FPC Advertising, Inc.

FPC ADVERTISING, INC. FPC Advertising, Inc. and Service Employees Interna- tional Union, Local 32E, AFL-CIO. Case 3-CA- 6734-1, -2 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On May 10, 1977, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order, except as modified herein. The Administrative Law Judge found that Respon- dent violated Section 8(a)(4), (3), and (1) of the Act by discriminatorily discharging Jeffrey Karasik on August 6, 1976, Respondent excepts to the finding of the violation, arguing that the discharge of Karasik was motivated by valid economic considerations and business judgment, not the dischargee's union activi- ties. Contrary to the Administrative Law Judge, we find, for the reasons stated below, that the General Counsel has not shown by a preponderance of the evidence that the selection of Karasik for discharge was discriminatorily motivated, and thus we do not adopt the Administrative Law Judge's findings and conclusions in this regard. Respondent is a small firm in Rockhill, New York, which operates a commercial printing business and an advertising agency in the same facility. In January 1976,1 the Union began an organizational campaign among Respondent's Rockhill printing plant employ- ees. After an extended organizational period, which included representation hearings before the New York State Labor Relations Board in April and the National Labor Relations Board in July,2 the Union won an election held on August 27. The Board certified the representative status of the Union on December 28, subsequent to final disposition of challenged ballot and objections issues. I Unless otherwise indicated, all dates herein refer to 1976. The Union initially filed a petition with the New York State Labor Relations Board Respondent thereafter requested an advisory opinion from the National Labor Relations Board with respect to whether it would assert 231 NLRB No. 184 The printing plant employees, including alleged discriminatees Matthew Hoey and Karasik and Karasik's coworker, Robin Boyd, were actively involved in the Union's campaign. The Respondent was aware of the involvement of these individuals in union activity and their support for collective-bar- gaining representation. In addition, Respondent's officials knew that Karasik had been the only employee witness to testify at the Board hearing in July. In April, Respondent's coowners, Bernard Cohen and James Jacobs, began operations at a newly acquired printing business in Binghamton, New York. Thereafter, Cohen and Jacobs decided to move two of the larger offset duplicating machines from Rockhill to Binghamton, in hopes that they would be put to more efficient use in the new plant. This prompted a reevaluation of personnel and salary outlays at the Rockhill printing operation in late June or early July. As a consequence of the reevaluation, Cohen and Jacobs decided to lay off some members of the work force. On July 23, Cohen told alleged discriminatee Matthew Hoey that he was being terminated. Two weeks later, on August 6, Cohen made the same announcement to Karasik, who had been working in Respondent's camera department. Plant Manager Phil Hurwitz was also discharged in the effort further to reduce salary expenditures. Cohen testified that he was reluctant to discharge either of the camera department employ- ees, Karasik or his junior coworker, Robin Boyd. but that one of them would have to be laid off because there was not enough work for both men. Karasik himself testified that since November 1975 there had been numerous times when neither he nor Boyd had work to do. Karasik was considered more highly skilled than Boyd and he received $180 per week, whereas Boyd received $138 per week. However, both employees did the same work, and no replace- ment was ever hired for Karasik. The record reveals that Karasik had resigned twice from his job at the printing plant, once in November 1975, and again in April 1976. The first resignation prompted Cohen to hire Boyd to replace Karasik. However, Karasik changed his mind and asked to stay, and Cohen kept both men on the job in anticipation of an increase in the workload. The second time Karasik resigned, he demanded and received a salary increase from $130 per week to $180 per week over a period of several months. In his analysis of the evidence, the Administrative Law Judge accepted as admitted the fact that jurisdiction over the Respondent. After the Board advised that it would assert jurisdiction (224 NLRB 1372 1976)). the l nion filed another petition invoking that jurisdiction. 1135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent transferred its offset machines for legitimate business purposes. In light of this fact and other circumstances noted in his Decision, he could not conclude that the economic reevaluation of the Rockhill printing department and the ensuing deci- sion to lay off employees was illegally motivated by a desire to ostracize union activists. We believe that the Administrative Law Judge therefore correctly limited himself to a consideration of the question: "[A]ssuming that someone had to go, may the termination of Hoey and Karasik be branded as discriminatory selection?" The Administrative Law Judge concluded that the discharge of Matthew Hoey was not in violation of the Act. since credited evidence revealed both that Hoey had a continuing attitudinal problem and that the transfer of the offset machines eliminated Respondent's need for his skills.3 However, the Administrative Law Judge did conclude that Re- spondent's selection of Karasik for layoff was discriminatorily motivated in violation of the Act. This conclusion is critically dependent upon his interpretation of Cohen's testimony that, after considering the serious necessity to lighten the Company's financial burdens by reducing the work force, he finally decided to lay off Karasik rather than Boyd because it would save the Company more money. The Administrative Law Judge reasoned that if this had been Cohen's thought process-if he was not motivated by Karasik's union activity-he would surely have offered Karasik a compromise salary, especially since he was more skilled than Boyd. Such an alternative, according to the Administrative Law Judge, "would have irresistibly presented itself to an employer considering the matter in good faith." He concluded that the "deliberative process" offered at the hearing is "contradictory on its face" and "so inherently incredible that it is appropriate to infer that the true motive" was an unlawful and discrimi- natory one. We disagree with this conclusion. By discrediting Cohen's testimony regarding the motives for Karasik's discharge and rejecting as pretextual Respondent's defense of economic justifi- cation, the Administrative Law Judge improperly engaged in an analysis that was not based on objective consideration of record evidence and witness demeanor, but rather on his own subjective impression of what he would have done in good faith had he been in Cohen's position. Board law does not direct or permit the trier of fact to substitute his business judgment, which is not a fact of record, for that of the Respondent. An employer's business conduct is not to be judged by any standard other than that which it has set for itself. The Administra- tive Law Judge in this proceeding should therefore have determined whether he believed the Respon- dent would have acted for the reasons and in the manner alleged on the basis of all evidence in the record concerning Respondent's past practice and the behavior of its agents. He did not do so. We find that the evidence does not show that Respondent owner Cohen selected Karasik for discharge because of his union activity and participa- tion at a