Graphic Services Corp.

GRAPHIC SERVICES CORP Graphic Services Corporation and John W. Rogalski, Jr. Ad Pro, Inc. and John W Rogalski, Jr. Washington Photoengraving Company and John W Rogalski, Jr Cases 13-CA-14047, 13-CA-14160, and 13-CA-14161 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 19, 1975, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding Thereafter, Respondents' filed excep- tions and a supporting brief 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith We agree with the Administrative Law Judge, for the reasons stated by him, that employee John Ro- galski was discharged by the Respondents for the purpose of discouraging membership in the Union, in violation of Section 8(a)(3) and (1) of the Act We also agree with his conclusions that Respondents vio- lated Section 8(a)(1) by threatening employees with discharge for calling the Union, interrogating them as to whether they called the Union, and warning them against, and prohibiting them from speaking to other employees about the Union We find merit, however, in Respondents' exception to the Adminis- trative Law Judge's finding of additional violations of Section 8(a)(1) in the conversations DiPinto and DiFino had with Rogalski regarding his inquires about joining the Union 2 i Since we have adopted the Administrative Law Judge's recommenda- tion to dismiss all allegations as to Washington Photoengraving Company all references to Respondents herem pertain to Graphic Services Corpora- tion and Ad Pro, Inc 2 Member Jenkins would affirm the Administrative Law Judge s findings and conclusions regarding these conversations In the light of the other efforts made by Respondents, through DiFino and DiPinto to discourage contacting or seeking assistance from the Union, Member Jenkins agrees that these statements likewise had a tendency to discourage Rogalski from seeking out the Union 17 The record shows that on November 20, 1974, Ro- galski had a conversation with Manager DiPinto 3 about a raise and after receiving a negative reply "[He] asked to join the Union and DiPinto says, `No, you couldn't join the Union There's a two-year wait- ing list Don't be ridiculous"' On January 10, 1975, Rogalski engaged DiFino in a conversation about a raise and after being turned down testified, "I wanted to get into the Union John said, `Oh no There's people on the streets right now that are having Union cards without jobs' So he said `Its [sic] impossible to get you in there ' " These conversations took place prior to the time the Respondents had any knowledge of union activi- ties on the part of Rogalski, the responses of DiPinto and DiFino appear noncoercive and the truth of these statments was confirmed by the union officials Therefore, we conclude that the responses of DiFino and DiPinto to Rogalski's inquiries about joining the Union were nothing more than passing comments and were not designed to discourage Rogalski from making his own inquiries as to the availability of union membership, which in fact he did In these circumstances we find that the General Counsel has failed to establish interference, restraint, or coercion within the meaning of Section 8(a)(1) in this regard CONCLUSIONS OF LAW I The Respondents are each engaged in com- merce within the meaning of the Act 2 Chicago Typographical Union Local No 16 is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminatorily terminating John W Rogal- ski, Jr, thereby discouraging membership in the Union, Respondents Ad Pro and Graphic have en- gaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 4 By interfering with the right of employees to speak to union representatives, threatening them with discharge for calling the Union or for asserting their claim to be included in an existing bargaining unit, interrogating them as to whether they had called the Union, warning them against, and prohib- iting them from, speaking to other employees about the Union, or engaging in other concerted protected activities, Respondents Ad Pro and Graphic have in- terfered with, coerced, and restrained their employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act 3 DiPinto and Rogalski had a conversation along similar lines in Septem- ber which was more than 6 months prior to the filing of the charge and is not alleged as a violation 224 NLRB No 3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondents Ad Pro, Inc, and Graphic Services Corporation, Chica- go, Illinois, their officers, agents, successors, and as- signs, shall I Cease and desist from (a) Discouraging membership in, or activities on behalf of, Chicago Typographical Union Local No 16, or any other labor organization of their employ- ees, by discriminatorily discharging, or in any other manner discriminating against, any employee in re- gard to hire, tenure, or any other term or condition of employment (b) Interfering with the right of employees to speak to union representatives, threatening them with discharge for calling the Union or for asserting their claim to be included in an existing bargaining unit, interrogating them as to whether they had called the Union, or warning them against, and pro- hibiting them from speaking to other employees about the Union or engaging in other concerted pro- tected activities (c) In any other manner interfering with, restrain- ing, or coercing their employees in the exercise of their right to self-organization, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any or all such activities 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer John W Rogalski, Jr, immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position in either company, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of his reinstatement, in the manner set forth in the section of the Administrative Law Judge's Deci- sion entitled "The Remedy " (b) 