Greensboro News & Record

GREENSBORO NEWS & RECORD Greensboro News & Record, Inc. and Greensboro Printing and Graphic Communications Union, Local 319, Graphic Communications Interna- tional Union, AFL-CIO, CLC. Cases 11-CA- 12135, 11-CA-12193, and 11-CA-12263 July 29, 1988 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND CRACRAFT On September 30, 1987, Administrative Law Judge Howard I. Grossman issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Greensboro News & Record, Inc., Greensboro, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge erroneously stated that employee James Roberts was rein- stated in October 1985 rather than in October 1984 In adopting the judge's conclusion that the Respondent unlawfully warned Roberts, we do not rely on statements in the employee handbook as evidence of union animus Further, we find that the Respondent and the Union had not bargained to impasse on the subject of overtime assignment prior to the Respond- ent's unlawful unilateral assumption of control of the overtime board Ann B. Wall, Esq, for the General Counsel. Ronald A. Lindsay, Esq. (Seyforth, Shaw, Fairweather & Geraldson), of Washington, D.C., for the Respondent. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge in Case 11-CA-12135 was filed on 17 September 19861 by Greensboro Printing and Graph- I All dates are in 1986 unless otherwise specified 219 is Communications Union, Local No. 319, Graphic Com- munications International Union, AFL-CIO, CLC (the Union), and an amended charge on 23 October. The Union also filed the original charge in Case 11-CA- 12193 on 20 November, an amended charge on 2 Decem- ber, and a second amended charge on 2 January 1987. Further, the Union filed the original charge in Case 11- CA-12263 on 2 February 1987 and an amended charge on 6 March 1987. After prior issuance of two complaints, a consolidated complaint issued on 6 March 1987 It alleges that Greensboro News & Record, Inc. (Respondent or the Company) violated Section 8(a)(3) and (4) of the Nation- al Labor Relations Act (the Act) by issuing warnings to employee James L. Roberts on three occasions because of his 'union activities and because he cooperated with the National Labor Relations Board in the investigation of a prior case, testified before the Board in the case, filed charges with the Board, and cooperated in the in- vestigation of other cases Further, the consolidated complaint alleges that Re- spondent violated Section 8(a)(5) of the Act by engaging in various unilateral actions, to wit (1) assuming control of the overtime board; (2) altering the method of oper- ation of the overtime board by (a) refusing to allow sub- stitutes to work, (b) giving press assistants priority, (c) changing the journeyman to press assistant overtime ratio, and (d) changing the overtime reporting require- ments for foremen, (3) altering its break policy by first restricting breaks to two specified areas, and then to one area; (4) altering its cleanup policy; and (5) altering its vacation board and vacation policy. Finally, the consolidated complaint alleges that the Re- spondent unlawfully refused to provide the Union with information regarding the number of employees who would have had to work double shifts in order to fill the unfilled shifts in May, June, and July 1986. A hearing was held before me on this matter in Greensboro, North Carolina, on 7 and 8 April 1987. On the entire record, including briefs filed by the General Counsel and the Respondent and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION The pleadings establish that Respondent is a North Carolina corporation with a facility located at Greens- boro, North Carolina, where it subscribes to an interstate news service, publishes nationally syndicated features, advertises nationally sold products and, during the 12- month period preceding issuance of the complaint, re- ceived at its Greensboro , North Carolina facility goods and raw materials valued in excess of $50,000 directly from points located outside the State of North Carolina. The pleadings further establish that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 290 NLRB No. 32 220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED The pleadings further establish that the Union is a labor organization within the meaning of Section 2(5) of the Act. iII. THE ALLEGED DISCRIMINATORY WARNINGS AND UNILATERAL CHANGES IN BREAK POLICY A. The Prior Proceeding In a former proceeding,2 the Board found that Re- spondent violated Section 8(a)(I) of the Act by threaten- ing reprisals against employees for associating with per- sons engaged in union activities, by issuing a warning to an employee for engaging in such activities, and by un- lawful interrogation of employees.3 The Board also found that the Respondent discnmina- torily discharged employee James Roberts because of ac- tivities on behalf of the Union, thus violating Section 8(a)(3) and (1) of the Act. The Board concluded that the Respondent's asserted reason for discharging Roberts, sabotage, was pretextual, and that the reason was his "substantial and continuous union activity at the Re- spondent's plant , which include enforcing the terms of the pressmen's collective-bargaining contract and work rules, organizing in other departments, and filing unfair labor practice charges and testifying before the Board "4 The board's remedial Order, inter alia, required that the Respondent reinstate Roberts. B. The Current Allegations The facts underlying the allegations of discriminatory warnings issued to Roberts are linked to the evidence concerning the alleged unilateral changes in the Compa- ny's break policies Accordingly, these matters will be considered together C. Roberts' Renewed Union Activities Roberts was reinstated in October 19855 and, as presi- dent of the Union, resumed his union activities. A few months after reinstatement, while filing a grievance, Roberts informed Production Director Merrell B. Staf- ford that he intended to continue his efforts to organize the newspaper. Roberts concentrated on Respondent's approximately 200-250 mailroom employees 6 These employees were represented by another union, but only 20 were union members according to Roberts, and there was no collec- tive-bargaining agreement. During the year preceding the hearing in this matter, Roberts talked to 20-30 mail- room employees, principally during lunchbreaks. He 2 Greensboro Newt Co, 272 NLRB 135 (1984) Although the name of Respondent is not exactly the same as the name in the former proceeding, the fact that the same Employer is involved is established by the parties' situplation that the discnmmatee in the prior case, James Roberts, was reinstated by Respondent here in compliance with the Board's prior Order (Jt Exh 33), and by the testimony of witnesses for the General Counsel (Roberts) and the Respondent (Richard Hendricks) a Ibid 4 Id , 272 NLRB at 143 s Jt Exh 33 Roberts estimated 200 mailroom employees, although Mailroom Su- perintendent Don Lister said there were 250 originally teed to get the mailroom employees to join his union. However, they expressed a preference for the Teamsters, and Roberts continued to talk with them thereafter. A notice was posted in the mailroom in Octo- ber 1986 regarding a Teamsters meeting Production Di- rector Stafford was aware of the Teamsters' organizing effort, and discussed the matter with his supervisors. The Teamsters were organizing at the time of the hearing in this matter. D Prior Restrictions on Breaks by Pressroom Employees The General Counsel adduced evidence that Roberts was warned against going into the mailroom and the caf- eteria. Similar evidence was elicited in the former pro- ceeding. Thus, the Respondent posted a notice in 1982 "that no one from the pressroom could go into the mail- room or any other department However, when Roberts complained about it, the notice was taken down." In the instant proceeding, Former Vice President for Administration Richard Hendricks agreed that the notice had been "taken down," but also asserted that a concom- itant "agreement" with the Union limited the withdrawal of the restriction to pressroom employees working in the reel room, i.e., other pressroom employees were still re- stricted to the "quiet room." Although the issue is not crucial in this proceeding, I note the inconsistency in Hendricks' contention that a notice assertedly still appli- cable to some pressroom employees was nonetheless re- moved. For this reason, and because Hendricks' testimo- ny is contrary to the Board's finding in the former case, I do not credit Hendricks on this issue 8 E. The October Conversation and Letter to Roberts 1. Summary of the evidence Mailroom Superintendent Don Lister testified that he noticed "pressroom employees" coming into the mail- room and its breakroom "on a regular basis" in October 1986. He asserted concern that "pressmen" with ink on "their" uniforms were soiling seats in the mailroom breakroom, and thus staining the clothes of mailroom employees, most of whom did not wear uniforms. Ac- cording to Lister, he complained about this in mid-Octo- ' Greensboro News Co, 272 NLRB at 140 The notice , dated 19 January 1982, is in evidence in this proceeding and reads as follows TO PRESSROOM EMPLOYEES Because of the noise in the Press Room, employees working there have been allowed and recommended to rotate in leaving the Press Room every 20 or 30 minutes They can spend a few minutes in the "quiet room," or go to the canteen Some Press Room employees have developed a habit of spending such break time in other areas of Company operations, talking to em- ployees in such departments This not only makes it difficult for Press foremen to locate Press employees if they are needed suddenly, but it also distracts the workers of other departments to have Press Room employees appear at odd times in areas other than their own In the future, Pressmen taking a noise break will restrict them- selves to the "quiet room" or the Canteen [R Exh 12] e The administrative law judge in the former proceeding made findings contrary to Hendricks' testimony, and specifically discredited him at one point (272 NLRB 140 fn 19) GREENSBORO NEWS & RECORD ber to Production Director Stafford. Stafford asked who was in the mailroom, and Lister replied that Roberts was ,.one of them." Stafford stated that he would have Press- room Supervisor Clayton Patterson speak to Roberts about the matter. Pressroom Superintendent Dennis Clark testified that Lister came to him in October and asked that Clark's "people" eat their lunch and take breaks in their own breakroom because of ink on their uniforms and limited space in the mailroom. Clark's testimony about this con- versation does not mention Roberts. According to Clark, he talked to Stafford about the matter, and the latter said he would bring it up at a staff meeting. Production Director Stafford's description of his con- versation with Lister omits reference to any employees other than Roberts, or to the regularity of the alleged in- fractions According to Stafford, all that Lister said was that Roberts had taken a break in the mailroom; the two supervisors agreed to bring the matter up at a staff meet- ing. Stafford contended that he had no knowledge of em- ployees other than Roberts taking breaks outside the pressroom area. Roberts testified that, on 30 October 1986, Pressroom Supervisor Clayton Patterson told him that he was spending too much time in the mailroom. Roberts replied that he did not spend any more time there than did other employees, and asked whether Patterson was ordering him not to go into the mailroom. Patterson replied in the negative. Roberts then got Union Secretary-Treasurer William D. Seward to join the conversation, and asked Patterson to repeat what he had said. Patterson did so. Seward's testimony corroborates Roberts. Patterson did not testify. Roberts had a conversation the next day, 31 October, with Production Director Stafford Roberts was on the job in the pressroom about 8:30 a.m He testified that Stafford came up to him and said that he had been warned the day before not to go into the mailroom but, nonetheless, he had had lunch there. The production di- rector stated that he was concerned about the possibility of Roberts getting ink on something. Roberts replied that Stafford had never been concerned about this problem before. Stafford remarked that Roberts could go to the cafeteria or the mailroom lunch area if he changed clothes. Roberts objected that he would have to change clothes twice, and that this had never previously been re- quired. Stafford said that he might have to discipline Roberts, at which point the union president got Union Chairman Jerry Holsclaw to join the conversation, which resumed in the pressroom breakroom At Robert's request, Stafford repeated what he had said, and Holsclaw stated that the Company was setting up Roberts for another discharge. According to Roberts, he told Stafford that the latter was simply trying to stop Roberts from talking to other employees about the Union Roberts asked whether the new policy applied to everybody or just to him. According to Roberts, the production director replied that it applied only to Rob- erts, because he was the only one going "down there." Various statements about lawsuits and threats of lawsuits followed. 