Board hearing. The record clearly supports the contrary conclusion that Cohen, pursuant to implementation of an admittedly valid economic reorganization, discharged Karasik in a legitimate attempt both to reduce Respondent's payroll to the fullest extent possible and to eliminate the undis- puted problem of underemployment in the Respon- dent's camera department. We believe Cohen credi- bly testified that he perceived the available business alternatives under the circumstances extant as a choice between discharging Karasik or Boyd. After a period of indecision, he discharged the employee whose absence would effectuate the most savings for the Company. Assuming, arguendo, the relevance of the Adminis- trative Law Judge's business judgment to this proceeding, we do not similarly view as irresistible the alternative action which he believed Cohen should have taken had he been acting in good faith. The fact that Karasik had recently threatened to resign if he was not given a substantial pay increase accords with the unambiguous meaning of Cohen's testimony that he had not considered offering Karasik a reduced salary to be a feasible alternative. Furthermore, such an alternative, even if accepted by Karasik, would not have solved Respondent's prob- lem of having two men on the payroll when there was not enough work for both to perform. Finally, since both Boyd and Karasik were union activists but the latter possessed greater work skills than the former, the contention that a desire to retaliate against union activity motivated Cohen to disregard the "irresisti- ble" alternative and discharge Karasik is not persua- sive. Accordingly, we conclude that Respondent's dis- charge of Jeffrey Karasik did not violate Section 8(a)(4), (3), and (1) of the Act. The Administrative Law Judge's Decision is hereby reversed in this respect, and the relevant complaint allegations are dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor :' The General Counsel did not except to this finding. 1136 FPC ADVERTISING, INC. Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, FPC Advertising, Inc., Rockhill, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph l(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the following for the paragraph now lettered as l(b): "(b) In any' like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities." 3. Delete paragraphs 2(a) and (b) and reletter the subsequent paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. We intend to abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represen- tatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT threaten employees with reprisal for exercising their statutory rights and WE WILL Nor promise them benefits in order to induce them to refrain from exercising their statutory rights. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities. FPC ADVERTISING, INC. DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: Pursuant to charges duly served and a complaint duly issued, these cases were heard at Monticello, New York, on January 12 and 13, 1977. Briefs were received from the General Counsel and the Respondent on or about March 7, 1977. On the basis of my impression of the witnesses and after careful analysis of the record' and the briefs, I make the following: FINDINGS I. JURISDICTION; STATUS OF THE LABOR ORGANIZATION Respondent, a New York corporation, is engaged in the business of operating an advertising agency and a printing company in Rockhill, New York. During the year preced- ing the issuance of the complaint, Respondent received gross revenues in excess of $500,000 and performed printing services in excess of $50,000 for International Business Machines Corporation, over which the Board has jurisdiction. As the answer concedes, Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits, and I find, that Service Employees International Union, Local 32E, AFL-CIO (hereafter the Union), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ISSUES PRESENTED The complaint alleges that Respondent terminated Matthew Hoey, Jr., on July 23, 1976, and refused to reinstate him thereafter, because he assisted and supported the Union, and terminated Jeffrey Karasik on August 6, 1976, and refused to reinstate him thereafter, for the foregoing reason and, in addition, because he gave testimony in a Board proceeding. The original complaint alleged that Respondent also threatened and promised benefits to employees in April and May 1976, in violation of Section 8(a)(1); at the end of General Counsel's case, he successfully moved to amend the complaint to further allege that the introduction of work rules on April 29, the installation of a timeclock on June 13 and the issuance of rules pertaining thereto on June 21, and the institution on i Errors in the transcript have been noted and corrected. 1137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 2 of a new policy regarding unpaid absence, also constituted 8(a)(1) violations. Ill. THE RELEVANT FACTS Respondent is a small firm in Rockhill, New York, which operates two businesses in a single facility: an advertising agency and a commercial printing activity. Its owners are Bernard Cohen and James Jacobs. In 1976, Cohen and Jacobs purchased a printing plant in Binghamton, which they named Cojac Printing Company. We are primarily concerned here with the Rockhill printing business, which consists principally of printing and binding operations. The largest offset printing press owned by Respondent during the material times was called a "Chief 22"; a smaller model was the "Chief 15." Respondent also operated four multilith duplicators of the same size as the Chief 15. In 1976, printing was done by three pressmen-Matthew Hoey, Jr., Richard Olmstead, and Harold Jackman-and a linotype operator, Art Leroy. Hoey was the senior pressman, having commenced employment in January 1971; Olmstead started in June 1972 and Jackman in 1973. Jeffrey Karasik and Robin Boyd performed related functions in the camera depart- ment, consisting of camera work, stripping, and platemak- ing, which were preparatory to the work of the printing pressmen. Karasik began working for Respondent in November 1974 and Boyd a year later (Boyd had previously worked for Respondent for a few months in 1974.) On January 23, 1976, the Union filed a representation petition covering Respondent's printing department with the New York State Labor Relations Board. At a hearing on April 1, and by motion on April 26, Respondent asked the New York Board to withhold assertion of jurisdiction pending submission to the National Labor Relations Board of a request for an advisory opinion as to whether the latter would assert jurisdiction over Respondent. On June 21, the National Labor Relations Board advised that it would assert jurisdiction over Respondent. Pursuant to a petition filed by the Union with that Board, a hearing was held on July 13. An August 27 election was at first inconclusive, due both to the casting of determinative challenged ballots and to the Regional Director's refusal to consider objections filed by Respondent on the ground of untimeliness. On December 28, the Regional Director, after some legal skirmishing, certified the Union; at the time of the hearing, Respondent had requested the Board to review the Regional Director's decision. Karasik, Hoey, and six other employees had agreed in January to attempt to organize the shop. Hoey and Olmstead attended and testified at the April I hearing before the state board in New York City. Around late April, Cohen asked Hoey to perform a task (moving a skid from the top of another skid) which was the Cohen testified that Hoey had denied placing the skid. Hoey at first testified, according to the transcript, "[Cohen I] did ask me iT I'd put