Publisher Printing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Publishers Printing Co., Inc. and Teamsters Local Union 783, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 9-CA-10984 and 9-CA-1 1239 December 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 18, 1977, Administrative Law Judge Almira Abbot Stevenson issued the attached Deci- sion in this proceeding. Thereafter, the Respondent filed exceptions and a supporting 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Publishers Printing Co., Inc., Louisville, Ken- tucky, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph 2(b): "(b) Make Carl Mattingly and William Bruce Phillips whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest." 2. Substitute the attached notice for that of the Administrative Law Judge. l The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. 2 In the recommended remedy, Order, and notice, the Administrative Law Judge erroneously referred to a fixed 7-percent interest rate and thereby failed to apply properly the Board's "adjusted prime interest rate" formula, which may vary in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co. 138 NLRB 716 (1962). We shall therefore modify the recommended Order by deleting the reference to a specific interest rate percentage which may not necessanly govern Respondent's backpay obligations in every calendar quarter involved. 233 NLRB No. 170 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against any employee to discourage member- ship in or support of Teamsters Local Union 783, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, or any other union. WE WILL NOT interrogate employees as to whether they have signed union cards, or ask other questions to ascertain employees' union activities or sympathies. WE WILL NOT tell employees that there will be a layoff or that the plant will be closed if they vote a union in, or that employees have been fired for soliciting union cards, or that the employees will lose their jobs if they talk about a union. WE WILL NOT maintain or enforce our rule, or post any notice, reading "In the interest of order, cleanliness and efficient production, there shall be no solicitations of any kind for any purpose carried on among the employees in the plant." WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL revoke the above-quoted no-solicita- tion rule. WE WILL offer Carl Mattingly and William Bruce Phillips immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest. PUBLISHERS PRINTING Co., INC. DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: This case was heard at Louisville, Kentucky, June 13 and 14, 1977. The charge in Case 9-CA-10984 was filed and served on the Respondent January 21, 1977; the complaint was issued March 10, 1977. The charge in Case 9-CA- 11239 was filed April 5 and served April 6, 1977; the complaint was issued May 25, 1977. The complaints were consolidated May 25, 1977, and amended at the hearing. 1070 PUBLISHERS PRINTING CO. The Respondent duly answered and amended its answers at the hearing. The issues are whether or not the Respondent committed various violations of Section 8(a)(1) of the National Labor Relations Act, as amended, as alleged in the complaint; whether or not several individuals are supervisors; and whether or not the Respondent discharged and otherwise discriminated against two employees in violation of Section 8(a)(3) of the Act. For the reasons fully set forth below I conclude that the Respondent committed substantially all of the violations alleged in the complaint. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the Respondent and the General Counsel, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent admits, and I find, that it is a Kentucky corporation engaged in publishing magazines for commer- cial customers at its Louisville, Kentucky, facilities; that it sold and shipped goods and materials valued in excess of $50,000 from its Louisville, Kentucky, facility, directly to points located outside Kentucky during the past 12 months. I further find that at all material times the Respondent is and has been an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES' A. Background The Respondent has been in the publishing and printing business at this same location for over 100 years. It employs a complement of about 235 employees. The Respondent admits, and I find, that the following individu- als are supervisors and agents: 2 Frank E. Simon- president; Carl Gearheart- plant superintendent; Ken Mouser- plant superintendent; Bob Sanford- second- shift superintendent; and Joseph Thomas- foreman. A union campaign began in early January 1977 with officials passing leaflets among the Respondent's employ- ees. Meetings were held away from the plant in January and February, with 50-60 employees attending. On March 9, an agreement was signed for a Board election, and the election was held Apr.l 14. The record does not indicate what the outcome was. I Credibility issues have been resolved on the basis of demeanor of witnesses, interest probability, and likelihood in view of the entire record. I have also considered the Respondent's failure to explain why some of its supervisors did not testify at the hearing, and I infer that their evidence B. 8(a)(1) Violations 1. No-solicitation rule: The complaint alleges and the answer denies that the Respondent has, since July 1, 