Edward Purvis & Son

34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edward D. Purvis and Harry H. Purvis, Co -partners, d/b/a Edward Purvis & Son, and their agents, Altho-Graphic Print- ing Ink Corp. and Albert Stone and Printing Specialties and Paper Products Union Local 447, International Printing Press- men and Assistants' Union of North America, AFL-CIO. Case No. 2-CA-7484. April 7, 1961 DECISION AND ORDER On January 10, 1961, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the General Counsel filed an exception to the Intermediate Report and a brief in support thereof. Pursuant to-Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Mem- bers Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the correction as noted in the margin.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Edward D. Purvis and Harry H. Purvis, Co-partners, d/b/a Edward Purvis & Son, and Altho-Graphic Print- ing Ink Corp. and Albert Stone, 110 York Street, Brooklyn, New York, and their successors and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Printing Specialties and Paper Products Union Local 447, International Printing Pressmen and As- sistants' Union of North America, AFL-CIO, by discharging any of their employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employ- 1 Respondents filed no exceptions to the Intermediate Report . In the absence of ex- ceptions we adopt the Trial Examiner's substantive findings pro forma. The Trial Examiner's recommended order required the Respondents to cease and desist from inter- fering with , restraining, or coercing their employees in the exercise of their Section 7 rights. This provision was omitted from the notice to be posted by the Respondents. The General Counsel excepted to such omission in the recommended notice. We find merit in the exceptions , and shall therefore amend the notice to conform with the Order. 131 NLRB No. 8. EDWARD PURVIS & SON 35 ment, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Printing Specialties and Paper Products Union Local 447, International Print- ing Pressmen and Assistants' Union of North America, AFL-CIO, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Reimburse and make whole Lucius Garner for any loss of earn- ings he may have suffered by reason of the discrimination against him in the manner set forth in the section of the Intermediate Report en- titled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records and reports necessary to analyze the amount of back- pay due under the terms of this Order. (c) Post at their plant in Brooklyn, New York, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by authorized representatives of Respondents, be posted by Respondents immediately upon receipt thereof, and be main- tained by them for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. (d) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that : 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in Printing Specialties and Paper Products Union Local 447, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, by discharging any of our employees or in any other manner dis- criminating in regard to the hire or tenure of employment or any term or condition of employment, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Print- ing Specialties and Paper Products Union Local 447, Interna- tional Printing Pressmen and Assistants' Union of North America, AFL-CIO, to bargain collectively through representa- tives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. WE WILL make whole Lucius Garner for any loss of earnings he may have suffered by reason of the discrimination against him. EDWARD D. PURVIS AND HARRY H. PIIRVIS, CO-PARTNERS, D/B/A EDWARD PIIRVIS & SON, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) ALTHO-GRAPHIC PRINTING INK CORP. AND,ALBERT STONE, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and amended charges , the General Counsel issued a complaint against Edward D . Purvis and Harry H. Purvis, Co-partners , d/b/a Edward Purvis & Son,' and their agents, Altho-Graphic Printing Ink Corp. and Albert Stone , herein called Altho and Stone, respectively. The hearing was held in New York, New York, on September 19, 1960 , before the duly designated Trial Examiner. The complaint alleged that Purvis and its agents, Altho and Stone , on July 20, 1960, discharged Lucius Garner because he joined Local 447 and engaged in other protected activities and has refused to reinstate Garner. 1 Herein called Purvis. EDWARD PURVIS & SON 37 Upon the entire, record in the case , and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS ENTITIES INVOLVED , Purvis is a copartnership that maintains its principal office and place of business at 110 York Street, Brooklyn, New York, where it has a machine shop as well as ink-making production equipment . Purvis manufactures and sells machinery of various types as well as printing ink. In a representative year Purvis manufactured and sold products valued in excess of $50 ,000, of which products valued in excess of $50,000 were shipped from said place of business directly to States other than New York. Altho is a corporation that maintains its office and place of business on the fourth floor of 110 York Street, Brooklyn, New York, premises owned and otherwise occupied by Purvis' machine shop operation.2 The ink that is manufactured on the fourth floor is shipped under the name of Altho and is sold by