The Denver Post

The Denver Post, Inc. and Bennie Maestas. Case 27- CA -5982 September 20, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 6, 1979, Administrative Law Judge Russell L. Stevens issued the attached Decision wherein he found one violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and recommended the dismissal of all other allegations of unlawful con- duct. Thereafter, Respondent excepted to the 8(a)(1) finding and filed a supporting brief. The General Counsel 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 exception and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) of the Act in mid-Sep- tember 1978 when Gary Baker, the supervisor of the second-shift janitors,' told employee Bennie Maestas, a union steward, that Norman Allan, Respondent's director of janitorial services, did not like Maestas because he was a union steward. In this connection, the Administrative Law Judge referred to the uncon- tradicted testimony of Maestas and fellow employee Edward Urias that Baker made the foregoing state- ment. In addition, Baker testified that he made that statement to Maestas in Urias' presence with the ex- planation that it was based on his conversation with Allan. The latter denied having such a conversation with Baker. The Administrative Law Judge did not credit Ba- ker's testimony as to his conversation with Allan as he deemed it to be "contrived and unlikely." How- ever, as indicated above, the Administrative Law Judge nevertheless found in reliance on the testimony of Maestas, Urias, and Baker that the latter did tell Maestas that Allan did not like him because he was a union steward. Respondent argues that Baker, Maestas, and Urias were all "equally unbelievable" and that, in any I The Administrative Law Judge held without exception that Baker was a supervisor within the meaning of the Act. THE DENVER POST event, the statement in question was "pure hearsay" and did not in fact have a coercive effect on Maestas because he admitted that his relationship with Allan was "basically good." Although Baker's testimony as to the basis for his statement to Maestas was not given credence by the Administrative Law Judge, the issue herein is not its accuracy, its possible hearsay character, or the sub- jective test for determining its coercive effect on Maestas, but rather whether Baker in fact made the statement to Maestas and whether it had a tendency to coerce employees in the exercise of the rights guar- anteed them in Section 7 of the Act.2 In view of the uncontradicted and mutually corroborative testimony of Maestas, Urias, and Baker3 that the latter made the statement which was properly held by the Adminis- trative Law Judge to be coercive, we find no merit in Respondent's exception and accordingly adopt the Administrative Law Judge's conclusion that said statement was made and violated Section 8(a)(1) of the Act because it expressed management's hostility toward Maestas for serving as a key representative of the Union and thus tended to interfere with his duties in that capacity.4 Moreover, Baker's statement would also tend to discourage other employees-in this case employee Urias-from engaging in protected activi- ties guaranteed them in Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, The Denver Post, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. 2 See Perko's Inc., 236 NLRB 884 (1978), wherein the Board held in ac- cord with established precedent that no proof of coercive intent or effect is necessary. as the objective test to be applied is whether a respondent's state- ment may reasonably be said to tend to interfere with the free exercise of employee nrights under Sec. 7. 3 It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. With respect to the partial crediting of Baker, see N.LR.B. v. Universal Camera Corporation, 179 F.2d 750, 754 (2d Cir. 1950), wherein the court held as follows: "It is no reason for refusing to accept everything that a witness says because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." I As the Board pointed out in The Berry Schools, 239 NLRB 1160 (1979), "it is well settled that statements ... implying that the employer does not look with favor upon employees engaging in protected activities are coercive because they discourage employees .." from doing so. 245 NLRB No. 14 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This case was heard in Denver, Colorado, on March 14 and 15, 1979.' The complaint, issued November 21, is based upon a charge filed October 4 by Benny Maestas,2 an individual. The complaint alleges that The Denver Post, Inc. (Respon- dent), violated Section 8(a)(1) and (3) of the National Labor Relations Act (Act). All parties were given full opportunity to participate, to introduce relevant evidence, examine and cross-examine witnesses, argue orally, and file briefs. Briefs, which have been carefully considered, were filed on behalf of the Gen- eral Counsel and Respondent. Upon the entire record of the case, and from observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is, and at all times material herein has been, a corporation duly organized under and existing by virtue of the laws of the State of Colorado. Respondent maintains its principal office and place of business in Denver, Colo- rado, where it publishes a daily newspaper, The Denver Post. In the course and conduct of its business operations, Respondent annually derives revenue in excess of $200,000. Respondent holds membership in, and subscribes to, inter- state news services and carries advertisements in its newspa- per for nationally sold products, deriving in excess of $5,000 per year from said advertisements. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Denver Newspaper Guild, Local No. 74 (Union) is, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Background' This controversy involves janitorial employees and the services they perform in Respondent's facilities in Denver. Those facilities are comprised of a three-floor plant where Respondent's newspapers are published, and five floors of offices, both areas of which are located in a building occu- pying most of a city block; and a two-floor portion of a separate building shared with tenants not involved herein. Respondent publishes morning and evening newspapers, as well as weekend newspapers which include rotogravure sec- tions. Janitorial services differ between the plant and the I All dates herein after are within 1978, unless otherwise stated. 2 Individuals are referred to herein by their last name. 3This background summary is based upon credited evidence and testi- mony that is not in dispute. offices. The plant area creates much dirt and grime, and portions of it are almost constantly soiled with ink. A prin- cipal janitorial effort is required in confining the dirt and ink to the plant, in order to prevent tracking material into the offices. The plant is in operation 24 hours each day, 7 days each week, and janitorial services are scheduled to be performed when the minimum number of office and pro- duction employees are working. Norman Allan' has been Respondent's director of janito- rial services since May 23, 1978. In the exercise of his au- thority as director, Allan frequently confers, and works in coordination, with James Banman, Respondent's director of personnel, and Roger Bordenkircher, Respondent's labor relations manager. Allan has had approximately 20 years' experience in janitorial work, much of it in administration of janitorial services. Allan has had much exposure to labor matters, and never has worked with a janitorial force that was not organized. Allan was hired to reorganize and im- prove Respondent's janitorial force, which prior to that time had been poorly organized and inefficiently run. One of the problems of the past had been excessive absenteeism of employees, and Allan was asked to bring that problem under control. When Allan came to work in May, Respondent em- ployed approximately 35 janitors who worked two shifts; 7 a.m. to 3:30 p.m. and 4 p.m. to 1:30 a.m. One of the first changes Allan made was to institute a new, third shift to work from II p.m. until 7:30 a.m. Starting time for the second shift was changed from 4 to 5 p.m., in order to avoid conflict on the floor with nonjanitorial employees who quit work at 4:30 p.m. Each shift has a supervisor, who directs the work of employees and who does not do janitorial work except on an emergency basis. Supervisors oversee the work, and have authority to give verbal warnings. Gary Baker was supervisor of the second shift from August 27, 1978, until his discharge October 2, 1978.' Total comple- ment of janitorial employees has remained, during times relevant herein, at approximately 35. The purpose of insti- tuting the third shift was to permit janitorial work when the fewest number of production employees were working. Al- lan changed job assignments of some employees who were doing particular work, and allowed employees to request particular shifts, with such requests being granted on the basis of seniority., Other changes were made, as discussed infra. Allan scheduled a meeting for employees to be held at 5:30 p.m. on October 2. Maestas, a union steward on the second shift (5 p.m. until 1:30 a.m.), was among the em- ployees scheduled to attend the meeting. The purpose of the meeting, which was one of a series held by. Allan on a fairly regular schedule, was to discuss matters of general em- ployee interest, issue instructions, and disseminate informa- ' Counsel stipulated that Allan was a supervisor at times relevant herein. I Baker's discharge is not in issue. It is clear from the record, and found, that Baker was a supervisor within the meaning of the Act from August 27 until October 2. 6 Respondent's contract with the Union (Resp. Ex. 4) provides for applica- tion of seniority in selection of shifts. Prior to Allan's employment by Re- spondent, that provision of the contract was not followed. Allan instituted the practice soon after his arrival. Earlier practice was to apply seniority to job assignments. rather than to shifts. Allan discontinued the former prac- tice. 70 THE DENVER POST tion. Maestas was not present when the October 2 meeting, which started a few minutes late, was convened. Allan sent Baker out to find Maestas and Willie Salone, a shift em- ployee, who also was not present. Baker came back after a search, and reported to Allan that he found Salone, but that Salone said he did not want to come to the meeting. Allan told Baker to go out again in search of Maestas, and to tell Salone and Maestas that if they did not come to the meet- ing, they were to go home. Baker did as instructed, and reported to Allan that Salone was going home. Baker said he could not find Maestas.7 As part of his reorganization efforts, and pursuant to his instructions when he was hired, Allan reviewed absentee records of employees and discussed employee performance with Banman, Bordenkircher. and