1976, maintained and enforced an unlawful no-solicitation rule. The evidence on this issue is not in dispute. The Respondent stipulated that the following notice was posted in the plant at material times: In the interest of order, cleanliness and efficient production, there shall be no solicitations of any kind for any purpose carried on among the employees in the plant. Employees William Bruce Phillips and Robert Raley testified that they and other employees nevertheless talked with each other and with foremen without restriction during working time. There is also testimony by these employees and employees Loretta Dillinder and Timothy Spurling to the effect that selling candy, punchboard chances, tickets, and other items, and taking up collections has been widespread and commonplace during worktime throughout the plant. Phillips began to take part in the union campaign about January 6, 1977, and from then on talked to employees about the Union and obtained signatures to about 80 union authorization cards in the plant. Superintendent Gearheart admitted he heard that Phillips was passing out cards. Phillips testified that although conversation had never before been restricted, in February 1977 President Simon sent for him to come to his office, and told him: [T ]his wasn't a social club and I shouldn't be talking to anyone, that he didn't care what I was talking about, that he just didn't want me talking to anyone . . . To stay on my tow motor and not to get off of it and to do my job and not to talk to anyone. The following month, President Simon personally handed Phillips a copy of the printed rule on the dock in the presence of Superintendent Gearheart, and told him to read it and make sure he understood it. The posted rule is so broad in scope that it has the effect of prohibiting employees from engaging in union solicita- tion during nonworktime on the Respondent's premises. Moreover, President Simon's pointedly handing a copy of the rule to Phillips, known to be soliciting for the Union, and his instruction to Phillips not to talk to anyone, in addition to the Respondent's unlawful discharge of Carl Mattingly for soliciting cards for the Union and the independent violations of Section 8(aX)() in connection therewith, found below, in a context of the Respondent's permissiveness toward other types of solicitation, show that the rule was maintained and enforced so as to prevent union solicitation by employees at any time. I conclude would have been unfavorable to the Respondent if they had testified. Martin Luther King, Sr. Nursing Center, 231 NLRB 15 (1977). 2 Issues regarding the supervisory status of other individuals are discussed below. 1071 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent maintained and enforced a no- solicitation rule in violation of Section 8(a)(1) of the Act.3 2. Superintendent Bob Sanford: The complaint alleges and the answer denies that on or about January 12, 1977, admitted supervisor, Sanford, threatened employees that the Respondent would close its plant if the union organizing drive was successful. As Sanford did not testify, I credit Phillips' uncontradict- ed testimony that around January 12 Sanford told a group of employees that, Mr. Simon would go out of business and buy the biggest padlock he could find if the Union was voted in and lock the whole place up and not let anybody work. Such a threat to close a plant if employees unionized is a blatant interference with their right to organize, and I conclude that it violated Section 8(a)(1). 4 3. Foreman Joseph Thomas: The complaint alleges and the answer denies that admitted supervisor, Thomas, interrogated employees about union activities on or about January 31, 1977. Employee Timothy Spurling testified that about January 31, 1977, he heard Thomas ask someone else how many people were at the union meeting, and if he thought the Union had a chance. Thomas did not testify, and this uncontradicted evidence is credited. However, I know of no precedent, and none has been brought to my attention, holding it to be coercive, or an interference with employees' organizational rights, for a supervisor to ask an unidentified person such questions within earshot of an employee. I conclude therefore that this allegation should be dismissed. 4. Paul Mattingly: The complaint alleges that Mattingly is a supervisor and that he interrogated an employee on January 12, 1977, informed employees on January 14 that another employee had been discharged because of his union activities, and engaged in surveillance on January 30. The Respondent denies that Mattingly is a supervisor, and denies the alleged statements were made. Supervisory status: Paul Mattingly is employed in the shipping-and-receiving department. He is hourly paid and voted without challenge in the Board election. Employees Phillips, who did not work in that department, and Robert Summitt, who did, Mattingly, and Superintendent Gear- heart all testified on this issue. Although Summitt testified that Paul Mattingly assigns his overtime, I credit Mattingly and Superintendent Gearheart that Gearheart makes all decisions regarding overtime, as they are in a better position to know. On the other hand, the evidence establishes, in my opinion, that the testimony of Phillips and Summitt to the effect that Mattingly assigns and directs the work of the two or three employees in the department by telling them what to do encompasses the critical element of the use of independent judgment. Thus, shipping-and-receiving operations in a plant of this size are not likely to be routine and repetitive, 3 McBride's of Naylor Road, 229 NLRB 120 (1977); House of Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB 704 (1974); Essex International, Inc., 211 NLRB 749 (1974). 