that up there and I said I didn't." Shortly thereafter, he admitted that he had in fact placed the skid and, when confronted with his prior testimony, stated, "I never told Mr. Cohen that I wasn't the one that put it there." He stated that he had so intended to testify in the first place, i.e., that he had earlier said "did" rather than "didn't." Although General Counsel has filed a motion to kind of work normally done by another employee. Hoey accused Cohen of "singling me out," which Cohen denied. Hoey admitted that, as Cohen testified, Cohen had expressed a belief that Hoey was the one who had unnecessarily placed the skid atop the others.2 On or about April 29, Production Manager Phillip Hurwitz handed out a set of work rules to employees. Hoey testified that he believed that two or three of the employees were not given the rules.3 There had previously been no written rules. An explanatory covering letter signed by Hurwitz stated, in part, that it was better for men who work together "to know where they stand" "so that we can make this into a successful, effective team," and expressed the belief that "written rules ... would simplify matters for all of us." According to Cohen, the rules had been suggested by Hurwitz, who had been hired in early April to replace Harry Madnick, the former production manager. After being at the plant for a few weeks, Hurwitz had found the place a "mess" and had concluded that the rules, which he drafted, were desirable. Karasik testified that, on the day the rules were distributed, he confronted Cohen and asked why they were needed and why Boyd had not been given a copy. Cohen replied that he was tired of the lack of decorum in the printing area-"noises that were being made, things like that, and that he wanted more-a more orderly place run in the back and this is why he had hired Phil...." In response to Karasik's assertion that Hurwitz' appearance had suspiciously coincided with the Union's, Cohen said he could prove he was looking for a replacement for former Production Manager Madnick before the Union arrived. In the course of conversation, Karasik asked why Cohen was fighting the Union. Cohen said that "any employer would rather not have the union," and expressed his dismay that employees he had "always taken care of' had fostered a union without coming to him first to work it out. Cohen told Karasik that in the past he had, when necessary, borrowed money rather than lay off employees, and that "if the union came in that he might not be able to do that in the future." Cohen went on to say that he had nothing against the Union, that his father had been a union supporter, and that his wife, a teacher, was represented by a union. At some point, however, Cohen said that "those employees who sided with me would find it to their advantage and that those who don't will find it to their disadvantage." On cross, Karasik conceded that, in talking to Cohen about one of the rules which prohibited "various intentionally caused loud sounds," Cohen had objected to an employee prank of yelling "Moo," which Karasik agreed the employees were doing (and had been doing since he had begun employment), and further agreed that it was embarrassing when customers were present. Cohen testified that Hurwitz was present during the first part of this discussion concerning the work rules, but he correct the transcript, he has not requested that the word "didn't" be changed to "did." 3 Hoey stated that he assumed this was done because Cohen was at the time contending that the excluded employees were not appropriately part of the bargaining unit. In fact, one of the three was eventually excluded from the unit, and the Company, apparently unsuccessfully, contended that one of the remaining two should have been excluded. 1138 FPC ADVERTISING, INC. asked him to leave for its remainder, so as to be able to talk to Karasik "without a third party present." He says that he used the words "advantage" and "disadvantage" in opining that he saw "no advantage to FPC Advertising" in having a union, and that the union "could possibly make us noncompetitive by increasing our labor costs." He went on to say that the wages paid by Respondent were competitive and "if they were driven any higher, we could be made less competitive, which would be, of course, a disadvantage, not only to him personally but to everybody there." I found Karasik to be a more reliable witness than Cohen, and I credit his version of the encounter. Richard Olmstead testified that around the end of April, in the course of requesting a raise, he asked Cohen why he was fighting the Union. A discussion followed in which Cohen said that he had been unaware of employee problems or grievances, that "if you have any grievances or problems that his door was always open and that I could form a committee of the guys in the back and what not and we could come in and work the matters out without the union intervening." When asked how Olmstead could be expected to rely on that, Cohen offered to "set down any type of papers or legal things saying-holding him to his promises then." Cohen further "reminded me of the last winter that-when it was very slow, he kept the production on during the winter. And, he said that, if the union came in he definitely wouldn't be able to hold them anymore if it got slow." 4 Testifying about the April conversation, Cohen said, "I believe that I may have expressed disappointment at the- instead of unionizing, they could have come to me if they had some kind of grievance which nobody had approached me. And, to the best of my belief, I did not indicate setting up a grievance committee at that time. And, I believe that it-if it was discussed at all, I said it was kind of academic now that the petition had been filed. And, we were all sort of frozen into a position where that was out of the question." Cohen's testimony did not address Olmstead's claim that Cohen had referred to the no-layoff policy of the prior winter or the unlikelihood of maintaining such a policy if the Union came in. I considered Olmstead to be a more credible witness than Cohen, and I credit Olmstead's version. In the work rules distributed on April 29, mention was made that, to avoid arguments over tardiness, and at the suggestion of some employees, a timeclock system would be adopted. About June 15, a timeclock was installed. Thereafter, on June 21, a notice explaining its use was distributed to the affected employees. Cohen testified that the clock was installed because employees were arriving late and leaving early. Hoey conceded that, sometime in 1976, in a discussion between Cohen and some employees in the lounge, employee Leroy suggested to Cohen that a timeclock be installed. Cohen sought out Hoey's views, and Hoey expressed indifference. Karasik testified that he had indicated agreement to "the idea of a timeclock." Cohen testified that the June 21 rules, which specified the employees who were to use the timeclock and described Olmstead also testified that, around the beginning of August, having had a brief discussion with Jacobs earlier in the day about some campaign literature posted hs Respondent. Jacobs said to him as he was punching out, how it was to be used, were issued after discussion with Hurwitz because there seemed to be a deliberate prankish- ness by Hoey, and perhaps a misunderstanding by other employees, with regard to punching in and out. Hoey's card for the first week the timeclock was installed shows that he punched the clock II times each day. Another employee, after punching properly for 3 days, registered 10 punches on the fourth day; another punched 5, 6, and 7 times for the last 3 days of the week. The first paragraph of the June 21 notice contains an admonition against