Dayton Typographic Service, Inc.

DAYTON TYPOGRAPHIC SERVICE 357 Dayton Typographic Service, Inc. and Thomas L. Johnston. Case 9-CA-4698 June 3, 1969 DECISION AND ORDER BY CIIAIRMAN M('CULI OCH AND MI-MBERS BROWN AND ZAGORIA On March 28, 1969, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice conduct alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief and Respondent filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. to reinstate Johnston because of his activities on behalf of the Union or other concerted activities, all in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues arise on a complaint issued on September 30, 1968, by General Counsel of the Board through the Board's Regional Director for Region 9,' and answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices. At the close of the testimony the parties waived oral argument but later filed written briefs which have been carefully considered in the preparation of this Decision.' Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. RESPONDENTS BUSINESS AND THE LABOR ORGAN IZATION Respondent is an Ohio corporation engaged in the business of typesetting for the printing industry at its plant in Dayton, Ohio. Respondent in its business has an annual direct inflow of goods and materials valued in excess of $50,000, and annually receives over $50,000 for services it performs for customers located outside the State of Ohio. Respondent admits, and I find, that it is an employer engaged in operations affecting commerce within the meaning of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background History ORDER It is ordered that the complaint herein be, and it hereby is, dismissed in its entirety. MI•MBER BROWN, dissenting: For the reasons stated in my dissenting opinion in Thor Power Tool Company,' I would not, at this time, reach the merits of this matter, but would require the parties to resume arbitration proceedings. '148 NLRB 1379. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: The issues in this case, which was tried before Trial Examiner Eugene F. Frey at Dayton , Ohio, on December 5 and 6 , 1968, with all parties represented by counsel , are whether or not Respondent ( 1) refused to allow an agent of Dayton Typographical Union No. 57, affiliated with International Typographical Union , AFL-CIO (herein called the Union ), to be present at a meeting allegedly called by Respondent with Thomas L. Johnston and another employee for the purpose of reprimanding and disciplining Johnston about his work, and (2) later laid off and refused 176 NLRB No. 48 The Union is a statutory collective-bargaining agent of employees in Respondent's plant in an appropriate unit set forth in an agreement executed by the Printers League of Dayton (of which Respondent is a member) and the Union in March 1967, and still in effect. Respondent, either in its present or earlier corporate form and under its present or earlier names, has had successive contracts with the Union since at least 1924. In this period Respondent has never had an unfair labor practice charge filed against it arising out of its relations with employees or the Union; it was subjected to the general strike of 1937 when the Union was organizing the printing industry in Dayton after passage of the original Wagner Act, and two wildcat strikes in the last 2 years; it has been involved in only two arbitration proceedings under existing or prior contracts. It was also a pioneer in the "union label" movement in 1924, and has held official union label licenses from labor organizations ever since. The founder of Respondent's predecessor was a member of the ITU, parent of the Union, over 40 years. A subsidiary concern which makes products for the printing trade in the same building has had contracts with two other printing trade 'The complaint issued after Board investigation of a charge filed by Thomas L. Johnston on April 22, 1968 'After the close of the hearing , counsel for General Counsel filed a motion, with notice to all parties, to correct the transcript of testimony in certain respects. As no other party has objected , the motions is hereby granted, and the transcript shall be deemed corrected in the four places indicated in the motion, which is marked in evidence as G.C. Exh.5. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions since its mception.- B. The Johnston Case 1. The March 7, 1968, meeting Thomas L. Johnston was first employed by Respondent in January 1966 as a "T.T.S. perforator." He was laid off in late 1966, but he exercised his priority and claimed a proofreading ,lob,' and worked thereafter at that job until his layoff of March 22, 1968, which is now in question. On March 7, 1968, Plant Foreman William J. Santner (an admitted supervisor under the Act) brought Johnston and Mary F. Fisher, both proofreaders on second shift, to a "quality control" meeting with him and William C. Taylor, production manager of Respondent.' At the outset, Santner explained he was there to discuss a critical subject, the quality of the proofreading, but by being present he was not making any concessions to the Union, or reflecting in any way on Respondent's position about the Union's insistence that the foreman must always be present at these meetings. He said he was very much concerned about the great number of errors in the proofreading, that one customer in particular, E.F.M. Art, had been "raising Cain" about errors in its work. He said he felt that Johnston and Fisher had been making most of them, that something would have to be done about it, and that he would have to take some "drastic action." He then produced a group of reproduction proofs, which is the final form of printing work that goes out of the plant, of work done by Johnston, Fisher, Charles Benzinger, Paul Cook, and a few other proofreaders; he or other officials had marked proofreading errors on them, as well as the numbers of the proofreaders who had made them. He went over the proofs in detail with Fisher. She asked to see the "A" and "B" (earlier) proof to find out who actually made the errors, arguing that she and Johnston did not do all the proofreading, that some was done by day-shift and third-shift readers, and she felt the day personnel made more errors than she and Johnston. Santner disagreed, saying more were made by night-shift readers. He had some "A" proofs there, but said it was not necessary to go over all "A" and "B" proofs, or even the original proofs, that the samples of errors he had there were enough, as he wanted to consider the overall problem of too many errors going out in the final product. He indicated that, due to the number of errors, Respondent had taken steps to double-proof and triple-proof the E.F.M. Art work for several weeks, and was considering double-proofing work of other customers. After reviewing apparent errors in her work with Fisher, Santner turned to Johnston, remarked that the conversation had been onesided to that point, as he had said nothing at all, and said "I want to hear what you've got to say." Johnston replied that he had previously told 'The above facts are found on documentary proof and uncontradicted testimony of William C. Taylor and John C. Taylor. Sr (father of William). 