Bon-R Reproductions, Inc.

BON-R REPRODUCTIONS, INC. 429 Bon-R Reproductions, Inc. and Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paper- hangers of America, AFL-CIO. Case No. 2-CA-7535. Novem- ber 17, 1961 DECISION AND ORDER On May 16, 1961, Trial Examiner John C. Fisher issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Re- spondent, the Charging Party, and the General Counsel filed excep- tions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, to the extent consistent with this Decision and Order. 1. We agree with the Trial Examiner that the'Respondent violated Section 8(a) (1) of the Act by threatening and interrogating its em- ployees and we agree that the Trial Examiner properly rejected Re- spondent's contention that its interrogation fell within the so-called Blue Flash situation? Not only does the record show employer threats during the course of the interrogations, but it also appears that Spiel- man, Respondent's president, interrogated some employees about the possible union activities of the others and that he persisted in demand- ing that the employees indicate how they felt about the Union and whether they would like a union in the plant, and this after each had stated he knew nothing about the Union's telegraphic request for rec- ognition. Moreover, the timing of the interrogations and the fact that the coffee break meeting sought the same information previously ob- tained, convinces us that the Respondent conducted these polls for the purpose of interfering with its employees' union and concerted ac- 1 The General Counsel excepted to the Trial Examiner's admission of testimony by em- ployees as to whether they were actually coerced by the Respondent. While we agree that such testimony is irrelevant, we do not base any findings thereon, and the Trial Examiner's rulings were therefore not prejudicial. 'Blue Flash Express Company, 109 NLRB 591. 134 NLRB No. 38. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivities, rather than for the purpose of ascertaining whether the Union represented a majority in order to determine whether to accord it exclusive recognition.3 2. The Trial Examiner found that the Respondent discharged Scrima because he was inept in his work and slowed down production by deliberately mishandling his machine.4 The Trial Examiner fur- ther found that Scrima had reason to believe he would soon be dis- charged for cause and therefore started the union campaign to protect himself from termination. In our opinion the record does not support' these findings. Although President Spielman and Supervisor Janz both testified that Scrima was an unsatisfactory worker and that he had long mis- handled his machine, there is nothing in the record to show that the malfunctioning and excessive repair of the machine were due to Scrima's operation of the machine. The Trial Examiner apparently so concluded largely on the basis of Janz' testimony that Jaffa, who, serviced the machine on behalf of the seller, had told Janz that Scrima was responsible. While this testimony may establish that Jaffa made such statement to Janz, and might under some circum- stances establish that Respondent had reason to believe that Scrima was at fault, it does not, because, of its hearsay nature, establish that Scrima in fact mishandled the machine and there is no other substan- tial credible evidence in the record that Scrima's work was inferior. Nor does this testimony, when considered in the context of Respond- ent's other conduct, support the conclusion that Scrima was discharged because Respondent believed he was at fault. Thus, the record is devoid of any indication that Scrima was ever reprimanded or ad- monished because of the quality of his work, or, in fact that he was even aware that his work performance was considered unsatisfactory, ,as Respondent now claims that it was.' Furthermore, although Spiel- man, Janz, and Book testified that the alleged decision to fire Scrima. was made on Friday, Scrima was not fired until the following Tues- day afternoon, immediately upon admitting his responsibility for- motivating union activities at the Respondent's plant. It seems to us much more likely if Scrima was discharged for the assigned cause, that Spielman would have told Janz to fire Scrima during their Friday morning telephone conversation or else that Spielman would have fired him during the Monday interrogation or at least by Tuesday morning when Spielman personally paid each of the employees, including 3 Crystal Laundry and Di y Cleaning Company, 132 NLRB 222, Burke Golf Equipment Corporation, 127 NLRB 241, 245; Murray Envelope Corporation of Mississippi, 130 NLRB 1574 'While the Trial Examiner also credited Scrima's alleged inability to get along with the other employees as a cause for the discharge, the Employer does not give this as a reason Moreover, the record does not support the inference, which is apparently drawn„ that Scrima was on ill terms with most of the other employees c Hearst Publishing Company, Inc., 113 NLRB 384, 388. BON-R REPRODUCTIONS, INC. 431 Scrima. It seems clear that the discharge, occurring as it did in the context of Speilman's threats to the employees and immediately after Scrima's admission, must be construed as being motivated by an anti- union bias on the part of the Respondent. We are convinced, con- trary to the Trial Examiner's conclusion, that Spielman's language at the time of the discharge did convey his real motive and purpose. And we reject Spielman's subsequent explanation as the true reason for the discharge. Spielman, in our opinion, inadvertently revealed his true intentions by his spontaneous exclamation and then belatedly sought to exculpate himself from its legal implications.6 The fact that Spielman may be a "high strung, temperamental person" can hardly justify a different interpretation. Moreover, this interpre- tation is consistent with the antiunion animus revealed by Spielman's conduct in interrogating and threatening the employees, as found by the Trial Examiner and discussed above. We are satisfied from the foregoing that Scrima was discharged as a consequence of his partici- pation in union organization activities. Accordingly, we find the Re- spondent violated Section 8(a) (3) and (1) of the Act by engaging in such conduct. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The conduct of the Respondent as set forth in section III of the Intermediate Report, as modified above, occurring in connection with the operations of Respondent as set forth in section I of the Inter- mediate Report, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies-of the Act. We shall order the Respondent to reinstate Scrima to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall also require the Respondent to pay Scrima an amount equal to that which he would have earned as wages from the date of the discrimination to the date of offer of rein- statement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. In accordance with our usual practice, the period from the date of the Intermediate Report to the date of our Order herein will be ex- 6 See Ellis and Watts Products, Inc, 130 NLRB 1216 As set forth in the Intermediate Report, Scrima admitted his leadership of the Union during a meeting addressed by Spielman who emotionally invited the foremen to leave when Scrima stated , contrary to his response the previous day, that he was In favor of the Union 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eluded in computing the amount of backpay to which Scrima is en- titled, because of the Trial Examiner's recommendation that the com- plaint be dismissed, respecting Scrima's discharge? CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Philip G. Scrima, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bon-R Repro- ductions, Inc., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or any other labor organization, by discharging any of its employees, or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating its employees concerning their union membership or sympathies. (c) Threatening its employees that they could not have any union unless it wanted one. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Sign-Pictorial & Display Union Local 230, Brotherhood of Painters, Decorators & Paper- hangers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, 7 Custom Underwear Manufacturing Company, 108 NLRB 117, 121 BON-R REPRODUCTIONS, INC. 433 and to engage in collective bargaining or other mutual aid or protec- tion, or to refrain from any or all of such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Philip G. Scrima immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records helpful in analyzing the amount of backpay due. (c) Post in its plant at New York, New York, copies of the notice attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent's representative, be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are, not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps have been taken to-comply herewith. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that : WE WILL NOT discourage membership in Sign-Pictorial & Dis- play Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, or any other labor organi- zation of our employees, by discharging any employee, or other- wise discriminating in regard to the hire and tenure or term or condition of employment of any of our employees. 630849-62-vol . 134-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT coercively interrogate our employees concerning their union membership or sympathies. WE WILL NOT threaten our employees that they may not have any union unless we want one. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of the right of self- organization, to form labor organizations, to join or assist Sign- Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators.& Paperhangers of America, AFL-CIO, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Philip G. Scrima immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay that he may have suffered by reason of the discrimination against him. , All our employees are free to become, remain, or refrain from be- coming, members of the above-named Union, or any other labor organization, except to the extent this right, may be affected by an agreement in conformity with Section 8(a) (3) of the Act. BON-R REPRODUCTIONS, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed, the General Counsel of the National Labor Relations Board, for the Regional Director of the Second Region , New York, New York, issued a complaint on September 30, 1960, against Bon-R Reproductions, Inc., herein called the Respondent or the Company, alleging that the Respondent had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended . The Respondent duly filed an answer in which it denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held in New York, New York, between October 31 and November 2, 1960, before the duly designated Trial Examiner. All parties were represented by counsel and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs . General Counsel at close of the case made an oral argument. Briefs have been received from the Respondent and Charging Party which have been duly considered. Upon the entire record , and from my observation of the witnesses, I hereby make the following. BON-R REPRODUCTIONS, INC. FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT 435 Respondent is and has been at all times material herein, a corporation duly or- ganized under and existing by virtue of the laws of-the State of New York. Re- spondent maintains its principal office and place of business at 524 West 43d Street, in the city and State of New York, where it is now and has been continuously en- gaged in the business of silk screen printing . During the past year, Respondent, in the course and conduct of its business operations, purchased and caused to be transferred and delivered to its place of business goods and materials valued at in excess of $50,000, of which products valued in excess of $50,000 were transported to its said place of business in interstate commerce directly from States of the United States other than the State of New York and indirectly from other enterprises located in the State of New York which other enterprises had received the said goods and materials in interstate commerce from States other than the State wherein they are located . During the past year, Respondent, in the course and conduct of its business operations , performed silk screen printing services valued at in excess of $200,000, of which services valued at in excess of $50,000 were performed on prod- ucts which were shipped by it directly and indirectly in interstate commerce to States of the United States other than the State of New York, and services valued a. in excess of $50,000 were furnished to various enterprises, each of which enterprises. annually produces and ships goods or annually performs services valued at in ex- cess of $50,000 out of the State wherein said enterprise is located. The parties admit and I find that Respondent is, and