4 Textile Wkrs. Union v. Darlington Mfg. Co., 380 U.S. 263, fn. 20 (1965). There is no evidence to support the allegations that President Simon committed additional violations of the Act and those allegations will be dismissed. and Mattingly's responsibility for the operations is reflect- ed in his own description of his duties, as follows: I take care of anything that comes in. Anything that's received. Anything that's shipped out. I take care of the inserts for the customers. . . I do about anything that has to do with shipping and receiving. I cannot believe that the responsibility described could be carried out with the limited authority claimed by Matting- ly, that he can only ask, and cannot tell, the employees who work with him to help him, and that he merely passes Superintendent Gearheart's instructions along to them, particularly in view of Mattingly's admission that he talks to Superintendent Gearheart on the average of only three or four times a month. Moreover, it seems clear that Mattingly has authority effectively to recommend the hiring of employees. Al- though Gearheart was positive that he had to approve whoever Mattingly hired, he conceded that it would be too much of a job for him to do all the hiring for a plant of 235 employees and that he depends on others to help. He also testified that Paul Mattingly brings applications to him, that he checks them over, and when he has doubts he talks to the applicant himself. He conceded, however, that he does not talk to all applicants Mattingly tells him are good men. It is clear that Mattingly effectively recommended the hire of his cousin, Robert Summitt. Accordingly, I find that Paul Mattingly responsibly directs the work of the employees in the shipping-and-receiving department, and effectively recommends hiring. He is therefore a supervisor within the meaning of Section 2(11) of the Act. Unlawful conduct: Paul Mattingly did not deny any of the following testimony: Phillips: Around January 12, 1977, Mattingly asked Phillips how many people had signed for the Union, who had signed, did he sign, and if they had a chance of getting the Union in or not. Also during January, after Carl Mattingly was discharged, Paul Mattingly "told me that Mr. Mattingly had been fired and I asked him what the reason was and he said, 'what do you think, . . . the cards.' " Robert Summitt also testified that Paul Mattingly told him Carl Mattingly was fired for soliciting union cards. Timothy Spurling: On January 14, the day Carl Matting- ly was fired, Paul Mattingly, in the presence of Superinten- dent Sanford, said, "Carl had got fired and it was over soliciting union cards." I find that by these statements, Paul Mattingly coercively interrogated Phillips, and coerced Phillips, Summitt, and Spurling in their exercise of Section 7 rights by attributing employee Carl Mattingly's discharge to his union activity. I conclude that these remarks were violative of Section 8(a)(l).5 5 Although Paul Mattingly attended an employee-union meeting, it is undisputed that he was invited to do so. I find that the evidence does not support the allegation that Mattingly engaged in surveillance, and conclude that it should be dismissed. 1072 PUBLISHERS PRINTING CO. 5. Ronald Adams: The complaint alleges that Adams is a supervisor and that he interrogated an employee about January 31, 1977. The Respondent denies both allegations. Supervisory status: Adams is responsible for paper stock and handling. He also voted in the election. His duties include unloading rolls of paper from boxcars and trucks, moving it into storage, and getting it out and delivering it to the presses. There are four other employees including Phillips in the department. The record indicates that Adams has no authority to grant time off, transfer employees from shift to shift, or grant overtime or vacations, and that he merely relays instructions on such matters from Gearheart. Also, unlike Paul Mattingly, Adams receives a daily schedule for delivering paper to the presses and he receives instructions from Gearheart if there is any change in the delivery schedule during the day, and he transmits the schedules and instructions to the employ- ees who work with him, and Adams testified that the employees know their jobs in this respect. However, Adams also testified that he is responsible for seeing that this work is done. Moreover, it is clear that Adams assigns other duties to employees on a regular basis. Thus, Phillips credibly testified that Adams told him when to drive the tow motor and when to get off and sweep floors, lock doors, and move things around, as well as giving him detailed instructions about working on the dock and cleaning up debris, and that Phillips always did what Adams told him to do; there is no indication that these orders were merely a relay of day-to-day instructions handed down by Gearheart. Further, although Gearheart testified that Adams is only a leadman and not a foreman, he did not deny Phillips' testimony that he told Phillips that Adams was his foreman. Finally, based on Gearheart's testimony that Adams and Paul Mattingly had the same authority regarding hiring, I find that Adams, like Mattingly, had authority effectively to recommend hiring. As Adams therefore responsibly directed the work of several employees in the paperhandling department and effectively recommended hiring, I find that he was a supervisor within the meaning of Section 2(11) of the Act. Interrogation: Employee Timothy Spurling testified, without contradiction, that on January 31, 1977, Adams asked him in the restroom, "how the Union meeting went the past Sunday." As this is interrogation designed to elicit the attitude of employees toward unionization, I conclude that it violated Section 8(a)( I). 