playing "pranks" or "practical jokes" with the clock. On July 2, Respondent posted a notice, signed by Cohen and Jacobs, which stated, "Time off that is not scheduled at least 48 hours in advance may be deducted from vacation time only at the discretion of management." According to Karasik, the prior policy had been to permit employees who had no accumulated sick leave to deduct days off from vacation time, as the notice also implicitly permitted; he knew of no previous specific time limitations, "[b]ut they always asked that you let them know ahead of time if there was ever any-" [sic ]. Karasik gave testimony at the Board hearing on July 13 (the only employee to do so), 5 and found the time (5 hours) deducted from his next paycheck. He testified that he had notified Hurwitz of his expected absence more than 48 hours prior thereto. When he asked Cohen about the matter, and pointed out that he had complied with the rule, Cohen said, "Well, that was at my discretion and this was my discretion." Karasik also asked Jacobs about the matter; Jacobs said he would look into it, but never again broached the subject with Karasik. Cohen testified that, prior to the Board hearing in July, he had heard a rumor that "most of the printing unit" would be attending the hearing, and he issued the notice set out above. All six employees who attended the hearing were docked for the actual number of hours of absence from work; only Karasik complained. Cohen agreed that Karasik had asked why he was not being paid; he further testified that he had claimed lack of notification, and that Karasik had asserted that Hurwitz had been notified sufficiently in advance. Unlike Karasik, Cohen testified that he told Karasik that he "had no knowledge" of the notice to Hurwitz. Cohen also testified that he said he was "using the management discretion of not paying because of lack of notification," and that in a "subsequent conversa- tion" with Hurwitz, "I believe Phil told me that he was not notified." In the summer of 1976, the only operator of the Chief 22 and Chief 15 presses was Hoey, who also was capable of operating the other presses. Hoey had shown his support for the Union by testifying at the April hearing and by wearing a union T-shirt and exhibiting union buttons, bumper stickers, etc. On July 23, Cohen called Hoey in. He told Hoey that the Chief 22 and the Chief 15 were being sent to the Cojac Company in Binghamton, noting that the Chief 22 would be more useful there; that, with the removal of the machines, Hoey's services were no longer needed and he was being terminated. Cohen gave Hoe), his weekly apparently believing they had agreed to continue the conversation. "You know the company could never survive the economic burden of a union." I Although a number of other employees attended. 1139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salary and also offered him a check for 2 weeks' severance pay, which Hoey declined. Hoey testified that Cohen said he had always been an "excellent worker." Hoey then left the office and told Olmstead that he had been fired, which incident shortly thereafter apparently provoked an argu- ment between Cohen and three of the employees in which Leroy and Karasik called Cohen a liar. Thereafter, Hoey received a letter from Cohen dated July 23 which read: Matt: In the tension of our last meeting, I neglected to tell you the fact that we'd be happy to have you work as a pressman on those presses (Chief 15 and 22) at Binghamton. Unfortunately, the Plant Manager at Binghamton has informed me that they do not need additional help to man those presses at this time. I would suggest, however, that you file an employ- ment application there, as a pressman, and you will be given priority consideration. Hoey never applied at the Binghamton plant. Hoey testified that in August he saw an ad placed by Respondent in a local newspaper seeking an "experienced multilith operator." While the ad did not name Respondent, Hoey recognized the number given as Respondent's, and he knew that Harold Jackman was leaving and that Cohen was looking for another pressman. He posted a letter to Respondent declaring his availability, but received no reply. Cohen conceded that he received Hoey's application, but did not bother to reply to it. Jeffrey Karasik, who began employment in November 1974, was a counterman, stripper, plate maker, and photographer. He was senior to, and, the record shows, clearly more skilled than, Robin Boyd, his only other colleague in the camera department. He had manifested his union sympathies by testifying at the July 13 hearing by wearing union T-shirts and buttons and by affixing union bumper stickers in the plant and on his car. Karasik testified that, on August 6, Jacobs called him into the office and said that because they no longer had the Chief 22 and because "things were slow," they no longer needed someone of Karasik's skills. He was given I week's severance pay. Cohen testified that, in the past, Respondent had, due to lack of equipment, been forced to broker out much of its work to other companies. Such a plant in Binghamton, Hall Printing Company, closed down in 1975, and Respondent concluded that it would be worthwhile to take over that business and its more sophisticated equipment. Respondent began negotiating for the purchase of Hall in December 1975, and commenced operations there in April 1976 under the trade name of Cojac Printing. In hiring for the new operation, it sought out the former Hall Printing employees, who had been represented by a graphic arts union, and extended recognition to that union. Around June or July, according to Cohen, it became apparent that the most economically sensible use of the " Hoey acknowledged the substance of this call and conceded that he might have said something by way of apology. Hoey also conceded that, in Chief 22 and 15 presses would be at the Binghamton plant, and that the work at Rockhill should be restricted to small press items. With concomitantly less work being performed at Rockhill, and in an effort to reduce a labor cost ratio which was "out of whack," Respondent decided to release not only Hoey and Karasik, but also Manager Hurwitz, whose skills were no longer needed to run a shop with only simple presses. Jacobs took over the duties of production manager when Hurwitz departed on August 6, which was also the day of Karasik's termination. Cohen testified that Hoey had been an excellent worker until 1975, when his attitude and the quality of his work deteriorated. He became "less cooperative" and difficult about taking instructions. In the summer of 1975, during the course of a phone conversation in which he asked Cohen for assistance in finding an attorney to represent him in a divorce proceeding, Hoey apologized for having been difficult, attributing his attitude to his personal problems. 