has been at all times ma- terial hereto, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION CONCERNED Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Decorators & Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Synopsis This is a case in which an employee slated for discharge on Monday morning because of inept work virtually dating back to the time of his original employment was fired at the height of a union organizing campaign by a temperamental and excitable boss who used language which in itself constituted an explicit violation of Section 8(a)(1) of the Act. The question is whether the discharge was a dis- criminatory one under Section 8(a) (3) of the Act. Narration of Events Respondent, Bon-R, is a small advertising concern engaged in the production of display signs by the use of an industrial technique called the silk screen process. The Union, Local 230, represents various employees who fabricate signs, displays, and other advertising materials. In the sprang of 1960, Respondent purchased and installed a silk screen printing machine at a cost of some $10,000 and employed the Charging Party, Philip Scrima, to operate this machine. Scrima had been recom- mended to the principal owner and president, Joseph Spielman, by David Jaffa, who was the original owner and builder of the machine. The machine would run auto- matically or manually, and was designed and intended to operate automatically by means of pushbutton control after it had been set up to run a particular job. How- ever, Scrima never mastered the automatic operation because he was unable or un- willing to adjust the machine and he relied on inefficient manual operation. Such operation resulted in damage to the machine and loss of production. Scrima con- tended that the machine did not run properly because of inherent and latent defects a great percentage of the time, and on three instances the manufacturer, Jaffa, had to come out and overhaul the machine. President Spielman also hired a special maintenance man who came out on occasions to adjust the machine. Spielman had also sent Scrima to the New Jersey Precision Plant Company for a course of in- structions under manufacturer Jaffa as to the proper operation of one of these machines. The record establishes that Scrima was unable to satisfactorily operate the ma- chine during his entire employment and in particular he was held responsible for 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruining one important" job on Thursday and Friday, August 18 and 19, which re- sulted in the job foreman, Abe Janz, recommending Scrima's immediate discharge to Spielman. Spielman delayed discharging Scrima until Tuesday, August 22, for reasons shown hereinafter. However, after Scrima's discharge, the machine has operated satisfactorily and has not been subject to constantly breaking down and repeatedly having to ;be repaired. There were no longer missing, loose, or broken parts, no wires crossed, nor gummed up machinery. The conditions under which this decision was reached to discharge Scrima involved the production of a large order of -signs, about 90,000, for Mobile-Socony Company, a contract of great im- portance to Respondent. During the period between August 9 and 23, the night operator, Anderson, a young colored man, repeatedly complained that the machine was not properly operating when he took over from Scrima. Particularly, when Anderson took over on Thursday night, a screw in the "takeoff handle" was missing and the machine would not work, so he called in Foreman Janz to help him. Scrima had been operating the machine up to quitting time on this Thursday, August 18. Anderson and Janz searched for the missing part but were unable to find it. They looked around and under the machine, dumped the toolbox on the floor in their -search, but to no avail. The next morning when Scrima came in to work Janz told Scrima that the machine could not be properly operated because the takeoff part -was missing. Janz went to the telephone and was about to call Jaffa , the manufac- turer, when Scrima came into the office with the missing part in his hand. Janz' -accepted testimony in this connection was as follows: [Janz] I said, "Where did you get that?" [Scrima] He said, "I found it in the tool box." That surprised me somewhat because I dumped the thing out and Al Anderson and I looked in there very carefully to see if it was in there. The conclusion is inescapable that Scrima had purposely rendered the machine partially inoperable. The Reason for Scrima's Troubles The record is clear that Scrima was constantly having personality conflicts with many other fellow employees, including Anderson, the nightman who was his re- lief. As a matter of fact, he was not on speaking terms with Anderson for the last 2 weeks and refused to give Anderson necessary instructions or the production count and figures. And on one instance he nearly came to blows with his associate, Stanley Schultz, and was on ill terms with others in the shop. It appeared that he was having family difficulties-in that his wife had recently died leaving him the re- sponsibility of taking care of his children, both as mother and father. Scrima im- pressed the Trial Examiner as an emotionally distraught man, attempting to carry burdens, both in his private life and in the shop, which were too much for him. He particularly resented the supervision of the newly employed foreman, Abe Janz, and told Janz that he was hired to operate the machine and if Janz did not like the way he was doing it, he could get somebody else to do it. Perhaps, he resented the re- placement of his previous supervisor , Meltzer, by Janz because Janz knew and told him 'how the machine should be properly operated. He referred to one of his associates, Zackowitz, favorable to Janz, as "a backstabbing son-of-a-bitch." Ac- cording to the accepted testimony of Janz, Scrima went down this line with all of the other workers in the shop. Anderson, the night operator, credibly testified that he got his instructions from Scrima, who told him to operate the machine on manual controls rather than auto- matic. Anderson had previously handled this kind of an operation automatically and knew it to be right but he followed Scrima's instructions faithfully until Scrima stopped speaking to him. Anderson's accepted testimony in this connection is: Well, Mr. Abe Janz told me, he says this is an automatic machine and he says the manual controls are mainly for setups and minor adjustments and that's all. Well, I knew that before I