6. Orville Crigler: The complaint alleges, and the answer denies, that Crigler is a supervisor, and that he interrogated employees on or about January 13 and February 11, 1977, and threatened an employee on or about February 11 with a layoff if the Union were successful. Employee Tressie Masden described Crigler as a second- shift foreman. Phillips said he was the second-shift bindery foreman; that he sees that the production gets out, making sure the books are cut right and fit right and put together right; and that he gave orders to an estimated six employees working for him. Although Phillips never worked for Crigler, he did work on the second shift for a while, and his knowledge is based on the fact that, "It is a small plant. We all work pretty close together. His promotion [to foreman] was put up on the [bulletin board]" some time in 1976. Adams said that Crigler is a machine operator who runs the saddle stitcher or the binder. In the absence of any testimony by Crigler or Gearheart or other knowledgeable management representative on this issue, I credit Phillips and Masden and find that Crigler responsibly directed the work of approximately six employ- ees in the bindery department on the second shift, and that he is therefore a supervisor. Interrogation and threats: As Crigler did not testify, the following testimony is undisputed: Employee Tressie Masden testified that in January 1977, Crigler made the following statements to her at work: [H ]ave you heard anything about the Union? He said that if we wanted our jobs we shouldn't talk about the Union... He said we would be fired.... he said Mr. Simon would fire us. He said he would find a reason. .... he did say the plant would be closed if a Union came in. On another occasion, employee Loretta Dillinder said, Crigler asked her if she had been to the first union meeting, and "He said there might be a layoff if the Union came in." I find that Crigler coercively interrogated Masden and Dillinder, and threatened Masden with the loss of her job if she talked about the Union, and threatened Masden with closing the plant and Dillinder with a layoff if the union campaign were successful. I conclude that the interrogation and threats were violations of Section 8(a)(1). 7. Joe Gast: The complaint alleges and the Respondent denies that Gast is a supervisor and that he interrogated employee Robert Raley on February 3, 1977. The only witness to this allegation was Raley, a butler operator who hooked up rolls in the pressroom section. According to Raley, Gast hired him, was the first-shift foreman of the pressroom section, was a boss, told him when to work overtime, and Raley did what Gast told him to do. Gast checked on Rlaley to see that he did his job right, and also came around and gave color okays on the sheets that were run off. This evidence shows, and I find, that Gast had authority to hire, grant overtime, and responsibly direct the work of employees. I conclude that he was a supervisor. Interrogation: Gast asked Raley on or about February 3 if a union man had ever been to his house. I find this to be interrogation designed to elicit information with regard to the extent of Raley's and other employees' union activity, and conclude that it violated Section 8(aX)(1). C. Discharge of Carl Mattingly The complaint alleges that the Respondent discharged Carl Mattingly January 14, 1977, for union activity. The Respondent admits that Mattingly was discharged January 14, but denies it was for union activity. Carl Mattingly did not testify. As found, Paul Mattingly testified but did not deny the credible testimony of employees Phillips and Summitt that he told them Carl Mattingly was fired for soliciting union cards. Neither did Paul Mattingly deny Spurling's testimony that he told 1073 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spurling in Sanford's presence that Carl Mattingly was fired for soliciting union cards. Sanford did not testify. Superintendent Gearheart testified that he thought Carl Mattingly was dismissed for soliciting, contrary to the no- solicitation rule. Based on the above-credited testimony, and in the absence of a suggestion by the Respondent of any other reason for Carl Mattingly's admitted discharge on January 14, 1977, I find that he was discharged because the Respondent knew or suspected that Mattingly was solicit- ing signatures on union cards in breach of the no- solicitation rule found above to be unlawful. I conclude that the discharge violated Section 8(a)(1) and (3) of the Act.6 D. W. Bruce Phillips The complaint alleges that on or about January 19, 1977, the