the supervisors. After re- viewing Maestas' absentee record, Allan prepared a memo- randum to Maestas, dated August 9.5 The memorandum states, in part, "It is suggested that you do whatever is nec- essary to improve your attendance." The record shows that Maestas has been absent from work on many occasions, as discussed infra. Maestas' frequent absenteeism continued, and on October 2 Allan prepared a letter to Maestas, dated October 3.9 The letter placed Maestas on suspension from October 4 to 5. Because of Maestas' refusal to attend the meeting of Oc- tober 2, Allan wrote him a letter of reprimand, dated Octo- ber 3.'10 Allan stated in the letter, inter alia, "I feel this is rank insubordination and would warrant a suspension .... Since you have already been given a suspension for exces- sive absenteeism, I will not compound disciplinary action." Issues The principal issue is whether or not Maestas was repri- manded, given less desirable work duties, and suspended because he was a union steward, as alleged by the General Counsel. Respondent contends that Maestas was treated as any other employee, without regard to his position as union steward. Minor issues involve 8(a)(1) allegations. A. Union Stewards Two of Respondent's employees were union stewards at times relevant herein-Maestas, on the second shift, and a Mr. Vigil on the first shift. Maestas had been a steward approximately 6 years. Nearly all janitorial employees were union members, and frequently were in touch with the two stewards concerning grievances and working conditions. The two stewards report problems to the executive secre- tary of the Union, a Mr. Wanek. Maestas was appointed to the plant grievance committee in July 1978. Also on the committee were Wanek, Bordenkircher, Banman, and Al- lan. The committee hears disciplinary and other grievances 'Baker testified that he talked with Maestas on the second search, but there is discrepancy on this point between the testimony of Baker and Mae- atas. Allan's testimony that Baker reported on both occasions that he could not find Maestas, is credited. ' G.C. Exh. 9. ' G.C. Exh. 4. ,o G.C. Exh. 3. made by janitorial employees. Maestas testified that he at- tended approximately six meetings of the grievance com- mittee between July and November. Allan credibly testified that he often met with Vigil, as well as with Maestas, con- cerning grievances and other matters involving employees and Respondent. The General Counsel contends that Respondent gener- ally, and Allan particularly, engaged in harassment and other activity against Maestas because of the latter's posi- tion as union steward. The General Counsel alleges that on September 18, Baker told Maestas that Allan did not like him because he was a union steward. Maestas testified in support of that allegation, and Edward Urias. Maestas' fel- low employee, corroborated Maestas. Baker testified that, when he became a supervisor August 29, Allan talked with him about the duties of a supervisor. Baker testified that Allan told him, among other things, that he did not like Maestas "as a union steward and he didn't like him butting into the company's business ... telling the activities to the other guys," and that he would like to get rid of Maestas, among other "dead weight." Baker said he related that con- versation to Maestas in September, with Urias present. On cross-examination, Baker testified that Allan told him that he did not like Maestas because Maestas was a union stew- ard, and that he told Maestas and Urias about Allan not liking Maestas as a union steward, in order to get them to improve their work performance. Allan testified that he told Baker to work with Maestas on all union-related matters, and he denied telling Baker that he did not like Maestas because he was a union steward. Baker was fired by Allan following an angry, threatening, and insubordinate outburst by Baker, and it was apparent throughout Baker's testimony that he is antagonistic toward Allan. Baker's testimony that Allan said he did not like Maestas because of the latter's being a union steward, ap- peared contrived and unlikely; it is given no credence. However, that is not the issue. Regardless of what Allan may or may not have told Baker, the question involves what Baker, who was a supervisor, told Maestas. It is found that Baker told Maestas that Allan did not like him because he was a union steward, and that statement clearly is coer- cive: on its face, it creates a situation that constitutes inter- ference with union activities. The allegation of paragraph V(a) of the complaint is supported by the record. B. Alleged Change of Work Duties The fact that Allan made substantial changes in shifts and work assignments is not in dispute. He created a new, third shift; changed the worksites and assignments of Mae- stas and many other employees: altered the way in which work was done; instituted a record-keeping procedure; and began following the contract procedure of assignments to shifts on the basis of seniority. The General Counsel contends that Maestas was singled out for harassment by assigning him less desirable work duties. Baker and Allan agreed in their testimony that, after Baker became supervisor, they discussed the employees and concluded that several of them, including Maestas, should be given special attention because of their poor work per- 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formance." Employees were moved among jobs, partially upon the