ever came here because I never worked manual before. Anderson further explained that since Scrima's discharge he has gotten much more production out of the machine by using automatic controls rather than manual. Suffice it to say Scrima had been constantly having trouble with the machine, as well as with his coworkers, ever since he had been on the job. It is clear from the reco-d that he ineptly and carelessly if not willfully mishandled the machine neces- sitating repeated overhauls and adjustments due to his failure to operate the machine automatically-for which type operation it was designed BON-R REPRODUCTIONS, INC. 437 Spielman Learns of the "Missing Part" Episode On Friday morning , as previously recited , Scrima brought the "missing part" to Janz. Shortly thereafter Spielman , from his Montauk vacation resort, called Janz to get a progress report on how the shop was running and how the Socony job had progressed the night before. Janz told Spielman that they had not received any production at all. Janz' accepted testimony in this connection is: When he asked me, I told him about that missing valve and how Scrima had come in with it the next morning. And Joe said , "Well, that confirms what I have been suspecting all along. I am going to get rid of him when I get back in." Janz testified "I told Mr. Spielman I thought we should let him go because he was obviously incapable of running the machine if nothing else." Janz then stated that Dave Jaffa, of Precision Sales, came down to the shop on Monday morning, August 22, to repair the machine . Scrima came over to observe Jaffa repair the machine but was sent back by Janz to other work and was not allowed to watch the repairs being made. Over objection of General Counsel, Geltman, when asked why Janz did not allow Scrima to watch the repairs being made to the machine , Janz testified, "Mr. Jaffa told me to get him away from him because he hadn't done what he told him to. He hadn't been following his instructions and obviously the so and so was the cause of the machine breaking." As to what was found wrong with the machine , Janz testified: Oh, any number of things. There were hinge clamps on the printing head that were all loose. They are supposed to be perfectly tight . These hold the screen in position for printing . I'd say almost every nut and bolt on the thing was loose. It obviously hadn't been tightened which is a maintenance job and should be done constantly or checked constantly anyway . There were several washers, both metal and rubber washers missing on a couple of drive rods. The vacuum head was caked with an accumulation of paint and solvents that re- gdired a man, I'd say a good part of the day to remove. That's how hard it was. It had been there for quite some time . It was so thick, layer after layer after layer after layer of paint on there, that a man just had to scratch away and keep putting paint remover on until he finally got it clean . . . . Because you can damage the machine that way. The men who clean the machine make sure that they don't get any solvents or paints down into that vacuum head. Janz Reports to Miss Book Janz then reported Jaffa's complaints to Miss Etta Book , a stockholder and com- pany official , and the person in charge of all the records of Bon-R Reproductions. On the witness stand Miss Book confirmed Janz' version after having talked to Jaffa. As Janz credibly testified : "She said, 'We are going to get rid of Phil Scrima."' Meanwhile in a telephone conversation with Spielman , she recommended Scrima's discharge and was advised that he would take such action upon his return to the shop. Spielman's Version Spielman's testimony in this connection was as follows: I was at Montauk Point on that Friday. About eleven o'clock I went to town and called the plant to find out how the job was going . At that point, I got Abe Janz on the phone . I possibly discussed other jobs with him and then we went into this important job which was Socony Mobile pump poster job. We were doing 90,000 of these units. . We were going to work on that the entire weekend and Abe Janz had told me about the previous trouble he had the night before and that was-He had told me that on Thursday, as I well knew because I was there, the machine was working and the job was getting along. But on Thursday evening when the night man came on, and I had already gone home, on my way home at the point there was a part missing on the automatic take-off and he looked all over the place. They had to go-they had to put an extra man on the press to take the piece off , since the take-off was not working . He men- tioned a valve of some sort. He said he couldn't operate it. At that point I asked him, "Why didn't you look for it or why didn't you go out and get another one?" He told me, well, the next morning he had gone out there, told Scrima that the part was missing when he came into work about 8 : 30 and that we would have to run the machine on hand operation the next day until he got a new 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .part. Then he went-he told me that he had gone into the office, was ready to call Precision and that Scrima came walking into the office and told him that he found the part in the tool box. At that point I was quite excited and I said, I said that kind of thing is what I want you to check for me because this is the kind of thing I have been understanding has been happening all along. And now I have the proof I need and I know that it was sabotage. Spielman's Decision To Fire Scrima This was purposefully and he just didn't want us to run that night and he is glad to run during the day, but not at night. I said I'm going to-I'll take care of him, IT fire him when I get back. I also said that just do the best you can with the job at that point and work over the weekend. You will have to work Sunday, if necessary, on the job. You were convinced at this point that Scrima was committing sabotage? A. I felt I was convinced. I could think of nothing else. There were so many other things that happened. I had no proof. It was strictly word of mouth and people told me verbally until I got it from Abe Janz who I thought was reliable and capable of understanding the situation. I also felt, if he said he looked for the part, I believed he did. The record is clear that Spielman, on Friday, had made the decision to discharge Scrima on Monday when he came back to the office, because he felt his suspicions that Scrima was mishandling, and. in his view sabotaging,, the machine were