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 terms of this Order (c) Post at their plants in Chicago, Illinois, copies of the attached notice marked "Appendix "'I Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondents' authorized representatives, shall be posted by Respondents 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 Respon- dents to insure that said notices are not altered, de- faced, or covered by any other material (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith IT IS FURTHER ORDERED that the allegations of the complaint relating to Washington Photoengraving Company be, and they hereby are, dismissed In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board ' APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to form, join, or assist labor unions or to refrain from such activity WE WILL offer John W Rogalski, Jr, immedi- ate and full reinstatement to his formerjob or, if that job no longer exists, to a substantially equivalent position, in either company, without prejudice to his seniority or other rights and privileges, and WE WILL pay him for the earnings he lost because we wrongfully discharged him, plus interest at 6 percent WE WILL NOT discharge or discriminate against employees who join or assist Chicago Typo- graphical Union Local No 16, or any other union, or who engage in other concerted activi- ties for their mutual aid or protection WE WILL NOT interfere with the right of our employees to speak to union representatives WE WILL NOT threaten our employees with dis- charge for calling the Union or for asserting a claim to be included in an existing bargaining unit GRAPHIC SERVICES CORP 19 WE WILL NOT interrogate our employees as to whether they had called the Union WE WILL NOT warn them against or prohibit them from speaking to other employees about the Union or from engaging in other concerted protected activities 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 National Labor Relations Act GRAPHIC SERVICES CORPORATION AD PRO, INC DECISION valued in excess of $50,000 to points outside that State Ad Pro is engaged in providing keyline and pasteup art services, and during its past fiscal year it performed such services, valued in excess of $50,000, for enterprises within the State of Illinois which annually purchase and receive goods valued in excess of $50,000 from points outside that State Washington Photoengraving is engaged in providing photoengraving services, and during its past fiscal year it performed such services, valued in excess of $50,000, for enterprises within the State of Illinois which annually pur- chase and receive goods valued in excess of $50,000 from points outside the State Respondents admit, and I find, that each is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act They deny that they constitute a single employer or that they are affiliated businesses with com- mon officers, owners, directors, or control STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge On February 25, 1975, the Charging Party (Rogalski) filed a charge against Graphic Services Corporation, and on April 3, 1975, he filed charges against Ad Pro, Inc, and Washing- ton Photoengraving Company On April 18, 1975, the Re- gional Director for Region 13 issued an order consolidat- ing cases and a consolidated complaint in which he alleged that the three Respondents are affiliated businesses consti- tuting a single employer and an integrated business enter- prise, that Respondents Graphic Services and Ad Pro had been joint employers of Rogalski, that on or about Febru- ary 21, 1975, they discharged him because of his union and/or concerted protected activities, in violation of Sec- tion 8(a)(3), and that, on various dates in January and February 1975, agents and supervisors of the three Re- spondents threatened and interrogated employees, in viola- tion of Section 8(a)(1) I Thereafter, the Respondents filed individual answers to the complaint, denying its substan- tive allegations I held a hearing in this matter on June 9-11, 1975, at Chicago, Illinois, at which all parties were represented Thereafter, the General Counsel and the Respondents filed briefs which I have duly considered Upon the entire rec- ord in the case, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS Respondents are Illinois corporations, each maintaining its office and principal place of business in separate prem- ises in a building located at 564 W Adams Street, Chicago, Illinois Graphic Services is engaged in providing artwork serv- ices, and during its past fiscal year it performed such serv- ices, valued in excess of $50,000, for enterprises within the State of Illinois which annually produce and ship goods 1 At the hearing, I allowed the General Counsel to allege an additional violation of Sec 8(a)(1), said to have occurred in November 1974 II THE LABOR ORGANIZATION INVOLVED Chicago Typographical Union Local No 16 (the Union) is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES The major substantive issues here are whether Rogalski was discharged from his employment because he tried to loin the Union, and whether supervisors and agents of the three Respondents interrogated or threatened certain em- ployees mainly because of their concern over Rogalski's interest in joining the Union Finally, the question whether two or all of the three Respondents (referred to hereafter as Graphic, Ad Pro, and Washington) constitute a single em- ployer or were joint employers of Rogalski needs to be decided only to determine what remedial action they should be ordered to take if it is found that Rogalski's termination violated Section 8(a)(3) A Background Rogalski was hired in March 1972, and was discharged in February 1975 He had been hired by Graphic and re- mained on its payroll during his entire 3-year period of employment, but for most of that time the work