Speed Mail Service

47h DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edgar L. Landen t/a Speed Mail Service and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 776. Cases 4-CA-9799, 4-CA-9918, and 4-RC-13460 August 25, 1980 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On January 9, 1980, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and sup- porting briefs, and Respondent filed cross-excep- tions and a supporting brief and a brief in opposi- tion to the exceptions of the General Counsel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, recommendations, 2 and conclusions of the Administrative Law Judge only to the extent con- sistent herewith. 3 1. The Administrative Law Judge found, inter alia, that Respondent did not violate Section 8(a)(l) of the Act when John Clark, an alleged su- pervisor, interrogated employee Harris about her union activities and told her she would regret sup- porting the Union because "Landen [Respondent's president] will fire us or he will close down the company before he lets the Union come in." While the Administrative Law Judge found that Clark made these remarks to Harris, he concluded that Clark was not a supervisor within the meaning of the Act, and, therefore, his remarks were not im- putable to Respondent. We agree with the Admin- i Respondent, the General Counsel, and the Charging Party have ex- cepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administra- tive law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the reso- lutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto, we adopt, pro forma, the Ad- ministrative Law Judge's recommendations that the Union's Objections 1, 8, 9, and 10 be overruled. 3 In adopting the Administrative Law Judge's dismissal of the 8(a)3) discharge and layoff allegations of the complaint, we disavow his com- ments suggesting that Respondent's lawful motive can be assumed from 251 NLRB No. 64 istrative Law Judge that Clark was not a supervi- sor. We nevertheless conclude that Clark's state- ments to Harris are attributable to Respondent be- cause, as fully discussed below, Respondent placed Clark in a position where the employees reasonably could believe that he spoke on behalf of manage- ment. The record shows that during the relevant period preceding the election Clark assisted Brown, an admitted supervisor, in running Respondent's letter shop. 4 Thus, it is undisputed that Clark as- signed the employees to work on the various ma- chines based on their skill and experience. Fre- quently during the workday, Clark, on his own ini- tiative, transferred employees to different jobs as needed and corrected employees who performed their jobs improperly. Further, Clark admitted that he was authorized to, and did, initial employee ti- mecards. The record also discloses that, unlike the other employees, Clark did not regularly punch a timeclock and had a key to the plant. Significantly, the record shows that Clark, as did the admitted su- pervisors, informed the employees of periodic lay- offs or that Respondent was placing the employees on a reduced workweek. It is therefore apparent that Respondent placed Clark in a status visibly superior to that of the other employees. In this status, among other things, Clark served as conduit from Respondent to the employees with respect to such important matters as job assignments and layoffs. In these circum- stances, we find that Clark's responsibiilty and au- thority were such that the employees reasonably could have believed that he was allied with, and spoke on behalf of, management. 5 Moreover, Re- spondent itself apparently considered Clark a su- pervisor. Thus, we note that, shortly after the peti- tion in this case was filed, Respondent summoned its supervisors to a meeting to discuss the union its supervisors to a meeting to discuss the union its failure to discharge employee Wissler, the leading union adherent. See, e.g., US. Soil Conditioning Company, 235 NLRB 762, fn 9 (1978). Addi- tionally, with respect to the Administrative Law Judge's refusal to issue a bargaining order, we disavow his comments that the Union's failure to seek a bargaining order in its charges filed with the Board indicates that a bargaining order is unnecessary. Further, we disavow the Administrative Law Judge's suggestion that the Union's Objection 10 lacked merit be- cause the General Counsel did not issue a complaint on the matter. With respect to the Administrative Law Judge's finding that Respond- ent did not unlawfully lay off employee Keller, the Administrative Law Judge incorrectly stated that Keller was treated the same as the employ- ees placed on "crews," when in fact she was treated differently. Never- theless, in view of the Administrative Law Judge's other findings regard- ing this complaint allegation, with which we agree, we find that Keller's layoff did not violate the Act. I Respondent prints letters and brochures and inserts them into enve- lopes, labels and mails magazines and brochures, and maintains mailing lists. ' Indeed, many of the employees who testified identified Clark as their supervisor. SPEED MAIL SERV'ICE 477 campaign and Clark was among those told to attend. Similarly, in a written evaluation of Clark's job performance prior to the advent of the Union, Respondent expressly referred to Clark as a "super- visor." Accordingly, having created the impression that Clark was a management representative, such that the employees reasonably would believe that he spoke for management, Respondent must bear responsibility for the clearly coercive statements Clark made to an employee about the consequences of organizing. 6 We therefore find that Respondent, through Clark, violated Section 8(a)(1) of the Act by interrogating Harris about her union activities and threatening that the employees would lose their jobs or the Company would close if the Union won the election. 2. The Administrative Law Judge also found that Respondent did not violate Section 8(a)(1) of the Act when, in the midst of the union campaign, it changed the time of day when it distributed pay- checks to the employees. Although the Administra- tive Law Judge found that the purpose behind the change was to retaliate against the employees for "turning towards the Union," he nevertheless con- cluded that Respondent's action could not have co- erced the employees and that, at most, Respondent committed a technical 8(a)(1) violation which was de minimis and insufficient to justify issuance of a formal cease-and-desist order. Additionally, al- though the complaint alleged that Respondent's change in policy also violated Section 8(a)(3), the Administrative Law Judge failed to address this issue. For the reason set forth below, we find, con- trary to the Administrative Law Judge, that by this conduct Respondent violated Section 8(a)(l) and (3) of the Act. The record shows that prior to the filing of the petition, it was Respondent's practice to distribute paychecks before lunchtime on Friday mornings. Various employees testified that they used their lunch hour to cash their checks at a nearby bank. After the advent of the union campaign, Respond- ent, without explanation, began distributing the checks after lunch. After the election, Respondent resumed its practice of distributing the checks in the morning. At the hearing, Respondent asserted that this temporary change in practice was neces- sary because the employees who cashed their checks during lunch began exceeding their allotted lunchtime. Respondent further asserted that it re- sumed its practice of distributing the checks in the morning when, in its judgment, the employees had gotten the "point." 