Respondent transferred Phillips to the first shift, in mid-March assigned him more arduous, onerous, and less agreeable work, and on March 28 conditioned his further employment upon his resignation from his other employ- ment at General Electric Company and discharged him, all because of his activities on behalf of the Union. The Respondent denies the unfair labor practices. Phillips, a stock clerk, was employed by General Electric Company full time from 1973 to 1974. He was laid off by GE in the fall of 1974, and began working full time for the Respondent. In May 1976 he was recalled by GE. He testified, and Supervisor Adams admitted, that he told Adams at that time that he had been recalled to his job at GE and that he could not work two 8-hour shifts a day, and to ask Superintendent Gearheart if he could work 4-5 hours a day starting at 4:30 p.m. Adams reported back that it would be all right. Work was slack during the summer of 1976, and when Phillips reported for work each day, the Respondent assigned him a job to do and told him and other employees to punch out whenever they completed their assignments. Adams admitted he knew Phillips worked for GE during that summer, but asserted that he did not tell anyone else. Superintendent Gearheart testi- fied, at first, that he did not know about it, but was less positive on the matter on cross-examination. It seems quite unlikely in the circumstances that Adams would not have explained to Gearheart why Phillips wished to go on part- time status, and, in any event, I have found that Adams was a supervisor, and the Respondent is, of course, charged with knowledge in his possession. In August or September 1976, Phillips was again laid off by GE and went back on a 40-hour week for the Respondent, on the second shift. On December 29, 1976, a fire broke out in the Respondent's plant which damaged the building, destroyed one press and quantities of paper, and left the place a shambles. For several days smoldering rolls of paper and trash were hauled out and dumped around the building and on and around the adjacent railroad tracks. According to Phillips, pressmen, second pressmen, bindery workers, and everyone available, as well as outside contractors, worked through January cleaning up, as many operations as possible being transferred to the first shift. As stated, the union organizing campaign among the Respondent's employees began in January 1977. Phillips began to participate about January 6, talking Union to employees on the job and during break on the second shift. On January 7 or 8, he signed an authorization card and thereafter actively solicited signatures from other employ- ees, upon occasion when Paul Mattingly was around. He obtained 80 signatures. Phillips attended the two union meetings in January and February, one of which Paul Mattingly also attended. Phillips said no one else assisted him in the organizing campaign. He testified without dispute that he told Adams in February that he was trying to organize the employees. As found, Superintendent Gearheart admitted he heard that Phillips was passing out cards. As found above, around January 12 Foreman Sanford threatened Phillips and other employees with plant closure if union campaign was successful, about the same time Supervisor Paul Mattingly coercively interrogated Phillips and told him Carl Mattingly had been fired for soliciting union cards. In February, President Simon enforced the invalid no-solicitation rule against Phillips for the purpose of restricting his union activity. On March 9, Phillips attended the meeting at which the Respondent's president and its attorney worked out an agreement with the Union that an NLRB election would be held among the Respondent's employees. According to Phillips, he was transferred to the first shift in late February. Around the first part of March, Adams ordered Phillips to crawl under a boxcar and pull burned and water-ruined paper out, and clean up along the railroad tracks. Adams said to get a wheelbarrow, a rake, and a shovel and pick up all the burned paper underneath the boxcar, along the railroad tracks, and around the building, and haul it to the dumpster and throw it in. He did this work for 3 days to a week. Phillips testified that no other employees were doing this kind of work at that time. About a week after Phillips attended the consent-election meeting on March 9, he was assigned for a period to the dock sweeping, cleaning up, and stacking skids, and cleaning around the dumpster and rebuilding skids. Phillips described these as isolated areas where he saw as few as 10 employees a day compared with his regular job where he saw as many as 100 employees and spoke to half of them. Before these assignments, Phillips' work had consisted of driving a tow motor, making room for inventory, getting out stock paper for the presses, unload- ing boxcars and tractor-trailers, and, when Adams told him to, which he did every night, sweeping the warehouse, cleaning up, loading trucks, and moving things around. Phillips gave the following account of his discharge. Phillips asked Adams if he could take 4 days' vacation, beginning March 21, a Monday. Phillips testified that he asked for his vacation at this time because, "I thought he would put me out under those boxcars, and I had better take what I had coming to me before a train ran over me, or something on me." Adams returned and said he could 6 See McBride's of Naylor Road supra. 