'While "T.T.S. perforator" is not explained in the record , the current contract between Respondent and the Union indicates that this denotes an operator of a tape perforating machine in the composing room. On his 1966 layoff, Johnston apparently claimed and secured the proofreading work under section 29 of the contract which provides that the employee with lowest priority standing in the shop in the class of work involved in the layoff shall be laid off first, but he may claim other work in the office which he is competent to do, and may "bump" out of that work an employee of lower priority standing. Priority standing in an office or shop is established on a shopwide basis, not by classification of work. 'The "quality control program" with periodic "superior quality" meetings is explained below in considering Respondent's defense Santner to bring Johnston's errors directly to him as soon as possible, as he wanted to be a good proofreader and did not want Santner to think he was trying to make these errors. He then said "You called me up here to criticize my work, you are blaming me for errors and threatening drastic action, and this sounds like a disciplinary meeting, is that right?" Santner replied "You can so consider it." Johnston then said "I will not discuss anything further about my work without the presence of my chapel chairman. I wish to be represented here by my chapel chairman." Taylor spoke up, saying "That is a poor choice of words, this is not a disciplinary meeting." Johnston turned to him, waved his hands at him, and said "I don't have to talk to you," and repeated this again. Santner pointed to Fisher, saying "There is your representative, your witness." Johnston replied Fisher was "more a co-defendant than a witness," and repeated his demand for presence of the chapel chairman, saying that he did not wish to refuse to cooperate, and he would cooperate, for he was concerned about errors as they were, but he felt he needed representation by his chapel chairman if they talked about his errors. Santner commented "Your witness is here, and how can you say that you do not refuse to cooperate?" Johnston insisted he still needed the chairman present, but Santner refused to call him in. Both men became rather heated in this exchange, so Taylor finally told Santner to "end this meeting, we are not going to have any of this at this meeting," that Johnston was "refusing to cooperate." Johnston denied he was refusing to cooperate, and Santner replied "Yes, it looks like you are refusing to co-operate, that is unfortunate." The meeting then broke up. As Johnston was leaving the room, Taylor told him that if he were being disciplined, he would be told that and then he could have the chapel chairman present.' When Johnston returned to his work, he talked to Santner and Paul Stewart, the night chapel chairman, about the meeting, telling Santner he was not refusing to cooperate with him, and asking if he had any complaints about his work. Santner replied that he felt Johnston had always been cooperative, that he had no complaints about his work, and that he had told Taylor beforehand that the meeting would turn out as it did. Johnston asked Santner to bring any complaints about his work directly to him, and Santner said he would. Santner also said he realized that he had an obligation to the employees as well as management to protect their rights, but he could not always do this, as he had three bosses to answer to, because at times the three Taylors each told him to do things differently. He told Johnston not to worry about it, just to go back and do his job. Johnston commented in the talk that he felt Santner's purpose in holding these meetings was "above board," but he thought Taylor's motive was to set up some kind of employee review system, in which he could call them in individually and grade them on their "attitude, and intimidate them, and so forth," to which Santner agreed. On Wednesday, March 20, Santner told Johnston he had to lay him off at the end of the week because there was not enough work. Johnston told Ward E. Downs, the day chapel chairman of the shop and vice president of the Union, of the impending layoff, and Downs advised him that under the ITU law and the contract he had the right to "switch" classifications and .claim any job other than *The above facts are found from a composite of mutually corroborative testimony of Johnston, Fisher, and Taylor. Testimony of any of these witnesses at variance therewith is not credited DAYTON TYPOGRAPHIC SERVICE 359 proofreader, if it was held by an employee of lower priority, and if he felt he was competent to claim that job, otherwise he could put his name on the "extra board" as available for work as a proofreader. On Friday, March 22, Johnston again talked to Downs about his rights, and both went to see Santner. Johnston told Santner he thought he was competent for "floor work" and asked Santner if he agreed. Santner said he did not. Johnston argued that he had worked the required number of shifts in order to be considered competent under the contract for that work,' and asked Santner to produce company records to find out if this was true. Santner said he could not do that. Downs then told Santner that, if he did not consider Johnston competent "on the floor," Johnston wanted work as an "extra" in the proofroom only, and that he had a right to that work under ITU law. Santner agreed. Johnston was laid off at the end of his regular shift that day. . In the week of March 25-29, Johnston reported for work daily to the chapel chairman to seek work as an "extra." Down reported this to Santner. When the latter indicated he did not want to hire him, Johnston then claimed 3 accumulated days of overtime work previously worked by other proofreaders, which had been posted in the shop according to that contract, and in that way worked three or four shifts that week (one day and two to three night shifts) by "bumping" the regular proofreaders including Fisher, who had accumulated that overtime. On March 29, when Johnston reported for proofroom work only, Santner offered him work as an "extra" on the "floor" on second shift. Johnston replied, in