that corporation to various customers. Stone is the president and treasurer of Altho. The secretary of the corporation is Stone's wife and his father is a director. The foregoing group owns all the stock of the corporation and so far as appears there are no other officers or directors. The corporation was formed and commenced operations at 110 York Street in October 1959.3 From October 1959 to the date of the hearing Altho purchased approximately $7,000 worth of ink from Purvis and about 10 percent of this ink was shipped to points outside New York State. Additional aspects of the relationship between Stone and Altho on the one hand and Purvis on the other are discussed hereinafter. U. THE LABOR ORGANIZATION Printing Specialties and Paper Products Union Local 447, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Lucius Garner first went to work at 110 York Street in the fall of 1957. He worked for Schieffer-Eldridge Printing Ink Corporation on the fourth floor of the building as a printing ink mixer . The aforementioned corporation went out of business about July 1, 1959. In the latter part of July 1959, Harry Purvis got in touch with Garner and asked him to come to work for Purvis. Garner commenced working for Purvis on July 27, 1959, and performed the same type of work for Purvis as he had done for Schieffer-Eldridge. The ink manufacturing continued to take place on the fourth floor. In October 1959, Altho and Stone entered the picture. Stone possessed a degree in chemistry and had been engaged in the ink business for a number of years. Stone thereafter directed Garner in his work. The sign in front of the building read, "Altho-Graphic Printing Ink Corporation, Fourth Floor; Edward Purvis & Son First Floor." In the 1960 period with which we are here concerned, there were three, then four, men employed on the fourth floor at 110 York Street. Wiatrak, who had previously worked for Schieffer-Eldridge, left the York street operation when the latter corporation went out of business. At the request of Purvis and Stone, Wiatrak was induced to relinquish the job he had secured after Schieffer-Eldridge terminated its operations, and he returned to work on the fourth floor of 110 York Street about February or March 1960. The other employee on the fourth floor, besides Garner 2 The first floor of the York Street building contains the Purvis office and machine shop ; the second and third floors also house the machine shop, and the fourth floor is occupied by a mixing machine and grinders, all being equipment used in the manufacture of print- ing ink, as well as by an office and a room known as the lab where formula cards used in the ink manufacture are kept and where checking or testing and other matters relating to the printing ink operation are carried on. 8 Other than President Stone the other members of the family corporation are not active in the business. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Wiatrak, was Cruz who apparently did most of the shipping type of work. Bell was hired about July 11, 1960. Purvis owned the building, the ink manufacturing machinery on the fourth floor, and paid the wages of Garner, Wiatrak, Cruz, and Bell. The evidence convinces the Trial Examiner that the aforementioned employees were Purvis' employees and that Purvis possessed the final authority as to hire and discharge. Altho and Stone have no written lease with Purvis for the fourth floor premises and no rent as such is paid therefor. All Respondents contend that Altho and Stone are simply customers of Purvis and that they purchase ink manufactured by Purvis. The Trial Examiner agrees that the evidence shows that Altho and Stone purchase ink from Purvis and that Purvis manufactures the ink. The labor costs as well as the cost of machinery, space, and shipping are borne by Purvis. Altho sells to its own customers the ink it has purchased from Purvis and Altho sets the price to the customer.4 The precise financial arrangement between Altho and Purvis is not entirely clear. Stone defined it as a cost-plus basis; he stated that the two organiza- tions shared only in profits, that each had its own expenses and losses.5 For the purposes of this case and in the absence of contrary evidence, the Trial Examiner accepts the foregoing testimony of Stone. The typical working relationships on the fourth floor of the York Street building were as follows: Wiatrak was an experienced and capable man with about 20 years' experience in ink manufacture; he was familiar with the mill machines that ground the ink and could set and adjust them to obtain the required grind; he was regarded as a first-class millhand and could also do color matching; Stone testified that he also considered Wiatrak to have sufficient practical experience to be a formulator, i.e., the man who devised the formulas for the making of particular ink products. Wiatrak was in charge of the milling and mixing of the ingredients that went into the manufacturing of the ink and he also was in charge of canning the finished product and shipping it. He was paid $100 per week and he gave technical assist- ance to Garner regarding the performance of work such as making adjustments on a mill machine in order to obtain a more suitable grind. Wiatrak also did color matching work in the laboratory on the fourth floor but because he preferred not to do that type of work he was taken off such work when Bell was