221 Holsclaw corroborated Roberts, regarding his own comment that the Company was about to discharge Rob- erts, Stafford's threat of discipline, and his statement that the policy applied only to Roberts. Stafford testified that he talked with Roberts about keeping out of the mailroom breakroom or the cafeteria wearing a dirty uniform. He denied that he was con- cerned with Roberts' conversations with other employ- ees about the Union. Subsequent to the conversation, Stafford caused a letter to be delivered to Roberts summarizing Stafford's version of it.9 On direct examination , Stafford was asked the following question and answered as indicated: Q. Now was this something that you were ad- dressing just to Mr. Roberts or to all pressroom em- ployees or-why don't you explain what you were trying to do with this letter. A. Well, this particular letter was to Mr. Roberts. I mean there's no doubt about it. It had his name on it and he's the one that did it and it was addressed to him. Later in his testimony Stafford denied that he told Rob- erts during the conversation that the restriction was in- tended to apply only to him 2. Factual analysis Mailroom Superintendent Lister's testimony about "pressroom employees" coming into his department on a "regular basis," and Pressroom Superintendent Clark's testimony about Lister's complaints concerning Clark's "people," show that Lister at least professed concern about more than one pressroom employee I credit his testimony, not contradicted by Stafford, that he told the latter that Roberts was "one of them." The letter, dated 31 October 1986, reads as follows This letter is just a reminder regarding our conversation today and Pat Patterson, Supervisor, talk with you yesterday I chose to talk with you today because after Pat talked to you, before lunch yesterday you decided to have lunch in the mailroom I explained to you the purpose of press breakrooms and why we asked you to use it for lunch, and not the mailrooms Pressmen cannot help but get ink and grease on their uniforms during work and that is why we supply the uniforms When you lunch in another area you leave ink and grease on the chairs and fellow employees get this on their street clothing I mentioned to you also, if you changed out of your uniform you were welcome to have lunch in the mailroom In my 2 years at the News & Record I have not seen other press- men have lunch in the cafeteria or Mailroom breakroom They may have, but I have not seen them or has it been brought to my atten- tion You said i am singling you out, because of the grievance with the Labor Board This is not the case We do not want the pressmen to start using other breakrooms because of the reasons given Your threat of a law suit was not necessary over this matter I want to emphasize we are not restricting your movements if you choose to change your cloths [sic) you may have lunch in the Mail- room breakroom I hope you understand our position and the common courtesy to other employees If you need further clarification, please contact me [Jt Exh 5] Stafford stated that the letter was not "intended to be a warning," and was not placed in Roberts' personnel file 222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I credit Robert's and Holsclaw's consistent testimony that Stafford threatened discipline of Roberts, and that Holsclaw said the Company was trying to set up Roberts for discharge. Further, I credit Roberts' and Holsclaw's averments that Stafford said the new policy applied only to Roberts because he was the only one going "down there." Because Holsclaw was a current employee of Re- spondent his testimony is unlikely to have been fabricat- ed 10 1 do not credit Stafford's denial that he said this in the conversation because of the greater probative weight of Roberts' and Holsclaw's testimony. Further, I note the contradiction in Stafford's assertions about what he said during the conversation, contrasted with his testimony that the letter was addressed to Roberts, not "to all pressroom employees." Stafford's denial in the letter that he was "singling out" Roberts was simply an attempt to gloss over what he actually said. On 10 November 1986, Roberts filed a grievance over the incident, and requested that the Company withdraw its action," but Stafford refused to do so. F Roberts' Visit to the Mailroom in December and Stafford's Second Letter Roberts testified that he went to the mailroom break- room on 11 December to make a purchase from one of the vending machines, and paused on the way back. The evidence is conflicting on where he stopped. Respondent submitted two photographs taken within the mailroom showing a door leading to the reelroom.' 2 Roberts testified with the assistance of one of these pho- tographs (R. Exh. 23) Immediately to the right of the door, approximately 3 feet from the wall abutting the door, is a vertical piece of machinery at least as tall as the door Immediately to the right of this piece of ma- chinery is another device resting on a bar, which in turn appears to be resting on a cylindrical turntable. The bar seems to be about 4 or 5 inches high, and extends almost back to the wall. Roberts testified that he paused "just a couple of feet" to the right of the door, and was watch- ing some employees operate a machine. There was a skid of papers to the left of the door. According to Roberts, Mailroom Superintendent Lister was looking at him "through the window in his glass on a higher level." Lister came down and said that Roberts was "bothering" people by watching them work and requested him to leave. Roberts denied that he was bothering anybody, and asked why Lister said nothing to other employees who came into the mailroom. Lister as- serted that Roberts was the only one who came there, and Roberts denied it. Roberts then returned to the pressroom and spoke to two pressmen,' 3 who told him that they had been in the mailroom themselves that morning, one of them twice Lister agrees that he had a conversation with Roberts, but his testimony is ambiguous on Roberts' location Al- though Lister appears to say that Roberts was initially 10 Bohemia. Inc, 266 NLRB 761, 764 fn 13 (1983) 11 Jt Exh 10 12 R Exhs 22 and 23 The reelroom was underneath the pressroom The mailroom breakroorn was formerly located next to the reel room, but was later moved to the opposite side of the mailroom 13 Roy Marsh and Ronnie Meyers near the door, he contends that Roberts later was "stand- ing away from the wall in the flow of traffic." Lister told Roberts that he was standing "in the middle of the floor" interfering with employees trying to get to work during a shift change. The superintendent agreed that he did not see Roberts talking with anybody. He also assert- ed that the mailroom employees, most of whom are female, do not like being watched and had complained about obscenities yelled through a "window" by press- room employees. Because Roberts testified with the assistance of Re- spondent's photograph, and because of uncertainty in Lister's testimony, I credit Roberts' testimony as to his location. On the basis of Respondent's Exhibit 23 and Roberts' credited testimony, there is no way in which Roberts could have been in the "flow of traffic." The next day Stafford gave Roberts another letter.14 G. Applicability of Stafford's First Two Letters Roberts contended that Stafford 's first two letters ap- plied only to him despite the reference to "other press- men" in the second letter . The matter was never brought up at employee meetings by Pressroom Superintendent Clark, and Roberts' fellow employees believed that Rob- erts was being singled out. "The same thing happened when I was fired before," Roberts testified . "It started with them barring me from going to other departments and the guys felt like they were doing the same thing again." Roberts denied that the other pressmen believed they were affected by the letters . As Roberts put it, if Stafford had wanted "a rule for everybody, he would have posted it." H. The Warning to Roberts on 8 January 1987 According to Roberts, Production Director Stafford and Pressroom Superintendent Clark approached him 14 Stafford's letter, dated 12 December 1986, reads in relevant part This letter is another reminder regarding your visits to other de- partments during your working hours and rest periods Yesterday at approximately 2 p m you were in the Mailroom, and I believe it was your rest period, because you were there about 10 minutes I am sure you are completely aware of taking rest periods in the Pressroom breakroom I will explain it again Pressmen are to take their rest periods in the Pressroom breakroom or they can go to the cafeteria and return quickly By following this procedure the Su- pervisor can locate press employees if they are needed suddenly By you standing in the middle of the Mailroom floor with your arms crossed and having Mailroom employees go around you to per- form their work is distracting at best Jim the other pressmen understand our reasoning of the break- room and lunchroom periods Why do you persist on being differ- ent Patterson and myself have verbally spoken to you so you could hear it This is my second letter to you so can see it If you decide to continue on this course of action I will have no other recourse but to take disciplinary action This disciplinary action could lead to you terminating yourself from the Greensboro News & Record Read this letter and the one dated 10/31/86 very carefully and re- spect our position in this matter If you do not understand it or need clarification, please see me Also, please do not test us by asking other pressmen to violate this procedure I emphasize we are not restricting your movements, but ask you as an employee to follow these simple procedures as your fellow em- ployees do [1t Exh 61 GREENSBORO NEWS & RECORD while he was at work on 8 January . Stafford asked whether he had eaten lunch in the cafeteria that day, and Roberts replied affirmatively . Roberts added that he had done so for 10 years, and did not think that the warnings applied "to that." The production supervisor said he was concerned about Roberts getting ink on something, and added that he was going to have to discipline Roberts. The latter then got Union Secretary -Treasurer Seward to join the conversation. Roberts asked Stafford whether he had any complaints about Roberts or any other pressman getting ink on any- thing. Stafford replied that he had no complaints but wanted to make sure that there was none. Roberts re- minded Stafford that only a few months before, Stafford had been having lunch in the cafeteria with the compos- ing room superintendent when Roberts came in to get something. Stafford invited Roberts "to sit down and have lunch with them," and made a "big joke" of it when Roberts refused . Roberts testified . that Stafford professed not to remember the invitation. The produc- tion director said that he was going to post a notice stat- ing that no pressroom employee could go • into 'other de- partments or eat in the cafeteria . Roberts protested that this was a "change of conditions." Secretary-Treasurer Seward corroborated Roberts' testimony. On the same day , 8 January, Stafford delivered a letter to Roberts that Stafford considered to be the first specif- ic warning. 15 A few days later, Roberts filed a grievance on the matter. 1 e Stafford does not contradict Roberts , and omits any reference to the asserted invitation from Stafford to Rob- erts to "sit down" for lunch with him in the cafeteria. In one portion of the transcript, Stafford appears to say that he had had no conversations about lunchbreaks with Roberts prior to 8 January when he warned Roberts for violating prior instructions. 