basis of their preference, but principally in order to improve overall work performance of the department. There was not, nor had there been in the past, assignment to particular jobs on the basis of seniority. Baker testified that Allan once said he would make work assignments on the basis of seniority, but Allan's denial of that testimony is credited. Allan credibly testified that he told employees they had a choice of starting times (i.e., shift preference) based upon seniority. There is no evidence that Maestas was treated any differ- ently from other employees. He worked the shift he wanted and asked for; he was given that shift based upon seniority. His work was changed on one occasion, upon his request, to relieve him from having to use a ladder to wash walls. His work essentially remained the same, i.e., ordinary janitorial work. He presently works in an area of the building that is less dirty and demanding than where he formerly worked. There is no evidence that his present assignment is more onerous, dangerous, or heavier than it has been in the past. Baker testified that Allan instructed him to make it rough on employees that they both agreed were unsatisfactory, and both Baker and Allan testified that Maestas was not a good employee. Baker was not a credible witness, as dis- cussed supra, but assuming arguendo that Allan told Baker to make it rough for unsatisfactory employees, (a) there is no indication that Maestas was treated any differently from any other employee, (b) there is no indication that Maestas' union activities were considered, wholly or partially, when job assignments of nearly all employees, including that of Maestas, were changed, (c) Vigil's job assignment was changed, yet he, too, was a union steward, (d) Maestas was not assigned to the heaviest, or the dirtiest jobs, (e) Maestas' former job assignments were in dirtier areas than those to which he later was changed, and (f) Mendoza testified that he had worked the same job assignment for 7 years, but his assignment was changed by Allan. Paragraph Vl(a) of the complaint is not supported by the record. C. Sspension of Maestas One of Allan's responsibilities, from the outset of his em- ployment, was to reduce the high absenteeism rate of the janitorial employees. Respondent's practice prior to Allan's employment was to issue warning letters to employees, and to discipline them, for what the company referred to as "excessive absenteeism."" Banman credibly testified rela- tive to Respondent's policy concerning, and views toward, absenteeism. He distinguished work-related injury, surgery, and hospitalization from absenteeism allegedly occasioned by illness, but for which there was little or no verification. He testified that Respondent tends to be lenient in the for- mer instances, but that in any case, the Company must be alert to the loss of time and money occasioned by absence 1 Both Baker and Allan testified to specific instances in which Maestas' work performance and attitude were not satisfactory. However, that testi- mony is only marginally relevant. Maestas don not contend that he was disciplined because of poor work performance. 12 R. E.h. I I(a)-(e). from work, for whatever cause. Banman stated that an em- ployee who compiles a record of frequent days off, one or two at a time, whether for alleged illness or for any other cause, becomes a marginal employee: the Company still must get its work accomplished. Banman testified that Re- spondent does not agree that an employee is entitled under the contract with the Union to 12 days of sick time each year, regardless of whether or not the employee is ill or that sick time is an employee's to take as paid leave, in the manner of vacation leave. Allan's review of Maestas' sick leave and absenteeism was routine, and a part of his general review of sick leave and absenteeism of all janitorial employees; it is clear, and found, that Maestas was not singled out for review. Allan's review showed that Maestas often has been off work since 1970 for a number of illnesses and reasons including pulmo- nary infections, an automobile accident, diabetes, back trouble, three operations, gall bladder problems, and ulcers. He has been paid for his sick time off, either pursuant to company policy or to workmen's compensation provisions. In addition, Maestas has taken vacation time and sick leaves of 1 or 2 days at a time. Respondent's records' show that Maestas was absent from work a total of 212 hours in 1978; 178-1/2 hours were compensated, and 33-1/2 hours were not compensated. Maestas testified that he does not remember ever having been warned about his absenteeism, but Allan testified that he orally warned Maestas, alone or with a supervisor, on two occasions. Allan is credited.' On August 9, Allan wrote a memorandum" addressed to Mae- stas, reading as follows: This memo is to advise you that since the week of May 21. 