Gateway Press, Inc.

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gateway Press, Inc. and John Clark MacWilliams. Case 6-CA-7950 September 25, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On May 30, 1975, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions 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 Respondent, Gateway Press, Inc., Monroeville, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case litigated pursuant to the provisions of Section 10(b) of the National Labor Rela- tions Act, herein called the Act. 29 U.S.C. 160(b). It was commenced by a complaint issued on February 25, 1975, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Di- rector for Region 6 (Pittsburgh, Pennsylvania). The com- plaint is based on a charge filed on December 13, 1974, by John Clark MacWilliams against Gateway Press, Inc., herein called the Employer or the Respondent . In sub- stance said complaint alleges that Respondent violated Section 8(a)(l) and (3), and that such conduct affects com- merce within the meaning of Section 2(6) and (7), of the Act. Respondent has filed an answer admitting some of the allegations of the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried at Pittsburgh , Pennsylvania, on April 3, 1975. All parties were represented at and participated in the trial, and had full opportunity to introduce evidence , examine and cross-examine witnesses, and offer oral argument. Re- spondent argued orally at the close of the trial. Briefs have been submitted by all the parties. This case presents the issues of whether Respondent: 1. Instructed employees to act as informers as to the union activities and sympathies of fellow employees. 2. Gave its employees the impression that their and fel- low employees' activities on behalf of Local 7 of Interna- tional Typographical Union were being kept under surveil- lance. 3. Discharged employee John Clark MacWilliams for engaging in action protected by the Act. Upon the entire record in this case, and from my obser- vation of the demeanor of the witnesses , I make the follow- mg: FINDINGS OF FACT I. AS TO JURISDICTION Respondent, a Pennsylvania corporation, is engaged at Monroeville, Pennsylvania, in the commercial printing business. During the year immediately preceding the is- suance of the complaint in this case Respondent's gross income exceeded $ 1 million, and, during the same period, it received goods and other items valued in excess of $50,000 directly from points outside Pennsylvania. I find that Respondent is an employer within the meaning of Sec- tion 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and that it will effect the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED International Typographical Union , Pittsburgh Typo- graphical Union No . 7, AFL-CIO, herein called Local 7, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence Kenneth Pearson, a member of the organizing commit- tee of Local 7 and employed by Pittsburgh Press, testified substantially as follows. As a result of talking to a friend of John MacWilliams, Pearson wrote to MacWilliams, the latter a deaf mute, on October 11, 1974, inviting the latter to join Local 7. (See G .C. Exh. 2.) Later a fellow employee Diane, telephoned to Pearson, and set up a meeting be- tween the latter and MacWilliams. A week later such meet- ing was held . Local 7 and problems of organizing employ- ees of Respondent were discussed, and a pamphlet was given to MacWilliams. (See G.C. Exh. 3.) On October 21, 1974, MacWilliams was mailed a letter by Peterson suggesting that the former organize Respondent's employees . Later Pearson received a call 220 NLRB No. 102 GATEWAY PRESS, INC. 677 from Gateway Press employee Jay Barrowcliff, the latter having been talked to by MacWilliams, asking to have an- other meeting to discuss a union and how to organize. Such meeting was arranged and held on a Sunday morning with Pearson. MacWilliams, Barrowcliff, employee Kerry Gren- don, and a sign language interpreter were present. Organiz- ing employees of Respondent was discussed on this occa- sion. John MacWilliams, a cameraman for Respondent , testi- fied for the General Counsel. An abridgment of his testi- mony is here set forth. After receiving a letter from Pear- son dated October 11, 1974, John spoke to employees Barrowcliff and Thompson at the Gateway Press plant about it and showed it to them also. Later John contacted Pearson through employee Diane from the Gateway Press plant and arranged to meet with Pearson. They later met at a local inn where they discussed organizing the employees of Respondent. Pearson also gave John an I.T.U. pam- phlet. After meeting with Pearson, John talked to Barrow- cliff about Local 7. John MacWilliams received a second letter from Pear- son suggesting that John interest fellow employees in a union. John showed such letter to employees Barrowcliff and Thompson and some others at the plant. Then Barrow- cliff arranged a meeting of Gateway's employees with Pearson on October 27. John asked employee Grendon at the plant to attend this assembly. This assembly, held at Pittsburgh Association for the Deaf Club, was attended by MacWilliams, Barrowcliff, Grendon, and a lady sign lan- guage interpreter. Local 7 was there discussed. On October 28 a Gateway employee sought to speak to John about Local 7 during working time, but the latter informed such employee that he did not want to talk about such union during working hours. In mid-November 1974, MacWilliams spoke to Depart- ment Supervisor Gerald Weaver in the latter's office about an ad which the former saw in the newspaper. In this con- versation MacWilliams told Weaver that the ad caused the former to inquire whether Respondent needed a "new cam- eraman." Weaver