County Bindery & Die Cutting Service, Inc.

COUNTY BINDERY & DIE CUTTING SERVICE, INC. 97 of pay suffered by reason of the discrimination against him. Loss of pay shall be based upon earnings which Knott normally would have earned from the date of the discrimination against him, to the date of his reinstatement, less net earnings, com- puted on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company (90 NLRB 289). It will also be recommended that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of the backpay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material herein, engaged in com- merce within the meaning of Section 2(6) of the Act. 2. The Union 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 proscribed by Section 8(a)(1). 4. By discriminating with respect to the hire and tenure of employment of Arnold Knott, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 5. By the immediately ,foregoing the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. Since the violations of the Act which the Respondent committed are closely re- lated to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is reasonably to be anticipated from their past conduct, the preventative purposes of the Act may be thwarted unless the recommendations are coextensive with,the threat. To effectuate the policies of the Act, therefore, it will berecommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. [Recommendations omitted from publication.] County Bindery & Die Cutting Service, Inc. and Local 116, International Brotherhood of Bookbinders, AFL-CIO. Case No. 9-CA-7969. January 10, 1969 DECISION AND ORDER On October 17, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and is engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report at- tached hereto. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint, and recommended that these particular allegations be dis- missed. Thereafter, Respondent and the General Counsel filed excep- tions to the Intermediate Report together with supporting briefs, and 135 NLRB No. 17. 634449-62-vol. 135-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent also filed a brief in support of certain portions of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its power in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are affirmed. The Board has considered the Intermediate Report 1 and the entire record in this case, including the exceptions andbriefs, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. 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, County Bind- ery & Die Cutting Service, Inc., Mount Vernon, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Promising or granting wage increases and other economic bene- fits to its employees for the purpose of inducing them to reject Local 116, International Brotherhood of Bookbinders, AFL-CIO, or any other labor organization, as their bargaining agent, provided, how- ever, that nothing herein shall be construed as requiring the Respond- ent to vary or abandon any economic benefit or any term or condi- tion of employment which it has heretofore established. (b) In any like or related manner interfering with, restraining, or . coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : IWe correct the following inadvertences in the Intermediate Report: (a) The Union began its organizing campaign among the Respondent 's employees in March 1961 , not March 1960 ; ( b) Naporlee was promised and received a raise of $5 per week, not $5 per hour. 2 We agree with the Trial Examiner that the General Counsel has failed to adduce suffi- cient evidence to warrant an inference that the terminations of Naporlee and Daly were for unlawful reasons rather than for valid business reasons. COUNTY BINDERY & DIE CUTTING SERVICE, INC. -99 (a) Post at its place of business in Mount Vernon, New York, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Second Re- gion, shall, after being duly signed by the Respondent's representa- tives, be posted by it immediately upon receipt thereof, and be main- tained 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent had taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations other than those found herein. ' 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, as amended, we hereby notify you that : WE WILL NOT promise or grant wage increases or other economic benefits to our employees for the purpose of inducing them to reject Local 116, International Brotherhood of Bookbinders, AFL-CIO, or any other labor organization, as their bargaining agent, provided, however, that nothing herein shall require us to vary or abandon any economic benefit or any term or condition of employment which has been heretofore established. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except to the extent this right may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. COUNTY BINDERY & DIE CUTTING SERVICE, 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. Employees may communicate directly with the Board's Regional Office (745 Fifth Avenue, New York 22, New York; Telephone Num- ber Plaza 1-5500) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Local 116, International Brotherhood of Bookbinders, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region, issued his com- plaint, dated June 29, 1961, against County Bindery & Die Cutting Service, Inc., herein called the Respondent. With respect to the unfair labor practices, the com- plaint alleges, in substance, that Respondent (1) on May 17, 1961, laid off employee Fred Naporlee and discharged employee Alan Daly because of their union and concerted activities; (2) promised and granted employees wage increases and other economic benefits and improvements to induce them to refrain from assisting, becoming, and remaining members of the Union; and (3) thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, herein called the Act. In its duly filed answer, Respondent admits the layoff and discharge of Daly and Naporlee but denies, generally, all unfair labor practice allegations. iPursuant to notice, a hearing was held before Louis Libbin, the duly designated Trial Examiner, at New York, New York, on August,14 to 17, 1961. All parties appeared and were represented. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence was afforded to all parties. The General Counsel and the Respondent engaged in oral argument before the close of the hearing. Thereafter, the Respondent filed a brief which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 1. THE BUSINESS OF RESPONDENT Respondent, a New York corporation with its principal office and place of business in Mount Vernon, New York, is engaged in the business of providing papercutting, diecutting, and bindery services. During the fiscal year ending September 1960, which period is representative of its annual operations generally, the Respondent furnished services at its plant, valued in excess of $50,000, to The Nestle Co., Inc., Sonotone Company, General Electric Company, Royal McBee Corporation, and General Foods Corporation, each of which enterprises annually produces and ships goods, valued in excess of $50,000, directly out of the State wherein said enterprise is located. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find, that Local 116, International Brotherhood of Bookbinders, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. COUNTY BINDERY & DIE CUTTING SERVICE, INC. 101 III. THE UNFAIR LABOR PRACTICES The issues litigated in this proceeding are (1) whether the employment termination of Alan Daly and Fred Naporlee on May 17, 1961, was discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act; and (2) whether President Manuelian's conduct in promising the employees wage increases and other economic benefits on March 27 and granting wage increases on May 5 was violative of Section 8 (a) (1) of the Act. A. Interference, restraint, and coercion 1. The facts 1 In March 1960, the Union began its campaign to organize Respondent's employees by passing out leaflets and application blanks outside the plant premises. Henry Sahker, the then plant manager, felt that it was his duty as a supervisor to inform President Manuelian about the talk in the shop about the Union's campaign. Manuelian told Sahker that if the Union ever came in he had better close up, and that he would like to get some ideas as to what he could do to combat the Union and to keep it out of the plant. Sahker suggested that Manuelian contact Genovese, a representative of the New York Employing Printers Association.2 Pursuant to this suggestion, Manuelian telephoned to Genovese on March 22 or 23, and stated that he had a problem about the Union trying to organize the shop and that he wanted some expert advice on the situation. A tentative meeting was arranged for Friday, March 24. When Genovese failed to appear at this meeting, Manuelian telephoned Genovese's home the next morning. Manuelian expressed concern about his problem and a meeting was arranged at the plant for that very afternoon. The meeting that Saturday afternoon, March 25, was held in Manuelian's office and lasted about 4 hours. Sahker, the then plant manager, was the only other person present. Genovese advised Manuelian as to his rights and obligations under the law. He had with him a copy of the National Association of Manufacturers' booklet, which lists 24 things that a supervisor can or cannot do, and mentioned these points to Manuelian. They then made a wage analysis of his working condi- tions, including wages and benefits, and compared them with the recommended standards of the Master Printing Section. Manuelian explained that while he would like to meet those standards, he was not at that time financially able to do so, and also took the position that not all of his employees were journeymen. Genovese told Manuelian that it would not be unlawful for him to give the employees any wage increase which had previously been promised, or to adhere to past practices. He also suggested that Manuelian talk to the employees as a group or with a com- mittee of representatives chosen by the employees The following Monday afternoon, March 27, the machinery was shut down and Manuelian addressed the assembled employees. He told the employees that because the Union was in the process of organizing the plant, he could not do anything that would be construed as intimidation, coercion, or bribery, but that he was permitted to fulfill any past promises or commitments, and that since they had been promised a raise in January they were entitled to it. Manuelian admitted on cross-examination that he also promised the employees at this meeting that he would try to grant them more