Bregg Data Forms, Inc.

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bregg Data Forms, Inc. and Kenneth Rahn and Mi- chael Rakowski. Cases 29-CA-3707-1 and 29-CA- 3707-2 November 4, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 28, 1974, Administrative Law Judge Well- ington A. Gillis issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be dismissed in its entirety. DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on May 14 and 15, 1974, at Brooklyn, New York, and is based on charges filed on Jan- uary 31, 1974, by Kenneth Rahn and Michael Rakowski, individuals, upon a consolidated complaint issued by the General Counsel for the National Labor Relations Board, hereinafter referred to as the Board, against Bregg Data Forms, Inc., hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and on an answer timely filed by the Respondent denying the commission of any unfair labor practices. All parties were represented by counsel and were afford- ed full opportunity to examine and cross-examine witness- es, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, timely briefs were submitted by counsel for the General Counsel and for the Respondent. Upon the entire record in this case, and from my obser- vation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of tes- timony" (Universal Camera Corp. v. N.L R.B., 340 U.S. 474, 496 (1951) ), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Bregg Data Forms, Inc., a New York corporation, main- tains its principal office and place of business in Plainview, New York, where it is engaged in printing, sale, and distri- bution of various business forms and related products. During the calendar year 1973, the Respondent purchased and caused to be transported and delivered to its place of business goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its place of business in interstate commerce directly from States of the United States other than the State of New York. The parties admit, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED It was stipulated by the parties, and I find, that New York Printing Pressmen and Offset Workers Union, No. 51, International Printing Pressmen and Assistants Union, AFL-CIO, hereinafter referred to as Local 51, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether, during the last part of December 1973 and January 1974, the Respondent's supervisors engaged in un- lawful interrogation of its employees. 2. Whether, in discharging Kenneth Rahn and Michael Rakowski on January 11, 1974, the Respondent did so be- cause it believed that said employees had engaged in activi- ties in support of Local 51. B. The Facts The Respondent is primarily in the business of manufac- turing snap-out business forms, and employs between 65 and 70 factory employees. These forms are first printed, then assembled on collating machines. Each collating ma- chine is run by a collator operator who is assisted by a helper. Several years of training and experience are nor- mally required for an employee to become an experienced collator operator. On December 12, 1973,1 Kenneth Rahn and Michael Rakowski, having dust been laid off as collators at Island Forms, Inc, applied for work at the Respondent. Both em- ployees met at the office of Anthony Gargano, vice presi- Unless otherwise specified , all dates refer to December 1973 and Janu- ary 1974 214 NLRB No. 94 BREGG DATA FORMS, INC. dent in charge of production, where they filled out applica- tions and were interviewed together by Gargano. Gargano told the boys that he was in need of collator operators, that his company was a high production shop, and that in order to keep a job one had to produce. After inquiring and learning of their experience with collating machines and their previous employment,' Gargano hired both employ- ees at $225 per week with the understanding that they would start on the second shift as a break-in period, and then transfer to the third shift as permanent employees. According to Rakowski, at the conclusion of the inter- view, Gargano told both of them that "he was aware of what had happened at Island Forms concerning Local 51." Rakowski further testified that Gargano told them that "if we were to work there that we would have to join the Teamsters Union in 60 working days, I am not sure of that, and he would not be able to stand for any discussion with the men about Local 51." Rahn corroborated Rakowski, testifying that Gargano stated that he knew what was going on at Island Forms, and that "he did not want any of that s- going on at this shop." Both employees, while testifying on this on cross-examination were asked whether they then asked Gargano what he meant by that, and Rakowski an- swered, no, while Rahn answered, yes, adding that Garga- no then stated that "he was friends with Julie Seide" that "he is putting all the other shops out of business and we are getting all the work." 3 Gargano denied the statements at- tributed to him by both employees, and testified that he neither asked nor told them anything about unions during this conversation. Gargano introduced Rahn and Rakowski to his second- shift foreman, Miguel Orrach, telling Orrach that he had hired them as full operators, and to let them get familiar with the equipment, and to give them assistance because he wanted to put them on the third shift in a couple weeks. The following Monday, December 17, Rahn and Ra- kowski reported and started work on the second shift, working from 2:30 p.m. to 11 p.m. They remained on the second shift for 3 weeks, going on the third shift, 11 p.m. to 6 a.m., during the fourth week, commencing January 7. On Friday, January 11, Rakowski called Orrach and told him that he was ill and would not be coming in. Orrach told Rakowski to forget it and not to come in, that they had no more use for him in the plant. In reply to Rakowski's question as to why, Orrach told Rakowski that he knew, that it had been mentioned to him before, that his production was very slow and the Company