6 See, e.g., Columbia Building Materials. Inc., 239 NLRB 1342, 1346-47 (1979); Broyhill Company, 210 NLRB 288, 294 (1974), enfd. 514 F.2d 655 (8th Cir. 1979). We agree with the Administrative Law Judge that Respondent's explanation does not withstand scrutiny, particularly in the light of Respondent's failure to explain to the employees the reason for the original change. Nor is there any evidence that Respondent ever warned the employees about their supposedly lengthy lunch periods on paydays. In these circumstances, including the timing of Re- spondent's action, and particularly the absence of a convincing explanation by Respondent, we find, as did the Administrative Law Judge, that Respond- ent changed its established practice regarding the distribution of paychecks because of the presence of the Union. However, contrary to the Adminis- trative Law Judge, we further find that Respond- ent's conduct tended to interfere with the free exer- cise of the employees' rights under the Act and cannot be considered noncoercive or de minimis. In this regard, the Administrative Law Judge, in find- ing the misconduct noncoercive, failed to consider that Respondent's unlawful motive became unmis- takably clear upon its sudden resumption of its es- tablished practice after the Union was defeated in the election. It is unlikely that the employees missed the import of this "sudden" action. Accord- ingly, we find that by such misconduct Respondent violated Section 8(a)(l) of the Act and we shall in- clude in our Order a provision requiring Respond- ent to cease and desist therefrom. Furthermore, having found that Respondent's actions were prompted by a desire to retaliate against the em- ployees for their union activities, and thus to dis- courage membership in the Union, we find that Re- spondent also violated Section 8(a)(3) of the Act.7 3. Since the Administrative Law Judge dismissed the complaint allegations in their entirety and rec- ommended that the Union's objections to the elec- tion be overruled, he declined to set the election aside and rejected the General Counsel's request for a bargaining order. However, since we have found that Respondent, through Clark, unlawfully interrogated and threatened employee Harris during the critical period, and because such mis- conduct, which also was raised in the Union's ob- jections, tended to interfere with the free choice of the voters, we shall set the election aside. 8 We See, e.g., Rexart Color and Chemical Co., Inc., 246 NLRB No. 40 (1979). The Administrative Law Judge dismissed the additional 8(a)(3) allega- tions of the complaint, relying, in part, on the absence of any demonstrat- ed union animus by Respondent. While we have found, contrary to the Administrative Law Judge, that Respondent committed certain violations of the Act, we nevertheless conclude that the General Counsel has not established by a preponderance of the evidence that Respondent commit- ted the additional 8(aX3) violations alleged. s As noted above, we also have found that during the preelection period Respondent unlawfully changed its policy of distributing pay- checks before lunch hour in order to retaliate against the employees for Continued SPEED MAIL SERVICE 477 478 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD find, however, that Respondent's unfair labor prac- tices were not so egregious as to warrant issuance of a bargaining order. Accordingly, we shall direct a second election. CONCLUSIONS OF LAW 1. Edgar L. Landen t/a Speed Mail Service is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 776, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by interrogating an employee about her union sympathies and activities, has en- gaged in an unfair labor practice within the mean- ing of Section 8(a)(1) of the Act. 4. Respondent, by threatening to discharge the employees or close down the Company if the Union won the election, has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. Respondent, by changing its established prac- tice of distributing the employees' paychecks prior to the lunch hour because of the employees' union activities, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Edgar L. Landen t/a Speed Mail Service, Harris- burg, Pennsylvania, its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their union sympathies and activities. (b) Threatening to discharge its employees or discontinue operations because of the employees' support for the Union. (c) Changing its established practice of distribut- ing the employees' paychecks prior to the lunch hour because of the employees' union activities. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its premises at Harrisburg, Pennsylva- nia, copies of the attached notice marked "Appen- dix."9 Copies of said notice, on forms provided by their union activity. However, since we have found the unlawful threat and interrogation of employee Harris tended to interfere with the results of the election, we find it unnecessary to rely on Respondent's unlawful change in its manner of distributing the paychecks in the setting the elec- tion aside. the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges vio- lations of the Act not specifically found herein. IT IS FURTHER ORI)ERED that the election held on April 18, 1979, in Case 4-RC-13460 be, and it hereby is, set aside, and that said case is hereby re- manded to the Regional Director for Region 4 for the purpose of scheduling and conducting another election at such time that he deems circumstances will permit the free choice of a bargaining repre- sentative. [Direction of Second Election and Excelsior foot- note omitted from publication.] MEMBER PENEL.IO, dissenting in part: I agree with my colleagues that, as found by the Administrative Law Judge, Respondent did not violate Section 8(a)(3) of the Act by discharging employees Diane Enders, Susan McClain, and Wanda Wright, by laying off five employees for 6- 1/2 hours, or by refusing to recall employee Yvonne Harris from layoff. I also agree with my colleagues that as found by the Administrative Law Judge, Respondent did not violate Section 8(a)(l) of the Act by engaging in surveillance of employees' union activities. However, for the rea- sons given by the Administrative Law Judge, I would not find that Respondent violated Section 8(a)(1) of the Act by interrogating Harris, nor would I find that Respondent violated Section 8(a)(3) by changing its policy regarding the distri- bution of employees' paychecks. Further, as I would dismiss the complaint in its entirety, I would not set aside the election but rather would issue an appropriate certification of results. a In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SI'FFD N4AII SVC'I 47) APPENDIX NOICE TO EMPI YE'iS POSTED BY ORDER OF IFHE NATIONAI. LABOR REI ATIONS BOARD An Agency of the United States Government WE WIL_ NOT interrogate our employees concerning their union sympathies and activi- ties. WE WIlL. NOT threaten our employees that they will be discharged or that we will discon- tinue operations because of their support for the Union. WE WILL NOT change our established prac- tice of distributing the employees' paychecks prior to the lunch hour because of the employ- ees' union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. EDGAR L. LANDEN T/A SPEED MAII. SERVICE DECISION STATEMENT OF THE CASE THOMAS A. Rccl. Administrative Law Judge: A hear- ing in this proceeding was held on October 24 and 25. 