Times Herald Printing Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Times Herald Printing Company and Earl McAfee and Luther Minor. Cases 16-CA-7740-1 and 16-CA-7740-2 September 19, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 14, 1980, Administrative Law Judge Robert A. Gritta issued the attached Decision in this proceeding. Thereafter, the Charging Parties filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I Member Penello concurs in the dismissal of the 8(a)4) allegation of the complaint for the reasons set forth in the dissenting opinion in Gener- al Services, Inc., 229 NLRB 940 (1977), enforcement denied 575 F.2d 298 (5th Cir. 1978). DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge: This case was heard by me on November 16, 17, 27, and 28, 1978, and January 31 to February 1, 1979, in Dallas, Texas, based on charges filed by Earl McAfee and Luther Minor, individuals, on February 10 and 14, June 29, and July 5, 1978, and a complaint issued by the Re- gional Director for Region 16 of the Board on July 14, 1978.1 The complaint alleged that the Times Herald Printing Company (herein called Respondent) violated Section 8(a)(1), (3), and (4) by coercive interrogation, threats of discharge, suspension, and ultimately discharge because its employees engaged in union or other protect- ed concerted activities. Respondent's timely answer denied the commission of any unfair labor practices. All parties hereto were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence and to argue orally. Briefs were submitted All dates herein are in 1978, unless otherwise specified. 252 NLRB No. 43 by the General Counsel, Respondent, and the Charging Parties. All briefs were duly considered. Upon the entire record in this case and from my obser- vation of the witnesses and their demeanor on the wit- ness stand, and upon substantive, reliable evidence con- sidered along with the consistency and inherent probabil- ity of testimony, I make the following: FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Times Herald Printing Co. is a Texas corporation engaged in the newspaper publishing business in Dallas, Texas. Jurisdiction is not in issue. Respondent, in the past 12 months, in the course and conduct of its business op- erations, received in excess of $200,000 in gross revenues from its publications. Its publications include news arti- cles from various interstate news services, publication of nationally syndicated features, and advertisements of na- tionally sold products and services. I conclude and find that Times Herald Printing Co. is an employer engaged in commerce, and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I con- clude and find that the International Printing and Graph- ic Communications Union, Local 21 (herein called the Union) is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ISSUES A threshold issue in this case is the supervisory status of the man-in-charge 2 position held by the Charging Par- ties, McAfee and Minor, for if, each is found to be a stat- utory supervisor, he is not entitled to a protected right to engage in union or other concerted activity. The Em- ployer may, with impunity, discharge any supervisor en- gaging in what is otherwise protected activity for rank- and-file employees, and specifically for such activity. However, if this issue is decided in favor of nonsupervi- sory status the allegations of coercion and discrimination must be decided. The remaining 8(a)(4) allegation must be resolved without regard for the resolution of the su- pervisory issue. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Overview Respondent's publication of newspapers utilizes several departments and numerous classifications of employees. This case focuses on the press department and its func- tion. Overall responsibility for the mechanical operation of the newspaper was in the hands of Production Direc- 2 Sometimes called the crew chief. An effort to eliminate gender from the title. 278 TIMES HERALD PRINTING COMPANY tor Span. His responsibility included the pressroom. Cun- ningham, a production manager, was second in command with a subordinate counterpart on night production, Duesser. Powers as pressroom superintendent had only supervision of the presses and their operation. Five press foremen, Hart, Vinser, Harper, West, and Shannon, di- vided their time between the three presses that operate on three shifts, however not all three presses operate daily. The crew size on each press consists of from six to eight individuals made up of from two to four journey- men, trainees, and a man-in-charge (herein called MC). Each press is approximately 80 feet in length and stands 3 stories high with a separate working level on each floor. The crew is stationed at separate locations on each floor. The MC roams the entire length and height of the press overseeing each work station and each operation of the press. Trainees are matriculated in'a program lasting 3 years in an effort to become journeymen pressmen, and work beside journeymen as part of the crew. In addition to the foremen on duty an MC is designated acting fore- man (sometimes called floorman) when needed or as sub- stitute for an absent foreman. On occasion, an MC will be the only individual in authority on shift, e.g., on the Saturday night early run (Bulldog), and sometimes the Tuesday night run of the daily, which uses only one press.3 MCs are designated by the pressroom foreman or floorman on the markup before the shift starts. In addi- tion, the markup designates the foreman and floorman (if any) for the particular shift. Since the markup doubles as a payroll tool, the assistant MC is later designated as number 2 man on the markup to identify the recipient of the shift bonus of $2.50. Of the 55 employees in the pressroom, 7 are permanent MCs and therefore, the ma- jority of the time, are designated and usually on the same press. McAfee and Minor are permanently assigned MCs. At times, one of the seven is not available and a journey- man will be designated temporarily. The unavailability of a permanent MC may be occasioned by his designation as floorman or acting foreman. 