United Printing and Stationery Co.

UNITED PRINTING AND STATIONERY CO. 165 James Biondo, d/b/a United Printing and Stationery Co. and St. Louis Printing Pressmen and Assistants' Union Local No. 6, Incorporated . Case 14-CA-6202 January 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 13, 1971, Trial Examiner John M. Dyer issued the attached Decision in this proceeding. There- after, General Counsel filed exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions2 and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolu- tions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings As we agree that Respondent's discharge of Praprotnik was not unlaw- ful, we find it unnecessary to consider or to pass upon the Trial Examiner's further finding that Respondent made a proper offer of reinstatement on June 3 from James Biondo acknowledging receipt of the charge on April 19 and that he was the sole proprietor of Respondent. Biondo claimed he was not engaged in commerce under the Board's standards and admitted he had discharged Louis Praprotnik but denied he had violated the Act. An amend- ment to the complaint detailing further commerce allegations was allowed at the beginning of the hearing which was held on July 12 and 13 in St. Louis, Missouri, at which time all parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally. Respond- ent and General Counsel have filed briefs which have been carefully considered. During the hearing Mr. Biondo conceded that his Com- pany had performed services for customers who were en- gaged in interstate commerce within the Board's definition and that the value of the services to those customers exceeded $50,000 in the previous year. He also conceded that he had shipped goods directly out of the State valued in excess of a thousand dollars. However, Mr. Biondo felt that the Board should not exercise its jurisdiction since he had not received the money for which those billings had been issued and under the state law of Missouri he was not considered a wholesale merchant but was a retail merchant, and had to collect retail sales tax for his sales. He urged the Board to reconsider its standards in the light of his business. The principal issue in this case is whether or not Louis Praprotnik was discharged because Respondent knew or felt he was engaged in union activity and sought to bring a union into Respondent's plant. Resolution of this question accord- ing to General Counsel depends on the timing of events and on crediting Edwin Koeninger whose testimony would ap- pear to supply the elements of knowledge and cause for the alleged violation. In deciding this case I have not credited Koeninger, having concluded that his testimony was either taken out of the context in which some remarks were made by Biondo or that Koeninger's testimony was fabricated. I found Biondo to be a most credible witness and have concluded that Biondo decided to discharge Praprotnik before the Union came into the picture and that the discharge was unrelated to any union activities on Praprotnik's part. Therefore, I will recommend that the complaint be dismissed in its entirety. On the entire record in this case including my evaluation of the reliability of the witnesses based on some self-contra- dictary testimony from General Counsel's witnesses and on demeanor I make the following: FINDINGS OF FACT TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M. DYER, Trial Examiner: On April 19, 1971,' the St. Louis Printing Pressmen and Assistants' Union Local No. 6, Incorporated, herein called the Union, filed the charge in the above case alleging that United Punting and Stationery Co., which is wholly owned by James Biondo as an individual proprietorship, herein called Respondent, the Company, or the shop, violated Section 8(a)(1) and (3) of the Act by dis- charging Louis Praprotnik on April 16, and thereafter refus- ing to reinstate him. The Director of Region 14 issued a complaint on June 11, alleging, inter alia, as the sole violation of the Act that Respondent had discharged Praprotnik on April 16 and refused to reinstate him because he had joined or assisted the Union or engaged in activities on behalf of the Union. On June 21 the Region received a handwritten reply Unless otherwise stated all dates herein occurred in 1971 I THE BUSINESS OF RESPONDENT AND LABOR ORGANIZATION INVOLVED James Biondo is the sole proprietor of United Printing and Stationery Company which is a printshop operating in St. Louis County, Missouri. During the past year Respondent, on a wholesale basis, provided services or sold goods valued in excess of $50,000 to customers located in the State of Missouri, which customers in turn purchased or received goods valued in excess of $50,000 directly from points located outside the State and/or directly shipped or sold products to or performed services valued in excess of $50,000 for custom- ers located in States other than the State of Missouri. Re- spondent also performed services directly for customers located outside the State of Missouri which services were valued in excess of a thousand dollars. On the basis of the stipulated facts, I find that Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. 