6 By September 1975, Hoey had shown no improvement. Accordingly, Cohen and Jacobs decided to replace him. They placed ads in four or five area newspapers. The ad in evidence, from the September edition of the Kingston Daily Freeman, reads: OFFSET PRESSMAN Must be experienced on Chief 22 & 1OX 15 duplicators. Permanent job, good salary, fringe benefits. All details first letter. Write Box 513, Daily Freeman. Cohen explained that the failure to mention the Chief 15 press as one of the machines to be operated was an attempt to disguise the fact that Respondent was the advertiser. The placement of this ad was apparently unknown to Hoey. Cohen testified that no suitable employee replied to the ad for a pressman to replace Hoey, and that he made no subsequent effort to find a replacement for a combina- tion of reasons: for one, Respondent began negotiating for the purchase of the Binghamton plant around December 1, and for another, the union demand for recognition in January had a "sort of freezing" effect. Cohen testified that he chose Hoey for termination because the departure of the Chief 22 rendered useless his unique skill on that machine, and also because, for "quite a while," his attitude had not been "conducive to the best interests of production in the shop." He cited the objective proof of the September 1975 ad. He referred to the incident with the skid in April, which he considered spiteful and dangerous. He mentioned the fact that Hoey had punched his timecard an unnecessary number of times when the system was first installed, which had prompted Cohen to instruct Hurwitz to admonish Hoey. He testified that he did not consider suggesting that Hoey work for less money because "[q]uite frankly, I didn't want him to work at FPC and I had felt that way for a long time." This also explained his failure to respond to Hoey's reply to the ad for a replacement for Jackman. Cohen further testified that, also in September 1975, he was dissatisfied with the "lack of common ordinary 1975, comments had been made to him about the quality of his work and his attitude. 1140 FPC ADVERTISING, INC. discipline" in the shop, concluded that his production foreman, Harry Madnick, was unable to control the employees, and accordingly advertised in the New York Times for a new printing production manager.7 No satisfactory applicant was found. In April 1976, however, Phil Hurwitz, an area resident, was hired for the job. Cohen testified that the reason for keeping Karasik on for 2 weeks after Hoey's departure was that he was "sort of making the decision whether to let Jeff go or Robin [Boyd]. And, I guess you'd call it a coward's delay. Jeff had just bought a home and had a baby. I guess money won." The latter remark referred to the fact that Karasik earned more than Boyd ($180 as compared to $130) and was "slated to get an annual increase of twenty dollars a week," pursuant to an arrangement previously made and testified to by Karasik. The possibility of offering Karasik the opportuni- ty to stay on at less money, and terminating Boyd, was not "even consider[ed]"; just prior to this testimony, however, Cohen said, "I, frankly, didn't feel he would accept [a decrease in wages]." IV. CONCLUDING FINDINGS A. The Discharges of Hoey and Karasik Cohen's explanation of the underlying reasons which resulted in the termination of Hoey and Karasik is dual in nature. He testified that, after Respondent's owners purchased the larger Binghamton plant, it became obvious, in June or July, that it "just wasn't economically feasible for us to run the [Chief] 22 at our place. And it became apparent to me that it would be the best type of operation for economics to have everything above 10 by 15 work in size at Binghamton where there were the-not only the facilities but the people and the talent." The Chief 15 was moved to Binghamton "because we thought that it would fulfill a slot in the press range at Cojac" because "Cojac too had small orders to fulfill and the [10 x 15] duplicating came in very, very handy for them." A decision was thus made that Respondent "should be restricting itself to the accommodation work8 plus its fast print that could be done on multis." 9 At or about the same time, in June and early July, it became apparent to Cohen that the operation of the printing department was, "at that point, extremely unprofi- table." In making his determination that Respondent was "beginning to run extremely high in salaries for the amount of work being done in the plant," Cohen took into account the rule of thumb that labor costs should amount to one third, and noted that Respondent's labor costs annualized at $100,000 as compared to the annual sales for 1976 of a net of less than $200,000. He concluded that "without the 22 and running only multi size presses for either paper plates or metal plates, we were able to release three people, Matt, Jeff and Phil Hurwitz, the then production manag- er," thus effecting a saving of $35,000 a year. It was concluded that with the removal of the Chief 22 "and with the operation being more standardized to basically a single size press," the skill of Production Manager Hurwitz was no longer required and Jacobs could take over for him. 7 A copy of the ad is in evidence. Small printing jobs. such as business cards, letterheads, and envelopes. Ior the clients of Respondent's advertising agency. The reappraisal in June or July, resulting in the termination of the two employees and Hurwitz, is rather suspicious. In the past, Respondent had apparently been lenient in keeping its employees on even though business was slow. Thus, Olmstead and Karasik credibly testified that Cohen had spoken to them of having borrowed money in the winter of 1975-76 in order to avoid laying off employees. The record shows that Karasik had given notice in November 1975 and then, after Cohen hired Boyd to replace him, had changed his mind and asked to retain employment. Cohen agreed to take Karasik back, even though he had called Jacobs a "moron" in notifying him that he was quitting, and indicated that he would retain Boyd as well because he "anticipated a greater flow of work coming in. Because at the time there really wasn't enough work for two people, but there were [sic] certainly more than enough work for one person." Moreover, as Respondent brought out on cross-examination of Karasik, that condition continued from November 1975 into the summer of 1976, becoming "very slow" even before the transfer of the Chief 22. This relative generosity compares unfavorably with the hardnosed decision in 1976 to discharge, for economic reasons, two of the principal union supporters, both of whom had testified against Respondent in the state and National Board proceedings. There is a circumstance here, however, which injects a most relevant constraint into the decisional process; that is the General Counsel's conces- sion at hearing, under my questioning, that he was not relying on the theory that the two machines were moved "in an attempt and for the purpose of eliminating work so that employees could be laid off or discharged from the [Rockhill] facility." What evidence there is on this subject suggests the contrary but, undoubtedly in reliance on General Counsel's representation, the matter was not fully developed by Respondent. This disavowal by General Counsel requires me to accept as a premise that the removal of the two machines was done for a legitimate business purpose. Given that premise, it is obvious that the disappearance of the Chief 22 reduced the amount of work available to Hoey. He testified that it had been in operation 30 percent of the time and he was its only operator. There is nothing in the record to indicate, unlike November 1975, when both Karasik and Boyd were kept on the payroll, that Respondent "anticipated a greater flow of work coming in." Karasik testified that, between November 1975 and July 1976, most of the time there had not been enough work for both him and Boyd, and that by July "there were weeks that there was just hardly anything to do." No replacements were hired for Hoey and Karasik, although Cohen testified that some $600 or $700 had been expended for part-time pressmen between August 1976 and January 1977 to handle the rush IBM fast-print orders. Cohen testified that, between July I and August 31, Karasik and Boyd, the only camera department employees, actually worked a combined total of only some 76 man-hours in 68 man-days. 9 I.e., on the remaining 10 x 15 duplicators. 