17 I. Respondent's New Policy on 9 January 1987 Regarding Lunch and Breaks-Prior Policy On 9 January 1987, the day after the last Roberts-Staf- ford conversation, Respondent posted a notice that all pressroom employees were to take lunch periods and 15 The letter reads This is a written warning regarding your actions today You had lunch in the cafeteria when specifically we asked you to use the Pressroom breakroom for this purpose We explained our reasons for doing so verbally and in writing twice If you continue on this course, knowing our position, you leave us no other choice but to take further disciplinary action [Jt Exh 7] is Jt Exh 11 17 The transcript of Stafford's testimony on direct examination reads at one point as follows Q Do you recall having any conversations with Mr Roberts or any other communications with Mr Roberts between December 12, 1986 and prior to January 8, 1987 regarding lunches or breaks" A Lunch, yes Q Prior to January 8, 19871 A I believe it was on January 8th Q So-but-so to answer my question , prior to January 8th you didn't have any- A No Q --conversations with him Okay 223 breaks in the pressroom breakroom , with indicated ex- ceptions. 18 The General Counsel elicited a large body of evidence that pressroom employees and others with and without ink on them customarily ate in the cafeteria and took breaks in the mailroom breakroom . According to Rob- erts, prior to the 1982 notice , 19 pressroom employees ate and took breaks wherever they wished-in the mail- room, the advertising department , or the cafeteria Other employees such as electricians, machinists, and mainte- nance men also wear uniforms , work on presses, and get as dirty as the pressmen . Supervisors occasionally get dirty when working as part of a crew . 20 These employ- ees customarily took breaks in the mailroom breakroom or the cafeteria . Roberts identified two such employ- ees.21 Union Chairman Jerry Holsclaw testified that two maintenance men were eating lunch in the cafeteria with dirty uniforms on the same day that they had been work- ing in the pressroom. Holsclaw himself and other em- ployees22 customarily took breaks in the mailroom breakroom, and were seen by various supervisors.23 Union Secretary-Treasurer William D. Seward af- firmed that he ate in the mailroom breakroom, and on one occasion met Production Director Stafford, who spoke with him briefly . Seward testified that "just about everybody at one time or another on the press crew's been in there," with the knowledge of various supervi- sors.24 Press apprentice Roy Marsh testified that there was no rule against eating in the cafeteria with the pressman's uniform on prior to 9 January 1987. He identified three supervisors25 who saw him eating there, and three others26 who observed him taking breaks in the mail- 18 The notice , signed by Pressroom Superintendent Dennis Clark, reads This memo is to remind all pressroom employees that all lunch pe- riods and breaks are to be taken in the pressroom breakroom When on a break you must be readily available in the event of press problems The reason for this is that you may have ink or grease on your uniforms that could transfer to the chairs in the cafeteria and ruin somebody's clothes inadvertently You are welcome to have lunch in other areas if you change into your street clothes If you go to the cafeteria for food or drink items, please be careful not to track ink on the floors We hope you understand this common courtesy to other employ- ees Your cooperation is expected and appreciated [Jt Exh 4] 19 Supra, fn 7 20 According to Roberts , it is impossible to tell a dirty uniform from a clean one by looking at it because the cleaning process does not remove all the stains 2i Doug Wells and Roy Marsh 22 Roy Marsh, Dewey Seward , and Dennis Kiker were named 23 Holsclaw identified Troy Parish , Jimmy Davis, and Hudson Owens (retired) as supervisors who knew he was eating in the mailroom break- room or the cafeteria 24 Seward identified Jimmy Davis as a supervisor, "Duncan," and "Cublan " 25 Harold Copeland, Bill Duncan, and Kenneth Burd 26 Mailroom Superintendent Don Lister, Jimmy Davis, and Dan Wil- kins 224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD room breakroom, sometimes two or three times a day without protest. Marsh identified employees27 who spent "large chunks of their breaks ... four or five minutes, in the mailroom breakroom."28 Respondent did not elicit testimony from any of the persons asserted to be supervisors or introduce evidence contradicting their asserted supervisory status. I credit the testimony of the General Counsel's witnesses Finally, the 1982 company rule, taken down after the Union's protest, itself permitted pressmen to eat in the "canteen," i.e., the cafeteria 29 Production Director Stafford testified that he "coun- selled" an employee whom he found eating in the paper handlers' area. This employee, unlike Roberts, was not given a warning because Roberts had previously been "counselled." J. Conclusions With Respect to the Alleged Discrimination It is obvious that Stafford's statements and letters to Roberts on 31 October, and his letter on 12 December, constituted warnings despite Stafford's denial. Thus, on 31 October, Stafford told Roberts that he had been warned by a supervisor the prior day about visiting the mailroom, and that Stafford might have to discipline Roberts. Stafford's second letter, on 12 December, con- tains an explicit reference to the possibility of discipli- nary action. Respondent concedes that the third letter was a warning. Roberts resumed his union activities soon after his re- instatement , and Respondent had knowledge of those ac- tivities. In the prior proceeding, the Board concluded that Respondent's maintenance of an employee handbook stating that union membership was not necessary for its employees constituted evidence of antiunion animus.30 The Company continues to maintain an employee hand- book with a similar statement,3I and I reach the same conclusion here. Respondent's argument that Roberts was barred from visiting the mailroom and eating in the cafeteria because of ink on his uniform is pretextual because of the dispar- ate treatment of other employees with ink who were not similarly restricted. Respondent's knowledge of the activities of these other employees is clear. Production Director Stafford saw Seward in the mailroom breakroom and spoke with him-apparently without criticism. Stafford in fact invit- ed Union President Roberts to have lunch with him in the cafeteria The pleadings establish that Stafford and 27 Doug Wells, Ronnie Myers, and William D Seward 28 Respondent attempted to distinguish between employees who spent several minutes in the mailroom breakroom, and those who just "walked through " 29 Supra, fn 7 3° Greensboro News Co, 272 NLRB at 136, 143 31 The statement reads We do not believe our people benefit from representation by a labor union While we respect the right of individuals to decide whether they wish to belong to a union, we firmly believe that the best interest of our people can be served without third-party interfer- ence We greatly value the ability of our managers and supervisors to work with our people individually to solve problems and to pro- vide opportunity for advancement [it Exh 32, p 17] Don Lister, named by Union Official Seward as an ob- server of mailroom breaks by other pressroom employ- ees, are supervisors within the meaning of the Act,32 and I make the same conclusion with respect to the other employees named as supervisors by the General Coun- sel's witnesses. The knowledge of such individuals con- cerning the break activities of other employees is attrib- utable to Respondent under established law.33 The fact that Respondent's new break policy on 9 Jan- uary was intended as a mask for its discrimination against Roberts is evidenced by the inconsistent provisions in the new policy. In addition to its asserted concern about inky uniforms, Respondent said in the notice that press- room employees had to be restricted to the pressroom breakroom because of the need to have them "readily available in the event of press problems."34 But the same notice states that pressroom employees may eat in the cafeteria if they change into street clothes. What happens if a press breaks down while employees are eating in the cafeteria in their street clothes? How are they to be con- tacted? Are they expected to rush back to the pressroom and handle the problem in their street clothes? Take ad- ditional time to change back into their uniforms? The clothes-changing exception to the new rule was simply Respondent's attempt to make its new rule seem reasona- ble. The rationale is contradicted by Respondent's assert- ed need to have pressroom employees readily available to handle problems, and by the prior policy of allowing employees with inky uniforms to have free access to other locations in the plant. Because of the pretextual nature of the reasons ad- vanced by Respondent for its three warnings to Roberts, Respondent's animus, and Roberts' union activities and prior testimony before the Board, I conclude that the warnings issued because of those activities, and that Re- spondent thereby committed unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act.31; K The Alleged Unilateral Change in Break Policy The consolidated complaint alleges that on or about 11 December 1986 Respondent unilaterally altered its break policy governing pressroom employees by restricting breaks to two specified areas and, on or about 8 January 1987, further altered its policy by restricting breaks to one specified area.36 The only evidence with respect to the first allegation is that listed above in connection with the discriminatory warning issued to Roberts. This evi- dence shows that the new rule applied only to Roberts and, accordingly, could not have been a rule applying to the other pressmen. Indeed, the fact that it did not apply to them is the reason for the finding that they were dis- parately treated and, accordingly, that Roberts was dis- criminatonly treated This complaint allegation is incon- 32 G C Exhs l(aa), par 8 and I(cc), par 8 33 Stafford's testimony about "counselling" an employee is insufficient to offset the weight of the General Counsel's evidence 34 Supra, fn 18 "Alert Medical Transport, 276 NLRB 631 (1985), Ceroci Wire & Cable, 274 NLRB 888 (1985) 36 G C Exh l(aa), pars 15(f) and (g) GREENSBORO NEWS & RECORD ststent with the allegation of discrimination in December, and I shall recommend that it be dismissed. The second allegation is not precisely accurate Re- spondent's notice on 9 January restricted pressroom em- ployees to all breaks in the pressroom breakroom unless they changed to street clothes. This, however , was a uni- lateral change in break policy and, although not precise- ly alleged , was fully litigated . I shall consider the legal significance of this change hereinafter in connection with the other allegations of unilateral changes. IV. THE ALLEGED VIOLATIONS OF SECTION 8(A)(5) A. The Contractual Relationship Between the Parties The Union has represented the Company's pressroom employees since 1966 and has entered into successive collective-bargaining agreements with the Company.37 The record contains a copy of the agreement preceding the last agreement .38 The parties engaged in bargaining for a new contract from January 1981 to 13 May 1983.39 On that date they entered into a new agreement termi- nating on 31 December 1983.40 The parties stipulated that, in an attempt to reach a new agreement, they "bargained to impasse sometime prior to June 1985." The testimony of Union President Roberts and former Vice President for Administration Richard Hendricks establishes that the parties reached impasse over the Company's demand that the Company's president be the final arbitrator in all grievance proceed- ings. Although there is reference to other issues prior to impasse, none is specified. B. History of the Overtime Board As noted, the complaint alleges that Respondent vio- lated the Act by unilateral assumption of control of the overtime board . The overtime board was a method of of- fering overtime to employees on a departmental seniority basis. Under the Union's operation, it was a bulletin board on which employees were given a "mark" each time they were offered overtime , whether they accepted it. As new overtime became available, the employee with the least number of "marks" was offered the additional work. Except for a brief period in 1981 , the overtime board was run by the Union . Union Chairman Jerry Holsclaw affirmed that the Union went through the "whole board," by seniority, in assigning overtime. Union Secre- tary-Treasurer Seward testified that the Union assessed