hired. Garner's principal duty commenced with receiving a formula card on which would be stated the ingredients and proportions thereof to be used in making a particular ink order. Sometimes Stone would give the formula card to Garner and at other times Garner received the card from Wiatrak or Bell.6 Garner would take the formula card and weigh off on a scale the prescribed amounts of color and varnish; he would then take the ingredients and run it through the mill until it was properly ground. The coarseness or fineness of the ingredients processed in the mill would vary as to certain types of ink and the number of runs made through the mill and the adjustment made on the mill would affect the finished product. In many instances Garner received no instructions regarding the number of runs to be made but on other occasions Stone would inform him how many runs he wished to be made on a particular order. Garner also canned ink in preparation for shipment and typed some of the shipping labels and placed them on the cans. The ink was checked in the laboratory before shipment and if Bell, for instance, was not satisfied with the particular shade of ink, he would tell Garner what to do to correct the situation.? No one in the Purvis organization as such dealt directly or closely with the pro- duction operations on the fourth floor. Harry Purvis came to the fourth floor only occasionally and there is no evidence that he gave any orders regarding production performance to the men engaged in the ink manufacturing. `In the interval between the demise of Schaeffer-Eldridge in July 1959 and the advent of Altho in October 1959, Purvis manufactured and sold ink in its own name By about July 1960, Purvis was no longer shipping ink to customers under the Purvis name. e Apparently Altho purchased ink from Purvis at cost plus some figure or percentage mutually agreed upon. 5In the period from October 1959 to the first part of 1960, neither Wiatrak nor Bell was employed on the fourth floor at York Street and Stone dealt directly with Garner during that period When Wiatrak was employed he gave Garner the formula cards and instructions. After Bell was hired he gave Garner the cards and pertinent instructions. 7 Before Bell was employed Wiatrak performed the laboratory check on the finished product. EDWARD PURVIS & SON 39 Stone apparently came to the fourth floor in the morning and gave whatever in- structions he deemed desirable to Garner , Wiatrak, Bell, and Cruz. Stone spent most of his time in sales contact and promotion away from the premises at York Street. Wiatrak testified credibly that he was hired by Harry Purvis and that both Purvis and Stone had previously contacted him and had asked him to come to work on the fourth floor. It was Wiatrak's uncontroverted understanding that he was to be in charge of the floor, the milling and mixing, and that he would receive formulas already made or formulated . He was to give instructions to Garner and Cruz. The foregoing instructions as to his duties were given to Wiatrak by Stone. Wiatrak testified that Stone was his superior and gave him instructions as to what he wanted to be done. Although Wiatrak had told Purvis when he was hired that he did not wish to do color matching, Stone, soon after Wiatrak commenced working, told him to go into the laboratory and match colors. Wiatrak did so. Wiatrak also stated that if there were several orders for ink on hand, Stone would instruct him as to the order in which the work was to be performed . If Wiatrak was doing one thing, Stone could and did direct him to do something else. Garner also testified that Stone was the man who gave the directions and orders to the men, including himself.8 Wiatrak testified credibly that the man in charge of the laboratory was in charge of production. When Bell was hired he took over the laboratory work and Wiatrak confined himself to the production work on the floor . Garner testified that he under- stood that Bell was to take over the laboratory and Wiatrak was to be in charge of the outside floor, "In other words they were still my boss and Stone was the big boss, that's the way I understood it." Harry Purvis testified that Bell was hired because Wiatrak did not wish to do laboratory work. In May 1960, Garner went to Purvis' office on the first floor . Stone and Harry Purvis were both present and Garner asked for a raise in pay. Purvis said that the business was not in a position to grant an increase. Garner spoke to Harry Purvis again in June on the same subject and with the same result . According to Garner's credited testimony he also spoke to Stone on many occasions about his pay. The last of these conversations was on Friday , July 15 , 1960, and it took place in the fourth floor office . Garner told Stone about all the pressure he was under , that he was doing much more than the work of a millhand , and that he still was not receiving a millhand's rate of pay . Stone agreed that Garner was not getting adequate pay but gave no indication of doing something about the situation. On the evening of Monday, July 18 , at Garner's instigation, he, Wiatrak, and Cruz went to the union office and joined that organization .9 The following day, July 19, in the afternoon, a telegram, addressed to "Altho-Graphic Printing Ink Corp., 110 York Street-," sent and signed by the Union, was delivered on the fourth floor of the premises.1° Present at the time were Bell, Wiatrak, and Garner. Bell opened and read the telegram in the presence of Wiatrak and Garner . Bell said, "Al isn't going to take this sitting down." 11 Stone found and read the telegram on his desk on the fourth floor later that day. That evening Stone spoke to Purvis and informed him of the telegram. The evidence convinces the Trial Examiner that in the conversation aforemen- tioned on July 19 between Purvis and Stone , the decision to terminate Garner from his job on the fourth floor was made .12 The initiative for the termination came from Stone, and Stone recommended that Garner be terminated . Purvis testified that although he did not have to terminate Garner from his job on the fourth floor 8 Bell and Cruz did not testify. 