1979, at Harrisburg, Pennsylvania, based on a complaint issued by the General Counsel of the National Labor Re- lations Board against Edgar L. Landen, t/a Speed Mail Service, herein called the Respondent or the Company. The final complaint, upon which the hearing was held, issued on August 31, 1979, based upon charges filed on various dates by International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, Local Union No. 776, herein called the Union. The hear- ing was also concerned with objections filed by the Union following a Board-conducted election in Case 4- RC-13460, which the Union lost. The issues presented are whether the Respondent violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amend- ed, and/or improperly interfered with the election. Briefs were filed after the close of the hearing by all three par- ties. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Speed Mail Service, a sole proprietorship, is engaged in the operation of a letter shop in Harrisburg, Pennsyl- vania. During the year preceding issuance of the com- plaint, it performed services valued in excess of $50,000 for various agencies and departments, including the Gov- ernor's Energy Council of the Commonwealth of Penn- sylvania. The parties also stipulated that during that same period the Commonwealth of PennsN\vania purchased goods and services in excess of S50,(XX) from suppliers lo- cated directly outside the State I find that the Respond- ent is an employer engaged in commerce \within the meaning of the Act. 11. IHI I ()OR OR(i.NIZA'I ION INO()I \tVI) I find that International Brotherhood of Ilcamsters, Chauffeurs, Warehousemen and Helpers of America. Local U0nion No. 776, is a labor organization \0 ithin the meaning of Section 2(5) of the Act. 111. THE UNFAIR I ABOR PR\( I(LS A. A Picture oj'the C(usc This case arose out of a union campaign amiong etm- ployees in an appropriate bargaining unit folloss ed b a Board-conducted election which the Union lost. 3et ceell the start of the union activity and issuance of the Genler- al Counsel's final complaint, the employer did a number of things in the course of its continuing business mant directly affecting the interests of individual employees In the end, as reflected in the last and novw outstanding complaint and in certain objections to the election ll hich the Union filed, the Respondent is charged with having illegally refused to bargain with the Union from thle outset, with having illegally discharged certain employ- ees in retaliation for their prounion activities, and with having deliberately cut the hours of work of a great number of employees, again as a planned technique to coerce them away from voting in favor of the Union. The Respondent denies all these allegations and con- tends, in defense, that all it did at any time was simpl 5 carry on its business as it always had done, with every act in question justified by economic business consider- ations. And, of course, the duty to prove that any viola- tions of the statute were committed by the Respondent is an affirmative burden resting upon the General Counsel. There are a number of unexplained oddities running through both the transcript of testimony and the docu- ments received in evidence. The foremost activist in the union activity was an employee named Cris Wissler. It was he who, in mid-November 1978, contacted the Union, obtained pamphlets and union authorization cards, and distributed them among the employees at work. He did this beginning on November 20, when there were 23 employees altogether in the bargaining unit, including H. C. Clark, whose alleged supervisory status is disputed. Within 2 days Wissler had successfully solicited signatures to 12 cards, in each case-as the em- ployees themselves testified-giving the card to the em- ployee and the employee returning it to him personall. On November 21 the Union wrote a letter to the Compa- ny, claiming majority status and demanding recognition. And on November 27 it filed a petition for an election with the Board, Case 4-RC-13460. Two davs later coun- sel for the Union personally signed a formal charge with the Board, Case 4-CA-9799, accusing the Company in plain language of having discharged Wissler on Novem- ber 29 "in order to discourage membership in the Team- SPEED MAlt SERICE 4 , 48() DECISIONS OF NATIONAL LABOR RELATIONS BOARD ster Local 776." This precise accusation-that Wissler had been illegally fired on November 29-was restated, among other things, in a second charge filed by the Union on January 25, 1979, Case 4-CA-9918. And again the next day, when the Union filed a formal amendment to this last charge, it for the third time repeated this alle- gation about Wissler's having been illegally discharged. As these various charges, plus the election petition, were processed in the oard's Regional Office, no less than three successive complaints were issued-one on January 29, 1979, one on March 21, and the last, a con- solidated one on which the hearing took place, on August 31. Nowhere in any of these complaints is there any reference to Wissler's discharge. As a witness Wissler only added to the puzzle; all he said about his employee status is that he was at work until March 27, when he quit of his own volition. As already stated, this is essentially an inference case- i.e., do all the facts, by rational inference, prove the cor- rectness of all the complaint allegations? There are multi- ple allegations of employees-individually named-being sent home during the workday, and of others being laid off a day now and a day then, ostensibly because there was not enough work left but really to implement antiun- ion animus. With the Union itself saying, again and again in formal documents, that the ringleader of the move- ment was fired in November, I must believe he was at least sent home, laid off, or deprived of work in some fashion-however the "discrimination" be phrased. But if the Board investigations found nothing wrong in the way the Company treated him, it means-as the Respondent kept repeating throughout the hearing-that temporary layoffs or reduced rescheduling of hours because of in- sufficient work-was in truth its forced method of oper- ation. With this, the suggested inference of illegal moti- vation in the occasional, temporary layoffs of other em- ployees-puppets in the union campaign compared to Wissler-is greatly weakened. The final complaint, issued more than 4 months after the April election, finds fault with the Respondent's re- fusal to recognize the Union back in November, and on that basis the General Counsel asks for an affirmative order to bargain now in spite of, the fact that the Union did not win the election. But in none of the charges it filed did the Union charge the Company with wrongdo- ing in withholding exclusive recognition. Who could know better than the Union itself-and its active protag- onist-whether the Employer had so "outrageously" or "pervasively" mistreated its employees as to make a reg- ular election impossible? See N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). One more preliminary