Allied Printing Corp.

ALLIED PRINTING CORP. 1045 Allied Printing Corp. and Local 8, Newark Newspaper Pressmen's Union, a/w International Printing Pressmen and Assistants Union of North America, AFL-CIO. Cases 22-CA-4919 and 22-CA-4982 April 10, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 18, 1972, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and the General Counsel filed a brief in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. In issue are the questions whether the Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 discriminatorily discharged employees Robert Rudolph and Hugh Gray because of their union membership and activities , and otherwise interfered with, restrained, and coerced employees in the exercise of their statutory rights. At the close of the hearing, the parties waived oral argument, but thereafter the General Counsel and the Respondent filed briefs in support of their respective positions. Upon the entire record3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation, is engaged in the business of providing and performing printing and related services at its plant in Saddle Brook, New Jersey, where it also maintains its principal office. In the regular course and conduct of these operations, the Respondent annually furnishes printing services valued in excess of $50,000 to firms located outside New Jersey. It is undisputed, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Allied Printing Corp., Saddle Brook, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. I Respondent in its brief has also requested the case to be set for oral argument before the Board. Since we believe that the record and briefs adequately present the contentions of the parties, we deny this request. DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on August 24, 25, September 6, and 7, 1972, in Newark, New Jersey, on the consolidated amended complaint of the General Counsel issued on July 24, 1972,' and the answer of Allied Printing Corp., herein called the Respondent or Company. ' The amended complaint is based on separate charges filed by the Union on May 8, 1972, in Case 22-CA-4919 and on June 21, 1972, in Case 22-CA-4982, copies of which were duly served on the Respondent by registered mail on the respective filing dates. 2 Sec. 8(axl) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent , Sec. 7 provides that "[e lmployees shall have the right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their II. THE LABOR ORGANIZATION INVOLVED In accordance with the stipulation of the parties, I find that Local 8, Newark Newspaper Pressmen's Union, a/w International Printing Pressmen and Assistants Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This is another one of those familiar cases where an employer is charged with attempting to prevent the unionization of his employees by terminating those responsible for such activity and by engaging in other unlawful conduct, while the employer vigorously asserts its innocence. A. The Evidence 1. The advent of the Union; the Respondent's reaction The Respondent is a commercial printer of publications, operating a nonunion shop. Jules Jacobsen and William own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection... . Sec. 8(a)(3) prohibits, with certain qualifications not material herein, an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to . . . discourage membership in any labor organization... . 3 G.C. Exhs. 7A, 7B, and 7D, which were received in evidence, are erroneously identified in the transcript of testimony as G.C. Exhs. 6A, 6B, and 6D. The transcript is accordingly corrected. 202 NLRB No. 160 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cohen are its principal stockholders and serve as president and secretary-treasurer, respectively. The Company's day- to-day operations are entrusted to General Manager Ralph Mizrahi, under whom is Pressroom Superintendent Gus- tave Semon, who is in charge of production. The Company employs a total of 18 to 20 production employees on the day and night shifts.4 Prior to April 26, 1972,5 Robert Rudolph and Hugh Gray, the two pressmen on the night shift, discussed between themselves the need for union representation. On that date, Rudolph requested Gray, a member of the Union, to arrange for a union representa- tive to speak to him about organizing the employees: Gray thereupon telephoned James Sherlock, the Union's finan- cial secretary, who, within an hour, arrived at the plant. After Sherlock explained to Rudolph the advantages of unionization, Rudolph signed an authorization card and agreed to secure employee signatures to additional cards which Sherlock furnished him. Thereupon, both of them proceeded to discuss the Union with several employees in the shop with the result that Rudolph succeeded in signing up two of them that evening.6 No management official was present in the plant at the time of this solicitation. Subsequently, Rudolph secured two or three more signed cards, as did another employee, who, at Rudolph's request, solicited employees on the day shift. Being of the opinion that Sherlock should talk over his organizational intentions with Pressroom Superintendent Semon, whom Gray had known for some 15 years, Gray arranged for the three of them to meet. On Thursday, May 4, at about 7 in the evening, Gray and Sherlock drove to the plant where they met Semon and together they went to a local bar. After exchanging amenities, Sherlock brought up the subject of the Union's interest in organizing the Respondent's pressroom employees. In answer to Semon's inquiry as to how he intended to proceed, Sherlock stated that he would talk to the employees individually and explain the benefits of union representation. However, Sherlock did not inform Semon that this activity had already started, indicating, instead, that Semon would not know when it did begin. Semon then requested Sherlock to defer organizing the plant until the following Wednesday so that he (Semon) would have more time to think it over. Sherlock replied that he could not promise to delay. Semon also questioned Sherlock concerning the Union's demands and was assured that the Union would offer the Company a contract with which the parties could live and that the Union had no desire to put the Company out of business. In response to Semon's inquiry regarding the number of employees the Union required to man the press, Sherlock commented that this, too, would be worked out. At one point in the conversation, Sherlock told Semon that, if the plant were organized, he probably would regain the union card he once had. Throughout the discussion, Rudolph's name was not mentioned.? There is a conflict in testimony whether on this occasion Gray explained his absence from the plant since May 2. 4 The Respondent has an additional 16 to 18 employees who work in the mailing area of the plant and are not involved in this case. 5 Unless otherwise indicated, all dates relate to 1972. 6 One of these cards signed by employee Robert Howe was erroneously dated April 28 instead of April 26. 7 The above findings are based on Sherlock's virtually uncontradicted According to the mutually corroborating testimony of Gray and Sherlock, Gray expressed his regret for not coming to work, stating that it was due to his father-in- law's illness and that he had to drive his wife to visit him in Brooklyn. Semon assured Gray that he had nothing to worry about and that he could return to work when circumstances permitted. Gray then indicated that he would come to the plant the following day (Friday, May 5) to get his check. Semon denied that Gray mentioned his father-in-law's illness in the conversation. He testified, however, that when he asked Gray why he had not come to work that evening, Gray answered that the Company did not need him as the Rolling Stone printing job would be completed early, but that he would report for work the next day. Semon also testified that he did not pursue the matter further, even though he actually required Gray's services that night. I find Gray's and Sherlock's testimony more plausible. It seems to be only natural that Gray would mention his father-in-law's illness to account for his absence since May 2. On the other hand, I find it difficult to believe that Semon would only question Gray- about his failure to report to work on May 4, especially since Semon testified that Gray had not notified him of his absence on the 2 