2. Duties and responsibilities of MCs The MC is in charge of the press. His responsibility is to work all over the press. Any problems that arise get his immediate attention. He may call others for assist- ance, or the pressmen may congregate at the trouble to offer assistance. If the trouble was failure of an individ- ual's function, the guilty man may be moved to another station by swapping pressmen. The MC may move the man himself or be directed by the foreman to do so. As Minor testified, the foreman may tell the MC, "Bring him upstairs and send someone else down." However, when there was a breakdown or a problem that slowed production the foreman sought out the MC. Any trouble caused by an individual's action was first handled by the MC. Minor testified, "to a certain extent the pressmen 2 Minor and McAfee denied that an MC even worked the press in the abence of a foreman or in the least an acting foreman. I do not credit their denials since they are contrary to the bulk of the record testimony both subjective and objective. Additionally, I found their testimony eva- sive on critical matters and tailored throughout. Both Minor and McAfee appeared controlled more by the ultimate conclusion than their independ- ent recollection. are responsible to the MC. If they wasn't doing their job, you would have to tell them to do better." Each press- man is assigned his work station by the MC. If for some reason the assignment is not workable, the MC can adjust the crew assignments either before or during shift. During the course of the press run the foreman or the MC may designate changes in press settings to the press- men. The changes emanate from the layout sheet for the run, a production change during the run, or faulty pro- duction noted by the foreman or MC. Frequently, a pressman will notice a discrepancy in his stations produc- tion and will call it to the MC's attention. Depending on the lateness of start, which edition is being run, or whether the prem is behind, the MC or the foreman will decide to run as is or make the changes. Of course, plate changes are not all subject to judgment changes. Some plates come to the press to be changed immediately. Others are marked as soon as possible. The MC is re- sponsible to see that the plates are changed properly at the appropriate time. The basic guide for the MC is the layout sheet. Each press has a layout sheet which shows what the press will run on that shift. The initial setup for the press is made from the layout. Press setup is some- times accomplished by the outgoing crew depending upon the time allowed after the run. In either case the MCs may compare notes or simply check the press for proper settings. Many settings and adjustments can be made while the press is operating. The MC is constantly checking the product, and when adjustments are needed he either tells the pressman to make it or may make the adjustment himself. After the run is started and through- out the course of the run the MC keeps a report of all happenings on the press. The report is a recap of the run, and designates down times, troubles, product quality, and numbers run. The MC signs and turns in the report as the log of his press run. The report is used by the pro- duction superintendent to overview the production of the previous day. MCs receive $6, $7, or $8 more per shift than a journeyman, depending on which shift is worked. As the MC gets the markup with the crew listed before the start of the shift, he chooses the assistant MC from among those named. The crews are not the same for each shift, so the MC chooses the man in his judg- ment best suited to be assistant MC. This individual is identified on the list as 2 and based on this identification receives the shift bonus of 2.50.4 The assistant MC is not automatically the second man listed by the foreman on the markup. Smith credibly testified that, "the MC was instructed at that time to circle the man he chose as the number two man, his assistant. The one that would help us the most and somebody we could trust to watch the press when we weren't there." Two special night runs are made on Tuesday and Sat- urday. Although a foreman is not always present, fre- quently a floorman is. Usually only one press operates; so only one crew is needed. McAfee stated that he never worked either night run as MC in the absence of a fore- 4 Both Minor and McAfee denied on direct examination that MCs select the assistant MC, but on cross-examination each admitted such a selection. 279 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man, however, most of the time he worked the runs as floorman, not MC. Smith stated that on some night runs when a foreman is not present the night production man- ager, Duesser, would be present in the production super- visor's office. Duesser's time present is spent in the office or the plate room. He does not direct the work of the press crew except on occasions when he sees something amiss and tells the MC to change it or rectify it. In other words, although Duesser is present in the plant he is not there only to supervise the press crew. It is undisputed that McAfee and Minor served as a substitute for the foreman in the absence of the salaried foreman, or due to no foreman being scheduled on a par- ticular shift. Other MCs also, with regularity, served as foreman substitutes. In some instances where no salaried foreman was scheduled to report, two MCs would be as- signed to substitute on the same shift. Usually the number of presses scheduled would be the controlling factor. The testimony varies in term usage from foreman and assistant foreman to foreman and floorman. What- ever the terminology, the first substitute listed was first in authority and the second listed (if any) was second in authority. In 1977, McAfee served as MC or foreman substitute almost an equal amount of time. In the same year, Minor served as foreman substitute approximately 41 percent of the time and the remainder as MC. The permanent MCs were usually selected as foremen substi- tutes, but not exclusively. On occasion a journeyman not permanently assigned as MC would substitute for a fore- man when availability dictated such. On each occasion that a permanent MC is assigned foreman duties, his MC vacancy must be filled either by a permanent MC or a temporary MC. Each permanent MC receives extra com- pensation for each shift worked as a foreman substitute. A foreman makes $9, $10, or $11 a shift more than a journeyman, depending on which shift he works. Minor stated that he was paid extra when he substituted for the foreman, but he did not know how it was figured or the amount. His only recall was that it was something over his MC's salary. McAfee stated that his extra pay for substituting as foreman ranged from $65 to $75 a week more than his MC's pay. Both Minor and McAfee re- quested to be relieved of substituting for foreman in late 1977, and remain as permanent MCs on the press. McAfee, however, subsequent to his request did accept an assignment as foreman substitute. All MCs when sub- stituting for the foreman assume the responsibilities of the foreman position, use the foreman's office, and keep the