well founded. Of course, Scrima in his testimony blamed his relief man, Anderson, and two other helpers and the machine for his difficulties in operating. The Trial Exam- iner is convinced, however, on all the evidence of record that Scrima was at fault and that the decision to discharge him was a proper prerogative of management. Such decision was made on Friday, and would have been effectuated on Monday had not press of business on Spielman, and an unexpected turn of events, namely-the advent of the Union-temporarily diverted him from such action. The Advent of the Union On Monday, August 22, the first workday following Spielman's decision to dis- charge Scrima, Spielman was occupied in his Madison Avenue office during the fore- noon. Between 11 and 12 o'clock Spielman, as recited heretofore. talked to Miss Book in which call the subject of Scrima's discharge was brought up. Spielman had a second and more disturbing telephone conversation with Miss Book in which she advised him that Western Union had just called her about something to do with a union. A telegram from the Union had been filed. She did not understand it and he suggested to her that she get them to send the telegram so they could read it and see what it was all about. She read it to him over the telephone, and he went to the plant around 3 o'clock and saw the telegram for the first time which reads as follows: SIGN PICTORIAL AND DISPLAY UNION LOCAL 230, 67 LEXINGTON AVENUE, NEW YORK CITY, REPRESENTS A MAJORITY OF YOUR PRODUCTION EMPLOYEES AND REQUESTS RECOGNITION AS BAR- GAINING REPRESENTATIVE. DANTE MORANDI, BUSINESS MANAGER. Spielman's reaction was: "I thought I would find out from all the employees what this was all about since I had had no past experience with any union or anything to do with any union." Spielman explained that in order not to interrupt production, he called each employee in individually in the presence of Miss Book and with Janz present part of the time. His accepted testimony in this connection is: I showed each employee the telegram I had received. I asked him if he knew anything about the telegram or had any idea what it was all about. And then I said, since I felt I was involved in this thing-and it must have been something more to the telegram than met the eye-I made clear to him [each employee] that no matter what his answer was, when I asked him if there was a union in the shop, would he care one way or the other, that it wouldn't be held against him. His accepted reason was: "Since I never had heard anything about the Union I wanted to know how to answer the Union as to the feelings of my men." BON-R REPRODUCTIONS, INC. Pattern of Interrogation 439 Joseph Tyson, a witness called by the General Counsel, gave testimony which was the pattern of the interrogation of all the employees. Well, when I came into the office he told me that he had received a telegram from the Union and that the telegram had mentioned that they had a majority of the shop who was interested in becoming Union members and he asked me, did I know anything about the telegram. To which I replied, "No." And he further asked me, was I interested in a Union. So to this I replied that I wouldn't know because I didn't know any of the benefits of the Union at this time. So he asked me again , he repeated and he ,asked me again, would I like to have a Union here . To which I replied, I didn't know because I didn't know any of the benefits of the Union. Later he said, then your answer is "No"? So I said, "I guess so." He put "no" beside my name and he told me to send in Jerry Holmes. Robert Reid's version, another of General Counsel 's principal witnesses, is similar: Well, Mr. Spielman told me that he had received a letter from the Union stating that there was a majority of the people that wanted the Union in Bon-R Re- productions and he wanted to know how the fellows felt about it. He had a yellow pad, such as that over there in front of him, with the fellow's names on it. There was one fellow that went in before me, I was asked to go in after him. And,he asked me if I had known anything about the telegram. And I told him I hadn't. And he asked me how I felt about the Union. I told him I didn't know. I knew nothing about it. I didn 't know anything that was in it for me so, therefore, I told him I wasn't sure if I did or if I did not want the Union. Q. Did he do any marking on the pad? A. Yes, he had the fellows' names. He checked the "no" on my name. The testimony of Jerry Holmes and Stanley Ford is similar, and Scrima's testimony follows the same vein . It is clear that Spielman told the employees that it did not matter to him one way or another whether the employee was in favor of the Union or against it. Stanley Ford was the only employee who was listed by Spielman as being for the Union . He stated that he was asked by Supervisor Janz to go in the office. His testimony in this connection was: I went in there, I was followed in by Mr. Janz and I went and stood by Mr. Spielman's desk. On the desk there was a yellow pad with the names of the people who work in the shop . And he had a telegram in his hand. Then he asked me if I knew anything about a Union . I said I knew of a Union. So he asked me if I knew anything about the men in the shop being interested in the Union. I said no, I hadn't heard. Then he asked me if the Union did come into the shop, would I be interested. He said not that it matters because if he wants the Union in the shop, he will have it. If he doesn't want it, he won't have it. I replied I would be interested . And he marked "yes" beside my name and I left. Spielman was busy with office details the rest of the afternoon but around 4 o'clock secured the telephone number of the Union from information and called Business Agent Morandi. Spielman's version of his talk with Morandi was: I had told Mr. Morandi who I was, and told him that I had received a telegram from him. I had asked him what it was about. And I told him that I had called all of my employees in and I had gotten a negative answer from all of them, so possibly he had mistaken as to him having a majority of this shop. I knew nothing about-I didn't know what the whole thing was about, and could he make it clear to me. Q. What did Mr. Morandi say to you? A. He told me he had eleven men in my shop signed up with the union, and that the thing would take its normal course and it could go to the National Labor Relations Board, and they had already filed for some sort of petition. And I knew nothing about it. Testimony of