could not car- ry him any longer. Shortly thereafter, having heard from his friend Rakowski that he had been terminated, Rahn also called Orrach, and asked if he, too, were being laid off. Orrach told Rahn the same thing, that his production was slow. Both Rakowski and Rahn were terminated as of that date. The following day, Saturday, January 12, Orrach having told both employees that they could talk with Gargano if 2 Rahn had been a collator operator trainee for about 2 years at Albrand and at Island Forms, and a full collator for about a year at Island Forms Rakowski had been a collator operator trainee for about 8 months at Island Forms and a full collator operator for about a year at Albrand 3 Julie Seide is business representative for Local 51 625 they wished, Rahn and Rakowski went to see Gargano. Gargano spoke with each one separately, explaining to each that his production had not improved and that he did not consider either a full collator operator. The version of Rahn and Rakowski as to this incident is at variance with that of Gargano. Rakowski testified that immediately upon walking into Gargano's office be- fore he had a chance to say anything at all, Gargano said to him, "I just want to let you know that it was not because of your production, but because of what you had been doing with the Union." Gargano then assertedly followed with the statement that various people had accused Ra- kowski of advocating Local 51, that he could not survive with that Union, but it was just out to cross him up. Ra- kowski testified that he made his denials, and Gargano told him to call Rahn in. According to Rakowski and Rahn, Gargano said to both of them that he was letting them go because he had heard from reliable people that they were talking about the Union, and also stated that their produc- tion was fine. Gargano denied without qualification the statements attributed to him or that the Union or union activities was mentioned in either of these conversations. The following Monday, January 14, Rahn went back to see Gargano, assertedly on the earlier promise of Gargano that he would talk it over with the accusers of Rahn and Rakowski. Gargano told him that the decision to discharge had been made and that was it.4 Analysis and Conclusions The General Counsel contends that the Respondent un- lawfully discharged both Rahn and Rakowski because it believed, contrary to the fact, that they had been talking up Local 51 among its employees. The Respondent, in deny- ing the allegations, asserts that Rahn and Rakowski had proved themselves less than experienced collator operators, and that they were terminated solely because of their fail- ure to produce. With respect to the General Counsel's assertion, the re- cord reveals that pursuant to an earlier election at Island Forms, Local 51 along with Graphic Arts International Lo- cal 119, AFL-CIO, was certified as bargaining representa- tive for employees at Island Forms. It also appears that, pursuant to an election at the Respondent's plant several years earlier, Local 51 had lost out to the Teamsters Local 757, the current bargaining representative under contract with the Respondent. Other than the fact that Local 51 was the bargaining representative at Island Forms where Rahn and Rakowski were previously employed, there is absolute- ly no evidence, nor is it contended, that either Rahn or Rakowski in any way or at any time was a union adherent or espoused the case of Local 51, while employed at Island Forms or after commencing work for the Respondent. The only evidence in the record even remotely pertinent to this concerns a discussion among several employees dur- ing a lunchbreak approximately 2 weeks after Rahn and ° For reasons hereinafter discussed, I do not credit the testimony of Ra- kowski or Rahn as to their version of either the interview conversation of December 12 or the postdischarge conversation on January 12, and specifi- cally credit Gargano's denial as to the union statements attributed to him on each question 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rakowski went to work. The discussion involved general conversation concerning the relative benefits under Local 51, Local 119, and the Teamsters 757, during which Ra- kowski took no part whatsoever, and Rahn, after inquiring about the benefits under the current Teamsters contract, stated that the overall Teamsters policy was better than that of Local 51. At some point, Joseph Daleo, a collator trainee, who was hired in November 1972 and long after the election at the plant, stated that he was glad that Local 51 did not get in because he had heard that under Local 51 there was a waiting period for collators, whereas the Team- sters gave him a chance to be a trainee faster. The conver- sation turned away from the relative merits of the Unions when Rahn suggested to them that they do themselves a favor and forget about it. Thus, with this background, the General Counsel asserts that Gargano's remarks to Rahn and Rakowski during the December 12 interview and the January 12 post-termina- tion conversation, along with one additional asserted con- versation with Gargano in between, supply the discrimina- tory motivation for the discharge of both employees. The additional conversation, according to Rakowski, occurred sometime in the second week of his employment when Gargano told him that he had received a call from the Teamsters representative who told him "that somebody in the shop was advocating Local 51." According to Rakow- ski, Gargano then proceeded to give Rakowski "a brief summary" of how the Teamsters became the bargaining representative, that at the time of the election someone had threatened the life of a Local 51 representative and "told them if this Union ever got in to Bregg Data Forms they would not be out to help the people, they would be out to destroy him and his Company, he would not be able to stand for any of that s-." Although not accused, Rakow- ski allegedly volunteered to Gargano that he was not affili- ated with Local 51, and that he "had said nothing to no- body." Gargano denied that this conversation took place, and I credit his denial. Well aware that, in discrediting the testimony of Rahn and Rakowski, the General Counsel's case must fall, I just am not persuaded, either by their demeanor while testify- ing or on what I consider to be inherently probable, that the facts are as they testified. I was not impressed with the sincerity of either while testifying on the witness stand, both of whom appeared overly eager to insert the union matter. Rahn and Rakowski, although together on most points, testified at odds with each other on a couple of occasions, with Rakowski contradicting his own testimony on a major matter. In contrast, Gargano and Orrach, par- ticularly the latter, impressed me with their candor and forthrightness. That Gargano or Orrach, both of whom denied such, at any time raised the subject of the Union in discussion with Rahn or Rakowski is not, I find, probable. As the record reflects, neither Rahn nor Rakowski had at any time been a Local 51 adherent; neither one was known as such when, as strangers, he applied for work at the Respondent; and neither one, while working for the Respondent, at any time engaged in a discussion of Local 51. Further, with the Re- spondent under contract with the Teamsters, and having been so for several years, there would appear no reason for Gargano to show animosity toward Local 51; there is no evidence that anyone, employee or supervisor, was out to get either Rahn or Rakowski, each being a brand new em- ployee with the Respondent, or is there any reason ad- vanced as to why someone would want to give either trou- ble, and thus, no credible evidence as to who the "reliable people" might have been who assertedly told Gargano that Rahn and Rakowski were talking Local 51. All of which adds up to the fact that there just is no evidence or asserted basis upon which Gargano might have relied in concluding that Rahn or Rakowski was advocating Local 51. In find- ing no credible evidence or independent corroborative tes- timony upon which to substantiate the testimonial asser- tions of Rahn and Rakowski, and thus, to impute a dis- cnminatory motive for discharging the two employees, I find the facts to be as testified to by Gargano and Orrach.5 Turning to the Respondent's assertion that it discharged Rahn and Rakowski because of their poor production, as credibly testified to by Orrach, a most forthright witness, from the very beginning both employees were having diffi- culty acquainting themselves with the machines, in "setting up," and with their production. In checking the production records daily, Orrach found that both employees were lag- ging far behind all the other operators. At the end of the first week he spoke with Gargano about Rahn and Rakow- ski. Orrach questioned that either one was in fact an expe- rienced collator operator, and told Gargano that he did not think they were going to work out. Gargano agreed to give them more time. Orrach then talked with both Rahn and Rakowski, explaining that they were taking too long to set up, that they had to improve their production, and that they were the lowest producing collators in the shop, in- cluding the collator trainees. At the end of the second week, having continually checked their daily production records and learning that they were not picking up on their production, Gargano again spoke with Orrach. Orrach told Gargano that both of them were taking too long to set up a lot of their jobs, accounting for their low production. Notwithstanding dis- satisfaction with their production, Gargano was forced to put them on the third shift as scheduled early in January in order to honor his commitment to a second-shift operator who had temporarily, as a favor to Gargano, moved to the third shift while Rahn and Rakowski were breaking in. Finally, in early January, Orrach went to Gargano, and told him that he had to let these two operators go, that they could not produce, and that had they been experienced operators they should already have been at full speed with the rest of the men. It was then that Gargano decided to terminate both employees, and so instructed Orrach. Com- pany production records introduced into evidence reflect that the production of both Rahn and Rakowski through the 4-week employment period with the Respondent was below that of the other operators, and even below that of 5 Having found that Gargano did not at any time mention the Union to Rahn or Rakowski, and specifically during the interview on December 12 and during the second week of Rakowski 's employment, each relied on by the General Counsel in support of the independent 8(a)(1) allegations, I find without merit that portion of the complaint alleging unlawful interrogation of its employees by the Respondent BREGG DATA FORMS, INC. the apprentice collators, and thus tend to sustain the Respondent's assertion that Rahn and Rakowski, after a reasonable trial period, had failed to prove themselves qua- lified as experienced collator operators, the position for which each was hired. On the record as a whole, including the lack of union animus on the part of the Respondent, I find that the Gen- eral Counsel has failed to prove by a preponderance of the credible evidence that in discharging Kenneth Rahn and Michael Rakowski on January 11, 1974, and thereafter not reemploying them, the Respondent did so for discriminato- ry reasons in violation of Section 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, I make the following: CONCLUSIONS OF LAW 1. Bregg Data Forms, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. New York Printing Pressmen and Offset Workers 627 Union, No. 51, International Printing Pressmen and Assis- tants Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER6 It is recommended that the complaint herein be dis- missed in its entirety. 6 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