foreman's logbook. However, the logbook is mainly for the night foreman to record the events of the run. Yakovitz, a night foreman, stated that the events occur- ring on a shift are divided between the MC's report sheet and the foreman's logbook. The events pertaining direct- ly to the press and press crew are in the MC's report, whereas the events and occurrences dealing with all de- partments or a combination of departments are placed in the foreman's logbook. Management on the following day can, thus, get a complete picture of the prior night's production and attendent problems. Unquestionably, the MC assigns the crewmembers to the various work tasks on the press prior to start of the shift. Minor stated that he places the men in the crew in their position first by recording the placement on the markup. He puts them where they can work best, where they can help the most. The journeymen are placed to best use their skill; albeit, they seldom work in the same position two shifts in a row if they are assigned to the same crew back to back. The trainees are placed to learn all tasks on the press over the 3-year training period. McAfee stated that he used the markup to assign the crew members to their various jobs. Sometimes he moved the men to different jobs on the press during the run. If he had to adjust the crew for any reason, he ad- justed it. The MC records the attendance of his assigned crew on the layout sheet, and in situations which require replacements, consults with the foreman or floorman. Apparently it is the policy of Respondent to start shifts short, expecting the absentee to come in late. In any event a start time for the press cannot be held up by want of a crewman. As permanent MC of the press crew, Minor and McAfee were responsible for the press, the crew, and the operation during shift. The press-room superintendent or the foreman sought out the MC if a problem or trouble arose during shift. It was the MC's function to minimize problems by getting to the cause immediately. To facili- tate this minimization, the MC assigned pressmen in doing their job, or got someone else to take over the par- ticular work station. Minor testified "Like if the work was heavy or you needed more people to work on a par- ticular problem he called someone in the crew to help." The MCs would compare notes on individual perfor- mances, so when a particular individual appeared on a crew, the MC would have some knowledge of his expe- rience and performance to guide him (MC) in how much direction or help the man would need. Several plate changes are made during a press run. The MC must see that the plate changes are made when needed. The MC either stops the press himself or tells a crewman when to stop the press. McAfee stated that during the press run he would call to someone or stop the press himself so that plate changes or press adjustments can be made. The MC records all plate changes, downtime of the press, spoilage, and other production problems on the man-in- charge report, usually as they occur. On occasion the mail or distribution department may stop the press, and the downtime must be recorded on the MC report. McAfee stated that such an entry may be made by the crewman operating the folder, because the report sheet is kept in the vicinity of that work station. Other entries may be recorded on scrap paper to be entered in the report after shift by the MC. An additional responsibility of an MC is the written evaluations of trainees at 6-month intervals during the course of their 3-year training period. A positive evalua- tion of a trainee results in increment increases during his training, culminating in attainment of journeyman status and pay. Minor and McAfee both stated that some crew- members work better than others skillwise, and some just work harder doing their job than others. The selection of the assistant MC is made on the basis of the MC's evalu- ation of the individual on the particular crew that does 280 TIMES HERALD PRINTING COMPANY the best job and is most trustworthy, as previously noted. This evaluation results in a shift bonus of $2.50 an hour.5 Respondent's disciplinary procedures in the pressroom are manifested in written writeups on individual employ- ees, generally, for a set identity of infractions. Most of the infractions occur directly in the press crew during shift. MCs, floormen, and foremen writeup employees for infractions which are logged in the day foreman's book. The MCs are specifically instructed to writeup em- ployees for basic infractions related with their perform- ance on the press (particularly where spoilage occurs as a result), and, additionally, are directed by the foreman or superintendent to writeup an individual as a result of the MC's report of the incident. Minor testified, "If it was a delay in getting the paper started or something that cost you some time, well, you wrote him up for that." On one occasion two crewmembers had failed to reconnect some hoses after cleaning the press. A couple thousand papers were run with two blank pages, so McAfee told Foreman Hart to alert the mailroom to catch the papers with blanks. Hart asked for names of those responsible. McAfee told Hart, and Hart said, "write them up." MCs had the authority to and did send crew members home for various infractions. McAfee tes- tified, "I think I had instructions that when you send a man home, that he had to, at that time, to talk to the su- perintendent before he came back to work." The signifi- cance of telling a man to talk to the superintendent before returning to the job, according to McAfee was, "whether he was going to have a job or not." Not all infractions are written up the first time it occurs. The MC verbally warns the crewmember once or twice then on subsequent occurrences will write the man up. Whether the individual mistake or infraction becomes codified is left to the MC. The MC would decide wheth- er the effect on production was such to require a wri- teup, or whether the individual had been orally warned enough to require a writeup. Respondent's overtime policy is more controlled by the cost factor than anything else. The common overtime at lunch is dictated by the need for a plate change. De- pending on the makeup of the crew, any one crew- member may be qualified to make the change. Likewise, some crew members have a preference for lunch rather than overtime. The MC may have to select from those willing, the one most qualified for the particular plate change. Not all plates are the same nor is the change me- chanics the same. Additionally, the number of plates to change can vary depending on what is being run, and whether the press is