1141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is thus difficult, taking into account the General Counsel's concession that the removal of the machines was legitimate and the other circumstances related above, to conclude that the decision to take a fresh look at the economics of the printing department in June or July was a radical and unreasonable departure from past practice which was inspired by a determination to retaliate against the employees. That appears to leave the question in the form suggested by General Counsel's presentation of his case: assuming that someone had to go, may the termina- tion of Hoey and Karasik be branded as discriminatory selection? After considerable thought, I am not persuaded that the evidence suffices to support that contention as to Hoey. The record shows that Hoey, although an excellent employee in his first few years with Respondent, had experienced a personal crisis in 1975 which he admitted, after some prodding, might have led him in that summer to say to Cohen that "if he felt this was affecting my performance there, that I would be sorry about it." Hoey also conceded that management had made comments to him in 1975 about the quality of his work and his attitude. That his performance continued to be unsatisfactory is evidenced by the advertisement placed by Respondent in several local area newspapers in September 1975, prior to the union activity, seeking a pressman with the particular skill-the ability to operate a Chief 22 press-which only Hoey, of the three pressmen, possessed. That it was Respondent's intention, as declared by Cohen, to replace Hoey, and not just to seek an additional pressman, is corroborated by the fact that business was slow at the time and that, according to Hoey, he had been operating the Chief 22 only 30 percent of the time. No satisfactory applicant for the job appeared, however, and, by December, Respondent had begun negotiations for the Binghamton plant, which presumably left matters fluid at Rockhill. Furthermore, as Cohen candidly noted, the union activity in January had a certain "freezing" effect on personnel actions.10 The claim that there was a general lack of order in the plant, recognized by management, prior to the inception of union activity, is given substance by the advertisement placed by Respondent, also in September 1975, for a new production manager. Karasik testified that the then manager, Harry Madnick, ran a disorganized shop, and there is every reason to believe that firmer control over the employees was, as Cohen testified, desirable. That Hoey had contributed to this disorder prior to September 1975 is witnessed by Respondent's effort to replace this previously well-regarded employee in that month. And I am inclined to think that, after the union "' Hoey was a witness for the Union at the state labor board heanng in April. I" Hoey's testimony as to whether he lied to Cohen about placing the skid, and his failure to mention this exchange as to culpability in his direct examination, make me question his veracity here. 1Z Hoey testified that he was merely following Hurwitz' order to "block" off the pages already worked. However, Olmstead, in testifying about the fact that he had been suspended for a few days for refusing to use the sheets, admitted on cross-examination that he had asked Cohen why only he, and not Hoe), was being suspended, and that Cohen had replied that "spiteful as what Matt had done, he had at least filled it out." The fact that Olmstead activity commenced, there was no noticeable improvement in Hoey's attitude. Cohen's testimony that he believed that Hoey placed a skid, mischievously and dangerously, on top of another one in late April, was given in a particularly emphatic and credible manner," although I did not find Cohen to be uniformly convincing, and I could understand that he would be annoyed by such conduct. After Hurwitz came to the plant in April, he revitalized the use of a worksheet for the IBM jobs which had been a work procedure for the pressman for several years, but had only been conscien- tiously followed by employee Jackman. Olmstead and Hoey resisted using the sheets, Olmstead by simply refusing to use them, and Hoey by marking them in what appears to be a stubborn effort to obscure them.' 2 When the timeclock was installed in June, Hoey punched it excessively during the first week, 10 or 11 times a day as compared to the required 4 times, necessitating the issuance of the June 21 instructions regarding use of the clock. While Hoey testified that it was his understanding that the employees were to punch the clock every time the bell rang (signaling the beginning and end of breaks, washup time, etc.) and that "everyone" else did the same, the timecards of the other employees in evidence for the same week show quite the contrary; while there were some aberrations, mostly due to a mechanical fault causing the machine to register one ring more than one time, the other employees plainly were not deliberately punching in and out every time the bell rang. Employee Olmstead testified that the employees had been told to punch the clock only four times a day. It thus appears to me that Hoey, whose performance prior to the union activity had deteriorated sufficiently to lead Respondent to advertise for a replacement for him, did not materially improve thereafter. Cohen testified that he selected Hoey for discharge both because his skill on the Chief 22 was no longer needed and because of his continued attitudinal problems. Given the clear existence of these problems prior to the organizational effort which, had an eligible replacement been available, might well have led to Hoey's discharge in September 1975; given my conclusion that Hoey continued to be a behavioral problem thereafter; and given the fact that the transfer of the Chief 22, a decision which is immune from attack here, eliminated 30 percent of Hoey's work and, as well, eliminated the need for his particular skill on that press, Cohen's explanation as to why Hoey was the natural candidate for termination is certainly reasonable. I have, of course, considered the letter written by Cohen to Hoey on the date of the discharge, saying he would be "happy to have you work as a pressman on those presses (Chief 15 and 22) at Binghamton," and suggesting that he would put such a question to Cohen, and the reply. both clearly indicate that, at the time, the two considered that Hoey had not handled the worksheets properly. The fact that Cohen retained these April worksheets, even though he admitted that they were normally discarded, raises a suspicion that he was attempting to build a case against Hoey. On the other hand, Cohen is no dullard; in an open situation like this, where Hoey was a declared union supporter, Cohen might well have foreseen the possibility of future disciplinary action against Hoey, should his behavior continue as it had, and it is not irrational for an employer in such a situation to preserve evidence of misconduct. 