Washington Post Co.

490 DEClSlONS OF NATIONAL LABOR RELATIONS BOARD The Washington Post Company and Elvin Burl Breeden. Case 5-CA-7984-4 May 6, 1977 DECISION AND ORDER On January 21, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 his recommended Order. ORDER Pursuant to Section lO(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recornmend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Washington Post Company, Washington, D.C., its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. 1 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 Diy Wall Products, Inc., 91 NLRB 544 (1950), enfd. I88 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION BERNARD RIES, Administrative Law Judge: A hearing was held in this matter on September 15, 1976. The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by threatening, on or about December 26, 1975, to discontinue premium pay for employee Elvin Breeden, if he continued to honor a picket line, and violated Section 8(a)(3) by discontinuing such premium payments to Elvin Breeden and Cecil Surine in February 1976 after they had returned to work. Briefs were received from the parties on or about November 15, 1976. Upon the entire record,' and after due consideration of the briefs filer! by the parties, 1 make the fdleving: I Errors in the transcript have been noted and corrected accordingly. 229 NLRB No. 87 I. JLIIUSDICTION OVER RESPONDENT Respondent, a District of Columbia corporation, pub- lishes a daily newspaper called the Washington Post. During the 12 months preceding issuance of the complaint, a representative period, Respondent received gross reven- ues exceeding $200,000 and regularly printed advertise- ments of products which are nationally advertised and sold in interstate commerce, published nationally syndicated articles and news stories, and shipped newspapers to points outside the District of Columbia. The answer to the complaint conceded that at all times material, Respondent has been an employer engaged in commerce and in operations affecting commerce as defined in Section 2(2), (6), and (7) of the Act. I so find. 11. THE STATUS OF THE LABOR ORGANIZATIONS INVOLVED The complaint alleges that Columbia Typographical Union No. 101, International Typographical Union of North America, AFL-CIO, and Washington Mailers Union No. 29 are, and have been at all material times, labor organizations within the meaning of Section 2(5) of the Act. The answer admits the foregoing allegation, and I so find. III. THE ESSENTIAL ISSUES Respondent recognizes Columbia Typographical Union No. 101 as the bargaining representative of its composing room employees, including supervisors. In October 1975, Washington Mailers Union No. 29 called a strike of the employees of Respondent it represents. Under the contract between Respondent and Columbia Union No. 101, the composing room employees are entitled to honor such a strike. Elvin Breeden, who was employed in the composing room, honored the Mailers picket line and stayed out of work from October 1975 to February 1976, when the strike ended. Before the strike, Breeden received, as part of his compensation, a payment of $6 premium pay per shift in addition to his regular salary of about $69. When he returned to work, he no longer received that premium pay. The General Counsel alleges that Breeden has been at all times a rank-and-file employee who was stripped of his overscale pay because of his refusal, in December 1975, to accept a management invitation to return to work during the strike. Respondent contends that Breeden was a supenisor prior to the strike and therefore is not entitled to the protection of the Act. It further asserts that Breeden's loss of overscale pay after the strike was the inevitable, and legitimate, result of technological changes in the compos- ing room during the strike which diminished the nature of Breeden's job to the point at which it was no longer necessary for him to exercise supervisory responsibihty. General Counsel's claim that Cecil Surine was the object 3E d'rriminatory c~cduct is basically a ieiivatiki aait~i- THE WASHINGTON POST COMPANY 49 1 tion, grounded in the fact that, prior to the strike, Surine had received overscale pay when he had substituted for Breeden. The apparent basis for the Surine allegation is that the discrimination worked against Breeden necessarily effected a discrimination against Surine when, after Breeden stopped receiving overscale pay, Surine also was no longer paid a premium when he acted in Breeden's stead. IV. FACTUAL FINDINGS; ANALYSIS A. The Supervisory Status of Elvin Breeden "The issue of whether an employee is actually a supervisor is a recurring and difficult one." N.L.R.B. v. Handy Hardware Wholesale, Inc., 542 F.2d 935, 938 (C.A. 5, 1976). The difficulties normally attending the resolution of a question of supervisory status are compounded here by a record which may appropriately be characterized as opaque.2 The conversion of Respondent's composing room from a "hot metal" operation to a "cold type" process plays a significant role here. In discussing this subject, I will refer to both the testimony of Breeden, General Counsel's principal witness, and that given by Respondent's only witness, Earnest Smith, the general foreman of Respon- dent's composing room. Breeden, who began work for Respondent in 1957, became the "ad room supervisor" in 196 1. At that time and until some time around 1973, the composing room made up advertisements using the "hot metal" system. General Counsel conceded at the hearing that Breeden was a statutory supervisor prior to the conversion to ''cold type." Breeden testified that, during that period, he had "under" him anywhere from 10-40 men. Smith estimated the numbers as 5CL90, but the difference seems unimportant for our purposes. This work for% included both "regular employees" and employees who were assigned to assist Breeden with the "early runs."3 According to Smith, the "hot metal department" at that time, of which Breeden was the acknowledged supervisor, "assembled ads in a hot metal form, and they put these ads together. They proofread them, corrected them, sent them out to the customer$; when the customers released them, they came back. They were responsible for putting these ads in the chases in the makeup section."4 Starting around 1969 or 1970, according to Smith, there was a gradual conversion from hot metal to cold type "in the advertising sections and the early run sections." It would appear that the conversion was not finally com- pleted until the beginning of 1976, but, according to Smith, the conversion