holidays at a later time or, if possible, would make other improvements, instead, mentioning the fact that they already had seven holidays. He then told them about Genovese's suggestion for having a committee "so that we could have better communications between the office and the factory." However, departing from Genovese's suggestion, Manuelian himself appointed the five members of the com- mittee. He admitted that he then told the committee members that he wanted them to communicate with him to work out any problems that would come up. The com- mittee, however, never functioned By letter, dated March 27, 1961, James Moore, the Union's International repre- sentative, informed Manuelian that he had in his possession membership applications from some of the employees; suggested that they get together to arrive at a mutual understanding to avoid the need of "having to run to the National Labor Relations Board" to file for an election; and concluded with the hope that he would hear from Manuelian soon. Manuelian made no reply to this letter, which he received after he had addressed the assembled employees. 'Unless otherwise indicated, the factual findings in this section are based on credited evidence and testimony which Is either admitted or uncontradicted, 2 This Association represents about 400 open-shop printers, binderies, typesetters, offset houses, etc 102 i DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 5, 1961, all of Respondent's employees received a 'wage increase, ranging from 5 to 15 cents per hour and effective as of the payroll period ending April 27. 2. Concluding findings The General Counsel contends, as the complaint alleges, that President Manuelian's conduct on March 27 in promising the assembled employees wage increases, more holidays, or other improvements, if possible, and in granting the wage increases effective as of the pay period ending April 27, was violative of Section 8(a)(1) of the Act. The Respondent contends that such conduct was not violative of the Act because it was merely in fulfillment of a promise made prior to the advent of the Union. Manuelian denied that he gave the wage increases to defeat the Union, and testified that he did so because he had promised it in January and March but could not afford it at that time and that he was merely following Genovese's advice. However, he admitted that he normally conducts salary reviews about once a year, generally around the fall or winter, and that his last salary review was in early 1960. He further admitted that he had not previously promised all the employees that he would give them an increase but had only promised those individuals who had approached him, totaling about 10 percent of the employees. Sahker corroborated Manuelian in this respect, testifying that there had been no previous promise to give everybody in the shop a raise. It is thus apparent that Manuelian's conduct with respect to the wage increases promised on March 27 and granted in May to all the employees went beyond prior promises and past practice. And this was done after Manuelian had previously pleaded financial inability to give a raise even to 10 percent of his employees. Moreover, no justification at all was offered by Manuelian for his additional admitted promises to try to grant more holidays at a later time or, if possible, other improve- ments instead. As previously found, Manuelian wanted to do something to keep' the Union out of the shop and it was with this thought in mind that he solicited Genovese's services. After full consideration of all the foregoing, I am convinced and find that a primary purpose for Manuelian's conduct on March 27 in promising all the employees a wage increase and more holidays at a later time or, if possible, other improvements, instead, and in granting the wage increases to all employees, on May 5, was to induce the employees to reject the Union as their collective-bargaining representative. By such conduct, Respondent has interfered with, restrained and coerced its employees in the exercise of their rights guaranteed by Section 7, in violation of Section 8(a) (1) of the Act. B. Alleged discrimination in hire and tenure of employment of Fred Naporlee and Alan Daly 3 1. The circumstances under which Naporlee and Daly were employed Prior to May 1960, Respondent's business was managed by its president, George Manuelian, with the assistance of Frank Spagnola as working foreman. In May 1960, Sahker, who had experience in large binderies, was brought in by Manuelian as plant manager on a weekly salary. Sahker was primarily skilled as a cutter. Spagnola agreed to this change even though it reduced his own status. Shortly thereafter, the operator of the folding machine resigned and Manuelian told Sahker to get a replacement. Sahker thereupon called the New York Employing Printers Association on July 5 for a folding machine operator but did not succeed in getting one. During Manuelian's absence in California, Sahker discussed the situation with Spagnola and decided to hire a cutter and have Spagnola, who up to that time had been dividing most of this time between the operation of the cutter and the folding machine, concentrate on the folding machine. Sahker presented this plan to Manuelian upon his return, pointing out that Spagnola was agreeable to going on the folding machine and that he (Sahker) knew of a cutter by the name of Fred Naporlee. Manuelian thereupon hired Naporlee in July 1960. Naporlee was an experienced journeyman cutter and was hired at $3 per hour with a promise of a $5 per hour raise in October, which in fact he did not receive until May 5, 1961. He spent about 98 percent of his time on the cutter. Spagnola spent almost all of his time on the folding machines. Sahker spent about 50 percent "Unless otherwise indicated, the factual findings in this section are based on credited evidence and testimony which is undisputed COUNTY BINDERY & DIE CUTTING SERVICE, INC. 103 of his time on the cutter and the remainder of his time in supervision and performing some of Manuelian's managerial functions which Manuelian had delegated to him. The need for another qualified experienced folding machine operator continued to be apparent to both Manuelian and Sahker but efforts to obtain one were unsuc- cessful. This matter came to a head during the period of May 1 to 5, 1961, when Spagnola was ill at home. Sahker admitted that the entire operation had backed up because of the slowdown in the folding department due to Spagnola's absence. On Saturday, May 6, Manuelian called in an ad for an "experienced" folding machine operator to various Westchester newspapers. Alan Daly responded to this ad and was hired by Manuelian at $1.75 per hour with the promise of a raise if he proved himself to be qualified. He began working on Thursday, May 11. 2. The union activities of Naporlee and Daly Early in March, before the commencement of the Union's organizational cam- paign, Naporlee was discussing the benefits of belonging to a union with a group of employees during lunch period, when Manuelian came up to the group. Manuelian asked Naporlee if he believed in unions . Naporlee replied that he did. In response to Manuelian's further query as to why Naporlee believed in unions, Naporlee stated that they protect a worker by helping him get a job when he gets laid off. After some further conversation, Manuelian went to his office and returned with a letter which he read to the group. The letter referred to the fact that in order to get or receive money, you have to produce. When the Union began to organize in March, Naporlee signed a union card and promised to get signed application cards from the other employees. Thereafter, he passed out cards to the employees and solicited their signatures. By May 11, he had obtained signed cards from about 80 percent of the employees. Not long before his employment termination, he told Spagnola that he had almost everyone signed up and asked Spagnola if he would sign a card. Spagnola refused. Alan Daly started working on May 11. On that day Naporlee handed Daly a union card which the latter signed and returned to Naporlee. That was the extent of Daly's union activities. 3. The employment termination of Naporlee and Daly About Christmas 1960 Manuelian and Sahker both realized that the new setup was not working out as well as they had expected. At that time Sahker volunteered to step down to an hourly wage, but Manuelian felt that such a change was pre- mature and preferred to continue the arrangement for the time being. In February 1961, Manuelian criticized Sahker for his inability to get along with one of the shipping boys. In March, Manuelian's accountant commented on Sahker's salary and challenged his worth to the Company. Finally, when Spagnola was out sick in May, he told Manuelian that he resented the fact that he was doing all the work and that Sahker was getting the credit and that he felt he could do a better job than Sahker. During that week, Sahker was ready to quit because he felt it was too much for one man to handle. When Spagnola returned to work on Monday, May 8, Manuelian asked if he could count on him if he gave Spagnola back his old job. Spagnola replied in the affirmative. As previously noted, Daly began working on Thursday, May 11. The next day, Manuelian wrote out another ad for an "experienced" folding machine operator and showed it to Sahker. Both Sahker and Spagnola suggested the New York Post as being the best New York paper in which to run the ad. On Saturday, May 13, both Spagnola and Sahker were due to work. Sahker telephoned shortly after 8 a.m. and informed Spagnola that he would not be in that day. When Spagnola reported this to Manuelian upon his arrival before 9 a.m., Manuelian expressed some annoyance at this news. Shortly thereafter, Manuelian informed Spagnola that he was to take over his old duties effective with the pay period beginning Thursday, May 18. Manuelian then called the ad for the folding machine operator in to the New York Post On Monday morning, May 15, Manuelian informed Sahker of his plan to reorganize the shop effective May 18 and asked Sahker to stay on as a cutter at an hourly wage. Sahker agreed to do so. On Wednesday, May 17, Daly reported about an hour late without calling in, and was informed by Manuelian that this would be cause for dismissal if it happened again. That same day, May 17, Galindez responded to the Post ad for an "experienced" folding machine operator and was hired by Manuelian "on trial." Manuelian told Spagnola to start him off on difficult jobs to test his skill. By 1 p.m. that day, Spagnola reported to Manuelian that Galindez had proved himself as a qualified 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD folding machine operator and that he was just the man they were looking for. Man- uelian then left for New York City where he spent the afternoon on business. On Wednesday evening, Manuelian telephoned Daly's home and, in the Tatter's absence, left a message that he not report for work the next day because he had no work for him. He made a similar telephone call to Naporlee's home and also told Naporlee not to come to work the next day .4 Shortly thereafter, Manuelian offered to employ Naporlee for part-time work, when available, if he were interested. Beginning Thursday, May 18, Sahker devoted full time to the operation of the cutter; Spagnola spent considerable time in cutting, in addition to his supervision duties and work on the folding machine; and Del Monte, who operated a Diddle Collator machine, also spent about 50 percent of his time on a cutter. Manuelian himself resumed some of the managerial functions which had been delegated to Sahker. 4. Respondent's defenses Manuelian testified, in substance, to the following reasons for reorganizing the shop by putting Sahker full time on the cutter, restoring Spagnola to his former position, and for laying off Naporlee: The long-felt need for an experienced folding machine operator was impressed upon him during Spagnola's illness in the first week in May when the work came to a virtual standstill and he realized that such a situation could no longer be tolerated. He had given Sahker a year's trial as plant manager and was disillusioned with Sahker's progress in that capacity. At the same time, Spagnola was complaining about Sahker and claiming that.he could do the work better than Sahker. Manuelian felt that he was top heavy in the cutting depart- ment, with Sahker, Spagnola, Naporlee, and Del Monte all being qualified to work on the cutters while only Spagnola was qualified as a folding machine operator, and that therefore the money he was paying Naporlee could better be invested in hiring a folding machine operator as he had originally intended when that operator resigned before Naporlee was hired at Sahker's suggestion. When on Wednesday, May 17, Galindez proved himself as a qualified and fully experienced folding machine opera- tor, the situation was resolved. Spagnola could now be relieved to perform some supervisory functions and to help out on the cutters. With Sahker working full time on the cutters, and Spagnola and Del Monte helping out on the cutters, Naporlee became surplus and was the logical one to go. With respect to the reasons for letting Daly go, Manuelian testified that he realized from Daly's work the first day or two that he was not the experienced folding ma- chine operator for whom he had been looking, that he felt that Daly's attitude in coming in late on May 17 without previously calling in indicated a lack of responsi- bility for his job, and that when Galindez proved himself to be the man he realty wanted, Daly became dispensible. Dorothy Turtill, acting supervisor over about a dozen women, corroborated Manuelian and testified that during the week of Spagnola's illness, Manuelian told her that he was thinking of putting Spagnola back in his old position, having Sahker work as a cutter, and that he really did not think there would then be any need for Naporlee. She further testified that he asked her opinion 'about it and that she re- plied that they had all been a happy family under the supervision of Spagnola. Sahker, who was still working as a cutter for Respondent and who testified under subpena as a witness for the General Counsel, corroborated Manuelian's testi- mony concerning the long-felt need for, and unsuccessful efforts to obtain, a folding machine operator, that during Spagnola's illness in the first week in May there was no other fully qualified folding machine operator in the plant, and that when work slowed down in the folding department the entire operation would back up. 'Sahker further admitted that Galindez was, but that Daly was not, a qualified experienced folding machine operator. Daly had been hired on a trial basis and himself ad- mitted that he had misrepresented to Manuelian his past experience on the folding machine. It is also apparent that with the hiring of Galindez and the rearranged setup, there was a surplus of cutters, with Naporlee being the logical one to be selected for the layoff. Thus, Naporlee admitted that Sahker was a better cutter than Naporlee. Saliker admitted that Naporlee was not as good a cutter as Spag- nola on flat cutting, which constituted 75 percent of Respondent's work. More- * Naporlee also testified that when he inquired as to the reason, Manuelian stated that he could get someone to do the work cheaper. Manuelian denied having made such a state- ment, and testified that he merely told Naporlee that he had no work for him and would call him when he had something. A resolution of this conflict is unnecessary to a deter- mination of the relevant issues. COUNTY BINDERY & DIE CUTTING SERVICE, INC. 105 over, unlike Naporlee, Spagnola was also capable of operating the folding machine, which he continued to do part of his time. Although Naporlee claimed that he was a better cutter than Del Monte, the fact remains that Del Monte was a specialist who operated the Diddle Collator machine and only spent about half of his time on the cutter. 5. Position and contentions of the General Counsel The General Counsel contends that the operational changes in Respondent's plant-the demotion of Sahker from plant manager to full time cutter and the trans- fer of Spagnola to his former position-were undertaken for the sole reason of find- ing a plausible pretext for getting rid of Naporlee because he was the one responsible for bringing the Union into the plant. He further contends that Daly was terminated because he had signed a union card and was believed to be a union plant. In support of his position, the General Counsel relies primarily on the following factors: (a) Naporlee was most instrumental in getting a majority of the employees to sign union cards, and Respondent was aware of his role in this respect. The record fully supports this contention. Indeed, as previously found, Manuelian became aware of Naporlee's prounion sympathies and interest even before the Union began its organizational campaign. However, it is significant that at the March 27 meeting, despite this knowledge, Manuelian appointed Naporlee as one of the com- mittee members who he believed would be most vocal in representing the employees. It also seems significant that when Naporlee refused to accept his $5 raise on May 5 and admittedly "cursed him (Manuelian) out" about it because he felt entitled to more after having waited so long, Manuelian made no reference to Naporlee's union activities or sympathies but merely replied that he could not afford to pay any more, that if Naporlee wished he could get a job any place where he felt he could get what he was entitled to, and that he had hired Naporlee when he should have hired a folding machine operator in the first place. (b) The timing of the decision to make the operational changes, relying on the testimony of Union Representatives Moore and Klett. After the Union's letter of March 27, Manuelian did not hear from the Union until Saturday, May 13. In this connection Union Representatives Moore and Klett testified as follows: About 9:30 a.m., Saturday, May 13, Moore telephoned Manuelian at his office, informed him that he had received sufficient application cards the preceding night to give him a majority, and requested a meeting. Manuelian replied that he was too busy and not interested. When Moore stated it would be necessary to go to the Labor Board, Manuelian replied that what Moore did was his business. Moore then telephoned Klett, president of the Union, and asked him to telephone and try to persuade Manuelian to meet with them. Klett called Manuelian about 10 a.m. and was equally unsuccessful in getting Manuelian to agree to meet with them.5 Manuelian testified that the two telephone calls came that afternoon, the first one about 2:45 and the second one about 20 minutes later. He further testified that it was about 9:15 that morning that he told Spagnola about the change in Spagnola's and Sahker's positions to be effective with the pay period beginning the following Thursday and that it was between 9:30 and 9:45 that he called in the ad to the New York Post for an experienced folding machine operator. The General Counsel contends that the two calls from the union representatives were the motivating factors which set the operational changes, into play for the purpose of getting rid of Naporlee. I find it unnecessary to determine whether the union representatives made their telephone calls in the morning, as they testified, or in the afternoon, as Manuelian testified. For, even accepting the version of the union representatives in this respect, the record still fails to disclose with any degree of certainty or accuracy that the calls came before Manuelian spoke to Spagnola about the changes. Moreover, the record does not warrant attaching the usual sig- nificance to the timing in this case in view of the fact that during Spagnola's illness in the first week of May, Manuelian had already discussed with Turtill his plans to shift Spagnola and Sahker and the probable layoff of Naporlee, that upon Spagnola's return to work on May 8 Manuelian talked to him with respect to his possible change of status, and that it was on the afternoon of Friday, May 12, that he wrote out the ad for an experienced folding machine operator, showed it to Sahker, and was ad- vised by Sahker and Spagnola of the desirability of running it in the New York Post. 6 Manuelian did meet with Moore and Klett when they appeared at the plant on the following Monday morning of their own accord . He also met with them the following Thursday morning for the purpose of discussing the Union 's contract proposals, although such discussion did not take place because of the position taken by Moore and Klett. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Manuelian's inquiry of Spagnola as to whether he knew if Daly had signed -up for the Union. On Monday morning, May 15, when Moore and Klett voluntarily appeared at the plant premises to try to see Manuelian , Spagnola informed Manuelian that the union delegates were outside. Manuelian replied that he could not do anything about that, and later asked Spagnola if Daly had signed up for the Union. Spagnola replied that he did not know. While the foregoing shows that Manuelian was interested in learning whether Daly had signed up with the Union, by the same token it also shows that Manuelian was unaware of Daly's union status even after he had announced the operational changes and had placed the ad in the New York Post for an experienced folding machine operator. Manuelian denied having knowledge of Daly's union status at the time of his termination. As previously found, Daly's sole union activity con- sisted of signing a card on May 11, the first day of his employment. There is no credible evidence in the record to warrant a finding that Manuelian knew or sus- pected, prior to Daly's termination, that Daly had signed a union card or was a union adherent. (d) The testimony of Naporlee that when he appeared at the plant premises on Thursday morning, May 18, and asked Manuelian if there was any other reason for his layoff, Manuelian replied that Naporlee had started trouble by bringing the Union around. Manuelian denied having made the above statement to Naporlee. This therefore presents a pure credibility issue. While Manuelian appeared to be an excitable person, he by no means impressed me as being a stupid or foolish one. Naporlee also impressed me as being an excitable, as well as a shrewd, person. Naporlee's testimony does not indicate that he and Manuelian were engaging in an argument during the course of which one might blurt out a remark of this kind. Genovese had previously impressed upon Manuelian that he could not lawfully discriminate against, or discharge, an employee for union activity. I do not mean to suggest that this indicates that Manuelian did not or would not undertake such action. But it is an additional bit of evidence which, in its totality, persuades me that if Manuelian had in fact gone to all the trouble of reorganizing his operational setup for the very purpose of getting rid of Naporlee because he brought the Union in, as the General Counsel contends, it seems less likely that a man of his intelligence would have immediately nullified his entire stratagem by admitting his true purpose to Naporlee. And if in fact his true purpose in changing his operational setup was not to penalize Naporlee for bringing the Union in, then he certainly would not have made such a false confession . Moreover, Manuelian's ready admission that he did tell Daly sub- -stantially what Naporlee and Daly attributed to him, as detailed in subparagraph (e), infra, does demonstrate a degree of candor on his part. On the other hand, Napor- lee's testimony strikes me as being somewhat too pat. Under all the circumstances, I do not credit Naporlee's testimony in this respect, and find that Manuelian did not make the alleged statement attributed to him. (e) The alleged testimony of Naporlee and Daly that Manuelian told Daly that same Thursday morning that Daly was discharged for being a union plant. Without prior arrangement , both Naporlee and Daly appeared at the plant premises on Thursday morning, May 18. When Manuelian arrived for work, he asked Daly if he had received Manuelian's message and Daly replied in the affirmative. Manuelian then went over to Naporlee and had a conversation during which Manuelian is alleged to have made the statement discussed in subparagraph (d), • supra. Manuelian then went into the office. When he came out about 20 minutes later, he saw Naporlee and Daly still standing by the bus barn. Manuelian walked ,over and asked what they were still doing there. Naporlee replied that he was a member of the Union, that he had called the Union, and that he was waiting for the union representatives to come down. Manuelian asked Naporlee what he ex- pected to gain by that, and Naporlee repeated his answer. Manuelian then asked Daly what he was doing there. Naporlee motioned with his head for Daly not to answer, and Daly made no reply. Manuelian then asked Daly why he did not speak up and whether he was a man or a mouse. Naporlee again motioned with his head for Daly not to answer, and Daly again remained silent. Manuelian then asked Daly if he had a mouth, and Daly replied that he had. There is a dispute as to Manuelian's exact response at this point. In view of Naporlee's admissions as to the truth of his statements in his pretrial affidavit in ,this connection and in view of Daly's testimony that Manuelian may have said Daly "must have been sent by the Union," I find that Manuehan's response to Daly at this point was, "I know what you are. You must be a union member and must be (or must have been ) a union plant sent up by the Union." COUNTY BINDERY & DIE CUTTING SERVICE, INC. 107 - The foregoing does not, in my opinion, amount to a statement that Daly was dis- echarged because he was suspected of being a union plant sent in by the Union. On the contrary, Manuelian's remark was clearly evoked by the conduct of Naporlee in directing Daly not to answer and by Daly's silence , and indicates Manuelian's surprise and deduction from their unusual conduct. Indeed , it demonstrates Manuehan's lack of prior knowledge of Daly's union status. (f) The testimony of Moore and Klett that Manuelian stated on Thursday morning that Naporlee was a good boy until the Union came around and he became an insti- gator for the Union. Union representatives Klett and Moore testified as follows: That same Thursday morning they arrived at the plant with a proposed contract which they wanted to discuss with Manuelian. They met Naporlee and Daly out- side and were told what had happened. Moore and Klett then went into the plant and asked Manuelian to reinstate Naporlee and Daly, stating that they were told Naporlee was fired for union activities and Daly for being a union plant . Manuelian refused to reinstate Naporlee and Daly and , during the course of the discussion , stated that Naporlee was a good boy until the Union came around and he became an insti- gator for the Union. The General Counsel was in error when he stated at the oral argument that at the Thursday meeting Manuelian did not deny the accusation of Moore and Klett as to the reason for the termination of Naporlee and Daly. Both testified that before they left Manuelian told them that he had no work for Naporlee and Daly. Moore further testified that Manuelian also stated that he did not think Daly had enough abilityand that he had reported an hour late without calling in thereby demonstrating a lack of interest in his work . Both also testified that Manuelian explained that he had to take a hand in running the plant and that he was putting Sahker on the cutters and Spagnola in charge again . Manuelian testified that he told Moore and Klett that he had told Naporlee and Daly that he had no work for them, and that he explained about the operational changes and about Spagnola being the keyman . He denied ever saying that Naporlee was a good boy until the Union came around or ever calling Naporlee an instigator. Upon consideration of the foregoing , and the entire record as a whole, I credit Manuelian's testimony where it conflicts with that of Klett and Moore , and find that Manuelian did not make the alleged statement hereinabove attributed to him. 6. Concluding findings There are undoubedly circumstances present in this case which tend to cast doubt on the bona fides of Respondent's asserted basis for the termination of Naporlee and Daly. For example, there is Manuelian 's expressed desire to Sahker to keep the Union ,out of the plant and his observations to Sahker, during discussions about the Union, that he believed Naporlee was "bringing the fire to burn in the shop "; the summary manner in which the two were terminated ; Manuelian's inquiry ,as to whether Daly had signed up for the Union; Manuelian's statement to Daly that he could be dis- 'charged for coming late without reporting in, if it happened again; the fact that Daly was not hired as an experienced and qualified folding machine operator ; the fact that Manuelian was advertising for a box boy at $1.50 per hour at the time of Daly's termination but did not offer this work to Daly; and the Respondent 's unfair labor practices previously found. In the final analysis, determination must turn on whether the circumstances suggesting pretext are in strength sufficient to overcome and dis- credit Respondent's testimony as to the primary motivating reason for the discharge and layoff. On the issue of pretext, the case is by no means free from doubt. How- ever, on the record considered as a whole, and bearing in mind that the burden of proof is on the General Counsel , I simply am not fully persuaded that the remaining circumstances upon which the General Counsel relies, highly suspicious though they are, mount to sufficient probative stature to warrant an inference , contrary to Re- spondent's testimony, that the actual or suspected union activities of Naporlee and Daly weighed more heavily in the decision to terminate them than did the reason Respondent gives. Accordingly, I find that the General Counsel has failed to sustain the allegations of his complaint relating to the terminations of Naporlee and Daly and shall recommend dismissal of such allegations. 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 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By promising the employees on March 27, 1961 , a wage increase and more holi- days at a later time or, if possible, other improvements, instead, and by granting a wage increase to all employees on May 5, 1961, to induce them to reject the Union as their collective-bargaining representative, the Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices by the employment termination of Fred Naporlee and Alan Daly on May 17, 1961. [Recommendations omitted from publication.] Cone Brothers Contracting Company and Local 925, Inter- national Union of Operating Engineers, AFL-CIO Tampa Sand & Material Company and Teamsters, Chauffeurs, Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America Cone Brothers Contracting Company, Tampa Sand & Material Company, and Florida Prestressed Concrete Co., Inc. and Local 925, International Union of Operating Engineers, AFL-CIO Cone Brothers Contracting Company and John P. Siers Cone Brothers Contracting Company, and/or Tampa Sand & Material Company, and/or Florida Prestressed Concrete Co., Inc. and Robert Alvarez. Cases Nos. 12-CA-1493, 12-CA-1477, 12-CA-1492, 12-CA-1674, 12-CA-1687, and 12-CA-1767. Janu- ary 10, 1969 DECISION AND ORDER On May 26, 1961, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondentshad engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that Respondents had not engaged in certain other unfair labor practices. Thereafter, the General Counsel and Respondent Tampa Sand & Material Com- 135 NLRB No. 18.