6 Wiatrak had been or was a member of the Union but be filled out a card together with the others. 10 The telegram stated : "Your production , shipping and receiving employees have joined our union. Request recognition and conference to negotiate wages, hours , and all other working conditions." 11 The Trial Examiner finds that the reference to "Al" was to Albert Stone , president of Altho. 'E Stone denied that he discharged Garner, stating that Garner was not his employee and that he was not a supervisor for Purvis Purvis testified that he did not discharge Garner, observing, "I certainly don't think that any activity of Stone or Altho-Graphic Printing Ink Company, whatever it might be relative to employment or anything else, should make me liable for anything that's been done." 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and could have retained him notwithstanding Stone 's position on the matter, he did not do so. Because of Stone's determination to be rid of Garner , Purvis acquiesced. The following day, July 20, Garner arrived at the premises about 7 : 15 a.m., and Stone came in at 7 : 30, although he usually came to the plant anywhere between 8 and 10 a.m. or later. When Stone got off the elevator on the fourth floor Stone had Garner's timecard with him . 13 Stone told Garner, ""Take your card, go downstairs and punch out. Wait for Mr. Purvis. You are fired." When Garner asked the reason, Stone said , "Incompetence." Garner then queried whether he was not being fired "because you got the notice that we joined the Union . . . and you may have to pay me a decent salary." Stone replied , "I don't think you are worth it," re- marking, "and there was a union downstairs . Why didn't you join that." 14 Garner said that that union was a machinists ' union "and I didn't think I had any right to join that, we are printing ink makers." Following this conversation Garner went downstairs , did not punch out, and waited for Purvis . When Purvis came in Garner told him that he had been fired for joining the Union . Purvis said, "No." Purvis and Garner then went to the fourth floor and the former spoke privately to Stone. After Purvis and Garner returned downstairs Purvis asked him if he knew anything about ink being returned by a customer and Garner said he did. Nothing further was said on that subject. Purvis then asked Garner why he could not get along with Bell. Garner said there was no conflict at all on the fourth floor, adding that it was simply that he considered his salary un- satisfactory, had joined a union, and had been fired out of a clear blue sky. Purvis then said that Garner could go to work in the machine shop . Garner replied that he knew nothing about machine shop work and had been hired to work in the ink shop. Purvis then secured Garner 's paycheck for him and Garner left. Wiatrak testified credibly that on July 20 as he was punching in he met Stone and saw Stone pick up Garner's timecard . Upstairs Stone spoke to Garner but not in Wiatrak's presence . A few minutes later, Garner told Wiatrak that he, Garner, had been fired . Wiatrak then spoke to Stone, saying, "Al, I think you made a mistake." Stone replied, "Well , he was no good anyway." The preceding Monday, July 18 , Wiatrak had given notice to Stone that he was leaving for a better job on Wednesday, July 20. Purvis testified that Wiatrak had also given this information to him . The Trial Examiner is of the opinion that Wiatrak probably spoke to both men on separate occasions on Monday. In any event both Stone and Purvis became aware on July 18 that Wiatrak would no longer be working at the fourth floor of 110 York Street after July 20. After Garner's termination on July 20 as aforedescribed , the remaining employees, Wiatrak and Cruz, walked out.15 Apparently picketing of the premises commenced and Garner and perhaps Wiatrak and Cruz participated 16 Samuel Gruber, a partner in the Mid-Hatten Employment Agency and placement manager thereof, testified credibly that on July 19 his agency learned that Altho was interested in securing a millhand who knew printing inks. On July 20, Gruber tele- phoned Altho and spoke to a man who identified himself as Al Stone. Gruber testified that he called because he wanted to know what was "a millhand who knew printing inks." On the 20th Stone explained that he wanted a roller machine operator or apprentice . Gruber wrote down the details including the wages. The wages for an experienced man were $85 to $90 and an apprentice with no experience would receive $60 to $70 a week.17 Oscar Colon . a disinterested and credible witness, testified that on July 20 he went to Mill-Hatten Employment Agency seeking employment and was referred by Gruber to Altho . Gruber gave Colon a card with Altho's name thereon and the address and instruction to see Al Stone. Colon went to the address given, 110 York Street, and 11 The timecards of the fourth floor employees and the employees of Purvis' machine shop neople were kent in a timecard rack on the first floor 14 The machine shop employees of Purvis were represented by the International Asso- ciation of Machinists and that union had a contract with Purvis. 