195 NLRB No. 4 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent admitted during the proceeding, and I find, that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Undisputed Facts James Biondo has operated a small printshop for a number of years, specializing in large volume, low cost items. Al- though a number of union members have worked at Respond- ent at various times, no attempt was made to organize Re- spondent until shortly before Praprotnik's discharge. Louis Praprotnik began working for Biondo while in high school and learned his letterpress trade from him. Altogether Praprotnik worked some 8 or 9 years for Biondo, leaving his employ on at least two occasions to work at other printshops and returning to Biondo. In 1968 Biondo entered into a part- nership arrangement with Praprotnik and another employee, Ed Dankenbrink. The arrangement was that each would have a third of the business and they drew salaries against the anticipated profits. At the end of the year after splitting the balance of the income, both Dankenbrink and Praprotnik were unhappy with the amount they received, and the agree- ment was terminated. Biondo continued to try to sell the business and in 1970 or 1971 entered into an agreement with Jerry Fehling whereby Fehling would act as a manager at the shop and would acquire a percentage of the business yearly and ultimately would be the owner. Around March 1971, Praprotnik gave Biondo a 2-week notice stating that he and his father were going to buy a paper route and he was going to sell his home and move away. For some reason unex- plained during this hearing, this undertaking failed and Pra- protnik approached Biondo and Fehling asking if he could be retained. Fehling or Biondo told him they were having a hard time getting a replacement and would be happy for him to continue. Biondo testified and Fehling confirmed that over the past 2 years Biondo drew no salary from the business and in fact had put over $20,000 into the business to keep it operating, with the last $10,000 having been added in March. Biondo testified that they were giving the business until August to see whether things picked up, stating that they might have to close down. As to the status of the business, Biondo said it would be successful if a number of small firms which owed Respondent large sums of money paid their bills, but without receipt of such sums, the business had been and continued to be in a poor fiscal condition. Praprotnik ran letterpress printing machines and was una- ble to run offset printing machines or the camera. Since letter- press produces up to 1,500 copies an hour while an offset press may produce 7,200 copies, Biondo and Fehling were both eager to switch to offset printing in order to increase their volume, and accordingly they installed new equipment in the press department to that end. Prior to Praprotnik's discharge Respondent hired Ed Mor- ris who was supposedly able to do both offset and letterpress work. This individual had been involved in a serious automo- bile accident and was in desperate financial circumstances when he was hired. Biondo testified that he wrote a rate of $4 per hour on this individual's employment record but since he worked overtime and cut short his lunch hour, etc., Morris was actually receiving about $3 an hour. Besides other inju- ries he also suffered an eye injury, which was unknown to Biondo. The offset work he produced resulted in great amounts of spoilage so that it became necessary to let him go. It was the wage rate on the employment record supposedly paid Morris that sparked the union movement between Pra- protnik and another employee Don Deuschle. B. General Counsel's Case and Respondent's Defense General Counsel's case rests mainly on timing, inferences, and Koeninger's testimony to supply proof of motive. 1. As background and as some proof of animus, General Counsel offered testimony by Louis Praprotnik that some- times around 1965 Biondo told him he didn't like unions because where they had a union the company had to charge higher prices and many companies had to go out of business because of that, and that he would rather work without a union and charge a lower price on jobs and get a bigger volume of work. Praprotnik recalled no other statements concerning unions made by Biondo. Donald Deuschle testified that sometime in early 1970 dur- ing a conversation between Biondo's mother, Biondo, and himself, Biondo stated that a union would only bog things down and he didn't want one in the shop. Around May 1970 the same people were talking about a newspaper article concerning a truckdriver who had been suspended from a company which was sure he had been stealing, and according to the story the company was forced -by the union-to rehire him. Deuschle reported that Biondo said he would lock his doors before he would allow that union to come into his shop. Both Biondo and Fehling said that through the years there was a lot of talk concerning unions and what the union wage scale did to employers, forcing some to go out of business. In at least one such conversation Praprotnik said that although he could make more money under a union, he would rather not be in a union shop since once dues were deducted the pay would be about the same and he was happy working with Biondo. All who testified agreed that Biondo was a very easy boss since he allowed his employees to set their own hours, did not get mad and bawl employees out though he had provocation, accepted their word that they had worked a certain number of hours, and allowed time off whenever they needed it. The fact that he ran the shop that way