on schedule. Such lunchtime over- time is not authorized by any individual, foreman, super- intendent, or MC, but rather is the result of the stage of the run and the clock. The MC himself may perform the plate changes, which apparently occurs when no one is willing to forego his lunch time. The usual lunch over- · The testimony relating to the evaluation of journeymen by the al- leged discriminatees and MC Smith carries little weight in deciding the ultimate issue. The evaluations were made February 8, and the series of events leading to the discharges began February 7. Albeit I do not accept the Charging Party's contention that the evidence was created by Re- spondent to support its discharges of claimed supervisors, I do find the evidence lacking in reasonable purpose and an explanation for the time of its occurrence. time is one-half hour. The other common overtime is that which occurs at the end of the press run. Each crew must clean the press and get certain parts ready for whatever run the following crew is assigned. If the press run has been uneventful and ample time is left for make- ready, the crew necessary to do it can be small. Those crewmembers not needed because of their skill or lack of skill may be excused, and those willing to work, assum- ing they possess the skills, may be given the overtime. All make-ready requires some skills, so generally a will- ing journeyman would be selected. Where time allowed is a factor, the MC may select extra crewmembers to ensure finishing on time. The MC determines when the press is adequately made ready which stops the over- time. In addition, the MC may release one or more crew- members during the make-ready cycle when their serv- ices would no longer be needed. The average overtime for make-ready is I hour to 1-1/4 hours. In all cases of overtime, the MC records the time worked by each crewmember on the layout sheet. These entries are taken by the foreman and placed on the payroll sheet for the several departments under his supervision. With regard to crewmembers request to report in late or to be absent from a scheduled shift, they are usually directed to the foreman or floorman on duty. The phone number the employees call is that of the foremen's office. Crewmembers who report late without prior permission, however, are subject to being sent home without work by the MC. If the MC does not want the employee working, he is sent home. Crewmembers requesting to leave work before the shift ends, normally talk to the MC. Whether during the run or during makeready, the MC may grant such a request or deny it. Staffing crews for particular shifts and particular runs is a constant diffi- culty. The MC's discretion in working with less employ- ees is based on his experience with the runs, and those assigned to his crew. The relative difficulty of a given run frequently is not known until after the shift starts. If the MC needs to replace an absent crew member or aug- ment what was an understaffed shift, he reports to the foreman who decides whether to call in someone. Hiring and firing practices are left to middle manage- ment, except that MCs and foremen may make recom- mendations for discharge. The effectiveness of a recom- mendation for discharge from an MC varies with the nature and frequency of past discipline. Respondent's dis- ciplinary procedures include written writeups that "became a permanent part of the employee's personnel record." The writeups originate with MCs, foremen, and the pressroom superintendent. The record, thus, estab- lished is considered by management in making decisions to discharge. Recommendations to management that cer- tain individuals be hired are made, generally, by anyone with prior knowledge of the individual. In any instance where a journeyman, MC, or foreman has such knowl- edge, the recommendation carries basically the same weight and usually deals with the acquired skills of the individual. Respondent's manner and means of training employees is utilized for all new hires through the eyes of the MC and the foreman. Each employee must per- 281 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form on the press or in maintenance to continue employ- ment. 3. Additional factors on issue Respondent subscribed to and had employees attend seminars, one in 1975, 1976, and 1977. These seminars are classified as management seminars with programs dealing with communication of supervisors, personnel problemsolving, and union organizational campaigning. Those attending were classified as management and su- pervision by Respondent. Besides the admitted supervi- sors the permanent MCs were in attendance as were some journeymen who had temporarily filled in as MC. Minor recalled attending 2 or 3 management seminars as an MC. 6 McAfee testified in regard to attendance at one management seminar, "I was told to go out there." I was told by Lynwood Martin the press room superintendent. "He told me to go to the meeting and I told him I wasn't going to go. It was on my day off." Martin said he would pay McAfee to attend. McAfee attended and was paid overtime for his time spent at the seminar. Smith testified, "The first one I recall was in 1975; I don't re- member the exact date of it. It was put on by SPPI spe- cifically for management and supervisory personnel, and it was based on what a supervisor should do, you know, for his employees, and also what to look for, morale problems and stuff like that." Smith's recall of the next seminar was, "I believe it was '76 and again, it was at the Marriot Hotel. I don't remember who put it on, but it was more of a management type session is what it was, teaching us how to be better managers, if you will." Smith stated that MCs, foremen, the production director, and press room superintendent attended the seminar. Respondent has a written grievance procedure for nonrepresented production employees. The procedure originated in 1976 and is extant. The record contains a written grievance at step 2, filed by an MC and dated February 21, 1977. The disposition of the grievance is at step 2, wherein Frank Hart, pressroom foreman, dis- cussed the grievance to the MCs satisfaction. Spahn, pro- duction director, stated that when Hart presented the grievance for discussion, he told Hart the grievance was invalid because supervisors could not utilize the proce- dure. The written disposition by Hart does not specifical- ly allude to any cause for denial. 