he did was for Ad Pro, which reimbursed Graphic for his wages Graphic is in the business of supplying computerized typesetting, keylining, and pasteup artwork, preparatory to printing, mainly for advertising agencies and book pub- lishers It employed about 10 people, none of them repre- sented by a union Ad Pro uses a different system of typesetting called pho- totypositor, involving the use of film, and also does keylin- ing and paste-up art work Its sole customer is the retail grocery chain The Atlantic & Pacific Tea Company (A&P) for which it produced all the composition of newspaper advertisements and circulars preparatory to the production of engraving plates to be used in printing It had on its payroll during the relevant period two phototypositors, Contini and Eiternick, and two other men, Alfred DiPinto, 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its general manager, and John DiFino, who serviced the A&P account but who also spent a good part of his time supervising the Graphic operation and its employees In fact, DiFino was the only production supervisor of the Graphic employees These four employees of Ad Pro were all members of Chicago Typographical Union Local No 16 (the Union) with whom it had a bargaining agreement Washington is engaged in making photoengraving plates and offset printing negatives for use in printing It has a diversified clientele, among which is Ad Pro It employs about 40 people under a contract with the Union having jurisdiction over those types of work Graphic and Ad Pro occupied adjoining space on the sixth floor of a loft building which was partitioned, but which had a door inside the premises through which one could move between the two areas without going out into the public corridor Washington's premises were on the seventh floor B Rogalski s Termination Rogalski's primary work was keylining and pasteup, principally on the A&P account He also claimed to have done computerized typesetting and other work for Graphic accounts, about which there is some dispute His work was performed mainly on the Ad Pro premises, but for his work on Graphic accounts, he might move over to its side of the common door Rogalski had received wage increases in the past In Sep- tember 1974, feeling he was underpaid, he asked DiPinto, Ad Pro's general manager, if he could join the Union 2 DiPinto told him he couldn't join because the Union al- ready had a 2-year waiting list 3 Late in November, Rogal- ski again asked DiPinto if he could help to get him into the Union, and again DiPinto told him he could not Rogalski then asked him for a raise to bring him midway between what he was then getting and the union scale DiPinto re- fused to give him any raise Rogalski tried again in early January, this time talking to DiFino, whom he regarded as the Graphic general manager, about a raise and getting into the Union DiFino told him he would see what he could do about a raise, but as to the Umon he told Rogal- ski to forget it because the Umon had many unemployed members A few days before talking to DiFino, Rogalski decided to try another tack by going directly to the Union He called the union office and asked one of its organizers about joining They made an appointment to meet at the union office on January 13 He then told the union officials that he and others worked for both Ad Pro and Graphic, about the type of work they did and the physical layout of 2 Although it may seem odd for an employee to ask a supervisor to help him get into a union, it is explainable by the fact that Rogalski knew Di- Pinto was a member of Local 16, and that the union scale was higher than his own wage rate In effect, he was asking DiPinto for a raise up to scale 3 In the craft tradition of the Typographical Union, admission to mem- bership in Local 16 apparently required apprenticeship training It is unde- med that the Union was not accepting apprentices, but Casper, the Union s organizer, testified that the Union would take into membership employees doing keylmmg and pasteup In any event, the Union was willing to repre- sent Rogalski and other employees doing similar work the two work areas The union officials apparently had him sign an authorization card and promised to investigate Ro- galski met with them again on January 27 and February 3, bringing them samples of the kind of work he was doing to establish that it was being done for Ad Pro and was of the type covered by the Ad Pro contract He also told them about the system used for admitting employees and others into the Ad Pro office-that anyone who buzzed three times was assumed to have a right to enter, and would be admitted without further identifying himself 4 The morning of February 7 Casper and two of his assis- tants made an unannounced visit to the Ad Pro and Graphic premises, gaining entrance without having to iden- tify themselves by buzzing three times Rogalski was work- ing on the Ad Pro side, but neither he nor the union offi- cials greeted each other Casper spoke first with DiPinto and then with DiFino, telling them that he had learned that people were being shifted back and forth between the two shops and that he wanted to have the matter resolved Meanwhile, according to Rogalski, he got up from his worktable and went into the adjoining coffeeroom DiFino came in and told him to say, if he was asked, that he worked for Graphic and had nothing to do with Ad Pro DiFmo denied that he had told Rogalski to say nothing about working for Ad Pro, but I credit Rogalski DiPinto and DiFino testified that Casper had told them he had a complaint that a nonunion person was working for Ad Pro, but refused to name him DiPinto and DiFino both professed to be bewildered by Casper' s accusation, and assured him that there was no such person After a 20- or 30-minute conversation, Casper and his party left to re- turn