of the "advertising section" was completed in February 1973. Both Breeden and Smith seem to agree that, at some point there was a significant change in the 2 As the one charged with developing a full record. this dereliction might be laid at my doorstep. By uestioning witnesses at the hearing, whose testimony seemed less than pehcid, 1 attempted to clarify the mysteries of the composin room and its operation 'in three separate sta es or development. hy review of the transcript indicates to me that 1 J d not who11 succeed. Xhen a large edition is contemplated, an "early run" is made, I day in advance, orcertain sectioi.s or the psge.. A "chase" is "a metal form which holds the material which constitutes a newspaper page." operation as a result of the conversion process; although Breeden gave the year as 1971, he was very unsure about that fact and did not rule out the possibility that it could have been as late as 1973. I assume, therefore, that the changeover referred to by Smith as occurring in February 1973 was the same major event referred to by Breeden. Breeden testified that when, during this period, they "switched from hot metal to cold type," the employees "under [his] supervision" "went into" the pasteup depart- ment under a separate supervisor. When asked at the hearing what he was told by "your foreman" as to what his job duties were as a result of this conversion, Breeden testified, "He told me that my job would be primarily just to make sure that the ads got into the paper, that generally. You know, when I come in at night, the only responsibility would be seeing that the ads got in the paper. We had to- you know, if anything was missing, or make sure we get on the right pages, with the right sizes, and it wasn't shot reversed, or anything like that." Breeden did not identify which "foreman" made this statement to him. There seem to be only two possibilities-Smith and Night Shift Foreman William Lastinger. Lastinger did not testify. Smith did not specificaUy deny either Breeden's description of the operational change or having such a conversation with Breeden at this major juncture in the conversion process.5 I generally credit Breeden, although his faulty memory makes me question the precision of his recall of the conversation. - It is General Counsel's position that from this point on, Breeden was no longer a supervisor within the meaning of Section 2(11) of the Act. Breeden testified that, after these events, his job became relatively simplified.6 He said that each night he would receive from another department a "drop sheet," which is a key to the placement of ads on various pages of the newspaper. The ads, in the form of pieces of zinc or plastic, would be brought to him from some other department. He would take the ads, called "cuts," and put them on the pages that were being put together in the makeup department, using the drop sheet as a guide. Employees would be working on the pages. These employees, according to Breeden, would paste the ads down on the chase. It appears from Smith's testimony that if there were problems with the ads, Breeden would be so informed by the employees who were doing the pasting, and he would resolve whatever dificulties were presented. In the second part of his shift, Breeden would be "looking for ads that might be going on the early run, that's going later on." Breeden testified that after the 1973 conversion, when he lost his regularly assigned employees, he no longer supervised employees. He further testified that his working procedures were the same after he returned from the strike in February 1976 as they had been since 1973. Smith did. however, acknowledge that in the 196(Ps, Breeden had "his regular people" working for him as well as additional ones assigned to him to work on the early runs. In giving the following description of his job, under my questioning, Breeden was, pursuant to the questions being put to him, referring to his duties as of the time of the hearing. In earlier inquiry, however, Breeden had ~eslifieu :hat he " d x s the sau.~ :hilid ncx :tn: :he] d;"' aa!?r his dutim changed in "1971." 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cecil Surine, who began work for Respondent in October 1972, testified that he worked with Breeden prior to the strike and performed the work as described by Breeden. More specifically, Surine worked, and still works, on Wednesday, Thursday, and Friday nights with Breeden. On these evenings, both before and after the strike, one of them takes the full pages containing advertisements and another the smaller ads and parcels them out as described by Breeden; in Surine's words, "One goes one way, and one the other." He testified that, when he works with Breeden, he does not consider Breeden to be his supervisor and that he believed his supervisor to be the makeup supervisor.7 On Saturday and Sunday nights, Breeden's nights off, Surine handled, and still handles, the job by himself. Because most of the advertising for the Sunday paper has been done in the early runs, and because Monday is generally a light paper, Surine has not usually had anyone work with him on Saturday and Sunday nights, although Smith testified that occasionally Surine has asked for, and received, assistance. General Counsel and Respon- dent appear to agree that Surine never was, and is not now, considered to be a statutory supervisor. A vexatious problem in this case is the number of employees who worked with Breeden prior to the strike and the nature of his relationship to them.8 Breeden conceded that even after the conversion to cold type (and the consequent abolition of the "hot metal department") in 1973,9 he would ask the shift foreman for "extra help," usually on nights that early runs were being produced. Smith testified that at all times until the strike began, Breeden had, three nights each week, i.e., the early run nights, no less than 2, and sometimes as many as 20, employees assigned to him to help in his work. He also testified that "it could go some days of the week, there might not be but one man there [in the hot metal department]; maybe it was Mr. Breeden himself, and that would be all that was there." The additional men were assigned to the job by the shift foreman, who, according to Smith, "determined how many employees were to work in the hot-metal department on a given evening," after consultation with Breeden. These men, Smith testified, were taken from other departments by the shift foreman and detailed to work on the advertising. Smith asserted that these employees were in effect "assigned" to Breeden for the