comment. The Respondent's re- cords show that its practice is, and has long been, to give raises-rather small ones-with some frequency. There seems to be a considerable turnover in its staff: in most jobs no very great skill is required; and the starting pay is not far from the minimum wage required by law. Un- derstandably, therefore, raises, albeit not at predictable intervals, are to be expected. The General Counsel placed into evidence records showing every raise given to each and every employee from the beginning of 1978 to the time of the hearing in October 1979. Many of these raises were given between the filing of the Union's representation case petition in November and the elec- tion the following April. Asked did the "information about the rates of pay have a relationship to any issue raised in the complaint," the General Counsel replied, on the record, "It bears no issue to the matters raised in the CA Case. "It is not part of the General Counsel's case." In disagreement, counsel for the Union then stated: "Yes, it does. Objection 10 states the Employer gave raises to his employees to discourage them from voting for the Union. . . . It would be objectionable conduct." It has been said of old that an employer's conduct can be "objectionable" and suffice to set aside the results of an election and yet fall short of constituting the commis- sion of unfair labor practices under this statute. One asks: Can this approach possibly apply to raises given while an election is anticipated? If the raises are "Objectionable," it means the employer did wrong in giving them at that moment. But J.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964), holds a raise given at that moment to be the clearest violation of Section 8(a)(1) of the statute. If, instead, the raises given during the pendency of an elec- tion petition reflect no more than continuance of an es- tablished practice, as the General Counsel of necessity was conceding in the case at bar, they can not be faulted for any reason. B. The 8(a)(1) Allegations Among the issues to be decided are the discharges of six employees. There is no direct evidence of antiunion animus in the dismissal of any one of them. Each was told at the time what the Respondent claimed the reason to have been, always matters unrelated to union activi- ties. Moreover, the Respondent came forth as to all six with what on its face is a prima facie case of discharge for just cause. Yet it is true both that the discharges oc- curred during the organizational campaign, and that management knew some of its employees, identified or not, were joining up with the Union. As to direct evi- dence of record indicative of wrongdoing, apart from what inference may be warranted by the timing, it is lim- ited entirely to statements attributed to an employee named Clark. Clark was a regular full-time employee of the postal service, and, his being knowledgable about how the post office operates, he was a good man to have around. The Company's business is to prepare, sort, mark, group, and bag mail for large senders, much of it commercial, and then place it in the hands of the post office for speedy delivery. Clark worked nights full-time for the post office and then about 40 hours a week during the day for the Respondent. It is a question on this record whether, as the General Counsel alleges, Clark was a supervisor within the mean- ing of the Act. If he was not, any thoughts expressed by him on the subject of unionism would not be binding upon the Company. In that case there would be no direct evidence at all to prove the discharge or layoff of anybody violated the statute. There were only about 23 rank-and-file employees altogether. Over them, every day, there was Edgar Landen, the owner, his wife, Donna, who assisted him, two others-Lynda and Vicki SPEED MAll. SERVICE'F 481 Daniels-referred to as supervisors by the witnesses. and a man named Brown, who was over Clark and had more to do with running the shop regularly than anyone else. One witness after another testified that it was Donna who sent them home when there was no work; refer- ences to the other two women was also by the General Counsel's witnesses, who called them supervisors with- out hesitancy. And that Brown really exercised greater authority than Clark could not be clearer. Landen, of course, was all over the place every day. This makes 6 supervisors over 23 people. With this, the idea that Clark also managed the business becomes less and less persua- sive. Sometime after the election, as well as after all the goings on that are now alleged to have been illegally motivated, Brown left the Company and Clark was pro- moted to his position. The parties agreed that from that day on Clark did exercise supervisory authority. As to what work he did before the election and what manage- rial assistance he contributed in the shop, I think, and I find, that Clark was not a supervisor as defined in the Act. There is no question, as the Respondent's witnesses testified and as none of the many employee witnesses contradicted, that Clark had no authority to hire or dis- charge people, to recommend raises or reductions in pay, to discipline anyone, or to effectively recommend any such action. In fact, there is no substantive indication that in the successive assignment of jobs to one employee after another, which he did do, Clark's activities bore any relationship to the take home pay of any of the em- ployees. He was hourly paid, like everybody else. And, again like the rest of the rank-and-file, when there was not enough work he too was simply laid off temporarily. Experienced in post office methods, Clark went around adjusting, repairing, and setting up the various sorting and stamping machines in the shop. He usually came in early in the morning and learned what jobs there were that had to be done. Both the volume and the kind of work varies from day to day. Some of the em- ployees were better than others at reading rapidly, at lift- ing heavy things, at operating certain machines, etc. The entire thrust of the evidence said to prove supervisory status is the fact that Clark "assigned" work to the people in the shop. The whole operation is a continuing flow of "jobs," each with a so-called job ticket showing the starting and completion hour and minute by the em- ployees. When the employees arrived at the start of their shift, somebody had to tell them what to do. When a person finished one job another had to be assigned to him. And always the particular job given had to be of a kind that employee knew how to do. The flow of jobs were scheduled in the office and Clark worked from those written schedules every day. In the sense that Clark had knowledge of which em- ployees knew how to do this job and which knew how to do that job, or in the sense that he looked and saw who had first finished one job and was ready for an- other, I suppose one could say he exercised judgment, even independent judgment, as the General Counsel states in her brief. But this contribution could also be called "routine." According to the testimony of Barbara omasko: "John Clark would tell me at o'clock where I was to be placed, and then during the dav he would come over if there was something else to do. .. . In between that time other people might have something to do, and they would tell me. Mainly it was John Clark. Hie would tell me corrections and I would make corrections.... If I wrote a zip code wrong. he %would tell me that it Iwas wrong.... I never got a straight answer or definite answer of who was my supervisor." Blaine Nornhold testified: ". .. when I came in he always assigned where I was suppose to go, what job I was suppose to do." Robert Fazzolari testified: "If I had to go make a run, he would come in and tell me to go bag it, or he would switch me wherever I was needed." Kevin Baim testi- fied: ". . . he always brought me my material for the machine I was suppose to set up, and told me what job I should be running. . . . What he carried out was a com- puter sheet with the labels and stuff on it. He told me this was what I have to set up for the machine." Wanda Santiago testified: "Q . . do you know if anyone told him [Clark] to assign you to this work? A. I don't know, but to the best of my knowledge whoever is in the office makes up those work schedules, and J.C. just follows the work schedule as to what has to go out and when it has to be out." Diane Enders testified: "I ran a machine called Pitney Bowes and if I was on that and my work ran out, J.C. would tell me to go out in the back room and do hand jobs or go to another machine." With this from the employees, Clark's description of what his "assignment" of work amounted to must be ac- cepted literally: "Mr. Brown advised me through his au- thority [to] do this for him.... Assign different people to different jobs. The ones that could read jobs, put them on a reading job. The one that could operate a machine, put them on a machine for him.... I am just out on and off at different times finding material to go for dif- ferent jobs and stuff. If somebody wras there for stuff to be received and nobody else woas there, I Mwill receive it at that time." Cf. Vapor Corporation. 242 NLRB 776 (1979). In support of the contention that Clark was in fact a supervisor, the General Counsel relies heavily upon a written criticism of the man's performance placed in his personnel file by Brown. the manager. It is dated Febru- ary 10, 1978, and, in great detail, faults the man for the quality of his work At times the report criticizes Clark for unnecessarily quarreling with people when making the routine work assignments and generally creating dis- cord; but at times it says he did not push them enough to see that work moved faster and more efficiently. The document frequently refers to Clark as a "supervisor. I do not think that this document by Brown, despite its use of the word "supervisor." can serve to alter the objective evidence of what authority Clark exercised a year later, at the time of the events here being examined. as detailed by one employee after another. rown did not testify. There is no evidence by the lnman enploxecs about Clark's pushing or dlri\ing them: mabhe lie was all unpleasant fellow to have around, but it remains a flactl that no one attributed anx authority to him that could he SPEED MAIL SEIE 481 4S 2 I)It ISI()NS ()I NA I()ONAI IA()R RE.A I ()NS ()ARDI) deerned clsistent wmith true super' isory status. It 1na hb that IBrownl vanted Clark to act like a boss and that the nal simlplis refused to act s such. fThis criticism Ila\ also explain whvy lBrown later quit the CompanN, and w hy Clark wk as then promnoted to true supervisoor status. If anything. the docule)ilIl dispro ves the asseC'tionl, ill tilhe Lnioii's post-hearing brief, that Ilrown was no more than a hidden shadow; , not to be otllted ill the Iunlcrical for- null.a comparing the number of supervisors \with the suniher of rank-and-filers. As already stated, I do not think any antagoniism to- \wards te Union voiced by Clark could be used to sup- port the requested inference of unlawful purpose il any- thing the Respondent did. Nevertheless, for reasons that will be explained below, I think it best to set out the co- ercive statements said to have been uttered by him. 'Yvonne Harris testified that on November 20, 1978, Clark asked her had she signed a card for the Union, and, when she said yes. he added "that we would be sorry because, and this is his exact words, Landen will fire us or he will close down the Company before he lets the Union come in." Wissler, the card solicitor, testified that the very day he started obtaining signatures Clark called him away from his machine and "asked me about the union cards, who was passing them out. I told him I was passing them out. He said, 'You could lose your job for passing out these union cards, or if anybody gets caught signing these cards they would lose their jobs."' When Wissler said it was he, Clark said that "they would get rid of some people if anybody is caught signing these cards. He said that andetn would close up the building before he lets the union come in." Clark denied having made any of these statements at- tributed to him by either Harris or Wissler. He also denied ever speaking of the Union with Harris. The rela- tive demeanor of the witnesses does not always give reli- able indication of where the truth lies. Both Wissler and Clark were perhaps too precisely articulate and self-as- sured as witnesses. The one who impressed me most as a really credible witness was Harris. I do believe her as against Clark. I therefore find he did question her, and told her he thought Landen would discharge card sign- ers and even close the shop. But I cannot and do not credit Wissler against Clark's denial of having interrogat- ed him or voiced any threats to him. Nine days after Clark told him the owner of the business would close it altogether before having a union in the place, if Clark did say that, Wissler told Weinstock, the Union's lawyer, that he had been fired-in precise fulfillment of the now alleged threat by Clark. Had Clark really said card sign- ers would be fired-and Wissler had admitted his own signing to Clark-he certainly would have reported the conversation if only to support his claim of illegal dis- missal. Weinstock is a very capable lawyer: had he heard any such thing from his client he surely would have placed it i his charge. He did not. If there is one thing all experienced Teamsters lawyer would do it is to add precisely such violations of Section 8(a)( I) of the Act in a charge filed with the Board. How many times has a General Counsel argued that an employer's failure to assert an economic defense i a statement signed at the time of the evcnts an indirect admission against inter- est-serves to disprove a later affirmative defense.' The idea is no less relevalnt froni the other side of the table. C. ifrighl. ,Mc (Clain, and EeIder In this shop mistakes occur often in the sorting, mark- ing, and packaging of mail in thousands of pieces. E en before the union activity started there were times when mail was sent back from the post office for redoing be- cause the work had not been done right. In fact, there had even been times when a customer service representa- live of the post office had come to the shop to complain of errors and to try to help straighten things out. In January 1979 multiple mistakes were made in a large shipment so that the whole thing was sent back from the post office three times, each time a rejection of the entire shipment consisting of many bags of mail. It was the mass mailing of a magazine called EDUC. The post office reported a 17.8-percent measure of mistakes when first sending it back on January 8, a 15.8-percent