to their office When they got there, they were in- formed there was a message to call Leonard Pike, who is president of Washington and one of the three stockholders of Ad Pro Casper called him, and Pike told him he had no right to go onto Graphic's premises 5 Casper explained why they had visited the shop, and offered to meet with him to settle the matter of nonunion personnel doing work which was covered by the Union's contract with Ad Pro Casper and Pike did eventually meet on February 19, and the re- sults of that meeting will be set out in its proper chronolog- ical order After the union organizers left Ad Pro on February 7, DiPinto and DiFino asked Contini and Eiternick the two nonsupervisory Ad Pro employees, if they had any com- plaints and if they had called the Union Both said they had no complaints and had not called the Union The same day DiFino also called Janet O'Shea who was then working part time for Graphic, and asked her if she knew anything about anyone going to the Union She said she didn't I find it significant that DiFino should call O'Shea at home to make such an inquiry, since I believe it indicates that DiFino already suspected Rogalski of being the one who had called the Union O'Shea and Rogalski had had a dispute at work serious enough so that O'Shea's husband had threatened Rogalski with harm, and DiFino 4 The sorry efforts of DiFino and DiPinto to conceal and obfuscate this relatively unimportant matter of the buzzer system is indicative of their general untrustworthiness about which more will be said later 5 Ozog, one of the union organizers accompanying Casper, had walked into Graphic s premises GRAPHIC SERVICES CORP might reasonably expect that if O'Shea knew Rogalski had called the Union she would reveal it to him Rogalskt testified that after Casper and the other organ- izers had left on February 7 DiPinto said he wanted to talk to him Rogalskt went over to the Ad Pro side where Di- Pinto, DiFino, Conttm, and Eitermck were gathered There, DiPinto asked him if he knew what the situation was Rogalski said he told DiPinto that he did, that he was supposed to say that he knew nothing about Ad Pro Di- Pinto then said that he was asking about the real situation and then asked him if he had called the Union Rogalski said he hadn't, and DiPinto said, "I'm going to ask you again Did you call the Union?" Rogalski again denied that he had DiFino and DiPinto said they would find out who it was, and he would be fired DiFino then told him to move his desk back to Graphic's premises and Rogalski did so after lunch That evening as he was getting ready to leave work, Di- Pinto said he wanted to talk to him They went into Di- Fino's office, and there DiFino and DiPinto said that they knew it had to be one of three employees who had called the Union, they weren't saying he was the one, but who- ever it was would be fired The following week beginning February 10, Rogalski stayed on Graphic's premises working on the A&P account for Ad Pro as he had done in the past On Monday, Febru- ary 17, DiFmo called him into his office and told him that he could no longer work on the A&P account, there was no other work for him and they had to lay him off DiFino said he was giving him a week's notice and he would be through after February 21 That week Rogalski did a few odd jobs for Graphic, but no A&P pasteup work, which Contort and DiPinto now took over On February 19, during Rogalski's last week of employ- ment, Casper and his assistant met with Pike and DiFino in Pike's office on the Washington premises in accordance with the agreement made on February 7 Casper testified that he told Pike and DiFino that Graphic employees were doing work within the Union's jurisdiction and offered to sign a contract covering all employees doing such work for Graphic or Ad Pro Casper said that Pike denied there had been any transfer of employees between the two shops, and when Pike asked him for the third or fourth time who had contacted the Union he admitted that it had been Rogal- ski, figuring that he no longer needed to conceal his source of information since Rogalski had already been dis- charged DiFmo said they had known it all the time Just before the meeting ended Pike told DiFino that he was fired and the Union could find him a job 6 The preceding recital is based on the testimony of wit- nesses for the General Counsel, principally Rogalski and Casper The thrust of the testimony of Respondents' wit- nesses, DiFino, DiPinto, Pike, and Galdikas, president of Graphic, is that Rogalski was laid off because Graphic had 6 Although DIFmo worked almost exclusively for Graphic he had always been paid by Ad Pro, which was then reimbursed by Graphic One of Casper s complaints to Pike was that DiFino, as a union member should not be working for a nonunion shop After Pike discharged DiFino he continued the same work he had been doing for Graphic but was then paid directly by that firm He also resigned from the Union 21 no further need for his services since his work was unsatis- factory for the type of clients it served and Ad Pro had lost half its business with its only customer, A&P Those most directly involved with Rogalski denied that they knew be- fore he was discharged on February 17 that it was he who had contacted the Union, and thus that it was not a con- tributing factor in the decision to terminate him Although he was the president of Graphic, Galdikas was primarily a salesman who was concerned with his own ac- counts, leaving the supervision of production work to Di- Fino who, according to Galdikas, had always done it De- spite the fact that DiFmo worked for Graphic, Galdikas did not know why Ad Pro continued to pay him, nor was he familiar with the billing arrangements under which Graphic reimbursed Ad Pro for DiFino's salary Galdikas seemed to be unfamiliar with