period of time in which they did the advertising work, and that he was their supervisor for such periods. None of them, according to Smith, began work with Breeden at 6 p.m., the beginning of the shift. After Breeden and the shift foreman discussed the number of men needed, the temporary transfers would be effected, and some men might start at 7 o'clock, some at 9 o'clock, and some "might even wait till 10:30 before they start working with Mr. Breeden." There was no regularity to their assignment to work with Breeden. It was on an as-needed basis. The testimony is elusive as to the precise nature of the work done by these assigned employees. They apparently stood near a chase or chases in the makeup department. ' Testimony similar to Surine's was given by Donald Madden, who worked with Breeden prior to the strike, and both with him and as a substitute for him subsequent to the strike. Madden was an impressive wltness. Aside, that is, from Surine, whose relationship is fairly well described. Although, as indicated above, Breeden testified that he simply took the cuts over to where these men were and laid them on the dummy, after which the employees would paste them onto the dummies, Smith at first contested the claim that Breeden manually camed the ads to be placed on the chases, saying that "Maybe it's one ad that's missing; when he brought it up he would go ahead and put it down," but that Breeden did not perform this physical function on a nightly basis. Surine, a credible witness, corroborated Breeden's testimony as to the nature of the work prior to the strike. I conclude that it consisted of canying the cuts to the chases, laying them down, and then working out whatever problems with the ads that might be encountered. The record shows that prior to the 1973 change in the modus operand, Breeden recommended the discharge of two employees, one for attacking him. They were dis- charged. Breeden testified that, before he lost his employ- ees, he had recommended disciplinary action several times for employees who "wasn't working, or had gone on and stayed an hour for lunch . . . and this kind of thing." There is no probative evidence that after 1973 Breeden recom- mended the discipline of any employee, entertained grievances from any employee, or engaged in any similar supervisory function. It was nonetheless Smith's contention at the hearing that, up until the time that Breeden engaged in the sympathy strike in October 1975, Breeden was possessed of the same authority as any other supervisor effectively to recommend discipline, etc. Breeden attended a seminar held for Washington Post supervisors at which they were given management orienta- tion, with particular emphasis on labor relations. Breeden could not remember much about the seminar. While Smith testified about it in detail, he never was asked to name the year in which the seminar was held. The question put to Breeden about this training course by Respondent's counsel referred to "the winter of 1971 and 1972." The program for the course is undated, but it contains an arbitration award used as training material which is dated June 1971. Apparently Breeden attended the course prior to the change% operations. The collective-bargaining agreement covering the period 1973-79 contains provisions relevant to the issue. The hierarchy in the composing room, as indicated by the bargaining agreement and by testimony, is a general foreman (Smith), who has charge of all three shifts, an assistant foreman, who is Smith's immediate subordinate, a shift foreman for each of the three shifts, and other "supervisors." Section 20-b of the agreement provides, in part, "Journeymen may be designated as supervisors by the foreman to supervise certain divisions, such as copy cutter, ad alley, proofroom, TTS and make-up, but only the general foreman may employ, discharge, or discipline. The names of the foreman and the journeymen designated to act in his place shall be kept conspicuously posted, and the Smth was unclear as to whether there was a "hot metal department" after 1973. Asked about th~s, he test~fied, "We had a supervisor, a hot-metal ;u~wv~sor, and people were tsslgnea LU i ~ e hul-meui suprrvlsol u,, ,,cltaln days of the week." THE WASHINGTON POST COMPANY 493 authority of such foreman and assistants shall be limited by the terms of this Agreement." 10 For many years, Respon- dent has kept continuously posted in its composing room a curient list of the "composing room administration"; Smith testified that Respondent was required to do so by the terms of the union constitution, incorporated by reference in the bargaining agreement. The list names the general foreman, the three shift foremen and their substitutes, and the "day supervisors," "night supervisors," and "lobster supervisors." There is no dispute that after 1973, and up until the strike, Breeden continued to be shown on the list as one of the "night supervisors." Those employees designated by Respondent as "supervi- sors" receive a fixed premium for each shift worked by them, ranging from $6 to $15. In 1973, Breeden was receiving a $6 shift premium, and he continued to receive the premium even though his duties changed with the advent of the coldtype process. While Smith testified that as a matter of policy, Respondent paid such premiums only to those employees designated as supervisors, it was not under contractual compulsion to so limit itself. Section 12 of the bargaining agreement states, "Notwithstanding some employees may receive above the scale, no employee has a right to demand more than it calls for, no matter in what capacity he may be employed." Thus, under the agreement, Respondent need not have paid those employees designat- ed as "supervisors" any additional amount above the scale, and the provision appears to give the Company the right to pay a premium to "some employees," if it chooses. Surine received a premium payment of $6 per shift for the two weekend nights on which he took over Breeden's job. Smith testified, without contradiction, that the reason for making these payments to Surine was that the Union had filed a grievance some years before in w%ch it asserted that "any h e we put a man in a supervisory position," he should be paid at the supervisory rate. Surine, accordingly, was paid the overscale premium when he performed Breeden's job, but "with no responsibilities attached to it." The record also shows that, until he went out on strike, Breeden nightly checked off on his timecard a printed designation that he was the "hot metal supervisor." Unlike the other "supervisors," however, he