a fine against an employee rejecting overtime. According to Seward, when the Union was operating without a contract in 1981 , union counsel advised it that the assess- ments may have been unlawful . Accordingly, they were discontinued. Despite the fines, union witnesses contended that over- time work was voluntary except for work at the end of a shift. The Company contended that a "reasonable" 37 G C Exhs 1(aa) and 1(cc) 38 R Exh I i The first page of the contract is missing and the record thus does not disclose the exact term 39 Testimony of former Vice President for Administration Richard Hendricks 40 Jt Exh I 225 amount of overtime was mandatory , but imposed no pen- alties on employees who refused overtime . The expired contract was silent on this point.4 t During the negotiations for a new contract in 1981, the operation of the overtime board was taken over by the Company for about a month . According to Union Secretary-Treasurer Seward , the Company posted "work rules" during the period in 1981 when no contract was in effect and, after discussion with union counsel , the Union suggested that the Company operate the board. Union President Roberts testified that the Union's offer was a negotiating tactic that it thought would impose a burden on the Company. According to Roberts and Seward, a short time later , the Company asked the Union to take it back because it was- a "headache ," the foreman did not have time to run it, and the employees complained about the way the Company was operating it. Production Di- rector Stafford , who was not employed by Respondent in 1981 , asserted that the Company "took it away" from the Union. Former Vice President for Administration Hendricks agreed with the Union's chronology , but contended that it was the Union that asked for return of the Board, and that the Company agreed because , supposedly, the Union promised to run it fairly . However, Hendricks conceded that the Company's operation of the board caused "the foremen a lot of time . . . on the phone." I credit the accounts of Seward and Roberts as to the circumstances in which the board was briefly given to the Company by the Union in 1981 and then returned. C. Discussions in 1986 and the Company's Assumption of Control of the Overtime Board The Company had no complaints through 1985 about the Union's supply of employees willing to work over- time, according to former Vice President for Administra- tion Hendricks. However, in 1986, the Company's busi- ness increased significantly , and staffing became a prob- lem. A series of conversations about the overtime board took place in 1986 between the Company and the Union. The first discussion took place on 22 April 1986. Pro- duction Director Stafford said that the men were not working enough overtime . Roberts replied that the Com- pany needed to hire more employees because of all the work and the fact that the existing employees had to work double and sometimes triple shifts. Stafford said that the Company might have to take the overtime board away from the Union and discipline the union chairman. Roberts objected to both suggestions . Stafford's testimo- ny does not disagree with this account and adds that he asked the Union for suggestions on how to fill the vacant positions. Another discussion took place in July , and the parties asserted basically the same arguments . The Company said that the "overtime positions were not being filled." The Union suggested that the Company hire more em- ployees and utilize "substitutes," i.e., qualified pressmen from outside the bargaining unit . Stafford testified that the Union's suggestions were "silly." However, he ac- 41 R Exh 11, art VII 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD knowledged that the Company had three pressroom va- cancies in July 1986. According to Roberts, Stafford again said that the Company might have to take the overtime board away from the Union. He gave the Union a few more weeks to come up with new ideas. An additional discussion took place on 15 August, and the parties asserted the same basic positions Stafford an- nounced that the Company was taking operation of the overtime board away from the Union, and Roberts ob- jected. The Company posted a notice on 21 August an- nouncing the new pohcy.42 On 5 September, the Union asked for return of the board, and the Company refused. According to Stafford, he told the union representatives that the Company's as- sumption of control of the board was a "past practice." Under the Company's operation of the system, it changed from a bulletin board to a looseleaf notebook. Production Director Stafford conceded that the Compa- ny does not call all employees for overtime according to the seniority system and their "marks," but only those employees whom it knows, through expenence, will be willing to work.43 Pressroom Superintendent Dennis Clark affirmed that under the Union's operation of the overtime board, the Company would be "short-handed" on the night shift be- cause overtime positions had not been filled, and the Company did not find this out until late in the day. Pro- duction Director Stafford agreed, and asserted, that under the Company's operation of the overtime system it knows by 2 p m each day which positions will be filled. However, Stafford and Pressroom Superintendent Clark conceded that the Company never asked the Union to give the Company notice of overtime staffing problems at any particular time of the day, nor did Clark complain to the Union about personnel shortages that occurred on one particular day.44 Clark said that the problem of shortages of personnel on overtime had "decreased" since the Company took over, but that the Company still worked "short-handed" at times. Roberts testified that he informed Stafford on 5 42 The notice reads Beginning Friday, August 22, 1986 the office, in an effort to fill the overtime positions available, will hire all personnel to work over- time The following procedure will be used Each shift the Supervisor will post a list with the number of over- time positions to be filled for the next day or nights run This list will be posted by 1200 noon on the dayside, and 1200 midnight on the night side Anyone desiring to claim an overtime shift must sign up by 1200 midnight for a day shift or 1200 noon for a night shift If a person is off they may call the Supervisor if they want to be put on the list, At 1200 the Supervisor will fill the overtime positions "Round Robin" from the list of personnel signed up If there are more positions than personnel signed up to fill them the Supervisor will call anyone he feels may work to fill these posi- tions After 1200 the Supervisor will notify those signed up for work if they are needed and at what time If you haven't been contacted by 2.00 you may assume you were not needed, and you will not be charged for working or turning down a shift [Jt Exh 3] 49 Stafford contended that the Union did the same thing, but could not identify the employee who assertedly told him this I do not credit this aspect of Stafford's testimony The General Counsel conceded that the failure of the Company to call all employees according to their seniority ranking and "marks" was not a separate complaint allegation 4 4 R Exh 26 September that the pressroom was still working "short a lot of men" on every shift. D. The Alleged Unilateral Refusal to Allow Substitutes to Work 1. Contractual provisions regarding substitutes- past practice on area and traveling substitutes The last two contracts barred overtime work by regu- lar employees if competent substitutes were available at straight time rates.45 However, according to Union President Roberts, this provision was not literally en- forced. The Union made a distinction between area sub- stitutes, those living nearby with full-time jobs else- where, and traveling substitutes, individuals from other locations looking for new full-time jobs. For what the Union considered to be equitable reasons, it gave prefer- ence to the traveling substitutes, and applied the contrac- tual ban on overtime by regular employees only when traveling substitutes were available. Traveling substitutes were given regular work if possible. If only area substi- tutes were available, the ban did not apply, and regular employees were given overtime work in preference to straight time work by area substitutes. Roberts testified that this had been the practice for at least 10 years, that the Company did not question it, and that he did not recall any conversation about the practice with former Vice President for Administration Hendricks. The latter asserted that from 1979 to 1985, the Company did not "contend" that the overtime ban applied only to travel- ing substitutes. However, Hendricks did not contradict Roberts' testimony that the Company did not question the Union's application of this contractual provision. Ac- cordingly, I credit Roberts that this was the Union's practice. The Company contends that it was unaware of the dis- tinction between area and traveling substitutes. However, in a September 1986 discussion with Roberts, Stafford did not assert surprise at Roberts' advocacy of the policy, but merely argued that it was "dead wrong." It is highly unlikely that the Company did not know the home addresses of the substitutes it employed, and thus that the Union's policy was to give preference to travel- ing substitutes. Accordingly, I do not accept the Compa- ny's position on this issue. The Union's president stated that no substitutes had worked during the 2 years prior to the hearing, i.e., during the period in which, according to Hendricks, the Company had no overtime staffing problems. However, before that time, hiring of substitutes happened "a lot," according to Roberts. 2 Summary of the evidence on the alleged change a. The Union's position As indicated above, the Union suggested hiring of sub- stitutes during its 1986 meetings with the Company as one solution of the overtime staffing problem. Roberts testified that during the 15 August meeting of the parties, 45 Jt Exh 1, sec 12 01, R Exh 11, sec 13 01 GREENSBORO NEWS & RECORD he again suggested this solution, and told Stafford that he thought the Union could get substitutes to cover part of the overtime. Stafford replied that he was not interest- ed, according to Roberts. The Union's president did not supply specific names because of this answer. On 29 August, the Union filed a grievance protesting the asserted fact that since 22 August the Company "re- fused to allow the Union to give available work to sub- stitutes in violation of established conditions of employ- ment."46 Roberts testified that the Union repeated the sugges- tion during a meeting on 5 September. Stafford then agreed to hire only "area" substitutes, and to give them work prior to any overtime to regular employees The Union objected to "another change after they'd already made a change." On 18 November, Stafford sent Roberts a letter stating that the Company was willing to hire substitutes and was waiting to hear from the Union.47 At a meeting on 10 December, Stafford originally told Roberts that substi- tutes could be hired as they had in the past, according to Roberts. However, Press Superintendent Clark objected, the Company "caucused," and Stafford then changed his mind and said that the Company would not hire substi- tutes. b. The Company's position Stafford testified that when the Union suggested sub- stitutes during the July meeting between the parties, Stafford replied that he did not wish to hire them at that time, but would not "rule it out" in the future-he pre- ferred to keep overtime within the unit However, Staf- ford denied that he ever refused to hire a substitute spe- cifically proposed by the Union. With respect to the September meeting on the issue, as described above, Stafford told Roberts that the Union was "dead wrong" in wanting overtime for regular em- ployees before straight time for area substitutes-this was contrary to the contractual language . Stafford repeated his preference for overtime within the unit rather than substitutes. However, Stafford asserted the Company would hire a substitute named by the Union "with the understanding that they know that the unit is going to lose their overtime " Neither Stafford nor Pressroom Superintendent Dennis Clark discussed Roberts' testimony that on 10 December the Company first agreed to continue the former method of hiring substitutes and then, after a caucus, refused to hire them at all. 3. Factual analysis The complaint alleges that Respondent unilaterally al- tered the method of operation of the