7 In conjunction with the written grievance procedures, MCs do attempt to adjust employee complaints, whether personal or work related, e.g., wage increase requests were discussed with MCs as well as personality conflicts between pressmen, both journeyman, and trainees.8 Spahn stated that in October 1974, there was a lot of confusion in the pressroom among employees about who was responsible for the various functions. To eliminate confusion, Spahn published and distributed to all press- ' Several dinner meetings of all employees were held at various times at the same motel location, but they were social gatherings not scheduled meetings. 7 Neither Hart nor the grievant testified. a Spahn's testimony of a pending change in the published grievance procedure is not probative since it was not communicated to employees and supervision. Additionally, as a pending change its existence is purely speculative. room employees a memorandum on the chain of com- mand. Following the listing of those in the chain the memo states: "In all situations, you are expected to carry out instructions of the man in charge regardless whether you agree or not. If you disagree, you have the right to discuss the problem at each successive level up the chain of command." In September 1977, with the addition of a morning edition to the publications a daily night press run had to be established. Also new crews had to be hired, and old employees had to be informed. Some con- fusion was existing due to a change in the printing proc- ess just completed anticipatory to the new edition. Spahn held a meeting of all press employees to explain the new setup and the effect on employees. In the meeting, Spahn emphasized the existing chain of command alluding to the crew chief as the boss of press operators and train- ees. Visual aids were used to emphasize the chain of command. Respondent utilizes several areas as parking lots for employees. Due to congestion and unauthorized use, a memorandum was issued on November 8, 1977, establish- ing priorities for parking and seeking an update from each department head. Priority one in the memo includ- ed supervision. Spahn replied November 15, 1977, listing the seven permanent MCs and one temporary MC among the supervision in priority one. The new priorities went into effect in early 1978, but subsequent to the dis- charges of Minor and McAfee. 4. Circumstances surrounding the discharges On February 7, Spahn learned that three MCs, namely, Minor, McAfee, and Smith may have solicited union cards.9 Spahn called each involved MC, individ- ually, on February 9 into Power's office, to determine if each was, in fact, involved and if so to what extent. Each MC was confronted by Spahn with their alleged involvement in the union activity. In addition, problems and morale in the pressroom were discussed with each MC. Spahn questioned each MC about his union activity, and that of the other MCs. Each denied any direct in- volvement in the activity, but admitted that such activity was going on. Spahn ended each interview by stating to the MCs that their job was in jeopardy if they had been engaged in union activity. Spahn also stated that it was the duty of all supervisors, including MCs as supervisors, to report union activity to management. At the conclu- sion of each interview, the MC was told that he was sus- pended, including possible termination.l ° Spahn, this same afternoon, reported to his supervisor that he had 9 Minor in his testimony acknowledged that Powers had been told of Minor's involvement in union activity. 'o Minor, Smith, and McAfee testified to the Spahn interviews, but their recall of the actual conversation was faulty. I do not credit Minor and McAfee's testimony relating to Spahn's interrogation of the union ac- tivity of other employees or that relating to Spahn's demand for names of employees or a report on the union activity of other employees. Spahn's testimony on direct was clear and convincing and stands unshaken. whereas Minor's and McAfee's testimony appeared confused and an at- tempt at conclusionary protection for each other. However, it is undis- puted that Minor, Smith, and McAfee were specifically questioned about the union campaign activity and their part in the campaign, active or pas- sive. It is also undisputed that Minor and McAfee were discharged for their part in the union campaign. 282 TIMES HERALD PRINTING COMPANY concluded that Minor and McAfee were involved in the union campaign activity, but that Smith (on vacation the week of the activity) had not been. The following morn- ing, February 10, Spahn met with management and the decision to discharge Minor and McAfee was made. It was further decided that Smith would not be discharged. Management decided at the same time to delay notifica- tion to the MCs until Monday, February 13. On Monday about 10 a.m. Spahn told Powers' supervisor to have Powers contact Minor and McAfee to notify them of their discharges. Powers notified McAfee of his dis- charge sometime before noon. Minor was notified by Powers of his discharge about noon. Minor stated that Powers called him at home Friday and told him to remain at home, and the company would be in touch. Minor was contacted about noon on Monday, February 13 and informed by Powers that he was terminated. Minor's only response to Powers was, "Well that's fine." McAfee made contact with powers on Friday, Febru- ary 10. On that day Powers told McAfee that no deci- sion had been made and that McAfee was to remain at home. Powers also stated that the Company would con- tact McAfee on Monday, February 13. Powers did call McAfee, without success, on Monday and when McAfee returned the call he was informed by Powers of the dis- charge. McAfee's response to Powers was, "Well, that doesn't surprise me." Smith stated that on Monday, February 13, around noon, he was contacted by the Company, and told it was determined that he had not been involved in the union campaign and that he could return to work Tuesday, February 14. Smith did return to work February 14. Both Minor and McAfee stated that they talked imme- diately after their suspension, on February 9. The con- versation resulted in their decision to go to the National Labor Board. The following morning each filed a charge alleging 8(a)(1) interrogations and threats of loss of their jobs because of union activity. On February 14, each amended their respective charge to add an 8(a)(3) dis- charge because of union activities. Subsequently, McAfee on June 29 and Minor on July 5, further amended their respective charges to add an 8(a)(4) discharge because of union activities. The record shows that each charge was served by the Regional Office in due course, with the certified receipt of both original charges dated February 13. ANALYSIS AND CONCLUSIONS The General Counsel contends that Minor and McAfee are rank-and-file employees, and that Respond- ent's