Business Agent Morandi Morandi's version of the telephone call about 3:30 p.m , August 22, was: I received a call for Mr . Joe Spielman. . I asked what he is calling for and he said, "I'm the boss here of Bon-R Reproductions. I received a telegram 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stating that you had the majority of the shop and that you wanted to sit down collectively and come up with a contract." As I said, "Yes, I do." He said, "How do you know?" I said, "We have signatures to that effect." He says, "Well, I just polled my men," he says, "and it is contrary to what you tell me." He says, "Not one of them wanted to say that they were with the Union. Not one of them told me they were with the Union." I then said, "Mr. Spielman, you don't expect them to admit in front of you. They will probably be fired if they did admit it." So I said, "Suppose I come up there and we have a secret ballot of your members and see if we did have a majority, would you go along with it?" He said, "No, I won't," he says, "and the only time a Union will come in here is when I want the Union to come in." He said, "There will be no Union until I want it." Q. How did the conversation end? A. It ended the same way. I told him, I said, "Well, we will have it down the National Labor Relations Board." In fact I said to him that we did have the signatures in front of the National Labor Board to see if we had a majority of the shop and that will be the proof. Then he ended off with, "We will have no Union unless I want the Union." Q. Let me ask you: You mentioned that you said to Mr. Spielman, "We will have a vote of your members." Is that what you did say to him or did you say "We will have a vote of your employees"? A. Employees, naturally. I meant, I was pretty sure I had the shop, the majority and almost a hundred percent. Q. Did you subsequently meet Mr. Spielman? A. Yes. Up here. Credibility Rule and Resolution Union Counsel Markson contended in his brief to the Trial Examiner that Spielman turned down the Union's offer for a private impartial poll or card check because he did not want Local 230 as the collective-bargaining representative and in any event he had spoken to each of his employees and that none of them were in favor of the Union. The Union countered by filing a representation petition with the Board on August 23 in Case No. 2-RC-10949. In his comprehensive brief, of his interpretation of the law and the evidence , Respondent Counsel Young argued: "We suggest that this is a Union-inspired tactic, designed to bolster the peculiar factual juxtaposition of unfair labor practice charges against an employer devoid of anti-labor or anti-union bias." Having carefully observed the demeanor of all these witnesses, intently listened to their recitals on direct and cross-examination , and weighed their various testi- monies, I have come to the conclusion that these particular events transpired sub- stantially as given by General Counsel's witnesses in this phase of the case involving interrogation-thereby rejecting Spielman 's version. Nevertheless , it does not follow that simply because one does not believe a particular thing to which a witness testified that everything he says must then be rejected and so it is with Spielman. Judge Learned Hand states the rule thus: 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. N.L.R.B. V. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2). RESPONDENT'S CONTENTION Counselor Young argued and contended that Spielman by interviewing his em- ployees for a legitimate purpose, by assuring them that there would be no -reprisals or rewards if they were either for or against the Union, and by making no promises of benefits or threats of reprisal, the conduct of the Employer on August 22, 1960, not only was not violative of the law, but is a protected activity under the Act. He stated: Presumably to assist employers in abiding by the strictures of the Act, the Board, in 1954, overruled the long-standing doctrine enunciated in Standard- Coosa-Thatcher, '85 NLRB 1358, by deciding, in Blue Flash Express, Inc., 109 NLRB 591, that interrogation per se was not violative of the Act, but must be considered in the light of all the surrounding circumstances. In reaching this decision in 1954, the Board followed the decisions of the Courts of Appeals of at least six circuits. The Board, in Blue Flash, set forth those elements of the surrounding circumstances which could enable it to determine whether the conduct of the BON-R REPRODUCTIONS, INC. 441 employer was protected or prohibited. The employer must have a legitimate purpose for the interviews. He must communicate that purpose to his em- ployees. He must advise them that their answers will not result in either reprisals or benefits. There must be no background of employer hostility to union organization. In this case, as in Blue :lash, [counsel contended that] every single criterion has been met. If anything, [he argued,] the facts in this case more clearly evidence the propriety of the employer's conduct, for here, as was not true in Blue Flash, the employees were shown the union communication, while each interviewee was asked to send another one in as he finished, so that the evidence reflects not the slightest secrecy or the least desire on the part of the employer to keep the men from talking to one another prior to the interview. The Employer, through Mr. Spielman, suddenly confronted with a claim of a majority representation, wanted to look into it . . . meticulously made every interviewee aware of the telegram, showed it to him, stated the purpose of the interview, specifically and carefully stated there would be no reprisals or rewards by virtue of any Union sympathy or antipathy, talked to them for no more than a couple of minutes each, then told each one to get another man, with whom the same process was repeated. Accordingly, and unquestionably, the conduct of the employer on August 22, 1960 falls within the doctrine of Blue Flash. Although a difference in the facts resulted in -a different conclusion, the law as established in Blue Flash was recognized as controlling as recently as April 28, 1960 [see for instance, the Trial Examiner's Intermediate Report in Michigan Wineries, Inc., 127 NLRB 463 1 Note is taken of the testimony of Ford to the effect that Spielman said, dur- ing his August 22, 1960 interview, that "if he wants the Union in the shop, he will have it. If he doesn't want it, he won't have it." The Employer denies that such a statement was ever made and