measure of errors on January II and a 21.3-percent measure of errors on January 18 when all the bags of mail came back the third time. Each time the job waas re- sorted again by the employees without success. Landen, the owner, had an inspector come from the post office to explain the problem to the employees even before the third attempt. In addition, Martha Jackson, a customer representative, was sent by the post office to warn Landen that if errors of this kind happened again his entire license to do this business might be canceled. This is the only kind of work the Respondent has been doing since 1966. and cancellation of the license would mean the end of all jobs. Landen asked Jackson to speak to the employees as well. She did, and, as all three of the later discharged ladies admitted, Jackson did talk to them of the danger of losing the license. inally, the work was redone by Clark and an employee named Keiffer, appar- ently among the more skilled or experienced workers. O()n January 19, after the job had come back the third time, Landen discharged three employees-Wright, McClain, and Enders-and told each of them, as they testified, the reason was the mistakes they had made in the EDUC job. All three of them had signed union au- thorization cards 2 months earlier, although there is no evidence that the Respondent had knowledge of such personal identity of the unioneers. The complaint alleges that the three ladies were fired because of their union ac- tivities. At the hearing, the General Counsel's theory of illegality was ambiguous. If the argument is that there was no sufficient reason for discharging anybody, it must certainly fail, if only in the light of a three-time repeated display of incompetence followed by the post office's outright threat to kill oflT the entire business. If instead the argument is that the evil intent is to be seen in the selection of these particular three employees, one must then look at the others who had also worked on the FDIUC job. The Comp;tny keeps a precise record of all hourly work done on each and every job; this is put to- gether from the job tickets the employees keep sigiing all day. The record of work done on the EDUC job in question--co \;ring all three times it came back from the SPEFD MNAll SFRVIC[ 483 post officc --show, s that fixve others, each of whom had also signed union cards, did some x\ork on that job. There are also somenic names on that 'job wsork" record of employees who had not signed cards four of themn. Would a random hand, free of antiunion prejudice, nec- essarily have come up vith a different group of three dismissals? This question is put to rest by the most sig- nificant fact of all shown by the work record of the job. These three women worked on it more than any one else-and this is the reason given by Landen at the hear- ing for having selected them. They worked 21, 17, and 10 hours, respectively. In contrast, the nonunion work- ers-to quote a phrase-put in only an average of 2-1/2 hours each on the job. A prinma ficie case in support of the affirmative defense of discharge for cause is therefore well shown. I find the evidence insufficient to prove that any of these three women were discharged in violation of the Act. D. Layoffs In a number of paragraphs the complaint speaks of people having been "laid off." at times indicating a pre- cise number of hours, at times speaking of days per week, and at times adding they were never recalled. This failure to call a discharge a discharge, or a temporary, partial layoff nothing more than what it really is, con- fuses things. It ould be best, therefore, to speak in terms of what the witnesses said and what the exhibit documents show. The Respondent has long resorted to a system of dis- tributing necessary layoff time among the employees in order that as few as possible suffer total layoff when there is not enough work for everybody. It first asks those who so desire to take complete leave, and then ar- ranges for many to work 2 days one week and 3 the next, for as many weeks as the lack of work makes nec- essary. This happened in January 1979. Just when this "crew" system began on that occasion, and when it ended, is not clear of the record; indeed one or two em- ployees who were involved recalled that it affected them in December. The payroll records received in evidence do not show a definitive picture, regular rearrangement of days, or hours worked, nor, indeed, exactly which employees did less than the usual 40 hours per week be- cause of the necessary rotation of layoff time in that par- ticular period. In any event, the complaint names 12 em- ployees and alleges that the Respondent reduced their work hours sometime between December 28 and January 31 to discourage union membership, and thereby violated Section 8(a)(3) of the Act as to each of them. Another similarly vague and indefinite complaint alle- gation says that, "about" end the of November or the be- ginning of December, five employees were sent home early. The employees so named, all of whom had signed union cards earlier, said that at 9:30 a.m. one day they were told there was no more work for them to do and that they should go home. They did and lost 6-1/2 hours of work. Whether any other employees were also sent home that day for the same reason. but are not named in the complaint, is unknown1. Again the complaint alleged that the Respondent violated Section 8(a)(3) of the Act when it sent home the particular five persons named. At the hearing it was not clear s whether the General Counsel was arguing that there really '*,as enough ork for everybody on both these occasions and that the Company simply s anted to hurt people, or, instead, that it wras necessary to lay some people off for awhile and that the unioneers were selected for an illegal purpose. lach of the 12 employees named in the complaint had signed a union card. But the trouble with this statistical picture is that the hours worked records do not reflect a 2-day workweek no\s and a 3-day workweek then with any precision. Moreover, it also shows that others, not named in the complaint and not card signers, also did much less than 40 hours of work some weeks throughout the month of January. I do not think that the relevant evidence, considered in its entirety, suffices to support either of these allegations. To start with, a number of employees testified that mass layoffs like this "crew" system had often happened before. Wanda Santiago testified: "Every year since I have been there we have been on shifts off and on. Now ask what month, I don't remember.... We don't get the same jobs every month. It is hard to say when they are going to come in. Maybe this month is going to be full and the next month it is going to be slacked off." Wanda Wright was asked had this "crew" method hap- pened before, and she responded: "Yes. in the summer months . . . twice because I was there two summers." Mary Keiffer, who also went on the "crew" shift in Jan- uary but is not named in the complaint, testified this had happened every since she joined the Company in 1972. Asked why, she said: "There was no jobs coming in, so we were on shifts. There was only enough to keep the people working a couple of days." Keiffer also said that this used to happen in the winter as well as in the summer months. With this from the employees, there is no reason for discrediting the testimony of the