overtime board by refusing to allow substitutes to work.48 It is clear that the Company had a history of hiring substitutes and that the contractual ban on overtime work by regular employees when substitutes were avail- able for straight time work was, in practice, applied only to traveling substitutes. When only area substitutes were 227 available, regular employees were first offered overtime work. Roberts' testimony that the Company refused to hire substitutes in July is corroborated by Stafford, despite the latter's assertion that he would not rule it out in the future. In the middle of 1986, the Company asserted will- ingness to hire substitutes, but only on condition that area substitutes get work in preference to overtime for regular employees-contrary to past practice and the way in which the overtime board had been run. Further, crediting Roberts' uncontradicted testimony about the December meeting, the Company finally returned to its original position that it would not hire substitutes. Re- spondent's argument that it never refused to hire a spe- cific substitute named by the Union is mere sophistry When Roberts said that he had some substitutes avail- able, Stafford replied that he was not interested. Roberts was not required to engage in the futile act of supplying a list of names in light of this answer. There is no explanation for the Company's reluctance to hire substitutes in 1986 and Stafford's asserted desire to keep overtime "within the unit," in the face of the Company's increased business, the double and triple shifts regular employees were working, and'the inability to fill many overtime positions. In any event, the cred- ited evidence supports the complaint allegation. E. The Alleged Unilateral Overtime Priority for Press Assistants 1. The contractual provisions The last contract provided for "two classifications of pressroom employees- pressmen, including journeymen and apprentices, and press assistants."49 The latter's "duties shall be, and limited to, all work performed in the reel room." This work consisted principally of the loading of reels with paper, to be fed up to the presses immediately above the reel room. When positions for ap- prentice pressmen became available in the pressroom, press assistants were to be given first choice for these po- sitions based on seniority.50 Section 3.08(b) reads as follows: (b) Where all press assistants have declined to accept an apprentice pressman situation, and the employer has to hire from outside the bargaining unit, the new employee (apprentice pressman) will immediately assume priority over all press assistants for vacation choice, layoffs, or any other area where priority is a deciding factor, as it is under- stood that all pressmen, journeymen and appren- tices, shall at all times have priority over all press assistants. 51 In addition to limiting press assistants to the reel room, the contract contained language limiting their number, their ratio as compared to pressmen, and shift assign- ments, as follows: 46 Jt Exh 8 49 Jt Exh I, sec 3 Ol 47 Jt Exh 13 50 Id at sec 3 08(a) 48 G C Exh 1(aa), par 15 (b) 51 Jt Exh I 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 3 04. Effective May 13, 1983, the Company may employ in the bargaining unit four press assist- ants for the night shift The total number of press assistants the Company may employ during the life of this agreement shall be four. If the number of press assistants employed exceeds a ratio of one press assistant to each six journeymen and appren- tices employed, then the Company shall reduce the number of press assistants to the allowable ratio by offering press assistants with the most seniority an apprenticeship in the pressroom.52 The contract also provided that in the event of a layoff or reduction in force, all press assistants were to be laid off before any journeyman or apprentice.53 "With the exception of the provision in this article," press assistants were to be governed by the same rules, working conditions, and hours of labor as all other press- room employees.54 Article X, entitled "Priority," asserts that "[i]n filling day situations, preference shall be given employees ac- cording to priority (seniority as a journeyman pressman with the Company) as to length of service on night shifts."58 The overtime section of the contract defines overtime and recites the amount of compensation there- for, but does not state the employees entitled to over- time.5 6 Union President Roberts testified that he prepared the contract language concerning press assistants, that it rep- resented the combined views of the Union and Company Representative Hendricks, and that the latter told him that the Company wanted press assistants to work only at night. 2. Summary of the testimonial evidence Union Secretary-Treasurer Seward was acting presi- dent of the Union during the time when Roberts had been discharged, as described in the former proceeding. Seward testified that because of an increase in work, he made a verbal agreement with Vice President for Ad- ministration Hendricks that press assistants would be al- lowed to work overtime on day shifts, after the pressmen had been offered overtime Roberts corroborated Seward. Press assistants worked only at night, but there was "so much work" that Seward made an oral agree- 52 it Exh 1, sec 3 04 The poor contract also limited the number of press assistants, then known as reel tenders, to work on the "night shift" (R Exh 11, sec 405) 55 Id at sec 3 09 64 Id at sec 3 08(e) 66 The entire article reads In filling day situations, preference shall be given employees ac- cording to priority (seniority as a journeyman pressman with the Company) as to the length of service on night shifts When situations are switched from day to night, the opposite procedure shall govern priority employees shall have choice of new shifts, new situations, off days and vacation dates When a new situation arises, each priori- ty employee shall have five (5) days to claim this situation after noti- fication of eligible employees However, with the exception of the above, length of service with the Company shall determine earned benefits such as vacations, retirement benefits, and any other benefits which are contingent upon length of service with the Company [it Exh 1, Art X] 56 it Exh 1, art VI ment with Hendricks to allow press assistants to work overtime on day shifts, but only after the pressmen had declined The Company presented two responses to this evi- dence First, Hendricks acknowledged that he had a dis- cussion with Seward about press assistants According to Hendricks, he insisted that press assistants share overtime "equally" with pressmen, and Seward objected. "After that," Hendricks testified, "I think they shared in the overtime equally." This was followed by a more affirma- tive answer from Hendricks in response to a leading question. The Company's second response was a legal argu- ment-the last contract allows press assistants to work overtime on the day shift even if a pressman desires the work. According to Hendricks and Stafford, the lan- guage of the contract restricting press assistants to night shifts in the reel room applies only to straight-time work. Shown the last contract, Stafford remarked that it "doesn't say they can't work overtime on days." Hen- dricks asserted that overtime work on day shifts was part of the "bargaining history." Roberts testified that the Company had made changes in the overtime board by "hiring press assistants on the day shifts ahead of journeymen and apprentices," al- though Stafford acknowledged that the Company was hiring press assistants on the day shift to do press assist- ant work "even if a pressman wanted that position." Roberts filed a grievance asserting "blatant violation of established agreements" and demanding that pressmen be "made whole" for all shifts from which they had been "illegally denied."57 Thereafter, in a meeting between the Union and the Company, Pressroom Superintendent Clark argued that the Union's method of giving overtime to press assistants was illegal because it was not hiring them even though they had "a lower number on the board." Roberts reminded the Company of the contrac- tual provisions, and Stafford told Clark to continue oper- ating the board in the same way. 3 Factual and legal analysis The complaint alleges that the Company unilaterally altered the method of operation of the overtime board by giving press assistants priority 58 The Company argues that the Hendricks-Seward dis- cussion of press assistants involved only the issue of whether they were to get equal treatment during over- time work on day shifts-not whether they were to do any work at all on day shifts The implied premise in this argument is that press assistants were allowed to work overtime on day shifts prior to the Hendricks-Seward conversation. Hendricks claimed that such overtime had previously been allowed, and was part of the "bargaining history." This position is not only contrary to the language of the last agreement stating that the Company could employ four press assistants "for the night shift," but is also contrary to similar language in the prior agree- 57 it Exh 8 5B G C Exh l(aa), par 15(c) GREENSBORO NEWS & RECORD ment 59 For this reason, the Company's position on "bar- gaining history" is not persuasive. Roberts' testimony that Hendricks stated he wanted press assistants for night-shift work only is uncontradicted Because of the language of the agreements, and because Roberts and Seward appeared to be more truthful witnesses than Hendricks and Stafford, I credit the testimony of the former on this issue. In addition, I credit Seward's testimony about his con- versation with Hendricks concerning press assistants. Faced with a contract limiting press assistants to night work and an increased workload, the acting union presi- dent made a concession to the Company by relaxing the contractual restrictions. Hendricks did not explicitly deny this aspect of Seward's testimony; he merely assert- ed that they disputed whether pressmen should get over- time priority over press assistants. Accordingly, I find that Seward made an oral agreement with Hendricks al- lowing press assistants to work overtime on day shifts, but only after pressmen had declined it. The Company contends that the contractual provisions cited above do not specifically give pressmen priority over press assistants for overtime work. An argument may be made that such priority is implied in some of the contractual language, but this is beside the point The last two contracts clearly limited press assistants to night work, and this was changed only after the Hendricks- Seward oral agreement If the contracts had permitted day-shift work by press assistants, no such agreement would have been necessary. I also find that the Union ignored Hendricks' argu- ment that press assistants should receive equal overtime assignments on day shifts, and that it gave them such as- signments, subsequent to the Hendricks-Seward agree- ment, only after overtime had been declined by press- men. As noted, the complaint alleges that the Company uni- laterally altered the operation of the overtime board so as to give press assistants "priority." On the basis of the company-union meeting subsequent to the union griev- ance, and the colloquy between Roberts and Clark, I conclude that the Company changed the Union's prac- tice and gave press assistants overtime work on day shifts in the same manner as that utilized with respect to other employees, i.e., the employee with the least number of marks received the work. Whether this consti- tuted giving the press assistants. "priority" is a semantic question However, it is clear that by agreement of the parties, the contractual ban on daytime work by press assistants was relaxed so as to permit their overtime work on day shifts after pressmen had declined the overtime. After the Company took over the overtime board, this practice was unilaterally altered so as to give press assistants equal opportunity for overtime work on day shifts, and so as to deprive pressmen of the priority for such work to which they were entitled pursuant to the contract, the Seward-Hendricks agreement, and established practice sa Hendricks erroneously testified that the last agreement was the only one dealing with press assistants 229 resulting therefrom The parties understood the issues, and the matter was fully litigated. F The Alleged Unilateral Change in Journeyman to Press Assistant Overtime Ratio 1. Summary of the evidence The complaint alleges that Respondent unilaterally