealings with employees, may
state his policy with reference to labor matters, and
may express hostility to a union or its representa-
tives. (N.L.R.B. v. ].L. Brandeis & Son. 145 F. (2d) 556,
564.)
Those are not my words, Mr. President. Those are the
words of the Circuit Court of Appeals, as found in the Brandeis & Son
case.
The court went further, and in overruling the Board’s
contention that “the repetition and vehemence of statement” rendered
the employer's statements coercive, stated:
47a
Certainly effectiveness of statement is not a test of its
constitutionality; neither is accuracy of the views
expressed ** * One may descend to villification, false
statement, or exaggeration and still be protected in
his right of free speech. (Id. p., 566.)
REMARKS OF SENATOR McCLELLAN,
Congressional Record, Senate - May 9, 1947 (p. 5094-95)
(Legis. History, Volume IIL, 1432-33)
MR.McCLELLAN. Mr. President, I offer an amend-
ment which I send to the desk and ask to have stated.
THE PRESIDING OFFICER. The Clerk will state the
amendment.
. THE CHIEFCLERK. On page 16, at the end of line 20,
it is proposed to strike out the period and insert a colon and the
following: “Provided, That no language or provision of this section is
intended to nor shall it be construed or administered so as to abridge
or interfere with the right of either employers or employees to freedom
of speech as guaranteed by the first amendment to the Constitution of
the United States.”
Mr. McCLELLAN. Mr. President, the purpose of the
amendment is to attempt to say what I think every Member of
Congress should truly mean, and that is no contravention of the
Constitution. This amendment deals with one of the fundamentals of
liberty, that is, freedom of speech.
In the bill that has passed the House, as well as in the
Senate committee bill, the one pending before us, an effort has been
made more or less to limit and define what restrictions shall be placed
on freedom of expression as between employers and employees, what
speech should be regarded as an unfair labor practice. The House bill
provides that it will not be an unfair labor practice to express “any
views, argument, or opinion, or the dissemination thereof, whether in
written, printed, graphic, or visual form, if it does not by its own terms
threaten force or economic reprisal.”
In other words, under the terms of the House text,
unless the written or spoken words, by its terms, carry a threat of force
or economic reprisal, then it would not constitute an unfair labor
practice.
Under the Senate committee bill it is provided that—
The Board shall not base any finding of unfair-labor
practice upon any statement of views or arguments,
either written or oral, if such statement contains
under all the circumstances no threat, express or im-
plied, of reprisal or force, or offer, express or implied
of benefit.
I am concerned about that language, Mr. President. I
would like to see it strengthened. The language of the present law, the
49a
National Labor Relations Act, has been so distorted by court decisions
and by administrative decisions that freedom of speech has definitely
been abridged and denie
This text is long and has been trimmed here. Open the source document for the complete record.
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