conduct against them just prior to suspension, vio- lated Section 8(a)(l) as coercive threats, interrogation, and a form of surveillance. The General Counsel further contends that the resultant discharge, a fortiori, violates Section 8(a)(3) or in the alternative, based on motivation, violates Section 8(a)4). Respondent's defense places in issue the supervisory status of both Minor and McAfee. Resolution of this issue carries with it the complaint allegations respecting the 8(a)(1) and (3) violations. The alleged 8(a)(4) viola- tion requires an independent resolution. Although parties' statements on the record and plead- ings are limited to the man-in-charge positions held by Minor and McAfee, my conclusions include all perma- nent men-in-charge. There are seven permanent men-in- charge, including Minor and McAfee, referred to herein as MC. A complete analysis of the credited evidence in the record shows that the MC is delegated to carry out man- agement's instructions in the pressroom. Respondent has held out the MC as a supervisor to the employees in the pressroom. The employees were told to do what the MC directs or instructs in several management meetings thus employees know of the MCs' authority as bestowed by management. Assuming the exercise of such authority was minimal, the mere possession has been held determi- native. The Eavey Company, 115 NLRB 1779 (1956). In the instant case, however, there is exercise of that pos- sessed authority. At the beginning of each shift, the MC assigns the day's work to each member of the crew. Such assignments are based on the MCs' knowledge of each individual's skills on the various work tasks, and the necessity for further training of a particular individual in certain work tasks. The assignments thus made are not permanent however, because depending upon the work- load or unforseen problems, the MC may move one or more individuals to different work tasks or require sever- al employees to combine their skills to offset the difficul- ty. The MC himself may work alongside the employees at any work station, which requires manning, or the crew may operate short. While the MC may perform some work tasks typically performed by journeymen, the evidence clearly shows that each MC was required sepa- rately and additionally to control the flow of work on the press, to observe the work of the rank-and-file em- ployees, and to specify corrections or adjustments. Al- though the work flow to and from the press was well defined and the nature of the work tasks on the press were relatively skilled, the evidence shows the tasks to be on an order of difficulty requiring the exercise of in- dependent judgment on the part of the MC, both as to the identity of employees to perform the various work tasks and some elements of its actual performance. I am persuaded, contrary to the Charging Party, that in the circumstances of this case, the MCs responsibly direct the press crew. The MC's responsibility for the quality and quantity of work and the maintenance of the press is evidenced by the man-in-charge report required at the end of each shift. The completeness of this report gives management a panoramic view of the operation including the time due each employee, whether straight time or overtime. This report is the only record of the press run and serves as the source for the foreman's payroll report, which in- cludes the pressroom. The press is an expensive machine occupying three floors. Albeit there is a pressroom fore- man, his responsibility includes other employees in other departments and his office is on the mezzanine of the press. It is more than reasonable to assume an employer would provide a responsible person to be in immediate charge of the press and pressmen. 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's disciplinary procedures are initiated with a writeup (written warning). The warning is filed with the foreman who is responsible for deciding what disci- pline, if any. An MC may orally warn an employee prior to issuing the writeup, but he has specific instructions from management that certain work related deficiencies are to be written up. The form of the writeup is printed and originated with management. Any writeups authored by the foreman or press superintendent are on this same form. Although the weight assessed to a given writeup is not discernible on this record it is abundantly clear that Respondent's established discipline procedure begins with a writeup and is based on standard infractions. Unlike the General Counsel and the Charging Party, I consider the MC's role an integral step in the disciplinary procedures and one that the employees must readily ob- serve on a daily basis. An adjunct to the writeup system is the MC's authority to refuse shift work to an employ- ee reporting late. The MC decides whether to send the man home or allow him to work. If the man is sent home, he is told by the MC that he cannot report for work until he talks with the press superintendent. The use of overtime though not discretionary with the MC is, however, not automatic. The MC must be pru- dent in its use, and to ensure control will frequently choose employees best suited for the tasks as well as the number of employees needed. Those employees whom the MC decides are not needed are released from duty on the shift. The Charging Party and the General Counsel view the evidence relating to Respondent's published grievance procedure, which incorporates the pressroom foreman in the first step, as probative of no statutory supervisory in- dicia for MCs. If that were all the evidence I would agree, however, the record shows that MCs frequently resolve minor complaints of the press crew on an infor- mal basis. Indeed, some of the work assignment adjust- ments can be attributed to crew complaints and personal- ities. Resolution of such minor complaints of employees that never reach formal complaint stage constitute ad- justment of grievances to satisfy the statute. See Newark Newspaper Pressmen's Union No. 8, a/w International Printing Pressmen and Assistants' Union of North America, AFL-CIO, 194 NLRB 566 (1971). Albeit in the Newark case the grievance procedure was contained in a collec- tive-bargaining agreement, I am satisfied of the precedent if the procedure is formalized as in the instant case. Additionally the training of new employees, as well as younger journeymen, is accomplished through the MC. The training program is formalized in increments of time and wage, which is satisfied only by the MC's appraisal. While it is true, as the Charging Party contends, that in the industry new hires learn from the journeymen they work