the record, we submit, amply supports that denial. It is evident from the testimony of Spielman, of Janz, of Miss Book, of Scrima, of Holmes, of Tyson, of Reid, and even of Ford-of every person who testified concerning the interviews on August 22, 1960-that these interviews followed a standard pattern. Only Ford seems to have heard the alleged state- ment during the interviews. No one else did. Ford would have it, then, that the pattern was different in his case. Leaving out, for the moment, the truth, one thing becomes clear-the so-called "threat" did not intimidate him or dis- courage his pro-union leaning, or impel him to deny it. And, we ought to add, of all the employees questioned, only Ford admitted his pro-union sympathies. Yet, with positive knowledge of Fords pro-union position, there was no dis- criminatory action ever taken against him by this "threatening" Employer, amd none is alleged. * * * * * * * We ask the Trial Examiner also to take note of the isolated nature of the remark Spielman is alleged to have made. We suggest that an isolated occur- rence, such as this would have been if it happened, is insufficient to make out a violation (Safeway Stores, Inc., 122 NLRB 1369; Teamsters, Local 200 v. NLRB, 233 F. (2d) 233; Atlas Storage Division, 112 NLRB 1175). Findings as to Employee Interviewing In Blue Flash the Board held in essence that isolated incidents of interrogation by an Employer into the union sentiments or membership of its employees were not a violation of the Act, when, in the context of all the circumstances, such interrogations did not reasonably tend to interfere with or coerce the employees in the exercise of the rights guaranteed them in Section 7 of the Act. Such is not the case here. Respondent's arguments are fairly and sincerely presented but the Trial Examiner came to the conclusion that Spielman, a high powered but excitable executive, asserted to Ford, the only admittedly pro-union adherent, "if he wants the Union in the shop, he will have it. If he doesn't want it he won't have it." Ford was the only one who expressed himself as favorable to a union and this evoked Spielman's declaration-an involuntary emotional reaction similar to one he had when he fired Scrima the following day. He was in character when he talked to Morandi as described. The Trial Examiner finds the interrogation under the circumstances in this case not to come within the protection of the Blue Flash case doctrine and therefore in violation of the Act. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Coffee Break Meeting The next afternoon, Tuesday, the 23d, around 3 o'clock, there was a meeting which lasted for some 20 minutes. The testimony is conflicting both as to time and as to exactly what was said. Spielman came into the shipping room where the men were indulging in a coffee break. He arrested their attention and recalled that he had received a telegram the previous afternoon and, after polling each of them, he had decided that no one was in favor of the Union so he had called and told Business Agent Morandi of this fact. Spielman's testimony to the group was: I told him [Morandi] that I had this telegram and I had that in my hand. And I told them that they had known about me calling each of ahem into the office the previous day, and I felt that I owed them a description of what had happened since none of them knew anything about this. And again I re- stated what I had stated to each one individually, that this telegram was sent to us and it said that this union has a majority of our shop, and I had found that this was not the case after calling all the men in and getting their answers. Q. What else did you say to the men? A. I had told them that no matter-in my question the day before, my very brief encounter with them was that no matter what the answer is I got the previous day this was not going to be held against them one way or the other, whether there was a yes or no answer. All I was trying to do was get in a position to know how to answer this union and to know what to do. I had asked for their help this day. Q. While you were speaking to this meeting, did any of the employees make any statements? A. Yes. Q. Which employee made a statement? A. Phil Scrima at one point said that he was behind the whole thing and that he was very familiar with the thing, with the union. And I had asked him at that point, I said, "Well, I asked you yesterday what you knew about it and at that time I was interested in information. Why didn't you told me? You were emphatically no against this." He said this-these were his words, "They had told me not to say anything. I said, "Who is they? I thought you were working for me. I don't know any they." I said, "Why don't you go work for they?" That was it. I said, "Why don't you leave?" But at that point I was absolutely completely upset for anyone to tell me that someone else told him not to tell me the truth. I must have been very emotional. I just walked away from the meeting at that point. . . . I was emotional to the point where I walked away. I had a lot more to say. And I just walked away because I was excited and upset. Q. Did you have occasion to speak to the men again? A. Yes. I just walked back since they were all there and I wouldn't leave them standing there. And I explained to them this wasn't ordinarily- Q. What did you tell them? A. I told them, "This is not the kind of thing I like. This is not the way I would like to treat anybody. But Phil Scrima was going to be fired and here he has just forced it upon me to be fired." That he has been fouling up this machine and I have a record of that since we had gotten the machine and he was going to be fired today no matter what and I had just done it now and I didn't like that at all. That was it. Q. Did you say anything to the men about the way Phil Scrima handled that machine at this meeting? A. Yes. I told him that I had felt, and I felt I had conclusive evidence over this weekend, that he was sabotaging the machine. I also told them that Phil Scrima's dismissal has nothing to do with anything with the union since the first I ever heard about any union was the previous day and I knew nothing about it. And I would look into it further. This was what I really intended the meeting for. I would look into that deal with the union further in the coming days and tell them what was happening. And that was it. Q. Did you have occasion to speak to Mr. Scrima thereafter? A. Yes. Q. Will you tell us about that, please? A. Well, even the way Phil Scrima walked away, whenever he walked away, I don't particularly relish that. And when this meeting was over I walked in the shop and as Scrima was leaving I had told him that we would send his pay BON-R REPRODUCTIONS, INC. 443 to him, or whatever he liked if he wanted to get it, the pay for the days that he had worked which were Monday and Tuesday. And I also made clear to him that he was fired. Q. Now what you made clear, what did you say to him? A. I told Phil Scrima, I said, "Phil, you have been fired because you have fouled up this press. I have consistent trouble with the press. You have never told me the truth about this machine. I have sent you out to the manu- facturer. All I have ever required you to do was tell me, what the facts were. And now I find out that you are playing games with this thing with misinfor- mation to everybody else and -not cooperating with anybody on this machine. You are being fired because, not of union activity, but because of the trouble I have had with the machine." Q. Did Mr. Scrima say anything to you in reply? A. He laughed. He said nothing much. Q. At this meeting with the men, did you ever tell any of the men, either there at this meeting on August 23 or when you interviewed them individually on August 22, that if you wanted a union shop you would have a union shop and if you didn't want a union shop you wouldn't have a union shop? A. No. Conclusion The Trial Examiner accepts the above-quoted testimony as being a proper state- ment of what occurred at the coffee break meeting. There is very little difference in the versions of the various witnesses as to what happened at the meeting and its manner of happening other than the question as to whether Spielman made the state= ment that a "union would not come in unless he wanted it." The Trial Examiner finds that he did make this ambiguous threat, and applied Judge Learned Hands' rule. However, it was apparent to the Trial Examiner, Spielman admits, and his attorney concedes, that he became highly excited and emotional when Scrima stated that he was the person who had started the unionization effort a week previously and gave as his excuse for not telling Spielman, when asked the previous afternoon, "They told me not to tell you." This was too much for Spielman's emotional thresh- old He felt outraged that he should be betrayed by a man who, he was convinced, had been sabotaging the machine, willfully slowing down production, and was a troublemaker in the shop. Accordingly, he exercised his predetermined decision to discharge Scrima. But in so doing, he used language which did not convey his real purpose and motive. The Trial Examiner is convinced that Spielman had no union animus, but the manner in which he gave vent to his feelings could leave with the assembled employees such an impression. The Trial Examiner feels that the dis- charge statement imported a threat, and, as such is violative of Section 8(a)(1) of the Act. Not only from the testimony in the record, but from his appearance on the stand, it is and was evident that Spielman, a high strung, temperamental person, misspoke himself when he discharged Scrima. The Trial Examiner is convinced that when he rushed from the room, he was not in control of his emotions or his thinking processes. The fact that he returned immediately when he got control of himself and explained to the employees his true position and immediately went out and spoke to Scrima, his action was not an afterthought designed to cover up a motive of firing Scrima because of union activity. Spielman was acting in character. He was an impetuous and dynamic type of executive who operated from three different offices with the attendant multiplicity of telephone conversations and business details-no doubt with efficiency and dis- patch-but appeared to be one who could brook no opposition. Spielman spoke in anger, and did not reflect the true reasons for his discharge of Scrima. The Trial Examiner is equally convinced that Scrima was an unstable and emotional person who was inept in his work, quarrelsome with his associates, and willful in slowing down production by mishandling his machine. The record shows that Scrima, a former member of the Union, had reason to believe that he would soon be dis- charged for cause, and it is the Trial Examiner's belief, as argued by Respondent counsel, that Scrima started the union organizing for the purpose of protecting himself from a discharge-which he deserved. The record bears out that after Scrima's discharge the machine has given no trouble. Other employees were laid off for sound business reasons during the week of Scrima's discharge without regard to their union adherence, among whom were Ford who was admittedly prounion but nevertheless were called back when business picked up. Other than Spielman's blatant outburst that there would be no union unless he wanted one, the record is devoid of animus. The Trial Examiner is con- vinced that Spielman would have discharged Scrima upon his return to his office on 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monday had he not had a more pressing problem-namely, the telegram from the Union. The comprehensive brief submitted by Respondent Counsel Young stating that the burden is on the General Counsel to prove rather than the Employer to disprove the presence of an antiunion motivation for discharging an employee (particularly ,as set forth therein-pages 43 through 58), expresses my concept of this phase of the case. The General Counsel failed to carry this burden. In view of the entire record and all of the circumstances in this case, it is the opinion of the Trial Examiner that Scrima was discharged, and properly so, for cause. Accordingly, it will be recommended that the count in the complaint alleging discriminatory dis- charge under Section 8(a)(3) be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of the Act by acts of interference , restraint, and coercion, it will be recom- mended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Sign-Pictorial & Display Union, Local 230, Brotherhood of Painters, Dec- orators & Paperhangers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Worth Manufacturing Company and International Molders and Foundry Workers Union of North America, AFL-CIO. Cases Nos. 16-CA-1403 and 16-IBC-2730. November 17, 1961 DECISION AND ORDER On May 5,1961, Trial Examiner Max M. Goldman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed, and that the Respondent had not engaged in conduct affecting the results of 134 NLRB No. 40.