did not rotate between departments, and he did not maintain time records on employees. Section 2(11) of the Act provides: The term "supervisor" means any individual having authority. in the interest of the employer, to hire, transfer, suspend, lay off, recall, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connec- tion with the foregoing the exercise of such authority is not of a merely routine or clerical nature. but requires the use of independentjudgment. l o The arbitration award in evidence shows that the reference to "ad alley" had been contamed in this clause prior to the 1967 agreement. The record does not include a definition of "ad alley." :' The fact (;;a: zi,,;,.. ri,~:,: ~pprczch Nigh! Shift Foremar. i z ~ n g e r about getting additional temporary help, and, as Smith testified without General Counsel has freely conceded that, prior to the completion of the first phase of the major technological overhaul of Respondent's composing room, Breeden was a supervisor in the statutory sense. The question presented is whether, after that event, probably in February 1973, he continued to occupy that status. Smith testified that he considered that Breeden continued to be a supervisor in the statutory sense. It was his belief that Breeden, after February 1973, was vested with the same authority he possesseh prior thereto. There are, unquestionably, indicia of continuing supervi- sory status. The fact that Breeden was continuously shown as a "night supervisor" on the posted list indicates that Respondent deemed him a "supervisor," although the mere listing does not explicate what authority Breeden or the other "supervisors" possessed. The fact that only those employees named as "supervisors," and their surrogates, received premium pay, and that Breeden and Surine received such pay, also supports the argument that Breeden continued to be what Respondent considered a "supervi- sor." On the other hand, after February 1973, there was a reasonable basis for Breeden to conclude that he no longer was a supervisor, as contemplated by the statute, despite the foregoing trappings of office. Breeden's undisputed, and important, testimony that at the time of the initial conversion, the employees who formerly "were under [his] supervision" were removed and transferred "into . . . the paste-up department," and that he was told "that the only responsibility [he had] would be seeing that the ads got in the paper," would appear to be a meaningful change in his status. He had had employees permanently assigned to him; then he no longer had any such employees. He was told that the "only responsibility" he had was a result- oriented one. The record is devoid of any indication that, after 1973, Breeden attempted to exercise the kind of authority with respect to personnel which he had previous- ly done as "hot metal supervisor." There is also no convincing demonstration that Breeden believed he pos- sessed any of the inherent powers of office ascribed to him by Srnith.11 The most direct objective evidence tending to show that Breeden continued to be a supervisor after February 1973 is the fact that, on extra run nights, Breeden would ask for, and would be granted, varying numbers of employees to work with him, the number to be "determined" by the shift foreman. Breeden's relationship to, and his authority over, these employees is not very clear from this record. Disregarding Smith's conclusionary characterization of the relationship, it is difficult to infer that anything more than a tenuous bond existed between Breeden and the temporar- ily assigned employees. The credited testimony of Breeden and Surine on this point indicates that they would carry the master plates for the ads over to where the employees would be standing, and the employees would paste the ads down in the appropriate place on a dummy. On this record, it is difficult to conclude that Breeden had the authority contrad~ction, would sometimes speak to Smith directly about his problems. IS consistent with the conduct of an experienced leadman, although it does tend to throw into question Breeden's contention that he thou@ the makeup supervisor was his immed~ate supenor. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "responsibly to direct" these other employees. So far as can be divined, the employees would simply notify Breeden of any problems that might arise, after which he would attempt to resolve them with representatives of other departments, and presumably he would then return and instruct the employees as to how to handle the problem. Such conduct does not itself seem to be "responsible direction" which "requires the use of independent judg- ment" vis-a-vis the employees. The fact that, as Smith testified without contradiction, Breeden "established priorities based on the day of the week," does not argue to the contrary. Smith's recitation of the "priorities" makes it obvious that they were routine and, in fact, fixed ("the first thing that always comes is the daily paper, and the daily ads . . . the second thing would be the movement of the early runs."). Similarly, Smith's uncontroverted testimony that Breeden would tell an employee which ads to work on appears to be a routine duty. S. Rep. No. 105, 80th Cong., 1st Sess. 4 (1947), accompanying the 1947 amendments to the Act, stated that the committee intended to "distinguish [ ] between straw bosses, leadmen, set-up men, and other minor supervisory employees on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such actions." It has often been held that the fact that one employee is skilled and gives instructions to or makes daily assignments to other employees does not @so facto require a finding of supervisory status. Don The Beachcomber, 163 NLRB 275, 276 (1967); Lakes Concrete Industries, Inc., Milford Block & Tile Co. and Concrete Sand & Materials Co., 172 NLRB 896, 898 (1 968); N.L. R.B. v. Magnesium Casting Company, 427 F.2d 114, 117 (C.A. 1, 1970). Judged solely on the question of Breeden's authority "responsibly to direct" other employees, it may fairly be said that the record discloses nothing more than that he was a skilled and experienced leadman who, in the course of guiding the placement of ads in the newspaper, gave directions of minor import to employees assisting him in that function.12 If one were to confine analysis of this problem solely to the evidence bearing on Breeden's actual performance of his duties after February 1973 and prior to the strike, that evidence would not support a finding of supervisory status within the meaning of Section 2(11) of the Act.13 It is, rather, the