beside, it is not the complete picture." It is the MC's responsibility to see that trainees learn the various work tasks on the press, and to evaluate their progress. Not only is the evaluation formalized in a written ap- praisal but MCs share orally among themselves the skills " As Minor and McAfee stated, some journeymen are better than others, and when assigning a trainee to a work task the identity of the related journeymen is considered by the MC. progression of trainees, particularly, when seeing an indi- vidual for the first time on shift. The evidence clearly shows that the MC is the first step in the line of supervisory progressions. Three of the five foremen came from the MC ranks, and MC's daily substitute for the foreman in the foreman's absence. Both the General Counsel and the Charging Party concede that the foreman and substitute foreman are statutory su- pervisors, presumably because they can hire, fire, disci- pline, and set wages. Based on those same factors, I con- clude and find that foremen and substitute foremen are supervisors within the meaning of the Act. The General Counsel and the Charging Party contend, however, that despite the frequency of substitution by Minor and McAfee, the fact of their substitution cannot be the basis for a supervisory finding on February 9. Such a basis would be invalid because both Minor and McAfee in late 1977 asked to be relieved of the substitute role and Re- spondent acquiesced. Nonetheless, McAfee did in fact substitute for the foreman subsequent to his request. As- suming, arguendo, the contention would only be valid if the substitutions were the controlling factor. Respondent's publication of parking privileges for su- pervisors, which included the seven permanent MCs and the inclusion of the MCs in the management seminars, is further proof of the communication to employees of MC's supervisory authority. The issue of whether an employee is actually a super- visor occurs frequently, but in spite of the wealth of cases, is not an easy one. One can cite case upon case to support his position no matter what the contended out- come. It is for this reason I find the parties' briefs, al- though complete, little help to me in deciding the ulti- mate issue. The Board has held that the absence of authority to hire or discharge employees is not dispositive of the su- pervisory issue. See Florence Printing Co., 145 NLRB 141 (1963), wherein the Board stated, "While the record is clear that Holland does not have the right to hire and fire employees, the possession of any one of the powers enumerated in Section 2(11) of the Act is sufficient to es- tablish supervisory status since the section is interpreted disjunctively."12 There is a caveat however, in that, the exercise of any such power must not be routine, or in fact, fixed. The legislative history discloses the intended distinguishment between straw bosses, leadmen, setup men, and other minor supervisory employees on the one hand, and the supervisor vested with genuine manage- ment prerogatives on the other. It has been held, e.g., that the fact that one employee is skilled and gives instructions to or makes daily assignments to other em- ployees does not, standing alone, require a finding of su- pervisory status. Lakes Concrete Industries, Inc., Milford 12 Sec. 2(11) of the Act provides: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effective- ly to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 284 TIMES HERALD PRINTING COMPANY Black & Tile Co. and Concrete Sand & Materials Co., 172 NLRB 896 (1968). Nor is it as Respondent contends, the existence of the power which determines the classification, citing Ohio Power Company, 176 F.2d 385 (6th Cir. 1949), for in com- menting on that principle, the First Circuit, in 1952, stated, "We do not take this statement to mean that mere existence in theory only of a power described in a statute is enough to make a 'supervisor."' N.L.R.B. v. LeLand- Gifford Company, 200 F.2d 620, 625 (Ist Cir. 1952). There must be more than mere existence of power. The Board made it clear that it is the possession of the supervisory authority and not its exercise that is determi- native. The Board reasoned that the employees must be aware of and observe a boss to employee relationship with the individual whose duties are under scrutiny. The Eavey Company, supra The evidence must clearly identify an employee as an active arm of management with recognizable responsibil- ities and duties. Recognizable, i.e., by the rank and file. It is this basic test which I apply to the case at hand. The permanent MCs were endowed with authority by Respondent. The endowment was publicized by Re- spondent for all employees. The permanent MCs as- sumed and exercised the authority almost on a daily basis. Thus, rank-and-file employees were assigned their work, instructed, and directed in its performance, were disciplined both orally and in writing, were denied a work shift if reporting late, were excused from shift early, received some overtime work, and had minor complaints adjusted, all by the permanent MC. Addition- ally, the MC chose his assistant from among the crew to aid him in performance of those duties. As the General Counsel contended, it is not titles that are determinative but the functions performed and the authorities possessed and/or exercised. Accordingly, I conclude and find that Minor and McAfee and the other permanent MCs are supervisors within the meaning of Section 2(11) of the Act. I make the above finding with partial reliance on the periodic foreman substitution of the MCs. The foreman substitution was not controlling, however, since my finding would remain unchanged in the absence of such substitution. s Respondent contended that there can be no violations of the Act from the discharge of a supervisor for that su- pervisor's union activities. It is true that the protection of the Act runs only to employees, not supervisors, and a discharge of a supervi- sor for engaging in union activities does not violate the Act. The Mousetrap of Miami, Inc., d/b/a Bea Moreley's Mousetrap, 174 NLRB 1060 (1969). There are certain cir- cumstances, where the discharge of a supervisor inter- feres with employee rights, and the discharge thereby be- comes unlawful, however, the General Counsel ad- vanced no such theory of the case nor pleading to sup- port it. Neither does the record contain any evidence of j" Several pages of the record were consumed with testimony and ex- hibits relating to Excelsior lists from past elections. Excelsior lists are made up by the employer for the Board's use in conducting elections only. Placement thereon or the absence thereon