1978, you have taken 5-1/2 Sick days from work. It is suggested that you do whatever is necessary to improve your attendance. Norman C. Allan As a result of his continuing review of absenteeism, Allan disciplined several employees. Kathy Jarman was sus- pended sometime after July 1978 because of her absentee- ism. She grieved her suspension, and Maestas heard her grievance as a member of the grievance committee. The suspension was upheld. Urias was discharged for excessive absenteeism, but after he brought in a doctor's statement, the discharge was changed to a 2-day suspension. He finally was discharged in February 1979 because of excessive ab- senteeism. In addition to Jarman and Urias, other employ- ees were disciplined because of excessive absenteeism." In- cluded were employees Ring, who was given an oral reprimand; Lewis, who was discharged; Anderson, who was warned; Garcia, who was suspended and later dis- charged; Jones, who was suspended and later discharged; Reeves, who was discharged; and Taylor, who was dis- charged. W. Salone was given a letter of warning on Octo- ber 3."' " Resp. Exhs. 12, 13, and 14. Exh. 13 shows that Maestas took more than 100 hours of sick leave from January through September 1978. '4 In March 1970 Maestas was discharged for excessive absenteeism, but the discipline later was changed to a 3-day suspension. 5 G.C. Exh. 9. " Resp. Exh. IO(a)-(i). i Resp. Exh. 7. 72 THE DENVER POST On each occasion of discipline, including that of Maestas, Allan first conferred with Bordenkircher, and sometimes also with Banman. Bordenkircher and Banman agreed upon a 2-day suspension for Maestas, and Allan prepared the letter of suspension, reading as follows: On August 9, 1978 1 issued a memo to you regarding your excessive absence from work. Since that memo was issued you have missed part of two days and re- ported ill one full day. Since June 13th of this year, you have been absent from work a total of eight full days and three partial days. I feel that his is rather excessive, especially from January 1, 1978 to September 23, 1978 you have used over one hundred hours sick time. You will be on suspension from October 4 to Octo- ber 5. You will be expected to return to work on Octo- ber 6, 1978. /s/ Norman C. Allan Director, Janitorial Services Maestas filed a grievance because of the letter of suspen- sion. He testified relative to his reason for filing the griev- ance: I knew I still had plenty of sick time, so I just didn't feel that I should get suspended because I was off be- cause that's what the sick time is for, to use it whenever you need it. The grievance committee held a meeting in October, at which union representatives contended that the suspension was not justified because Maestas had accumulated sick time. Allan and Bordenkircher credibly testified that, at no time during the grievance hearing, was the fact discussed that Maestas was a union steward, nor did Maestas men- tion that argument. That testimony was not challenged by the General Counsel. The grievance letter was withdrawn because Maestas personally filed an unfair labor practice charge with the National Labor Relations Board. Discussion It is clear that Maestas was treated the same as all other employees. Allan was cracking down on absenteeism, and he took action against all employees, including Maestas, that he felt were taking excessive sick leave. So far as the record shows, all employees who took excessive leave were disciplined. The General Counsel argues that employees Jackson and Weston were on sick leave for long periods without being disciplined, but Allan credibly testified that both employees were on sick leave because of work related injuries. Salone was given a letter of reprimand for exces- sive absences, but was not suspended. Allan credibly ex- plained that Salone was not suspended because he was not suspended because he was not paid for the 7 hours that he was off the job;' Allan considered that to be equivalent to a suspension. Maestas was warned about his absenteeism, both orally and in writing, but continued to stay off work. Maestas Salone's absence from work is discussed infra. contends that he was entitled to absent himself from work because he had accumulated sick leave, but that argument is without merit. The company's policy (embodied in a con- tract with the Union) of granting 12 days paid sick leave each year does not mean that employees may take that time without any reference to, or regard for, company work re- quirements. As Bordenkircher explained, Respondent in some instances may find it necessary to terminate employ- ees who are genuinely ill or injured and legitimately off work, since production must continue. Neither company policy nor the union contract guarantees to employees the right to absent themselves from work, whether for illness or some other reason. A claim for paid sick leave may be made in reliance upon a doctor's statement as evidence of illness, and Respondent may pay the claim upon receipt of that evidence. However, it does not follow that Respondent cannot assert that an employee is taking excessive sick leave, even though sick time is accumulated. There is no evidence that the Union, or any employee other than Mae- stas, filed a grievance or otherwise contended that Respon- dent improperly imposed discipline for taking excessive sick leave. The principal question thus is whether or not Respondent took action against Maestas because he was a union stew- ard. The testimony of Allan and Bordenkircher that Mae- stas was not disciplined because of his union activities, is consistent with the record, and is credited. There is no evi- dence that Respondent disciplined Maestas because of his union activities, or for any reason other than the fact that he, as well as many other employees, was off the job more often than Respondent's production schedule permitted. The allegation of paragraph Vl(b) of the complaint is not supported by the record. A. The Reprimand of Maestas Allan credibly testified that, soon after he started work- ing for