al- tered the overtime board by changing the journeyman to press assistant overtime ratio.60 This allegation is un- clear, because the only overtime issue pertaining to press assistants is that related above, and concerns the issue of priority rather than ratios. However, as noted above, the last contract prescribed a 1-to-6 ratio of, press assistants to pressmen.61 In addition, the contract provided that, "[w]hen press assistants are employed on any shift, a journeyman press- man will be designated as a lead journeyman in the reel room, to instruct the press assistants.62 Roberts testified that, after the Company assumed con- trol of the overtime board, it employed press assistants in the reel room without the presence of a journeyman. On 29 August, Roberts filed a grievance on the issue.63 Al- though the grievance also asserts that the Company has hired press assistants "in the place of journeyman and ap- prentices," it does not precisely allege violation of the one-to-six ratio requirement of the contract,64 and there is no testimony from the General Counsel's witnesses di- rectly addressed to this issue. Stafford testified that newly hired reel tenders for "the first sixty days [sic] [were] supposed to be one above the crew. In other words, they're not counted as the crew." This is an apparent reference to section 3.05 of the last contract, which provided that press assistants shall serve a 2-year training period "and for the first ninety days, for training purposes, shall be above the requested number of employees in the reel room during this training period." According to Stafford, at the time the Union grievance was filed, "the sixty [90 according to the con- tract] days wasn't up " With respect to the required presence of one journey- man in the reel room, Stafford testified as follows: The one about the crew, we were still short. We were not getting the overtime and we said that we would bring that journeyman in the reel room up- stairs if we needed to get that press started or run. We were doing what we needed to do to get that paper out. 2. Factual and legal analysis Because of the ambiguity of the complaint allegation, the absence of any explicit evidence from the General Counsel on the 1-to-6 ratio issue, and Stafford's uncon- tradicted testimony that any press assistants were still within their training period and thus "above the request- Bo G C Exh l(aa), par 15(d) 61 Jt Exh I, sec 304 82 1t Exh 1, sec 3 07 ss Jt Exh 8 84 Ibid 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed number of employees in the reel room,"65 I am unable to conclude that this issue was fully litigated. Nonetheless, Roberts did testify that the Company em- ployed press assistants in the reel room without the pres- ence of a journeyman (contrary to the requirements of sec 3 07 of the contract), and Stafford admitted that he brought "that journeyman in the reel room upstairs . . . to get that paper out." Accordingly, despite the inad- equacies of the complaint, I conclude that this matter was fully litigated and that the Company unilaterally al- tered the ratio of press assistants to journeymen in that it removed the one journeyman required by the contract and established practice to be in the reel room in order to instruct press assistants.88 G. The Alleged Change in Overtime Reporting Requirements for Foremen Foremen were given opportunity for overtime work, as were the other employees, and were treated the same way as the others under the Union's operation of the overtime board. The General Counsel's witnesses testi- fied that on several occasions after the Company took over the overtime board, foremen were given overtime without being "marked up," i.e., without having a record of their overtime entered in the overtime book that the Company maintained. However, the witnesses agreed that the Company took corrective action when these matters were brought to its attention. The General Coun- sel has not adduced evidence that these matters were the result of deliberate company policy, and Stafford denied that he instructed foremen to work overtime without re- cording it Accordingly, I shall recommend that this alle- gation be dismissed. H. The Alleged Unilateral Change in Cleanup Policy The work of the pressmen involved occasional spil- lages of ink, chemicals, and water on the pressroom floor. The witnesses generally agreed that the pressmen responsible for such spillages were required to clean them up, particularly if they constituted safety hazards Thus, Union Chairman Jerry Holsclaw affirmed that the pressmen "always got it up" if a "lot of ink" was spilled, and Roberts, who had a dispute with Pressroom Superin- tendent Clark over a water spill, agreed that he would have cleaned it up without protest if it had constituted a safety hazard Former Vice President for Administration Hendricks said that pressmen clean up the spills during working hours and maintenance employees thereafter. Production Director Stafford and Pressroom Superin- tendent Clark stated that spillages constituting a safety hazard should be cleaned up immediately. In the spring of 1986, newly arrived Pressroom Super- intendent Clark posted a cleanup notice requiring spoils and loose paper to be picked up, dirty rags to be dis- posed of, tools to be kept clean, chemicals to be marked, 65 Jt Exh 1, sec 3 05 66 On the blurred issue of whether the Company was replacing press. men with press assistants, as indicated hereinafter, I am recommending a broad order and spillages of ink, water, or chemicals to be wiped up immediately. 67 In early January 1987, Clark ordered Union President Roberts to clean up a puddle of water underneath a press that was not operating Roberts said that it was not his job and questioned that it constituted a safety hazard, but nonetheless cleaned up the puddle. Union Chairman Holsclaw asserted that there had been a recent change in cleanup policy in that the press- men were required to clean up "footprints and different spots of ink on the press." Press apprentice Roy J. Marsh added "paper" to the list, and said that building mainte- nance employees used to do this work. The dispute between Roberts and Clark involved a factual issue-whether the water puddle constituted a safety hazard. The evidence establishes that hazardous spillages were previously required to be cleaned up by pressmen during their hours of work, and the Clark-Rob- erts incident is insufficient to indicate a change of policy. However, the notice posted by new Pressroom Super- intendent Clark in the spring of 1986, and the credible testimony of Holsclaw and Marsh establish that addition- al duties, not involving hazardous spillages, were as- signed to the pressmen These had previously been the function of maintenance employees. Accordingly, the evidence supports this complaint allegation. I. The Alleged Unilateral Alteration in the Vacation Board and Policy Roberts and Stafford agree that, according to past practice, three pressmen were allowed to be on vacation at one time They also agree that, in January 1987, the Company unilaterally reduced this figure to two. Roberts and Stafford also agreed that the Company removed cer- tain weeks from the vacation schedule-three of the busiest weeks according to Stafford and more according to Roberts.68 Stafford conceded that he made these changes without discussing the matter with the Union. It would have been futile to do so, according to Stafford. J. The Alleged Refusal to Provide Information Because of the shortage of employees for overtime work, Production Director Stafford directed Pressroom Superintendent Clark to prepare a study showing how many employees were available for overtime during cer- tain periods in 1986 without having to work triple shifts. Utilizing shift records, Clark did so89 and, according to his testimony, needed about 6 hours to complete the work. At a meeting on 15 August, the Union asked for infor- mation on the number of employees available for over- time without having to work double shifts, and the Com- pany replied that it did not have this information. Rob- 6' G C Exh 2 66 Roberts filed a grievance contending that the Company had given vacation priority to night-shift pressmen, thus violating the seniority of daytime pressmen (Jt Exh 12), whereas Stafford testified that one day- shift and one night-shift pressman were allowed to be on vacation simul- taneously 66 Jt Exh 21 GREENSBORO NEWS & RECORD erts testified that he did not understand how the triple- shift information was derived and, on 1 October , filed a grievance demanding the double-shift information .7 0 The Company took the position that it was not required to do the calculations required to derive the double -shift infor- mation from the shift records However , on 18 Novem- ber, Stafford wrote Roberts a letter with ' the following offer: "We will supply to you , upon request, the material needed for you to determine double shifts in regard to overtime."71 Roberts conceded that the Company offered the un- derlying data, and that he may have replied that he wanted the Company to do the calculations. This, in effect, was the issue dividing the parties-the Union be- lieved that the Company should do the double -shift cal- culations just as it had done for triple shifts. I therefore find that the Company offered to provide the underlying data required to produce the information requested by the Union, but refused to do the required calculations. K. The Parties' Negotiating Positions The parties manifested different conceptions of their functions during these meetings. The Company contend- ed that whenever it made a specific proposal , the Union insisted on going back to the (preimpasse) "bargaining table" on the specific issue . Roberts conceded that he may have made such statements as this, and may have demanded that the Company make proposals to the "ne- gotiating committee." The reason, he contended, was Stafford's asserted habit of discussing issues individually with employees on the floor. On 25 February 1987, Roberts wrote Stafford a letter on "the contract impasse our bargaining unit is now working under," and declared willingness to make a change in the Union's position. 72 However, the union membership was still unwilling to accept the Company's president as final arbitrator of grievances , according to Roberts. He therefore wrote Stafford on 13 March 1987 that he had been "a bit premature" in his prior letter.73 The Union's position was that the Company was "trying to piece meal (the Union) one item at a time, while refusing to bargain on the contract." According to Union President Roberts and Secretary-Treasurer Seward, at a meeting on 24 September, Stafford said that "the only thing the Company had to do if they wanted to change something was meet with (the Union) a few times and then go ahead and put it into effect ." Stafford denied that he made this statement . I credit Roberts and Seward. Former Vice President for Administration Hen- dricks testified that the Company had bargained to im- passe with all the unions representing its various employ- ees, and had secured agreements from two of them to operate without a contract. 