15 Apparently Wiatrak would have worked until the end of the day on July 20 but because of Garner's discharge he left earlier. 11 Record details regarding the picketing are quite limited. With the exception of Supervisor Bell. therefore . there were no operating personnel on the fourth floor immedi- ately after Garner's discharge. 17 Garner's wage had been $64. The union rate for a millhand was $95 60. EDWARD PURVIS & SON 41 spoke to Stone on the fourth floor. Stone spoke to Colon about working on the floor operating an ink mill. Colon understood that he would be doing general work, mixing and working the mills. Stone then told him to return in half an hour. When Colon returned he saw Harry Purvis in his office on the first floor. Colon filled out a card with information regarding his name, address , and number of dependents. Purvis told Colon he would start the next day. Colon testified that his previous work experience had been in food handling , poultry. He had never worked in an ink factory. He informed Stone of this fact and believed that he also told Purvis. Purvis, while admitting that Garner was terminated from his ink manufacturing job at the instance of Stone and that the decision was made on July 19, enumerated a number of instances of Garner 's inefficiency "from the time he was hired." Each incident involved Garner's leaving some water on overnight which resulted in dam- age to lower floors of the building. This water incident occurred about July or August 1959. In the latter part of June 1960 some black ink was sent to a customer referred to as Tabard . Apparently various shipments that Tabard received were satis- factory but the last batch was not. Stone said that he was going to bring the ink back and he instructed Garner to double the amount of drier therein because the ink did not dry fast enough .18 The remaining incident referred to by Purvis in his testimony was that he found Garner asleep sometime prior to March 1959 . 19 Garner testified credibly that he had received no complaints or reprimands about his work and there is no evidence to the contrary. Purvis stated at the hearing that Bell had told him that the Tabard ink deficiency had been Garner's fault. Purvis admittted that he had made no decision to terminate Garner at that time. Wiatrak, who had worked with Garner on the fourth floor prior to June 1959 when Schieffer-Eldridge was conducting the operation and had also worked there with Garner in 1960 in the Stone and Purvis period, testified regarding Garner's capabilities . Wiatrak considered Garner to be a good worker and a hustler. He considered Garner to be a competent millhand and it was only on occasion that Wia- trak found it necessary to offer some suggestion to Garner regarding the mill opera- tion or to reset the mills. The only criticism that Wiatrak had of Garner was that he was not particularly neat, i.e., Garner would get ink or varnish on his hands and would get these substances on the machines so that Wiatrak , if he reset a machine, would get some ink or varnish on his hands. Wiatrak said that this lack of neatness did not affect the actual work performed by Garner. It is the Trial Examiner's opinion that while Garner was not the journeyman that Wiatrak was, Garner was generally a competent employee.20 After working for Schieffer-Eldridge, together with Wiatrak, Garner, after the former firm went out of business, was hired by Purvis. From the end of July 1959 until February or March 1960, Garner was apparently the only employee manufacturing ink on the fourth floor . Stone testified that when he, Stone, first entered the picture on the fourth floor at York Street, October 1959, Garner was in charge of the ink produc- tion and Garner continued in that capacity for some time thereafter . Before the advent of Wiatrak in February 1960 Garner was the sole ink production employee. Stone gave Garner the formula to be used and such instructions as he deemed ap- propriate but did not himself engage in the manual manufacturing. In seeking to explain Garner's discharge, Purvis stated that when it was learned that Wiatrak was leaving it was also decided to get rid of Garner. Although Bell was apparently experienced in ink manufacturing and was a supervisor in charge of production and the superior of Wiatrak, Purvis stated that Bell was not as good a Is The Tabard Ink had been tested by Wiatrak before It was shipped. 