badges, the indicia, and the background, hinting at retained supervisory powers, which give pause. Breeden was, by concession, a statutory supervisor prior to 1973. After that date, he continued to indicate, by checking off a printed term on his timecard, that he was a "hot metal supervisor." He continued to receive the shift premium paid only to those employees considered by Respondent to be "supervisors." He was daily shown as one of the "night supervisors" on Respondent's list of those responsible for the operation of the composing room. These emblems of supervisory status lend support to Smith's assertion that Breeden continued to possess those powers which would be considered supervisory under the Act. It has been said that "it is the existence of the power which determines the classification," Ohio Power Company v. N.LR.B., 176 F.2d 385,388 (C.A. 6, 1949). Commenting on that principle, the Court of Appeals for the First Circuit stated, "We do not take this statement to mean that mere existence in theory only of a power described in a statute is enough to make a 'supervisor.' Certainly it cannot be that an employer can make a 'supervisor' out of a rank and file employee simply by giving such an individual a title and theoretical power to perform some one or more of the supervisory functions listed in Section 2(1 I)." N.LR.B. v. Leland-Gifford Company, 200 F.2d 620, 625 (C.A. 1, 1952). That court went on to say that "a reversion to routine production work for such an extended and wholly indefinite time that the erstwhile supervisor could reason- ably be said to have become a rank and file production worker for all practical purposes, would work a loss of supervisory status even though both title and fheorefical power remain and might perhaps with an expansion in force 'be resumed at some vague time in the future." (Ibid; emphasis supplied.) Breeden explained the continuation of the emblems of office in a manner that seemed logical. He said he thought he continued to receive the premium pay because he was charged with the special responsibility of making sure that the ads were properly inserted into the newspaper. Since the record shows that there is no counterpart to Breeden's job on the other two shifts, he might well have regarded the extra payment as an acknowledgment by management that his was an unusually responsible position. His acceptance of the premium pay, and of his name on the S U ~ ~ M S O ~ ~ list, was attributed to motives certainly human enough in their implications to be understandable: "If they wanted to give me the overscale pay for doing this special job, they could put me up [on the list as a supervisor]." The fact that he continued to check his timecard after 1973 in the space set out for "hot metal supervisor" does not seem particular- ly revealing; he presumably needed some way to describe his classification, and the term "hot metal supervisor," printed on the timecard, was the one he had been using for years. After 1973, as the record shows, there was precious little "hot metal" in the department, but that did not stop Respondent from using the term; the word "supenisor" may have also become archaic without being deleted. There is no gainsaying, however, that Respondent seemed to accord Breeden some special status. In a conversation to be discussed hereafter, in December 1975, during the strike, Smith called Breeden and, according to Breeden, "told me that he was calling me up first, and said that some of the supervisors was coming back to work, and he wanted to know if I would come back." The reference to "some of the supervisors" suggests that Smith considered Breeden to fall within that category of Respondent's employees; it does not tell us, however, what Respondent at that time thought a "supervisor" was and how its '2 Similarly, the record is bare of any concrete indication that Breeden Washington Post Company), 220 NLRB 1177 (1975). cited by Respondent, "responsibly directed" the work of Surine, the only employee shown by the makes that case inapposite. More in point is East Boy Newspupers, Inc.. record :; t c : ~ worked csns:r:rn:!> -;i5 R: icden. dYb/a Contra Co~io T;me~, i Z NLk3 I i46 (:3::j, where a composinb iw,.~ '3 The very specific evidence adduced in Columbia Typographical Union leadman, who exercised considerably more authority than did Breedm prior No. 101, Inrernarionai Typographical Union of North America, AFLCIO (The to the strike, was held to be a rank-and-file employee. THE WASHINGTON POST COMPANY 495 conception of that status corresponded to the statutory definition. Breeden was a veteran of the composing room, and the efforts made by Smith to recall some of the "supervisors" in the midst of the strike may have simply been directed at those employees who were of a certain - - vintage and experience. The fact is that, despite the retention of title and pay, it does appear that, after the technological changes in the composing room, it was understood that Breeden no longer occupied the status he had formerly held. Thus, as noted above, he lost the employees assigned to him and, when he worked with employees other than Surine, it was a shifting crew of transients. Breeden, unlike the other supervisors, did not after 1973 fill out reports each night on the hours worked by employees "assigned" to him. The record shows that, in and after 1973, the other recognized supervisors received training in the new technology which permitted them to be rotated from department to department. Breeden was not so rotated. Asked about this, Smith testified, "Mr. Breeden was approached by the shift foreman, and he did not wish to take the new process training, to be rotated with the supervisors, the other supervisors in the other jobs. . . . Mr. Breeden's report to the foreman was 'I will phase on out as the department phases out.' " The foregoing seems to be a clear indication that Breeden was voluntarily relinquishing any claim to supervisory status, and by not requiring Breeden to accept the new responsibilities being placed upon the other supervisors, Respondent, it may be inferred, accepted Breeden's decision to become a supervisorial self-sacrifice to the new technology. Applying Section 2(1 I), the courts have stressed the necessity of evidence clearly identifying an employee as an active arm of management. In International Union of United Brewery, Flour, Cereal, Soft Dri& and Distillery Workers of America, AFL-CIO [Gulf Bottlers, Inc.] v. N.L.R.B., 298 F.2d 297, 303 (C.A. D.C., 1961), the court went so far as to say: It is not alone that he may hire or fire or lay off or discipline. He must do so in the interest of the employer. He must then, when acting, become in effect a part-of management, not simply alead man or straw boss. The entire work force from the president down to the messenger boy in one sense acts in the interest of the employer, as Congress well knew. Surely it contemplated some other test than is afforded by a sheerly literal reading of section 2(11). We recently spelled out various criteria to be applied by the Board in an individual, case-by-case approach. We had in mind particularly that there must be a determination of status basedkpon the "nature" of the supervisory position and "how completely the responsi- bilities of the particular position identify the holder of the position with management," all "because of the infinite possible variations in responsibilities enumer- ated in Section 2(1 I)." , -.