Graphic's operations, apart from his own sales activities Galdikas, however, testified that sometime "between 1973 and 1974" he became dissatisfied with Rogalski's work on one of his advertising agency accounts, and told DiFino that Rogalski was not to work any longer on any of his accounts DiFino placed this injunction of Galdikas as occurring early in 1974, while DiPinto testified that Rogal- ski had not begun to do keyhning for A&P until August 1974, and then only for 1 or 2 days a week, thus leaving it unclear what DiPinto, DiFino, and Galdikas thought Ro- galski was doing for most of 1974 Rogalski had never been told about any such order of Galdikas and continued as he always had, working mainly on keylining and pasteup for the A&P account on Ad Pro's premises I find it most im- probable that there was in fact any change in Rogalski's pattern of work due to Galdikas' alleged dissatisfaction with his performance As to the other reason for Rogalski's discharge, that Ad Pro had lost half of its A&P business, some background explanation is required Almost 5 years before the events here, A&P's newspaper advertisements had been prepared by another firm, American Typesetting Company A&P became dissatisfied with its work, and an employee of American Typesetting formed Ad Pro to take over that account This was Richard Brains who is also a stockholder in Washington and through a holding company, in Graph- ic Brains hired away from American Typesetting all the employees who from 1972 on constituted Ad Pro's entire complement, DiPinto, DiFino, Contini, and Eiternick A&P turns over the copy for its newspaper advertise- ments to Ad Pro to be made ready for engraving and print- ing Because of the quick response to competition which is necessary in the retail grocery trade, decisions on what is to be advertised and its pricing is frequently held up, so that A&P does not supply its copy on a regular, predictable basis Ad Pro employees may have nothing to work on for days, but then will work overtime once the copy comes in, in order to meet the advertising schedule The result is that for substantial periods of time each week, Contini, Eiter- nick, and Rogalski had nothing or very little to do A&P realized that its inability to schedule production evenly and regularly made it necessary for Ad Pro to maintain a full crew at all times, and it was willing to bear its full cost According to Pike, A&P paid Ad Pro its full wage costs plus an override 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In October 1974, more than 4 months before Rogalski was laid off, A&P shifted its production of advertising cir- culars from Ad Pro to another firm, but left to Ad Pro the entire production of its newspaper advertisements Accord- ing to Pike the loss of the circulars business cost Ad Pro $3,000 per week No business records were introduced to substantiate this loss, which in any event can scarcely be reconciled with Pike's testimony that A&P paid Ad Pro on the basis of its full wage costs In fact, whether a loss of business was actually incurred in October 1974, Ad Pro continued to employ the same employees it had previously and to assume the payment of Rogalski's salary to Graph- ic Thus for over 4 months, despite the asserted fact that A&P had transferred half its business away from Ad Pro, A&P continued to pay it on the basis of the same size crew it had needed before A&P was apparently satisfied that Ad Pro needed as large a crew as ever to handle expedi- tiously the work it turned over to it Pike told Rogalski, after Pike's meeting with Casper on February 19, that he had been laid off because the Ad Pro contract with the Union did not permit a nonunion em- ployee to do unit work According to Rogalski, DiFino had already told him on February 17 (2 days before DiFino said he first learned that it was Rogalski who had contact- ed the Union) that he could no longer work on the A&P account, and that there was no work for him at Graphic It was only a coincidence, according to DiFino, that Ad Pro and Graphic should have decided that Rogalski had to be laid off just after Casper had informed him and DiPinto that an unidentified nonunion employee was doing work for Ad Pro which was covered by the union contract But at another point in his testimony DiFino offered another explanation for the timing of Rogalski's transfer from Ad Pro to Graphic, preliminary to his termination This was that there may have been some violation of the contract that they weren't aware of What DiFino was being forced to admit was that Casper's complaint about a nonunion employee doing work for Ad Pro in violation of the con- tract was in fact the reason for Rogalski's being removed from Ad Pro work DiPinto and DiFino both testified that they had no idea that it was Rogalski who had contacted the Union, after Casper had told them on February 7 that a nonunion em- ployee was working for Ad Pro I find their testimony un- worthy of belief Both knew that of the three employees doing all the production work for Ad Pro, two were union members, and that Rogalski was nonunion They had asked Contmi and Eiternick, the two union members, if they had called the Union, and they said they hadn't Di- Pinto and DiFino denied asking Rogalski if he was the one who had called it I have already credited Rogalski's testi- mony that DiPmto had asked him twice if he had called the Union, just after Casper left on February 7, and al- though Rogalski denied that he had, it would be no great feat of deductive reasoning to figure out that it must have been Rogalski Rogalski had, after all, spoken to DiPinto and DiFino recently about whether he could join the Union Furthermore, he was the only nonunion employee doing work for Ad Pro, and Casper's complaint that a non- union employee was working for Ad Pro would inevitably lead to the conclusion