1074 PUBLISHERS PRINTING CO. do so. Phillips then went back to GE where he worked full- time March 21 through March 23. On March 24, GE was struck. On March 25, the day Phillips was due back at the Respondent, he telephoned Adams that he had car trouble and could not return. Adams told Phillips to hold the phone and after a few minutes said it was all right. On Sunday, March 27, Superintendent Gearheart called Phillips at home and told him to report to work Monday on the third shift. Although he could have returned to work for GE, Phillips testified, Electrical Workers Local 761 which represents the GE employees on March 28 obtained emergency permission from that Company for Phillips to be off on "Union time" without pay until April 18 "so he could see the outcome of the election" among the Respondent's employees. When Phillips arrived at work on Monday evening, March 28, he was sent to President Simon's office where Simon, in the presence of Plant Superintendent Ken Mouser, asked if he had worked at GE during his vacation. Phillips said he had, and Simon told him he could not work for GE and the Respondent both. Phillips protested that in the (otherwise unidentified) "green booklet" it permitted you to work two jobs. Simon then read something from the green booklet that Phillips could not recall clearly about being a danger to somebody's health, and said it would be a hazard for Phillips to be on the tow motor after working at GE the same day. Phillips responded he was not working at GE. Simon said, "you will have to bring in some kind of statement saying that you had quit from General Electric, permanently quit." Phillips responded, "that means I don't get to go to work," and Simon told him that was right. Phillips nevertheless returned to the plant for the third shift on the next night, March 29. After punching in, he asked Superintendent Mouser what he wanted done. Mouser asked, "did you bring me some kind of a piece of paper saying you quit from General Electric?" Phillips responded, "I am not working for GE. I didn't bring a piece of paper." Mouser told him, "well, we can't let you go back to work." Phillips told Mouser: [W]ell, my choices being, you can let me go back to work, you can fire me or you can have me removed because that is the onliest way I'll leave. Mouser left for about 10 minutes and when he returned he told Phillips, "we can't let you go back to work until you have a slip saying that you quit." At that point Mouser told Phillips he was not fired, but called a guard who grabbed Phillips and escorted him out of the plant. The election was held among the Respondent's employ- ees April 14, and Phillips returned to work at General Electric April 18 where he has been working full time ever since. Phillips has not worked at the Respondent's since the above events. When asked whether, when he last visited the premises on April 14, there were tons of paper and debris still there, Phillips at first said the place looked pretty good, and then he conceded there was about a ton of paper scattered around, and, finally, that there still were stacks of paper over 12 feet high along the railroad track. Adams and Gearheart both testified that Phillips was transferred to the first shift in January, not February, 1977. Gearheart said that shift transfers were not uncommon, there having been 21 other than Phillips, 10 percent of the work force, during the first 3 months of 1977. Phillips was transferred in order to use him during the short daylight hours to clean up after the fire. He said there were still 200 thousand pounds of paper piled awaiting insurance inspection. Superintendent Gearheart testified that Phillips was a good tow-motor operator. He said that in January, February, and March the work was unusually heavy due to the cleanup; that by March the days were getting longer and the workload had to spread more evenly by shifts. He therefore called Phillips at home March 27 and told him he was needed. Gearheart and Adams testified they were not consulted about Phillips' discharge, and that neither knew about it at the time. Simon and Mouser did not testify. Conclusions: I find that Phillips was transferred to the first shift in January, and not in late February as he testified. Moreover, in my opinion, despite the Respon- dent's knowledge of Phillips' union activity and adherence, and its unfair labor practices, the evidence satisfactorily establishes that the transfer, and Adams' assignment of Phillips to extensive policing of the grounds and to work on the dock were prompted by valid economic considerations - the need to clean up the premises after the fire. Phillips admitted he was not the only one so engaged as most of the employees were assigned to such work for a considerable period of time. To the extent that Phillips was required to do more of it for a longer period of time, the record shows that the work was there to be done and Phillips seems a logical choice in view of his experience in the operation of the tow motor and the fact that cleanup had always been a part of his duties. No other more plausible choice has been suggested. Shift transfers were common, and it made sense to take advantage of the daylight hours for cleanup purposes. Moreover, except for not having 50 employees to speak to every day, Phillips did