-- - l 4 Here, Breeden's sh~ft prenuum amounted to less ~han 10 percent more than journeymen prlnters recewed. In N. L.R. B. v. Security Guard Service, Inc., 384 F.2d 143, 147, 148 (C.A. 5, 1967), the court approved the foregoing analysis, and commented on the requirement that there be a showing of both an active identification with the interests of management and management-oriented exercise of supervisory functions. In Security Guard Service, the court approved the Board's finding that guard sergeants, who earned 25 percent more pay than the guards,l4 were not statutory supervisors. The court noted: [Tlhe statute expressly insists that a supervisor 1) have authority 2) to use independent judgment 3) in performing such supervisory functions 4) in the interest of management. These latter requirements are conjunc- tive. . . . Moreover, the statutory words "responsibly to direct" are not weak or jejune but import active vigor and potential vitality. The evidence in the Security Guard case showed that the company's contract with NASA required that "a compe- tent supervisor" be on duty and in charge of each shift, and defined shift supervisors as "individuals who have demon- strated supervisory ability." The company's manual stated that each shift would be "headed by a Sergeant who shall be in charge of all security activities on his particular shift, plus such other miscellaneous operations as may be assigned to him." The manual also authorized a sergeant to invoke "immediate suspension" of employees for violation of rules. Nonetheless, the court held (at 149-150) that the paper credentials did not match the actual authority of the sergeants: The concept of supervision has some elasticity, but it must have substance and not be evanescent. Statutory supervision requires some suiting of the action to the words and the words to the action. The supervision must have both conceptual and practical aspects and must be meaningful in respect to the position occupied by the employee. Implemented intentions are integers in the formula. A supervisor may have potential powers, but theoretical or paper power will not suffice. Tables of organization and job descriptions do not vest powers. Some kinship to management, some empathic relationship between the employer and employee, must exist before the latter becomes a supervisor for the former. The natural alignment of people in their jobs gves rationality to our decision. The natural alignment of Ashrnore was not with Security's management. Security magnifies a passing suggestion, a transmitted com- plaint, a recommended discharge, and a few minor decisions into summit altitudes of genuine supervision. There was no showing, however, that Ashmore's duties gave him the feeling of control, power, or superiority that one finds in a supervisor. His title, badges, and minor decision-making power do not complete the picture of a petty panjandrum. 4% DECISIONS OF NATIONAL LABOR RELATIONS BOARD The change in the nature of Breeden's position after February 1973 leads me to believe that, thereafter, he likely no longer had "the feeling of control, power, or superiority that one finds in supervisors." When Breeden decided, as Smith testified, that he would "phase on out as the department phases out," he seems to have been surrender- ing his "natural alignment" with management. He no longer had employees directly assigned to his department; he did not attempt to exercise any of the normal kinds of supervisory disciplinary authority over employees that he had exercised in the past; he did not fill out employee time reports or rotate from department to department as the other supervisors did. The court noted in Securify Guard Service that the legislative history of Section 2(11) "justifies the standard reluctance to apply an exception broadly," 384 F.2d at 147. Applying that touchstone to these facts, and despite the title and the pay, I believe that Breeden became, prior to the strike, a statutory employee-a valuable one, but, nonetheless, an employee. This is not to say that Respondent may not have considered Breeden -to be a 5upervisorv ibr its own purposes even after February 1973. What that term means in Respondent's lexicon is uncertain on the record. The ultimate question for resolution, of course, is whether Breeden was a supervisor in the statutory sense after 1973. In pertinent cases, where- an employee was admittedly a sup&isor until a change in the nature of his duties occurred, the Board has looked to an objective appraisal of his performance thereafter in order to determine whether he continued to hold such a position. Coast Delivery Service, Inc., 172 NLRB 2268, 2273-74 (1968); M.C.C. of Florida, Inc., 224 NLRB 1519 (1976). Respondent may well have thought that Breeden continued to be a "supervisor." I am constrained to believe, however, that I must look to the change in the nature of his duties, his performance thereafter, the contrast between that performance and his prior performance as a supervisor, and the contrast between the treatment accorded Breeden and the require- ments imposed upon other acknowledged supervisors, all of which quite likely would have led Breeden to think that his "natural alignment" was not with Respondent's management.15 The problem is a close and dificult one, in my view. A forceful argument can be made that Respondent never expressly retracted the powers previously conferred upon Breeden, and, since Breeden continued to be called a "supervisor" and to be paid at a supervisory rate, Breeden necessarily remained a supervisor within the meaning of the statute. After careful consideration, however, it seems to me that the earher analysis n the more sound. Accordingly, I conclude that afier February 1973 and