and that employees were not laid off or made to miss paychecks was discussed when the employees were talking about the relative advantages or disadvantages of working in a union shop. The statements which were offered to show Biondo's al- leged animus toward the Union were remote but might indi- cate a general attitude that he felt his Company in its particu- lar business of low rate, high volume printing would do better without a union, since if it was faced with paying a union scale, it might be forced out of a low rate business . Biondo's actions in hiring union members and keeping the fact that they were employed by a nonunion shop hidden from the Union, would indicate that Biondo's sympathies were with the employees who needed work, rather than being against a union. This is borne out by Biondo's testimony that he got one of his employees a better-paying job in a union shop through a friend who owned the shop. 2. General Counsel believes Respondent did not intend to fire Praprotnik and points to the fact that Jerry Fehling men- tioned a bonus plan on Thursday, April 8, and then discussed the plan further with Praprotnik on Tuesday, April 13. Pra- protnik testified that Fehling told him to think about it for a while and asked if he intended to change his job, because if they started on a bonus plan he wouldn't want Praprotnik to be leaving. There was testimony that for several months both Fehling and some of the office employees, as well as some customers, urged Biondo to discharge Louis Praprotnik. Praprotnik ap- peared to Biondo and others to be unhappy and he admitted that he was unhappy working with the Company after his plan to buy a paper route fell through. UNITED PRINTING AND STATIONERY CO. Biondo and Fehling had agreed that there must be a changeover to offset printing for the business to stay afloat. Praprotmk knew nothing about running offset and could only be used on letterpress equipment. The bonus plan offered to Praprotnik provided a bonus on only some smaller items and offered him some help with loading and unloading the presses. There was to be no bonus standard items which ran on the letterpress. According to Fehling and Biondo, Pra- protnik was running the large volume orders and allowing the small volume orders to wait, to the consternation and com- plaints of various customers. Because of this situation the bonus offer was only for the low volume items, which natu- rally require more work since the type would have to be changed more frequently. This was one of the reasons Pra- protnik was offered help in loading and unloading the presses, so that he could concentrate on keeping the machines run- ning. During cross-examination Praprotnik admitted he told Fehling that he wasn't happy with the proposed bonus plan and did not think much of it. There is some discrepancy as to whether this plan was offered on April 8 or 13, but it seems clear that the outline of it was discussed on April 8 with some added details on the 13th. 3. Ed Morris was hired to assist in the offset work about 2 weeks before Praprotnik was discharged. Moms was to run the offset press, the camera, and be available for some letter- press work on a part-time basis. Fehling told Deuschle not to reveal how much he was making as Morris was coming in at a considerably lower rate. When, on that Friday, the pay- checks for the first time were sealed in envelopes, Deuschle and Praprotnik became suspicious that the new man might be receiving a higher rate. On the following Monday. April 12, when he came to work, Praprotnik opened the Company's files and found that the pay records indicated Morris was being paid $4 an hour. When he mentioned the sealed pay envelopes to Fehling, Praprotnik was told that was none of his business and after some further words, Fehling said there would be some changes made around there. On Tuesday Praprotnik told Deuschle about Morris' rate and Deuschle became angry since he was getting $3.40 an hour. Deuschle and Praprotnik discussed forming a union and Deuschle at lunchtime made a telephone contact with Union Business Agent Vohsen, who gave him some informa- tion about starting an organization. Deuschle and Praprotnik discussed it again and Praprotnik called Vohsen and set up a meeting at his home for Wednesday evening, April 14. The meeting was attended by Vohsen, Deuschle, Praprotnik, and their wives and union authorization cards were distributed. On Thursday, April 15, Praprotnik talked to a third em- ployee, Noel Tomlin, and Tomlin signed a union card. The three cards were mailed to Vohsen late that day. Paychecks were usually passed out on Friday before the men quit work. On Friday, April 16, the checks were not passed out and after finishing work Praprotnik went to the office. Biondo told him that the letterpress department was not making any money and they were going to try to use the offset and eliminate the letterpress. Biondo said that Fehling had offered Praprotnik a bonus plan and Praprotnik didn't seem to like it. Praprotnik admitted that he wasn't crazy about the plan. Biondo repeated that the Company wasn't making any money and they were going to have to switch over, and Praprotnik said it was a good thing it was happen- ing now because his wife was working and he really didn't need the money and he would have time to look for another job. Biondo said he knew that, and that if Praprotnik had been hurting because of the