1142 FPC ADVERTISING, INC. file an application there. Cohen testified that he wrote the letter because the Cojac plant "is unionized. There is a very good attitude. And, the supervision up there is good and- and with firm supervision, knowledgeable supervision, he might be a very good employee." In my opinion, Cohen would not in the least bit have been "happy" to have Hoey work at Binghamton. I have little doubt that Cohen harbored some animosity against Hoey for his known support for the Union. I infer that he wrote this letter because of the very notoriousness of that support, and out of an excess of caution, knowing that a spotlight might well fall on this discharge. Nonetheless, despite Cohen's probable dissembling here, I cannot conclude, considering the background and the constraints which are operative in this case, that the choice of Hoey for discharge was effectively motivated by illicit considerations. On the facts and the limitation of General Counsel's legal theory, it seems to me that the principle underlying the Board's statement of Law in Klate Holt Company, 161 NLRB 1606, 1612 (1966), squarely applies here: The mere fact that an employer may desire to terminate an employee because he engages in unwelcome con- certed activities does not, of itself, establish the unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discriminatory and therefore unlawful. Accord: Golden Nugget, Inc., 215 NLRB 50, 52 (1974). I reach a contrary conclusion as to the discharge of Karasik, however. Unlike Hoey, Respondent had not previously been dissatisfied with Karasik and had not been seeking to replace him; indeed, when Karasik had tendered his resignation in November 1975, calling Jacobs a "moron," he had nonetheless been allowed to withdraw the resignation, despite Boyd's having been hired to replace him, and despite the fact that there was not enough work for two prep men at the time. That Karasik was clearly better at his trade than Boyd, and that Cohen and Jacobs so recognized, is an inescapable conclusion from the record. In testifying about Respondent's decision to retain Boyd and fire Karasik, Cohen said that it was "strictly money"-Karasik earned $180, and was due to be raised to $200, and Boyd made only $130. It seems highly unlikely that the difference between Karasik's wage and Boyd's wage would have been such a critical determinant, given the difference in skills. As noted, in the past Respondent had exhibited a certain liberality in spending money for employees, retaining both Boyd and Karasik, and borrowing rather than laying employees off; in the context of a decision already made to terminate both Hoey and Hurwitz, thus effecting a saving of more than $23,000 in wages a year, one might think that the $50 difference between the wages of Karasik and Boyd could be absorbed in deference to Karasik's greater skill. This seems especially true in light of the fact that Boyd was given a $20 raise in November, which presumably would have been foreseen in August. What is especially difficult to accept, however, is Cohen's testimony about the decisionmaking process with regard to Karasik and Boyd. Cohen said that, while he concluded in July that Hoey and Hurwitz should go, it took 2 weeks of deliberation to decide about Karasik. "[A] coward's delay," he called it, due to the facts that "Jeff had just bought a home and had a baby."'3 According to Cohen, the process was a painful and painstaking one, which lasted for 2 weeks: Well, basically, the time spent was not great. It was basically a question of sitting down, partially discussing it with my partner. During the day, that sort of discussion was impossible. We would have to wait until the end of the day, when the activity and phones and so on stop. * * In addition to that, it is the kind of a decision that you-I guess you feel badly about it. But economics really decide it. I guess it was just a natural distaste for doing it. Despite all this agonizing, however, Cohen eventually testified that he never considered asking Karasik to take a pay cut in order to stay on, a resolution which would seem such an obvious answer to Cohen's distress. I use the word "eventually" advisedly, because Cohen at first indicated that he had entertained making such a proposition: Q. Would you have offered him less money if the matter had been raised? A. No, I don't believe we would have. Q. Why? A. Well, we had a man there who could-without the 22 and the-basically, without the 22 and the 15, who could adequately perform the work and--I, frankly, didn't feel he would accept it. Q. You mean Mr. Karasik wouldn't accept it? A. I must tell you I just didn't even consider that. Thus, in moments, Cohen changed the description of his thought process from "frankly" having felt that Karasik would not accept a decrease to not having "even consid- erled ]" the possibility. It seems quite incredible to me that any employer who assertedly spent 2 weeks in anguish over the possible discharge of a new father with a new home would have failed to consider the alternative of saying, "Jeff, we need to discharge either you or Boyd for economic reasons. Since you earn more money, we should choose you, but since you are a more useful employee, and have a new child and home, we will retain you if you will accept a pay cut to $130, which will be increased to $150 in November." Such an approach with Karasik would not have presented the kind of morale problems which might conceivably be I BoHd was unmarried, which Cohen knew. 1143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD encountered by drastically reducing the pay or authority of highly paid and high-powered executives. Prior to late April 1975, Karasik had been earning only $130. In that month, he was raised to $150 and by October was up to $180. It seems most improbable that, in his circumstances, he would have rejected in July 1976 a reduction to $130, to be increased to $150 again in November. Despite the inarguable likelihood that such an alternative would have irresistibly presented itself to an employer considering the matter in good faith, particularly one experiencing the torment to which Cohen testified, he said-ultimately-that he never even considered the possibility, although he spent 2 weeks of "coward's delay" in deliberating Karasik's fate. That assertion seems inconceivable to me. I believed Karasik's testimony that Cohen told him in April that "those employees who sided with me would find it to their advantage and that those who don't will find it to their disadvantage." At the representation hearing on July 13, Karasik took the stand in order to contradict testimony given by Cohen. I find Cohen's testimony about his deliberative process in deciding to terminate Karasik both contradictory on its face, as noted above, and so inherently incredible that it is appropriate to infer that the true motive "is one that the employer desires to conceal-an unlawful motive," Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966); Sinclair & Valentine Company, 223 NLRB 1043 (1976). In all the circumstances, I conclude that the discharge of Jeffrey Karasik on August 6, 1976, violated Section 8(a)(3), (4), and (1) of the Act. B. The Alleged 8(a)(1) Violations The original complaint alleged that on April 29 and "around May," Cohen unlawfully threatened employees with reprisals, and on April 29 and "around May," made unlawful promise of benefits to employees. The April 29 allegations must relate to Cohen's conversa- tion with Karasik on that day. I was impressed with Karasik and credit his testimony that Cohen said that, in the past, he had borrowed money rather than lay off employees and that "if the union came in that he might not be able to do that in the future." I further have credited Karasik's testimony that Cohen said that employees who sided with him would find it to their advantage and those who worked against him would find it to their disadvan- tage. The former statement is clearly an unlawful threat; the latter statement constitutes both a threat and an unlawful promise of benefits, in violation of Section 8(a)(l). I do not detect from General Counsel's brief that he considers any other portion of the conversation to be violative. The "around May" allegations appear to refer to Cohen's conversation with Olmstead, which he described as occurring "around the end of April." Olmstead's credited testimony that Cohen had reminded him of the retention of 14 The complaint contains no allegation with respect to Jacob's statement to Olmstead in August that Respondent "could never survive the economic burden of a union," and I make no findings thereon. Jacobs did not testify. 15 Karasik thought it was a good idea. the employees during a slow winter and had stated that "if the union came in he definitely wouldn't be able to hold them anymore if it got slow" is a patent threat. Assuming that the General Counsel is also claiming to be invalid that portion of the conversation relating to Cohen's remark that his door was always open and that the employees should consider forming a grievance committee, I think that urging Olmstead to form a grievance committee in which Cohen and the employees would "work the matters out," including the drawing up of papers "holding him to his promises then," particularly in the context of a conversa- tion in which was discussed the more bleak consequences of voting in a union, sufficiently got across to Olmstead the benefits which would accrue from withdrawing support from the Union.'4 After resting, General Counsel moved to amend the complaint (having initially rejected that possibility prior to resting) to allege as independent violations of Section 8(a)(1) the issuance of the April 29 work rules; the installation of the timeclock on June 14 and the promulga- tion of rules pertaining thereto on June 21; and the "implement[ation] [of] a new policy regarding the taking of time off" on July 2. I perceive no basis for concluding that the April 29 rules were intended as a reprisal for the employees' union activities. According to Cohen, they were drafted by the new production manager, Hurwitz, who was brought in to impose the discipline and order which former Production Manager Madnick had been unable, as Hoey conceded, to achieve. They are just the kind of rules which a new manager might plausibly wish to promulgate in order to create some order. They were not unduly restrictive and they make sense. I find no violation here. As Hoey conceded, the timeclock had been the sugges- tion of employee Leroy, and Cohen had sought out the views of Hoey and Karasik about its installation.15 Since there appears to have been a problem regarding late arrival and early leaving, it is difficult to see how a solution suggested by one employee and acceded to by others can be considered a coercive act, unlawfully motivated, by an employer.' 6 And since it seems clear that the June 21 instructions were plainly provoked by Hoey's prankish misuse of the clock (and perhaps some perceived uncer- tainty on behalf of the other employees as to its proper use), I detect no unfair labor practice in their issuance. The remaining allegation relates to the time off policy posted on July 2, which stated that, if employees did not give 48 hours' notice in advance of taking time off, their right to deduct such time off from vacation time would be allowed only at the discretion of the management. Cohen testified that the notice was posted because he had heard that "most of the printing unit" would be attending the July 13 hearing, and he obviously wished to have ample 16 Indeed, in Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976). the Board held that an employer did not violate Sec. 8(aX5) by unilaterally substituting a timeclock for its existing manual practice. The record is silent here as to the prior practice for keeping time. 1144 FPC ADVERTISING, INC. notice of the complement he could expect to have on that day.' 7 Karasik conceded that, prior to issuance of the notice, the practice had been that "they always asked that you let them know ahead of time if there was ever any- [sic ]." The prospective absence of a large number of employees at one time was very likely an unprecedented event, and I find it understandable that Respondent, which had always wanted to "know ahead of time" the projected absences of employees, would have legitimately wished to have notice of such anticipated absenteeism. The problem lies in the discretionary sanction attached; there is no showing that, in the past, a failure to give adequate notice had resulted in a refusal to set off the lost time against vacation time. Nonetheless, the burden imposed on the employees was miniscule: if they intended to attend the hearing, all they needed to do to escape the rule completely was to give 48 hours' notice and, even if they failed to give such notice, their potential of not having the time off credited against vacation time was not automatic but within the discretion of management. The rule served a realistic purpose in special circumstances, and it did not impose a burden on the employees. In the circumstances, I am inclined to believe it did not violate the Act.'8 CONCLUSIONS OF LAW 1. FPC Advertising, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service Employees International Union, Local 32E, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Jeffrey Karasik on August 6, 1976, Respondent violated Section 8(a)(4), (3), and (1) of the Act. 4. By making unlawful threats and promises of benefits to employees in April 1976, Respondent violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Other than as set out above, Respondent has not violated the Act as alleged in the amended complaint in this case. THE REMEDY In order to remedy the unfair labor practices found herein, I shall recommend that Respondent be required to cease and desist therefrom and take certain affirmative action. Having found that Respondent discriminatorily dis- charged Jeffrey Karasik on August 6, 1976, I shall recommend that Respondent be ordered to offer Karasik 17 A major part of Respondent's work at this time was deadline jobs for IBM. '" I do not address the matter of the application of the rule to Karasik. who testified that he in fact gave Hurwitz 48 hours' notice. The amended allegation onls charged that Respondent violated the Act by "imple- mentling] a new policy regarding the taking of time offT on "Jul 2." I do not regard this as ample notice that the application of the rule to Karasik alter Jul) 13 was implicated in the amendment, nor do I find that the matter was lull) and consciously litigated. Cohen testified that he asked Hurwitz aboul Karasik's claim that he had given notice. and that Hursitz said he immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered from the time of his termination to the date of Respondent's offer of reinstatement. His backpay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 19 The Respondent, FPC Advertising, Inc., Rockhill, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for giving testimony under the Act, for assisting Service Employees International Union, Local 32E, AFL- CIO, or any other labor organization, or for engaging in other union activity or concerted activities for the purpose of mutual aid and protection. (b) Threatening employees with reprisals for exercising rights guaranteed them by the Act and promising benefits to employees in order to cause them to refrain from exercising rights guaranteed them by the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Jeffrey Karasik full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and 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 Board or its agents, for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due to Karasik. had not. Hurwitz was not produced to corroborate Cohen. which might have been the case had the matter been more specifically pinpointed as being in issue. "I In the event no exceptions are filed as provided b' 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. 1145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its place of business at Rockhill, New York, copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authorized representative, shall be posted by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are "" 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 customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1146