is not dispositive of any issue particularly, employee status. I therefore gave no consideration to arguments relative to the list. such existing circumstance. The case therefore turns on the MC's status. Since MCs are clearly statutory supervi- sors, they are not entitled to a protected right to engage in union or other concerted activity on behalf of a union. The employer may discharge them with impunity even if it be proven that they engaged in such activity, and were discharged for it. Boyer Bros., Inc., 170 NLRB 1108 (1968). The Board more recently held that the discharge of a supervisor for refusing to adequately support his em- ployer's antiunion campaign, where the supervisor was not required to engage in any unlawful activity, does not violate the Act. In the case three supervisors were dis- charged because they failed to report on the union activ- ities of the employees whom they supervised. The em- ployer considered such failure as a display of union sym- pathy and company disloyalty. Western Sample Book and Printing Co., Inc., 209 NLRB 384 (1974). The record makes it abundantly clear that Minor and McAfee were suspended, and then discharged for their involvement in union activities in the pressroom. 14 In view of my finding that Minor and McAfee are statutory supervisors, I further find that the General Counsel has failed to establish that the suspensions and discharges violated Section 8(a)(1) and (3). The Board recently ac- knowledged that supervisors who engage in concerted or union activity are not protected, and do so at their peril. See DR W Corporation d/b/a Brothers Three Cabinets, 248 NLRB 828 (1980). Assuming, arguendo, if the evidence showed that Minor and McAfee had not, in fact, en- gaged in union activity, it would not require a different result. The 8(a)(4) allegation rests on basically the same set of operative facts, i.e., the two employees were questioned and threatened because of their union activity, which re- sulted in their filing a charge against their employer. The General Counsel contends that the discharge followed the filing of the charge. The Charging Party joins the General Counsel. Respondent contends that the filing of the charge followed its decision to terminate the two in- dividuals and, in any event, the discharge was accom- plished before Respondent had any knowledge of the charge. The General Counsel's evidence was limited to Re- spondent's receipt of the charge evidenced by the regis- tered receipt, and a post office witness who testified to the normal procedures for handling of registered mail. Respondent offered uncontroverted evidence that the decision to terminate Minor and McAfee was made 3 days prior to receipt of the charges and, precipitous to the conduct causing the suspension and discharge. I am not persuaded by the General Counsel's evidence nor will I infer the cause of discharge to be the filing of the charge, based on timing. The record contains exten- sive testimony of Respondent's consideration of the con- duct of Minor and McAfee on February 9 and 10. Minor '4 Respondent, on the record, offered to stipulate that Minor and McAfee were engaged in union activities during the critical period and were discharged for it. The General Counsel agreed to stipulate but the Charging Party refused. Additionally, the Charging Party argued that the attempt at journeymen evaluations on February 8 was only to support Respondent's decision to discharge employees claimed to be supervisors. See fn 5. 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and McAfee reacted to Respondent's investigation and considerations by attempting to forestall termination and protect their job. The General Counsel and the Charging Party offer the fact that Smith, who did not file a charge was not discharged, as probative of Respondent's moti- vation in discharging Minor and McAfee. It is also a fact that Smith had not engaged in union activity and al- though he received the same job threat as Minor and McAfee did not feel compelled to seek anticipatory re- dress from the Board. 5 It is true that a supervisor has a public right to file charges with the Board, both to have his supervisory status decided by someone other than his employer and to redress any discrimination against him because of the filing of the charge.1 6 While it is true, that the Board's approach to Section 8(a)(4) generally has been a liberal one in order fully to effectuate the sec- tion's remedial purpose, the discrimination must be proven. The burden of proof rests on the General Coun- sel to establish the allegations of his complaint by a pre- ponderance of the evidence. I conclude and find that the General Counsel failed to sustain his burden of the al- leged 8(a)(4) violation. Additionally, I conclude and find that the General Counsel failed to sustain his burden on the alleged independent violations of Section 8(a)(1). 1t McAfee testified that Powers in the critical interview stated, "Now this is the time. If you have anyting to say, this is the time to do it." 6 Respondent's argument on "due process" relating to the Board's in- vestigation of the 8(aX4) violation without having an (aX4)-before it, in my view, is answered by the very case cited by Respondent, N.L.R.B. v. Fant Milling Ca, 360 U.S. 301, 299 (1959), and the court's language quoted, "There, the Court noted that nothing in the Act precludes the Board from 'dealing adequately with unfair labor practices related to those which are related to those alleged in the charge,' citing National Licorice Co. v. N.LR.B., 309 U.S. 350 (1939)." It is the Board's province to decide when the Act has been violated and what sections, not the charging party's. ADDITIONAL CONCLUSIONS OF LAW i. Permament Men-in-charge, particularly Minor and McAfee are supervisors within the meaning of Section 2(11) of the Act. 2. Respondent did not violate Section 8(a)(l) of the Act by interrogating, threatening, or requesting a report on union activities from permanent Men-in-charge, Minor, McAfee, and Smith. 3. Respondent did not violate Section 8(a)(1) or (3) of the Act by suspending its permanent Men-in-charge, Minor, McAfee, and Smith. 4. Respondent did not violate Section 8(a)(l) or (3) of the Act by discharging its permanent Men-in-charge, Minor and McAfee. 5. Respondent did not violate Section 8(a)(l) or (4) of the Act by discharging its permanent Men-in-charge, Minor and McAfee. 6. General Counsel has failed to sustain his burden of proof for any allegation in the complaint. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 7 The complaint is dismissed in its entirety. An In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 286