replied, "No." On November 27 Weaver handed MacWilliams a written memorandum, signed by Weaver, stating "you are being given 1 week notice to your termination here at Gateway Press. Reasons: In the past 4 weeks your performance on the job has become very poor. This added to my evaluation and observations, had forced this decision." Said document set out 10 "specific reasons" for such discharge. On November 29 MacWilliams, accompanied by his wife and son, spoke to Respondent's manager, Gene Stepp, about Weaver's memo discharging MacWilliams. Stepp as- serted he did not know about it and "was puzzled" by its contents. In fact Stepp stated to MacWilliams, "You do a good job, okay, fine." On cross MacWilliams testified that Respondent hired him as a cameraman in July 1973, but he was additionally told at the time that he would also be required to help out as a stripper and "in some other functions." He first served under two other supervisors and finally under Weaver. At first he got along "very good" with Weaver, his supervisor, "towards [his] termination," but "at the end, it was awful." Another witness for the General Counsel was Jay Bar- rowcliff, an employee of Respondent. His testimony may be compressed as follows. In mid-October 1974, MacWil- liams showed him letters, including General Counsel's Ex- hibits 2 and 4, which the former received from Ken Pear- son. This occurred in Respondent's plant. MacWilliams also showed him a pamphlet and talked to him more than once in the plant regarding Local 7. Later Jay called Pear- son from Respondent's plant and they set up a meeting for Respondent's employees. Jay, Grendon, MacWilliams, Pearson, and a sign language interpreter attended said meeting. Respondent is a subsidiary of Dardenell Enterprises. In mid-November Jay observed an ad in one of the Dardenell publications seeking a cameraman and a midnight stripper. So Jay asked Respondent's director of printing, Gene Stepp, whether Jay should apply for said job. Stepp replied that Jay should "not bother because it was for Gateway Press." The week following the termination of MacWilliams, Jay spoke to cameraman Morasco concerning MacWilliams in the presence of Stepp. Morasco stated that he thought MacWilliams was a good cameraman and couldn't under- stand why they fired him. "Stepp agreed with [Morasco] and said that he didn't see the reason why they fired Joe, because he thought that [MacWilliams] was a good camer- aman, also." On cross Jay stated that the discharge of MacWilliams "was really a decision for Gerry Weaver to make and not for Mr. Stepp," and that Weaver was the supervisor -over MacWilliams and the entire department in which MacWil- liams worked. Kerry Grendon also testified for the General Counsel. A conspectus of his testimony follows. He is an auxiliary pressman for Respondent. In late October 1974, MacWil- liams spoke to Grendon in the plant regarding Local 7 and the advantages of having a union. Grendon also attended the October 27 meeting held by Pearson for Respondent's employees. Among others MacWilliams also came to said meeting. William H. Thompson, an artist employee of Respon- dent for a little more than 12 years, gave testimony which may be condensed as follows. In late October 1974, Mac- Williams showed him a letter about Local 7 and also dis- cussed unionism with him at the plant. As part of his job MacWilliams photographed certain work of Thompson's. In Thompson's opinion, MacWilliams' competence as a cameraman was good, Also, no company official ever com- plained of the quality of work performed by MacWilliams, according to Thompson. However, Morasco , a cameraman who also photographed Thompson's work, in the latter's opinion "was far superior than MacWilliams." Neverthe- less Thompson "never received any criticism from any of the customers regarding that [which] Mr. MacWilliams had shot for" Thompson. Raymond Henry was the General Counsel's last witness. A synopsis of his testimony follows. Henry, an employee of Respondent since 1966, worked with MacWilliams and "found [the latter] to be an excellent cameraman. He cleaned his lenses, he mixed his chemicals and . . . I was glad to assist him." In fact Respondent's General Manager Bondi said that Henry and MacWilliams "were an out- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing team and he said we did miracles." In November 1974, foreman Kovaly instructed Henry "to keep an eye on Mr. MacWilliams to see if he was screwing off on the time clock and if he was , I was to report it to Mr. Kovaly. [Kovaly] also said that we need people, the company needs people we can trust." Later that day Henry asked Kovaly what the latter had against unions. Kovaly replied that he once applied for employ- ment at a union printing plant "and they told me to go blow." Still later Kovaly asked Henry if Henry had heard any talk about Local 7 and, when Henry answered in the negative , Kovaly requested Henry to inform him if Henry heard any talk about a union. A couple days after MacWilliams had been terminated, Henry overheard Department Supervisor Weaver tell Ko- valy "organizers"; Kovaly mentioned "dissenters"; and then Weaver said "dissenters . . . the company is better off without a union." Henry, who worked "as a team" with MacWilliams, de- scribed the latter as "very co-operative, I can't speak more highly of a man." From Henry's outline of the authority of Kovaly over him, which I credit, which need not be related here, together with other credited evidence described else- where herein, I find Kovaly had authority responsibly to direct employees and, therefore, I find Kovaly is a supervi- sor within the meaning of Section 2(11) of the Act. On cross Henry stated that Morasco was not "far superi- or" to MacWilliams, and that