New Enland Lithograph Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD New England Lithograph Company, Inc. and Graphic Arts International Union, Local 300, AFL-CIO. Case 1-CA-12376 August 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 18, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the General Counsel 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,1 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). we have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This proceeding was heard in Boston, Massachusetts, on March 10 and 11II, 1977, upon a charge filed on October 26, 1976, and a complaint issued on January 27, 1977, alleging that Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discharging and refusing to reinstate Lawrence Corbett because of his union activity. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hearing, a brief was filed by the General Counsel. Upon the entire record in this proceeding, including direct observation of the witnesses while testifying, and John Lyons, Respondent's plant superintendent, described Bachman as a salesman, production manager, and chief estimator, who was Lyons' "right hand man in the shop." There is no evidence, however, that Bachman 231 NLRB NO. 81 their demeanor, and upon consideration of the posthearing brief, I hereby make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a Massachusetts corporation with its principal office and place of business located in Boston, Massachusetts, from which it operates a commercial printing plant. In the course of said operations, Respon- dent annually receives at said location goods valued in excess of $50,000 purchased and transported in interstate commerce from States of the United States other than the Commonwealth of Massachusetts. The complaint alleges, the answer admits, and I find that Respondent, at all times material herein, was and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Graphic Arts International Union, Local 300, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint herein raises the limited question of whether Lawrence Corbett was discharged in violation of Section 8(aX3) of the Act as the General Counsel contends, or because of the poor quality of his work as a platemaker, as Respondent asserts. B. Concluding Findings Respondent in its job printing operation utilizes the offset lithographic process. Among the various depart- ments is the traditional preparation department which includes the preliminary functions of camera, stripping, and platemaking. At times material, some five to six employees were assigned to the preparation department, including the alleged discriminatee, Corbett, a platemaker. Normally the Company employs one full-time platemak- er. However, it is the sense of the record that platemaking skills are held by individuals primarily engaged in other work including certain strippers, Joe Donahue, the lead- man in the preparation department, and Joe Bachman.' Prior to the hire of Lawrence Corbett, Respondent's platemaking was handled for several years by Brian O'Brian. Apparently, O'Brian in late 1975 or early 1976 took ill. It was his illness and uncertainty as to whether he could perform regularly as an employee that led to the hire of Corbett. Early in his employment, Corbett worked the day shift while O'Brian was on leave. After O'Brian returned, Corbett was transferred to the night shift, with exercised statutory indicia of supervisory authority in discharging the wide spectrum ofduties implicit from Lyons' general description. 516 NEW ENGLAND LITHOGRAPH CO. O'Brian continuing to work days. Later, however, Corbett replaced O'Brian on the day shift when the latter's employment was terminated. Corbett started working for Respondent as a platemaker on February 27, 1976.2 Prior to his hire he claims 24 years' experience as a platemaker in the printing industry. However, between 1974 and his employment by Respon- dent, Corbett was out of the trade. According to Corbett, the trade was "getting hectic, so in 1974 he sold his property and went to Florida to get away from it," working in a restaurant between 1974 and his hire by Respondent. Corbett acknowledged that, at the time of his employ- ment with Respondent, the union organizational campaign was already in progress. He also confirms that he had previously worked for Respondent's plant superintendent, Lyons, while employed by another company some 18 years ago and that, at that time, he was a union member, acknowledging further that, in a conversation with Lyons in August 1976, Lyons asserted an understanding that Corbett had a union card when hired by Respondent. In any event, it is clear that, upon joining Respondent's work force, Corbett supported the organizational effort. Pursuant thereto, he discussed the Union with employees, encouraging them to join, and wore a union button until the Board election.3 On June 4, a secret-ballot election was conducted by the Board. Official notice is taken of the tally of ballots which showed that of approximately 21 eligibles, 8 cast ballots for, and 9 against union representation, with 4 determina- tive challenges. No objections were filed to conduct affecting the results of the election. It does appear, however, that Respondent during the preelection period campaigned vigorously for a "No" vote.4 Corbett was discharged on October 21, shortly before the postelection hearing on the challenged ballots, which opened on October 29. The recorded version of the cause 2 Unless otherwise indicated all dates refer to 1976. 