the presence of night Chairman Stewart, that if Santner would declare him competent for "floor" work he would hire him for that work. Santner refused to do so, and Johnston declined the offer. On April 1, Johnston reported again for proofroom work only on day shift. Santner again offered him "floor" work on day shift. Downs was present and reminded Santner that they had "gone all through this Friday evening. You had already declared Mr. Johnston incompetent on the floor and he was not accepting any floor work, so that he did not jeopardize his priority to take another classification ." Downs and Santner had a heated argument about this, during which Downs accused Respondent of "trying to freeze Mr. Johnston off of this board for some reason." Sgntner replied "you and I both understand how a slip board works. But I've got my orders from upstairs that I have to follow." When Johnston reported at the shop that afternoon for proofroom work, Santner handed him a letter, signed by Santner for Respondent, stating that, since he had refused work on March 29 as an "extra" on second shift, Respondent was barring him from the composing room for 3 months. Johnston took the letter to Downs, who at once asked Santner "how . . . are you going to . . . bar a man if you don't fire him?" arguing "You've got to fire him before you can bar him [and] you can't fire a man out of this shop." He also asked Santner to give him a reason why he did this "so that I will have some defense against it." Santner replied "The letter speaks for itself. .. Figure it out yourself." 'Johnston was apparently referring to secs. 5 and 31 of the contract which provide, in effect, that, if a shop hires a substitute for 10 consecutive working days, the substitute shall be "recognized as a situation holder," and that any employee hired for a period of 10 shifts shall be deemed competent. On April 2. Johnston reported as available for work as an "extra" in the proofroom, but Santner did not hire him and said he was "under bar." That evening a majority of second-shift employees engaged in an unauthorized or "wildcat" strike because of this action, and stayed out for 2 days. On April 4, the dispute was settled at a joint standing committee held pursuant to the contract, at which Respondent admitted the "bar" was a mistake and agreed to pay Johnston 2 days' pay for time lost due to the "bar," to allow him to go back on the "extra board" for proofroom work," and thereafter to obey the "transfer" laws of the ITU which prohibited an employer from transferring other workers to a classification for which an employee had presented himself but had been denied hire ; Respondent also agreed to recognize the "open slip board." The striking employees then returned to work. After the settlement and up to his reinstatement to regular proofroom work on August 19, Johnston presented himself for work daily at Respondent's plant (except for a 3-week period in which he took his paid vacation, several days of illness in hospital, and a 2-day period in which he responded to an emergency call from the chapel chairman in the composing room of a local newspaper to cover the work of a sick employee), and in this period he was hired for a total of 20-25 days as an "extra" in the proofroom. Respondent took Johnston back as a regular proofreader on August 19, which job he has held ever since. His duties apparently have been the same as before his layoff, however when, shortly before he testified in this case, he received a card from Respondent on which to indicate his vacation preference for 1969, he noted thereon, and learned from discussion with his third-shift foreman, that he was entitled to only 6 days of vacation, as against 3 full weeks (as in 1968) to which he would have been entitled under his original shop priority.' 2. Contentions of the parties, applicable law, and final conclusions The first issue is whether Johnston's refusal to talk to management about the quality of his work in the absence of a union representative was activity protected by the Act, such that Respondent's refusal to continue such discussion in face of the demand violated his rights under the Act. The second issue is whether his ensuing layoff, "bar" from employment, and failure of reinstatement for a long period were for economic reasons, or whether the economics of the situation was created or used merely as a pretext to conceal a discriminatory layoff and refusal to reinstate because of his protected activity. a. The March 7 incident General Counsel concedes at the outset, and I find from the record, that the "superior quality" meeting of March 7 was part of a legitimate quality control program instituted by Respondent in 1967 to upgrade quality of the work in the plant, and that the monthly meetings under 'In the discussion. Downs suggested Santner could switch a regular proofreader to the "floor," and lire Johnston as a regular in the proofreading room, but Santner said there was no one then in the proofreading room competent to work "on the floor " 'I find the events after March 7 from uncontradicted testimony of Johnston and Downs, and some stipulated facts. Santner did not testify in the case. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the program usually involved a review of specific work and exchange of ideas and suggestions about work performance and ways in which to upgrade it. I find from credible testimony of Johnston, Fisher, and Taylor that Santner made it clear at the beginning of the March 7 meeting that this was his purpose in appearing at the meeting , but he quickly pinpointed the quality problem as the disturbing number of errors by proofreaders, including Johnston and Fisher, about which customers had complained, and indicated he would have to take "drastic" action about them, but without explaining the nature of that action or indicating whether it would be directed toward individuals or procedures. He then pursued the main purpose of the quality control program by discussing with Fisher errors made by her and other proofreaders in the proofs he displayed, emphasizing to her that he was not trying to pinpoint her errors and fix responsibility for them but to consider the whole problem of too many errors. When he had heard her explanations and finished the discussion with her, he did not indicate that he had reached any decision about "drastic" action toward her or about her work, but instead invited Johnston to give his views on the problem. He gave no indication that any discipline could be an outcome of the meeting until Johnston deliberately raised that issue in a rather defensive way and then refused to talk to either official about his own or any other errors without a union representative present, expressly rejecting Santner's idea that Fisher could serve as his representative or "witness" in any discussion of his work. Since his abrupt refusal to talk about the problem except on his own terms prevented any further discussion of the errors displayed, and provoked an argument with Santner, Taylor brought the meeting to a close, but made it clear to Johnston before he left that no discipline of any kind had been intended, and that, if and when it were, he would be advised and allowed to have union representation . Taylor's remarks carry substantial weight as against those of Santner (which, though equivocal, were put in his mouth by his fellow union member) for they indicate an attitude of top management rejecting any idea of imposing discipline then or later without the Union being advised and present, which is particularly consistent with Respondent's long record of amicable relations with the Union in administration of successive contracts over the years; and this, plus the fact that Fisher was not warned at the time about, or later subjected to, any discipline for her errors, strongly negates any inference of imminent discipline which might otherwise rest on Santner's remarks. Again, Santner's lack of disciplinary intent is apparent from (1) his failure to explain the "drastic action" in such fashion as to indicate reasonably to both workers that it probably meant some discipline which would affect their wages, hours, working conditions, or tenure of employment, (2) his failure to mention discipline at all until Johnston brought up the subject, and (3) his assurances to Johnston and Downs right after the meeting, that Johnston had always been cooperative, that he had no complaints about his work, and that Johnston should not worry but go back to his job, all of which suggests strongly that at the meeting Respondent only sought Johnston's "co-operation" on the problem of errors, and that "discipline" in the ordinary sense was never intended, as Taylor said during the meeting . " I must conclude from all these circumstances, contrary to the claim of General Counsel, that Santner and Taylor held the meeting only to investigate the reason and source of numerous errors discovered after complaints from customers to try to gather ideas from some of the workers responsible for them about reducing or eliminating them. These circumstances also offset, if not actually overweigh, any inference of imminent discipline which might otherwise arise from the facts that (1) the union contract (section 29) allowed only the foreman, Santner, to administer discipline or declare an employee incompetent, and (2) that he appeared at this meeting expressly to take "drastic action" which did not rule out discipline. In this connection it also appears that Santner had in recent months appeared at most quality control meetings, even though he and management had disagreed with the Union's views that these meetings were being used for a purpose detrimental to the employees, which led the Union to argue that the plant foreman, himself a union member, must always be present; and there is no proof that his prior appearances at meetings were preparatory to, or had resulted in, discipline," all of which tends further to negate any inference that discipline in the penal sense was a continuous purpose or a hovering threat over employees during the program. Finally, it appears that, even though the Union had a running dispute with Respondent about the conduct of the program,'r which General Counsel now tries to use as a legal support for Johnston's conduct on March 7, Johnston in fact went far beyond the Union's contention by insisting in effect that another union agent be present in any situation where an employee had reason to fear that his foreman might be preparing a case for discipline, although not yet ready to impose it. His inordinate apprehension on this point, which is out of all proportion to the facts including the amicable and nondisciplinary treatment of Fisher, is shown by his argumentative testimony that he felt he needed the chapel chairman present, even though he knew more about his own work and whether it contained errors than that union official could know, and his admission that it would first be necessary to "proceed in such a manner that would have clearly established that the errors were made by myself." However, he himself prevented the condition precedent by his refusal to hold any discussion which might establish whether any errors were made by him, how many there were, or what could be done to eliminate them, which indicates strongly that he knew he "According to the contract and the testimony of Downs, the only discipline which Respondent could impose was outright discharge "To the contrary, I find from uncontradicted testimony of Taylor that at prior meetings management had discussed their work with various employees, offering and receiving suggestions about unprovement, in a free exchange of ideas on the subject. "For some time past , union members in the chapel had been contending that the plant foreman , who had the sole right of discharge under the contract, must be present at all quality control meetings , which the employees were viewing with alarm as a possible form of employee review system which might be used for some form of action against the workers. Hence, they insisted they should not be called to account in such meetings to anyone but the plant foreman . The dispute reached a head at the February meeting, where Chapel Chairman Downs was called in for discussion about plant problems , but refused to answer to anyone except the foreman , and would not even take orders from anyone but him about attending the meeting or speaking thereat . As a result Santner sent Downs a letter on February 21, explaining the purpose of the program, and that all employees must attend such meetings and participate therein , whether or not Santner ordered him to attend or attended himself, citing provisions of the contract and ITU laws which gave him authority to delegate the conduct of such meetings to others , and that any member of management also had a right to attend . The dispute over this was still pending in March ; the Union had not made it the subject of a formal grievance. but there had been several meetings about it between Downs and members of management. DAYTON TYPOGRAPHIC SERVICE 361 was at fault and was trying, contrary to Fisher," by any means to insulate himself from any discussions, suggestions, or orders of his Employer which might show up his errors and require him to correct them. In effect, he was indulging in a form of insubordination which would make it impossible