preceding days. Moreover, if Gray had really told Semon that he would not return to work on the May 4 evening because the Rolling Stone job was in the process of completion, it is incomprehensible to me why Semon would not impress upon Gray that there actually was a need for his services that evening, as Semon testified there was. Accordingly, I credit the accounts given by Gray and Sherlock. The following morning, Friday, May 5, Semon apprised General Manager Mizrahi that he had been with Union Representative Sherlock and Gray the night before. Mizrahi suggested that Semon convey this information to President Jacobsen, and Secretary-Treasurer Cohen, which he did when they arrived at the plant about 11 a.m. for their customary Friday management meeting.8 In relating his conversation with Sherlock and Gray, Semon advised them of the Union's intention to organize the pressroom employees, that he was questioned concerning his opinion of having a union in the shop and that he was offered his International union card back. Jacobsen and Cohen thanked him for the information. Thereafter, Jacobsen asked Mizrahi whether he knew anything about the Union's interest in the plant and received Mizrahi 's answer that all he knew was what Semon had told him. Apparently not happy with the prospect of a unionized plant and sensing that the Union's appearance was indicative of employee unrest and dissatisfaction, Jacobsen decided to talk to several employees about the situation. Accordingly, within the next few hours after learning of the Union, Jacobsen summoned employees Ramiro Lugo, testimony. Semon's recollection of this conversation did not appear' to be too clear and, whatever variances there are in his account, they are of no consequence. 8 Management meetings attended by Jacobsen, Cohen, and Mizrahi, are customarily held every Friday. This is the day when Jacobsen and Cohen also sign employee paychecks. ALLIED PRINTING CORP. 1047 Frederick Dilgard, and Leroy Gaskins individually to a room in the office area where he interviewed them .9 Cohen was present at least during the conversations with Dilgard and Gaskins, while Mizrahi was in and out of the room, preoccupied with business matters.10 Lugo gave the following account of his conversation with Jacobsen: After Jacobsen opened the conversation with the statement that he understood there were some problems in the plant, he asked Lugo how long he had known him. Lugo replied that it was 4 1 /2 years. Jacobsen thereupon questioned him whether he knew what happens if a union gets into a plant. When Lugo made no response, Jacobsen remarked that Lugo surely knew what happened at other places or papers. Jacobsen then remarked that, if the union got in, it would "cripple this place," adding that the Respondent was a new company, that its equipment had not been paid for, and that Jacobsen and his partner were not drawing any salary. At about this point, Jacobsen inquired whether a union representative had approached Bob Howe, a camera room employee on the night shift.'1 Lugo answered that he had not seen any union representa- tive in the plant. In reply to Jacobsen's further question whether he was going to attend a union meeting scheduled for the next day (Saturday, May 6),12 Lugo stated that he would not, as he had to leave the city for upstate New York. Lugo also testified that Jacobsen made no threats or promises of benefit, but assured him that whatever he said would not affect his job. Jacobsen conceded that he did bring up the subject of the Union in his conversation with Lugo, but in the following context and manner: Stating that something was not quite right in the plant, Jacobsen told Lugo that he wanted his help and information regarding the problems there which he would keep in confidence and which would not jeopardize his job; Lugo thereupon related that the only thing wrong in the plant was Mizrahi's attitude toward the employees and that, if the owners corrected that situation, some of the problems would disappear. This led to Jacobsen's inquiry whether Lugo knew anything about a union. Lugo replied that no one had spoken to him about it and that, as a matter of fact, he would not be interested in a union because it was against his religion.13 Although Jacobsen categorically denied that he ever used the word "cripple" in any conversation for personal reasons, he did recall expressing a hope to Lugo that the plant would not be unionized, because it would be a terrible burden vn the Company. He further testified that he in nowise indicated that he would close down the plant if the Union came in. In addition, Jacobsen contradicted Lugo's testimony that he asked Lugo about the Saturday union meeting or whether he intended to be there. On the 9 It appears that Jacobsen separately interviewed Lugo and Gaskins in a general purpose room in the office area and Dilgard in another paneled room in that area which was originally intended as an office but was being used as a sort of storeroom. It is this paneled room that Jacobsen and Cohen customarily use when they visit the plant. According to Jacobsen, the Respondent's chief executive officer, he spends a day or a day and a half a week in the plant. 15 Only Jacobsen testified to these conversations on behalf of the Respondent. Mizrahi testified that because of his preoccupation with business matters he was not in a position to testify to the conversations. 11 As shown above, Howe had signed a union authorization card for Rudolph on April 26 when solicited by him in Union Representative contrary, Jacobsen testified, Lugo volunteered the infor- mation that he had overheard someone mention that such a meeting was going to be held and that he would not attend because he was going to New York. I have no doubt that Jacobsen was concerned that a situation existed in the pressroom which caused employee unrest and inspired the union movement and that he interviewed Lugo, among other trusted employees, to ascertain the root causes . It is also clear from Lugo's and Jacobsen's testimony that, whether or not Jacobsen actually used the term "cripple" to describe the effect a union would have on the Company, Jacobsen's remarks to Lugo were intended to, and did, convey the idea that the presence of a union in the plant would create economic difficulties for the Company. While I therefore find no inherent contradiction in the testimony of Lugo and Jacobsen in the above respects, there is a conflict regarding Jacobsen's interrogation of Lugo whether a union repre- sentative had approached employee Howe and whether Lugo intended to be at the Saturday union meeting. I credit Lugo's version. He is a long-time employee of the Respondent, apparently trusted by Jacobsen, who im- pressed me as a witness whose recollection of the events could be safely relied upon.14 On May 5, Dilgard, a cameraman on the night shift,15 was summoned to see Jacobsen after he reported for work about 3 in the afternoon. Dilgard testified that, in a brief conversation with Jacobsen, he was asked either if he knew of any union activities going on in the plant or if he knew anything about a union. He further testified that, when he answered in the affirmative, Jacobsen asked him why he had not mentioned it before. Admittedly, this was a friendly conversation without any threats or promises of benefit being made. Although Dilgard also gave a "yes" answer to a leading question asked on cross-examination that Jacobsen assured him that nothing he said would be held against him, his other testimony indicates that Jacobsen did not say he had nothing to fear nor gave him assurances that he could engage in union activity without fearing a loss of his job or being disciplined. According to Jacobsen, after telling Dilgard that he could talk freely and not to be concerned about his job, he made the same general inquiry as he had made of him on other occasions about the problems in the plant. Continu- ing, Jacobsen testified that Dilgard responded in an emotional and disturbed tone that there was much wrong in the plant, blaming employee discontent on Mizrahi and cautioning that the owners should pay more attention to their business if they wanted to save their investment. Jacobsen further testified that he did not recall whether he asked Dilgard if he heard about a union or whether Sherlock's presence. 