Respondent, he talked with Vigil and Maestas, told them he would be having meetings with employees, said they were an important communication link with employ- ees, and said he wanted them at the meetings, particularly for post-meeting "cracker barrel" sessions. Maestas denied that testimony by Allan, and said Allan never made such statements to him. Maestas' testimony was self-contradic- tory, sometimes confusing, and generally unconvincing. He appeared throughout his recitations to be evasive and unre- liable. His denial of Allan's testimony is given no credence. Allan credibly testified that attendance of employees at meetings during their working shifts was mandatory, unless they were specifically excused; he also testified that employ- ees were not required to come to work early in order to attend meetings, or to come from home to a meeting of employees on a separate shift. The meeting of October 2 was held during second shift work hours,'9 and there is no dispute concerning the fact that employees were given advance notice of the meeting; Maestas acknowledged that Baker told him "at least a few 1 Edward Urias testified that a meeting was held for third shift employees on October 2, and that employees were notified of the meeting during the preceding week. 73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days in advance" of the meeting. Baker testified that all employees, including Maestas, personally were notified of the meeting the week prior to October 2, and that a notice of the meeting was posted on the bulletin board. '2 Maestas acknowledged that he willfully absented himself from the meeting, and that he knew he was supposed to attend. Maestas also acknowledged that the meetings in- volved working conditions, that he had attended such meet- ings in the past, that he had not objected to attending meet- ings in the past, and that there was nothing new or unusual about the scheduling of the meeting of October 2. Baker testified that he talked with Maestas when Allan sent him to look for Maestas, and that Maestas stated "that with all the work that Mr. Allan put on him, he did not have time to go to the meeting if he was expected to get it done." Baker testified that he returned to the meeting, and told Allan what Maestas had said.' Maestas testified that he did not see, or talk with, Baker just prior to the meeting, and denied Baker's testimony on this point. That testimony and denial by Maestas are given no credence. Allan testified that he saw Maestas later in the evening of October 2, after the meeting, and asked him why he was not in attendance: I said, "Bennie, why didn't you come to the meet- ing?" Bennie said, "Well, I had been to my doctor and my doctor said I couldn't upset myself because of my condition. I know if I went to that meeting that it would upset me, so didn't go." I then replied to Ben- nie, I said, "As a union representative, I need you there, and if your attendance at the meetings is going to upset you, being there as a union representative, you should resign the position as union representative." Allan's testimony was corroborated by Paul Mendoza, a janitorial employee, who testified that he overheard Allan talking with Maestas, and that Allan said Maestas "was the union steward, that he had to be in the meeting. If he couldn't do it, well just let it go." Maestas' brief testimony on this point generally corrobo- rated that of Allan. In explaining why meetings upset him, Maestas testified that, at an earlier meeting, he had been "harassed" by Allan. Maestas and Allan testified concern- ing this matter, and it is clear that the "harassment" con- sisted of nothing more than Allan orally defending Respon- dent against Maestas' allegation that Respondent was parsimonious in its provision of work equipment. Allan's testimony is credited, and it is found that Maestas was not harassed at the meeting. It appears that, rather than feeling "harassed," Maestas merely was reacting to the efforts of a new boss to whip the janitorial department into shape. Allan testified that he drafted the reprimand letter to Maestas, and discussed the matter with Banman and Bor- denkircher. It was decided that, since a suspension of Mae- stas because of excessive absenteeism already had been de- cided upon, only a letter of reprimand would be issued for failure to attend the meeting. The testimony of Allan, Ban- 2 Allan credibly testified that the time of the meeting was changed from 7 to 5 p.m., to preclude employees from breaking into their work schedule after starting work at 5 p.m. 21 As noted supra Allan credibly testified that Baker did not report to him. what Maestas allegedly told Baker. man, and Bordenkircher that they never discussed or con- sidered Maestas' union activities when they were faced with the discipline of Maestas is credited. The General Counsel argues that employees Mendoza, Gordon. and Brander were absent from the meeting, but not disciplined. Maestas testified that he grieved his letter of reprimand because he felt Mendoza either should have been required to attend the meeting, or should have been reprimanded for not attending. Allan credibly explained that Mendoza worked on the third shift and had not arrived for work when the meeting started and that he was not required to come to work early in order to attend. Brander did attend the meeting. Gordon attended the 11 p.m. meet- ing, but came in late. Gordon did not have to come to work early to attend, but he did. Only