as of October 8, 1975, when Breeden joined the sympathy strike, he was not a supervisor within the intention of Section 2(11) of the Act. l5 1 +rrM not- that Breeden dws not appear to have exercised a great deal of statutory supervisory authority even during the time he is conceded to have been one. It is clearly inferable that, prior to 1973, Breeden had no authority to hire, transfer, suspend, lay OK, recall, promote. discharge, or reward employees. He very likely had authority to assign and "responsibly B. Atteged Threat; Alleged Discn'rmrm~tion The complaint alleges that on December 26, 1975, Smith violated Section 8(a)(1) of the Act by threatening to discontinue Breeden's overscale pay if he continued to honor the picket line. It further alleges that in February, when Breeden and Surine returned to work, Respondent violated Section 8(a)(3) and (1) by discontinuing the overscale payments, motivated by their refusal to return to work during the strike. The evidence shows that on December 26, after Breeden had been out on strike for several months, Smith called him at home. Breeden testified that Smith "told me that he was calling me up first, and said that some of the supervisors was coming back to work, and he wanted to know if I would come back." After some indecision, Breeden called Smith and told him that he would not return to work. Smith said, "Well, you know you'll lose your pay, then, if you don't come back." Breeden replied, "Well, I'll just have to lose it." Smith testified that when he called Breeden, he told him that he was "calling in all of the supervisors, to learn the new technology in the composing room, and for them to help me, with the other people that we have in the composing room." When Breeden called him back, according to Smith, Breeden said, "I've gotten too old to put up with that stuff. I'm not going to put up with it now. I'll just come back and work as a regular printer." Smith testified that he replied, "Well, I will move on, and take the next supervisor up in line, and replace you." Smith testified that nothing was said about Breeden losing pay. Choosing between the two versions is no easy undertak- ing. Breeden, who was initially nervous on the witness stand, appeared to be honest, but his memory was less than impressive. Smith was composed (as a composing room foreman should be) and seemed sincere, if rather patently a loyalist to company and cause. It is difficult for me, in the end, to believe that the Breeden I saw would have volunteered in December to "just come back and work as a regular printer" and then have given testimony that the source of the threat of loss of premium pay came from Smith rather than from his own surrender of that perquisite. Having to select, I consider Breeden's testimony to be closer to the mark. I find, accordingly, that on December 26, 1975, Smith threatened Breeden in violation of Section 8(a)(1). It should be noted, however, that the violation may be characterized as technical in nature, since it is quite possible that, at the time, Smith believed he was addressing one of his "supervisors." According to Breeden and Surine (both of whom returned to work in February), the job that they performed after their return was substantially the same as the one that they had left in October. Neither received overscale pay after their resumption of their jobs in February. Smith attributed their loss of overscale pay to a reorganization of the composing room. Explaining the to direct" employees. As Smith's testimony indicated, Breeden could not disciplme employees h~mself, but his recommenaatlons probably wert effectwe. As for grievance adjustment, it is not clear that Breeden was authorized to take any such action on his own. THE WASHINGTON POST COMPANY 497 reorganization, which occnrred during the strike, Sniith testified, "First, the early runs were shifted completely to cold type, editorial as well as advertising. Instead of having individual ads to put in a chase, everything [on the early run] was converted to paper, and a total page was made up, relieving Ereeden of all those duties of getthg individual ads to the forms." In testifying that Breeden does not hsve empioyees "who report to him in a fashion similar to that before the strike," Smith gave an explana- tion of Breeden's poststrike function: "He handles the daily cuts that he just taites over and iays on the pages. And tihe make-up peopie put the curs down."'" What makes the matter confusing is Smith's testimony that Breeden was repiaced. As set out above, he says that he told Breeden on December 26 that he would "take the next supervisor up in line, and replace you." The record does not show that anyone was "taken up" to "replace" Breeden. Smith testified, "Mr. Breeden was repiaced. His duties were ~ssigned to the hot metal-l mean I'm s o q - his duties-t'he make-up supervisor assumed his duties, due to the technology changes that had been made in the strike. . . . The only job Mr. Breeaen had left after February 16 was the cuts to the pages of the dai!y paper. He had no grievances to handle, he had no discipline problems; he worked as a regular journeyman." It thus appears that there was no replacement and that the major change in Breeden's job was an assumption by the makeup supervisor of zbstract authority which Smith believed tha: Breeden possessed prior to the strike. But the 3eed for such an assumption of authority is belied by Smith's testimony, which I believe, that the conversion of the extra runs to cold type Curing the strike made i: cr~fiecessary for employees to be zssigiled on extra run nights as they had been prior to the strike. If there are no detai!ed employees, there is no necessity that anyone "tissume" supervisory authority over them." * I infer that the reason for the ioss of prenlium pay was not the technological change as such, but more probably a perceived disloyalty on Breeden's part. Thought of as a "supervisor," he did not perform as a 'hpervisor" should. There was no basic change in Breeden's function during the strike. Based on past performance, with Smith conced- ing that he had previously permitted Breeden to ignore the onset cf creeping technology, while all the "supervisors" around him were required to keep apace, I feel sure that had Breeden returned to work in December: he would have been permitted to resume his former position without let or hindiance, without being required to learn about the new processes, and with the retention of his former "authority" (for whatever that was worth). Given Breeden's previously condoned adamance about relezrning his trade, it is a safe assumption that Smith did not intend, in December, to force Ereeden ro catch up on several years of moderniza- tion if he had returned as requested; it seems much more likely tnat Breeden wouid hive bee2 allowed to simpiy resume his former duties. It is the fzct :hat he failed to L6 Smith also testified tha? there was an opere:ional chaoge in the handl~ng of the Herblock political cartoom during the stske which decreased the dr;:ies norma!iy periormed by Ereeden. Tit recoid does not discL;c:l;e time cons~me~-by tKz! 