3 Although I credit the above facts bas{l on Corbett's testimony, I did not regard Corbett as a trustworthy witness. He seemed inclined to tailor facts, in exaggerated fashion, to suit his cause. His uncorroborated testimony that he solicited authorization cards from among employees, and that he was contacted by the vice president of the Union to inform employees as to where and when union meetings would be held, and did so, aroused suspicion and was unworthy of credence. In any event, contrary to the General Counsel there is no basis for inferring, in the circumstances presented here, that Respondent knew that Corbett's role in the union campaign exceeded those of others, who wore union buttons, including four of the five other employees in the preparation department. The small plant theory, in the circumstances of this case, is not augmented by other factors which warrant a fair inference based upon a reasonable probability that Respondent's agents acquired knowledge that Corbett's role exceeded that of the several employees who openly manifested their union sympathies. See the Picker Corporation, 222 NLRB 296, 299 (1976), and C.SC. Oil Company, a division of Cook United. Inc.. d,/h a Ontario Gasoline & Car Wash, 228 NLRB 950( 1977). 4 Copies of literature distributed by the Employer during the campaign is in evidence as G.C. Exh. 8. The complaint does not allege that this propaganda violated Sec. 8(aX1). In her brief, however, counsel for the General Counsel seemingly challenges the lawfulness thereof. In any event, after consideration of the literature, I find that it did not exceed permissible bounds of free speech as protected by Sec. 8(c) of the Act. 5 Bad plates entailed not only losses to the Company in terms of wasted material, but, more significally, also caused delays making it more difficult to meet customer deadlines without overtime, while creating cost inefficient downtime on the presses. 6 Among the unbelievable aspects of Corbett's testimony was his assertion that the Simmons College job was performed in September, rather assigned for the termination, and that consistently main- tained by Respondent at the hearing, appears in the unemployment security form provided to the Employment Security Division for the Commonwealth of Massachu- setts, which recites as follows: "He was discharged as his work was unsatisfactory. He was warned several times, but continued to make mistakes." Lyons was the principal witness offered by Respondent in substantiation of such cause. Lyons credibly testified that he made the decision to terminate Corbett because of the poor quality of Corbett's output during the period September through October. He avers that the final decision was made on the evening of October 20 after Corbett's last job. According to the credited testimony of Lyons, this job was for the Howard Kirshen Printing Company, which in turn involved production of materials for Simmons College. The job was scheduled for delivery on Monday, October 25. Corbett made 16 plates on the job of which 4 were defective. The bad plates were not discovered until the plates reached the press.5 According to Lyons, this was "the last straw" and he decided against a background of previous warnings and poor quality of output to terminate Corbett. 6 As for the background against which the discharge was effected, Lyons testified that he first became dissatisfied with Corbett's quality in late August when pressmen called his attention to platemaking errors. In August, Lyons asked Donahue to keep an eye on Corbett and to discuss his work with him because faulty plates were getting to the pressroom. Lyons in September told Donahue that, if the mistakes continued, to make a note of them. Donahue did so.7 Lyons credibly testified that Donahue's list was a partial list of faulty plates made by Corbett since, with one exception, it was limited to plates which reached the press before detection of the errors.8 This list, together with other documented evidence, considered with the credible testi- than October, during a period when he was out sick for 2 days, and his further claim that, because of this illness, he only made 3 plates on that job. with Donahue performing the balance. It is true that Resp. Exh. 4(k). a "production report" relating to the Simmons College job, includes the entry apparently made by pressman Schulyer Buford that the platemaking on this job was performed on September 25. It is also true that. unlike the other "production reports" in evidence, this document was not initialed by Corbett. However, other evidence plainly establishes the truth in Respon- dent's explanation that the date entered by Buford was inadvertent. First, it is noted that Resp. Exh. 4(k) shows that the job in question was completed on October 25 and. if Corbett is to be believed, some 30 days would have intervened between the platemaking step and final completion. Also supporting Respondent is the fact that Resp. Exh. 8, the job ticket on the Simmons College job, indicates that it was received on October 19 as a new job. Of further significance is Resp. Exh. 10 which is a cover letter or memo dated October 19, 1976, enclosing the negatives for use on the Simmons College job. I credit the testimony of Lyons and John Galvin, Jr., Respondent's treasurer and general