loss of the job he wouldn't have fired him. Praprotnik was given an extra week's pay plus some vacation pay. 167 Biondo testified that Praprotnik was then "moonlighting" at a union shop and knowing that Praprotnik's financial con- dition and job prospects were good, he let him go. Biondo said he had been advised that Praprotnik was seeking a full-time job at this union shop. It was Respondent's plan to switch over to offset and use a part-time man on letterpress to com- plete the letterpress orders and take care of any other letter- press work. 4. Biondo maintained as did Fehling that neither of them knew that Praprotnik had anything to do with the Union or was interested in organizing a union at the time he was dis- charged. General Counsel claims that Biondo must have learned about Praprotnik's union activities on Thursday, April 15. Biondo admitted that employee Noel Tomlin told him Pra- protnik had handed out some cards and talked about a union and that he had signed a card for Praprotnik. As to when this conversation took place, Biondo first testified that it was probably Thursday, Friday, or Saturday of that week. It was established through Respondent's payroll that Tomlin did not work on Saturday. After searching his memory, Biondo testified the conversation occurred after Praprotnik had been discharged, since Tomlin mentioned the previous day's union activity of Praprotnik after Biondo told Tomlin he had let Praprotnik go. The General Counsel urges that I find this conversation took place on Thursday, April 15, but there is no basis on which to make such a finding. Despite repeated questions by the General Counsel, Biondo maintained this conversation with Tomlin took place on Friday, April 16, and I find that it did. With this resolution of the testimony there is no evi- dence that Biondo knew of Praprotnik's union activities of the previous days at the time Biondo discharged Praprotnik. 5. General Counsel additionally urges as evidence that the discharge was illegal the fact that Biondo placed an ad in a local St. Louis paper for Sunday, April 18, and Monday, April 19, seeking full- or part-time help in running letterpress equipment. Biondo testified that when he called the newspa- per to place the ad, he told the ad taker he wanted part-time help to run this equipment. The ad taker told him he would get a much better response, since there was a lot of "moon- lighting" in the area, if he advertised for full- or part-time. He took the ad taker's advice and placed the ad that way and got a big response, but was hiring for only part-time on the letterpresses since they were switching to offset. Biondo hired Edwin Koeninger on Friday, April 23, after interviewing him the day before. Koeninger had been out of work for some 9 weeks at that time and was about to have his car repossessed. After learning how hard pressed Koen- inger was, Biondo said he would see what work he could find for him to do, including using his car for deliveries. Fehling reminded Biondo that if an employee used his car for deliver- ies he might have problems with insurance, so Biondo dropped that idea, and said he would try to find enough handfeed work to keep Koeninger busy and help him out. Biondo found some work and went out and solicited other letterpress work in order to give Koeninger a job. Koeninger testified on direct examination that after seeing the advertisement in the paper he applied for work and spoke to Biondo about 10:30 one morning, but was unsure of the date. Biondo asked what experience and training he had, and Koeninger said he had run a letterpress, set type, and had offset experience. Biondo said that was good and asked what sort of salary he expected. Koeninger said he had only worked for union scale which was $5.10 at his last employer. Biondo said he could not afford that much since his prices were low. Koeninger said he would settle for anything he could get, since he had been out of work for 9 weeks. Accord- 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to Koeninger, Biondo said he previously had an employee named Lou who worked there 9 years, and they let him go because he wanted to go Union. Koeninger said that 4 to 6 weeks later when he quit, Jerry Fehling tried to talk him into staying and he explained he was working two jobs and it was getting rough. According to Koeninger, Fehling, "told me about this Lou had sent some papers around, papers or cards, whatever, for the other mem- bers that had worked there in the pressroom to fill out to go union and they had let him go then because of that." During cross-examination Koeninger agreed that when he first talked to Biondo, Biondo said he would like to help him out of his financial situation and would try to find enough work for him to do, but that they didn't want Koeninger as a union man to get in trouble with the Union, since they had a problem with Lou, in that Respondent had been served with papers about Lou and the Union. Biondo testified that when Koeninger mentioned as a un- ion man he had been making over $5 an hour, he told Koen- inger there was no possible way he could reach that figure with them. He said he was having a problem with a union right then, and had just been served with some papers which said that he had fired Lou Praprotnik because of the Union and he didn't want Koeninger to get into any trouble because of this. Koeninger insisted that he wouldn't get into