owner, Landen, who said that because of a seasonal rush the post office asks private printers, like the Respondent's customers, not to send out mail at that time. Maybe the crew system was not used as often as Landen said at the hearing, but I must believe it was a normal aspect of the business. Landen also said that, when people have to be sent home for certain periods of time for lack of work, there is always the question of what kind of work is lacking and what kind remains to be done. His statement was that in the selection of individuals to be affected the special skill and experience of some is matched to the work that has to he done. This statement runs through the record again and again as a fact of life, not only when groups must go home, but even every day as work is assigned to people constantly. But the major reason why the complaint fails in this case is that there simply is not enough ex idence of illegal motivation to offset the perfectly plausible economic ex- planation for what happened. Throughout the period in question there ,,ere about 22 rank-and-file employees al- together. Apparcnrtl\, 13 had signed union cards ()f ne- SPEED MA!! SRVICE 483 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cessity, any kind of mass layoff had to reach to a sub- stantial number of card signers. But more important, while it is true that in a small establishment the employer will very likely know what is going on, it does not follow that one can conclude, without more, that he also knows which employees favor the union and which do not. The employees said they first started wearing union buttons or stickers after the now so-called mass disciplin- ary layoff of December. The only person wyho voiced an antitinion attitude, if he did, was Clark. And the fact that he was not a supervisor, and did not speak for manage- ment, is further illustrated by the General Counsel's own evidence of how the crews was selected. Some of the employees put on crew in January tried to create the im- pression that Clark picked the victims. But three employ- ees-Harris, Santiago, and Enders-said they were told by Donna (a conceded supervisor); McClain said she was laid off by Mrs. Landen; the two others-Fazzolari and Baim-said that Clark had a sheet of paper prepared by someone else, and merely read off some names already written there. I find insufficient proof that the general layoffs, whether in December or January, and however articulat- ed in the complaint, were illegally motivated. E. Barbara Tomasko A better example of the blunderbuss, catch-all charac- ter of this complaint is the case of an employee named Tomasko. The complaint precisely says she was laid off on January 12, and that this was a violation of Section 8(a)(3) of the Act. Significantly, Tomasko is also named in two other places in the complaint-once in the De- cember layoff of 5 people, and again in the January "crew" layoff of 12. As to her it seems the General Counsel shot three arrows into the air. Called as a witness, she said she was laid off in "the beginning of January," and then added, "We were going on crews, working every other day." The record shows this woman did some work every week during January except the week ending January 25. Asked why had she been "laid off," she said, "I was told I would be called when there was more work." Asked why she had been sent home, she said: "I was told because I couldn't read." When asked had she been reading since her em- ployment, she answered, "On and off." This woman signed a union card on November 21. She was given a raise on December 15. How an employer could coherently reward an employee with a raise one month and the next illegally discriminate against her with discharge, both within the timespan of her union activity, I do not understand. She later resumed work like everybody else. The election was scheduled for April 18. On April 6, according to the records, the Com- pany gave her still another raise. Would an employer who got rid of an employee as part of a campaign to defeat the Union in an election call her back, and even give her a raise before the election? The complaint must be dismissed as to Tomasko also. F. Yvonne Harris Harris started to work for the Respondent in October 1978. The complaint alleges that by discharging her in January the Respondent committed an unfair labor prac- tice. The only evidence said to prove this allegation is her testimony that in January, while she was working 3 days one week and 2 days the next, she was told she was being "laid off" with the stated reason that "there wasn't enough work." She was not recalled. But the witness also said that Tomasko and Sharp were also with her that day nd that Vicky Daniels, the supervisor, told all three of them they were "laid off" for lack of work. The trouble with this story is that the other two were not "laid off" but only subjected to the arrangement called "crew" elsewhere in the same complaint. All I can see in all of this is that Harris, like the 11 others named in the "crew" discrimination paragraph of the complaint, was treated like everybody else, except that she was never re- called. It is a sort of overlap once again in the same complaint. Can it be said that Harris was not recalled because of her unionism? I think not on this record. She got a raise on November 30, after she signed a union card. Landen, the owner, said she was initially laid off in the group be- cause of lack of skill. There was nothing in this record to refute that assertion. This complaint allegation has also not been proved. G. Holly Keller The last employee said to have been illegally dis- charged is Holly Keller, who came to work in October 1978. Again, the only evidence on this issue is Keller's testimony that she was "laid off' on December 27, and was told at the time "that there wasn't anymore work .. and they would call us back when there was enough work." Keller also said that she was in fact recalled in March but later quit of her own accord. Landen's testi- mony as to this lady fits perfectly. He said she was sent home temporarily because there was "no work for her capability" and for no other reason, and that later she was recalled because there was work she knew how to do. Injection of this employee's name in the complaint il- lustrates how haphazardly a layoff here or there-com- pletely out of context from the picture as a whole-is simply elevated to major significance with no real reason. As I look at other objective facts of record, I must also dismiss this allegation. The essential thrust of the charge is, as it always must be in an 8(a)(3) case, that the Respondent was ill-moti- vated against her, wanted to get rid of her to help kill off the union election. The complaint issued on August 31, and alleges that the Company "continues to . . . refuse . . . to recall . . . or reinstate said employee." With her direct testimony Keller gave the lie to this part of the complaint. There are documents prepared from company records and received by stipulation of the par- ties as absolutely reliable. As to termination, they show Keller was "terminated" on March 23. (See G.C. Exh. 18.) The lady having said she quit voluntarily in March, there is no way of reconciling her testimony with the re- SPEED MAIL SERVICE 485 cords. More important, if she was terminated in March, and only in March according to the records, it means she was not