the latter is not "far superi- or" to the former, as a cameraman, but that these two "are both on a competitive level." Henry also asserted that em- ployees discussed with him in the plant "about a union." They told him that it was a good idea to have a union "to better conditions." Further, on cross, Henry testified that he asked Kovaly why Kovaly was "so p-ed off at the union. . . . What do you have against union." Kovaly replied that when he once applied for a job in a union printing shop he was told there to "go blow," and that Kovaly "was upset about it." Also, Henry asserted that he was "told" that MacWilliams played ping-pong while MacWilliams "was supposed to be on the camera"; but, Henery added, "There are employees in there that screw off and they [management] don't do anything about it. They [management] pick out the ones they want." Finally, on redirect, Henry testified that Kova- ly said to him, "If you hear any talk about a union, casu- ally let me know." At this point the General Counsel rested. B. Respondent's Defense James S. Steele, president of Dardenell Enterprises, testi- fied substantially as follows for Respondent. Dardenell had two subsidiaries, Gateway Press, "the mechanical arm, the production area," and Dardenell Publication, "the pub- lication area of the company." Gateway Press "has had a very open door policy through the years" regarding the hiring of handicapped people. In the last 13 years it has employed "at least five to six people who would be classi- fied as . . . physically handicapped." He first learned of the termination of MacWilliams when General Counsel's Exhibit 5 (the discharge notice dated November 27, 1974) was brought to his attention by Gerry Weaver and Roy. Thereupon Steele directed Weaver to "communicate this to the General Manager, Mr. Bondi, to be certain of his facts." But at this meeting with Weaver there was "no discussion about antiunion or union activi- ties on behalf of Mr. MacWilliams." Moreover, Steele nev- er authorized, or encouraged, or ratified, any antiunion conduct or statements by any of his managers or employ- ees; nor did he ever act in any manner which would indi- cate approval of such conduct or statements to any of the employees. On cross Steele declared that prior to November 27, 1974, Weaver at no time had any discussion with him re- garding the conduct or performance of MacWilliams as an employee of Respondent. Another witness for Respondent was Gus Bondi, its gen- eral manager. A precis of his testimony follows. He holds weekly meetings with the supervisors who serve under him. At from 6 to 10 of those meetings Weaver mentioned that MacWilliams' workmanship and attitude toward his super- visor were deteriorating, that MacWilliams was becoming insubordinate and was "not following our policy." Mac- Williams started with Respondent August 1, 1973, and Weaver became his supervisor in August 1974. Also, ac- cording to Bondi, "we had some problem with the custom- ers who were rejecting through me [Bondi] the quality of work that [MacWilliams] was producting." About 12 to 15 rejections occurred from June to September 1974. But Bon- di had no similar customer complaints "from the other man working day shift." Bondi did not identify these cus- tomers or describe their complaints. So Bondi instructed Weaver "obviously to try to be fair to" MacWilliams, to give MacWilliams "the benefit of the doubt," and "to mold [MacWilliams] into a person who could do the job to the same standards we were getting from the other shifts." In Bondi's opinion MacWilliams was not "a finished polished cameraman when he was em- ployed," but that he "could improve." Bondi also claimed that Respondent "advertised for new people" because MacWilliams expressed to Bondi "a desire to leave the em- ploy of the company." Continuing, Bondi testified that he rejected work of MacWilliams "a dozen times, fifteen times," so that Bondi "had to have it redone by the day time cameraman." Bondi also insisted he never "authorized, or encouraged, or rat- ified any antiunion conduct or statements by any of the employees." Finally, on direct, Bondi stated that MacWil- liams was putting in too much overtime at a time when the latter's productivity was dropping; i.e., "More hours but less productivity." Nevertheless, Bondi did not investigate to ascertain whether this "too much over time was his [MacWilliams] fault or may have been some one else's fault" in not sending work fast enough to MacWilliams. Moreover, Bondi never talked to MacWilliams "about the overtime." Another witness for Respondent was Gene Stepp, its di- rector of printing. A resume of his testimony follows. "Su- pervisory meetings" which he attended discussed the per- formance of MacWilliams "during the period of August until December." Such discussions disclosed that "basical- ly . . . Weaver was not satisfied with [MacWilliams'] per- GATEWAY PRESS, INC. 679 formance, that it was a known fact that he caught him playing ping-pong while he was on the clock. That his atti- tude was changing . . . [Weaver] felt there was definitely a change in [MacWilliams'] behavior pattern." However when Stepp dealt directly with MacWilliams, Stepp found MacWilliams cooperative. Stepp also found that although the quality of MacWilliams' work "went up and down .. . there were times when his work was very acceptable .. . and that he [MacWilliams] proved that he had the capabili- ties." During the 3 months preceding the termination of MacWilliams there was but one occasion when Stepp had "experience directly . . . about the quality of his work," and "the quality was adequate." Stepp never authorized or encouraged Kovaly to con- duct any antiunion activities or make any antiunion state- ments, and did not ratify