not seem to have been appreciably disadvantaged by these changes. He was not working for GE at the time, and there is no indication that the first-shift assignment inconvenienced him in any other way; as stated, cleanup had always been part of his regular duties; and he never complained about the changes. I do not credit his testimony implying that he was in danger working on the railroad tracks as there is nothing to support it and it seems unlikely. I therefore conclude that the assignment and transfer of Phillips prior to March 28 were not discriminatorily motivated, and I conclude that these allegations should be dismissed. The Respondent's conduct toward Phillips on March 28 is an entirely different story. There was no credible business justification for its refusal to permit Phillips to return to work unless he presented written evidence that he had quit his job at General Electric. Thus, Superintendent Gearheart conceded that work was heavy, Phillips was a good worker, and that he needed him. He had never complained about his work or shift assignments, and he neither complained about his March 28 assignment to the third shift nor requested part-time work. Indeed, he was ready and willing at that time to work full time on the shift assigned. Moreover, even if there was a plant rule 1075 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prohibiting employees from moonlighting when it would create a hazard on the Respondent's premises, of which there is no evidence, the Respondent presented no proof that it would have applied to Phillips. In any event, management had in the past, before the advent of the Union, not only knowingly tolerated Phillips' dual employ- ment without raising any hazard issue, but had cooperated by permitting him to work short hours so he could hold both jobs at the same time. In the above circumstances, in the absence of any explanation of the abrupt change of signals by the two management representatives who presumably were privy to any explanation if there was one, the timing after management gained knowledge of Phillips' union adher- ence and activity, and the Respondent's interrogation and coercion of Phillips and other employees, I find that the Respondent seized on Phillips' employment at General Electric as a pretext for getting rid of the most active union supporter among its employees. I further find that by conditioning Phillips' further employment on his presenta- tion of a quit slip from GE, the Respondent in effect discharged him for discriminatory reasons to discourage union activities among its employees. I conclude that the Respondent thereby violated Section 8(a)(3) and (I) of the Act. REMEDY In order to effectuate the policies of the Act, I recommend that the Respondent be ordered to cease and desist from the unfair labor practices found and, in view of the nature thereof, to cease and desist from infringing in any other manner on its employees' rights guaranteed by the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Having found that the Respondent discriminatorily discharged two employees, I also recommend that it be ordered to offer those employees immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings suffered by reason of the discrimination against them, plus interest at 7 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Florida Steel Corporation, 231 NLRB 651 (1977).7 Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 8 The Respondent, Publishers Printing Co., Inc., Louis- ville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 7 Although the General Counsel requested 9 percent interest, I am required to follow the Board. Iowa Beef Packers, Inc., 144 NLRB 615 (1963). a 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. (a) Discharging or otherwise discriminating against employees to discourage membership in or support of Teamsters Local Union 783, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other union. (b) Interrogating employees as to whether they have signed union cards, or asking other questions to ascertain employees' union activities or sympathies. (c) Telling employees that there will be a layoff or that the plant will be closed if the employees vote in a union. (d) Telling employees that an employee has been fired for soliciting union cards or that they will lose their jobs if they talk about a union. (e) Maintaining or enforcing any rule or posting any notice reading, "In the interest of order, cleanliness and efficient production, there shall be no solicitations of any kind for any purpose carried on among the employees in the plant." (f) In any other manner discouraging membership in a labor organization or interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Carl Mattingly and William Bruce Phillips immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Carl Mattingly and William Bruce Phillips whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest at 7 percent, as provided in the remedy section above. (c) Revoke its above-quoted no-solicitation rule. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the term of this recommended Order. (e) Post at its place of business copies of the attached notice.9 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 9 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1076 PUBLISHERS PRINTING CO. (f) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. 1077