Grunwald Printing Co.

GRUNWALD PRINTING CO. Grunwald Printing Company and Lithographers and Photoengravers International Union, Local Union No. 208, AFL-CIO. Case 23-CA-4489 July 18, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 27, 1973, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding . Thereafter, the General Counsel filed ex- ceptions and a supporting brief , and Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon a charge filed on August 25, 1972, the General Counsel of the National Labor Relations Board for the Regional Director of Region 23 (Houston , Texas) issued a complaint on De- cember 7, 1972, against Grunwald Printing Company, here- in called the Respondent or the Company, alleging that it refused to reinstate or reemploy Valdemar Gonzalez in vio- lation of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before Administra- tive Law Judge John P. von Rohr in Corpus Christi on January 25, 1973. Briefs were received from the General Counsel and the Respondent on March 6 , 1973, and they have been carefully considered. Upon the entire record in this case, and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 1 The Respondent is a Texas corporation with its principal office and place of business located in Corpus Christi, Texas where it is engaged in the business of commercial printing. During the 12 months preceding the hearing Respondent had gross retail sales in excess of $500,000. During the same period it purchased goods and materials valued in excess of $50,000 from other enterprises engaged in commerce within the meaning of the Act. Respondent concedes, and I find, that it is engaged in commerce within the meaning of Sec- tion 2(5) of the Act. II THE LABOR ORGANIZATION INVOLVED Lithographers and Photoengravers International Union, Local Union No. 208, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues The Respondent is engaged in the printing business with its sole plant and establishment located in Corpus Christi, Texas. With the exception of the bindery department, the Union has been the collective-bargaining agent for the Company's employees since approximately 1963. In April 1971, the parties began negotiations toward a new contract, the then current collective-bargaining agreement due to ex- pire on May 1, 1971. Failing to reach agreement on econom- ic issues, the Union called a strike on June 7, 1971. It is undisputed that this strike, which continued to about March 6, 1972, was at all times an economic strike. A new contract was finally executed on March 15, 1972. The dispute in this case arises over Respondent's failure to recall Valdemar Gonzalez, the president of the Union and chairman of the bargaining committee, who was em- ployed in the capacity of foreman-floorman prior to the strike. With respect to Gonzalez, the complaint alleges that Respondent violated Section 8(a)(1) of the Act by failing to reinstate or reemploy him because he had engaged in con- certed or union activities, and, further, that such failure to reinstate him "created an adverse and discriminating im- pact on Respondent's employees, the natural consequence of which was to restrain and coerce them with respects to their rights guaranteed in Section 7 of the Act." I first turn to what I consider to be the principal issue in this case; namely, whether prior to the strike Gonzalez was employed by Respondent as a supervisor within the mean- ing of the Act. The Respondent would have this decided affirmatively, the General Counsel negatively. B. The Supervisory Status of Valdemar Gonzalez It is preliminarily noted that (excluding the bindery de- 205 NLRB No. 4 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partment) Respondent's plant has five departments , i.e., the composing room department , the letterpress department, the litho press department, the litho department , the camera department, and the stripping department. In charge of each of these departments is a so-called foreman -floorman.i Prior to the strike there were 39 employees employed in these five departments. Gonzalez was first hired by Respondent in July 1959 as a floorman in the composing department . Several weeks later the foreman-floorman of the department, Dempsey, quit. Gonzalez, who had 5 years' experience in composing room work prior to being hired by Respondent , was there- upon promoted to the position of foreman -floorman as re- placement for Dempsey . At the same time, and because of this promotion , he was granted a 50-cent hourly raise in pay. Not counting Gonzalez , the composing department prior to the strike had a complement of five employees, these consisting of three linotype operators and two compositors. While it is undoubtedly true , as Gonzalez testified , that he spent a majority of his time performing composing room work, the record demonstrates, and I find that he was also engaged in responsibly directing the work of the other com- posing room employees . Thus, prior to assigning work to the other employees, it was Gonzalez responsibility to perform the first step which was to mark the job up, i.e ., to determine which type size and which type face was required for the particular job. This step , which is also described in the record as layout work , is generally specified on a job ticket which accompanies each job. However , it was not uncom- mon for Respondent's salesmen to come directly to Gonza- lez with a new job and ask him to determine an appropriate form or design for their customers . This determination, which I find