'fcTm<: i ~ i l c ~ i s , ~ . anG .tieva.;;: to tt; s u e seems remote. " Va evidence was sdducei tc snow when anc iiow the makeup cross the line that made the difference. And even if Respondent believed Breeden to be a supervisor, a misguided decisi~n in that regard is made at an employer's peril. In my judgment, Ereeden was not a supervisor within the intendment of the Act, and a finding of violation, in view of the conclusion I have drawn as to the relationship between the loss of premium pay and the refusal to breach the picket line, must inexorably follow. The conplaint alleges that the denial of premium pay to Surine a!so constituted a separate violation of Section 8(a)(3) and (I). With respect to Surine, there is no demonstration in the record that, as the complaint alleges, Respondent "has failed and refused to pay the overscale payments to [Surine] because [he] refused to cross the picket line and return to work during the Mailers' strike." Surine's loss of pay was a consequence of, and derivative from, the decision to divest Breeden of his entitlement to such pay. Accordingly, I conclude that the loss of pay suffered by Surine was not a separate violation of the Act. However, because that loss necessarily followed from the uniawful conduct affecting Breeden, it seems appropriate to provide remedial relief to Surine. :. The Washington Post Company is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. Columbia Typographical Union No. 101, Intema- tional Typographical Union of North America, AFL-CIO, and Washington Mailers Union No. 29 are labor organiza- tions within the meaning of Seciton 2(5) of the Act. 3. By theaterling Elvin Breeden, on or about Decem- ber 26, 1975, with loss of overscale pay, Respondent violated Section 8(a)(l) of the Act. 4. By depriving Elvin Breeden of overscale pay on and after February 16, 1976, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has committed no unfair labor practices alleged in the complaint except those set out above. Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative sction designed to effectuate the policies of the Act. Having found that Respondent, on or about February 16: 1976, unlawfully divested Elvin Breeden of the overscale pay previously paid to him, I shall recommend that Respondent be required to make Breeden whole for any loss of earnings he may have suffered by reason of such discrimination against him, with interest as prescribed in Isis Ptumbing dc Heating Co., 138 NLRB 716 (1962), and supervisor was formally notified of his new authority and its precise nature. And aside from Smith's brief explanation of the conversion to cold type or. the ear!y x n s and the change in the processing of the Herblock cartoon, the rscorG ssares us 211 :'-.-;lc nf Smityi 3ccertinn that there was a ' ' t ~ t a l reorganization in the composing room, a complete change in the work. and z change in the rezzengement of the supervisors' duties." 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to reinstate Breeden's entitlement to such pay. Because such unlawful conduct resulted in a loss of overscale pay by Cecil Surine, it appears appropriate to also require that Respondent make Surine whole for the losses suffered by him, on the same terms as described above. I shall not recommend the entry of a broad cease-and- desist order, despite my finding that Section 8(a)(3) has been abridged. The violations found are marginal and minimal; it is fair to say that they were more the product of misunderstanding than of malice. Nothing in this record implies a predisposition on the part of Respondent intentionally to impinge upon the statutory rights of employees; nothing suggests a cast of mind hostile to the unions which represent those employees. Accordingly, an order prohibiting Respondent from committing like and related violations will inspire sufficient caution and should suffice. I shall also recommend that the customary notices to employees be posted. On the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section lqc) of the Act, I hereby issue the following recommended: ORDER'S Respondent, The Washington Post Company, Washing- ton, D.C., its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with loss of pay and other privileges for engaging in activity protected by Section 7 of the Act. (b) Discriminating against employees for engaging in activities protected by Section 7 of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Elvin Breeden and Cecil Surine whole in the manner described in the section of this Decision entitled "The Remedy," and reinstate their entitlement to the overscale payments previously paid to them. (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 amounts of backpay due under the terms of this recommended Order. (c) Post at its facility in Washington, D.C., copies of the attached notice marked "Appendix."le Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Responent's represen- tative, shall be posted by 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 Respondent to inswe that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint be dismissed except insofar as specific findings of violations based on those allegations have been made above. -- - - l8 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 findin~s, conclusions, and Order and all obiections thereto shall be deemed waived for all purposes. l9 In the cvcnt the Board's Order is enforced by a Judgement 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 Punuant 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 After a hearing at which all parties had the opportunity to present testimony, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT threaten or discriminate against any employee in order to discourage his support of protected concerted activities under Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL make Etvin Breeden and Cecil Surine whole for the loss of overscale payments that they suffered beginning in February 1976 and W-E WILL reinstate their right to receive such payments. THE WASHINGTON POST COMPANY