that Rogalski was the one who must have told the Union Based on the foregoing, I conclude that DiPinto and Di- Fino decided to terminate Rogalski because he had gone to the Union, thereby alerting it to the fact that Ad Pro was violating its contract by allowing a nonunion employee to do work within its jurisdiction and subject to the coverage of the contract I reject the explanation of Respondents' agents that it was the loss of some of the A&P business or the lack of work which Rogalski would have been able to do for Graphic that played any part in their decision to terminate him I therefore find that Rogalski's termination was a violation of Section 8(a)(3), since DiPinto and Di- Fino, agents of Ad Pro and Graphic, were opposed to his being represented by the Union in any facet of his employ- ment, and also resented the Union's awareness of a viola- tion of its contract with Ad Pro C The 8(a)(1) Allegations The factual basis for some of the violations of Section 8(a)(1) alleged in the complaint have already been set out Thus, I have found, as alleged in paragraph 10(b) of the complaint that DiFino told Rogalski on February 7, while the union organizers were on the Ad Pro premises, that he should say, if asked, that he worked for Graphic and had nothing to do with Ad Pro Rogalski also testified that, as part of the same conversation, DiFino had told him not to answer any questions but to go onto the Graphic premises and lock the door between the Graphic and Ad Pro work- ing areas I credit Rogalski's versions of his conversation with DiFino that morning as against DiFino's denial that it had occurred because of my strong belief, based on their respective demeanor and DiFino's evasive testimony, that on any disputed issue of fact Rogalski's story is to be pre- ferred I find therefore that paragraph 10(b), alleging that DiFino told Rogalski on February 7 not to speak to the union representatives or to he to them, has been proved and that DiFino thereby interfered with Rogalski's right to communicate with union representatives Later that day according to Rogalski, DiPinto twice asked him, in the presence of DiFino, Contim, and Eiter- nick, if he had called the Union, and that DiPinto and DiFino had both said they would find out who had done it, and they would fire him The questioning took place in the Ad Pro working area DiFino was not specifically asked about this conversation, while DiPinto said he was not pre- sent at any time when the matter was raised Contim testi- fied that he had not heard DiPinto or DiFino say, on Feb- ruary 7, that any employee, and specifically Rogalski, who had communicated with the Union, would be fired Etter- nick was only asked if DiPmto or DiFmo had told him that he would be fired if he were the one who had called the Union, but was not asked if he had heard such a remark directed at Rogalski Whether Respondents' counsel did not ask Eiternick that particular question deliberately or through oversight is not too important, since Respondents' brief asserts that the record will not support a finding that such a threat was made It is, in fact, amply supported by Rogalski's testimony, and as between him and DiPinto, DiFino and Conttni, I am satisfied that Rogalski was much more likely to tell the truth and did so on this matter I GRAPHIC SERVICES CORP therefore find, as alleged in paragraph 10(c), that DiPinto and DiFino threatened Rogalskr or anyone else with dis- charge once it was learned who had contacted the Union Just as Rogalski was leaving work on February 7, he was threatened for the third time that day when DiPrnto and DiFino again told him that whoever had called the Union would be fired Respondents concede in their brief that DiPmto and DiFmo interrogated Graphic and Ad Pro em- ployees that day as to which employees had communicated with the Union I find that they not only interrogated, but also threatened to discharge any employee who had done so However, as Respondents correctly point out in their brief, there is no evidence that Pike interrogated any em- ployees on February 7 as alleged in paragraph 10(e) Respondents also concede that the factual allegations of paragraphs 10(g), (h), and (i) have been proved, and that they constitute violations of Section 8(a)(1) These para- graphs are based on Rogalski's testimony that Pike, the president of Washington, told him in three separate en- counters on February 20, not to speak to other employees about the Union or other protected, concerted activities, interrogated him about his meetings with union representa- tives and about his conversations with other employees about such meetings, and then prohibited him from dis- cussing his activities with Washington employees Respondents contest, however, the allegation of para- graph 10(f), that Pike told Rogalski on February 19 that he had been discharged for communicating with the Union Rogalski testified that about I p in that day (shortly after Pike's meeting with Casper when, according to Pike, he learned for the first time that it had been Rogalski who had contacted the Union), Pike and DiFino approached him and Pike said that he had been the one who had made all the phone calls and that the Union had gotten him termi- nated Pike did not deny Rogalski's testimony I Respon- dents argue, however, that it cannot support a finding of 8(a)(1) violation because Pike's statement was true since Rogalski's contact with the Union had indirectly precipi- tated his termination What this argument amounts to is an assertion that Rogalski was discharged because of the Union's opposition to a nonunion employee working for Ad Pro performing services within the bargaining unit But that is to ignore the fact that the Union was not demanding that Rogalskr be terminated, but was only insisting that he be included in the Ad Pro unit and that the