required the exercise of independent judgment, was made by him before assigning the work to the other employees.' It was also a frequent occurrence that so-called hot jobs would come to the composing department. These were jobs that had priority over other work and had a dead- line for completion . The record establishes that it was Gon- zalez' responsiblity to see that these jobs were completed on time. On these occasions he was empowered to, and did, remove employees from the job they were doing and assign them to the rush job .3 Additionally , the evidence reflects that Gonzalez was generally responsible for the quality of the work performed in the department . Thus, with particu- lar respect to the linotype operators, Gonzalez testified that when necessary he would have them redo work , advising them, for example, that the type they had used was "too hot or too cold" whereupon, he said, "they would make the proper adjustment." Gonzalez was also responsible for maintaining an ade- 1 Respondent has no plant superintendent as such However, executive and general supervisory authority are exercised by the two brother owners, Clif- ton and Howard Grunwald , president and vice-president, respectively 2 As he testified, "The salesmen would come in and just dump a bunch of copy and something that was really mumble-jumbled , and I would have to sort this out You know, lay out this work for them . And I would say, 'What do you want9 What kind of type9 You talked to the customer' And they would say, `Well , work something out for me j ust make it look nice " 3 As Gonzalez at one point testified, "If I was told the job had to go out that day, I would put him [the employee ] on the hotter job." quate amount of materials and supplies for the composing room department . He testified that when salesmen came to the plant he would take inventory and give them orders for whatever supplies were needed.' Additionally, Gonzalez was required to attend foreman meetings . Although these meetings were infrequently held (President Grunwald esti- mated about one a year) the fact is that Gonzalez, along with the other departmental foremen , did attend them when they were held. Gonzalez recalled one such meeting where the foremen were instructed to speak English in the shop and were particularly advised not to speak Spanish with the other employees when customers were present . Signifi- cantly, at this meeting the foremen were instructed to con- vey this message to the other employees who worked in their respective departments. In addition to all the foregoing, the evidence clearly es- tablishes that Gonzalez was responsibly involved in the hir- ing of new employees. Although at the hearing Gonzalez sought to water down his role in this regard , even this testi- mony, particularly when amplified by his prehearing state- ment (which was read to him at the hearing and which he in effect affirmed) leaves no doubt but that he held and exercised the authority to recommend new hires . Thus, in his affidavit, which was not materially different from his testimony, he states as follows: As foremen I could effectively recommend the hiring of employees for my department. I talked to Clifton [Grunwald] and told him I could use Eloy [Ceballos] on a part time basis. Clifton told me to go ahead and tell him to come in. Eloy worked for a while part time. I needed someone full time in the department . I talked to Clifton and told him that I needed someone as an apprentice. I had heard about Johnny Lee and I told Clifton if we could get Johnny Lee we would be far better off with him. I contacted Johnny Lee and told him to come in and see me on a Sunday . He came in, I interviewed him, and offered him a job which he accepted. In addition to the employees named above , the record reflects that Gonzalez also was effectively instrumental in the hiring of Richard Tapia and Juan Segoviano, both of whom were hired in the composing room department. Al- though he testified that he largely acted as interpreter in the hiring of Segoviano, I give more weight to the following statement in his affidavit , which he did not refute: Juan Segoviano came to the shop looking for a job. He was hired to work on a weekend for a trial basis . I asked Tapia to observe his work in my absence . Based on Tapia's favorable report to me , I advised Clifton that Juan was okay. Clifton told me to hire him full time, which I did. I also find, upon the entire record , that Gonzalez had authority to recommend and assign overtime . Gonzalez tes- tified that the assignment of overtime was largely governed by the contract . However, from my examination of the con- tract, this does not appear true . I am persuaded that Gonza- lez' role in the assignment of overtime was correctly set 4 He did say, however, that he would obtain Grunwald's approval for placing these orders GRUNWALD PRINTING CO. forth by him in his affidavit, where he stated as follows: Regarding overtime, I would talk to Clifton [Grun- wald] to see whether we had any hot jobs that required overtime. If so and overtime was necessary, I would tell him I would have to ask someone to work overtime. I would decide who was going to work overtime and ask that person if he could. I have previously mentioned that Gonzalez was given a 50-cent hourly increase when he was promoted to foreman- floorman. In this connection, it is further noted that at all times material hereto Gonzalez was paid 10 percent above the prevailing journeyman's rate, as provided in the con- tract. Gonzalez