for his Employer to exercise any control over him or his work, except on his own terms. If such conduct were to be held protected activity, it would drastically limit Respondent's legitimate right to manage its business by discussing operations and performance of its employees through any officials directly charged by it with responsibility thereof, other than the union foreman, a serious limitation on management which does not appear in the contract, the ITU constitution or bylaws, nor in any of the cases cited by General Counsel, and has not been urged by the Union in its dispute with Respondent. The Board has recognized that the Act does not require that a labor organization must be privy to management conferences and investigations concerning its business operations, even where they involve discussions with employees, or that such employees when represented by a union must be shielded by that agent from employer inquiries every time the employer starts an investigation to determine what is wrong with its operations or whether plant rules, practices, or disciplines have been breached. Chevron Oil Company, 168 NLRB No. 84; Jacobe-Pearson Ford, Inc., 172 NLRB No. 84. It is only where an employee is called into a discussion with management on a problem involving his performance, which has gone beyond the factfinding or investigation state to a point where management has decided that discipline of that specific employee is appropriate, that the employer is required on demand of either the employee or his bargaining agent to permit that agent to be present. Texaco, Inc., Houston Producing Division, 168 NLRB No. 49. Here, I am satisfied from the facts found above, including the actual treatment of Fisher at the March 7 meeting and later, and remarks of top management to Johnston at the meeting, that management was merely investigating the reasons for proofreading errors by seeking the help of two employees who had made some of them , in efforts to find ways of reducing or eliminating them, and that Johnston had no reasonable grounds for believing from anything said or done at that meeting or immediately thereafter that discipline directed to him or any other employee was imminent or even probable. Hence, the case falls within the rulings of the Chevron Oil and Jacobe-Pearson Ford cases cited above," and is different on the facts from the situation in the Texaco case. Hence, I cannot find that Johnston's refusal to discuss his work without a union agent present constituted a form of concerted activity, such as presentation of a grievance, for the benefit of himself and other workers; he was only there at management request to help in the solution of an operating problem which concerned Respondent. Nor can I agree with General Counsel that Johnston 's conduct was merely an extension of an existing dispute between Respondent and the Union about the conduct of the superior quality program meetings, for the presence of the foreman at the March 7 meeting (although stated without prejudice to Respondent's position as to whether he must be the only management representative present at such meetings ) was substantially a compliance "The record shows that Fisher had no apprehension or trouble about discussing her own and other errors with Santner , that nothing happened to her later, but in fact Respondent tried to alleviate the financial loss to her when Johnston "bumped" her from her regular work several times. with the main objective of the Union's contention about the program, and Johnston's demand for the presence of another union representative went far beyond the Union's claim, as found above. For the same reasons, I cannot agree that Johnston's action was an attempt to "implement" terms of the existing contract which recognized the Union as the statutory bargaining agent of all employees in the stated unit. I conclude and find on all the pertinent facts and circumstances that General Counsel has failed to prove, either on the facts or under applicable law, that Respondent violated the Act by not acceding to Johnston's demand that a union representative be present during the factfinding meeting of March 7. I therefore grant Respondent's request to dismiss so much of the complaint as alleges that such conduct violated Section 8(a)(1) or (3) of the Act, and shall recommend that the complaint be dismissed in that respect.'s b. The layoff of Johnston General Counsel claims Johnston was laid off in reprisal for his protected assertion of his right to be represented by the Union at the March 7 meeting, and that Respondent concocted and offered the alleged economic reason as a pretext to conceal the discriminatory motive, arguing that the pretext is shown by Respondent's continual switching of workers from other classifications to assist in proofreading after his layoff, while failing to "switch" Johnston to other work he could do, the hiring of other workers during the layoff, and the treatment of proofreader Fisher after she was "bumped" from regular work by Johnston in the first week of his layoff. Of course, one support for his claim is weakened by my findings that Respondent did not violate the Act by refusing to accede to Johnston's refusal to discuss his work with management officials, including his foreman, in the absence of a union representative, and that the meeting was limited to discussion of Fisher's "In both cases, specific misconduct of an employee had been investigated, a preliminary decision to mete out discipline had been made, and the meeting with the employee was held to get his side of the story, which might provide additional support for the discipline or produce adequate explanation to make it unnecessary. In this aspect, both cases are far stronger on the facts than the case at bar. "Respondent argues strongly that the Board should not exercise its jurisdiction to decide the issues here, because the problem has already been brought up by the Union under the grievance procedure in the contract, that it has been considered fully by a joint standing committee, and then taken to arbitration by the Union, where the matter is still pending While the Board has indicated that it might stay its hand and withhold decision on an issue pending before an arbitrator where the dispute involved essentially the resolution of facts on narrow issue ; which have little impact on national labor policy as defined in the Act (see Combined Paper Mills. Inc., 174 NLRB No. 71), it has also stated that it would not defer to arbitration where the controversy involves asserted violation of employee statutory rights, and the issue might have a continuing impact on the bargaining relationship, so long as it remained unresolved, and particularly since rights declared by statute have a prior right to protection under the remedial procedures of the Act, over any aspect of contract interpretation which might affect them Unit Drop Forge Division Eaton Yale & Towne, Inc.. 171 NLRB No. 73. Judged by these factors , I conclude the Board should not withhold judgment on the issues here, because of the type of unfair labor practices charged, which involve the serious question of the extent to which day-to-day management dealings with employees in the normal course can be limited and affected by the presence of a union agent as an overseer . This is an issue which might have broad and nationwide impact in all shops in the printing trades which may have contracts with the ITU or any of its local chapels. See also Wisconsin Southern Gas Company, Inc, 173 NLRB No. 79. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD errors and then aborted by Johnston's peremptory refusal to talk to or even recognize the presence of the production manager, who was obviously present only as an observer concerned directly with quality of production. More doubt is thrown on the claim by the circumstance of Respondent's long and generally amicable dealings with the Union as the employees' representative, which not only tends to negate any inference of general union animus but also would make it very difficult to find or even infer (without strong proof) that an employer having such long contractual relationship with the Union" would go to the lengths of fabricating or manipulating an economic layoff for the sole purpose of ridding itself of one employee" who was far less than an outstanding or militant union member, having filed only one grievance under the contract during his 7 years with Respondent." The economic picture supporting the layoff appears from credible testimony of Production Manager Taylor, with some corroboration from chapel chairman Downs, and company records, all of which show that: The question of a reduction in force was discussed by Taylor with his father, the company president, and other officials in January and February, and late in February they decided a reduction in force was inevitable, particularly in the proofreading work. The decision was based on circumstances which pointed to a reduced volume of work in succeeding months. Thus, early in January Respondent learned that it would lose a large magazine printing order; the cutoff date was effective with the May-June issue. They also noted signs that there would be a dropoff in orders for printing of book manuscripts in the next 3-4 months. Both trends would affect the plant workload as early as March or April because of the large leadtime in book printing work. In addition, Respondent was running into the normal slowdown in typographic service work between March and August. All of this created a marked imbalance in the work force, developing a shortage of "floormen" including compositors and machine operators and a surplus of proofreaders. On the basis of these facts and projections, Respondent laid off proofreader Robert Neumeier on March 15, 1968, as he was the lowest on the shop priority list posted by the Union." Early in the next week Respondent decided to lay off Johnston, who had the next lowest priority, when it noted that proofreading work was beginning to slow down=' and the release of Neumeier had not caused any delay in existing proofreading work. The slowdown in workload, consequent reduction of working hours, and reduction in work force in this period are shown by company records as follows: Between January and August 1968, the work force covered by the contract was reduced from 74 journeymen and 5 apprentices to 68 journeymen with 3 apprentices (despite a few interim hirings ); total payroll hours for the plant decreased steadily each month from about 14,670 in February to about 10,500 in July, proofreading hours dropped from about 1,450 to 815, and overtime hours worked from about 700 to about 5; all of these figures increased substantially in August, when "In a realistic sense . Respondent might well be called "union-minded," considering it has long had an official union label and viewing the prounion background of its late founder and its present chief executive. "At one point, General Counsel argues in his brief that the layoff and ensuing treatment of Johnston amounted to a constructive discharge. "Late in 1%7, Johnston filed a formal grievance under the contract which he admitted was in fact no more than an inquiry whether Foreman Santner had been proofreading an abnormal amount of work himself, to the detriment of regular proofreaders . The matter was amicably settled in discussion with Santner. Johnston was rehired, and later. As proofreading hours alone came back to 1,350 in August, Johnston's layoff during the months of decreasing hours in that classification, and his prompt recall when that work began to expand, are together strong proof of a layoff of the proofreader of lowest priority purely for economic reasons and militate as strongly against any inference of discriminatory action against him. General Counsel refers to various specific personnel changes to attack the inference of economic motive from these figures. 1. It appears that in January and February Respondent employed only seven proofreaders, but had enough work to keep eight busy, so it resorted to switching employees from other classifications into that work. This is of no significance on the March layoffs, however, because the records show that Respondent was still very busy in those 2 months, and even hired two new "floor" employees, but this all occurred before the slowdown from seasonal and other factors noted above began. 