70 R. Exh 9 71 Jt Exh 13 72R Exh 27 73h Exh 29 231 L. Conclusions with Respect to the 8(a)(5) Allegations 1 The issue of "past practice " concerning operation of the overtime board The evidence shows that the Union traditionally oper- ated the overtime board except for a brief period in 1981 when no contract was in effect and the parties were ne- gotiating. At that time , operation of the board was vol- untarily transferred from the Union to the Company and then transferred back again voluntarily. The Company argues that its assumption of control of the Board in 1986 was not a unilateral change because it was consistent with past practice . In support of this argu- ment, the Company cites Chef's Pantry, 274 NLRB 775 (1985), and apparently relies on the employer 's notices therein prohibiting employees from leaving their jobs unless they had completed their work or had obtained supervisory permission . However, the Board's conclusion that this did not constitute a unilateral change was grounded on its finding that supervisors previously had discretion to require completion of a job, that employees had not generally worked more overtime since posting of the new rule and that, accordingly , the employer had not "applied a new policy as to overtime" (id., 274 NLRB at 776). Further, contrary to Respondent's posi- tion, the Board, in Chefs Pantry, held that the employ- er's grant of a 2-day holiday on one occasion during the 1979-1980 Christmas-New Year holiday season, without any announced change in its holiday practices , was insuf- ficient evidence on which to base a finding that the em- ployer's practice was to grant 2-day holidays. Accord- ingly, the employer's later withdrawal of the 2-day holi- day and its return to prior practice did not constitute a change in an established condition of employment (ibid.). Respondent also relies on Gulf Coast Automotive Ware- house Co., 256 NLRB 486 (1981 ), in which the employ- er's use of polygraph tests was found to be a past prac- tice, although the practice had been applied on a "hap- hazard basis" (256 NLRB 486 at 489). Respondent also cites Fafnir Bearing Co., 151 NLRB 332 ( 1965), but here again, the allegedly unlawful action-the subcontracting of maintenance work-had been engaged in by the em- ployer for "many years" (151 NLRB 332 at 340). Unlike these cases, there is no history herein of prior company operation of the overtime board, except for the brief period during negotiations in 1981 . There is no evi- dence that this short hiatus in what was otherwise union assignment of overtime was intended to be binding precedent. The contract is silent on the issue. In Consolidated Alu- minum Corp., 258 NLRB 281 (1981), the General Coun- sel contended that the employer 's prior settlement of a grievance concerning payment of witness fees constituted past practice to which the employer refused to adhere on another occasion . Noting the ambiguity of the contract, the Board rejected this position and stated that "there is no evidence that the parties intended the settlement to be binding precedent . . . . Indeed, the record shows that [the employer] has never before or since settling [the em- ployee's] grievance paid out witness pay to employees 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for attendance at administrative or regulatory proceed- ings" (258 NLRB 281 at 281-282). For these reasons, and on this authority, I conclude that past practice herein was that the Union controlled the assignment of overtime through the overtime board, and that the Company's assumption of control of the board in 1986 was a change in this practice 2. The impasse issue and conclusions concerning the overtime board Respondent argues that it "bargained to impasse with the Union prior to assuming control of the overtime board"74 and, accordingly, that its assumption of control of the board thereafter was not unlawful. The Board's position on this issue is well established. As stated in Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968): An employer violates his duty to bargain if, when negotiations are sought or are in progress, he unilat- erally institutes changes in existing terms and condi- tions of employment. On the other hand, after bar- gaining to an impasse, that is, after good-faith nego- tiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals. The problem with Respondent's argument is that, as the parties stipulated, they had previously bargained to impasse prior to June 1985, and the only issue that sepa- rated them, as far as the evidence shows, was the identi- ty of the final arbitrator of grievance proceedings. There is no evidence, e.g., that the Company repeatedly de- manded, and that the Union refused, to give up control of the overtime board prior to impasse in 1985. Accord- ingly, control of the board was not "reasonably compre- hended" within Respondent's "pre-impasse proposals" (ibid.). Respondent appears to take the position that once impasse has been reached on one issue, it is at liberty to continue to bargain to impasse, individually, on all re- maining terms and conditions of employment. As long as it discusses the matter with the Union a few times, it is free thereafter to make unilateral changes. In fact, Staf- ford asserted this right during his discussions with the Union. Such a position is without precedent, and its im- plementation would continue the bargaining process ad infinitum. In a recent case in which there was no evidence that the employer's unilateral changes were part of its pre-im- passe negotiations with the union, the Board held that those changes violated Section 8(a)(5).75 It is clear in this case that Respondent did not, after impasse, secure the Union's agreement that the Company take over the overtime board. Accordingly, I conclude in so doing Re- spondent thereby violated Section 8(a)(5) and (1) of the Act. ' 4 R Br 30 'a Triple A Maintenance Corp, 283 NLRB 44 (1987) Accord Caravelle Boat Co, 227 NLRB 1355 (1977) 3. The unilateral refusal to hire substitutes The Company argues that the Union's distinction be- tween area and traveling substitutes was a "hypothetical" issue, that there was no such distinction in the contract, and that practice about which one party is unaware is not binding on the other. However, as noted above, after some vacillation on the issue, the Company finally re- turned in December 1985 to the position that it would not hire any substitutes. The Company's only argument is that it never refused to hire any "specific" substitutes referred by the Union As indicated above, the Union was not required to engage in the futile act of referring individuals that the Company had previously stated it would not hire. Accordingly, I conclude that, by unilat- erally changing this previous employment policy, the Company violated Section 8(a)(5) and (1). 4. The unilateral changes in overtime for press assistants and the requirement that one pressman be in the reel room As shown above, the Company unilaterally changed the provisions of a Company-Union agreement whereby the contractual prohibition against day-shift work by press assistants was relaxed so as to permit their overtime work on day shifts provided the pressmen were first of- fered such overtime. The Company's change consisted in permitting press assistants equal opportunity for such work Further, the Company unilaterally changed the con- tractual requirement and practice of requiring one press- man in the reel room at all times in order to train press assistants. I find that, by making such changes unilateral- ly, Respondent further violated Section 8(a)(5). 5. The remaining unilateral changes As hereinafter explicated, the Company also unilateral- ly changed its break policy on or about 8 January 1987, altered its cleanup policy, and changed its vacation board and policy.76 I conclude that these actions consti- tuted similar violations of the Act. 6 The alleged refusal to supply information As shown above, Pressroom Superintendent Clark compiled information showing the number of triple shifts that would have been necessary to fill all overtime posi- tions in the spring of 1986. He used shift records for this purpose, and it took him about 6 hours to make the com- pilations The Union wanted the same information with respect to double shifts. The Company offered the un- derlying shift records but refused to engage in the addi- tional calculations necessary to derive the double-shift in- formation. The requested information appears to be relevant and necessary for intelligent bargaining, and the Company of- fered the underlying data from which the information could have been derived. The dispute, therefore, is over 7' Respondent argues that the Union refused to bargain over the Com- pany's proposed change in vacation policy This argument has no ment GREENSBORO NEWS & RECORD who should have borne the expense of the additional cal- culations. In similar circumstances, the Board approved of a finding that the employer was not required to go through 30,000 Rolodex cards in light of "the substantial nature of the cost." 77 In a case where the employer of- fered underlying data to the unions but refused to expend its own funds to prepare the reports and information de- sired, the Board held that the employer was not required to duplicate or conform its records, at its own cost, for the convenience of the "Unions."78 In another case the employer had previously furnished monthly information on the basis of which the union could have prepared the seniority list which it had requested from the employer, and the Board dismissed the allegation.79 More recently, the Board reaffirmed that an employer is not required to furnish relevant information to the union in the exact form requested by the latter.80 I conclude that it would have taken approximately the same amount of time to calculate the double-shift infor- mation as it did the triple-shift information, i.e, approxi- mately 6 hours, and that this would have involved an ex- pense that was more than de minimus . On the basis of the authority cited above, I further conclude that Re- spondent was not obligated to do this work, and that it satisfied its obligation by offering to the Union the un- derlying shift records from which the Union could have made the calculations Accordingly, I shall recommend that this allegation be dismissed. In accordance with my findings above and on the entire record, I make the following CONCLUSIONS OF LAW 1. Greensboro News & Record, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Greensboro Printing and Graphic Communications Union, Local No. 319, Graphic Communications Interna- tional Union, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by delivering verbal and written warn- ings to employee James L. Roberts about 31 October 1986 and about 8 January 1987 and a written warning about 12 December 1986 so as to restrict Roberts' move- ments throughout the plant because of Roberts ' union ac- tivities and prior testimony before and filing charges with the Board, thereby committed unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 4. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All pressroom employees employed by Respondent at its Greensboro, North Carolina facility, including journeymen and apprentice pressmen and press as- 77 Pacific Telephone & Telegraph Co, 246 NLRB 327, 330 (1979) 78 United Aircraft Corp, 192 NLRB 382, 389 (1971), enfd as modified 532 F 2d 422 (2d Cir 1975) 79 Leland Stanford Junior University, 262 NLRB 136, 142-143 (1982), enfd 715 F 2d 473 (9th Cir 1983) 80 Roadway Express, 275 NLRB 1107 (1985) 233 sistants; excluding office clerical employees, guards and supervisors as defined in the Act. 5. Since about 1966 and at all material times, the Union has been the designated collective-bargaining rep- resentative of the employees in the above-described ap- propriate unit and has been recognized as such represent- ative in prior collective-bargaining agreements with Re- spondent. 6. Following expiration of the last collective-bargain- ing agreement on 31 December 1983, the parties engaged in bargaining but reached impasse sometime prior to June 1985. 7. Following impasse, Respondent unilaterally and without the Union's agreement changed its past practice by making the following alterations in the terms and con- ditions of employment: (a) Assumed control of the overtime board, a system of assigning overtime that had previously been controlled by the Union. (b) Refused to hire substitute employees and de- manded that area substitutes be given work prior to overtime by regular employees (c) Gave press assistants equal opportunity for overtime work on day shifts, in lieu of giving priori- ty for such work to pressroom employees. (d) Removed the one journeyman from the reel room previously required to be there for the train- ing of press assistants. (e) Altered its cleanup policy so as to impose ad- ditional duties on pressroom employees. (f) Changed its vacation policy to the detriment of employees. (g) Altered its break policy so as to restrict press- room employees to the pressroom breakroom unless they first changed to street clothes. 8. None of the changes in terms and conditions of em- ployment described above was reasonably comprehended within Respondent's pre-impasse proposals to the Union. 9 By engaging in the unilateral actions described above, Respondent thereby committed unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 10. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not committed any unfair labor practice except as specified herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative actions designed to effectuate the policies of the Act. Having found that Respondent discriminatorily issued warnings to employee James L. Roberts restricting his movements, I shall recommend that it be ordered to inform Roberts in writing that its letters to him dated 31 October 1986, 12 December 1986, and 8 January 1987 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are null and void, that he is to disregard any statements to him by Production Director Merrell B. Stafford or any other supervisor regarding locations where he may take breaks, and that he is free to engage in union activi- ties and other activities before the National Labor Rela- tions Board. I shall further recommend that Respondent be required to remove from its records all references to its aforesaid actions and, in its writing to Roberts, inform him that it has done so and that it will not base any future personnel actions against him on such records or references. Having also found that Respondent unilaterally changed certain terms and conditions of employment of its employees in violation of the Act, I shall recommend that it be required to rescind such changes and restore the status quo ante.8' Thus, I shall recommend that Re- spondent be ordered to rescind its assumption of control of the overtime board and of overtime and to restore the control to the Union. Further, I shall recommend that Respondent be re- quired to hire substitutes when work for them is avail- able in the same manner as that established by past prac- tice, i.e., despite the contractual ban on overtime work for regular employees when substitutes are available, reg- ular employees are to get such overtime when only area substitutes are available, but not when traveling substi- tutes are available. I shall also recommend that Respondent be required to restore the prior right of pressroom employees (journey- men and apprentices) to overtime work on day shifts in preference to press assistants and to give the latter such work only when it has been refused by pressroom em- ployees. This recommendation supplements the recom- mendation above that overtime in general be returned to the control of the Union In addition, I shall recommend that Respondent be re- quired to maintain one journeyman in the reel room at all times, in accordance with the last contract and past practice. It will also be recommended that Respondent be re- quired to publish a rescission of its notice to employees entitled "Standard Operating Procedure,"82 and to notify employees in writing that its cleanup policy will continue to be that which was in effect prior to publica- tion of the notice. I shall additionally recommend that Respondent be re- quired to reinstate its prior vacation board and vacation policy, and to grant to employees such vacation rights as may have been denied to them by reason of Respond- ent's unilateral change in its vacation policies. Finally, I shall further recommend that Respondent be required to rescind its unilaterally imposed change in breakroom policy for pressroom employees, to rescind its notice to such effect dated 9 January 198783 and to notify pressroom employees that their break privileges will remain as they were in the past, and that they need not change to street clothes prior to taking breaks in areas other than the pressroom breakroom. 81 Teamsters Local 164, 267 NLRB 8, 18 (1983 ), enfd 753 F 2d 53 (6th Cir 1985) 82 G C Exh 2 83 Jt Exh 4 This is the second time that Respondent has discrimi- nated against union activist James L. Roberts. Further, its postimpasse unilateral changes and statements justify- ing same manifest a bargaining policy which, if success- ful, would defeat the purpose of the Act to encourage meaningful collective bargaining. Accordingly, I shall recommend that the cease-and-desist order be a broad one requiring Respondent to cease-and-desist from in- fringing in any other manner on the rights guaranteed employees by Section 7 of the Act.84 On these findings of fact and conclusions of law, and on the entire record,85 I recommend the following86 ORDER The Respondent , Greensboro News & Record, Inc., Greensboro, North Carolina, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in Greensboro Printing and Graphic Communications Union, Local No. 319, Graphic Communications International Union, AFL- CIO, CLC, or any other labor organization , by deliver- ing verbal or written warnings to employees, so as to re- strict their movement throughout the plant, because of their union activities or testimony before or the filing of charges with the National Labor Relations Board, or by discriminating against them in any other manner with re- spect to their hire, tenure of employment , or terms and conditions of employment. (b) Unilaterally changing the terms and conditions of employment of the employees in the bargaining unit87 by assuming control of the overtime board and/or the assignment of overtime, refusing to hire substitute em- ployees, except under terms of denying prior overtime rights to regular employees when only area substitutes are available; giving press assistants equal opportunity for overtime work on day shifts, in lieu of giving priority for such work to pressroom employees ; removing the one journeyman from the reel room previously required to be there for the training of press assistants; altering its cleanup policy so as to impose additional duties on press- room employees; changing its vacation policy to the det- riment of employees or in any manner; or altering its break policy so as to restrict pressroom employees to the pressroom breakroom unless they first change to street clothes or in any manner. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 84 Carpenters Local 720 (National Maintenance), 283 NLRB 617, 623 (1987) 85 The General Counsel's unopposed motion to correct transcript, Ap- pendix A [omitted from publication] is granted 86 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 81 The bargaining unit is All pressroom employees employed by the Respondent at its Greensboro, North Carolina facility, including j ourneymen and ap- prentice pressmen and press assistants, excluding office clerical em- ployees, guards, and supervisors as defined in the Act GREENSBORO NEWS & RECORD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Inform James L. Roberts in writing that its letters to him dated 31 October 1986, 12 December 1986, and 8 January 1987 are null and void, that he is to disregard any statement to him by Production Director Merrell B. Stafford or any other company officer regarding loca- tions where he may take breaks, and that he is free to engage in union activities and other activities before the National Labor Relations Board. (b) Remove from its records all references to Respond- ent's actions set forth in subparagraph (a) above, and inform James L. Roberts in writing that it has done so and that it will not base any future personnel action against him on such references or records. (c) Return to the above-named Union the overtime board and the assignment of overtime. (d) On request by the Union and when vacancies are available, hire substitutes for straight-time work, provid- ed the regular employees be first offered overtime when work only substitutes living in the vicinity of Respond- ent's plant (area substitutes) are submitted by the Union; but further provided that regular employees are not to be first offered such overtime work when only the names of employees living outside the vicinity (traveling substi- tutes) are submitted (e) Offer press assistants overtime work on day shifts only after pressroom employees (journeymen and ap- prentices) have first been offered such work. (f) Keep one journeyman in the reel room at all times when a press assistant is employed there. (g) Rescind its notice on cleanup entitled "Standard Operating Procedure" posted in the spring of 1986 and publish a notice to employees that cleanup policy will remain as it was prior to such notice. (h) Change its vacation board and vacation policy so that it is the same as that in effect prior to Respondent's change in such policy in January 1987, and grant to em- ployees such vacation rights as may have been denied to them by reason of Respondent's unilateral change in its vacation policies. (i) Rescind its notice to pressroom employees dated 9 January 1987 changing the break policy for such em- ployees, and publish a new notice that the break policy shall be the same as it was prior to such prior notice, and that pressroom employees need not change to street clothes before taking breaks in areas other than the press- room breakroom. (j) Preserve and, on request, make available to the Board or its agents, for examination and copying, all records of vacations and other records necessary to effect compliance with this Order. (k) Post at its plant at Greensboro, North Carolina, copies of the attached notice marked "Appendix B."88 88 If 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 Nation- al 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 " 235 Copies of said notice, on forms provided by the Regional Director for Region 11, shall be posted immediately upon receipt and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (1) Notify the Regional Director for Region 11 in writ- ing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that , except with re- spect to the unfair labor practices found herein to have been engaged in by Respondent, the complaint is dis- missed. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT discourage membership in Greensboro Printing and Graphic Communications Union, Local No. 319, Graphic Communications International Union, AFL-CIO, CLC, or any other labor organization, by de- livering verbal or written warnings to employees so as to restrict their movement throughout the plant because of their union activities, or testimony before, or the filing of charges with, the National Labor Relations Board, or by discriminating against them in any other manner. WE WILL NOT unilaterally change the terms and con- ditions of employment of our pressroom employees by (a) assuming control of the overtime board and the as- signment of overtime; (b) refusing to hire substitute em- ployees except under the terms denying prior overtime rights to regular employees when only area substitutes are available; (c) giving press assistants equal opportunity for overtime work on day shifts in lieu of giving priority for such work to pressroom employees; (d) removing the one journeyman from the reel room required to be there for the training of press assistants ; (e) altering our clean- up policy so as to impose additional duties on pressroom employees, (f) changing our vacation policy to the detri- ment of employees; or (g) altering our break policy so as to restrict pressroom employees to the pressroom break- room unless they first change to street clothes. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL inform James L. Roberts in writing that our three letters to him concerning where he may take breaks are null and void, that he is to disregard any statements made to him by company officers on that sub- ject, and that he is free to engage in union activities and other activities before the National Labor Relations Board 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL remove from our records all references to these letters and statements to Roberts, and inform him in writing that we have done so and will not base any future personnel action against him on such references or records WE WILL return to the Union control of the overtime board and the assignment of overtime. WE WILL, on request by the Union and when vacan- cies are available, hire substitutes for straight-time work provided that regular employees be first offered overtime work when only substitutes living in the vicinity of our plant (area substitutes) are submitted by the Union; but further provided that regular employees are not to be first offered such work when only the names of employ- ees living outside this vicinity (traveling substitutes) are submitted. WE WILL offer press assistants overtime work on day shifts only after pressroom employees have first been of- fered such work WE WILL keep one journeyman in the reel room at all times when a press assistant is employed there. WE WILL rescind our prior notice on cleanup entitled "Standard Operating Procedure," posted in the spring of 1986, and publish a new notice to employees that clean- up policy will remain as it was before such prior notice. WE WILL change our vacation board and policy so that it is the same as that in effect prior to our change in such policy , and grant to employees such vacation rights as may have been denied to them by reason of our uni- lateral change in this policy WE WILL rescind our notice to pressroom employees dated 9 January 1987 requiring them to change to street clothes before they take breaks in areas other than the pressroom breakroom. GREENSBORO NEWS & RECORD, INC.