Maestas and Salone will- fully absented themselves from the meeting, and both of them received letters of reprimand. Discussion The only substantial question is whether Maestas was given a letter of reprimand because of his union activities. Maestas was not treated differently from Salone, who also refused to attend the meeting. Vigil, the day shift stew- ard, was not the subject of alleged harassment. When Mae- stas attended his grievance hearing, he did not contend that he was being harassed because of his union activity. There is no independent support for the General Counsel's con- tention, and there is not adequate testimony and evidence upon which to base an inference, that the reprimand letter was intended to interfere with Maestas' union activities. The allegation of paragraph Vl(c) is not supported by the record. The General Counsel alleges (paragraph V(b) of the com- plaint) that Allan told Maestas he should resign his position as union steward. That allegation is not supported by the record. Allan had made it clear to all employees that the meetings were important, and working conditions were dis- cussed at all meetings. It was common practice to hold dis- cussions at the meetings in which the employees partici- pated. Allan told Maestas that his attendance was important, since he was a union steward. It is clear that Allan was correct; it was important for the steward to at- tend the meetings since they involved, almost exclusively, work conditions of the employees, and the employees worked pursuant to a contract with Respondent. Maestas' only excuse for refusal to attend on October 2 was that the meetings upset him, a contention not proved at trial. How- ever, even assuming, arguendo, that the meetings upset Maestas, that fact would strengthen Respondent's version of events. Whether Maestas' contention was a sham, or was bona fide, reliance upon that contention fully justified Al- lan's representation to Maestas that, if Maestas physically or emotionally was unable to attend the meetings in his capacity as steward, he should reliquish those duties to someone who could do the task. That representation by Allan was not threatening, vindicative, or coercive. It was a statement of the facts of life. In no event can it reasonably be construed as an unadorned statement to Maestas that he should quit his job as steward. 74 TIlE DENVER POST IV, 11f FF-E('I OF1 I le NFAIR LABOR PRA(CICES PON ('O()MMER(CE Respondent's activities set forth in section III, above, oc- curring in connection with the operations of Respondent described in section 1, above, have a close, intimate. and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Triil RliMEDY Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)( I) of the Act. I shall recommended that it be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I hereby make the following: CON(C t SIONS OF LAW 1. The Denver Post, Inc. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Denver Newspaper Guild, Local No. 74 is. and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By one supervisor telling an employee that another supervisor did not like the employee because he was a union steward, Respondent violated Section 8(a)( 1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 The Respondent. The Denver Post. Inc., its officers. agents, successors, and assigns, shall: 1. Cease and desist from: (a) Through its supervisor, telling an employee that an- other supervisor did not like the employee because he was a union steward. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist labor or- ganizations, including the above-named organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose z7 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 he deemed waived for all purposes. of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at its Denver. Colorado operation copies of the attached notice marked "Appendix.":' Copies o the notice on tforms provided by the Regional DI)rector or Region 27. after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are customarilN posted. Reason- able steps shall be taken by Respondent to insure that the notices are not altered, defaced. or covered bv an other material. (b) Notify the Regional Director for Region 27. in wrlt- ing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. (I) It is further recommended that all allegations of the complaint found not proved, be dismissed in their entirety. 2! In the event that this Order is enftorced b a Judgment ofi a nited States Court of Appeals. the words in the notice reading "Posted hs Order o the National Labor Relations Board" shall read Posled Pursuant t,o a Judg- ment of the United States Court of Appeals Enforcing n Order o, the N.a- tional Labor Relations Board." APPENDIX NoniCE To EMPILOYEES POSID1: BY ORDER 01 it"L NAIIONAI. LABOR RE.A1I()NS BOARI) An Agency of the United States Government After a hearing in which all sides had an opportuni to present evidence and state their positions, the National l.a- bor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from the exercise of any such activities. WI: WII.. NOT, through our supervisor, tell an em- ployee that another supervisor does not like the em- ployee because he is a union steward. WE WILl. NOT in any like or related manner, inter- fere with, restrain, or coerce employees in the exercise of the rights to self-organization. to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activities. TIit DENVER PSI. IN('.