2. It is also true that, in the weeks of layoff of Neumeier and Johnston, Respondent switched three "floor" compositors to do a total of about 66 hours of proofreading, but this was clearly caused by the incidence of a still fairly substantial number of proofreading hours in that month, though the total was down from February (1,116 as against 1,441), which shows that the decline in that work had started but was not enough to warrant Johnston's layoff until March 22; and the switching of "floor" men into that work during March and after his layoff is not significant, in light of Taylor's credible testimony that: about 35 of the total of 66 "switched" proofreading hours were performed by one "floor" man, Benzinger, to replace a regular proofreader who was absent the whole week of March 18-22; and "switching" is otherwise a normal requirement of Respondent's operation, regardless of seasonal fluctuations, because in its typographic work Respondent usually has between 60 and 100 jobs scheduled each day, so that the workflow in that type of work has wide fluctuations of peaks and valleys almost daily, hence constant switching is necessary in order to get such jobs out on time. In addition, this situation prevails in all departments, so that, if employees were not switched as needed, Respondent would be required to keep about 10 more workers on the payroll, most of whom would stand idle three-fourths of their time. Hence, foremen constantly switch workers of multiple capacities from department to department, as needed, and the Union allows this in order that Respondent can maintain an even flow of work throughout the plant at all times . As an example, in the proofroom Respondent may need 10 proofreaders for an hour to complete a specific job on schedule, and then have no need at all for that work for the next 6 hours or so. This situation prevailed in regard to that work throughout March 1968, just as it had ever since Taylor started to work in the plant 4 years before." "Provisions of the current contract and the ITU general laws incorporated therein provide in effect that the worker with the lowest priority in the classification to be reduced must be laid off first , and the identity of such worker is known at all times by all workers and Respondent from the priority list posted periodically in the shop by the chapel chairman. "In February, proofreading hours ran close to 300 per week, but in March the average was slightly above 250 per week , a 15-percent drop. "It should also be noted that the drastic drop in proofreading hours noted above occurred despite the constant "switching" of workers, for the figures shown in the records in evidence include all proofreading hours DAYTON TYPOGRAPHIC SERVICE 363 3. General Counsel makes much of the fact that the foreman offered Johnston "floor" work in the 2 weeks following his layoff, although he had previously declared him incompetent to handle that work , giving the sinister excuse that he had his "orders from upstairs [that] I'll have to follow ." While this seemingly inconsistent action by Santner on vague "orders from upstairs " raises some suspicion that he was trying to prevent Johnston from getting any work at all in retaliation for his conduct on March 7, 1 think an inference of discrimination therefrom is not warranted because it appears that Santner was offering Johnston work as an "extra" on the floor, not as a regular "floor" employee, and that Johnston refused any "floor" work on advice of his chapel chairman because the foreman had refused to declare him competent for that work , so at most it appears that Santner was trying to help Johnston out financially by giving him a chance in another classification as an extra, without going so far as to declare him competent to claim a regular position in "floor" work. Of course, Respondent's attempt to "bar" Johnston from the whole composing room for 3 months on the basis of his refusal of "floor " work as an extra is also suspicious, especially where Respondent, both through Santner and in the mediation of that action under the contract during the short strike, admitted its mistake, reimbursed Johnston for wages lost during the "bar," and made him eligible for "extra" work in the proofroo thereafter . However, I can draw no inference of prior discrimination from this , because Respondent honored its, commitment by giving Johnston up to 25 days of proofroom work as an "extra," whenever he made himself available , until it recalled him for full -time work in that classification on August 19, which conduct is more consistent with an inference that it was sincerely trying to alleviate the financial hardship due to his layoff as much as it could during the period of reduced workload, than that it was trying to freeze him out of all work for discriminatory reasons. 4. General Counsel also would draw unfavorable inferences from the facts as to Johnston's competency, arguing that during his layoff Johnston was not "switched" back to the work of a "floor compositor," as he claims Respondent had done in the past. Johnston argued in testimony that he had worked enough shifts on the "floor" long prior to layoff, to make him competent for that work , and it appears he had been a regular "floor" worker before becoming competent as a proofreader. Hence, the failure to switch Johnston back to that work , or to allow him to "bump " some other floorman of lower priority, when he was laid off from proofreading, would support an inference of a "freeze-out." However, Johnston was not sure that he had worked the requisite 10 shifts at "floor" work to establish his competency there, whether as "T.T.S. perforator" or in some other classification . Hence, it is not clear whether his total past experience on the "floor" was sufficient to negate Santner's claim during the layoff that Johnston was not competent for that work . In the arguments about it on March 22 and 29, Johnston and the chapel chairman apparently accepted Santner's ruling on his competency, because Johnston refused to accept "extra" work on the "floor" but only reported for "extra" work in proofreading, which Santner gave to him. It is notable that he did not try to "bump" a regular "floor" man at any time, as permitted by the contract and ITU law. Hence, despite a seeming inconsistency in Santner's worked by employees who "switched " into that work. position in offering "extra" work on the "floor" while claiming Johnston was not competent for that work and then taking a contrary position at one or more times, I am not satisfied that General Counsel has adduced substantial proof to show that Johnston had a competency in "floor" work which would make Respondent's failure to "switch" him or allow him to "bump" into that work substantial proof of a discriminatory motive or that Santner was deliberately refusing him "floor" work for which he was competent. 