such conduct or utterances by Kovaly. According to Stepp the former's "function was to make sure that the proper flow of material was going through the department as far as the pressroom's request for priorities." Although Kovaly could recommend hiring, "we would take it into consideration but not effectively." Kovaly had no other duties than those mentioned above, but he could "effectively recommend assignments of differ- ent functions." Moreover, Kovaly was an hourly paid em- ployee who punches a clock and did not attend meetings of supervisors. On cross it developed that Kovaly received 50 cents an hour more than other employees working in his depart- ment, but Kovaly makes a dollar an hour more than "Mr. Henry" because Kovaly "has a more responsible job" and "because of certain responsibilities." Although Kovaly, "in fact, tells people [employees] to do this instead of some- thing else" they "could ignore him"; but Kovaly "had the right to come to [Stepp] and complain . . . if someone ig- nored what he [Kovaly] said which was a direction or an order." Also, on cross, Stepp stated that in September 1974, he asked MacWilliams "to be about and not only that, but try to get more work done after midnight." And, testified Stepp on further cross, "I would like to add that I did see the difference. It got better for a couple of weeks." Another witness for Respondent was Gerald Weaver. An abstract of his testimony follows. He worked for Respon- dent from August 1, 1974, to February 1, 1975, as a super- visor whose duty it was to "co-ordinate the efforts of all departments, to keep the work flowing, and to be directly responsible for the heart of production which is the cam- era, plate, and stripping areas." According to him, "the day shift was running fairly smooth, the night shift needed su- pervision." MacWilliams gave Weaver many problems, such as desiring "to get into color , he also confronted me with raises, and I felt that even though he was a capable cameraman, he had a lot to learn as far as going into the higher pay raise or color work." In the very beginning Weaver told MacWilliams what Weaver "hoped [MacWilliams] will do" and MacWilliams "wrote me a nice letter saying I would like to be friends." About the first of September Weaver "started realizing problems" with MacWilliams and informed MacWilliams that he was "not staying on the camera as much as he should" so that -"someone else would be operating the cam- era, in order to keep that work flow going." Weaver was aware that MacWilliams played ping gong, sometimes "still on the clock." But "at that time I [Weaver] did not feel that I should confront John [MacWilliams] and repri- mand him at the time [about the ping pong]. I was discuss- ing it with my supervisor." On September 11 Weaver in writing warned MacWil- liams that the latter's "working habits" were causing Weav- er to "wonder if you are here to work to your best abilities, or are you here to strangle the company by forcing over- time." MacWilliams replied he needed more money. In said Respondent's Exhibit 1 Weaver also wrote that "if you need more money then I suggest you better find another job . . . . You have to decide which is more important .. . either your work's skill at cameraman or your recreation ping-pong." In said letter Weaver also complained that he saw MacWilliams "wasting time talking with pressmen a long time." It also states that "Norm [Kovaly] is the de- partment head when I am not here. You will listen to him always." I have considered this last statement, together with other testimony, in finding Kovaly to be a supervisor under the Act. After September 11 Weaver had further discussions, roughly weekly, with MacWilliams about the latter's per- formance and Weaver's "concern for productivity." On one such occasion "we did change . . . the processing con- ditions of the film," and Weaver told him "not to touch the dial." But the next morning "the entire chemistry was out of proportion" because "the two main dials had been moved" by MacWilliams. The latter said he did so because "he did not like those conditions." This occurred during October 1974. On other occasions Weaver "a few times" told MacWilliams that the latter's "half tones . . . were not satisfactory." MacWilliams also disobeyed Weaver's order's to the former, but Weaver did not describe such orders at the trial. On the evening of November 27, 1974, Weaver again had to get after MacWilliams. Weaver thereupon "decided that this was the time [to] . . . type out his termination." But, according to Weaver, although there were "no other times when he [MacWilliams] wasn't co-operative," there were times when MacWilliams was "very temperamental" and also "argued with" Weaver. Further, Weaver claimed that MacWilliams' attitude undermined the former's au- thority in that MacWilliams "felt that he had the responsi- bility to stay there past the designated time at night." Also, MacWilliams was careless on three occasions: once he "pulled down all the plumbing when he fell off a ladder;' another time he had chemistry and water "all over the floor"; and he once "broke the glass on the vacuum frame." A conversation between Weaver and MacWilliams on November 27, 1974, when the latter was given a written termination, is set out in Respondent's Exhibit 2. In it, among other things, MacWilliams claimed that Norm Ko- valy told MacWilliams that MacWilliams worked "too fast" in reply to Weaver's assertion that "you have not been a good' employee." In this conversation MacWilliams insisted, among other things, "That is O.K. for play [sic] 1 MacWilliams insisted to Weaver that the former fell because the "ladder was broken " 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping-pong for lunch time." On December 3, 1974, MacWilliams spoke to Weaver. MacWilliams requested Weaver to "call him back ... and I [MacWilliams] will improve my way for sure." Also Weaver indicated he discussed the dismissal of MacWil- liams with management. On cross Weaver asserted that both he and Kovaly could give orders and that employees could "ignore" such orders. But he also testified employees would "get into trouble" if they ignored his or Kovaly's orders. I have taken Kovaly's authority to give orders into consideration in finding he is a supervisor within the import of Section 2(11) of the Act. Also, on cross, Weaver stated that during September 1974, MacWilliams "indicated to" him that MacWilliams "might want to look for a job some other place." Conse- quently, "based on the fact that . . . I had to [maintain] a complete, up-to-date file of the personnel who are key peo- ple," Weaver "put an ad in the newspaper to get someone to work for him . . . in case that MacWilliams left." Said ad was published in October or maybe November 1974. Weaver also testified that whenever he told MacWilliams "to get on the camera as much as he should" MacWilliams "did improve." And although Weaver in part terminated MacWilliams because the latter played ping pong "on only one occasion . . . on the clock," Weaver did not take any disciplinary action against the employee with whom Mac- Williams was playing on this occasion. Further, on cross, Weaver asserted that the only instance of insubordination, which occurred on October 1, was in- cluded in the termination notice of November 27, 1974, given to MacWilliams , notwithstanding that such notice is based only on "your performance ... in the past 4 weeks" and said notice does not specify "insubordination" as one of the "performance" defects of MacWilliams. As an example of "uncooperativeness" as Weaver used the term in his dismissal notice to MacWilliams is the latter's "trying to help Kovaly" and not "following my [Weaver's] instructions." However, MacWilliams did "go back to his job" when Weaver told him to, but not until 10 minutes later. Moreover, MacWilliams did all the work as- signed to him that night, and "didn't leave it for the man the next morning." Again, on cross, Weaver mentioned that three acts of carelessness contributed to his decision to discharge Mac- Williams. The first was "he [MacWilliams] was on the lad- der repairing something and the ladder was not sturdy and the ladder fell." The second was flooding the floor "with water and chemistry." And the third was breaking "a vacu- um frame with a glass to seal up the vacuum ." I fail to comprehend why the breaking of an unsturdy ladder can be attributed to MacWilliams. It was further developed on cross that Weaver communi- cated in writing with MacWilliams on December 2, 1974. Among other things MacWilliams pleaded for "one more chance" to remain on the job. Replying, Weaver promised "to take a proposal to management [on condition] . . . a written agree from you . . . to the fact that I will direct and manage." Norman Kovaly was another witness for Respondent. The essential import of his testimony follows . He is "more or less the senior table man or stripper and [his] functions are, as I come to work, if there is no overlapping of day- light work, then I go into night turn and I take the neces- sary steps in getting it out of the way . . . . On occasions when I have to ... I do" assign work "to people in [my] department." He made such assignments whenever the press foreman informed him that a certain job had to be done immediately. As a result Kovaly "would need to change [the] normal work flow," and Kovaly would "redi- rect or reassign any type of work." He also made assign- ments when he came in to work after looking "at the schedule pertaining to the jobs." Changes in such assign- ments occurred when he "would be informed by the imme- diate supervisor telling [him] of the change." However, he punches a time clock and is accorded no privileges other than those received by hourly paid employ- ees. He first learned of union activity at Respondent's plant when John O'Connell, a field examiner of the NLRB, interviewed him. On cross Kovaly admitted he can assign work to "peo- ple" in his department "if I have to." He also stated on cross that he signed an affidavit for O'Connell of the NLRB on November 17, 1974. Also, on cross, he stated that when he asked MacWilliams or Henry "to do some- thing" they "would do it"; he "could tell them" to work overtime; and if an employee "is giving [him] too much trouble or carrying on . . . I have the ability" to "punch an employee's time card out . . . but I'd rather not . . . I could definitely punch him out and tell him to report to the supervisor the next day." He also could excuse an employ- ee who wanted to go home early "if [the employee] wasn't feeling good." I find Kovaly is a supervisor within the meaning of Section 2(11) of the Act. Broyhill Company, 210 NLRB 288, enforced 514 F.2d 655 (C.A. 8, 1975). Respondent's final witness was John MacWilliams, the Charging Party in this case, who also previously testified for the General Counsel. An adequate summary of his tes- timony is here related. Bondi was "very happy" with his work and told him that he, MacWilliams, "did a very good job." In September 1974, Bondi did criticize some slow work of MacWilliams, but "when I [Mac Williams] had later experience, that I got along fine." Also, before Sep- tember 1974, Bondi told him that some customers had complained about the work of MacWilliams; but, "as we progressed I did better and better." Also, Weaver told him that MacWilliams' work "had to improve" and to "spend more time on the camera and less time playing ping-pong." Weaver was his supervisor from whom MacWilliams sought permission to leave early or an increase in wages . MacWilliams also spoke to Kovaly to change him to the day shift and for an increase in wages, "but it didn't work out." Further, "most of the time" Mac- Williams followed Weaver's instructions; but, on small jobs or on jobs on which MacWilliams "shortened Weaver's ways," when he did not follow instructions, Weaver "would be satisfied and he [Weaver] said ev- erything was okay." Sometimes he and Weaver argued about the best way to perform a job but MacWilliams al- ways "would just accept it [Weaver's way] because he [Weaver] told me to follow his ways." MacWilliams con- ceded that he played ping pong at the plant "most on or GATEWAY PRESS , INC. 681 during my lunch hour" but "twice or three times on com- pany time." On cross MacWilliams testified that in the fall of 1974 Bondi told him that he "did good work," and also wrote him a note saying, "you are doing a good job, keep it up." C. Concluding Findings and Discussion In making the findings set forth below I have been guid- ed by the following well-recognized applicable principles of law. (a) Upon the General Counsel is the burden of proof to establish his case, and this onus remains with him during the entire trial. A corollary is that no burden is imposed upon Respondent to disprove any of the allegations plead- ed in the complaint. (b) Further, the failure of Respondent to prove any one or more of its defenses does not amount to affirmative evidence contributing to the General Counsel's obligation to prove his case. (c) As hereinafter recited, I have not credited Respondent's evidence on some aspects of the case. But this does not constitute affirmative evidence capable of aiding the General Counsel in fulfill- ing the burden of proving his case. N.L.R.B. v. Harry T Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8, 1969); Ri-Dell Tool Mfg. Company, Inc., 199 NLRB 969, 973 (1972). "The mere disbelief of testimony establishes noth- ing." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C. A. 1, 1966). See Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.). Cf. N.L.R.B. v. Walton Manufacturing Compa- ny & Loganville Pants Co. 369 U.S. 404, 408 (1962). (d) Finally, I recognize that an employer "may hire and dis- charge at will, so long as his action is not based on opposi- tion to union activities." See N.L.R.B. v. South Rambler Company, 324 F.2d 447, 449-450 (C.A. 8, 1963). 1. As to instructing employees to act as informers of union activities Crediting employee Raymond Henry, and not crediting Kovaly, whom I have found to be a supervisor of Respon- dent within the contemplation of Section 2(11) of the Act, I find that Kovaly instructed Henry in November 1974, "to keep on eye on MacWilliams." Later that day Kovaly asked Henry if the latter had heard any talk about Local 7 and also requested Henry to inform him of any talk about a union which Henry did hear. I find that by such language Kovaly was directing Henry to act as an informer of union activities among Respondent's employees. And I further find that such conduct by Kovaly contravenes Section 8(a)(1) of the Act. 2. As to giving employees the impression their union activities were kept under surveillance The General Counsel contends that the statements of Kovaly to employee Henry, recited in the preceding para- graph of this Decision, "created the impression that the union activities of employees were being kept under sur- veillance." I find it is not necessary to pass upon this con- tention, as the conduct recited above has been found to contravene Section 8(a)(1) of the Act. An order of the Na- tional Labor Relations Board prohibiting such acts, regard- less of how they are characterized or depicted, in my opin- ion suffices to prevent their repetition or recurrence. 3. As to the discharge of John MacWilliams Upon an analysis of the entire record I am persuaded, and find, that MacWilliams was discharged for discrimina- tory reasons and that the grounds, advanced at the trial; i.e., "in the past 4 weeks [preceding November 27, 1974] your performance on the job has become very poor" are a pretext to disguise the actual reason for terminating him. In arriving at this conclusion I have credited the General Counsel's evidence and have not credited Respondent's ev- idence not consonant therewith . This ultimate finding is based upon the entire record and the following subsidiary findings, which I find as facts. a. MacWilliams was very active, and the principal or- ganizer, for Local 7 at Respondent's plant. Of course this in itself does not grant him immunity from being dis- charged for good cause, bad cause, or no cause, so long as such cause is not one prohibited by the Act. N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5, 1956); Charles L. Hawkins [Mitchell Transport, Inc.], v. N.L.R.B., 358 F.2d 281, 283-284 (C.A. 7, 1966). Nevertheless the elimination of a leading advocate of unionism often tends to discour- age other employees from taking an interest in a union (N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965) ), and this factor may be evaluated in arriving at the authentic reason inspiring a termination. N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5, 1962); Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966). On this aspect of the case it is significant that "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act; but such pur- pose may be established by circumstantial evidence." Cor- rie Corporation of Charleston v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a case of more subtlety . .. . " N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5, 1967). b. It is reasonable to infer-and I do-that Respondent was aware of the union activity of MacWilliams. On this issue I find that Supervisor Weaver told Supervisor Kovaly that "the company was better off without a union." In this conversation the words "dissenters" and "organizers" were used. I infer that they were referring to MacWilliams as a "dissenter" and an "organizer." In addition, Kovaly asked employee Henry to report to him any union activity in the plant. This indicates that Respondent was aware of union activity at the plant. And I further find that Kovaly asked employee Henry "to keep an eye on MacWilliams." This causes me to infer that Respondent at least believed that MacWilliams was engaged in espousing a union among the employees. Evidence of actual knowledge thereof is not fatal. Rosen Sanitary Co., 154 NLRB 1185, 1187 (1965). c. Respondent entertained antiunion hostility, as found in the preceding paragraph. While this alone does not re- quire a finding that MacWilliams was terminated for a dis- criminatory reason, it may nevertheless be evaluated in as- certaining the true motive generating his dismissal. "All the circumstances surrounding [his discharge ], particularly . . . 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the timing," i.e., discharging him at the height of the union campaign, indicate that his termination was "the first step in a campaign to discourage membership in the labor orga- nization." Rosen Sanitary Co., 154 NLRB 1185, 1187 (1965). Such circumstances also point to the conclusion, although direct evidence of knowledge of the union activity is lacking, that Respondent nevertheless knew of the union activities of MacWilliams . Cf. Majestic Molded Products v. N.L.R.B., 330 F.2d 603, 606 (C .A. 2, 1964). d. MacWilliams was discharged during the organiza- tional campaign of Local 7. Thus timing is significant. Ar- kansas-Louisiana Gas Co., 142 NLRB 1083, 1085-86 (1963). And the timing of the discharge to coincide with the union campaign of MacWilliams also carries weight . Texas Indus- tries, 156 NLRB 423, 425 (1965). e. MacWilliams was not effectively warned by prior no- tice that his performance on the job exposed him to disci- plinary action ; and such performance was tolerated for a long time. Harper & Row, 196 NLRB 343, 355-356 (1972). Failure to warn MacWilliams warrants the inference, which I draw, that Respondent was aware of MacWilliams' union activity when it suddenly discharged him without previously warning him of his supposed deficiencies. f. Respondent condoned or overlooked any deficiencies of MacWilliams in the past . Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernadino 212 NLRB 280 (1974) enforcement denied 512 F.2d, 1171 (C.A. 9, 1974). By reviving them after they had been disregarded it may be inferred-and I do so-that Respondent used such past alleged deficiencies as a pretext to disguise the fact that MacWilliams was being discharged for engaging in activity protected by the Act . Hence I find that, under the circumstances, the failure to alert MacWilliams to the pos- sibility of discharge is laden with probative value in discov- ering the genuine reason for his dismissal. N.L.R.B. v. Mel- rose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965). Merely informing MacWilliams of complaints about his work does not amount to a warning. Consequently, it is not unusual for an employer to sud- denly emphasize an employee's real or doubtful shortcom- ings, theretofore ignored or overlooked by the employer, in justifying a dismissal prompted by antiunion consider- ations. I find that this applied in the instant case, so that the failure to warn MacWilliams of possible discharge can- not be overlooked . Sterling Aluminum Co. v. N. L. R. B., 391 F.2d 713, 723 (C.A. 8, 1968). g. MacWilliams was given false reasons for his dis- charge. Giving false reasons warrants the inference, which I draw, that the true reason was union activity. Sterling Aluminum Co. v. N.L.R.B., 391 F.2d 713, 723 (C.A. 8, 1968). See N.L.R.B. v. Antell, 358 F.2d 880, 883 (C.A. 1, 1966). The following findings disclose false reasons, in my opinion. (1) Director of Printing Stepp stated that at meetings of supervisors Weaver mentioned he was dissatisfied with the performance of MacWilliams. Nevertheless Stepp, on his own testimony, found MacWilliams cooperative, "had the capabilities," and in the last 3 months the quality of the work of MacWilliams was "adequate ." In fact I find that, crediting MacWilliams, Stepp told MacWilliams on No- vember 29, 1974, that Stepp was "puzzled" by the contents of the written discharge of MacWilliams , and also stated to MacWilliams, "You do a good job." Patently Weaver was, in my opinion, withholding something from Stepp. Stepp also told employee Morasco that Stepp "didn't see the reason why they fired" MacWilliams because MacWil- liams "was a good cameraman." I credit Barrowcliff that he heard Stepp make this observation to Morasco. (2) At no time did Weaver mention to President Steele that the performance of MacWilliams was inadequate or unsatisfactory. (3) Bondi, the general manager of Respondent , testified that MacWilliams did not do good work , so that "we had some problems with the customers" for whom MacWil- liams did Respondent's work. But I credit MacWilliams that Boni told the former that he "did good work " and also wrote him a note that "you are doing a good job, keep it up." Further, crediting employee Raymond Henry, I find that Bondi told Henry that Henry and MacWilliams "were an outstanding team and . . . did miracles ." And artist William Thompson testified credibly that he "never re- ceived any criticism from any of the customers regarding [work] that Mr. MacWilliams had shot for " Thompson. (5) Although Weaver testified on direct that MacWil- liams often played ping pong during working time Weaver admitted on cross that this occurred but once and Weaver did not reprimand the employee with whom MacWilliams played on this one occasion. (6) Weaver claimed that there was only one instance of insubordination by MacWilliams, and this occurred on Oc- tober 1. Yet the termination notice from Weaver to Mac- Williams specifies that it is based only on "your perfor- mance on the job . . . . in the past 4 weeks" preceding November 27, 1974. Moreover, the termination notice does not mention "insubordination" as one of the grounds for terminating MacWilliams. h. Finally, in order to find that a discriminatory intent induced the discharge of MacWilliams it is not essential to find that his union activity to be the only motivation re- sponsible for his termination. His dismissal will be found to be discriminatory if his union activity was a substantial ground therefor notwithstanding that a valid ground may also have existed for it . Sinclair Glass Co. v. N.L.R.B., 465 F.2d 209, 210 (C.A. 7, 1972); N. L. R. B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). I expressly find that the union activity of MacWilliams was a substantial, but not necessarily the only, ground for releasing him. Cf. N.L.R.B. v. Lexington Chair Company, 361 F.2d 283, 295 (C.A. 4, 1966); N.L.R.B. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. GATEWAY PRESS, INC. V. THE REMEDY As Respondent has been found to have engaged in cer- tain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminatorily discharged John MacWilliams, it will be recommended that it be ordered to offer him immediate and full reinstate- ment to his former position or, if it no longer exists, to one which is substantially equivalent thereto, without prejudice to his seniority and other rights and privileges . It will fur- ther be recommended that MacWilliams be made whole for any loss of earnings suffered by reason of the discrimi- nation against him. In making MacWilliams whole Respondent shall pay to him a sum of money equal to that which he would have earned as wages from the date of his discharge to the date of his reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Com- pany, 90 NLRB 289 (1950),. with interest thereon at 6 per- cent calculated by the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recom- mended that Respondent preserve and make available to the Board or its agents , upon reasonable request, all perti- nent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate no- tices. The conduct of Respondent in my opinion does not de- pict a general hostility to the Act. Accordingly, I find that an Order is sufficient which is limited to enjoining the un- fair labor practices found above and similar or like acts. Since the remedy adopted should be commensurate with the infractions of law found herein , relief more extensive in scope is not warranted. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 7 is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By discriminating in regard to the tenure of employ- ment of John MacWilliams, thereby discouraging member- ship in Local 7, a labor organization, Respondent has en- gaged in unfair labor practice transgressing Section 8(a)(3) and (1) of the Act. 4. By instructing employee Raymond Henry to act as an informer of union activities among Respondent's employ- ees, Respondent has committed an unfair labor practice condemned by Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. 683 Upon the foregoing findings of fact , conclusions of law, and the entire record in this case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 7, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Instructing employees to act as informers of union activities among Respondent's employees. (c) In any like or similar manner interfering with, re- straining, or coercing employees in exercising rights guar- anteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer John MacWilliams immediate and full rein- statement to his former position, or if it no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay he may have suffered, by reason of Respondent's discrimination against him, with interest at the rate of 6 percent, as pro- vided in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records and reports and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this Recommended Order. (c) Post at its plant at Monroeville, Pennsylvania, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 6, after being signed by a duly authorized represen- tative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 2 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 will, as provided in Sec. 102.48 of said Rules and Regulations, be adopted by said Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 3 In the event 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" 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT discourage membership in Interna- tional Typographical Union, Pittsburgh Typographi- cal Union No. 7, AFL-CIO, or any other labor orga- nization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employ- ment. WE WILL NOT instruct any employee to act as an informer of union activities among our employees. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in exercising rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer John MacWilliams immediate and full reinstatement to his former position , or if that po- sition no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him, and make him whole for any loss of pay he may have suf- fered as a result of his discharge by us, with interest thereon at 6 percent. All our employees are free to become , remain, or refuse to become or remain, members of the above named Local No. 7, or any other labor organization. GATEWAY PRESS, INC.