manager. that platemaking work on the Simmons College job was performed on October 19 and 20, and I further credit the testimony of Lyons that Corbett was responsible for mistakes on 4 of the 16 plates required on thatjob. G.C. Exh. 4 is the list prepared by Donahue. S Never before had Respondent maintained such a list with respect to any other employee. Lyons indicates that this action was taken because he had been told to document everything in that Board investigators had criticized the looseness in respondent's recordkeeping practices. Though without precedent, absent any indication that any other employee was in a comparable position to that of Corbett, contrary to the General Counsel I see nothing sinister in Respondent's effort to maintain a record of job discrepancies of an employee whose performance suggested the possibility that his employment might well be terminated. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mony of Lyons, which was essentially uncontradicted, established that during the period August through October Corbett was responsible for faulty platemaking on a number of jobs which got to the press, causing downtime, delays on delivery, and higher costs to Respondent. 9 As for specific warnings, Lyons relates that he personally directed criticism to Corbett beginning with a job per- formed on August 26. At that time, Lyons told Corbett that plates of the quality he produced should never have reached the press. Again in mid-September, Lyons in connection with another job confronted Corbett, indicating that he was receiving complaints from the pressmen and that he "didn't want that type of work going on here and . . . couldn't put up with that type of work." Corbett apologized and indicated that he would try to do better. Again, on October 4, Lyons gave Corbett what he described as the most stern warning. Thus, he at that time indicated that he was dissatisfied with Corbett's work, stating that if it continued, "I would have to start looking for another platemaker." It is undisputed that thereafter on October 8, 9, and 10 Respondent advertised for a platemaker in the local newspaper. In connection there- with, Corbett, having learned of this action, asked what the ads meant. Lyons credibly relates that he informed Corbett that the ads were placed because the work was not getting out, and that Corbett's work was unsatisfactory and, if such work continued, he would like to have a backup platemaker.l Thereafter, Lyons interviewed applicants for the second platemaker position. Pursuant thereto, Richard Polvere who was interviewed on October 18, 1976, was hired and began his employment on October 21, 1976. Also on October 21, steps in the platemaking process were eliminated for the first time by installation of a mechanical processor. This device mechanized the previously manual tasks of developing and gumming." It was also on October 21 that Lyons decided to terminate Corbett on the basis of his performance on the Simmons College job.12 Aside from my belief of Respondent's witnesses, the General Counsel's claim of discrimination in this case is unaided by the probabilities. Classic indicia of union- related discrimination are absent. The timing of the discharge arouses no suspicion. Thus, it would seem that the union campaign would have reached a relatively dormant state after the June 4 election. Corbett did testify that he continued to discuss and urge employees to join and support the Union during this period. Here again there is no evidence, on the record as a whole, warranting an inference that Respondent was aware of any such union activity on the part of Corbett, if in fact it did occur. 9 Corbett offered no direct counter to the preponderance of the specific evidence adduced against him to substantiate the Respondent's claims as to the quality of his work. He did suggest the possibility that some of the errors could have been made by strippers or others preparing job instructions, but his testimony in this regard does not offset the documentary evidence and the parole testimony of Lyons. 'O Having regarded Lyons as the more credible witness, I accept his version of this conversation over that of Corbett. II Lyons credibly testified that the new processor did not eliminate work in the area which it had found to be critically deficient in Corbett's case. Thus, according to Lyons, the faulty plates he produced involved a failure to accurately perform during the earlier stages of the platemaking process, Apart from this somewhat sterile assertion there is no suggestion that anything occurred after the election which would have altered Respondent's posture towards union adherents, many of whom were overtly engaged in activities on behalf of the Union equal to or beyond that manifested by Corbett. Furthermore, the claim by the General Counsel that, after the election, Respondent changed its attitude toward Corbett seems at odds with the latter's own testimony that he was given the opportunity to become a permanent platemaker when O'Brian terminated in August. Thus, at that time, Corbett, who was then working nights, was asked to switch back to days as O'Brian's replacement. My questioning of Corbett allays the theory of the General Counsel and is highly material to overall analysis of the issue of motivation in this case: Q. Now, when did you come off of days? A. It was in August, I think it was August 11th, I am not entirely sure of that