Union be allowed to represent him Thus, when Pike told Rogalskr that it was the Union that had gotten him discharged, he was implicitly threatening him and all other employees that any claim they might make as to their right to be included in the Ad Pro unit on the basis of their work would result in their discharge I find that to be a violation of Section 8(a)(1) Paragraph 10(a) alleges as a violation of Section 8(a)(1) DiFino's telling Rogalski in January 1975 that he could not 7 Pikes statement on February 19 that the Union had gotten Rogalski terminated is further evidence that the reasons given him on February 17 for his discharge were false Why should Pike lay the onus on the Union if as DiFino claimed, they had told him 2 days earlier that he was being laid off because the A&P work had been reduced and there was nothing for him to work on for Graphic9 23 become a union member Paragraph 10(1), which was add- ed to the complaint at the hearing, alleges as a violation DiPinto's telling Rogalski the same thing in November 1974 The facts are not in dispute Rogalski testified credi- bly that DiFmo had told him in January that he could forget about getting into the Union because many of its members were then unemployed This was also the gist of DiPinto's remarks to him the previous November, in the context of a conversation they had had in September, that Rogalski could not get into the Union because it had a 2-year waiting list 8 The General Counsel admits that Casper had told Ro- galski when he first inquired about joining the Union in January that the Union had a waiting list of applicants for membership However, Casper had also told him that he could join despite the waiting list because he was already working in a union shop The General Counsel argues that, even if DiPinto and DiFino were only expressing their per- sonal opinions in telling Rogalski that he would not be able to join the Union, their conduct would nevertheless tend to discourage Rogalski from making his own inquiries of the Union, particularly since Rogalski would look to them, as his supervisors, for guidance Rogalski was asking DiPinto and DiFino, both of whom were members of the Union, to put in a good word for him with the Union That Rogalski was uninformed and naive about union matters is obvious from the fact that he felt it necessary to ask his supervisors for advice and aid But Rogalsla's major concern was in getting a raise, and he had at times coupled such a request of his supervisors with a request for their help in getting him into the Union By discouraging him about his chances of getting into the Union, DiPinto and DiFino were expressing their opposi- tion to his going to the Union for help in the matter of his primary concern, a raise They may have believed that the Union would refuse his application if he were simply trying to join it as an apprentice off the street, but by advising him that he could not get in under any circumstances, their actions would tend to discourage him from making his own inquiries and pursuing his own interests I find that they thereby violated Section 8(a)(1) D The Relationship Between the Respondents The Respondents are each engaged in a particular aspect of the graphic arts industry Graphic and Ad Pro use dif- ferent forms of "cold" typesetting The type and other ma- terial thus produced is pasted up in preparation for trans- ference to plates or negatives for use in printing None of the three Respondents works exclusively for one or both of the others Only one person, Richard Brains, has a stock interest in all three companies, but he is inactive in their day-to-day management Pike, president of Washington, and one of its stockholders has a stock interest in Ad Pro but not in Graphic Two other individuals who own stock in Wash- ington have no interest in either Ad Pro or Graphic Galdi- kas, president of Graphic and one of its stockholders, has S DiPinto s remarks in September are not alleged as a violation because they were made more than 6 months before the filing of the first charge 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no equity in either Ad Pro or Washington He is primarily a salesman with little interest or knowledge in Graphic's operations other than his own accounts Pike is the effective manager of Washington in all re- spects, DiPinto manages Ad Pro in its day-to-day opera- tions but, as illustrated by the Union's claim of a contract violation, nonroutine matters of management and opera- tions are handled by Pike DiFino and DiPmto, who were then both on Ad Pro's payroll, supervised both Graphic and Ad Pro employees without the need to establish clear lines of demarcation between their respective supervisory authorities The three firms shared a single bookkeeper, Elaine Ad- ams She testified from business records that, from January 1974 through March 1975, approximately 80 percent of Graphic's payroll was charged to Ad Pro This included Rogalski's wages as well as those of a number of other nominal Graphic employees For part of this period, Ad Pro in turn billed Graphic for the services rendered it by DiFino These facts establish that there is a substantial inter- change of employees and supervision between Ad Pro and Graphic, but none between either of them and Washing- ton, except for their common bookkeeper I have consid- ered the arguments of the General Counsel that all three Respondents must be considered as a single enterprise con- ducting an integrated business operation, but I do not agree that the facts adduced require that conclusion There is neither common ownership nor financial control, com- mon management nor a centralized control of labor rela- tions involving Washington with the other two companies Although Pike seems to exercise certain management func- tions in Ad Pro and Graphic, probably because of his