5. General Counsel also sees evidence of a deliberate "freeze-out" of Johnston in uncontradicted testimony of Fisher to the effect that: Fisher was "bumped" by Johnston in accordance with ITU law from her regular second shift twice in the week of March 18 so that he could use up 2 days' of overtime accumulated by her. Thereafter, Fisher did not receive any overtime work in proofreading, although employees from other departments were at times switched into the proofroom to do that work partly on overtime. After Johnston' had "bumped" Fisher for the first time that week on day shift, the night chapel chairman asked Santner if he wanted to hire Fisher that evening for second shift. Santner declined. Fisher was concerned why Santner would not hire her, so asked second-shift Foreman John Heit what Santner "has against me." Heit gave some vague answer. Later that evening , Fisher telephoned Heit to ask if she should report at all the next night, as she expected to be "bumped"_ again . Heit said she had to report under ITU law to show she was available for work, otherwise she could lose her job. Later, Heit called her back to say he had talked to Santner about her situation, and Santner had said he wanted to "reassure" Fisher that he was not angry with her, but that she should be patient and he would "make this up to you when this is all over," that he could not hire her because "that would defeat the company's purpose if he did." She answered that she was annoyed because she could not understand why Santner did not hire her if he had a right to. Heit then said Santner had told him to tell her that Santner would pay her for the 2 days lost, if she wanted it, and deduct the amount from future overtime. When Fisher asked how she could accept the pay without getting in trouble with the Union, since she had to declare all earnings to it, Heit said the Union did not have to know anything about it, and hinted that Santner could adjust her pay on the monthly report to the chapel chairman. Fisher refused to accept the offer. On the next night that Fisher worked, Santner told her he was not mad at her. She said she understood. He asked if she wanted pay for the 2 days, and she said no. On a Monday in a later week, Heit called Fisher aside as her shift ended, with other employees continuing to work overtime in the proofroom, and said he wanted to tell her something but "[i]f you repeat it to anybody I'm going to deny it." He said she was not working overtime because "I can't ask you to work overtime." She stated her opinion that she expected Respondent would not let any more overtime accumulate for proofreaders, so that there would be no more time for Johnston to "bump." Heit said that was correct. Fisher did not work any overtime while Johnston was on layoff. General Counsel would draw the inference from this uncontradicted story that Respondent was deliberately manipulating its work hours during Johnston's layoff to cut out all overtime, so that Johnston could not get the benefit of it through the "bumping" process and that the foreman was trying to soften the financial blow to Fisher from such "bumping" by offering her secretly at least 2 days' pay to cover two such 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "bumpings." If I had found that rights of Johnston protected by the Act had been violated by Respondent on March 7, this testimony would afford strong support for a finding of discriminatory layoff, but, since I have found that his action on that date was not protected by the Act and his rights not violated by Respondent, but rather that he had taken a stand in derogation of Respondent's right to run its business in a legitimate manner , which was far beyond what the Union had been claiming theretofore and which does not appear to find support in the contract or ITU law contained therein , I must conclude that at most Fisher's testimony tends to show that Respondent may have been expressing some resentment against Johnston's insubordination by taking steps to see that he was not in a position to "bump" regular employees during his layoff by claiming their accumulated overtime. But if his insubordination was an unprotected activity, this retaliatory conduct in the form of an indirect discipline was not a violation of the Act, regardless of whether it may have violated the contract or ITU law (under which the only permissible discipline was outright discharge by the foreman). However, even this inference would be weakened by the proven fact that overtime hours in the whole plant fell drastically from about 1,200 in January to between 600 and 700 in February and March, were less than 200 in April, diminished to only 12.55 in May, and faded to 4.15 and 4.75 in June and July, respectively, with the rate and proportionate decrease therein being fairly in line with the decreases in total payroll hours and proofreading hours due to economic reasons in the whole period . The economic figures raise as strong an inference that the overtime was reduced because of the drop in workload (it is well known that in any economic retrenchment management curtails the expensive overtime work first of all) as that overtime was deliberately reduced to "freeze-out" this lone union employee for discriminatory reasons; and the inference of a legitimate cut in overtime becomes the stronger one, in light of the fact that Respondent readily gave Johnston work as an "extra" in the proofroom whenever he made himself available for it and even offered him "extra" work on the "floor," until business picked up in August when it recalled him to regular proofroom work. Hence, on balance, Fisher's testimony, though uncontradicted , does not serve to establish in a preponderant degree that during the layoff Respondent continued to act toward Johnston from discriminatory motives, but at most raises a strong suspicion thereof. However, suspicion, no matter how strong, is not proof to support a finding. Considering all the arguments and facts pro and con, it appears that, while the issue as to the validity of Johnston's layoff and treatment during layoff is a close one, I am compelled to conclude that Respondent has adduced proof of economic reason for the layoff and to show that during the layoff it offered him limited work for which he was competent, as well as some for which he was not fully competent, to the extent that it could during the slowdown on work, which is adequate to rebut the prima facie case of discrimination adduced by General Counsel, and that General Counsel has failed to sustain the ultimate burden on the entire record of showing that the layoff and Johnston's treatment thereafter was discriminatory." I therefore grant Respondent's motion to dismiss the complaint insofar as it makes that charge. Upon the foregoing factual findings and conclusions, I come to the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any conduct violative of the Act as alleged in the complaint. RECOMMENDED ORDER I recommend that the complaint herein be dismissed in its entirety. "tn reaching this conclusion , I have also noted that the Order in the Texaco case, supra, was denied enforcement on March 3, 1969, by the United States Court of Appeals for the Fifth Circuit , which rejected the Board's finding that the employer there had committed itself to disciplinary action at the time of the crucial interview, in which it sought only to elicit facts regarding an employee 's conduct, but not to deal with specific consequences of the misconduct revealed.