12 Rudolph credibly testified , without contradiction, that he had arranged for the employees to have a meeting with Sherlock and Union Vice President Scofield on May 6, and that there was a poor turnout on that day since the employees who had previously indicated they would attend failed to do so. As later discussed , Rudolph and Gray had been terminated the day before. 13 However, Lugo testified that he had signed a union card. 14 Georgia Rug Miii, 131 NLRB 1304, 1305, In. 2. 15 At one time prior to May 5, Dilgard was a supervisor. At his own request, he stepped down from that position to become a rank-and-file employee. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dilgard volunteered such information but that Dilgard remarked that, if a union got in, Jacobsen would deserve it. As indicated above, Jacobsen sought to elicit informa- tion from Dilgard concerning employee unrest, as he had done from Lugo. Moreover, it is undisputed that the union movement also was involved in the conversation. I credit Dilgard's testimony concerning the union interrogation by Jacobsen, which I find essentially uncontradicted and convincing. The third employee interviewed on May 5 was Gaskins, who replaced Rudolph as lead pressman after the latter's discharge. He, too, was called to the office area by Jacobsen when he reported for work about 2 p.m. According to Gaskins, Jacobsen asked him whether he had heard anything about employees wanting a union and he answered that he had heard employees joking about a union but that nobody had ever approached him.about having a union. Gaskins also testified that Jacobsen then inquired whether he liked a union and that he replied that he "didn't go too much" for one. In addition, he testified that Jacobsen made no threats or promises of benefit to him but that he was assured by him that anything he said would not be held against him or affect his job., Jacobsen testified that he made much. the same inquiry of Gaskins, as he had of Lugo and Dilgard, regarding problems in the plant and that Gaskins stated that he did not know of any specific ones. With respect to his questioning of Gaskins concerning a union, Jacobsen's account did not differ substantially from Gaskins' except that Jacobsen did not testify whether he asked Gaskins if he liked a union, as Gaskins testified he did. Gaskins was not unfriendly to the Respondent and, indeed, was called as a witness by it to support another phase of its case. Accordingly, I credit his testimony concerning union interrogation. Later in the evening of May 5, Rudolph was summarily discharged without prior warning. The Respondent insists it took this action because of Rudolph's unsatisfactory work performance, while the General Counsel contends that the discharge was prompted by his union activities. The General Counsel also alleges that Gray was similarly terminated the same evening. The Respondent, on the other hand, denies discharging,Gray, asserting that Gray just stopped coming to work. The next day the Union held a meeting which Rudolph had previously 'arranged for employees to meet Union Representative Sherlock and Vice President Scofield. However, there was a poor turnout. Rudolph testified that employees who had previously indicated an intention to attend failed to show up. 2. Rudolph's discharge Before his employment with the Respondent, Rudolph worked for a business form printing company for some 6 16 There is some question whether , at the time of his discharge, Rudolph was still a leadman . It appears that the situation became confused when, in about January 1972, the Respondent's controller posted a notice on plant bulletin boards authorizing the employees' foreman to approve timecards. Gray, who was a pressman hired in the latter part of October 1971, was designated on that notice as foreman of the night crew . In view of my ultimate determination , it is unnecessary to resolve this question. 17 It appears that many of them were inexperienced part-time workers. years. After performing various jobs there, he became an apprentice on a business form offset press, achieving pressman status. In October 1970, Rudolph was inter- viewed by Pressroom Superintendent Semon and General Manager Mizrahi and was hired to learn to operate a Goss Urbanite webb offset press with which he had had no prior experience. Initially, he worked on the day shift at an hourly rate of $4 until he was transferred to the. night shift in December 1970 where he received a 7-percent differen- tial, bringing his wage rate up to $4.28 an hour. On February 1, 1971, he was given a 20-cent raise to $4.48 an hour. When he was reassigned to the day shift in May 1971, he was permitted to retain the previously granted night differential. On October 1, 1971, Rudolph was promoted to lead pressman on the night shift, at which time he was given another 7-percent night differential, thereby increasing his. hourly rate to $4.79. OnFebruary 9, 1972, he received a 20-cent raise to $4.99 an hour, which was his wage rate at the time of his discharge on May 5. As lead pressman,16 concededly a nonsupervisory position, Rudolph was responsible for the production and comple- tion of customers' printing jobs assigned to the night shift. In that capacity, he operated the press with Gray, assisted by four to eight employees,17 who helped on the press and performed other services, such as bundling the publications for delivery to customers. Semon, who was in' overall, charge of the printing operation on both shifts and ran the press on the day shift, usually remained in the plant about 4 nights a week until 9 or 10 o'clock,18 supervising the night shift operation. It also appears that Mizrahi also made frequent visits to the plant at night to check on the progress of jobs. On May 5, at about 5 p.m., when Rudolph reported for work, he was met by Semon at the lockerroom door. Informing Rudolph that the night shift was being discon- tinued, Semon advised him that his services were no longer needed and handed him his check. Rudolph then remarked that this was quite sudden, as indeed it was since his termination was without prior notice or warning, and he inquired whether he was being terminated for something he had done. Semon answered Rudolph's inquiry in the negative, adding that, if he needed a job recommendation, he would furnish it. Actually, the Respondent never discontinued the nightshift. Semon testified that, although the true reason for Rudolph's discharge was his unsatisfac- tory performance, he personally contrived the reason given to Rudolph only to soften the blow of. his termination. Following his summary dismissal by Semon, Rudolph spoke to Mizrahi, who similarly attributed Rudolph's separation to the discontinuance of the night shift, asserting that the Company could not afford to operate it any longer. Rudolph again expressed his surprise at the suddenness of this action.19 After Rudolph's discharge, Semon operated the press on the night shift until about the 18 Because of the lateness of the hour, Semon on occasion did not go home but slept in the plant. 19 The findings concerning Rudolph 's conversation with Mizrahi are based principally on the former's credited testimony , which I find more reliable than Mizrahi's version . Mizrahi testified that, when Rudolph mentioned the discontinuance of the night shift as the reason for his termination, he indicated that it was not true and that it was only Rudolph who was being terminated because the Company could not afford him. As ALLIED PRINTING CORP. middle of May, when Leroy Gaskins was transferred from the day shift to assume the functions of lead pressman on the night shift. As indicated above, it is the Respondent's position that it was Rudolph's unsatisfactory work performance that prompted his discharge. In support of its case, the Respondent's officials painted such a bleak picture of Rudolph's incompetence and shortcomings, which assert- edly became progressively worse during the last several months of his employment, that, if true, one is perplexed why he was ever promoted to lead pressman, retained as long as he was, and granted the wage raises he had received. Thus, General Manager Mizrahi testified that Rudolph was an inadequate pressman from "the very beginning" of his employment, causing "a continuous flow of complaints" from customers concerning jobs on which he worked. When questioned why then was Rudolph selected for promotion to lead pressman on the night shift, Mizrahi replied because "beggars can't be choosers" and the Company had no one else.20 He further testified that since March 1972 the quality of Rudolph's work deteriorat- ed and caused him "no end of grief" from two of his regular customers, the publishers of the Suburban Shopper and the Riverdale Press, whose publications he printed poorly "week after week."21 According to Mizrahi, he repeatedly complained about Rudolph's performance to Superintendent Semon and, although Semon "for many months" wanted Rudolph terminated, he (Mizrahi) refused to do so out of consideration for Semon who would have been required to assume additional burdens at a time when he was already overworking himself. Significantly, Mizrahi never spoke to Rudolph about his unsatisfactory perform- ance except perhaps on one occasion concerning a May 1 job, which will be considered later. Continuing with his testimony, Mizrahi related that a point was reached about April 14 or 15 when, as a result of a large number of complaints he had been getting about Rudolph's work, he became upset and finally decided to terminate him. The evidence shows that from April 18 to 22 the Respondent ran several ads in various local newspapers for a lead pressman and that no response was received.22 Mizrahi then alluded in his testimony to Rudolph's uninterrupted deficient performance during the latter period of his employment from April 24 to the date of his discharge. Among other things, he testified to a Suburban Shopper job which had been poorly printed on April 24 on R,.udolph's shift and involved an abnormal later found, Mizrahi's testimony concerning Rudolph's performance is incredibly exaggerated. 20 It is noted, however, that Leroy Gaskins. who ultimately replaced Rudolph after the latter's discharge , had been in the Company's employ longer than Rudolph . Mizrahi testified that Gaskins was not originally selected to be lead pressman in preference to Rudolph because, although Gaskins was far superior to Rudolph as far as printing ability was concerned , he lacked a sense of responsibility manifested in his bad attendance record. There is no evidence that at the time of his promotion Gaskins had become more reliable in this respect. 21 It appears, however , that none if Rudolph's jobs was ever rerun, although there was an occasion or two when a price adjustment was made. Moreover, there is testimony that the Company also received customer complaints for work done on the day shift for which Rudolph was undeniably not responsible. 22 It is clear that the Respondent has repeatedly advertised for experienced pressmen both before and after this occasion but without too 1049 amount of waste; that the next morning (April 25) he "bitterly" complained to Semon and ordered him to tell Rudolph to straighten out; that President Jacobsen called Mizrahi the same morning to discuss the publisher's complaint about this job and asked Mizrahi why he had not yet fired Rudolph, as Jacobsen assertedly had requested him to do on other occasions; and that Mizrahi simply assured Jacobsen that a bad Suburban Shopper job would not happen again. Surprisingly, Mizrahi did not mention to Jacobsen on this occasion his purported April 14 or 15 decision to discharge Rudolph or his alleged efforts to find a replacement for Rudolph. Nor, according to Mizrahi's testimony, did he convey this information to Jacobsen at the Friday management meeting on April 28 when, in the course of the discussion of Rudolph's unsatisfactory performance of the Suburban Shopper and other subsequent jobs,23 Jacobsen again asked Mizrahi for the reason he had not yet fired Rudolph. Mizrahj testified that he did not answer this inquiry. It is incomprehensible that, if Mizrahi had really decided to discharge Rudolph, he would not have informed Jacobsen or Secretary- Treasurer Cohen of this decision that they purportedly wanted to hear. However, the truth soon became clear when, contradicting his earlier testimony, Mizrahi testified that at the time of the April 28 management meeting, he had not yet made a decision to terminate Rudolph. According to Mizrahi he finally determined on Friday morning, May 5, to discharge Rudolph. Mizrahi testified that he reached this decision when he inspected the job Rudolph had completed the night before for Peoples Press, a want-ad publication; that it was poorly printed and folded and looked like waste; 24 that he anticipated that the job would upset the publisher; 25 and that this was the last "straw." He further testified that he thereupon directed Semon summarily to terminate Rudolph when he reported for work in the evening. At this point, Mizrahi testified, Semon attempted to tell him something about a union but he cut him off with the remark that he was not interested, repeating instead, his instruction to fire Rudolph. Howev- er, Mizrahi testified that shortly thereafter when he calmed down he listened to Semon' s statement that a union representative had visited him the previous night and that he thereupon told Semon first to discuss the matter with Jacobsen, who was due to arrive shortly for a regular Friday management conference. As shown above, Semon informed Jacobsen of his meeting with Union Representative Sherlock. According to much success. 23 Mizrahi testified that he made his customary complaint about Rudolph's performance on these jobs to Semon, whose allegedly persistent requests to Mizrahi to discharge Rudolph went unheeded. 24 According to the testimony of Semon and the publisher , the bundles of the publication were messed up, badly bundled and tied, haphazardly thrown on the cart for delivery, and the publication itself poorly folded and printed. The function of tying, bundling, and stacking was the job of flyboys and other employees on Rudolph's crew . After Rudolph's discharge, the Respondent installed an automatic stacker which counts publications more accurately and stacks them more neatly. 25 Mizrahi and Semon testified that the Peoples Press job could not be rerun because they were then preoccupied with completing the Rolling Stone publication , whose publisher is the Respondent's biggest customer. It appears that Rudolph ran part of the Rolling Stone job on the same night as the Peoples Press job. There is no question that Rudolph 's work on the Rolling Stone was satisfactory. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Semon, he, however, did not tell Jacobsen that he had received instructions from Mizrahi to terminate Rudolph. In the course of Jacobsen's subsequent conversation with Mizrahi concerning Semon's union disclosure, Mizrahi interrupted to apprise Jacobsen that he had ordered Semon to fire Rudolph. and Jacobsen retorted that it was about time. At the hearing, Mizrahi and Jacobsen denie&prior knowledge of the Union's organizational interest or of Rudolph's involvement. Semon testified that he also was unaware of Rudolph's union activity. Semon's appraisal of Rudolph's performance was much in the same general vein, although^he was more generous than Mizrahi in his opinion of Rudolph's earlier efforts. Semon testified, as follows: At the inception of his employment, Rudolph was diligent, eager to learn, and worked hard, with the result that he was promoted to lead pressman on the night shift. In the latter capacity, Semon assisted Rudolph if he encountered difficulties. However, for about 2 months before his discharge, Rudolph's work "went downhill" and he started "to turn out garbage" and jobs which were "totally unacceptable," although no job, except possibly one,26 was rerun. Because of Rudolph's "downhill" performance he advised Mizrahi about 3 to 5 months before Rudolph's discharge that he wanted him terminated. However, Mizrahi declined to accept Semon's recommendation, which he had repeatedly made, on the ground that webb offset pressmen were unavailable, but expressed the hope that Rudolph's work would improve. Describing Rudolph's deficiencies for the approximate 4- month period preceding his termination, Semon referred to the protracted time it took him to do a job, the greater number of employees he needed on his crew, the abnormal amount of waste he produced, the bad quality of his printing, the improper folding of papers, and the careless tying and handling of bundles. Although Semon testified that he had received complaints about Rudolph's work which he "very strongly" called to his attention, there is no evidence that at any time he warned Rudolph that he risked discharge if his work did not improve.27 President Jacobsen gave the following testimony of his knowledge of Rudolph's unsatisfactory performance and his .reaction to such work: He first learned that Rudolph was a lead pressman in March or April. For a long period of time he heard more and more of Rudolph's poor performance mostly from Mizrahi and occasionally from Semon. Although Rudolph sometimes did a good job, "very frequently" his work was "very" poor. In the early spring, Mizrahi and Semon complained to him that the situation on the night shift was becoming increasingly more -aggravated with more problems being presented there. These problems were due to Rudolph's. failure to shape up and his poor production. As a consequence, 26 Semon, however, could not identify the particular job or the time it was run. 27 Semon testified that, when Jacobsen informed him of the customer's complaint about the April 24 Suburban Shopperjob and that he feared that the Company would lose this account if there were no improvement, he assured Jacobsen that the situation would not happen again. Semon further testified that he criticized Rudolph for printing that type of "garbage" and told him he had to do better or the Company would lose the Suburban Shopper account. Semon also testified that 2 weeks before this episode, and "quite a few times" before that, he had the occasion to tell Rudolph that he was not performing well, although sometimes he did do good work for Rudolph's performance was a "constant" subject of discussion at the Friday management meetings where Jacobsen and Secretary-Treasurer Cohen urged28 or instructed Mizrahi to get rid of Rudolph. At first, Mizrahi stated that nothing could be done about the problem because of his inability to get pressmen and expressed the hope that Rudolph would improve. Then, at subsequent meetings during April, Mizrahi would hardly answer Jacobsen's and Cohen's requests to discharge Rudolph. In fact, at the April 21 management meeting, when Jacobsen and Cohen practically directed Mizrahi to fire Rudolph, Mizrahi made no response, only "sort of shrugged it off." Jacobsen further testified that, after he received the Suburban Shopper complaint and. discussed it with Mizrahi. and S'emon, he was "furious" with Mizrahi for failing in his managerial responsibilities and arranged for the discussion of the matter at the April 28 management meeting. Moreover, Jacobsen testified that on this occasion he and Cohen instructed Mizrahi to fire Rudolph and that this action, which was long overdue, was-to be taken whether or not a replacement could be obtained and even if it meant reducing the amount of work the Company would accept from customers. He also testified that he assumed that Mizrahi would terminate Rudolph the following Friday, May 5, although no date had been indicated. When questioned regarding the raises given to Rudolph, Jacobsen testified that they were granted by Mizrahi without,his knowledge. However , it is noted that Jacobsen and Cohen were the officers who signed the employees' paychecks. Rudolph denied, ever receiving.a complaint, notice, or warning that his work was unsatisfactory. However, he acknowledged that every now , and then,. Semon, in the regular course of his duties, would check a paper coming off the press and require him to make certain corrections or changes in the printing process. Moreover, he admitted that there were several occasions when Semon and Mizrahi told him that a particular job took too long. In addition, Rudolph testified that Mizrahi expressed displeasure concerning a job he had run on or about May I and the abnormal amount of waste produced. Rudolph further testified that Mizrahi, however, told him on that occasion that he was not criticizing him personally but that he wanted to know what was wrong, whether Gray was the cause. Rudolph answered that Gray was not at fault but placed the blame for the type of job that was produced on insufficient manning of the press and the cause of the waste on his belief that the press might have been cold because of some maintenance work which might have been done on the day shift.29 In this conversation, Rudolph testified, Mizrahi stated that he wanted more production.30 In addition, Rudolph testified that this was the occasion which he was complimented. . 28 Jacobsen, as the Respondent's chief executive officer, engaged in semantics when he testified that he never instructed. Mizrahi to discharge Rudolph but only requested such action. 29 It is unnecessary to resolve . a conflict in testimony whether maintenance work on the press was regularly done on Mondays. However, it appears that maintenance work would be done at any time the need arose. 30 Mizrahi gave the following account of this episode: On Monday evening, May I, because of Semon's absence, he himself spoke to Rudolph about his poor printing and lack of production. He then told Rudolph that, if he continued to perform as he had been doing, Rudolph would put the ALLIED PRINTING CORP. 1051 when he was waiting for plates from the camera depart- ment and that without the plates he could not proceed with the production job.31 There is also evidence in the record that Rudolph had received compliments from several customers, including Riverdale Press and Peoples Press, for good work per- formed on their publications. Indeed, Mizrahi conceded that he once conveyed a Riverdale Press compliment to Rudolph and Gray. However, he minimized its importance because of a prior history of poor jobs produced for that customer and considered the compliment as a means of inspiring the continuance of good production. However, Mizrahi testified, Rudolph's performance soon reverted to poor quality work. Rudolph, on the other hand, denied ever receiving complaints regarding the quality of his printing of Riverdale Press publications, although there were some complaints concerning the paper count in bundles. As previously indicated, bundling is the function of flyboys. Finally, testimony was adduced at the hearing attesting to Rudolph's general competence as a pressman. Indeed, one of these witnesses, Gray, a concededly good worker who operated the press with Rudolph as a team, testified that he considered Rudolph a better webb offset pressman than he was. From my review of the evidence, I find that the testimony of the Respondent's officials regarding Ru- dolph's incompetence, the progressive deterioration of his work, and the number and nature of customer complaints to be grossly exaggerated and beyond reasonable belief. While undoubtedly Rudolph's performance was not faultless, it is incredible and unnatural that the Respondent would have promoted him to leadman, granted him wages, and tolerated his retention for as long as it did, if he actually had been the woefully inept pressman he was depicted to be. I am not persuaded by the Respondent's attempt to explain Rudolph's promotion, raises, and retention to General Manager Mizrahi's failure properly to perform his managerial responsibilities. Indeed, it is incomprehensible that Mizrahi would deliberately ignore the repeated requests or orders purportedly given to him by the Company's chief executives and owners to get rid of Rudolph. Also inexplicable is the absence of any clear and unequivocal warnings to Rudolph that he courted dis- charge unless his work performance improved. On the contrary, it seems to me that the reason Rudolph was not terminated stoner or even threatened with discharge was the fact that he really was not regarded by the Respondent as an unsatisfactory or inadequate employee. Probably, many of the problems experienced on the night shift were due to causes which were not of Rudolph's doing or for which he was not responsible. In fact, Superintendent Semon himself customarily remained on the night shift about 4 days a week until 9 or 10 p. m. supervising the jobs in production. Considering all the facts and circumstances herein, I reject the testimony of the Respondent's witnesses, Mizrahi, Semon, and Jacobsen, concerning Rudolph's unsatisfactory performance and find Rudolph's account and that of supporting witnesses to be more reliable. 3. Gray's discharge In October 1971, Hugh Gray, a letter pressman with some 15 years experience and a member of the Union, answered the Respondent's newspaper ad for a webb offset pressman. At that time, Gray had been on strike for 7 months against his then employer, Newark Evening News. He was interviewed by Superintendent Semon, an old friend with whom he had once worked but had not seen for a number of years. Semon recommended Gray to General Manager Mizrahi who spoke to Gray about his qualifica- tions and the salary he wanted and asked whether he still belonged to the Union. When Gray answered that he still was a member, Mizrahi stated that, although he did not like getting involved with a union man, he nevertheless would try him because he needed a pressman. Gray was thereupon hired at $185 for a 40-hour week to learn to operate a webb offset press which he had never run before. Two days later his salary was raised to $214 a week when Gray informed Mizrahi of his intention to quit because the workload was too much for the money he was being paid. After working 2 weeks on the day shift, where Semon taught him the operation of the offset press, he was transferred to the night shift. There he worked on the press with Rudolph who also contributed much to his knowledge of running the machine. Undeniably, Semon and Mizrahi were satisfied with Gray's performance and reliability,32 although they testified that he had not yet achieved the status of a fully qualified operator of an offset press. On April 10, the strike at Newark Evening News ended and publication was resumed. Gray then returned to his job there on the day shift but continued working for the .Respondent at night. At that time, Gray informed Semon that he would not be hurt if he hired another pressman to replace him at the Respondent's plant. Semon, however, saw no reason for Gray to leave his night job and arranged with Gray to accommodate his night job to his day job responsibilities by permitting Gray to report to work at the Respondent's plant a little later and to leave a little earlier if necessary. In this manner, Gray was able to hold down both jobs, working for the Respondent 5 nights a week, approximately 8 hours a night until a few days before May Company out of business; that his production was less than half of what the Company required to be competitive; and that it would be difficult to go along with him if he persisted in printing the way he was doing. Mizrahi further testified that he did not directly warn Rudolph that he would be discharged if he did not improve. It is also undisputed that, when Rudolph discussed his discharge on May 5 with Mizrahi, and Rudolph noted that the action was sudden, Mizrahi did not question the statement by referring to any prior warnings given to him. As later indicated, Mizrahi is not a reliable witness and I therefore credit Rudolph's testimony where in conflict with Mizrahi's. 31 According to Gray's testimony, the night shift frequently experienced delay in receiving plates for the Suburban Shopper job. He also testified that when a machine is not in operation waste results after it is started up again. 32 As indicated above, 2 months after he was hired, a notice was posted designating him foreman of the night crew with authority to approve timecards. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5, when he was obliged to be absent because of his father- in-law's illness.33 As found above, on May 4,34 Gray explained the reason for his absence to Semon who assured him that he need not be concerned and that he could return when circumstances permitted. This was the occasion when, at Gray's initiative, Semon met Union Representative Sherlock who advised him of the Union's intention to organize the plant. On May 5, Semon admittedly discharged Rudolph when he reported for work in the evening. There is an irreconcilable conflict in testimony, however, whether Semon also terminated Gray a short while later the same evening when he arrived at the plant. According to Gray, he came to the plant, as he had informed Semon the day before he would do to pick up his check. He further testified that Semon handed him the check, saying that the Company was doing away with the night shift and that his services were no .longer needed. Gray also testified that he took the check and departed without making any com- ment. Brian Goodwin, an 18-year-old former employee, who witnessed this episode, corroborated Gray in significant part. He testified that he heard Semon tell Gray that the Company was discontinuing the night shift because of insufficient work, that it would extend the duration of the day shift to handle its requirements, and that therefore they no longer needed Gray. Goodwin further testified that Gray reacted to this announcement with obscenities.35 Contradicting both Gray and Goodwin, Semon categori- cally denied that he had any conversation at all with Gray on May 5 or ever telling him that the night shift was being discontinued. He testified that he noticed from the corner of his eye Gray enter the shop and that he saw Bill Stay- win36 hand Gray his check and Gray then leave. I find the testimony of Gray and Goodwin that Semon terminated Gray on May 5 for the asserted reason that the night shift was being discontinued more plausible and convincing than Semon's testimony.37 If Gray had not been discharged, I am unable to understand the Respon- dent's conceded failure to communicate with Gray, admittedly a good worker, to return to work, especially since the Respondent was suffering from a serious shortage of pressmen undoubtedly aggravated by Rudolph's dis- charge. Moreover, there is nothing in the record to indicate that Gray had lost interest in his job with the Respondent. On the contrary, I find that his failure to report for work after May 5 was due solely to his discharge. Accordingly, I credit Gray's and Goodwin's testimony, as indicated above. On the occasion of his discharge on May 5, Gray learned from Goodwin that Rudolph had also been terminated. When Gray arrived home the same evening, he telephoned Rudolph and verified that both of them had been told that they were dismissed because of the discontinuance of the night shift. The following week, Gray returned to the plant to remove his work clothes from the locker. While there, he was informed by an employee that Semon had remarked that Gray had been laying down on his job. Gray thereupon approached Semon. A serious conflict- in testimony was presented as to what transpired from this point on. Gray gave this version of his encounter with Semon: When he confronted Semon with the remarks the employee attributed to him, Semon denied that he made them, asserting that he had always liked Gray's work and that he had no complaints about his performance, Gray then asked Semon to speak to Mizrahi about being paid for the sick days to which he was entitled, but Semon declined to do it and suggested that Gray see Mizrahi himself. Gray then commented that he thought there was no more night side. Semon replied that he had nothing to do with it and the conversation ended. Semon testified, as follows: While he was running the press, Gray came to him and thanked him for telling him that he was no longer working there. Semon answered that he never told him he was fired or that he was no longer working there. Thereupon, Gray became loud and boister- ous and demanded the vacation pay which was due him. Semon' stated that he was not concerned with money matters and told him to see Mizrahi. Semon then repeated that Gray was not fired and was welcome back. Gray then left. I find Gray's testimony more credible and in accord with the realities of the situation than Semon 's account and therefore accept it.38 It is undisputed that neither before nor after the above Semon-Gray conversation did the Respondent attempt to communicate with Gray to return to work, although it has always been in need of help on the night shift. Semon testified that he did not call Gray back to work after that last conversation because Gray had a steady job at the Newark Evening News and he ( Semon) did not "want to start any trouble or open old wounds because of his attitude that night . . . [and he] didn't want to have any trouble in the shop." 33 The foregoing findings are based on the substantially uncontradicted testimony of Gray, Semon, and Mizrahi. 34 I also credit Gray's testimony that on Tuesday, May 2, he notified the office of his inability to come to work and that the following day he spoke to Semon personally at the plant about it . Although there is some confusion in Gray's recollection of the sequence of events and what he said on each occasion , I have no doubt that he had a sense of responsibility to report his absence. In any event, the Respondent does not claim that he was discharged for this or any reason. 35 Although Goodwin showed uncertainty about the dates of certain occurrences , I find from his entire testimony that his above account related to the May 5 episode. Goodwin also testified that he saw Gray the following week when Gray returned to the plant and engaged Semon in a "fairly" long conversation, which'he did not overhear. 3s Staywin, who works under Semon in the collation department on the day shift, was not produced as a witness. Semon testified that he (Semon) is in charge of distributing paychecks to employees and that when he is not around he gives Staywin the checks for distribution. 37 It is also probable that Gray reacted to Semon's announcement with obscenities as Goodwin testified. 38 Although the Union filed an unfair labor practice charge on behalf of Rudolph on May 8, 1972, a separate charge on behalf of Gray was not filed until June 21, 1972. According to Gray and Sherlock, the delay was due to their inability to get together to file it . It appears that Gray at that time worked for the Newark Evening News on the day shift while Sherlock worked for another employer on the night shift. ALLIED PRINTING CORP. B. Concluding Findings 1. With respect to interference, restraint, and coercion I have found above that on May 5, shortly after he learned of the union movement from Superintendent Semon, President Jacobsen individually summoned em- ployees Lugo, Dilgard, and Gaskins to a room in the office area where, in the course of interviewing them, in the presence of Secretary-Treasurer Cohen, concerning prob- lems in the plant, he questioned them, as follows: He asked Lugo whether he knew anything about a union in the plant, whether a union representative had approached employee Howe, and whether he was going to attend a union meeting scheduled to be held the next day. Dilgard was asked whether he knew anything about union activities or a union in the plant and, when Dilgard answered in the affirmative, Jacobsen inquired why he had not mentioned it before. Gaskins was questioned whether he heard that employees wanted a union and whether he liked a union. Considering the circumstances of the individual interroga- tion by the chief executive officer of the Company in the presence of another official in the privacy of a room in the office section of the plant, without adequate assurance being given the employees that their union interest or activity would not bring reprisals, there can be little doubt of the coercive impact such interrogation is likely to have on the employees' exercise of their self-organizational rights. Indeed, the discriminatory discharge a few hours later of Rudolph and Gray, the two employees responsible for the union movement in the plant, discussed below, certainly demonstrated to the employees that the interroga- tion was more than casual or innocuous inquiries. Accordingly, I find that the Respondent's conduct inter- fered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. However, I do not interpret Jacobsen's other remarks to Lugo as a threat to close the plant down in retaliation for employee support of the Union, as alleged in the amended complaint. Those remarks appear to be at best a prediction that the presence of a union would only create economic difficulties. As such an expression of opinion is plainly a privileged communication, it is recommended that the pertinent allegations of the amended complaint be dis- missed. 2r With respect to discrimination a. Rudolph The question whether an employee was illegally dis- charged because of his union activities is not susceptible of easy determination as it involves an inquiry into the employer's state of mind. In resolving this question, therefore, all the facts and circumstances surrounding the separation must be carefully appraised with due recogni- tion being accorded to the settled principle that an employer may terminate an employee for any reason, 39 N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8). 40 As will later be discussed, Gray was also terminated on his arrival at the plant the same evening. 1053 good, bad, or indifferent, provided he is not motivated by union considerations . It is equally well established that the existence of a `justifiable ground for dismissal is no defense if it is a pretext and not the moving cause."39 A careful review of the evidence persuades me that the Respondent discharged Rudolph because of his union leadership and not because of his purported unsatisfactory work performance , as the Respondent urges. Without repeating the details, it is clear that Rudolph was one of the two employees-the other being Gray-who was instru- mental in bringing the Union into the plant . In addition, Rudolph solicited employee signatures to union authoriza- tion cards . It is equally clear that the Respondent did not welcome the prospect of its pressroom employees being organized and that immediately upon learning of the union movement from Superintendent Semon on May 5 Presi- dent Jacobsen proceeded to interrogate individual employ- ees concerning the Union and the root causes of the problems in the pressroom . Against this background, it appears to be more than a strange coincidence that within a few hours after the interrogation, when Rudolph reported for work in the evening, he should be summarily dis- charged without prior warning.40 Such timing , coupled with the precipitateness with which the Respondent acted, certainly casts doubt on the purity of its motives . When to this is added the fact that a concededly false reason was given by Semon to Rudolph at the time of his discharge that the action was necessitated by the Company's decision to discontinue the night shift on which Rudolph worked, it becomes more apparent that it was really Rudolph's union activity that prompted his discharge .41 If, as the Respon- dent argues, it was his poor performance that brought about his discharge , I cannot perceive any plausible reason why he was not so informed at that time . It is just not natural for an employer to withhold from an employee a legitimate basis for his dismissal and to resort to a subterfuge unless it really is not the moving cause. Probably, this ground for discharge was not given to Rudolph because the Respondent did not honestly regard him to be the woefully incompetent and unsatisfactory pressman it depicted him to be at the hearing, whatever shortcomings he might have had. Indeed, at the time of the discharge, Semon offered to furnish Rudolph with job .references. Moreover, the inference that Rudolph was not considered an inadequate pressman is further indicated, not only by the fact that he was never warned that he risked dismissal if his work did not improve, but also by the fact that he was promoted to lead pressman, was granted wage raises, and was retained in the Respondent's employ during the long period of ostensibly progressive deterioration in his performance . This is additional strong evidence of the Respondent's discriminatory motivation. The Respondent argues that since it had advertised for a lead pressman in the period around April 18, prior to the advent of the Union , it shows that it had decided to replace Rudolph for a nonunion-related reason. However, in view of the evidence recited above, it does not necessarily follow that its advertisements for lead pressmen establish that the 41 Shattuck Denn Mining Corpordtion v. N.L.R. B., 362 F.2d 466, 470 (C.A.9). 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had definitely determined at that time completely to dispense with Rudolph's services as a pressman. Not only has the Respondent been continuously .in need of pressmen and has repeatedly sought to recruit such help, but, when. it received no response to the April ads, it did not replace Rudolph with Gaskins until after Rudolph had introduced the Union into the plant. The Respondent's disavowal of knowledge of Rudolph's union activity at the time of his dismissal appears to me to be less than candid. While it is true that there is no direct evidence of knowledge, all the circumstances mentioned above, as well as the smallness of the plant,42 combine to reveal the Respondent's awareness of Rudolph's union leadership 43 Moreover, President Jacobsen's interrogation of employee Lugo to ascertain whether employee Howe had been approached by a union representative indicates that the Respondent had more information concerning union activity than it pretended to have. As shown above, Rudolph had successfully solicited Howe to sign a union authorization on April 26 in Union Representative Sherlock's presence. Finally, it is not without significance that the Respondent discriminatorily terminated Gray, the other employee responsible for the Union's appearance at the plant and admittedly a good worker, the very same evening that Rudolph was discharged, and for the same assigned false reason that the night shift was being discontinued. In view of the foregoing, I find that Rudolph was discharged in reprisal for his involvement in the Union's organizational efforts and that his purported unsatisfactory performance was only a pretext to conceal its true unlawful motivation. Such conduct constitutes discrimination in employment to discourage union membership and violates Section 8(a)(3) and (1) of the Act. Even assuming that Rudolph's alleged deficiencies to some extent entered into the Respondent's decision to discharge him, I find that a substantial moving cause was his union sponsorship and that therefore his termination would still violate the same provisions of the Act.44 b. Gray It is the Respondent's position that the evidence does not establish that Gray was discharged. However, it has otherwise been found above. Indeed, if, as the Respondent contends, Gray had simply failed to report for work, it is beyond comprehension why, in the face of the Company's dire need for pressmen, aggravated by the termination of Rudolph, it made no effort to communicate with Gray, admittedly a good worker, to persuade him to return to his job. The obvious answer is that Gray, like Rudolph,.had become persona non grata to the Respondent because of his responsibility for the union movement in the plant. In sum, I find, on the basis of all the evidence, including 42 Alberto-Culver Company, 199 NLRB No. 22. 43 N.L.R.B. v. Long Island Airport Limousine Service Corp., 468 F.2d 292 (C.A. 2). 44 N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2); N.L.R.B. v. Historic Smithville Inn, 414 F.2d 1358, 1361 (C.A. 3). 45 I find that effectuation of the policies of the Act requires that such an offer, of reinstatement be made to Gray, even though he testified at the hearing that his day shift job with Newark Evening News was about to end because that company was closing down its operation and that he had the timing and the precipitate nature of Gray's discharge, 'the absence of prior warning, the assignment of a pretextuous reason for. his termination, and the Respon- dent's awareness of his union membership and support, that the Respondent discriminated against Gray in violation of Section 8(a)(3) and (1) of the Act. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully discharged employees Robert Rudolph and Hugh Gray because of their union activity. To remedy this violation, it is .recommended that the Respondent offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges,45 and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that which each one normally would have earned from May 5, 1972, the date of his discharge, to the date of the offer of reinstatement, less his net earnings during the said period.46 Backpay shall be computed with interest on a quarterly'basis in the manner prescribed by the Board. in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. To facilitate the computation, as well as to clarify the named employees' right to reinstatement and employment, the Respondent shall make available to the Board, upon request, payroll and other records necessary and appropri- ate for such purposes. The posting of a notice is also recommended. In view of the nature of the discrimination for union membership and activity which "goes to the very heart'of the Act," 47 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respon- dent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.48 , 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 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. another night shift job under consideration which, if accepted, would require him to decline the Respondent' s offer if limited to the night shift. 46 As Gray was regularly employed on the day shift of Newark Evening News at the time he worked on the Respondent's night shift, moneys earned on the day shift job shall not be offset against the moneys he would have earned from the Respondent during the period of discrimination. 47 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). 48 N. L. R. B. v. Express Publishing Company, 312 U.S. 426, 433.: ALLIED PRINTING CORP. 1055 3. By discriminating in regard to the hire and tenure of employment of Robert Rudolph and Hugh Gray to discourage membership in, and activities on behalf of, the Union, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by interrogating employ- ees concerning the union movement and activities in the plant by questioning an employee about his intentions to attend a union meeting, and by inquiring of another employee regarding his union sympathies, the Respondent interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not violate Section 8(a)(1) of the Act by threatening employees with plant closure if they supported the Union, as alleged in the amended complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of. the Act, as amended, I hereby issue the following recommend- ed: ORDER49 Board or its agents, for examination.and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its plant ' in Saddle Brook, New Jersey, the attached notice marked "Appendix." 50 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter- in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken'to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the receipt of this Order, what steps Respondent has taken to comply herewith.51 IT IS FURTHER ORDERED that the allegations of the amended complaint that the Respondent violated Section 8(a)(1) of the Act by threatening the employees with plant closure if they,.supported the Union be, and they hereby are, dismissed. The Respondent, Allied Printing Corp., Saddle Brook, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 8, Newark Newspaper Pressmen 's Union, a/w International Printing Pressmen and Assistants Union of North America, AFL-CIO, or any other labor organization, by discharging employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their union sympathies, activities, and attendance at union meetings. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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 by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Robert Rudolph and Hugh Gray, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the 49 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 10 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 51 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to read: "Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees 'the following rights: To organize themselves To form, join or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these activities. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, Local 8, Newark Newspaper Pressmen's Union, a/w Interna- tional Printing Pressmen and Assistants Union of North America, AFL-CIO, or any other labor organi- zation. WE WILL NOT coercively interrogate our employees 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning their union sympathies, activities, or attend- ance at union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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 by Section 8(a)(3) of the Act. WE WILL offer Robert Rudolph and Hugh Gray immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them. . All our employees are free to become, remain, or refrain from becoming or remaining, members of Local 8, Newark Newspaper Pressmen's Union, a/w International Printing Pressmen and Assistants Union of North America, AFL-CIO, or any other labor organization, 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 by Section 8(a)(3) of the Act. Dated By ALLIED PRINTING CORP. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days .from'the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may. be directed to the Board's Office, 970 Broad Street, Federal Building, 16th Floor, Newark, New Jersey 07102, Tele- phone 201-645-2100.