191n the course of cross-examining Garner, Stone adduced testimony regarding the Hamilton and Barry Keller incidents Both these incidents occurred In October 1959. Hamilton was a customer who complained that its order of ink had not been ground fine enough Garner testified without contradiction that at Stone's Instruction he had ground the Ink on that order making only a few runs through the mill. He had pointed out to Stone that Wiatrak ran the ink from five to eight runs but Stone told Garner that that would consume too much time on the Hamilton order. Regarding the Barry Keller order about which Keller had complained -concerning the gloss of the ink, Stone had said to Garner, "I cannot satisfy Barry Keller " Both the Keller and Hamilton Inks had- been tested by Stone before the orders had been shipped 21 Wiatrak had been in the ink manufacturing business for about 20 years. He was admittedly a topnotch man. His pay In 1960 was $100 a week Garner had 4 years' experience in ink manufacturing and his pay was $64 a week. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD millhand as was Wiatrak and could not supervise Garner as had Wiatrack.al The logic of the foregoing position would be that Respondents would therefore seek to replace Wiatrak by a highly skilled and experienced millhand who could provide Garner with technical supervision and assistance . Instead, Colon, a job applicant with no experience in ink work, was interviewed on July 20 to do the millhand work of Garner.22 Since Respondents knew, before Garner was terminated, that Wiatrak was leaving on July 20, the termination of Garner manifestly deprived Re- spondents of any experienced production man. Even if Garner was not an A-1 mill- hand he certainly was better than no millhand or a totally inexperienced man such as Colon. The instances of Garner's alleged inefficiences , previously described, are not per- suasive that inefficiency was the cause of the termination nor is there convincing evi- dence that Garner was as deficient a millhand as Purvis asserted . Such matters as not turning off water and other asserted derelictions on Garner's past occurred many months prior to his discharge and were not the occasion of admonitions or repri- mands. Even the Tabard affair, which was the most recent , occurred about a week, prior to the discharge and the evidence as to whether Garner was at fault or was considered to be at fault is of a tenuous nature. In any event, Garner was never reprimanded or disciplined by Stone, Wiatrak, Bell, or Purvis and there admittedly was no decision to terminate Garner until the evening of July 19 when Stone advised Purvis of the telegram from the Union and recommended Garner 's termination. Evidence is also lacking that there was any discussion or recommendation about terminating Garner prior to the conversation between Stone and Purvis on the evening of July 19. When Stone read the union telegram on July 19 , he knew that the fourth floor employees had joined the Union and that the Union claimed to represent the em- ployees. The employees were Wiatrak, Garner, and Cruz. Stone already knew that Wiatrak was leaving on the following day, July 20; he knew that Cruz was a new employee of 5 months' service engaged principally in shipping work and there is nothing in the record to suggest that Cruz was in any way articulate about his job status and conditions of employment or was anything more than a follower in the union activity . Garner, on the other hand, was an employee with the greatest length of service and he was the employee who had been complaining about his wages and working conditions, the last such instance having occurred on Friday, July 15, at the end of the workday. Following the next full workday, July 18, Stone had received the union telegram on July 19. The termination of Garner, therefore, was the logical move to abort the union claim for recognition and to eliminate the union strength on the fourth floor. It is the Trial Examiner's opinion and he finds that Stone recommended and in effect demanded that Purvis terminate Garner because of his union activity. This conclusion is confirmed by the conversation between Garner and Stone on July 20. Stone did not deny Garner's accusation that his discharge was due to the fact that Stone had received the union telegram and was eliminating Garner in order to fore- stall the possibility of having to pay Garner more money pursuant to the Printing Union's standards and demands . Stone told Garner he was not worth more money. Stone asked Garner in effect why he had to join the Printing Union when there was a union downstairs in the machine shop that he could have joined . When Wiatrak told Stone that he was making a mistake in discharging Garner , Stone impliedly in- dicated that inefficiency was not the real reason for the action and was a makeweight factor, to wit : "Well, he was no good anyway." At the time the telegram was received Supervisor Bell had warned, "Al [Stone ] isn't going to take this sitting down." The discharge of Garner from his fourth floor job by Purvis at the instance of Stone was in the Trial Examiner's opinion violative of Section 8(a)(1) and (3) of the Act . The Trial Examiner is of the opinion that Purvis was aware of the reason 21 Purvis said he also thought that there was friction between Bell and Garner Purvis gave no explanation of this assertion and Bell did not testify ; Wiatrak did not mention any such friction ; nor did Stone although all these persons would. have been in a much better position than Purvis to know of any alleged friction ; Garner denied having any trouble with Bell. There is no claim that Bell ever reprimanded Garner or recommended his termination. 21 It is quite clear that Colon could not be a replacement for Wiatrak. EDWARD PURVIS & SON 43 why Stone wished to be rid of Garner but in any event, by acting at Stone's instance, Purvis assumed the responsibility for Stone's motivation. Although Altho and Stone were customers of Purvis, both Altho and Stone, through Stone, were given and exercised a substantial degree of control over the actual ink manufacturing operation including de facto supervision of personnel. The fact that the employees were the employees of Purvis and that the latter had the ultimate power of control and supervision does not alter this conclusion. It is unnecessary to define in all respects the exact legal relationship between Altho and Stone, on the one hand and Purvis on the other. Suffice to conclude for present purposes and on the basis of this record that Altho and Stone were de facto agents of Purvis with reference to the events heretofore described, particularly the dis- charge of Garner. As agents they share with Purvis the responsibility for that dis- charge and the illegal nature thereof.23 Garner testified that following his discharge on Wednesday, July 20, he had a conversation with Harry Purvis on the sidewalk outside the York Street plant where Garner was picketing. This occurred on Friday, July 22. The substance of the conversation was that Purvis first told Garner that he could come back to work in the machine shop. Garner rejected such a proposition. Purvis then told Garner he could come back to work on the fourth floor.24 Garner testified that he assumed during the conversation last described that Purvis was offering him his job at his former wage rate. Garner's reply to Purvis was, "Well, there's a matter of salary involved there." Purvis then said, "I will not pay you the union scale, but how much do you think you would consider as a start, . how much salary increase do you . want." Garner said he did not know but in any event he wanted union representation, "somebody to protect me." Purvis replied, "Well, it's up to you." This was the end of the conversation and apparently the subject was not again discussed. Based on the foregoing testimony of Garner the Trial Examiner finds that on July 22 Garner was offered unconditional reinstatement to his former job. Garner rejected the offer for the asserted reason that he apparently wanted an increase in salary and apparently required that Purvis recognize the Union as collective-bargain- ing agent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connec- tion with the operations of Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondents had discriminated against employee Garner, the customary remedial action would be the requirement that Respondents offer rein- statement to Garner to his former or substantially equivalent position. However, it has been found that on July 22, 1960, Respondent Purvis did offer Garner reinstate- ment to his former position and that Garner declined the offer. The Trial Examiner concludes that in view of Purvis' ownership of the building, the machinery and the equipment, and the fact that Purvis employed and paid the employees, the offer was an effective one both with respect to Purvis' liability and with respect to that of Altho and Stone. Under the particular circumstances of this case, I see no reason- able basis for extending the liability of Altho and Stone beyond the point at which Purvis offered reinstatement to Garner. Tt will be recommended that Respondents make Garner whole for any loss of pay suffered by reason of the discrimination against him by paying him a sum of money equal to that which he would have earned in Respondents' employ from the date ^ Altho and Stone had been granted at least apparent authority by Purvis to deal with ink manufacturing and the personnel on the fourth floor and from all the evidence they had in fact actual authority in the foregoing respects. Moreover, in the afore-described areas Purvis had ratified and acquiesced in the activities of its agents. 24 The phrase was ". . you can come back upstairs " In context and in viewing the entire conversation, it is apparent to the Trial Examiner and he finds that Purvis was offering Garner an opportunity to return to his job In the ink manufacturing on the fourth floor 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his discharge on July 20 to the date of the offer of reinstatement on July 22, 1960, less his net earnings elsewhere, if any. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Printing Specialties and Paper Products Union Local 447, International Print- ing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organ- ization within the meaning of Section 2(5) of the Act. 2. By discharging employee Lucius Garner , Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Southern Electrical and Pipefitting Corporation and Ray E. Booker and United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO; Local Union No. 568, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Parties to the Contract Local Union No. 568, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and Ray E. Booker and Southern Electrical and Pipefitting Corporation ; United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL- CIO, Parties to the Contract. Cases Nos. 15-CA-1445 and 15-CB-331. April 7, 1961 DECISION AND ORDER On December 9, 1959, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ents and the General Counsel filed exceptions to the Intermediate Report, and the Respondents and the Charging Party filed briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 131 NLRB No. 12.