Q. Okay. Now, you had a conversatinwith (sic) Mr. Lyons that got into his needs on the day shift, and how would you - how you would fit into the Company's plans, would you say that Mr. Lyons was encouraging in terms of your being the man? A. I conversed with him over that, yes. He told me that he did need somebody that was steady because Brian O'Brian had a very personal problem and this is the main reason he wanted me to go back on days, because they had decided they weren't going to keep Brian and I had said that-John had said to me that he needed a good reliable plate maker and I said, well you had me all the time. And we went into more conversations about that. Q. But you were there and knew what was going around in relation to you and your role in that plant at that time, and I am just curious as to whether you left that conversatin (sic) with the feeling that you had this opportunity, that you were going to be the plate maker? A. I was hoping that that was the way it was going to turn out. I was hoping that the election went our way. Q. Was that the drift of Lyon's comment to you? A. I believe so. It should be evident from the foregoing that Corbett's potential for replacement of O'Brian was viewed favorably namely, that which involved the burning of images. The General Counsel observes that the addition of this equipment would have provided more time for Corbett to inspect his plates and to eliminate the submission of faulty plates to the pressroom. It is argued from this that Respondent should have retained Corbett and provided him the opportunity to perform under these conditions. Contrary to the General Counsel, considering the uncraftsman- like performance documented on this record, Respondent's election to place its own interest ahead of Corbett's was not sufficiently reprehensible to contribute to an inference of discrimination in this case. 12 Here again I credit Lyons over Corbett as to their exchange dunng the discharge interview. I discredit Corbett's testimony that Lyons did not refer to the Simmons College job in effecting the termination. 518 NEW ENGLAND LITHOGRAPH CO. by Lyons as late as August, more than a month after the June 4 election.13 The General Counsel has made no effort to identify any subsequent union activity on Corbett's part which could have changed Lyons' attitude towards him. Contrary to the General Counsel, the timing of the action against Corbett following the election is more rationally linked with a breakdown in his performance than with his union activity, which, considered in the light of the credited testimony, hardly marked Corbett as a likely target for a pretextual discharge.14 On balance, in conclusion, I find that the Respondent has presented a credible explanation through which the termination of Corbett is convincingly disassociated from Corbett's union activity, and which the General Counsel has failed persuasively to negate as pretext. I find that the General Counsel has failed to establish by a preponderance of the record that Respondent terminated Lawrence Corbett in violation of Section 8(aX3) and (1) of the Act, and, accordingly, I shall recommend dismissal of the complaint in its entirety. 11 Lyons credibly testified that the summer months are slow and that Corbett was not exclusively engaged in platemaking prior to O'Brian's departure. 14 The evidence of animus is also of limited value to the General Counsel. In addition to Respondent's preelection literature, the General Counsel adduced testimony from Corbett and former employee Kenneth Heger to demonstrate Respondent's hostility to union organization. Neither Corbett nor Heger were impressive witnesses. Heger seemed too quick to give vent to his obvious bias in favor of Corbett. In any event, according to Corbett, in the last week of May, Bachman, who was neither alleged nor shown to be a supervisor, told him that he was in a position to get Corbett a raise if Corbett voted in the election the right way. The record is inconclusive as to the status of Bachman, and this statement was somewhat isolated, having been uttered about 5 months before the discharge. Corbett also testified to conversations with Lyons and Donahue in which the Union was mentioned but, while possibly relevant to the issue of knowledge. these references hardly show a disposition to engage in acts of discrimination. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not violate Section 8(aX3) and (1) of the Act by, on October 21, 1976, discharging and thereafter refusing to reinstate Lawrence Corbett. Upon the foregoing findings of facts and conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. Heger testified that sometime after the election, in a casual conversation with Donahue, Donahue told him "that he thought Larry shouldn't be so strenuous in his union activities, because he thought with the economic situation Larry should be glad to be working rather than trying to encourage the Union." The latter, though ambiguous, and possibly an innocuous statement of opinion, was potentially the most serious of the expressions attributed to any agent of Respondent. Nonetheless, while I did not believe Heger, considered against the entire record, including other statements attributed to Donahue, this expression hardly reflects the bent toward union-related discrimination which would support fairly a claim of pretext. is In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 519