rela- tionship with Brains, his financial backer many years ago, it is not, in my opinion, sufficient to require that Washing- ton be held responsible for the unfair labor practices com- mitted by supervisors and agents of Ad Pro and Graphic I shall therefore recommend that the allegations of the com- plaint against Washington be dismissed I am satisfied, however, that Rogalski and other nominal employees of Graphic were in fact jointly employed by Ad Pro and Graphic I rely for this conclusion on the fact that DiPinto and DiFino shared supervisory authority over both Ad Pro and Graphic employees although both were employed by Ad Pro alone, that DiPinto and DiFino par- ticipated in the interrogations and threats directed against both groups of employees, and that 80 percent of Graphic's payroll expenses during 1974 and the first quar- ter of 1975 were charged to Ad Pro In view of the de facto control exercised over Ad Pro and Graphic employees by DiPinto and DiFino and by Pike, as their superior, I find it necessary, in order to safeguard these employees' statutory rights to hold Ad Pro and Graphic jointly responsible for the violations found to have been committed 9 9International Trailer Company, Inc & Gibraltar Industries Inc 133 NLRB 1527 (1961), enfd sub nom N L R B v Gibralter Industries Inc and International Trailer Company Inc, 307 F 2d 428 (C A 4, 1962) CONCLUSIONS OF LAW 1 The Respondents are each engaged in commerce within the meaning of the Act 2 Chicago Typographical Union Local No 16 is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminatorily terminating John W Rogalski, Jr, thereby discouraging membership in the Union, Re- spondents Ad Pro and Graphic have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 4 By interfering with the right of employees to speak to union representatives, threatening them with discharge for calling the Union or for asserting their claim to be included in an existing bargaining unit, interrogating them as to whether they had called the Union, warning them against and prohibiting them from speaking to other employees about the Union or from engaging in other concerted, pro- tected activities, and by discouraging employees from in- quiring of the Union about joining it, Respondents Ad Pro and Graphic have interfered with, coerced, and restrained their employees in the exercise of the rights guaranteed them in Section 7 of the Act, and in violation of Section 8(a)(1) of the Act 5 The General Counsel has failed to establish that Re- spondent Washington Photoengraving Company is singly or jointly responsible for any of the violations alleged in the consolidated complaint 6 The unfair labor practices noted in paragraphs 3 and 4, above, affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Ad Pro and Graphic have committed certain unfair labor practices , I shall recommend that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act As I have found that Ad Pro and Graphic, acting, Jointly, have discharged John W Rogalski , Jr, because they sus- pected him of engaging in union activities , I shall recom- mend that they be ordered to offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position in either com- pany, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge, by payment to him of a sum of money equal to that which he would normally have earned as wages, from the date of his discharge to the date of an offer of reinstatement, less net earnings, in accordance with the formula set forth in F W Woolworth Company, 90 NLRB 289 (1950), plus in- terest at 6 percent per annum Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended GRAPHIC SERVICES CORP 25 ORDER 10 Respondents Ad Pro, Inc and Graphic Services Corpo- ration, Chicago, Illinois, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discouraging membership in, or activities on behalf of Chicago Typographical Union Local No 16, or in any other labor organization of their employees, by discrimina- torily discharging, or in any other manner discriminating against, any employee in regard to hire, tenure, or any other term or condition of employment (b) Interfering with the right of employees to speak to union representatives, threatening them with discharge for calling the Union or for asserting their claim to be included in an existing bargaining unit, interrogating them as to whether they had called the Union, warning them against and prohibiting them from speaking to other employees about the Union or from engaging in other concerted, pro- tected activities, and discouraging employees from inquir- ing of the Union about joining it (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any or all such activities 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act 10 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) Offer John W Rogalski, Jr immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position in either company, without prejudice to his seniority or other rights or privi- leges, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him by payment of a sum of money equal to the amount he would have earned as wages from the date of his discharge to the date of his reinstatement, in the manner set forth in the section entitled "The Remedy" (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order (c) Post at their plants in Chicago, Illinois, copies of the attached notice marked "Appendix " 11 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 13, after being duly signed by authorized representa- tives of the Respondents, shall be posted immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith IT IS FURTHER RECOMMENDED that the allegations of the complaint relating to Washington Photoengraving Compa- ny be dismissed 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading ` Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"