laid off with finality on December 27 as she said at the hearing. It means, in the light of the total record, that on or about December 27, she, like the 12 others listed elsewhere in the complaint, was simply laid off for a while because of lack of work. The truth therefore fits all this into the Respondent's explanation of the whole story. And finally, reverting to the basic idea of antiunion motive, the lady was recalled in March whatever the date might have been. The election was a few weeks off. Does an employer who has a perfectly good excuse to send a prounion employee home for lack of work call her back just before voting time if in his heart he is de- termined to flaut the law to defeat the election? I think not. H. The 8(a)(5) Allegation There is no dispute as to the appropriate bargaining unit in this case; it is set out in the complaint and agreed to by the Respondent. The record also shows there were 23 employees in the bargaining unit in November 1978. The record also shows 12 of the employees then in the unit signed union cards by November 22, 1978. I find, as the complaint alleges, that as of that date the union rep- resented a majority in the agreed-upon bargaining unit. It is also conceded that the Respondent refused to extend recognition upon demand at that time. I can make no finding on this record that the Respondent violated Section 8(a)(5) of the Act by refusing to extend recogni- tion at that time. The complaint does contain two precise allegations of violations of Section 8(a)(1) of the Act. Wissler, the union activist, spoke of a desk near the work area where he used to keep some personal belong- ings. He testified that I day about 3 weeks after he start- ed soliciting signatures to union cards he saw Clark and Brown, the manager, near the desk, and that Clark took 15 union cards, 2 of them signed by employees, out of the desk, placed them in a magazine belonging to Wissler, and walked away. Wissler added that, when he then accused Clark of taking his union cards, Clark denied it, saying he was authorized to use that desk. At the hearing Clark denied having removed any union cards from the desk. Wissler was not a convincing witness, and I therefore credit the denial. He started by saying no one but he used this desk. If such was the case, any supervisor look- ing into it would appear to be engaging in "surveillance" as the complaint alleges. But as he went on Wissler ad- mitted he kept logs of incoming and outgoing production records there. On cross-examination he went further and said he "imagined" the owner, Landen, also had access to the desk, and that, as to Mrs. Landen, he "guessed" she also did. Finally, asked was Brown authorized to use the desk, the witness answered, "Not really." With his I Ignoring her own complaint. in he brief the General Counsel argues that Landen called Keller back to "work only because, having "flexed his muscles," his ultimate purpose of defeating the tUnion in he election had been accomplished Such reasoning, from the fact, of record, is unpersua- sive admission that production records were maintained in that desk, one must believe Clark's testimony that all sorts of company records were kept there, that the desk was always open, and that all members of management used it regularly. This record does not support the alle- gation of illegal surveillance. Before the organizational campaign started, it had long been a practice to distribute the weekly paychecks at or about 11:30 a.m., before the lunch hour. A few weeks after the union movement was born, without explanation the Respondent changed this and started to give out the checks at or about 2:30 in the afternoon instead. After the election was over the old system was restored. Landen's explanation for this temporary change sits poorly in his mouth. He said that employees were using too much of their alloted lunchtime to go to the bank, and as a result either returned late or ate their lunches at work, an interference with production and a confusing activity in the work area. He added he reverted to the old system when the employees got the "point." This story is completely inconsistent with Landen's failure to tell the employees anything at all as to what his reason was when he made the original change. Why did he not take the allegedly corrective action before all this hap- pened? If to his unpersuasive explanation is added the critical timing, the conclusion is inescapable that the real purpose was somehow to get back at the employees for turning towards the Union. Cf. The May Department Stores Company, 191 NLRB 928 (1971). That this was an inconvenience to the employees cannot be denied; but to say it coerced them requires some straining. In any event, even if it were found that this change in the moment of delivery of paychecks amounted to the commission of an unfair labor practice, it would be but an isolated, very minor violation of the statute, not really enough to justify issuance of a formal cease-and-desist order. Finally, that dismissal of this entire complaint is not unwarranted is shown tangentially in the Union's brief. Again and again its attempt at inverse reasoning illus- trates the absence of that direct proof required under Board law. See .L.R.B. v. Glenn Raven Silk Mills, Inc., 203 F.2d 946 (4th Cir. 1953). To prove Clark was a su- pervisor, the brief refers to "the mysterious Mr. Brown," while ignoring the extended written statement of the man received in evidence. Because the employee wit- nesses had no occasion to speak of their manager, it is argued that "presumably he is frequently away from the production area." But the negative does not prove the positive. At another point the brief asks for a "reasonable assumption" that Clark was a supervisor merely because Landen told him to keep quiet about the Union. The Union lost the election; does that outcome prove, as the brief suggests, that the Respondent brought about such results by illegal conduct? It will be recalled that Holly Keller was recalled before the election. The brief hints at illegal motive in the very act of recall: "By effecting the layoffs Respondent displayed to the union supporters it ability to punish 'disloyal' employees with economic weapons. Having displayed its economic prowess Re- spondent loses nothing by recalling an occasional em- SPEED MAIL SERVICE 48- 486 DECISIONS OF NATI()NAL L.ABOR RELATIONS BOARI) ployee to full-time status." Most revealing of all is the light placed upon the Respondent's failure to discharge Wissler, the union ringleader. It says he was retained in order to avoid a finding of illegality which the Labor Board surely would have made. By this reasoning, the fact that an employer does not discriminate proves its intent to discriminate! ORDER 2 I hereby recommend that the complaint be, and it hereby is, dismissed in its entirety. 2 Ill the event no exceptions are riled as provided by Sec 102 46 of te Rules and Regulations of the National l.abor Relations Board, the flid- In keeping with the foregoing findings of fact and con- clusions of law, I recommend that the Union's objections to the election in Case 4-RC-13460 be overruled. ings, conclu-iolls. ad reconlmended Order hreirl shall, as pro, ded il Sec 12 4 of the Rules, and Regulallons, he adlpled h Ithe Bioaird alid become its indings, conclusionls and Order, ild iall objection thereto shall he deemed waived fr all purposes