testified he was paid this extra 10 percent as remuneration "for the additional responsibility" of being foreman-floorman.5 Furthermore, on two occasions prior to the strike Gonzalez went to President Grunwald and told him that he would be willing to take a cut in pay if he could be relieved of his foreman's responsibilities. Significantly, Gonzalez attributed "the pressure of running the depart- ment" as the reason for his making these requests. In view of all the foregoing, and particularly because Gonzalez was clothed with and exercised authority to effec- tively recommend hiring, assigned overtime, assigned work, and responsibly directed the work of other employees in his department, was responsible for the quality of work in his department, and because he received extra remuneration for the performance of all the foregoing, I find that Gonza- lez was a supervisor within the meaning of the Act.6 C. Conclusions In support of the allegations in the complaint, it is the General Counsel's position that Respondent violated Sec- tion 8(a)(1) of the Act by failing to recall Gonzalez in accor- dance with the principle established in Laidlaw Corporation, 171 NLRB 1366. Although Respondent in part defends on the ground that Gonzalez had been lawfully replaced during the strike, I deem it unnecessary to decide this issue since I have found, contrary to the General's Counsel contention, that Gonzalez was a supervisor within the meaning of the Act. Thus, it is well settled that, absent special circumstanc- es, a statutory supervisor does not enjoy a protected right to engage in concerted activity in behalf of a labor organiza- tion. Such circumstances have been held to be those where supervisors failed or refused to commit an unfair labor prac- tice against rank-and-file employees and had been dis- charged in consequence.8 The record is clear that there are 5 It appears that the other departmental foremen were similarly compen- sated 6 Cf Toledo Locals Nos 15-P and 272 of the Lithographers and Photoengrav- ers International Union, AFL-CIO (The Toledo Blade), 175 NLRB 1072, 1076-77, Sonoma-Marin Publishing Company, 172 NLRB 625 And an em- ployee need not be invested with each of the supervisory indicia set forth in Section 2(11) of the Act The possession of any one of the authorities speci- fied therein places the employee vested with this authority in the supervisory class Ohio Power Company v N L R B, 176 F 2d 385, 387 (C A. 6) John H Scheidel, Inc, 193 NLRB 489 i National Freight, Inc, 154 NLRB 621 8 Talledaga Cotton Factory, Inc, 106 NLRB 295, enfd 213 F 2d 208 (C A. 5), Vail Manufacturing Company, 158 F 2d 664 (C A 7), Boyer Bros, Inc, 170 NLRB 1108, Ozark Motor Lines, 164 NLRB 300. 3 no "special circumstances" here, hence the Laidlaw princi- ple is not applicable to Gonzalez. The General Counsel nevertheless urges an extension of certain dicta in International Photographers of the Motion Picture Industries, Local 659, IA TSE (MPO-TV), 197 NLRB 1187, contending that even if Gonzalez was a statutory su- pervisor, Respondent's refusal to reinstate him created an impact on other of Respondent's employees, the natural consequence of which was to restrain and coerce them with respect to their Section 7 rights, thereby violating Section 8(a)(1) of the Act. In Local 659, IATSE, supra, the Board found that a union violated Section 8(a)(1)(A) by interpret- ing and applying its collective-bargaining contracts so as to discriminate against two directors of photography. The finding of this violation was based upon the preliminary finding that the two directors in fact were employees, not supervisors. However, in view of the extensive publicity which the Union deliberately gave to its unlawful conduct, all of which the Board described in detail, the Board went on to say that even if the two directors were supervisors, it still would find the action directed against them to be un- lawful because of its impact upon the employees. Clearly, the rationale behind this added finding in Local 659, IA TSE is not applicable to the situation in the instant case .9 In short, there being no special circumstances present here, I find no basis for departing from established law that supervisors are not accorded the protection extended to employees under the Act.10Accordingly, I find that Respon- dent did not, by failing to reinstate Foreman Gonzalez after the strike, violate Section 8(a)(l) of the Act. Accordingly, the allegations in the complaint have not been sustained. CONCLUSIONS OF LAW 1. The 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. The Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. ORDER 11 On the basis of the foregoing findings of fact and conclu- sions of law, and pursuant to Section 10(c) of the Act, it is hereby ordered that the complaint herein be, and it hereby is, dismissed. 9 And unlike the situation in Pioneer Drilling Co, Inc, 162 NLRB 918, 923, there is no evidence that Respondent has ever engaged in any pattern of antiunion conduct To the contrary, Respondent appears to have enjoyed a good relationship with the Union ever since recognizing it as the bargaining agent approximately 10 years ago iU See N L R B v Columbus Iron Works Company, 217 F 2d 208 (C A. 5); Texas Company v. N L R B, 198 F.2d 540 (C A 9), N L R B v Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America [Lizza and Sons] 412 F 2d 334 (C A. 2), Gibbs Automatic Division, Pierce Industries, Inc, 129 NLRB 196. 11 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes.