Central Press of California

CENTRAL PRESS OF CALIFORNIA 765 Central Press of California and Sacramento Mailers Union Local 31, International Typographical Un- ion. Case 20-CA-8587 May 21, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 28, 1974, Administrative Law Judge David E. Davis issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, Charging Party filed a brief in answer to Respondent's exceptions, and General Counsel filed a cross-exception and a brief generally supporting the Administrative Law Judge's Decision. 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 as modified herein and to adopt his recommended Order. The Administrative Law Judge found that Respon- dent violated Section 8(a)(3) and (1) of the Act in discharging employee Daniel Stone. We agree. As found by the Administrative Law Judge,' Stone worked on the night shift in the mailroom; he was supervised by Night Foreman Fowler, except for a 2- hour overlap period each day between the day and night shifts during which Day Shift Foreman Clancy was in charge and thus had the opportunity to observe Stone. Two weeks prior to Stone's dismissal, Clancy asked Fowler if he had overheard any of the employees discussing anything about the Union or union activities and specifically asked if he had heard Dan Stone. Although Fowler testified that he did hear Stone talking about the Union in the mailroom, in his reply to Clancy's question, he said only that he had heard the Union mentioned.2 Clancy then i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 Although the Administrative Law Judge states that Fowler testified that he had informed Clancy that he had overheard Stone talking about the Union to other employees, the Respondent correctly points out that the record, to the contrary, indicates that Fowler acknowledged having overheard union-related discussions among employees, but he did not identify Stone as the spokesman 3 According to the transcript of Fowler's testimony, he stated, "He asked me that Stone's father was a union executive, a big union official." In his instructed Fowler to inform him if he heard any of the employees discussing the union adding that, ". . . if the union thing had started, there would be a possibility that the plant would close, and we would possibly lose our job." Clancy at another time asked Fowler if he was having any trouble with Stone, and Fowler answered, "No." In still another conversation Clancy questioned Fowler regarding Stone's father being a union executive.3 Clancy finally instructed Fowler to inform Stone of his discharge and stated that he had personally evaluated Stone and had decided his work was unsatisfactory and furthermore that they were going to have a reduction in personnel. Approximately 2 days after Stone's discharge, Fowler approached Clancy and said they would be "hurting" for help since they were losing two employees (Stone and Garrett). Clancy's reply was, "yes, I understand we are all going to be hurting, but we won't have to worry about the union then." It is clear from the above, and especially in view of Clancy's particular concern with Stone's union activities, that the General Counsel has made a prima facie showing that Stone was discharged for unlawful reasons. Once the General Counsel establishes a prima facie case, it can be overcome only by a preponderance of competent, credible rebutting evidence.4 But Respondent has not sustained its burden of going forward to adduce such proof. We reach this conclusion notwithstanding Respondent's contention that Stone's discharge was in part motivated by an economic determination to reduce the work force, and even if, as Respondent contends, Garrett (who worked with Stone in the mailroom) gave notice of his intention to quit several days before Stone's discharge and Sagunza was hired earlier to replace Garrett rather than Stone.5 For Respondent has merely introduced self-serving testi- mony consisting of bare assertions which were discredited by the Administrative Law Judge, and it failed to supply any documentary evidence to support its claim of poor economic conditions. Accordingly, we find no basis for reversing the report, the Administrative Law Judge found that Clancy asked Fowler, "if Stone's father was a union executive " General Counsel, in his exception, argues that the Administrative Law Judge failed to consider the testimony as reflected in the General Counsel's motion (assertedly granted by the Administrative Law Judge) to correct the record to show that Clancy asked Fowler, ". if he knew that Stone's father was a union executive " We need not ascertain the exact words used in Fowler's testimony , because the various versions all reflect the same particular concern on the part of Clancy with Stone's relationship with the Union 4 National Automobile and Casualty Insurance Co, 199 NLRB No. 1 5 As the Respondent points out, the record does not support the Administrative Law Judge's statement that Clancy testified that Sagunza was hired to replace Stone . Nor do we deem the evidence as subject to an interpretation that Garrett did not inform Clancy of his intention to quit until the day of Stone's discharge or several days later 210 NLRB No. 113 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Administrative Law Judge's conclusion that Stone was discharged in violation of Section 8(a)(3). 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 the Respondent, Central Press of California, Sacramento, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This case was tried before me at Sacramento , California, on November 8, 1973,1 upon the basis of a charge filed on September 6, by the Sacramento Mailers Union Local 31, International Typographical Union (herein called the Union or the Charging Party) against Central Press of California, herein called Respondent,2 and a complaint issued on October 5 on behalf of the General Counsel by the Regional Director for Region 20 of the National Labor Relations Board, herein called the Board . The complaint alleged that on or about August 8 Respondent discharged its employee, Daniel Stone, because of his membership in or activities on behalf of the Union or because he engaged in other protected concerted activities for the purposes of mutual aid or protection. Respondent , while admitting certain allegations of the complaint, denied that it had engaged in any unfair labor practices . Upon the entire record,3 my observation of the witnesses, and upon careful consideration of the briefs submitted, I make the follow- ing: FINDINGS AND CONCLUSIONS 1. RESPONDENT'S BUSINESS As the complaint alleges and the answer does not deny, I find the following to be admitted: Respondent , a Califor- nia corporation with its principal place of business at Sacramento, California, is and has been engaged in the retail printing business ; during the past calendar year, it has received gross revenues in excess of $500,000; during this same period, Respondent in the course and conduct of its business operations purchased supplies valued in excess of $50,000 from business enterprises which, in turn, purchased said supplies directly from suppliers located outside the State of California ; and Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. I further find that it would effectuate the policies of the Act to assert jurisdiction herein. I All dates hereafter refer to 1973 unless otherwise specified. 2 The charge was served on Respondent on September 6. II. THE LABOR ORGANIZATION INVOLVED The complaint alleged, the answer did not deny, and I find that Sacramento Mailers Union Local 31, Internation- al Typographical Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE Carl Fowler, Jr., testified that he is an apprentice mailer; that he was employed by Respondent as a truckdriver, mailer, and night foreman from May 8 to September 11; that William (Bill) Clancy was the day foreman and his immediate supervisor; that he overheard Stone discuss union representation with employees Duncan , Roland Garrett, and Angelo Pasquale when Stone was employed on the night shift from July 7; that he heard mention of the Mailers Union during the conversation; that 2 weeks prior to Stone's termination he had a conversation with Clancy in which Clancy asked him if he had overheard employees discussing the Union or discussing union activities; that Clancy asked him particularly whether Stone had engaged in union discussions ; that Clancy asked him to report any union discussions to him, saying that, if "the union thing had started," there would be a possibility that the plant would close and everyone would lose their jobs . About a' week later, Fowler had another conversation with Clancy in which he was asked if Stone's father was a union executive. Fowler replied in the negative . On the day Stone was discharged, Clancy called Fowler at his home and asked him if he could come to work that day as Clancy had something he wanted Fowler to do . Fowler came in and Clancy told him that they were going to lose another employee, naming Stone and saying that he had personally evaluated Stone and had decided his work was unsatisfac- tory. Clancy added that they were going to have a reduction in personnel . Clancy then instructed Fowler to tell Stone that he was discharged and give Stone two checks-one for the last pay period and the other for his day's work. Fowler then went to Stone and did as he was instructed, telling Stone that it was as a result of Clancy's personal evaluation of his work and that they were going to have a reduction in work. On cross-examination, Fowler testified that, during the time he was night foreman, six persons was the maximum number under his supervision and three the minimum; that Stone was under his supervision for approximately I month; that Stone was in the process of learning the job by doing work that required less skills; that the night shift overlapped for 2 hours with the day shift; that Clancy was in charge of the mailing room during the overlapping 2 hours and had an opportunity during this time to observe Stone's work; that Stone prior to working on the night shift had worked for a period on the day shift under Clancy's supervision; that Clancy constantly went from one part of the shop to another ; that when Stone worked on the sacking machine it would break down on occasion and he would then be required to do cleanup work which was always needed; and that anyone working on the sacking machine would be required to undertake cleanup work. 3 General Counsel's unopposed motion to correct the transcript is granted CENTRAL PRESS OF CALIFORNIA Fowler further testified that on one occasion, about I week before Stone's discharge, Clancy told him to see that Stone did not wander around the plant. Fowler, however, did not caution Stone in this regard and Clancy never told him that he had cautioned Stone against wandering around. Cross- examined further, Fowler stated that he is now employed at the "Sacramento Bee"; 4 that he learned of the vacancy there through a fellow employee and applied for it; that he became a member of the Union involved herein about 1 month prior to the hearing and that the "Sacramento Bee's" mailroom employees are represented by the Union; that in December 1972 three other employees of Respon- dent went to work for the "Sacramento Bee"; that he did hear Stone talk about the Union on two occasions with employees Pasquale, Duncan, and Garrett, but only during luncheon hours or break periods; that he did not hear much of the conversation either time except that it was said that there would be better opportunities if the plant was union. Questioned further, Fowler testified that he is making about $1 per hour more at the "Sacramento Bee" than he did when he was working for Respondent. Fowler stated that he had informed Clancy that he had overheard Stone talking about the Union to other employees. Daniel Stone testified that during the entire time he was employed by Respondent he had engaged in conversations concerning the Union with other employees. The day after his discharge he talked with Clancy in the mailing room and asked him the reason for his layoff. Clancy told him that he had made an evaluation of his work and that he was not satisfied. Clancy assigned as another reason for Stone's discharge the fact that they were cutting back and laying off people in other departments. Stone inquired whether he was being laid off or being discharged. Clancy replied that he was fired. When asked for the reason, Clancy said that Stone had a bad attitude. In cross- examination, Stone conceded that conversations in the mailing room concerning the Union were held during working hours but that he was never cautioned about this. He also stated that he had never left his work area for these conversations. Clancy, called as a witness by Respondent, testified that he has been employed by Respondent for about 6-1/2 years, the last 10 months as mailroom foreman; that he supervised the mailroom employees and saw that the work was performed; that normally there were four full-time day-shift employees and five night-shift employees with one or two part-time employees; that he had Stone on his day shift for a time and then assigned him to the night shift on July 7; that he observed employees while they were at work; that after Stone was transferred to nights he observed Stone on occasion leave his assigned work area to talk to other employees so as to interrupt their work; that he told Stone on two occasions "to go back where he was supposed to work and quit talking to the other people;" that Stone complied; that a few days later Stone again left his work area to talk to other employees, and continued to do so several other times; that on occasion when Stone's machine stopped Stone would stand around and he had to direct Stone to do cleanup work; that it is the practice of 4 A Sacramento newspaper. 5 According to Clancy's testimony, Sagunza came to work the day after 767 employees to do cleanup work without direction when their machine breaks down ; and that Stone had been so instructed. Continuing his testimonial account, Clancy stated he had instructed Fowler to tell Stone he was being let go because of his poor work and poor attitude towards work. Asked by counsel what he observed which led him to believe that Stone had a poor attitude, Clancy replied as follows: A. Well, he was on the day shift, he was working the full 8 hours, and he seemed to be more interested at work. And then when he went on the night shift, it seemed that his attitude changed, his interest changed. It's just-it seemed to be- Q. Were there any particular acts or words that you observed or heard? A. Myself, I would direct him to do something, or Carl-? Q. Carl-? A. Carl Fowler, he would direct him to do something or one of the other supervisors , and he might do it eventually, but it was the attitude that he impressed me with. Clancy admitted he talked with Stone the day after his discharge and that he told Stone that he concluded that his work was poor because he wandered away from his machine and paid no attention to his work ; that Stone replied that he was going to take the matter to the National Labor Relations Board ; that he hired a man the day before Stone's discharge who came to work the following day; that he also received word that Garrett was leaving at the end of the week ; and that he hired another person about I month later. On cross-examination, Clancy testified that after the first time he spoke to Stone he talked with Fowler and asked Fowler if he was having any trouble with Stone; that Fowler replied in the negative ; that he told Stone on both occasions "to go back to work and to stay with his job, and not to wander off, and that he was working on the machine and that he had work to do." Questioned further, Clancy stated that on the first occasion when he saw Stone wander from the labeling machine the machine had stopped, and that it usually stopped for about 15 or 20 minutes; that when the machine stops it could be only a few minutes and the men are not required to start immediately to do cleanup work; that on many occasions the men wait for instructions as to what to do. Fowler, recalled as a witness, testified that about 2 days after Stone's discharge he had a conversation with Clancy in which he told him that they would be "hurting" for help as they were losing two employees and that Clancy replied; "Yes, I understand we are all going to be hurting but we won't have to worry about the Union then"; that as far as he remembered no employees were hired until after Stone's discharge; 5 that he did not know whether Sagunza was replacing Stone or Garrett; that Sagunza did not come to work until about a week after Stone's discharge. Stone's discharge. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clancy, recalled as a witness, testified that Sagunza came to work the day Stone was fired or the day after, then added, "But, I believe he was hired before, but didn't come to work right away . . . . He didn't come to work right away for a couple of days." Clancy admitted he talked to Fowler about help after Stone's discharge, but denied telling Fowler that he would not worry about the Union, saying, "I don't recall any such thing at all." Review of the pertinent evidence set forth above shows that Clancy did not deny the crucial aspects of Fowler's testimony. While the circumstances may indicate that Fowler may have some mild bias in favor of the Union, nevertheless, the main thrust of his testimony stands uncontroverted. In this posture, I credit Fowler's testimony that Clancy in July interrogated him as to whether the employees were discussing the Union and particularly whether Stone was engaging in such discussions. I regard Clancy's desire for information concerning the Union as more than idle curiosity inasmuch as Clancy added that if the Union got in the plant would close and alljobs would be lost. Clancy's interrogation of Fowler concerning the union position Stone's father held and his inquiry whether Fowler was having any trouble with Stone constitute additional evidence that Clancy was singling out Stone for special attention with regard to union activity among the employees. In view of the foregoing, I do not regard the two occasions when Clancy allegedly told Stone to keep on working as the sole or controlling reasons for Stone's discharge. Respondent's other reason for Stone's discharge with regard to a cut in personnel is hardly credible under all the circumstances. If Sagunza, according to Clancy's testimony, was hired the day before to replace Stone, then it follows that Stone's discharge was not for the purpose of cutting personnel. On the other hand, the available evidence lends itself to an interpretation that Garrett did not inform Clancy of his intention to quit until the day of Stone's discharge or several days later. Therefore, Sagunza could not have been hired to replace Garrett .6 Clancy admitted that 2 days after Stone's discharge he had a conversation with Fowler in which Fowler said they were hurting for help, I credit Fowler's further assertion that Clancy at that time said, in effect, that at least now they would not have to worry about the Union. Accordingly, I find that the assigned reasons for Stone's discharge were pretextual and that the true reason was Stone's suspected union sympathies and activities. A discharge for this reason constitutes a violation of Section 8(a)(1) and (3) of the Act. I so find. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer 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. 6 Clancy was very uncertain as to when he received information that Garrett was quitting T 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, 3. By discharging Daniel Stone because of his sympa- thies for and activities on behalf of the Union, Respondent unlawfully discriminated against Stone and thereby violat- ed Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. As Respondent unlawfully discriminated against Daniel Stone by discharging him on August 8, 1973, it will be recommended that Respondent offer Stone immediate and full reinstatement to his former job without prejudice to his seniority and other rights and privileges or, if this job no longer exists, to a substantially equivalent job, and to make him whole for any loss of pay that he may have suffered by reason of Respondent's discrimination against him, by paying to him a sum of money equal to that he normally would have earned as wages from August 8, 1973, to the date of Respondent's offer of reinstatement, less his net earnings during that period. The amount of backpay due him is to be computed according to Board policy as set forth in F. W. Woolworth Company, 90 NLRB 289, with interest on backpay computed in the manner set forth in his Plumbing & Heating Co., 138 NLRB 716. Payroll and other records in possession of Respondent are to be made available to the Board or its agents, to assist in such computations. Upon the foregoing findings of fact , conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that there be issued the following: ORDER? Respondent, Central Press of California, Sacramento, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging membership in Sacramento Mailers Union Local 31, International Typo- graphical Union, or any other labor organization of its employees by discharging any of its employees because of their sympathies for or activities on behalf of the above- named Union, or any other labor organization, or by discriminating against its employees in any like or related manner in regard to hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Daniel Stone immediate and full reinstate- ment to his former job without prejudice to his seniority and other rights and privileges or, if his job no longer exists, to a substantially equivalent job, and to make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the 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 CENTRAL PRESS OF CALIFORNIA 769 Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amounts of backpay due under the terms of this Order. (c) Post at its place of business in Sacramento, Califor- nia, copies of the attached notice marked "Appendix."8 -Copies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 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." Union, or any other labor organization of our employ- ees by discharging any of our employees because of their sympathies for or activities on behalf of the above-named Union, or any other labor organization, or by discriminating against our employees in any like or related manner in regard to hire or tenure or employment or any term or condition of employment. WE WILL NOT in any like or related manner, restrain or coerce our employees in the exercise of their rights guaranteed them under Section 7 of the Act. WE WILL offer Daniel Stone immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights or privileges. WE WILL pay Daniel Stone for the earnings he lost because of the discrimination against him, with 6- percent interest. Dated By APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Sacramento Mailers Union Local 31, International Typographical CENTRAL PRESS OF CALIFORNIA (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-0335.