any trouble because he couldn't even find a job. Biondo said he would protect Koeninger anyway he could, but he didn't have enough work for him right then, but would try to get enough letterpress or hand-feed work for Koeninger. Biondo specifi- cally denied that he ever told Koeninger he let Praprotnik go because of the Union and insisted he told Koeninger he didn't want Koeninger to get in trouble with the Union since the Union had filed charges against Respondent. Fehling specifically denied ever telling Koeninger anything about Lou Praprotnik. Fehling testified that Koeninger was hired on a day-to-day basis to give him work because Koen- inger was hired in a bad financial trouble and that'Koeninger worked there until he got himself out of trouble and got another job. He stated that Koeninger stopped him as he was going to lunch one day and told him he was leaving, and he asked Koeninger if he would still work part time and when Koeninger said no they parted amicably. Koeninger did not come back and finish the week as he had promised and Re- spondent had to mail Koeninger his paycheck. I do not credit Koeninger's direct testimony concerning the alleged statement by Biondo and Fehling. Koeninger's testimony on cross-examination conforms more with Bion- do's version of the conversation. Biondo was explaining to Koeninger that he didn't want Koeninger to get in trouble with the Union since the Union had just filed a charge against him. I credit Fehling's denial of the remarks attributed to him by Koeninger. Koeninger's direct testimony concerning Biondo was clearly out of context. It seems too much of a coincidence that the two alleged "motive statements" come from one individual who engaged in two converstations which have little relation to the alleged statements. 6. General Counsel takes the position that it is not impor- tant whether the Company knew of Deuschle's union activi- ties when Fehling gave Deuschle a raise on Friday, April 16, but that the Company was soothing Deuschle with a raise and a promise of a bigger raise in the future. However, General Counsel's statement is based on an assumption that Respond- ent knew of the union activities at Respondent when the raise was offered. It is clear from the testimony that it was not until after Praprotnik's discharge and Deuschle's raise on Friday that Biondo first learned from Tomlin that there had been some union activity in the plant during that week. The in- nuendos suggested by General Counsel are not warranted. It seems evident that Fehling was genuinely interested in keep- ing Deuschle as the offset man and was offering him future raises when Deuschle's baby was due as inducements to keep him at Respondent. 7. A question arose during the trial as to whether Respond- ent made an offer of reinstatement to Praprotnik. General Counsel maintained that no proper offer was made. Accord- ing to Praprotnik, Biondo called him about June 3 and said he had heard Praprotnik was working at Universal Printing Company and he didn't know how much Praprotnik was making and then, "he asked me if I wanted by job back, and I told him, I said I have to go along with what they say. Q. What who says? A. What the union says." Biondo testified that sometime after receiving the charge, he had received something from the NLRB telling him that he had to offer a fob to Praprotnik. He then phoned Praprot- nik and told him he had gotten a letter which said for him to offer Praprotnik his job back. He asked Praprotnik if he wanted to come back and Praprotnik said he could not an- swer until he had talked to the Union. Biondo told Praprotnik to let him know. Praprotnik never responded to the offer, at least up until the date of the hearing. If my decision to dismiss the complaint were to be reversed, I would find that a proper job offer was made by Biondo and that by not responding to the offer within a reasonable time, Praprotnik declined the offer and that the backpay period should be so limited. C. Summary It seems evident that several misunderstandings arose be- tween the employees and Respondent which might have been eradicated by forthright discussions, but unfortunately they did not occur. General Counsel's "animus inferences" are based on some- what antiquated statements which again appear to be taken out of context. One of Biondo's remarks concerning unions bore primarily on labor wage scales which he felt would be incompatible with the rates he was charging customers. His other remark indicated opposition to a union assertedly mak- ing an employer rehire an employee whom the employer had reason to believe was dishonest. The evidence also demonstrates that Biondo did not get completely out of the letterpress business because he had intended to keep enough work for a part-time employee and because of the amount of work orders for letterpress he had solicited in order to give Koeninger a job. This does not negative Respondent's intent to switch over to offset. The present employees do both offset and letterpress work, a capa- bility Praprotnik did not have. In summary, General Counsel's case is based on timing, Koeninger's discredited testimony, antiquated, out-of-con- text, animus testimony and a number of inferences. With the credited testimony of Biondo and Fehling, the complaint cannot stand. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of'the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety.