Confort & Co., Inc.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Confort & Company, Inc._ and Local One, Amalga- mated :Lithographers of America, a/w Interna- tional . Typographical , Union, AFL-CIO. Cases .29-CA-9558, 29-CA-9562, 29-CA-9904' -.29- CA-9918, 29-CA-10006-2, 29-CA-10149, 29- CA-10421, and 29-CA-10439 31 May 1985 DECISION AND-ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 14 September, 1984 Administrative . Law Judge Harold B. Lawrence issued the attached. de- cision. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations'Board has consid- ered the decision and -the"record in light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. - 1 The Respondent has excepied to some of the judge's credibility fnd- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In the absence of exceptions thereto, we adopt, pro forma, the judge's dismissal of that portion of.the complaint alleging a violation of Sec 8(a)(1) and (3) of the Act by the Respondent's suspension of employee lannuzzi •-z We adopt the judge's conclusion that the Respondent violated Sec 8(a)(1), (3), and (4) of the Act by discharging lannuzzi In so doing, we note that at one point in his decision the judge stated that two other em- ployees were discharged for poor attendance and lateness records, but stated at another point that although disciplinary action was taken against two other employees in April 1983, Iannuzzi was the only one dis- charged The Respondent's vice president Orbine testified that following the 1982 yearend review, two employees were discharged in 1983 prior to lannuzzi Although the Respondent's counsel moved to introduce doc- umentary evidence in support of Orbine's testimony, he later withdrew the evidence, and did not further develop the evidence as to when and under what circumstances those employees were discharged We find it unnecessary to resolve any apparent conflict in the judge's disparate treatment findings in view of the judge's other findings with which we agree and which clearly establish that Ianruzzi 's discharge was unlawful Contrary to our dissenting colleague, we find that the record clearly supports the judge's finding that the Respondent's president Confort un- lawfully interrogated and coerced employee members of the Confort Em- ployees Association Executive Committee Confort questioned their knowledge of the Charging Party's activities in the plant, demanded that they support the Respondent in fighting the Charging Party's campaign, and, when an employee protested that they could not take the action re- quested without having a meeting of the employees, grew angry and ex- claimed, "if you can't do it, get the fuck out and I'll get someone who will " Unlike the dissent, we find that Confort was not merely attempting to enlist the support of the incumbent union Rather, as the judge con- cluded, the evidence shows that Confort interrogated employees concern- ing protected activities, demanded that they take action to support him and inform him of their decision on his demand, and in so doing violated Sec 8(a)(1) of the Act In adopting the judge's finding that Confort's interrogation of employ- ee Schatzle violated Sec 8(a)(l) of the Act, we find that Confort's state- ments would reasonably tend to coerce employees in the exercise of their Sec 7 rights Contrary to our dissenting colleague, even if the statements had been prompted by concern over Schatzle's health, there is no evi- dence that Confort conveyed his concern to Schatzle, and Confort's sub- ORDER The National Labor Relations Board adopts the recommended - Order of the administrative - law judge and orders that the Respondent, Confort & Company, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice will be substituted for that of the administra- tive law judge. - CHAIRMAN DOTSON, dissenting in part. Contrary to my colleagues, I would not adopt the judge's findings that the Respondent coercively interrogated employee-members of the Confort Employees Association Executive Committee, co- ercively interrogated employee Joseph- Schatzle, and unlawfully issued a written warning to and dis- charged employee Ronald lannuzzi . Accordingly, as the judge found without merit the some 18 other unfair labor practices alleged by the General Coun- sel, I would dismiss the complaint. 1. Approximately 1 week after Local 'One's demand for recognition the Respondent called a meeting with, the Executive Committee of'the Con- fort Employees Association (CEA), the employees' incumbent bargaining representative.' John Con- fort, the Respondent's president, began 'the meeting by reading aloud Local One's demand, letter. When one of the Committee members asked what the letter meant, Confort explained that some of the pressroom employees wished to be represented by Local One. Confort then asked if the Committee members supported the CEA, declaring that, if they did, they had to fight for it. He asked what they intend- ed to do about Local One's organizational cam- paign. Confort told the Committee that he opposed the campaign because it would fragment the exist- ing bargaining unit, and that he had hired' a labor lawyer. He said that the Committee should also hire themselves a lawyer and suggested three. In response to a question about how they would pay the lawyer, Confort said that was up to the Com- mittee, and suggested a membership assessment. Confort then invited the Committee to use the executive conference room to discuss the matter, which they did. After a few minutes in the confer- ence room, CEA's president, Joseph Dierna, emerged and informed Confort that they would have to think about the situation further before jective reasons for making his remarks to Schatzle are irrelevant in con- sidering the impact of his statements under Sec 8(a)(1) of the Act Rose- wood Mfg Co, 269 NLRB 782 (1984) 1 The CEA Executive Committee, comprised of five employees of the Respondent, among its other functions negotiates the collective-bargain- ing agreements with the Respondent - 275 NLRB No. 82 CONFORT & CO taking any action. Confort at this point became irri- tated, went into the conference room, reiterated that they should fight for the CEA, and stated, "If you can't do it, then get the. fuck. out and I'll get someone who will." The judge found that "there is no way to read" Confort's above conduct "except as a highly coer- cive interrogation"; that this "is a clear case of in- terrogation in violation- of the Act." I disagree. In my view, when read in context, taking into account the undisputed circumstances surrounding Con- fort's alleged unlawful inquiries, precisely the op- posite finding is compelled. _ This is not the traditional case where an employ- er interrogates employees about- their prounion sympathies. It is undisputed that the Respondent called the members of the Executive Committee to the meeting in their capacities as CEA representa- tives, not as individual employees. Further, the Re- spondent's inquiries during the .meeting clearly fo- cused not on their personal sympathies but on what they, as CEA representatives, planned to do about Local - One's campaign. -Obviously,. as - representa- tives of the incumbent union, the Respondent might reasonably have expected them to share its interest in defeating that campaign. And Confort testified that this was, in fact, his expectation when he addressed the Committee.` There is also no question in this case about the representational independence of the CEA Execu- tive Committee. The complaint does not allege, nor did- the General Counsel attempt to prove, that the Respondent "dominates" the CEA in violation of Section 8(a)(2) of the Act or that the CEA is oth- erwise not a bona fide labor organization. On the contrary, the record shows that, during, the ap- proximately 35 years the CEA has represented the Respondent's employees, it has negotiated several collective-bargaining agreements- with the Re- spondent, as well as filed grievances thereunder. ' Thus, what is involved in this case is nothing more or less than an employer's attempt to enlist an incumbent union, through its chosen representa- tives, as an ally in the employer's lawful efforts to defeat an outside union's organizing campaign. As I am unaware of any provision of the Act forbidding such conduct, I find it privileged.2 2. In October 1981, after the Board hearings on the appropriate unit for the upcoming election had been held, Confort noticed that employee Joseph Schatzle was looking sick and asked him 'what the problem was. Schatzle just shook his head. Confort 2 Cf, e g, Joanna Western Mills Co, 244 NLRB 672 (1979) (employer's inquiries to union president about union grievance committee' s sentiments concerning employer's production rate proposal not a coercive interroga- tion but part of lawful attempt to sell union on merits of proposal) 561 testified that at that point he realized that it was the Board hearings that had caused Schatzle's con- dition (Schatzle had testified at the hearings within the previous few days), whereupon he said to Schatzle, "Joe, how the hell .did you ever get in- volved in this?" When Schatzle did not answer, Confort walked away. - - The judge found that "there can be little doubt" that the meaning of Confort's remark was "that Schatzle had no. business being mixed up' with the Union campaign and should have supported the Confort position on the appropriate unit." Accord- ingly, the judge concluded, it was "inevitably coer- cive in effect, and was unlawful." I disagree. It is undisputed, and the judge so found, that Schatzle had a history of ill health and personal grief which he had often discussed with Confort during' his many years with the Respondent. Con- fort had, in fact, frequently aided Schatzle with his problems, on one occasion helping him to invest the proceeds of a settlement Schatzle obtained in a medical malpractice suit. It - was . also Confort's practice to greet Schatzle every day, as he passed through the plant. Viewed against this .background, Confort's remark was more likely an innocuous expression of concern and sympathy than of displeasure at-Schat- zle's involvement. Such an - interpretation is but- tressed by the uncontroverted fact that Confort only stopped and approached Schatzle that day be- cause he was looking even sicker than he usually did. Accordingly, I find that Confort's remark was noncoercive and lawful. - - 3. On 28 January 1982, 2 weeks before the elec- tion, the Respondent gave employee Ronald Ian- nuzzi, a member of Local One's in-plant organizing committee, a written disciplinary warning for late- ness and absenteeism. In April of the following year, several months after the Board's initial hear- ings on the instant unfair labor practice charges concluded, the Respondent discharged Iannuzzi, again citing lateness and absenteeism. Iannuzzi had testified and served as Local One's representative at the hearings. The judge found that the written warning to and discharge of lannuzzi were discriminatorily moti- vated. In reaching his -finding, the judge empha- sized lannuzzi's highly- visible support for Local One, the timing of the disciplinary measures, and the fact that the Respondent had, since 1970, never given lannuzzi a written warning despite-his con- sistently poor attendance ' record over that time. The judge also noted that lannuzzi was scheduled to transfer to the night shift just a few days after he was discharged, an arrangement which had been proposed- by the Respondent and accepted by Ian- 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nuzzi as a possible solution to his attendance prob- lems (but which the judge found , in light of subse- quent events, had never in fact been offered by the Respondent in good faith). Contrary to the judge, I find that the record as a' whole supports the Respondent's contention that the January 1982 warning to and subsequent dis- charge of Iannuzzi were motivated solely by his poor attendance record. It is conceded that Ian- nuzzi had a terrible attendance record, being absent 19 days and late 58 days in. 1981 alone . Further, the judge found that the Respondent had orally repri- manded Iannuzzi , frequently over , the years- for poor attendance, and as recently as 1975 delayed his pay raise for this reason. . Significantly, because of the above history the judge- found that the suspension of' lannuzzi for poor attendance in April 1983, just prior to his dis- charge, was, lawful . It is also noteworthy that the General Counsel did not even allege that a written warning for poor attendance Iannuzzi received 2 months earlier in connection with his 1982 yearend review was unlawful. - - - - -Under these circumstances,-,and taking into ac-' - count the additional facts-that lannuzzi was-late on the very % day he returned -from-- suspension and again 5 days later ' when he ' was- discharged '(when he confessed to stopping on the way, to - work for, breakfast), 1. find that` the- January i982 - written warning and his discharge were also lawful. ;APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS, BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act- and' has ordered us to post 'and -abide by this 'notice. • Section-7.of the Act gives employees these ,rights. To organize Toform, join, or assist any union To bargain collectively; through , ^representa tives of their.own choice To act together- for, other, mutual aid or pro- tection - - To choose not to •engage in any of ' these • protected concerted activities. WE WILL NOT, discharge or otherwise discrimi nate against - any employee for engaging in activities, . on behalf of Local. One, Amalgamated Lithogra- phers of America, a/w International Typographical_. Union, AFL-CIO or any other labor organization: WE WILL NOT coercively interrogate any em- ployee regarding his union support or union activi- ties. - WE WILL NOT issue disciplinary warnings to any employee for lateness or absence because he has engaged in or is engaging in protected concerted activities. - WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise-of the rights guaranteed you by Section 7 of the Act. WE WILL offer Ronald lannuzzi immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion,-.without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and -other benefits resulting from his discharge, less any net,interim earnings, plus interest. WE WILL expunge from our records all refer- ences to the unlawful discharge of. Ronald lannuzzi and notify him in writing that this has-been done and that his unlawful discharge will not be used against him in-any way. - COMFORT & COMPANY, INC. - DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative' Law Judge. These consolidated cases' were heard before me in Brooklyn,; New York, on',October 12, November 1-5 and 22-24, and December 20-23, 1982, and on July 11-14, 1983. The charges•underlying the various complaints, the first of `which were filed on February 26 and March 1, 1982, `and the last. of which, relating to the suspension and discbar'ge of Ronald 'Iannuzzi, were filed on April 18 and 25, 1983, were filed by Local One, Amalgamated Li-- thograpliers of America, a/w International Typographi- cal Union, AFL-CIO. In addition to numerous amend- ments to the complaints by additions and withdrawals of allegations, new complaints were issued on. the basis of events alleged to have transpired during the pendency of these ; pr'oceedings. I granted a' motion by the General Counsel to reopen the hearing already concluded on the earlier complaints and 'consolidate the new complaints with them. There is thus presented for review a lengthy history of events' on the basis of which it is contended that Respondent; acting through its supervisory person- nel, including ' its' president,. violated ' the National 'Labor Relations -Act (the Act) during'' an 'organizational'-ca'm- paign waged by Local. One from the beginning of Sep- tember-1981 through the spring of 1982 Section 8(a)(1) of the Act is alleged to have been vio- lated by John Confort, Respondent's president, when he interrogated employees on September 9, 1981, and during the month of October; and by, Paul Russo, an as- sistant'production manager, when in September 1981 he CONFORT & ICO. threatened employees with discharge and other reprisals if they became or remained members of Local One, when he "warned its employees that files were being kept by Respondent on them because of their member- ship in and activities on behalf -of Local One," and when he interrogated Ronald lannuzzi, as described in testimo- ny given by'Russo on-December 22, 1982.' ' Violations of Section 8(a)(1) and' (3)• are alleged to have occurred by reason of the imposition by Respond- ent of more onerous working conditions in October 1981 and in February 1982 (acting • through , Von Erden,. Caputo, and 'Vitale); the diminution of the • amount of. overtime work made available for employee Cipriano during the period from September 1, 1981, through April 1, 1982, and for employee lannuzzi during the -period from January 15, 1982, through March 1982; the issuance of written disciplinary warnings by Von Erden to Ci- priano on September 22, 1981,, and January 22, 1982, and to lannuzzi on January 28, 1982; the subcontracting of, work, general reduction of overtime work, and forced used discretionary vacation time by employees generally in January 1982; harassment of Cipriano by Von Erden in February or March 1982 (by accusing him 'of sabo- tage); the imposition of more onerous working conditions and the imposition of a forced vacation on Cipriano in February 1982; the issuance of a critical evaluation of'Ci- priano by Caputo in February 1982; and the assignment of less desirable work duties to Cipriano on March 5, 1982. Violations of Section 8(a)(1), (3), and (4) of the Act are alleged to have occurred when Respondent refused to pay lannuzzi for., the Thanksgiving holiday and the day after, November 25 and 26, 1982. (because he had not been at work the day before, when in fact he had been attending these hearings, and assisting Local One in the prosecution of the case); on February, 8,,-1983, when more onerous, working conditions were allegedly im- posed on Iannuzzi because he was subjected to closer su- pervision (John Confort having rushed him. back to work on the' conclusion of his lunch hour); when. Iannuzzi,was given a 3-day suspension (April 12, 13, and ,14, 1983); and when lannuzzi was discharged on April 20, 19811 Respondent's answers deny all allegations of wrongdo- ing and statutory violation but concede jurisdiction of' the National Labor Relations Board in this case. ' The parties were afforded full opportunity to be heard, to call, examine,; and cross- examine witnesses, and to in troduce relevant evidence. _ Posthearing briefs have 'been filed on behalf 'of the, General Counsel 'and on behalf of' Respondent. On the entire record and .based on my' observation 6f the demeanor of the witnesses and the manner in which they' gave their testimony, and after. consideration of the briefs submitted, I make' the following ' FINDINGS OF FACT" - - " ' 1 t I. JURISDICTION f<_ There is no issue as to jurisdiction , Respondent's an- swers having admitted the allegations pertaining thereto. Accordingly,'I find that Respondent' is, and has ' been `at„ all material times, an employer engaged in commerce 563 within the meaning of Section 2(2), (6), . and (7) of the Act and that Local One and the Confort Employees As- sociation (the CEA) are, and have been at all material times, labor orgainizations within the meaning of Section 2(5) of the Act. ` ' - II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background' 1. Respondent's business operation Confort & Company is a commercial printer which handles jobs designed by the clients ; it is custom work and the bulk of the business involves quick turnaround under pressure of all types of deadlines . Thus, a job in- volving publication of a manual summarizing changes in tax legislation for-internal use in an accounting firm or for distribution to'its clients might require overtime in every phase of the operation. Similar pressure existed in printing jobs related to new drug products, utility rate increases, audits, securities registrations, and printing • or seasonal operations of various - clients. According to John Confort, because of the clients' work cycles, the periods from mid-March through mid -June and from the middle or beginning of September into late November or1 early December are busy periods . The period from January 1 to mid-March is normally a slow season. (His testimony in this regard was supported by testimony from Compa- ny Treasurer , Vincent Chirico and from George Von Erden, the foreman of the stripping department. It was • challenged in Iannuzzi 's testimony.) In late 1980, Respondent moved its facilities, over the course of a 4-month period , from lower Manhattan, New York City, to Long Island City. The prep department moved ' in October 1980. Respondent 's former premises had consisted of 55 ,000 square feet on four floors of a nine-story building which had only one. freight elevator. The new premises consisted of 115,000 square feet in Confort's own three-story building. The work force was increased in size-by approximately 15 percent. One of the effects of the move was to enable Respondent to handle the bulk of its work in :the plant. In the pressroom, Re- spondent went , from one two-color to two two-color presses, one of which was larger than its old press. The plant had room to expand and was within walking -dis- tance of•its- two suppliers. Confort put in its own camera and another type of film processor. - Salvatore Cipriano, an assistant camerman, amplified the information furnished by John Confort with respect to' additional equipment installed in the new' premises. In New York they had used a small 'camera; they mixed their own chemicals, shot . camera-ready copy and tray- developed it in a solution, whereas, in the new-plant, the cameramen work in a big - open area with a very large new camera and an automatic film, processor. The film is ready to go to the strippers to be stripped as soon as it comes' out of the machine. The whole process takes 6 minutes. The quality of the work is better because of the larger camera and the machine processing -which elimi- nates,;or at least reduces, the possibility - of human error. The` processing time was cut in, half. ,The augmentation , of its capability was such that in 1981 Confort found it 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to purchase only $75 ,000 worth of outside work, as compared with purchases of $300,000 worth of outside work in 1980. John Confort testified about the factors which deter- mined whether work would be purchased outside instead of being done in the plant . Certain work could not be done in the plant because the plant was not equipped to do it, such' as four-color process work . The competitive nature of the market sometimes made it cheaper to buy the work outside (thus plates could be purchased outside and. put on the presses if the platemaking department was too busy); work, might be purchased outside to avoid - backup and keep all plant sections operating (keeping the presses running while work is going through the pipeline in- preliminary phases - such as platemaking);• sometimes the work would come back unexpectedly fast from. the customer. Thus, work would be purchased outside, not only to get such jobs .done on time but to avoid, a lag in the pressroom. ' The efficiency of -the overall operation was the criterion. , Confort cited instances .when work - is contracted out, though the prep department •is slow. A.common situation exists when a 'client alerts -Respondent that it is 'sending in important work; :which requires Respondent -to hold the facilities in readiness for- that particular job. (For ex- ample , the client - may need the - material as soon as a con- gressional conference committee settles the details of a tax bill.) Personnel must be kept available ' to do the work as soon as the.go-ahead is received from -the client. Not- uncommonly, another client ; will -come in at the juncture with work which is needed the following morning. Since Respondent cannot- risk a slowdown on-the .primary job, the second job will frequently be -subcontracted 'out, even if there •if a possibility that the go-ahead to print . the first job might not be received that night. The production department is. responsible for deter- mining the manner in -which • a job will, be done-and issued out of the plant, taking into account the custom- er'sdesires, the' load in the' shop atthe- time, and what is available in'-the matter of presstime. Around 5- p.m. each day' a decision is made- .in consultation with ; the 'press- room supervisor and the -supervisor of the -strapping de- partment to establish what equipment will be used;- what jobs will be put on the equipment, the extent of the workload, and whether or not it is necessary to run overtime on any equipment or in any department, -includ- ing the prep department . The first- shift ' leaves-'at 3:45 p•.m; Since ' the' salesmen 'start coming back ' in-'after 4 p.m:, it is, not unusual for a, deter Imifiation' to be,-made that overtime ' is necessary 'after men 'have been • seht home for-the day. 2. The physical layout of the plant and 'description - ` of the operation' - - • - 'he first floor has two stockrooms for. finished work and an area for storage of raw stock. The. second, floor contains the executive offices production department letterpress department, strippin=g and platemaking depart- ment (prep department), multilith, and offset pressrooms, and the web department . The bindery is' on the. third floor. The production department receives the work-from the salesmen and decides matters such as which other de- partments get the job, what press it runs on , who will do the work, and whether any overtime is involved; it fol- lows the job_ throughout the shop and makes sure every- thing runs smoothly . The type is normally set on the out- side; almost everthing else is done in the shop The stripping. department produces the' negatives and the plates made from them . It consists of a camera room, the stripping section, and the platemaking section. In the camera section, work , coming in from the customer is photographed. to produce ' a negative. The -strippers posi- tion the negatives, tape them down on a large sheet, of paper called ,a "flat,"-measure them exactly, and separate colors. They work at large tables with glass tops, lighted from beneath by fluorescent lights. Two strippers work at each table, facing each other across the table. After the negative is positioned, it is sent into the platemaking department, where a metal plate is produced from the flat. It consists of an aluminum plate coated with light- sensitive material,.. into which the . picture is burned. Equipment used in this process includes a machine which coats the plate,, a backing frame to hold the film to the plate, and a -developing machine ' which develops and dries the plate and puts a coating on it.. The_cameraman, strippers; and platemakers constitute the entire department. . ,The-,plates are sent into the offset pressroom which is right outside the stripping department . From there, work goes to the bindery on the third floor , where it may be cut,, punched, folded, or stitched. ,The finished work, in the form of books • and. pads; then goes.to the shipping department on the third-floor. The' work is accompanied by a job ticket which has a description of the job and defines what has to be done by each department,' including details such as quantity, ink color; and other requirements. There is a pay telephone in the offset pressroom which was installed - at the request, of Joseph -Dierna _ Jr., the as- sistant - foreman- in the stripping department , who was president' of 'the Conforf Employees -Association (CEA). He testified that it was installed for the use of employees when they 'had to 'make an emergency call during work- ' ing. hours. The purpose was to avoid tying up the tele- phones in the stripping department. 3. The chronology of the union campaign - - Salvatore Cipriano ' and. Ronald Iannuzzi consulted with Joseph Cincotta, the director of orgainizing and fi- .nancial secretary of Local- One, in -August 1981. They commenced' their organizational activities among the em- ployees of the lithographic department that same month, speaking to them -and • distributing authorization cards. Their activities ' were made known .to management from the beginning by Local One and by themselves Cipriano and Iannuzzi made a written , signed request for "permis- sion",to' hold a meeting in support' of Local One on the company premises. Local One sent Respondent three let- ters. On August 28, 1981 , it sent a letter declaring that it 'represented a majority of Respondent's lithographic pro- duction employees and ; requesting a meeting with Re- CONFORT & CO. spondent to negotiated a collective-bargaining agreement covering all such employees. On September '3, Local One advised Respondent that it had filed a petition with the Board for an election among lithographic production employees which would be withdrawn if Respondent met with Local One to negotiate a collective- bargaining agreement On September 23, Cincotta advised Respond- ent that Salvatore Cipriano and Ronald Iannuzzi were the inner working' committe employed at the plant "whose assistance I have obtained to seek a National Labor Relations Board Election." Cipriano and lannuzzi referred to themselves, in correspondence addressed. to Respondent, as the in-plant committee. Local One's petition (Case 29-RC-5330) sought • an election in a unit of lithographic production employees in the offset press, web press, multilith, platemaking, and stripping departments. Respondent and the CEA, as • in- tervenor, contended for a unit of all hourly paid produc- tion and maintenance employees, an all-inclusive produc- tion and maintence unit such as was represented by.the CEA. The issue was left by the' Regional Director for Region 29 to be resolved at the election, wherein a vote for Local One by a majority of the eligible voters would be deemed-to constitute their election for a separate bar- gaining unit. On January 1.5, 1982, the 'Regional 'Director` for Region 29 issued an order directing that an election be held. It was held on February 11, 1982: Cipriano and Iannuzzi acted as observers for-Local One, which won the election by a narrow margin.-Respondent filed objec- tions to conduct which it claimed invalidated the results of the election on September. 3 On- October 13, 1982, in a supplemental decision, which- was upheld on Novem- ber 24 after Respondent requested review, Local One was -certified as the collective-bargaining representative for a unit consisting of - All lithographic production employees employed. by the Employer at its facility located at 47-47 Austell Place, Long Island City, New York, including all offset press employees,. web press employees,, letter- press employees, multilith employees, and, platemak- ing and stripping employees, but excluding all 'other employees, office clerical employees, professional employees, guards . and supervisors as defined in -Section 2(11) of the Act. B Actions Taken by Respondent Against Employees, Generally-, 1. Subcontracting, ,reduction -of overtime, enforced use of discretionary-;vacation time,: The General Counsel atteinpted'to establish that Re- spondent utilized its' control= over the amount' of- work being subcontracted out of'the plant 'as a device to curb concerted protected aciivitity, or' retaliate' against'' em- ployees for e'ngaging 'iri'it: The subcontracting of'work is inextricably' bound'up wrtli the-utilization-of discretion- ary vacation time of the employees and the amount of overtime work available to them. The General Counsel attempted to'sliow that-at various times Re'spondent's re- action to concerted protected activity on 'the part of the 565 employees, and especially of certain employees, was re- flected- in the extent to which overtime work was avail- able to them or the extent to which -they were' compelled to utilize their discretionary vacation time. -The flexibility with respect to subcontracting was sup- posed to be shown by an event before and after a meet- ing which the employees -in the prep department had with John Confort about June 15, 1981. Six months after the move into the new' premises, Confort scheduled meetings in every department over the course of a 2- week period. In his meeting with the prep department on June 15, a number of technical work problems arising from conditions in the new premises, such as the'window light and placement- of an exhaust fan, were reviewed with him by the employees. There then ensued a general discussion of the amount of work that was being sent out of the plant. Joseph Dierna asked why' Respondent was sending out as much work as it was. . . The question was not:an unreasonable one, for staff in the prep department had increased from 9 to 18 employ- ees and a- great deal of new equipment had been ac- quired. Confort's -explanation was -that keeping every- thing in the shop would make, it impossible to meet cus- tomer's required delivery dates. -However, he expressly promised that he would not .contract out any work, if he possiblty could help: it, taking due -cognizance'of outside factors such as the customers' requirements and Con- fort's ability to keep the presses running and stay compe- tive, and of inside factors such as the fact that Respond- ent did not- do certain types of work itself. In addition, the prep department- foreman, George-Von Erden; prom- ised,to try to distribute the overtime more equitably 'be- tween 'the day and night shifts, making allowances 'for the different preferences among the men respecting over- time work. - - - - Dierna quoted-Confort as follows: - -' And John Confort said that with the -investment he made- in the equipment and the, fact that the plant has been updated, his department had been updated, that no work would be going out. That whatever happened in the past is the past, and that the only reason any job would leave our department would be if we cannot physically get that job done by the delivery date - - Iannuzzi testified that Confort indicated that he :had not been aware that work was going out that could,have handled in • the -department and promised that work would stay in the department unless they could not meet delivery dates. Thereafter, subcontracting; of stripping work and platemaking decreased and overtime increased. , It is clear that after the meeting some work continued to be subcontracted out, but the volume of subcontracted work fell from $3 million in 1980 (the year in which the Company, moved to new `premises)' to 'a total of $75,000 'fo'r • the entire year 1981.• Dierna- observed that' subcon- tracted ' work was "reduced to nett • to nothing," 'the number of opportunities to work overtime and the amount of overtime worked increased. greatly. In Janu- aiy 1982, the -Regional Director ordered an election. Overtime almost came, to a -halt in the second half of Jan- 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uary. At the same time, Dierna observed that work was starting to come in from the outside again, meaning that it was being subcontracted out again . There was a clear inverse relationship between the volume of work being sent out and the volume of overtime . At the same time, the overall volume of work in the department dropped to the point where some men were forced to take their fourth week's vacation. "Discretionary weeks" are the last week of an employ- ee's accumulated leave, which he is required to take when work is slow . The purpose is to avoid layoffs during slow periods . If an employee had 4 weeks' leave accumulated, the fourth week is the discretionary - week; if he has 3 weeks' leave accumulated, it is the third week. The practice with respect to the scheduling-of en- forced leave was'that, when the shop was slow, leave would be scheduled a day or two in advance. A man would normally be told at the end of the week that he would be off the following week. During this period, Von Erden did -some work in the stripping department and, according to Dierna , the pro- duction department closed up and "[c]ame into our de- partment, and took over and ran the department." Von Erden having taken 2 _ days off because work was slow, Dierna came in assuming that he, as assistant foreman, would run the prep department, only to find that Paul Russo was bringing in and assigning the work directly to the men, dealing directly. with the cameraman and strip- pers. During January and February 1982, whenever there was a man on vacation , Von Erden took over his posi- tion for a good part of the day. Prior to , that time, Von Erden had never taken over a complete job because he had too many other `things -to do; at best, he might get involved in a small bit of the work, such as cleaning a piece of film. Von Erden limited his involvment in the actual work so as not to take work away from the strip- pers. What began to happen in January was a complete reversal of policy. During this period, January to March 1982, an offset pressman was assigned to work in the stripping depart- ment. lannuzzi estimated that during the period between Confort's promise in June 1981 and January 1982, "roughly 10 per cent" of the work in the department was subcontracted out but from mid-January until the beginning of April 1982 roughly 50- percent of the work was sent out. The case against Respondent for allegedly increasing the amount of subcontracting in 1982 as the Local One campaign progressed depends on testimony by employ- ees who, lacking access to the company records, made the accusation. based on their general sense of the vari- ations in work volume in the plant at various- times. They based their opinion as to what was happening on the interrelated circumstances pertaining to the subcon- tracting, the volume of overtime, and the enforced use of discretionary vacation time. The General Counsel also sought to establish that there existed a• difference in quality of work done out- side, suggesting an ulterior-, motive for subcontracting. The chief-companies to whom work was sent were "Pea-, cock" and "Park Lane." It appears that the quality of their work has been uniform over a considerable period of time, but Dierna testified that in his opinion their work was "flimsy." However, his opinion is not suffi- cient to support an inference that Respondent had an ul- terior motive in sending the work to them, for nothing in the evidence, including Dierna's testimony, indicates that flimsiness was a qualitative defect which affected the final product or that there was any need for a particular grade of strength or durability. - The employees' testimony respecting the quantity- of work in-house, the- lack of necessity for subcontracting out work, and the lack of a lawful justification for the decline in the amount of overtime work all rest heavily on their personal observation of the amount of work in the plant an their subjective estimates of variations in their own- and'their colleagues' workloads. Their testimony about, the accumulation of flats for storage on a table in the prep department is illustrative. Whether made by the strippers themselves or made out side the plant, they were stored after use on a table in the prep department until the men had time to file them away. The prep department employees judged the number of flats being brought in from outside subcon- tractors on the basis of the height of the pile waiting to be filed. Iannuzzi's and Dierna's assertion that subcon- tracting increased in January, February, and March 1.982 was based entirely on the appearance of the stack of flats, not on any review of invoices or order tickets Dierna testified that the atmosphere in his department was such that every time a job came in all eyes were raised, and that when the strippers passed the pile of flats they looked at the tickets attached to them. That' does not supply numbers, however. The witnesses suggest that management encouraged examination of the tickets on the flats, Von Erden having expressly suggested . it to lannuzzi on one occasion. They were loosely stacked-' and easy to examine., - . Dierna testified that ' "Von_ Erden used to' aggravate the issue. Von Erden used to prey on the fact that the work was going out, like, look all you want, the jobs. are going to keep coming in. This is the remarks we used to get from Von Erden." .Though the strippers occasionally looked at the deliv- ery tickets attached to the flats, which were piled up loose and detached from each other,, they never took a physical count to see how many were there at any given time. Consequently, they were unable to say numerically how many flats came into the plant from outside during. those 3 months. The inference sought to be drawn,from this testimony is that management exerted ' pressure on_ the employees by, showing them that they were .losing work. • It means, little, however, in the absence of clear,proof that there was an increase in subcontracting which was not war- ranted by business exigencies. Dierna could not give_ rea- sonably precise comparative estimates of the volume of subcontracting between the period of January, February, and March 1982 and any other period. The only certain- ty he had .was that subcontracting during 'the critical` period exceeded that of July 1981 because in that earlier CONFORT & CO. period it had been "next to nothing." Flats were rarely brought in from the outside and, in his words, "We hardly seen a pile." Dierna was able to be reasonably certain , however, that subcontracting dropped after the June 15 meeting with confort because the inflow of jobs from outside was so sharply reduced that the use of the table for storage of the flats became unnecessary and it was removed. During this period, some people were let go and employ- ees with a fourth discretionary week were being told to take it. In other words , work generally was slow: the regular work volume dropped inside the shop as well. The utter failure of the General Counsel's witnesses to make any count of the pile of flats casts an aura of in- credibility over their contention regarding the increase in subcontracting . It also casts doubt upon other aspects of their testimony . For example, it demonstrates the lack of basis for Dierna's assertion that the size of the pile was not significantly augmented by flats which had merely been returned to the subcontractors for correction' Dierna further testified that he knew that none of the flats, which they had seen piled up in January , February,' and March 1982, had been shipped out for correction be- cause he went through them as they came back in;' in fact, he came in early before the start of his shift in order to examine them . If that ' is so, then obviously a count could easily have been taken. " The quality of•the evidence 'with respect to the - related factors of overtime and enforced discretionary leave is similarly weak. Specific data is lacking and subjective impressions underlie the whole case. I find no discernible basis in the testimony for any complaint respecting the implementation of the 'enforced leave policy . Dierna and Iann'uzii ,expressed the opinion that if work had not been "contracted out'there'would' have been enough work to keep , the men busy ' at. the. time they were being directed to take their discretionary weeks, but there is no specific tie-in to' any particular period of time . and an aura of vagueness; -which' was characteristic of "all of the testimony of the, General Counsel's witnesses, overhangs the contention Ai first, Dierna recalled that everybody was busy during Febru- ary 1982, but later he conceded that there :was , not enough work in January and February (both`mbnths) to' keep the men in the prep department busy; he professed to be unable to state the situation as of March. 'Iannuzzi testified that he took his fourth' vacation week in' the • first week of March 1982, 'at `a time' when = workZ was slow because so 'much had been subcontracted out;- though in the past,"^vhen work was `slow, `the Conipanyf had never sent work out except in case of an'emergeiicy.• Ai 'the tirrie'subcontracting; started ' td increase;' in' late January ' 82, other ' einployees in th'e depaitrherit •were''on enforced vaca'tioris (Iannuzzi heard `Von - Erden' telling bierna "and 'Drillias 'to take their discretibiiary - leave). (The records do not'show them-offon the'same •weeks.) The employee witnesses raise' a very; `substantial ques'- tion . If work was slow,'company 'practic'e was 'not, to' send out work . Subcontracting would be inconsistent with the requirement 'that discretionary leave -be taken,' since 'it would indicate that ' work was not slow. Records indicate worked as follows. 567 weeks in 1982. which were not Name Weeks 'Ending Aramati -None' Baranowski 2/4^ Cipriano 2/11 Corona 1/21 Croce None Cucuta.' i/7 , Davis 1/28 Dierna 3/4- Drillias j -,,1/28: lannuzzi 3/4 Mauro 1/21 Patrick 3/25 Schneider- None Silburn• .`• 3/4- . This This is a total of ,11 weeks, with • no- employee being out more that 1 week: Yet this was not a new ' or' unusual - situation,- for` Ian nuzzi conceded that in the 19 years he, worked - for Re spondent he ,had witnessed . many occasions when em- ployees ,were directed to take, their_ last week of vacation and that it is almost a_ yearly 'occurreuce: It is ' uncontro vertedly a. management decision: The off cial statement of company policy sets "forth,the governing,rule:,`; In case of vacation entitlement in excess of two` weeks; ;one' week of this time `may be'scheduled`at the company's 'discretionor paid in'cash. 'IDierna :explained'that •an'eriiployee'who'ha's worked=8•' years with the Company =is entitled 'to `4 week's' vacation, but with ' respect ' to the- fourth-'week,- inanagemerit • `ha`s r discretion to - when the ' employees' :can ° take `it-'or whether-he' will 'get: paid"foif it. 'An -eniployee''with 3 years with the' Company. is entitled td 3, weeks''•one 'of, which likewise falls into the discretionary category'The ' practice,_ when''the' department' was slow Ibii an'.overall basis, - was' to ` 'require' employees with-.4'weeks to -take' their fourth week; if necessary, employees with 3 weeks' were then required= to take 'their third ' week: -By`thus re- quiring the discretionary "1 week to ' be''used 'up i'n'that} ordei','. the workload was given 'a chance to' build -up. ' In each category, the employee with ,least 'seniority' would' be -the `first to 'be `required ' to use'-up hi§ `discretionary leave It did' not depend on the , particular job `held' by An", empl'oyee;' iti was- strictly'a"'matter oflhverse seniority within'tlie 4-week=and3-week-classes:". I fail ' to see ' that the actions' -taken`'by Respondent re= specting' enforced leave reflect anything other -•than busi ness considerations . Tlie'weeksiare spr'ead 'over'the entire' period: 1/2'1-2° 'emplo)(ees=nothing`;`subcont'racted in", . ' January '-'-4 flats` in December ., 1/7-1 employee-same: ' -' 1/28-2 employees-39- flats 'subcontracted' out. 2/4-1- employee-9 flats in" • February" in - first 2 relays: _ {..,. :ti•. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • 2/4-1 employee-nothing out since early Febru- ary 3/4-2 employees-nothing out -since 2/16, 4 flats out 3/2 3/25-1 employee-34 flats out in the preceding- 4 days On the question of overtime, the General Counsel was not able to pin the responsibility for overtime solely on the departmental foreman, rather than on the. confluence of a number of other factors, which made it difficult to credit the contention that the assignment of overtime was used as a weapon by Respondent For example, Joseph Dierna testified that the foreman in the prep department did not always consult with the production department to determine the priority nature of the work involved, and he would not concede that. consultation was a normal occurrence He asserted that the foreman made the decision as to which work would be put into an overtime status. At the same time, howev- er, he said that this did not occur in all cases because many times the overtime was created because of the large amount of work rather than because of any individ- ual job. He conceded that the necessity for overtime would depend on many different circumstances. Too much work in any one department would create a back- log. He testified that men would sometimes be put on overtime simply to get the work into the pressroom, even though work-in the plant generally might be slow The customer's identity could be a factor If they were busy, it would have a bearing on whether they would do overtime. He also conceded that a great deal of the deci- sion making about overtime involves the salesmen, since they are the persons who- come in and push the work, and that a salesman can also tell them not to do overtime on a job on which he wants to keep the cost down. Dierna ended up by conceding that the production de- partment plays a part in the determination of overtime. From there Dierna went to compare the role of the .pro- duction department to that of a foreman in determining when overtime would be done. Dierna based his testimony about the comparative amounts of overtime on his own experience. Overtime was more.or less evenly split up within the department. Dierna judged the amount of the overtime that other em- ployees were receiving in February, March, April, and May 1981 by the amount which he himself performed. Dierna testified to the amount of overtime being re- ceived- by strippers, platemakers, and camera people before and after their meeting with Confort on June 15, 1981, but he conceded that he did not know if the plate- makers and the cameraman received more. overtime in the second half of 1981 than they had received in March, April, and May 1981 or whether more overtime was re- ceived in January 1982 than in March and April 1982. He did not have the figures and conceded that he would only be guessing if he tried to answer such questions. On the basis of what he personally was doing and what he saw Drillias doing, and on the basis of his con- versations with people on the night shift, Dierna con- cluded that sometime in the early part of 1982 the total amount of overtime decreased. Overtime had been plen- tiful up to January 15, 1982 In support of the General Counsel's contention that the fluctuations in the overtime were by design, Dierna testified that there was a great difference in the amount of overtime between the last 6 months of 1981 as compared with the 6 months preced- ing the conference with John Confort on June 15, 1981. His certainty in this regard was wholly unsupported by any knowledge on his part respecting the actual number of hours involved, since he had no records available to him, except his own pay stubs, which he finally conced- ed were the sole source of his opinion. _ Dierna, Iannuzzi, and Drillias were the three strippers who worked during the daytime. An apprentice stripper named Croce also did stripping work during the period from September -to December 31, 1981. Dierna testified that he received more overtime than anyone else and the lannuzzi received the least amount of overtime. Croce, the apprentice, thus received more overtime than Ian- nuzzi. The initial impression of discrimination against lannuzzi is dispelled, however, by evidence that the im- balance in the quantity of overtime which was assigned resulted from circumstances wholly unrelated to Iannuz- zi's involvement in concerted protected activities. Ac- cording to Dierna, the procedure , for offering overtime to a stripper does not depend on seniority, but on the type of job-involved, and a stripper working on a par- ticular job that required overtime was normally left to complete it since he was familiar with the job. Dierna was sometimes asked to work overtime so that he could coordinate the work between the personnel of the day and night shifts when Von Erden was unavailable. On those occasions, he would work directly with the night- shift stepper. Furthermore, as the senior stripper, Dierna would pick up jobs that other men would not want. The other stripper; Drillias, rarely turned work down. Thus, Dierna, Croce, and Drillias would receive over- time work. lannuzzi, on the other hand, according to Dierna, turned down overtime work so frequently that it became routine to bypass him and give the work directly to someone who could be counted on to work overtime when asked, especially if more than a couple of hours' work was involved Salvatore Cipriano was an apprentice cameraman who furnished the rest of the testimony respecting the manip- ulation of overtime during this period. In the new prem- ises in Long Island City, there were two cameramen. The chief cameraman was Ronald Silburn, the daytime cameraman, who had been hired as a journeyman cam- eraman . Cipriano worked a shift form 2:30 to 10.45 p.m. during the period from September 1981 to the time he was laid off He began working as a cameraman only after the move, when new equipment permitted a greater volume of work to be done faster. His testimony respect- ing overtime was without probative value. about any point in the case. He suffered from an almost total failure of recall with respect to overtime worked by him during pertinent periods. He appeared to be completely unable to give any reliable information I found none of the testimony in support of this allega- tion of the complaint to be persuasive, and some of it was not material For example, Dierna testified that on CONFORT & CO March 10, 1982; though all the members of the prep de- partment were present and at'work, stripping work was given by Von Erden to a pressman who stripped three Western Electric jobs. No one else was brought in from any other department to do stripping work between Jan- uary 1 and May 1, 1982. The significance of this escapes me completely. No explanation of its relevancy is offered by the General Counsel other than an invitation to spec- ulate that the pressman worked in the stripping depart- ment for a grand total of 2 hours in order, to take work away, from strippers. In a similar vein, Cipriano testified that Von•Erden personally did stripping work, though he was the departmental foreman, during the period from January until May 1982. He did it approximately twice a week. However, Cipriano conceded that the amount of time Von Erden devoted - to stripping re- mained ' constant throughout the period form August 1981 through May 1982. In effect, therefore, there was no change in Von Erden's normal practice. It is noteworthy that the General Counsel's witnesses gave a great deal of testimony which supported Re- spondent's 'position on important points. For example, Dierna corroborated Respondent's contention that the men were offered overtime work when it was available and that at least part-of the reduction in the amount of overtime was attributable to the employees' refusal to accept it. Dierna testified that in February 1982 they ac- cepted overtime only on rare occasions. He conceded that in February and March 1982 both he and Drillias (whom he had said never turned it down) were offered overtime and turned it down. Memoranda in Respond- ent's files establish that Russo and Von Erden offered overtime to employees and were turned down on Febru- ary 18, 23, and 24 and on March 1, 3, and 11, 1982, the men offering excuses that they were sick or had to have work done on their cars. Cipriano turned down overtime work March 5 and 10. Overtime work was available and was accepted by members of the department on March 3, 5, 8, 9, 10, 11, and 16. If Dierna and Cipriano had any success at all in creat- ing an impression of manipulation of overtime by Re- spondent, it was dispelled by the testimony of John Con- fort and Vincent Chirico, the president -and treasurer of Respondent. The impression left by their testimony is that all of the complaints of the employees are unfound- ed when analyzed against the practical operations of the business. Thus, Confort noted that usually there would be less overtime in July and August than in May simply because the summer "has traditionally been relatively slow." The months of September, October, and Novem- ber are busy months in which there is normally more overtime. Confort testified that in 1981, during those months, the amount of overtime increased because the Company had more business that required meeting dead- lines and, though" a great deal of the work was done in the shop, Respondent continued to send work outside throughout the period to meet the needs of the jobs in an economical fashion. On the other hand, the months of January through April were traditionally slow months. (Iannuzzi disputed that testimony by Confort, but solely on the basis of his "19 years of experience with the com- pany." I cannot credit his testimony on that basis, but I 569 note that on that basis Confort's testimony is entitled at least to equal weight. Moreover, Confort has access to the company records.) With reference to the enforced taking of the discre- tionary weeks, Chirico testified that employees were re- quired to take discretionary weeks in 1980, 1981, and 1982. About 70 discretionary weeks were taken in 1981. In 1982, the number was much higher. As of December 13, 1982, the date on 'which he testified about that matter, over 250 discretionary weeks had been taken in that`calender year. Chinco attributed the increase to the work flow in 1982, noting that there had been a drastic change in the way the work was -covered and in the number of rush jobs handled by the Company. Chirico conceded that during 1982, while all of these discretionary weeks were being taken by the employees, there was overtime in the shop and work was being sub- contracted out. He explained that anomaly by the fact that an employee is generally not directed to take a dis- cretionary week until the last possible moment, when management thinks it knows what the workload is going to be during the following week, but frequently manage- ment guesses wrong. There is an element of unpredict- ability in the business. In January, there was less than the normal amount of work in the plant, and discretionary weeks were accord- ingly directed to be taken by several employees in the prep department in January. Chirico pointed out that all of the work sent out in January was contracted out in the last 4 days of the month because in the fourth week of January Respondent was suddenly overwhelmed with new rush work. Delivery dates could not be met without overtime in the shop and subcontracting out some of the work. Of the gross amount of $6700 in work contracted out in January, 60 percent or $4500 was involved in one job of the Equitable Life Insurance Company which had a startup date of January 28 and a delivery date of Feb- ruary 9. The job was so urgent that the customer waived the blueprints; the job was so big that two subcontrac- tors shared the job. Chirico was able to testify authorita- tively and in great detail about the job because he him- self had been the salesman and it was his account. He testified that the most expensive parts of the operation were done in-plant, but the preliminary work was sent out in order to keep everything running in the regular pipeline. I am satisfied with Chirico's testimony that the job was subcontracted out because of the requirements of the job itself rather than for any other reason. As he stated, if the job had been done in the shop it could not have been completed by the required delivery date be- cause of the time that would have been required in the prep department in terms of actual man-hours, the pend- ency of other work in the shop, and the dislocation of the normal workload that would have resulted. The job involved 115 plates. By sending it out, Respondent was able to send an increased number of plates into the press- room -without delay, keeping more than one press busy and getting the job into the bindery faster Chirico testified that work fluctuations are such that he has never seen a "normal" amount of work in the prep department, in the sense of there being no necessity 570 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD for enforced leave, overtime, or subcontracting out of work. -I credit his testimony in this regard. The knowledge of the employee witnesses respecting the volume of subcontracting and the number of hours of overtime at pertinent periods is understandably deficient, but their senses did not entirely mislead them. Respond- ent's records show an immense reduction in overtime during the first quarter of 1982 and, interestingly, despite Confort's and Chirico's testimony that the first quarter of the year is usually slow, they show a volume of, overtime for that quarter in 1981-which cannot be excluded from . consideration. The records document the reduction in overtime during the period from the week ending January .28, 1982, through the week ending March 4, 1982. In 1981 and 1982 the overtime hours worked by employees em- ployed in the first quarter of both years had been as fol- lows:' 1981 1982 Monthly Period ,Total- Total Monthly' Period Total • Total Baranowski Jan. 0 7.50 Feb. '0 Mar. 0 11.50 Cipriano 'Jan. 0' 0 Feb. 16 0 Mar 11.50 27.50 0 Corona Jan 4.25 26.50 'Feb..'; 22 3.25 Mar. ' 24.50 . . 50.75 13.25 42.75 Croce Jan. 11.50 15.25 Feb. 17.50 5.50 Mar. 32 25 61.25 14.75 30.50 Cucuta ,Jan: ,5, . • 4.75 Feb.' 15.50 '1.75 - Mar. 16 36.50 13 , . 19.50 Davis, Dexter Jan. , , . • 8 10.25 Feb. 17.50 .50 Mar. 25.50 51 12.75 23.50 Dierna Jan. 8.75 15.75 Feb. 45.25 0 - Mar. 42.75 -96.75 13 - 28.75 Drillias Jan 6.50•- 17.50 -Feb. - 1525 . 0 Mar. - 25.25 47- 19.75 37.25 Iannuzzi - Jan. 2.25 . 11 Feb. 525 0 Mar., 3.25 -19.75 0 11 Mauro - -,, Jan. . - • :,.150 .; . ' 1.75 _ ;,Feb.'. ; - . 22 . _; 2.25 Mar J • 9.50 33 ' 7.25 11.25 Silburn an. • .8 ,, 20.50 Feb ' - 7.25 21 Mar 2. - 17.25_• 16.08 75.58 ` 431.75-r , 1i . ='273.58 r^: Al Thesrecords show,,-without idoubt, ;that,alserious drop-; in- overtime took ;place; • but show: some 'other,' interesting facts as well. The reduction does not become-distinct until the week ending January 28. In the week ending January, 21, nine; employees worked .materially, more overtime hours than they. had in, the :week ending Janu- ary 14. In-the week ending January 28, three of the em- ployees who performed no overtime had performed none during the preceding week-or weeks, so there really was no change -in their situation. Four employees -worked overtime, though the rest did not, and one of those em- ployees had not worked overtime- at all for many weeks before. This seems to corroborate Respondent's argu- ment that- such work, when available, was being turned down by many employees. Five employees performed overtime, though not in a great amount,- throughout the entire slow period. Cipriano had not performed 1 minute of overtime-for' 8• consecutive weeks- preceding the week ending January 28, and had performed no overtime in 11 of the weeks between March and October 1981; this makes me reluctant to infer an unlawful action on the part of Respondent because he -performed none in the winter of 1982. In any event, everybody 'was back per- forming overtime during the week ending March 11. The sharpest reduction took place during a limited period of 6_ weeks in 1982 from the end of January until the middle of March. What was basically involved was the month of February. When the period is.viewed as a whole,, including all of January through March, we find that two employees, one . of whom was Iannuzzi, per- formed more overtime in 1982 than in 1981. Two others performed ,almost as much in 1982, as they had per- formed the year before. Only one employee, Cipriano, performed no overtime at all in, this period in 1982; I have already commented on the fact that there were long stretches ; of time when he did not perform over- time, and-the record shows that, he performed none at all in January 1981-Four of the -employees • who performed less overtime in 1982 did not have reductions which could fairly be described as elimination of their overtime. Corona and. Drillias had reductions, respectively of 16 percent and 21 percent; Cucuta and Croce had, respec- tively, reductions of 47 percent" and 50 percent. On a rel- ative basis, therefore, a large percentage of the employ- ees in the stripping department were still performing 'sub-' stantial amounts of overtime. ' ' The overall reduction of overtime of employees who had worked in both periods is thus not as severe as the General Counsel suggests. While it dropped to near zero - during February, over the course of the entire 3-month winter period the decrease, though substantial, cannot be characterized as an elimination of overtime. The total number of overtime hours worked in the period, January through February 1982,by`the employees who had held - similar positions in 1§81,14 mounted to-63.3 percent of the previous year's total. In effect,, therefore, the reduction in overtime iii 1982, over the entire normally slow . period, - amounted to- a third of the previous year's overtime. It is interesting to note the difference in the experience of Silburn,, who, was the cameraman.. He performed rela- tively little overtime .in. 1981. He performed three times • as, much- in; January and February 1982 and substantially more in March 1982. The amount of his overtime does not, at all correlate to the overtime performed by. the strippers: ,It does seem to correlate to the subcontracting in:1982. What this suggests to me is that Chirico correct- CONFORT ;& CO. ly ascribed the subcontracting to the availability of lower prices outside the plant, a point I will get to shortly. , It is also noteworthy -that, though every employee worked fewer hours of overtime in. February 1982, this does not Bold true for January 1982 when the records disclose that most employees performed more overtime than they had in January of the year before. In some cases, the increase was very substantial. Superficially, this would seem to substantiate the General Counsel's contention, until it is realized that the only evidence in the record respecting market conditions is the testimony of Chirico. When the figure's are considered in the light of his testimony, it appears that it was the substantial in- crease in overtime which justified Respondent in taking advantage of the lower prices available outside the plant. The figures thus support Respondent's defense when: viewed in the light of business exigencies. The volume and the timing of the subcontracting is what fueled the suspicions of the General Counsel, for subcontracting dropped substantially in the period fol- lowing Confort's promise to reduce it, rose sharply fol- lowing, the damand of Local One for a meeting to nego-' tiate a collective-bargaining' agreement, and reached a level which was the highest since May 1981 during the supposedly slow period of January through March 1982. The General Counsel, in her posthearing brief, calculated the monthly quantity of subcontracting. She argued that. the figures substantiated the drop in the opportunity to work overtime hours, following the direction that an election be held, • and substantiated the increase in the amount of work subcontracted out of the department. The records unquestionably corroborate-the intuitive conclusions reached by the employees regarding the : drop in overtime and the increased subcontracting. What they do not do is support 'the General Counsel' s' allega- tion that the shift was unlawfully motivated. I think these records have to be reviewed against the back- ground of Chirico's unrebutted testimony. In addition to, his testimony respecting , the, general principles which, governed subcontracting and overtime, Chirico gave tes- timony of a very specific nature about 'what happened during the period from January through March 1982. In so testifying, he met the contentions of the ,General Counsel head on. He testified explicitly. that that period was 'abnormally slow throughout the industry in New, York City, even more so than "usual at that time of the year, and that it • was possible to buy work outside for $40 per plate as against in-plant production cost of a minimum of '$48. Accordingly, the work was sent out.' The Equitable Life Insurance Company job would have' entailed what he referred 'to as "$70-$75 man-hours." The parts of . the, job that would, have been" more expen . sive on the outside, the printing and biiiding, were done in the plant, while the plates were bought outside for $40. This testimony by Chirico is of critical importance.' Had -it been confined to generalizations, 'there might be' room-for argument, but he-became specific with' respect ' to the basis for the actual decisions made in the first quarter of 1982. His testimony was not controverted in any credible -fashion, though some of the employees' dis- puted that January through March was normally a slow. 571 period. The 1981 overtime figures, quoted above, do raise a question about-that, but there is no evidence to show whether the overtime figures for 1981 are normal, below normal, or above ;normal. I credit Chirico's testi- mony in this regard for* a number of reasons. To begin with, he impressed me as a credible witness by his de- meanor and the clarity and specificity of his testimony. Second, he was familiar with the actual records of the Company. Third, he knew the overall operation better than the employees could know it. Fourth, a contrary ar- gument would compel us to believe that Respondent's il- legal objectives drove it to subcontract work which could have been more cheaply produced inside the plant. Even the'General 'Counsel did not dare push that argu- ment, and Confort did not impress me as being the kind of business man who would permit himself to be driven to that kind of irrational behavior. Finally, the figures bear out a point that Chirico made respecting the sudden and unpredictable manner in which large jobs sometimes came in to the plant. Thus, among the jobs subcontract- ed, were numerous small jobs involving one or two plates, which might have been done in-plant, but can be believed to fall within Chirico's testimony that work out- side was cheaper throughout the period. The larger jobs, however, show up in an irregular pattern: Month, Flats 1981: May 125 June 29 July 4 August 0 September • 52 October 4 November 103 December 4 1982: January 161 February 147 - March 152 April 311 Comment 89 flats" in one job, divided between two subcontractors , 39 flats done for one customer Three jobs for different customers in- volved, respectively, 59, • 19, and 17 flats. One job involving 115 flats was divided between two subcontractors ; another job involved 33 flats. 2 jobs involved; respectively, 93 and 45 flats. Jobs done for 4 companies involved, re-- spectively, 29, 28, 22, and 20 flats. spread among 14 customers, for one of whom 204 flats and plates were done in the last 2 weeks of the month; 19 and 16 were done respectively for 2 customers. Looking at these figures, it may be argued that the. fluctuations seem to correlate to the critical date of June 15, when Confort had his meeting with the prep depart- ment ' and. to- January, When-the Regional Director or- dered an election. At the same time, however, it is obvi- ous that in the months in which the greatest amount of subcontracting was done, a small number of customers, usually one or two, account for a great proportion of the entire workload for the month. The pattern of workflow 572 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD is consistent with the pattern described by Chinco. Fur- thermore, the monthly pattern can as easily be seen as a refutation of the contention that it correlates with the Confort meeting and the Regional Director's order for an election for, while-the amount of- subcontracting was very small during the. summer,. following the meeting, and rose to 52 following the notification to the Company of the union campaign, the amount of subcontracting dropped markedly,(to four flats). in October. It rose in" November, but again,dropped.markedly (again to 4 flats) in, December. There is thus no consistent pattern and certainly no pattern consistent with the allegations of the complaints.. Finally, I note that-the inference, which the General Counsel sought to raise from the evidence, that Von Erden did some stripping work, as a means of reducing the prospects for overtime, is weakened by'Dierna's tes- timony_that sometimes,' 'when there was little supervisory work to be performed by him as assistant foreman in the prep department, or when Von Erden was out sick, he would do the' physical work available at -the stripping table. Dierna said''it was 'normal for Von Erden.to pitch in if somebody was out sick and there' was stripping work to be done: This'would gave unnecessary' overtime. Furthermore, according to ' Dierna's testimony, ' men are compelled to-take their'fourth vacation 'week every year, and at that time Von Erden worked on the stripping table because they were busy-'Thus; thefact that Von Erden or Dierna e might have. worked on the stripping table while employees. were, taking forced vacations in 1982 would not necessarily be attributable -to - the fact that union activity had occurred. %The •Company was not departing from past ,practice.. = - , On the entire-record, including the testimony and the records of Respondent,,it has been established that in the winter of 1982 there was a ,decline in overtime work-in the stripping department and a' substantial amount of sub- contracting,. which has; been explained by Respondent as due, to economic conditions in ,the market and to the somewhat unpredictable nature of Respondent's business. The General Counsel has not successfully related either the inception of the. period of decline of overtime or, its termination (or the inception; -of the period of normal overtime and .subcontracting) to the, campaign of Local One for recognition as the collective-bargaining repre- sentative in the lithographic unit. Accordingly, I find -that 'Respondent did not reduce employees' overtime or increase subcontracting of work because of their activities in support of Local One or be- cause they engaged in 'any; -other form, of :concerted pro- tected 'activity., - s - 2. More onerous working conditions-October 1981 and'February1982' --The complaint's' allege that' more'onerous'working'con- ditio _ ns' were` imposed do 'the =empl'oyees` about October ' 1981 ' and' February.-1982 =and , tliaf :Respondent; acting -thioiigh- its `foremen Von-Eiden, Caputo, and = Vitale, began a course of action in that respect immediately after Respondent became aware, in September 1981, that Local One was attempting to organize'its 'employees and that Ronald Iannuzzi and Salvatore Cipriano were the in-plant committee designated by the Union to conduct its organizing activities. I have reviewed at length the circumstances of the long list of dismal incidents described by the General 'Counsel's witnesses and I • utterly fail to perceive any re spect in' which Respondent's supervisory employees may reasonably be said to have acted repressively in imposing onerous' working conditions in violation of Section 8(a)(1) and (3) of the Act. The principal means by which working conditions were allegedly made more onerous were the curtailment of -telephone privileges, restriction of conversations be- tween employees, institution: of a practice of following employees around and staring at them, and curtailment of' overtime. Iannuzzi testified that Von Erden showed him a list of what lannuzzi termed "do's and don'ts"- activities which employees could engage in and activi- ties, such as conversations on working time, which could be curtailed by the supervisory personnel. - Iannuzzi ad- mitted he never actually read the list, but insisted that he spotted his name and Salvatore Cipriano's name `on it and that it appeared to come from Respondent's attor- ney. a' Curtailment of telephone calls Iannuzzi and Dierna testified that privileges- which they normally enjoyed with respect to use of telephones " at the plant were curtailed . during the union organiza- tional drive. I find, however, that 'their testimony re- specting, such, curtailment contains indications that mat- ters were not, in fact, substantially changed from what they had always been and that, to 'the extent' 'that changes were made, they were made for sound business reasons having no'apparent connection to the Local One campaign Thus, Iannuzzi testified that 'he had, formerly been al- lowed 'to make telephone calls on a 'pay telephone and had been allowed to receive calls on the private compa- ny telephone,` but conceded an important qualification to the effect that he had these privileges "as long as I didn't abuse it, didn't stay on the phone very long." The only change 'instituted by Respondent was that, formerly . when personal calls came in, Von Erden would pick up the -telephone, but now a system of notes from the switchboard has been substituted. In addition, since Sep- •tember 1981, Von Erden has told Iannuzzi on two or three occasions to cut short conversations, he was having at -the' pay 'telephone. lannuzzi asserted that nothing like that 'ever happened before 'the organizing campaign. A further restriction was imposed in December '1981 when -Von- Erden told Iannuzzi that he 'could only receive calls -:on' the telephones in the stripping department if -they were ; emergency 'calls. In that month, Von Erden' also curtailed"a call, lanhuzzi was 'making at the-pay tele- phone; telling him -to cut it short and get back to work. For proof that this was a discriminatory action direct- ' ed agaiiisf him, lannuzzi points to the fact' that calls to other people continued to be put through He knew this because he telephoned the shop from outside one'night in.-March-1982 and asked to speak to Frank 'Vitale. - Caputo, the night supervisor, picked up the telephone CONFORT &,,CO., and put the call right through to Vitale without asking who was on the line or the nature of the business. Thus, unscreened calls were being put through, except to Ian- nuzzi. lannuzzi's interpretation of the change in practice was supported by Joseph Dierna, who asserted that the prac- tice of giving people notes, indicating that they had had a telephone call -instead of calling them to the telephone was something altogether new,. and dated from the elec- tion -or the start of the union campaign. Those two events, however, were '6 months apart. He cited an in- stance-of repression in January or,February 1982 when he made a call from the pay telephone, and he saw the. press foreman pick up the telephone in the press. depart-- ment, .whereupon within a minute Von Erden came out to the pay telephone,. looked at his watch with an exag- gerated gesture as he passed Dierna, gave Dierna' a stud-' ied look, and then went into the Wren's room; he emerged 2 minutes later, looked at his watch again, and walked past Dierna. Dierna fixed the time as after January 15 be- cause that was a time of heightened tension when things were starting to happen; such 'as the demands that con- versation cease and the change from calling people 'to the telephone to giving them messages from the switch- board operator The same thing happened on a* ' second occasion, except that Von Erden walked. into the press department. , I find nothing inherently violative of employees' rights in any of the practices of Respondent which are cited by Iannuzzi and Dierna in connection with use of-the tele- phones. There is no evidence of any connection to the union organizational drive other than-the timing of the changes in practice. The rest of- the testimony given by them indicates the lack of substance to the charges: Ian- nuzzi, for example, admitted that during a short period of time when' he took Vitale's place as leadman- while Vitale was away, he received business telephone-,calls on the extensions in the prep department which--were not screened in any fashion, being presumed .to- be business calls. He insisted that all the calls he, received originated within the, shop, but conceded that whoever :picked' up the telephone. had no way of knowing that. , - lannuzzi also made it clear that Caputo. followed : a ,dual system of notifying lannuzzi of his calls. when' it was a .business call, Caputo turned the telephone over to him; when it was not a business call, even-if lannuzzi was standing right there, Caputo would take the message - and give lannuzzi a note to call the person back. Noth- ing. was done -to stop lannuzzi from making the return call from the pay -telephone .located- just (outside, the offset pressroom. , - Dierna also gave additional testimony, which consider- ably -diminished • the force of the General Counsel's alle- gation. Though Von Erden conspicuously .studied. his watch,as ,he passed Dierna at -the pay telephone, Dierna conceded that Von Erden said nothing. to him, made-no, change in his work assignment,. and took. no action against, him of any-kind ,Dierna insisted tht, it made him feel uncomfortable, which may have been Von Erden's lawful intention. Furthermore, the fact that Von Erden was walking past ,the pay telephone did not necessarily mean that he was doing so for the purpose,of exerting 573 pressure on Dierna, for all the prep department person- nel used-the toilet where. the pay telephone was located and the stripping department foreman has legitimate busi- ness reasons for going to the pressroom -frequently during the normal business day. On one of the occasions when Von Erden passed -Dierna while he was using the pay telephone, -Von Eiden was carrying art work into the pressroom. A 'discrepancy between Dierna's testimony and that of Iannuzzi should be ' noted . lannuzzi implied that employ- ees in the stripping department were barred from making outgoing calls on the company telephone, though they could receive emergency calls. Dierna testified that em- ployees. were still permitted to use the company tele- phone in two situations: to make emergency calls and to notify their families that they were going to work over- time and would be home late. he conceded, as lannuzzi had, that in this respect company practice actually re- mained'unchanged. Moreover, Dierna did not attach the same significance to the change in the system of report- ing incoming personal calls that lannuzzi did, conceding that the only difference was the couple of minutes lost because a slip was- written, up and brought to the depart- ment instead of the call being put through to the employ- ee. The only case of late, delivery of a message that he .knew of clearly resulted from a mistake on the part of the switchboard operator... Speaking of switchboards; a concession by Iannuzzi in effect justifies Respondent's change of policy with re- spect'tor.the'telephone. Iannuzzi conceded that the tele- x phone on Caputo's desk was the main company tele- phone at night. While he would not concede that his use of that telephone would have blocked calls from coming in to the Company, it :is' obvious that it would have im- peded conduct of business. ' ( -On the 'testimony of• Iannuzzi and Dierna, I am unable to find. any. violation ' f'the A'ct. Devoting time'on the fob; to making `and receiving personal- telephone calls is not one-of the rights protected by Section' 7 of the'Act. No claim is made that there was any interference . with use'of,telephones for any protected activity. The actions of Respondent 'seem, altogether reasonable- to me, espe- cially 4 hen 'considered in the light of testimony by Orbine 'respecting problems with employees' excessive use of the company.telephone for unauthorized purposes. O'rbine'testifie'd that-Hanlon asked him to investigate the use, of telephones by employees as a result of a sharp. in- crease in the Company's telephone bills. One`'of the ef- fects 'of the 'investigation was a disciplinary warning -to Salvatore Cipriano, which is discussed separately b. Restriction of conversation lannuzzi, Dierna, and; Cipriano. complained.that unlaw- ful restrictions -were -placed -upon. their conversations, in the plant ; They. assert: that,: since the tables in, the strip- ping ' department , are so -arranged that at,each table ; two strippers face each other, conversation at the workplace is almost , inevitable, but employees' right to converse was - restricted ,there as well- as at other places in - the plant. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dierna explained why conversation between the strip- pers was normal. The job is a tedious one. The tables are situated face to face. The men work with their hands. Conversation is an inevitable concomitant of this type of work, and it had been - previously allowed, with the rec- ognized limitation that it was not to get out of hand. Cipriano also testified that prior -to September 1981 the practice in the stripping department with respect to em- ployees talking during working time was "pretty liberal." At the same time, he conceded an important qualifica- tion: they "could talk as long as we didn't abuse it." Cipriano was much exercised by an incident in Octo- ber 1981 , which he asserted was without , precedent, in which Von Erden came out of the stripping department and broke up a conversation which he was having at the timeclock with several employees , from other depart- ments. Von Erden told him to get back inside the strip- ping department. On the way back to the prep depart- ment, Cipriano demanded to know why he was not per- mitted to talk while the others were . Von Erden told him that he was not the foreman of the other employees, but in his department he intended to follow guidelines set forth in some papers, which he held up for Cipriano to see. - The burden of Cipriano's complaint appears to be that management was zeroing in on him and lannuzzi, but his testimony proves only that employees in other depart-, ments were allowed to converse while he had to do what he was being paid to do. He"conceded these were employees in other departments. He also complaiiied that Charles Caputo seemed to be making notes about con- versations between Cipriano and Cipriano 's brother, who, also worked in the plant and with, whom he customarily spoke at the end of his shift. I regard Cipriano's testimony as insubstantial. He freely conceded that the interrupted conversations had been with employees in other departments on working time, which means 'that he was not where he was sup- posed to be during his working time. Cipriano asserted that Von Erden was acting pursuant to a list of permissi- ble and impermissible actions which Respondent supplied to him. I have a great deal of difficulty crediting Ci- priano's testimony that he-read the new guidelines which were given to Von Erden . He conceded that he did not read them when they were on Von.Erden's desk. Von Erden picked them up and held them in his - hand. He was 2 feet away from Cipriano and held the papers with the printed . side toward himself., Cipriano conceded that but, nevertheless; insisted that he had been able to read what was on the papers. It turned out, however, that he did not remember the size of the type on the papers, whether it was normal typewriting size, or any details which would have lent credence to his account. Dierna testified that h'e ' could not remember_ any re- strictions on employees' conversations prior ' to- 1981; but he became a'ware ' of a change in policy in- February 1982, when Von Erden stopped a. conversation' between him and Iannuzzi and stated that he was doing so pursuant to company policy. Von Erden's statement was not, in Dierna's-view, pro- voked by anything about that- specific conversation but was a deliberate attempt 'by Respondent to pressure the employees . Dierna goes beyond Cipriano in noting dis- parate treatment of strippers by Von 'Eiden. He pointed to Von Erden's overlooking the presence of the camera- man, Silburn, in the work area of Dexter Davis , the pla- temaker; night personnel coming in' before ` the start of their shift and engaging in conversation with daytime strippers who were ' supposed to be working; and Von Erden engaging in conversation with Drillias and walk- ing right past people engaged in conversation without re- action, while he would literally put his head in his hands and stare at Dierna and Iannuzzi if he discovered them talking. Like Cipriano, Dierna observed employees in other departments engaging in conversations on-noinbusi- ness matters without interference from management. lannuzzi's testimony was that prior to the organizing campaign, there had never been a problem with respect to employees' conversations during working time; if it became 'excessive, Von 'Erden would gently prod the group for "a little more work, a little less talking." - There was a great deal of talk at a fairly steady level regarding the union campaign which increased after the petition was filed. - lannuzzi asserted that, prior to the campaign, he was not.obstructed from leaving his department , whether to go to the toilet, get a drink of water, or perform the duties of his job, even when that required walking through other departments . He sometimes went to the cutting machine to - make blueprints without having to ask. for permission - to leave the stripping department. Along the way .he might have some conversation with- other employees of a social nature. Things began to change in the, middle of October 1981, when .Von Erden showed him the list of "do's and don'ts." Von Erden called his attention to a .section which stated that em- ployees did not have to be allowed to speak to each other or to leave their departments on working time. Iannuzzi's testimony about specific instances when his conversations were curtailed was not impressive. - George Von Erden stopped lannuzzi from talking to ` Sol Fontana, a letter pressman, in the pressroom on one occasion. Iannuzzi could only place the- time as during the year between September 1981 and September '1982. Von Erden asked him what. he was doing out in the pressroom and told him to return to work . lannuzzi as- serted that he could not remember the subject matter of the conversation, notwithstanding which he insisted that they were not talking about Local One or 'the Confort Employees Association. (Iannuzzi conceded . that when he was soliciting signatures for Local One he sometimes did it in the plant.) On, one occasion in December 1981 when Iannuzzi was working at night he was stopped from talking to a cutter who was •a friend of his and who worked on the third floor. The foreman of that department, Spencer- Sil- vers,' gave him a strong hint to leave the department. His friend was working at the time. ' - The only other times when he was stopped from, talk- ing involved instances in the prep department itself. During the period from September 1981 to September 1982, besides being stopped from talking to Dierna, Ian- nuzzi was stopped from having conversations ' with Dril- I CONFORT & CO. has (stripper), Croce (apprentice stripper and plate-, maker), Davis (platemaker), Silburn (cameraman), and Mauro (stripper). Although Iannuzzi was extremely vague regarding the timing of these events, it is apparent that they occurred when Iannuzzi was clearly impeding the progress of the Company's business. His conversation with Dexter Davis, for example, appears to have occurred in Davis' work area while Davis was standing at.his table waiting for the burning light to go out.-Davis was supposed to be watching the machine, but he was not' watching it when Von Erden walked in and interrupted them. Ian- nuzzi, of course, was away from his' own, work station. In the instance in the,cutting room,, it is to be noted that it was not Von Erden, but the foreman of another de- partment who curbed Iannuzzi's conversation, with obvi- ous justification. lannuzzi explained the situation with Davis by assert- ing that he was coming into the department and was stopped by Davis, who asked him a question about a job he was doing. Yet when -Von Erden came by and asked what the problem was, Iannuzzi said that there was no problem and returned to his own work area. In this in- stance, Iannuzzi was away from `his own work area and, if he is to be believed, was giving instruction to a 'plate-•` maker ' which probably more appropriately should have been provided by the. foreman. The problem certainly should been disclosed to Von Erden when he asked about it. _ Iannuzzi stated that he was stopped from talking to - Drillias in-March 1982. Drillias' worktable is just behind lannuzzi's, so that they work back to back. They were standing at their respective worktables during working time and talking to each other. Iannuzzi'turned around to', talk to Drillias. The subject matter of- the conversation was the slowdown of work in the department and the fact that work was still going out. Von Erden-came over and ordered them back to work. It would appear : that Von Erden interrupted a conversation on a -matter not • . ,directly connected with their work which was going on during working time in a working area. Iannuzzi recalled two instances of interrupted convey sations with Vincent Croce. In the late winter-,> afterr, the, election, Iannuzzi left his own work unattended and: was talking to Croce, at Croce's worktable, which was two,, tables away from-the one at which lannuzzi worked. Ian nuzzi walked over to talk to Croce, who had called: him, ostensibly because he needed something explained-.to him (he. did not ask the person working at. the .table-between ` them). Von Erden got up from, his desk, 'which"was4,20 feet away, and asked what the problem was: Iannuzzi• , told him he, was explaining something, to, Croce ; and, re- turned to. his own area, Iannuzzi's explanation for,, this.. departure from the, concededly, normal ,..practice 4,,of, having the, foreman, provide instruction was that some,,-_ times the. apprentice does not want ,to' go to the foreman; with so many questions and, in' any event,. Von Erden never made it. explicit that the apprentices should discuss their problems only with him. I find this kind of poten- tially insubordinate rationale wholly inadequate justifica- tion for lannuzzi's action and certainly. not. basis. foii.com ; plaint-against the foreman. 575 A second occasion-when Von Erden stopped lannuzzi from talking to Croce occurred , in similar circumstances in late winter or-early spring,, not too-long after the first incident. lannuzzi left his own work to go over and talk to Croce,. who assertedly needed help. (from. anyone but the foreman). , During the same time period there was one-incident in which Von Erden -stopped. Iannuzzi.from, talking to Sil- burn, the cameraman: The camera room is in a' separate open area of the prep department and about 25 feet away from lannuzzi's stripping'=table. Iannuzzi testified that he went over to get his negatives to do his job. Sometimes when a duplicate negative.is needed, the negative is run though the-processor and.in 6 minutes the piece of film comes through. It is normal to wait around for the nega- tive to come through the machine. He stood there • talk- ing to' Silburn while he was waiting for it. lannuzzi con- ceded,, under examination ,by Respondent's counsel, 'that . on a number of occasions when he waited for•a• negative Von Erden did not stop, him from'-talking to Silburn: -It - happened only on this 'one occasion. Von Erden • came over and' asked what • the problem' was. When Iannuzzi told him that he was 'waiting for the .negatives to come out, Von Erden said nothing and walked away. Iannuzzi _ then' went back to his, work 'area. The;situation^ does -not , seem to' me to involve' any coercion-or curtailment- of- conversation. Mauro worked dn'the night shift' at'the stripping table next •tb Iannuzzi's table.' One afternoon, `just after' the election; he came'in•aboiit 3 o'clock in the"afternoon and stood next to Iannuzzi's' working area: ' Iannuzzi;' whose -- shift ends- at' 3:45 p.m:; was working `at the;'time.'Von ' Erden, who supervises' the bight shift in the prep''depart- ment until he goes, home at 5 or-6 p,'ni., was`athis'desk and;" of -course, was aware-'tliat =Mauro' was not yet' on duty.' He"came`"over ands toldMauro'that'. Iannuzzi was still '`wo'rking and, that ,they should break it 'up'and"Mauro left: ^- Iannuz`zi's testimony- about the conversations`inter`rupt-' ed I by Von Erden establishes ` no "violation" of the Act--', The, character of Von' Erden' s' conduct is 'illustrated by': Iannuzii's testimony that when Von'Erden came over'to` him-arid , Dierna he would just tell us like, let's have a little hit;,'more work;_a little less' talking." He -did not recall how many times this happened, ' but it 'happened anytime: Von- Erden saw Iannuzzi talking to Dierria. Ian- nuzzi thought it happened, three : times . in the 'mon`th of October] ;1981`. 'All of, these instances' occurred 'while `they ' were at,their worktables. lannuzzi further conceded that Von Erden's statement to;talk _41ess-and. work' more, was something which he said "overall to everyone, in the, department:„It, was snot, di rected personally, at me Iannuzzif,conceded ,that; Von Erden`. made, this` statement to' everyone prior to thertime 53, . Local One filed its..petition,and that he had, ,heaidwhim speak:torotlier people about excessitalking, h . _,, It. otigh` he had. riot spoken- rectly^,to,Iannuziiabout it.. He had spoken to other people individually and he had spoken to the prep department in general. This concession leaves very little _,lustification.forIannuzzi's charge that he^was , being singled out far, repressive ;treatment: `Nor. do I 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD think Iannuzzi's charge,is supported by the fact that in October 1981 Von Erden showed him the list of "do's and don'ts." Iannuzzi read only one paragraph, which stated that the foreman could stop him from talking to other employees- during. work hours. Von Erden's state- ment that he was going to abide by those instructions is not violative of the Act. - !- When asked to name the other employees who walked around talking, but were not stopped by Von •Erden, Ian- nuzzi named Frank' Vitale, John Searle, and Sal Fontana. Their situations, however, were not at all comparable to his own. Vitale was the leadman at night, whose job was to pass orders on to other employees. Searle was a press- man; who spent his time in the press department. Ian- nuzzi conceded he did not know if Searle was talking about business problems, such as specific color of ink, with any other pressmen. Fontana is in the letterpress de- partment, which is physically separated from the prep department. Moreover, though lannuzzi observed Fon- tana talking to many people, he did ' not hear what he was saying, and, he conceded that Fontana-would have had occasion to. discuss business problems. with other pressmen. . It is understandable, therefore, that when -Iannuzzi filed a .written protest with Orbine, the vice president, about the fact that. Von' Erden was permitting other people to engage in conversations during working time, and Orbine invited him to disclose the names of any per- sons who . were engaging in such activities, Iannuzzi never responded. I do not credit lannuzzi's testimony that. he gave the names of people who were violating company rules to his foreman for transmittal to Orbine and that, though he saw Orbine on a daily basis, he never asked Orbine,if he had received the names. In his testimony in these proceedings,-he only named three per- sons, of whom one was a leadman, two were in different departments,, and none was' talking within . Iannuzzi's range of hearing and, for all he knew, was presumably attending to business. I find that the-only conversations which Iannuzzi was stopped from holding were those which had no relation- ship to the business lie- was supposed to be taking care of. I perceive no violation of the Act in_any of the in- stances which he cited as examples of Respondent's re- pressive and illegal behavior. - c. Following and staring . Cipriano testified that, commencing in September 1981, Management Representatives - Charles Caputo and Frank Vitale were in the toilet area all . the time, watch- ing him. This-was a practice they had never before ,fol- lowed. When they saw him walking to the bathroom, they walked! in also. One,of them would follow him. However, when asked whether they used the facilities, he said he was busy and really did not know. Later, Ci- priano changed his testimony ' and testified that this prac- tice started around Christmas time 1981, and he conced- ed that nobody followed him in October' and November 1981. He insisted, however, that Frank Vitale followed him into the toilet on an average'of three times a week. His testimony on this point, as on all others respecting which he testified, was uncertain: Q. Did he [Vitale] go into the bathroom himself? A. Yes, he did. Q. And, did he stay there while you were in? A. Yes, he did. 'Q. Could you see what he was doing in the bath- room?-. A. No, I couldn't. Q. Where did he go in the bathroom? A. Washing his hands. Q. Pardon me? A. Wash his hands. Q. Just to wash his hands. JUDGE LAWRENCE: That is all he did? THE WITNESS: He might have done more. JUDGE LAWRENCE: You didn 't notice? THE WITNESS: No. I have noted that Vitale was the nightime leadman in the stripping department. He was not a supervisor within the meaning of Section 2(11)' of the Act. This is a fact which' certainly was known to lannuzzi and Cipriano. When lannuzzi was asked to fill in for Vitale, he was fill- ing in for the lead stripper. In fact, Iannuzzi questioned Caputo as to who would be in charge and was told by Caputo that Caputo was the immediate supervisor of the department and the rest of the plant. Caputo testified, "I try to get the message through to him that provided that he did everything on the schedule the way I- needed it done for the evening, I wouldn't say anything to him." Caputo went on to testify that he told Iannuzzi that if things did not go according to plan and the way he needed the work, he would take full charge of the de- partment "away from him and supervise it the way I wanted it" and that- would be done whether lannuzzi liked it or not. Von Erden testified that Frank Vitale was a stripper who cairies out the instructions that he, Von Erden, leaves with him. He would tell him to have par- ticular employees do certain jobs and describe what has to be done. Vitale is a stripper and also gives out .work to other strippers and platemakers and sees to it that the schedule that is'given to him is followed and is carried out into the evening . Vitale has no function in connec- tion with hiring and firing. Caputo was responsible for discipline on the night shift. Vitale has no authority to impose discipline. He is paid on an hourly basis. (Caputo is paid on a weekly basis.) Vitale receives payment for overtime (Caputo does not). Von Erden testified that he would `often alter the workflow and notify, Vitale about work priority, a deci- sion which Vitale,would never' make. Nevertheless Cipriano testified that at the time that he was hired (September 26, 1975) Von Erden told him that Vitale was to be his foreman: However, 'hen `pressed on 'cross-examination Cipriano admitted. 'that- he' did -not recall whether Von Erden actually used the word "fore- man." What happened was that he started at 1 o'clock in the afternoon an worked until 8:15 p.m., so Von Erden told him that, after the day shift ended at 4.15, he was to take orders from Frank Vitale. Actually, Dierna was the assistant foreman and was paid more than Vitale. He testified flatly that Vitale was not an assistant foreman . He was a stripper and he spent CONFORT & CO. 577 almost all of his time doing that work. Dierna testified that at night Vitale would concentrate on keeping the work flowing. Caputo would be in the pressroom, with occasional visits back to the prep department. Caputo would spend about 5 minutes an hour in the prep depart- ment while Vitale would be there all night. The fact that Orbine told lannuzzi that the department had grown and they had more presses at night, tying up Caputo, and expressed the opinion that it was time to elevate the job to a supervisory level and may have of- fered the job to lannuzzi does not mean that Vitale was already performing functions which raised the job to that level. Orbine testified that he was looking for a replace- ment for Vitale as leadman at_night. Iannuzzi certainly knew all of this because when Ian- nuzzi took' Vitale's place he performed the same func- tions as Vitale had done. In most cases the work assign- ments were determined by the day foreman and were just passed on by Vitale. I have gone at some length into the question of Vi- tale's status because it appears to me that not only has no unlawful conduct on his part been demonstrated by any credible evidence, but it has not been established that Respondent would be chargeable with such conduct had it been committed. Cipriano also complained that Charles Caputo seemed to be taking notes on his activities. Salvatore Cipriano would check with his brother Vin- cent every night to find out whether he was leaving at his regular time . Charles Caputo was present and able to observe these conversations. Though Caputo did not 'talk to him about it (nor did any other management repre= sentative), he wrote notes. Cipriano testified first that, prior to'January 1982, he had never seen Caputo writing notes. He noticed it for the first time when he was using the pay telephone on February 17. Then he said he first observed Caputo doing- it sometime ' after October 1981. The February 17 incident involved the fact that he was away from his work area to talk to an` operator at one of the presses for 'approximately 2 to '3 minutes and' was making a phone call when he should have been working. The operator was his brother Vincent Cipriano. This was his nightly check to see if his brother was leaving at his regular time: Cipriano testified that night-shift em- ployees are allowed to clock out 2 minutes earlier; it was his practice to use that time every evening to call home to ask his wife if she needed anything. He would then wait for-his brother who finished work at 11' o'clock or 10:58 p.m. Prior to February 17, 1982, he never saw management representatives in the offset department area where the pay telephone is located when he made' the call. - Iannuzzi testified first that his harassment started' m December 1981, and changed that to September 1981, at the time that he initiated the organizing campaign in the plant.. He was followed around wherever he went, whether it was to. the toilet or to another department on business: , - ` ' .." ' ' ' Right - after Respondent''received _a' letter from the Union designating lannuzzi and Salvatore Cipriano as the committee for Local One, Iannuzzi "noticed people were starting to follow me around." A vigil was' commenced and maintained by Von Erden, Charles Caputo, and two- employees. According to lannuzzi, Von Erden was con- stantly watching him and stopping him from talking to other people. On an occasion when he left the depart- ment to go to the toilet, Von Erden went in with him and came right back with him. At another pointfhe said Von Erden did not follow him in: "He constantly watched me at my work area, that I was not talking with the person across. from me That still. goes on today." According to Iannuzzi, Von Erden stared at him. Iannuzzi testified at length regarding the fact that he was followed around. He was followed by George Von Erden, Richard Watts, Charles Caputo, the night-shift foreman in the pressroom which is separated from the stripping department by a door and a wall, Spencer Silver, and the night foreman in the bindery on the third floor, Stanley Ruckenick. lannuzzi's working hours were 8 a.m. until 3:45 p.m. Caputo came in at 8 :45 p.m. on most occasions. He did, however, come in early on many occasions. lannuzzi had great difficulty fixing the time of any occurrences involving Caputo. He was sure it was after August and possibly early in 1982. In early 1982 Caputo worked the day shift for a period of time, at which time he watched lannuzzi. He did not follow him around but watched him , leaning over backwards in order to'see through his office window and he stared at lannuzzi on an occasion when lannuzzi 'was giving some- thing to the pressmen. Prior to September 1981, when lannuzzi had conversa- tions with pressmen in the press department while Caputo was in the-department, Caputo did not stare at him during those conversations. . Iannuzzi asserted that Von Erden followed him on an average of once a day. In Iannuzzi's own words, he "was constantly followed, if I'm not where I'm supposed to be." lannuzzi effectively fixed himself as being required to remain in the press department by testifying that an overwhelming percentage of his work involved stripping and opaquing., He insisted that at other times he had to make plates, make blueprints, and do filing. Filing in- volved less than 5 percent of his time; making plates in- volved 5 percent and platemaking was done in the prep department. Unquestionably most of his work required him to remain physically in _ the prep department and most of the time he had no business being anywhere else. He conceded that getting blueprints cut was a matter of only a few minutes. More importantly, he conceded that Von Erden never seemed to follow him when he was doing something, obviously in the course of .his duties, such as carrying paper, disposing of plates,' bringing a plate to a pressman, or fixing something already mounted on the press. Iannuzzi conceded that he knew of no oc- casion upon which Von Erden followed him while he was engaged in the work he'.vas`paid to do. He finally conceded that Von Erden followed him only two or three -times between September' 1981 and May 1982, maybe once'a month, but insisted that the staring was'a daily routine. One morning in February 1982, Von Eiden called Ian- nuzzi over when he came in to work and ordered him to cut out conversations with other.employees in the strip- 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping department and'not to leave his work area . lannuzzi noticed that nothing was done to curb other employees' conversation; when he had business in other departments, he saw employees there'talking and conversing- in the normal manner . In that same month, an incident 'oc- curred in which Von Erden preemptorily ' ordered Ian- niizzi to re'turri 'to the stripping department, interrupting a conversation with an employee of a different depart- ment. Iannuzzi, who worked for Respondent for almost 20 years, `asserted that these incidents were without precedent. Iannuzzi - asserted that the new restraints interfered even with business conversations. In addition, 'the fore- man stopped him from talking to' Dierna across the strip- ping table although the foreman had no idea what they were talking .about because he could not possibly have heard what they were saying.. Iannuzzi testified that he was stopped from talking with Dierna across the table on numerous occasions and was also stopped, from talking with him in the department even when they were away from. the worktable. It is apparent, however,,that the curbs imposed ,on Ian- nuzzi, Cipriano, and Dierna for the: most part affected conversations of a social , nature which- they were, carry- ing on when they-:should have been working and which seemed , to take an 'excessive:amount of time away, ffrom, • their work. This seems to have been -especially , true of Iannuzzi's conversations . outside; the 'stripping depart- ment. There ,seems to :have- been no operational necessity for -Iannuzzi to conduct extensive - conversations outside the stripping department .-'On cross-examination, lannuzzi admitted-that--he"Would have little occasion to discuss the . !work-with -the multilith operators : The plates -used by.the presses are made from- negatives which are produced- by the-camera- acid=-which are placed on a:stripping table'and stripped by w technician such -as, Iannuzzi;who normally neithermakes-the plate nor takes •it:out -to,the pressroom. The stripper- normally -turns the,processedcnegative:over 'to 'a platemaker . If a; problem' arises,-it is .usually a strip- ping - problem -but, in that event, the-pressroom' foreman comes''back land `confers' .with .the stripping , department -foremen.` If Iannuzzi wanted I to initiate a discussion re- specting a problem, - he would speak -to his own-:foreman, -'not to` the foreman in the - pressroom. =The foremen handle most of the problems between themselves. There are only"a small -number-of problems which would be handled "between Iannuzzi, -as stripper; rand ! someone- •in "the pressroom; -and =iiti-those -cases=the -foreman = of the -prep depai'tinent, would'send him over:- The- same proce- dure 'obtains in the''case 'ofthe web presses . Thus, aside from = cutting; wheni 'Iannuzzi would nohbally, approach the • cutter? directly, =any problems-he' had to -take- up--with another -departitient` would; i for - the most= =part-, be, taken %.u ptheieeafter-h' firsfbnsul`ted•his` own foreman. `=:: r 'Iannuzzr 'ezplained' `ttie 'rea`son -, for" "hi's `p'resence in"the pressroom on the'second fob r as the need •to-put the art- '"work' away, possibiy'bring`out'a plate, ,or "ask a' question. There `appear to'liave been some very ew'circumstances in which he 'might be required to talk directly to the pressman' instead of to the foreman,- but the 'normal prac- tice` in' almost all"cases was to go to the foreman. - ' Von Erden testified - to an occasion at the beginning of 1982 when he received a telephone call from Richard Lutz in the production department complaining that Ian- nuzzi and an employee in - the ' letterpress - department were ' engaged in a lengthy conversation, and wanted- to know if Iannuzzi had ariy business being -there. Von Erden' had to go and get him. Iannuizi 'asserted that he had often had occasion-to cut blueprints, and that this might occur once or twice a day or not at all on" a given day. Most of lannuzzi's work, however, did not result in the production of blueprints, and there was testimony that when a blueprint was in- volved it took 1 minute for the cutter to cut it down to size and 2 to 3 minutes to walk across the plant . All told, an 'average of only 7 or 8 minutes a day was involved in that process. (lannuzzi testified that he went up to the bindery on the third floor when he had to get blueprints cut down, though there 'was a cutter on the second floor.) - - - Dierna also , testified that in February 1982 Von Erden cracked down on the conversations but, unlike Iannuzzi, Dierna was not cognizant of any great increase in con- versation among employees by reason of the impending election. He pointed out that the prep department was easy to control. because it ,is a quiet place without run-' ping machines; anybody who talked could be heard. It ' had' been Von Erden's, practice to _ give a subtle hint if the talking was excessive . He would make some remark about the job not getting done or the employees not con- centrating. Early in, February, for the first time, Von Erden referred to the restriction as a matter of company policy. It was , Dierna's .understanding that the change in policy was not a matter of degree, but that conversation was. to . be cut out altogether. The result was an effective curbing, of conversation . Dierna described the difference as follows : "Well;.the difference prior . to. this, was, it was just •a quick word and- then gone,- whereas starting Janu- ary, it was a constant reminder, not only in the words of speaking but. just staring, constant reaction every time there- was a word .said in the shop,- in the department." Caputo readily conceded that it was his practice to stare., at employees . He explained that he used eye con- tact-'as a•-means of supervision, avoiding endless conver- sations-with employees over relatively minor matters,- but still, letting them know that he knew what they were doing'and that they should return to work . He followed this practice after September •1981 and the piactice..in- creased after that date for the reason that he ' found more and-- more groups of ^ people away from their work - sta- tions carrying on: conversations..On occasion - he did talk to-some of them. He -used eye contact to get Cipriano to -gets off the telephone and go back to work: According to Caputo, he' found • it necessary to stare -at-Cipriano- per- haps 15 - times a -week. He followed the same practice -'with'-other employees, staring at - them between 5 and 10 times 'a'night. s Caputo testified that at some point he has i stared 'ate almost 'everyone in the plant. He has followed this practice since he became a supervisor in 1979. - Caputo flatly denied following any employee before or after September 1981.- He testified that when he filled in for' a feiv"'days for the day supervisor in June 1982, he CONFORT & CO. 579 had occasion to supervise Iannuzzi. He had occasion to stare at lannuzzi because lannuzzi kept running into the pressroom with work or job tickets in his hands and en- gaging the pressmen in conversation . Caputo does the plate corrections himself without calling anyone from the stripping department . On the day in ,question he had not ordered any plates, so there was no reason for anyone to come out the stripping department into the offset depart- ment. Rarely does a stripper hand a job ticket to a press- man., Even though a stripper has given a plate to the pressman the job ticket should come to Caputo and does not go to ,the pressman . If Iannuzzi had been following correct procedure, he would have handed the ticket to Caputo instead of to the pressman . There are no circum- stances in which a stripper properly should be giving a ticket directly to the pressman , who does not need it to do his work after 'he has read it. He gives it back to the foreman. I do not credit Iannuzzi's rebuttal testimony `that he would have had several different reasons connected with his work to go into the' press department and deal with the pressman or his denial that the practice was for a stripper to give "a job ticket directly to Caputo rather than to the pressman. Von Erden testified that at one time or another he told every employee in the prep department to get back to work and denied having followed employees around either before or after September 1981. D. Actions by Paul Russo 1. Threats and warnings It is- alleged that Russo told Iannuzzi that the Compa- ny was keeping files on him, -and"that this statement con- stituted a threat, whether standing by itself or viewed as 'a warning in the nature of a threat . He made certain ad- ditional statements which are asserted to be violative of the Act. The testimony, all' of which came from lannuzzi, makes it abundantly clear 'that the statements attributed to Russo were directed solely to lannuzzi and were not made in the presence or hearing of other employees of Respondent. It is also to be noted that -the allegation that Russo made threats "to employees" that they would be fired if they became or remained members of Local One is wholly unsupported in'the testimony . The testimony is that he spoke to _ lannuzzi . They had been friends • for a number of years. -Their conversations, which occurred during the period from September through February, all took place in asocial setting away from Respondent's premises, at a much-frequented bar, in the presence of other persons who were. not employees of Respondent. This is the testimony respecting what Russo said: Q. (By Krieger-continuing) Can you tell me what did.you say,to • Mr. Russo and what did Mr. Russo say to you during this conversation , with respect to your support of Local 1? A. I told Russo that I was involved with Local l's in-plant [and he] told me that the company was keeping files on me and that the company had in- tended to drag the proceedings out for as long as possible. It may take up to four years , and that I probably wouldn't be working for the company at the time that we had an election; that I would probably be fired by then. Q. What if any conversation did you have con- cerning Mr. Cipriano? A. He told me that he would do everything in his power to try to get Sal Cipriano and Larry Mauro fired because he felt that he had helped them in the company , and now they were going against the company, because they wanted Local 1. A. I think that he told me that the company was keeping files on me and that I would be fired, and I wouldn't be with the company at the ,time that we had an election, if there was an election. He said the company would drag out the pro- ceedings as long as possible. Russo flatly denied . telling lannuzzi anything about files;, about being fired by the Company for his activities, or that the Company planned to drag the labor case on and on. He testified, in addition, that no one in the Com- pany-ever instructed or requested him to talk to lannuzzi about the Union. Having observed Russo's forthright de- meanor. in the course of his testimony and the clarity of his exposition of the events in which he was concerned, as compared with - lannuzzi's frequent contradictory and vague generalizations and hesitations , I credit Russo's version of the conversations. between the two men. Furthermore, it is apparent that Russo lacked such status as, would render Respondent liable for statements which he might -have made to Iannuzzi . He was an em- ployee in a technical job in the production department (which has four or five people in it) - who normally ap- peared for work dressed in a suit or at least a shirt, tie, and slacks, and worked in an enclosed -area surrounded by walls which reached from- floor to ceiling . The testi- mony indicated -that there had been . occasions, both when Von Erden was present and when he was absent, - on which Russo had assigned overtime work. Iannuzzi called him an "assistant production manager," asserting that Russo had so styled himself. However, Iannuzzi wa- vered in his testimony on this point. In his own testimony, Russo identified himself as a production coordinator, responsible for getting the work out in the most ,productive and. efficient manner. This, however, involved him in matters such as layouts, sched- uling of work,, purchase . of inks, purchase of plates, and similar matters of a technical, rather than a supervisory, nature. When he-completed a_dummy of a job, he turned it over to George Von Erden,,who then delegated the various aspects of the work -to his people. Russo did not hire or fire fire anyone and has never performed such func- tions, with the solitary exception of the recommendation of a person at the instance of Iannuzzi, in which instance he did not attend the applicant's employment interview nor participate in the decision to hire him. He supervised the stripping department for a few days in January 1982 while Von Erden was away, but such isolated occasions 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are insufficient to constitute a person a supervisor within the meaning of Section 2(11) of the Act. That isolated occurrence in January 1982 could not have- misled Ian- nuzzi, who was a personal friend of many years' standing and must have been thoroughly knowledgeable respect- ing Russo's actual status. It is apparent that Russo per- formed none of the functions enumerated in Section 2(11) of the Act, including the responsible direction of employees on, a regular basis. (Cf. Big Rivers Electric Corp., 266 NLRB 380 (1983).) . Accordingly, I find the evidence insufficient to war- rant a finding that Russo threatened- Iannuzzi or made any of the warning statements attributed- to him. The possibility that such- statements might have been made in the circumstances is insufficient to excuse the require- ment that they be proved by a preponderance of the credible evidence. I -also find that Respondent is not, in any event, chargeable with responsibility for any state- ments Russo might have made. Finally, I believe that the statements' themselves are ambiguous Made in conversations which took place be- tween friends of longstanding; they may fairly be read as statements of fact and prognostication. Of course, the only interpretation' in the --record is Iannuzzi's, since Russo's maintains . he never- made the remarks. I find, however, that Iannuzzi's' quotations are susceptible of more than one interpretation and I do not think Russo's remarks sound like threats. 2. Interrogation' by Paul Russo Russo testified, iii response to a - question from' the General Counsel, that he did not remember asking Ian- nuzzi in September 1981 whether Iannuzzi knew who was involved in the Local One organizing campaign. He did admit to having asked Ian. nuzzi what he knew"'about the-'Local One campaign to organize Confort" and ' the Company. Iannuzzi's response was something. to the effect that all' he wanted to do was to see' what Local One had to offer. - There is nothing in anyone's testimony about this con- versation which permits an inference that' Russo's ques- tion was- coercive in nature. The element of ' coercion is an essential ingredient of unlawful interrogation under the 'Act. ' Accordingly, I find' rio unlawful interrogation by' reason of Russo's having put the question 'complained of to Iannuzzi. • - ' G:' Interrogation by John Confort• . Joseph Schatzle - Jo-se-ph` Schatzle is- a `pressman who works 'in the' press department. 'Confort," who- "made' a-' practice -of -passing : through the plant several times' a day, ' made a remark to him '1 day in October 1981 after Board hea'rings' on the appropriate unit liad been-held. This`remark:is'alleged'to have constituted 'unlawful interrogation: "Joe; how • the hell' did you-ever get, involved'-in 'this?"`Placed in -the context of their personal relationship, it may-be'argued" that Confort's remark is somewhat ambiguous and with- out discernible coercive impact on Schatzle, - but such-a. view- ignores -the 'overall situation 'surrounding' the making of the remark and its potential effect on 'other employees. The facts, set forth without contradiction in the testimony of Confort and Schatzle, are as follows: - Schatzle had worked for Respondent for -12 or •13 years, in the course of which Confort had had personal dealings with him. Schatzle had an unfortunate history of ill 'health and personal. grief. Confort was familiar with his problems -arid-assisted in the investment of the pro- ceeds of a settlement Schatzle obtained in a medical mal- practice suit Confort greeted him every day as he passed through the plant. Schatzle testified at the Board hearing on the appropriate unit. Several days later, on' his trip through the plant, Confort noticed that Schatzle was looking even sicker than he usually did. Confort de- scribed what happened next: • He seemed to be beat : . . I went over to him and said, "Joe, what's the problem?" He just shook his head and it was about that time that I realized that it had taken quite a toll on Joe, both physically, emotionally and mentally, I guess, the hearings, and I said to him, "Joe, how the hell did you ever get involved in this?" I said something to the effect, "How the hell did you ever get involved in this?" He. didn't answer me, and I walked away. If Confort -had said "we" instead of "you" I would have some' doubts about the import.of the question The pro- noun used, however`, casts on Schatzle all the burden of involvement in something that is impliedly characterized as unmanageable, out of bounds, confrontational, swelled beyond proportion, and of such a nature that a- good person would like to be extricated from it at all costs. Confort's remark places a burden of some sort-on' Schat- zle and, employees similarly' situated and at .the- very least demonstrates the displeasure of-John Confort at their in- volvement I believe Confort's testimony that the, making of the remark was provoked by the apparent strain on Schatzle. There can be little doubt, however, about the meaning of the .question. It reflects•Confort's conviction - that Schatzle had no business being mixed. up ,with- the union campaign and should have supported the Confort position on the-appropriate unit. Questioning Schatzle's involvement was inevitably coercive in effect, and was .unlawful. 2. The meeting with the CEA.committee • John Confort's=style is well illustrated in events'which resulted in charge's -of unlawful interrogation by.-him-of the' members of the Confort Employee Association Com- mittee.'•The complaint alleges that the violations oc- curred on September •9, 1981, and during the -month of October- 1981,'following Confort's receipt of letters from the Union indicating its, intention- to organize the Confort - employees.- The • • - testimony of'all of the witnesses is in accord with ' respect -to all of 'the basic facts, though there is some variance with respect to particulars. After Confort re- ceived the Union's letters, in which-it claimed to repre- sent the - lithographers • and demanded that Respondent bargain, with -it, Confort. consulted with his attorneys. Then he= called- in, the Confort -Employees Association CONFORT & CO Committee. This was the executive committee of the CEA, with which he normally negotiated the contracts covering his employees. The members of the committee at this time were Joseph Dierna, Salvatore Cipriano, Steve LaBattaglia, Dennis Alfieri, and Charles Vaccaro. (Alfieri and Vaccaro were from the bindery.) The meet- ing' was also attended by Stephen Orbine, Respondent's vice president, and John Hanlon, the comptroller, who, according to Cipriano, took notes. It started around noontime on September 9 Orbine testified that Confort 'started the meeting-by reading both letters aloud Dierna testified that Confort started by'handing him a copy of the demand letter from Local One. In either case, the contents became generally known to the members of the committee and someone asked what it meant Confort explained that some of the people in the pressroom wanted to be represented by Local One. Confort then asked if they believed in the CEA and- declared that, if they did, then they 'had to fight for it. He asked them if anybody had heard about this before and what- they intended to do about it. He suggested that they collect $50 from each employee to hire a lawyer or, if necessary, lay out the money from their own pockets. In response to a question, he declined to lend them the money for legal expenses. He appears to have become irritated when Dierna told the meeting that the CEA membership could not. be assessed without having a meeting of the employees. Dierna testified that Confort "turned around and said that if you can't do it, get the fuck out and I'll get someone who will." Accord- ing to Cipriano, the committee members became very quiet after Confort's outburst. - Confort told the committee that, having dealt with one bargaining unit for 30 years, he did not believe that a separate unit should be carved out of it to represent one group of employees, and that he intended to fight for the right of all of the employees to determine who would represent them,and to 'keep the employees as one group, "all or nothing." Cipriano testified that Confort• stated his chief concern to be to avoid fragmentation of the bargaining unit, with different unions representing groups of employees. An understanding of Confort's ap- proach to the problem must also take into consideration testimony by lannuzzi which emphasized the company- union nature of the CEA and the domineering pattern of conduct on Confort's part which characterized the peri- - odic wage negotiations. lannuzzi testified that negotia- tions for a contract amounted to the committee being summoned into Confort's presence and being told how much of a percentage increase he. intended to give. He would cite the wage scale provided for in the industry- wide contract and increase it by 2 percent. That was the, whole extent of the exchange, which perhaps should not, be called an exchange since, according to lannuzzi, no one ever questioned what Confort said or offered. The committee made no investigation into the adequacy of his offer and Confort -never posted the industrywide wage scales. • Now Confort was telling the CEA -committee that he. opposed fragmentation of the bargaining unit, that he had hired a lawyer and felt very strongly about. finding out what his rights were; and that-he felt very strongly- 581 that they, as a union, should try to.. find out what their rights were. and, -being unsophisticated, they should also find themselves a labor lawyer. He gave them a list of three law firms supplied to him' by his lawyer and sug- gested that they or any other attorneys be consulted. The question of how to- pay the lawyers then ensued. Confort said that was up to the committee, and suggest- ed the membership assessment. Confort invited the committee 'to retire to• a confer- ence room located in the executive area of the plant to discuss what had been talked about in the meeting and that they then come back to give him, as he put it, "some inkling of dust what they're going to do, because in my estimation, I am going to fight, and they're going to have to fight, they're going to have to go along with me, and I really believe that they needed a lawyer " The men walked out of the room and headed back into the shop area, whereupon Confort yelled to -Dierna that the conference room was not the way-they'were going and to go into the conference room. They went into the con- ference room.' Orbine and Confort waited in Confort's office. Dierna returned in 10 minutes and reported that the' committee was not getting anywhere and requested that Confort join them in the conference roorii. Confort's response was'to repeat' his-suggestion, in 'emphatic fash- ion, that before making any decision the committee con- sult counsel, either those on his list or any other labor lawyer. The testimony is conflicting as-to whether Confort asked anyone ,of the committee members directly wheth- er he supported the CEA, and it is conflicting with re- spect to whether-he loudly-asserted-that if they- "could not, do the job he would 'fiiid • somebody 'who could." The employee witnesses assert that he' said it; Confort denies having made the statements. I credit the employ- ees in this instance, espcially in,tview of Confort's contra- diction of himself on, the question of whether he was ever told that the CEA subsequently hired a lawyer who was not on his, list. (First he said he was never told that a lawyer was hired who was not on his list. Elsewhere in his testimony, •he showed how deeply he probed into the matter' when he testified that he ascertained that the committee had retained • an attorney recommended by Dierna's father.) . • It seems to me that we are here presented with an egregious interference with Section 7 rights of employ- ees. There is no way to read Confort's demand that the committee support-his position and, hire •counsel, and that they meet in his conference room and let him know what they intended to do, except` as a highly coercive in- terrogation. It is .worsethan probing employees' protect- ed-.activities; he,-demanded,; that they, take,' actions, and that they:let him-know their-.decision on his demand. They hired, a lawyer and advised.him of it on September 17,or 18; onthe-occasion ;of;his•calling-.all 'the employees together and reading, a.speech- to them. Even on_ that oc- casion,, it, appears- that ;Confort may have pressed the in- quiry for, -while professing not .to-remember whether Dierna told him that, an attorney, had been retained in re- sponse to a question he put to :Dierna, Confort conceded that it was possible that he had-asked Dierna. In Con- 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fort's words, "He knew very well that I wanted him to get a lawyer to represent them, so that we could all work together." Confort's own testimony shows that he pressured the committee to take certain action and to adopt a certain point of view on the question of representation and that he interrogated them with respect to their intentions and their actions with respect -to the question. It is a clear case of interrogation in violation of the Act. E. Action-Taken Against Iannuzzi ' 1. Reduction of overtime • - - - It is alleged that, during the period from January through March 1982, lannuzzi was given less overtime work as a punitive measure because of his activities on behalf of Local One. I have earlier reviewed at some length the evidence respecting the alleged curtailment of overtime and have noted that , Iannuzzi's assertions that overtime was manipulated were not based 'on reliable ob- servations or knowledge on his part . The same is true with respect to the allegations specifically relating to his personal situation. His vagueness on critical points clear- ly showed the lack of reliable basis for the charges. For' example, on cross-examination of Iannuzzi it became- apparent that he did not know or could not recall whether he or any other employees on'the day or nigh shifts had worked overtime, been asked to' work overtime, or rejected a request to work overtime in Jan- uary, February, or March 1982. At another point in his testimony, he asserted that somebody on the night shift was offered some overtime work in January, but his knowledge was not firsthand and he did not know the name of the employee. In short, for the first quarter of 1982, he did not know who, if anyone, was offered over- time and who, if anyone, turned it down. In spite of his complaint that his overtime was cur- tailed, Iannuzzi conceded that he never asked for permis- sion to -work overtime in January, February, or March 1982. Furthermore, he conceded that there' had been oc- casions prior to that period when Dierna had asked him to work overtime and he had refused. I have earlier mentioned Dierna's -testimony that Iannuzzi frequently turned down opportunities to work overtime. In view of lannuzzi's indifference to the prospects of working overtime prior to. 1981 and 1982,- the general dearth of proof that Respondent was manipulating over- time in response to Local One's organizational campaign, and the utter absence of any such evidence with respect to any curtailment of overtime specifically related,to Ian- nuzzi, and in view of the evidence that Iannuzzi had re- jected overtime and had worked very' sparse overtime hours according to - the - records, I find :'that Respondent did not unlawfully deprive Iannuzzi-of overtime work in reaction to his union activities. 2. Failure to 'pay Iannuzzi holiday pay The hearings in these proceedings were sequestered and lannuzzi was designated as the Charging Party's rep- resentative to remain present throughout the hearings. He performed this function on the day preceding the Thanksgiving holiday -in 1982. In accordance. with Re- spondent's collective-bargaining agreement, Respondent refused to pay Iannuzzi for the holiday or the day there- after; since he had not worked on the day preceding the holiday. The General Counsel contends that this refusal constituted unlawful discrimination against Iannuzzi be- cause of his activities in the_ hearing in support of the General Counsel's contentions. The General Counsel also argues that Respondent withheld- the pay without war- rant because lannuzzi was under subpoena from the Gen- eral Counsel and his attendance at the hearing pursuant to the subpoena had never been excused. In fact, Iannuzzi had completed his testimony by the time of the Thanksgiving holiday, and the fact that he was not formally excused from appearing is a technical- ity as irrelevant as the subpoena itself. Iannuzzi did not require a subpoena to be present and its service upon him was a mere formality to entitle him to be absent from work. Respondent was within its rights in refusing to pay him. In General Electric Co., 230 NLRB 683 (1977), it was held that the employer did not violate the Act by failing to pay an employee his regular daily wage for a day he was absent and all of which was spent in a Board hearing, while it did pay another hourly 'paid em- ployee who appeared and testified,at the same hearing on behalf of the employer. This was not held to be denial of the benefit of a term or condition of employ- ment enjoyed by the employee who testified on behalf of the employer. The Board noted, 230 NLRB at 686: ' - Thus, in sum, we find that there is nothing un- lawful in an employer using the wages of witnesses as the measure of his compensating them for witness fees while not also paying employees called by other parties the - difference between witness fees they received from such parties and what they would have been paid as wages for the 'time they testified, since the employer's actions are not-direct- ed at the employment relationship. 'However, if an employer distinguishes between its employees in their employment relationship on the basis of whether they ,were summoned as witnesses by it or by the opposition, it acts unlawfully. The General Counsel conceded at the hearing that: When Iannuzzi returned to work the day after Christmas, unlike what happened to him when he returned to work after Thanksgiving, he discovered that he was paid by Respondent for the Christmas holiday. Respondent's explanation, presented in testimony by Orbine that was not controverted, was that it was Re- spondent's policy to pay employees holiday pay, even if they were . absent the day prior; so long as they were absent testifying under subpoena. On that basis, Iannuzzi had been paid for Labor Day 1982' as well as the Christ- mas holiday. There can be no argument with. the General Counsel's summary of the guiding principle that: CONFORT & CO While the Respondent need not compensate a sub- poenaed witness that has been subpoenaed by other parties for the time spent at a Board proceeding, it is equally clear that it may not legally penalize em- ployees because of their attendance at a Board hear- ing. There is simply no proof that that is what Respondent did. Respondent appears to have followed a consistent policy, which, in fact, usually resulted in lannuzzi receiv- ing his holiday pay. Accordingly, the Act was not violated by Respond- 'ent's refusal to pay Iannuzzi for the Thanksgiving ' holi- day in 1982. His presence in the hearing room the day before was not for the purpose of testifying under sub- poena. 3. Alleged imposition of more onerous working conditions It is contended that Iannuzzi was subjected to stricter supervision on February 8, 1983, because he was yelled at by John Confort when he did not respond quickly enough to the bell which signaled the end- of the lunch hour. Confort asked him loudly and heatedly whether he understood what the bell meant and lannuzzi, answering respectfully that he did, went back to his work station. It is undisputed that (1) the bell. was a signal for employees to conclude their lunch and begin walking back to their work stations, and (2) that that is not what Iannuzzi did when the bell sounded. Confort saw him because he was in the vicinity with someone else surveying, the possibili- ty of relocating some equipment. From my observation of Confort on the witness stand, his actions and remarks were his inevitable personal reac- tion, and had nothing to do with Iannuzzi's activities in support of Local One. It is well settled that merely en- gaging in concerted protected activities does not confer upon an employee an immunity from the consequences of violating established company .policies, rules, and practices. - The burden of proof, as in all other issues, is on the. General Counsel, and it has not been demonstrated by a preponderance of the evidence that Confort's actions were motivated by anything other than irritation at Ian- nuzzi's blatant violation of company practice. lannuzzi's lunch hour had not been shortened by Confort, for the events in question occurred after the sounding; of the warning bell. He was being asked to conform to well-es- tablished company practice. Accordingly, I find no'violation of the Act, by, reason of imposition of more onerous -working conditions on Iannuzzi. - - . 4: Disciplinary actions: warning, suspension, an d discharge ' a. Iannuzzi's attendance and lateness record As of April 1983, Iannuzzi had been employed by` Re- spondent for more than 19 years. Throughout that time, his record of absences from work and tardiness had been a poor one. George Von Erden, who was responsible for rating Iannuzzi; testified that he first spoke'to him about 583 the matter some 10 or 12 years ago and has spoken to him about it at least twice a year since the original talk. For a while after the talks, lannuzzi's attendance would improve, but he would thereafter revert to his usual poor attendance. Von Erden compared lannuzzi's record to that of other employees in the department by use of terms such as "outlandish." His'absences, amounting to 15 or 20 days per year, exceeded those of any other em-' ployee. Like Von Erden, Stephen A. Orbine also spoke to Ian- nuzzi once or twice a - year' about the problem. He first spoke to him about 10 years ago. The problem was a grave one. In 1975, Iannuzzi's pay raise was held up because of his excessive absences and latenesses. It is stated in Respondent's posthearing brief, "In 1980, Von Erden had reached the point of utter des- peration with respect to Iannuzzi's attendance." - Employees at Confort & Company are evaluated on an annual basis. On Iannuzzi's evaluation sheet for 1981, Von Erden commented that somebody in upper manage- ment should talk to- Iannuzzi about his attendance since 'Von Erden's talks with him' had -failed to achieve any result. Von Erden also asked Orbine to talk to Iannuzzi. Orbine suggested giving Iannuzzi a written warning. Ian- nuzzi had not been given a written warning since around 1970. Von Erden gave him a warning for excessive ab- sences in October 1981, but Iannuzzi demonstrated to him that there was an error and.that his absence had not yet reached an excessive number for'the month,-and the warning was rescinded. On January 28, 1982, however, a warning notice was given to lannuzzi which 'recited a record of excessive ab- senteeism and lateness in 1981 '. Iannuzzi had been absent 19 days and late 58 days. The warning stated, "This has been gone'over many times-in the past. Situation must be corrected. Failure to show considerable improvement will result in your dismissal." ' On October 8, 31982; a "final warning" was issued to Iannuzzi, -reciting the fact 'that there had been numerous absences and latenesses despite the warning 'of January ,2A,-and-that a failure to show improvement could result in "immediate termination of employment." The warning notice recited' latenesses- on January 4,' 8, 21, and 28; April 22 and' 28;' May 3 'and 14; June 2, 10, 11, 18, "25, and 30; July- 1 and 28; August 3, 6, 17, and-20;'and Sep- tember 1, 14, 16, and 23. It recited absences on January 14; February '24; March 11, 12, 18, and 19; April 29; June 4 and' 28;' July ' 9 and ` 15; August 4 and 12; September 3, 15, and 29; amd',October 6 and 7. - On February 4,"1983 a' warning was issued 'to Iannuzzi which `noted that' in connection with the yearend review, excessive ' absences and -lateness-es 'on his part had-been -noted: He hadbeen absent 22 days in ,1982' and' had' been 'late 27 days. It was stated, "Improvement `is Mandatory. Up to this point, all' warnings had been signed by' Von Erden. On April 11, 1983, Orbine suspended, Iannuzzi on the basis of his lateness' and absenc'e' record in the first quarter of the"year:' A' letter was, delivered to Iannuzzi which read as follows: -' • ` ` - . A recent. review' of our attendance records, for the 'first quarter -of 1983, indicates that-you had-the 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worst combined lateness and absence record in the Company during that quarter. This was true despite the fact that you have been continually warned about your attendance record. Your consistent refusal to pay heed to these warnings, and the concomitant disruption of Com- pany production which this abuse creates, can no longer be tolerated. Under the circumstances, we see no recourse but to suspend you, without pay, for the work days of. April 12, 13, and 14, 1983. You will be expected to report back to work at your normal starting time on April 15, 1983. Continued abuse of your employment relationship will leave us no choice but to terminate you. lannuzzi served the 3-day suspension. On his first day back, he was late again. Orbine issued the following letter to him: ' - Recently, you were suspended for three days due to excessive lateness and absenteeism. On the 15th of -April, the day of your scheduled return, you were one hour' late,_ giving the excuse of car trou- ble. - You have been an employee of Confort & Co. for many years, as. was your father before you. For this reason we have tried to -give you every chance to. straighten-out your attendance problem. However, it appears that the more we try to help you, the worse the situation gets. Your insensitivity to the problem has resulted in serious, and in some cases irreparable, harm to the Company. - - The Company has no desire to discharge you, but the situation cannot continue.-You must take de- cisive and immediate steps to improve. A continu- ation of your record of the recent past will leave me no alternative but to terminate your employ- ment. - ,-- . Your future is now in your hands: Orbine had a conference with Iannuzzi'on April 18. In brief, it was agreed that lannuzzi would try the night shift fora while,-since it would then be easier for him to get to work on time. Nevertheless, Iannuzzi was late again on April 20, and at a meeting later in the day Orbine discharged him. b. The actions of Respondent - • .(1)-Disciplinary warning January 28, 1982 • The General Counsel claims .that the issuance of a warning to.Iannuzzi on January 28, 1982, was discrimina- tory and in violation of the, Act. The timing of the warn- ing, the. failure to issue, written warnings to him in the past, despite similar conduct, and Respondent's hostility to Local One lend credence to the allegation. . The evidence establishes quite clearly that Iannuzzi had a bad attendance and.lateness record, which was dis- cussed with him frequently through the years by Von Erden and Orbine. ' It cannot be overlooked, however, that with the exception of a delay in implementing a pay increase for Iannuzzi in 1975, no real pressure by way of written. warnings was exerted on him in a substantial period of time. According to Iannuzzi, over the 12-year period going back to 1970, he received only two warn- ing letters and was spoken to on two or three-occasions. He • also contended that when his pay raise was held up there had been additional reasons besides his attendance record, though he conceded that when his attendance record improved he got the raise. Respondent's explanation for becoming diligent about issuing a warning to' Iannuzzi in January 1982 was that management felt, at that particular time, that greater at- tention ought to be paid to the attendance problem throughout the plant. Orbine testified that at the end of 1981 the warning system was changed because it had become apparent'that "we had been remiss because there were a number of people who had a lot of latenesses and a lot of absences." The persons to whom reference was made as being remiss were a committee which consisted of Orbine, Michael Confort Sr., the president's brother, Peter Pulitano, and Steve LaBattaglia. They were a com- mittee -made - up of representatives' of management and the CEA who were charged with making a yearend evaluation of all employees in the plant. According to Orbine, in the -course of such evaluation the attendance, records of "problem people" were reviewed and warn ings were issued to them at the end of the year. On the occasion of the yearend review in 1981, however,- the committee went through the attendance records of all the employees in the plant as they made their evalua- tions. Because of what they found, in January 1982 the foremen were instructed to issue warnings on a more timely basis and on a more frequent basis and not to wait; for the yearend review. In 'order to credit Orbine's explanation, one must be- lieve that lannuzzi was simply one of a number of per- sons who received a warning in January pursuant to Re- spondent's newly invigorated approach to the overall problem of absenteeism and tardiness, and ignore all of the' past history: the talks with him by Von Erden and Orbine '(at least twice a year), the desperation which, Von Erden is supposed to have felt (especially in 1980), and the awful nature of Iannuzzi's record. There is evidence that others with bad attendance and lateness records were disciplined and that two of them were discharged. It is not contended that an employer who is remiss in enforcing discipline for a period of time waives the right to enforce it in the future, or that union activity on the part of an employee confers on him any immunity from punishment for failure to comply with company rules. The issue, however, is the motivation, of Respondent in issuing the written warning to lannuzzi at that particular time. It does not square with Respond- ent's long and continued tolerance, which extended even to offering him the. night lead in the stripping department after issuance of the warning in January 1982. The Orbine explanation fails to withstand scrutiny. I conclude that the warning issued in January 1982, while the Local One campaign was in full swing, was an im -portant early manifestation of the very close atention which management had begun to give lannuzzi and which it would continue giving him- in 1982 and 1983. It would later be illustrated by the unusual action of Steven CONFORT & CO Chirico in telephoning Iannuzzi at home on October 7, 1982, to find out why he was absent from work. I find that Respondent issued the written warning to Iannuzzi in January 1982 because of Respondent 's dissat- isfaction with Iannuzzi's support of Local One. It there- by violated the Act.. (2) Suspension and discharge I have touched very briefly on the suspension and dis- charge of Iannuzzi in April 1983 in the course of my review of his history with the Company. While discipli- nary action was taken against two other employees about the same time, lannuzzi was the only one who was dis- charged. There is no doubt in my mind that Respondent har- bored animus toward Local One. It was clear in John Confort's reaction to thee attempt of Local One to orga- nize his shop. He was determined to keep a docile, com- pany-dominated union as the sole representative of the employees for as long as, possible . His reaction to Iannuz- zi's failure to leap back to work on the concluson of the lunch hour on February 8, 1983, amply demonstrated his pique at this particular employee. Nineteen years of tol- erance of his latenesses and absences came to an abrupt end in the fall of 1981. The posthearing brief submitted on behalf of Respondent asserts, that lannuzzi's absences, and latenesses in the first quarter of 1983 disrupted pro- duction, but there is not a scintilla of evidence in the record to that effect; on the contrary, the effect of Ian- nuzzi's latenesses and absences on production were never mentioned in any discussion Von Erden or Orbine had with him, and during the hearing it was never asserted-as a reason for his discharge. I will not assume that produc= tion is disrupted or adversely affected simply because an employee is late, without evidence tending to show that production was delayed and not made up. Local One was elected as the collective-bargaining representative of the lithographic unit on February 11, 1982. The results of the election were contested by Re- spondent . Local One was certified on October 13, 1982. In November, lannuzzi's problem getting to work on time became a major problem of Confort & Company., His involvement with the Union and with the course of these very proceedings was, of course, a matter regard- ing which management was deeply conscious. I have not found a violation of the Act to have been committed by Respondent in failing to pay him holiday pay and in issu- ing a warning notice to-him in January 1983, as I do not feel that the preponderance of the evidence with respect to those occurrences supports such a conclusion . Never- theless, those events demonstrated lannuzzi's extremely high visibility, and I -cannot assume that Respondent's al- leged paternalism (so- referred to in Respondent 's, post- hearing, brief) 'extended to a benign tolerance of Iannuz- zi's prounion activities. . A puma facie case was established by the General Counsel on showing the timing of the suspension, and the subsequent discharge, following an intensely fought campaign and the conclusion of hearings before me on the other charges considered in this decision; the Compa- ny's animus toward Local One; and the coincidence of the end of an extremely long period of tolerance toward 585 Iannuzzi with the commencement of the Local One cam- paign. As. noted earlier, Iannuzzi was -discharged after the conclusion of these hearings . On motion to reopen, the additional complaint based on his suspension and dis- charge was consolidated with the matters already heard and the issues raised in the new complaint were litigated before me. The General Counsel having established a prima facie case of violations of Section 8(a)(1), (3), and (4) of the Act, the burden of going forward with evidence that the dishcarge resulted from lawful business considerations fell on Respondent. Respondent established the existence of an ample business justification for the suspension and discharge of Iannuzzi but, on the whole record , it is ap- parent that Iannuzzi still would not have been discharged except for his activities in support of Local One. Respondent suspended Iannuzzi for 3 days in April: April 12, 13, and 14, 1983. That discipline did not im- prove Iannuzzi's performance : he was late on the day he returned from suspension . Orbine called him into a meet- ing in the presence of Hanlon, the controller , to discuss the situation . There ensued a discussion of the possibility of switching lannuzzi to the night shift, when getting to work on time might not be such - a difficult problem for him. Orbine made the suggestion , and Iannuzzi accepted it. It was agreed that Iannuzzi would start working nights at the beginning of the following week. On Wednesday, April 20, Iannuzzi was late again. He blamed it on traffic conditions. Orbine , however, was not having any excuses. He summoned lannuzzi into a meet- ing with himself and Hanlon . Iannuzzi testified that it was apparent to him from the minute he walked in that he was going to be fired . Orbine testified that his deci- sion to fire lannuzzi was not irrevocable when the meet- ing started, but when lannuzzi revealed that he had ar- rived later than his difficulty in traffic would have re- quired because he stopped for breakfast , Orbine lost his temper and fired him. On this showing by Respondent , it was incumbent on the General Counsel to demonstrate that, notwithstand- ing the , existence of a lawful justification for the dis- charge of lannuzzi , he would not in fact have been dis- charged had he not been active in promoting Local One and ,in assisting in the prosecution of these proceedings. The allocation of evidentiary burdens has been explicitly set forth in Wright Line, 251 NLRB 1083 , 1089 (1980), affd. 662 F.2d 899 (1st Cir. 1981), 'eert. denied 455 U.S. 989 (1982): Thus, for the reasons set forth above , we shall henceforth employ the following causation test in all cases alleging -violation of Section 8(a)(3) or vio-' lation of Section 8(a)(1) turning on employer moti- vation. First, we shall require that the General Counsel make 'a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision.. Once this is .established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct '586 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD < 'It- is' not sufficient- simply "'to, show that there may exist '-another .-reason for discharge; rather, Respondent must demonstrate that the same action would have taken place'-even in the ,absence of the, protected activity." Such a demonstration is not-made when Respondent's own demonstration' >contains conflicting statements of what Respondent's' intention had been:-E. L du Pont & Co., 262 NLRB%,1028, :1029 (1-982)., As explained in Sioux Products v. ,NLRB,:,684: F.2d' 1251,..1257 (7th Cir. 1982): Under the'Peavey/Weight Line'standard,-the. Board, to establish a puma facie violation of ''Section 8(a)(3), must first show, 'that the employee's protect- ed activities were a . motivating. factor in the em- ployer's action affecting the terms and conditions of employment. , The employer may rebut this prima facie ' showing with evidence indicating that the same action would,have been, taken even in the ab- sence, of the employee's," protected activities. The Board,` which . always' `carries the ultimate burden of persuasion,, must„ then, 'establish that the discharge was ;motivated by the, employee's protected activi- ties, demonstrating; -for example, that the employer's asserted justification: is .preteztual or could ,not sup ,-port;,theaction taken, by the,, employer. [Emphasis added,] That is the situation in -the -instant case: • The` General Counsel, in effect,, rested on the bodyr of- evidence al- ready: in the' record, to'suppoit this position.' The final result thus e_pends'onwhich case is madeout by a pre- ponderaiice of the., evidence. It apperaisto me that the General` Counsel has_ the • better of the argument for two `basic-"reasons.: First ; 'all- of the "uncertainties "and" contra- ' 1^d coons which ;characterized'`'the'testimony' of Iannuzzi 'on ; other"aspects' of'the case' were' absent in' connection with this aspectof it in which ^'the issues were more nar- rowly. drawn,"were 'intensely personal, `to him; 'and in- volved a limited range .of incidents and 'ciicumstances. `'Second, serious' questions; which 'existed{: in` connection "'with `Respondent 's'^version'of the "events were not satis- '`facto'rily`ariswered'and'for the- 'mostpart were not even addressed. Respondent's"-presehtation'was'strong insofar as the facts and figures of Iannuzzi's'latenesses and ab- sences were 'coiiceriied, but on^that there' 'as really no "dispute: The'issue'was'whether'that troubleH'•record was the -real`-reason for Iinnuizi's 'discharge. Gulf'Ehvelope ''C6', 256 NLRB 320,'329, (1981).' Respondent's'case rested on the `testimony of lStephen'Orbihe - i -' Orbine' - ver-si6h11 of "the--facts` -requires • belief that Orbine, an experienced -executive, fired Iannuzzi in a fit an'g'er, `yet' he`also testified `that` fie hadt'devoted an enormous airiount of time. and `effort' to avoiding that very result.'Orbine'had, already"formulated_ a-solution to whate'v'er prbbleins` Iairnuzzi's t lateness 'recor`d''created in the plant:•'He airangedto switch`him``to''the' night=shift. -r f :,h. Doing that was riot easy, as hi'testimony`indicated. a~ tco"= dt-4Charlie'Caputo istthe`nightishift supervisor.-He's •ih•overall'charge-of-night. Iltold"him=•that:I had of- -. ' ' fered lannuzzi the opportunity to -go on nights and -that if we were to move him 'on nights, who would =be`the"neat-grit';to'go=on;:days-because11'd'have'to replace lannuzzi on days rather than have an extra' man at night and be short during the day. We also talked about the fact that Iannuzzi requested a mid- shift. I asked him if he thought it was possible, could we work it out without hurting ourselves, who would we move around? Could we - move- enough people around and have our coverage from morning until night and still work it out? Well we agreed that the mid-shift was not feasi- ble. We agreed that nights was probable, although we would have to discuss it with. an' individual by the name of Morrow who would have to transfer to days. - - We talked about it at length and really didn't re- solve -it. We decided at that point we would talk about it the next night too because we wanted to give it every opportunity and do the right thing. We talked about the - Iannuzzi and nights. I asked him if he had a chance to talk to Morrow the night-before. He said he had not gotten a chance to talk to him the night before, he would talk to him that night. We talked again about the mid-shift, de- cided pretty much that the mid-shift thing was not going to work out, that it would have to be nights and that Caputo was going to talk to Morrow either that night or the following night so that we could' 'get this` thing done by Thursday or Friday and get everybody in the proper slots by Monday. - I had spent time on this, spent time on Iannuzzi. I talked to him when I suspended him. I talked to him on that Monday. I spent time with Caputo on' Monday night and Tuesday night. I wanted the problem squared away. Orbine did, not impress me as being the impetuous type ,.and -his own testimony belies the story he presented of an impetuous action on his part in discharging Iannuzzi: He testified • that he had been, extremely careful to talk to Iannuzzi respecting the suspension, and later the dis- charge,, in the presence of the Company's controller. This premeditated caution could be construed as having ,,been'taken for the purpose of making a record, but if we .adopt' Orbine's story, it was done to impress on Iannuzzi the gravity of the situation. Yet, he obviously had an- other purpose in mind, for he conceded, "I wanted Mr. -Hanlon there as a witness. We've had all kinds of pro- ceedings and ..- . I didn't want to be misquoted." Every- thing Orbine did in this connection showed extreme care. He was still prepared to listen when Iannuzzi-was- late ;again. even after the suspension. On April 18 the switch to-the ,next shift was agreed upon. Orbine testified that he -scheduled the meeting on April 20 late in the day rather than in the morning because "I thought it would be better to just -talk to him later on, get, it out of my - :system and be able to be collected at least, when I talked to ^ him."' It was- his intention to fire Iannuzzi, but not if Iannuzzi "gave. me a good explanation of why -he was • late only two days after I gave him another notification." For- the sake of privacy the meeting was held in Han- lon's office, at the end of the day shift. - Orbine's testimony regarding the meeting at which the --'discharge occurred presents a picture of a meeting which CONFORT & CO. 587 consisted largely of his investigation of lannuzzi's reason for being late again. Orbine testified that he started,•by saying, "I said, Ron, I've seen that again this morning you were late. He said, 'Yes.' I. said, why were -you late?": There then ensued a lengthy discussion of why lannuzzi-had been late, how many times recently he had been late, traffic conditions, the normal length of his trip to work in the morning, and similar matters. Iannuzzi's version of the meeting varies from Orbine's in some extremely important particulars. He testified, as did Orbine, that Orbine said he had heard that Iannuzzi had come in late again that morning and that he- told Orbine he was about 20 minutes late on account of traf- fic; but he said that it was at that point that Orbine said that he was going to let him go. lannuzzi then. asked Orbine what happened to the opportunity to work nights and "[h]e said he was taking that opportunity away from me because I came in late that morning." Furthermore, in the course of Orbine's several discussions with Ian- nuzzi, the emphasis shifted from the number of days late to the amount of time late on each occasion, a matter with which Iannuzzi said Respondent had not previously concerned itself. I find that, under either version of the events, the im- portance of Iannuzzi's lateness and absence record as the reason for discharge is diminished. 'Iannuzzi's veision in- dicates that Respondent had decided to use the weapon lannuzzi had given it to get rid of him, regardless of what explanation he might be prepared to make: Orbine's version suffers from a variance between his expressed in- tentions and his actions which is not satisfactorily ex- plained, and which seems to belie both his statement of intentions and his personality as I observed it while he was testifying. Orbine testified to a lengthy discussion with Iannuzzi regarding lannuzzi's problem in getting into work on time, but would have us believe that this all became irrelevant to 'him, along' with all the work he did arranging the transfer to the night shift, at the instant at which •Iannuzzi revealed that he had stopped- for breakfast. Iannuzzi asserted he explained that he had only stopped to pick up some coffee which he consumed after he got into the plant, but Orbine was positive he had used the word "'breakfast," not the word coffee. He described that last straw as follows: Q. At any point in this conversation was there ,anything said that particularly upset you? - THE WITNESS: Yes, there was,. the reference to stopping for. breakfast to me was the straw that broke the camel's back. I told him, as a matter of fact, I said, if I were you and I had your problems and I had the warnings and. all the attention you've gotten lately, maybe you got tied up, in traffic legiti- mately,- but if I were you • 1. would have double parked my car in front of the builing,. I wouldn't even have looked fora parking place, I would have run up the stairs as fast as I could run up and I --don't care what time it was, you go to your fore- man and say, maybe you're out of breath, and say, "Here I am, I'm ready to -go to. work." But with you, you ,just don't care. You're .late anyway. so - you're going to stop for breakfast . I said, your atti- tude reflects to me that you don't care whether you straighten your problem out, it doesn't matter to you. Q. Did he use-the word coffee or breakfast? A. He used the word breakfast. Q. You're quite sure of that?' A. I'm absolutely positive of that. Q. Then what was the next thing that was said? A.-I said Ronnie, I'm going to let you go. Q. When did you make the decision to- let him go? A.-At the point I heard breakfast. Orbine's explanation of why, after all the work he had done setting up Iannuzzi's transfer to the night shift, he discarded the plan ignores the fact that the arrangement had ostensibly been entered into in order to resolve the problem which lannuzzi had been unable to cope with. Both Iannuzzi 'and Orbine agree in their testimony that lannuzzi protested that .there were only a couple of days to go before the problem would be resolved by his trans- fer to the night shift. Iannuzzi testified that Orbine simply replied that he was taking that opportunity away from lannuzzi because of the additional lateness . Orbine testified that he ' told lannuzzi the new arrangement had not been intended to give him free rein to come in late in his final week on the day shift: Q. Was there any particular reason why you weren't willing to let him continue on nights? A. I believed very firmly at that particular point that his attitude reflected that he was not going to do anything out of his way to get in, he would get to work when he got to work and that's all that was going-. to happen. He showed me no evidence that despite the warnings and suspensions and let- ters or anything else, that he cared about whether he came in late or not. JUDGE LAWRENCE: Did' you actually give any thought to the possibility or the likelihood of what things would' be like the following week when he switched to the night session? THE WITNESS: Yes, -sir. JUDGE LAWRENCE : I'm talking about while you were sitting with Mr. Iannuzzi in that session, in the back of your mind, did you give any consideration as to what - it would be like the, following week when he would be coming in at a later hour? THE WITNESS: -I don't recall that I did. The truth is thus more likely to be found in the fact that, as Iannuzzi contended,-the proposal had never been offered in good faith.'-:Iannuzzi testified that when Orbine called him in . on _ April 18, following his lateness on return from suspension, and they met in Hanlon's office -for a_discussion of his poor record, and Orbine suggested that they try the night shift, ' Orbine seemed shocked when he accepted Orbine's proposal . Orbine and Hanlon exchanged glances. He-had reason to be surprised, for in May 1982,-when Iannuzzi had temporarily substituted for Vitale as the night lead, he had told Orbine that he was not willing to work nights for the rest of his life. His 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willingness to - do so at juncture-apparently caught Orbine by surprise .., ... • - - However, even if that were not actually the underly- ing reality,%,I would not buy the picture of Orbine, the unhinged executive, losing his temper at the mention of the word "breakfast." It -is uncharacteristic of Orbine and disruptive of his own efforts up to that point. It is unlike- lyin view of the fact that Orbine had great respect for Iannuzzi's potential , as illustrated by his earlier proposal that lannuzzi substitute for Vitale . The night-shift solu- tion was one that was apparent to management for a while before the arrangement was actually 'made. There had been a period when the night lead, Vitale , had been expected to resign: Orbine asked Iahnuzzi to become the night lead, and this was-under consideration until it tran- spired that- Vitale was not leaving after all . The incident demonstrates two thiiigs 'to me -First, management was willing to overlook Iannuzzi's problems with' lateness and absence because he was one of their most competent strippers and they considered him suitable 'to act'as the night lead.' Second, they'anticipated less of a problem at night from 'his absence and lateness propensities . Orbine testified 'that 'there .was no' discussion about lannuzzi's work record - or -his attendance record, though Orbine was familiar =with both .' Orbine `explained this by the as- sertion that when lannuzzi filled in for Vitale ' 'he was a different man. He , came to work on time and he very rarely missed a day, He seemed , more interested, it seemed to be more of a ' challenge to him and he was there and he did a. good job. . . . I chose Iannuzzi be- cause he had filled in before for Vitale and had always done well." (Iannuzzi turned it down because he was re- luctant to work nights.) - It is,.therefore very difficult to understand .why, be- cause :Iannuzzi was late one more time, the whole ar- rangement was discarded,_ unless Orbine was looking for an excuse to fire Iannuzzi : Although discharge might him and Silburn , the journeyman cameraman. The suspension is a matter, however, which fits well within the pattern of Respondent's prior reactions to Ian- nuzzi's latenesses and absences . It is the type of action which conforms to the 1975 withholding of Iannuzzi's pay increase and is the type of action which would be expected to be taken by any employer whose preliminary warnings have gone unheeded . Respondent's contention that it was solely the product of his lateness record does. not- suffer- from - the inherent infirmities which afflict Re- spondent's attempt to justify lannuzzi's discharge and consequently I accept Respondent 's contention' respect- ing' its motivation in that instance. Accordingly, I find that Respondent violated the Act when it discharged Iannuzzi,. but did not do so when it issued the warning to him or when it suspended him. ' F. Actions Taken Against Cipriano 1. Reduction of overtime The allegation is made that the overtime of Salvatore Cipriano, the apprentice cameraman , was reduced during the period from September 1, 1981, to April 1, 1982, be- cause of his union activities . Cipriano had joined the Confort Employees Association when he was hired in 1975 and served as its secretary -treasurer for 4 years. In August 1981 he went with Iannuzzi to see Joseph Cin- cotta at the Local One headquarters and began distribut- ing its membership application - cards in the stripping de- partment in September. He was a member of the Local One ' in-plant organizing committee . He discussed Local One in the meeting with John Confort on September 9, 1981. Cipriano's claim of discrimination in the assignment of overtime is founded on the difference, in the amount of overtime given to him before and after September 1981 and an allegedly unfair allocation of overtime between have been justified in. this situation , the testimony of Re- . According to Cipriano he had worked from 5 to 30 spondent's-own witnesses fails ,to explain why 20 years of tolerance . came to an end when it did. It is to be noted that no-reason for discharge such as preservation of plant discipline or effect on production is given . Orbine said, instead, that he lost his temper. I do not credit that ex- 11 planation. - Resporident put,Iannuzzi on notice in the -fall of 1982 that- forbearance was at an end, and that,, if lie continued _ only one of the problems with his testimony By and with his miserable attendance record, he would befired. I find that -Respondent determined to- avail . itself of an available remedy if he gave it the excuse to use it, and was 'motivated '.by its -displeasure at his union- activities. Iannuzzi's record -improved -somewhat ' but- it remained bad. Respondent thus had its lawful -excuse to wreak -its revenge and it-did. I fmd that; notwithstanding the exist- ence of a-valid justification for discharging Iannuzzi, that was not the reason he.was actually fired . He was fried - because Respondent wanted to get nd of him because of his activities in -support. of• Local One: That is the only finding which is compatible with Respondent's past con- }doriation of his latenesses 'and absences, its high regard for This -work capabilities, and its scrapping of the ar- rangement`for him .to transfer to-the night shift. - overtime-hours a week in busy periods from the time the 'department moved to Long Island City (October 1980) to September 1981. He contended that thereafter he was not given -any overtime at all. At a point further along in his testimony , he asserted that the reduction in the number of opportunities afforded him to work overtime began in October, rather than September, but that was large, considering the nature of his allegation (that over- time was reduced) the lapse of memory which . he suf- fered with respect to: the details made it impossible to accept his contentions in preference to the relatively clear. testimony of Respondent's witnesses . He could not remember 'whether he received any, overtime in August, September, October , November, and December 1981 or in January, February, March, or April 1982, or the amounts of overtime, performed . When asked to explain how he arrived at the conclusion that he received, less overtime beginning in October 1981, his evasive response was that he did not remember on the basis of specific months. Since he did not even review his pay stubs for the summer months of 1981, it.is altogether unclear what the basis of.his allegation was. . CONFORT & CO The -evidence establishes that the real reason Ci- priano's overtime was reduced, aside from the slowdown in the first quarter of 1982, was that he was turniiig it down. Memoranda kept. by Von Erden show that, Ci- priano refused to' work overtime on March 5 .and 10, 1982. Cipriano conceded that he had been offered 'over- time camera work, his normal function, on March 5 by Von Erden and turned it down.` Cipriano got married on November. 7," 1981. Von Erden testified that from the latter part of 1981 Cipriano refused to work overtime because it deprived him..of a chance to see his wife.. Von Erden testifed, without con- tradiction, that he asked Cipriano to work overtime as it was required and Cipriano's response was uniformly. neg; ative Cirpiano finally conceded as much, professing to be unable to recall whether he had.told .any representa- tive of management that he was unwilling to work, over- time for that reason and conceding that there were times between November 1981 and May 1982 when he turned down overtime, that he had actually worked a lot of overtime in October 1981 (which was a. time when his, involvement with Local One was fully, known to.man- agement), and that he turned down overtime,, approxi- mately once a week during the period from January through May 1982. . The evidence thus establishes that Cipriano continued, to be offered overtime in spite of his work for Local One and in spite of-other difficulties which he had with sir- pervisory personnel, discussed hereinafter,•-and that his failure actually to work overtim'e,was at his own ele'c`tion' and had nothing to do with actions 'of management which would be deemed culpable under the Act. - - An allegation of discrimination by reason of events 'on March 5 is similarly baseless. On that 'date," which was a Friday, Cipriano worked his full 7-1/4 hours, part of which time was devoted to a rush job -which Von Erden brought' in. Implying that it was somehow spirited away.: from. him, Cipriano testifiedthat it' disappeared .while-he was in the darkroom. When he came out; he asked Von' Erden what happened'to it and Von Erden• simply- told him that something else had to be done`on-it. Later,' he asked Von Erden about it again. Von Erden told him- that something else had to be done,a'bout it and asked him if he would like to work overtime' that night. 7 Ci-'' priano declined. Cipriano's, reason for declining' .the work 'was that' overtime work on Saturday was `preferable to, Friday night overtime, since on Saturday 'it amounted io'4'h_ouis while on Friday nights it amounted only 'to 2-h6urs. Ac="- cording to Cipriano, he asked Von' Erden how come'he" was not asked to come in on , Saturdays"any more, 'and ; - Von Erden's answer amounted to a 'prosecutgr's' dream;" Von Ei•deii told Cipriano that"the'reasoii was'"thisi sitiia- tion being what it is" and that if matter's were different,' he would be asked, to work overtime more frequently:- i ' I do not credit Cipriano's •testimony''and I do 'credif Von Erden's testimony that'tlie 'procedure followed-wash` in conformity with longstanding' practice: ' I 'iriight -men-• tion also that-Cipriano, as he' had `with respect -to•o'thei• • points in the course of .his testimony, changed his story and testified that Von 8rden told' him that he did '.not assign overtime to him on Saturday because it"was' his; 589 Von- Erden's, prerogative and he chose not to do' so. I do' not credit that story'either. The overtime arrangement among the two cameramen had been explained to-Cipriano by Von Erden as early as 1980. When overtime -was involved, Silburn, the day cameraman, = would come in early and work - through lunch. Cipriano would stay late. Cipriano would there- fore work overtime on Friday, if necessary, but overtime work on Saturdays would inevitably be done by Silburn. Von Erden's rationale for this system was completely free of discriminatory overtones- he testified that there was only enough 'overtime for one shift. Because the overtime starts at 7"a.m. on Saturday, the nighttime man would. not be expected to do it. Silbarn, the day camera- man; was " therefore assigned to it and' Cipriano, the nighttime man, would be' asked to do it on Saturdays only in "an emergency when Silburn could not be present. If it was not finished by the end of the Saturday shift, the following night shift would complete it. Von Erden testified that it had been' handled in this fashion as long as he,could-remembei•. • ' ' ` ' In this connection, I -might *note that Von Erden was confronted- with precisely -the'type of situation. which Chirico described in his testimony' summarized earlier in this decision. He had d very large job which the custom- er wanted. the first thing Monday morning. Von Erden was interested in the night shift getting the shooting done so that when.the= day shift came in on Saturday morning the work could 'be given to the strippers. Sil- burn was • on' call 'for overtime in the morning: Von' Erden asked Cipriano, to stay and shoot the job and he refused. As. I have. noted above, in conceding that he had turned down the overtime on that occasion, Cipriano had made a point of- emphasizing the more. lucrative nature of- Saturday overtime.-He wanted it, though he, knew he, was not entitled. to it.,' He, had. testified that he asked Von,Erden why he no longer got,-Saturday over-, time.. Yet when he was. ,asked . on' cross-examination how many times he' worked on'.Saturday between Janury 1, 1981,'and January, 1_ 1982, he- replied that he did.not re- member. Respondent produced the time records.for,Ci- priano; and Silburn. for. the-period from'January .8, 1981, thorugh April 29, 1982.- They showed two things. They showed that before the Local One campaign, Cipriano received almost no Saturday overtime.,Thus, the practice.-, .following ;the inception- of the Local One campaign was, not a departure from. the usual practice, of..reserving Sat= urday overtime for,,the, journeyman cameraman.. The, second thing-:the records showed was that. if Saturday,. overtime-is excluded, from consideration Silburn and' ,Ci- priano,had, about the same.amount: of overtime. - ; I fail . to seek that there ;.has been : any ,deprivation-. of overtime, at, all, much,•less; a discriminatory -reduction in, violation. Of the Act. 2. Wntten.disciplmary.warnings - It`-'is alleged :'t'at written disciplinary -warnings were - improperly issued to Cipriano on September 22, 1981, and' January 22, 1.982. The first was issued for Cipriano's failure to appear -for' work on 4 days 'du`ring a span of--3,' 590- DECISIONS OF NATIONAL LABOR RELATIONS BOARD weeks and for lateness, and included a comment by Von Erden as follows : "If your general attitude does not im- prove, the company will have no choice but to post dis- ciplinary action . The choice is yours." The second warn- ing was for conducting private business in the plant and was signed by Orbine: _ You have committed the following infraction(s) of Company rules, practice or policy: You were ob- served selling jackets on'the premises during work- , ing hours. Activity of this nature is not permitted. You are also reminded that during working hours, your time for which you are being paid, must be spent at your job. The purpose of this notice' is to: Warn you that any further violation will `subject you to the following disciplinary -action: dismissal. Cipri ano requested a hearing on the September 22 warning, at which he presented the defense that his ab- sences were pursuant ' to a special arrangement ' Von Erden had worked out when the day cameraman refused to go along with his request to work days for 2 weeks in September. Von ' Erden corroborated Cipriano's state- ment only to the extent • that he confirmed that he had agreed to let 'Cipriano work some days if Silbum agreed, which he did not, and asserted that some absences had .disrupted the. work of the depart ment. To this, Cipriano responded that he had,had to attend a funeral, and that in similar circumstances in 1980 , there 'had been no re- . percussion whatsoever. He also complained that he had never, before been told that his general attitude needed :improvement. This produced a change in the wording of the disciplinary.notice, whereby the reference to "gener- al attitude" 'was , modified to "present attitude ." He, did • not fare so well, however, with respect to the warning as 'a.;whole, largely because he apparently had practiced deceit in his relations with management and had been caught at it. Orbine -.testified that he had visited the. Feast of St. Gennaro' on a Friday night in September 1981 and saw Cipriano operating a booth there., When Orbine got into work on Monday morning, he checked 'to find out whether Cipriano was supposed to have ,been at work a id.ascertained that he was supposed to be working but 'had been absent . He asked Hanlon to prepare 'a' written • warning. Since Cipriano was out' because of a reported. death in the family or something of that nature the warn- ing was given to him on Tuesday. Within a day or two Orbine was notified of a grievance meeting of the Con- to rt'Employees. Association to discuss. the warning: At ..this meeting some members of-the- committee expressed the, opinion that issuance of a warning was unfair `be- cause, though , Cipriano had missed 4• days recently, his ,,overall attendance had been good:-Orbine responded that -''his overall l, attendance - record was good but that the nature of 'the ; absence on Friday -night was a, flagrant abuse.. The fact that he was working at another job and .,,earning money someplace else and 'did not come to his primary place of work was 'what inspired 'the warning. This response squelched objection to the warning per se .but, since there was objection to the language employed ,in, it,- the.'reference, to "general attitude" was modified. During •, the meeting neither Cipriano nor anyone else contended that he had been given permission,to'take the, night off. Orbine corroborated Von Erden's account of the events which, was that, prior to issuance of the warn- ing, Von Erden told Cipriano, he had no vacation time left and would have to change hours with Silburn if he wanted to work days, and that Von Erden had no objec- tion to their changing shifts so long as the job was cov- ered. As Silburn declined to switch, Cipriano should have been at work instead of at the 'festival on the night Orbine saw-him. • ' It is not for me to say whether a warning notice should have been issued to Cipriano, who had a good at- tendance record, simply because one of Respondent's ex- ecutives was angered- that Cipriano was working else- where when he should have -been at the -Company. The sole issue is whether any connection to Cipriano's union activities or Section 7--activities has been established. Clearly it has not. ' The warning notice dated January 22, 1982, resulted from Charles Caputo seeing a bindery employee from the third floor trying on a jacket in the stripping depart- ment. Cipriano testified that, prior to that time,' no man- agement representative had ever told him he could not sell anything on the premises during working time and there was no rule respecting the matter. He had made a regular' practice of selling clothing throughout 1981 and had sold to almost all the employees in the shop without ever being told he could not do so while at work. In fact, his customers included Von Erden, Frank Vitale, and Caputo himself. This testimony was sharply. controverted by Orbine and Von Erden. Von Erden testified that he never saw Cipriano, selling clothing during working time. Orbine, while conceding that no - notice prohibiting the practice was, posted,,-testified, that • Cipriano had been expressly warned about it on a prior occasion by himself personal- ly after he had received a report from Caputo that Ci- priano had left his work station to sell clothing. Accord- ing to Orbine, when he confronted Cipriano, Cipriano apologized and promised to discontinue the practice im- mediately. He asked Orbine for permission to go around the plant to collect his receivables and Orbine told him to make sure that he did it on his own time. . I have no hesitancy in crediting Von Erden's and Or- bin's testimony respecting these circumstances, especial- ly in view of John Confort's testimony, in another- con- nection, that he normally went through the entire plant three' time ' 'a day.' I cannot picture Von Erden and Orbine; or any other'supervisor, knowing Confort's prac- tice - of keeping in close personal touch with the whole operation, acquiescing in an employee running a clothing 'business there on company time . The demeanor of the witnesses alsb left me with the strong conviction that in this instance, as in other matters, clear and rexplicit' testi- mony by Respondent's supervisors was more dependable than the version testified to by Cipriano. I therefore find that Cipriano was warned twice about the selling of clothing on company time and that the warnings were in no way connected to his support of Local One. CONFORT & CO. There is ' absolutely no evidence that the issuance of either of the warnings which I have reviewed was in any way related to Cipriano's union activity. It is well settled that an employee's involvement in union activity does not shield him from the consequences of improper activi- ty in the workplace. Accordingly, I find that there has been no violation of the Act by reason of the issuance' of the warnings complained of. 3. Harassment of Cipriano by Von Erden According to Cipriano, Von Erden approached him on March 5, 1982, at the beginning of his shift and told him that there was some grease on the rollers of the loge processor (that is the processor that develops the film). Grease on the rollers would prevent film from being de- veloped and would halt all the work going through the department. Von Erden asked Cipriano if he did it and Cipriano denied any knowledge of it. 'Cipriano testified that Von erden then said something to the effect that it did not look good 'for Cipriano "because of all of this union stuff going on, he thinks I' was sabotaging, ' he thought I was sabotaging the machine." On cross-exami- nation he,quoted Von Erden as saying that it "doesn't look good with all this union' stuff going' on; it 'doesn't look good for you." According to'Cipriano, "lie specifi- cally used the word "union" and 'to Cipriano's knowl- edge it is the only time Von Erden ever used the word "union" in the conversation with him. Cipriano had- no knowledge of any such' prior occurrence. It. was ^ his re- sponsibility to clean the machine 'but the grease -had been found on the rollers that morning when Silburn; the day cameraman, came in and had been removed by the 'time Cipriano arrived. Though Cipriano did not 'receive-a warning notice based on any accusation,that' he had 'sab- otaged the machine, and, though 'no action was -taken against him in connection with the incident, the General Counsel contends that Cipriano was 'subjected to harass- ment by being accused of sabotage. As usual,-the tale as told by Cipriano'bears' only super- ficial resemblance to the version presented ; by Respond- ent's witnesses. Von Erden testified' that Silburn came over to him in the morning and told him that; there was oil coming off the dryer, belt of the machine, onto the film that he was putting through. Von Erden asked-Ci- priano-about it when he came in that evening. Cipriano, in Von Erden's version, did not profess ignorance of,the matter but replied that he had been trying to get rid of a squeak; Von Erden then told. Cipriano,. `,Sal; oil- doesn't belong on the dryer belt and if I didn't know you better I would say you did it deliberately,,.and he come back and said if I wanted to do `something deliberately, I would punch someone in the, face. That was it.' . Von Erden denied that there was any mention of the Union at all and testified that no • action was taken againstCi- priano. Cipriano gave some testimony which lends support to Von Erden's version of the conversation:, ' Q. And, when Von Erden spoke to you he told you there was grease on the rollers, is that correct? A. Yes, he did. • . I " ` ' 591 Q. And, he asked you if you had put 'the grease on the rollers? ' A. Yes. Q. And, didn't he tell you it was improper to put grease on rollers? A. `Yes, he did. Though Cipriano, in his version of the events,, never saw the grease on ,the rollers, he does not dispute the fact that there was ,grease. on the rollers . There is no evi- dence or testimony to indicate that he was -furious at the charge or that he attempted to make any investigation of his own, such as by talking to Silburn, who discovered the grease on. the rollers . He appears at the time to have calmly accepted and confessed to an extremely grave acusation. Whatever the facts were, the exchange be- tween Von Erden and Cipriano sounded to me like a le- gitimate inquiry . made ' by Von Erden . of Cipriano. I credit Von Erden's statement that he never, mentioned the Union in his conversation. I do not find that Cipriano was unlawfully harassed. Forced vacation,. February 8-12,,1982 On' Friday, February '5, -1982,4 Von' Erdeq ' walked into the darkroom while' Cipriano was working ' there, handed him a `check, and told him` he '_ was .on . vacation' the fol- lowing week (February • 8-12). This was ' the first notice he had'that he would be'on vacation the following'week. Cipriano ` called- Von Eden's-attention -to the company policy that "'people who` had ' accrued' 4''weeks"' vacation were requested to fake theirs` first; using 'up the' fourth week before ' anybodywita ;lesser 'amount of ' time was approached: Von Erden resp6nded that the day camera- man had only 2 weeks' vacation ' and since `he-was` the -night cameraman-and had 3 weeks'vacation `he''was` tell- 'ink him to` take' hi's"third week -vacation.:tAccordin'gly, Cipriano took vacation time the following week: That happened to"be ''the week in' which-'the 'election, took place.- It . Y• 'fi ' is contended that `the' direction to' Cipriano ""to 'take vacation time amounted to' the • imposition' upon him of more 'onerous'working ' conditions and' it is suggested, that ' this ' was done 'pursuant ' to a design bn the part of "Re- spondent 'to keep'him away during the 'week of the 'elec- iion. Much was made of the' fact that Cipriano was not ' adv'ised' until Friday `that he would 'be on forced vacation the ' following week. Even iFwithout the altogether'' creditable '-explanation which`Von_Eiden offered m 'his` testimony,`' it would' be difficult to credit ''Ciprianos'complaints ,in-view of the "fact that h'e ' not 'only ' attended the election, rbut was''des- ;ignated;'as` an 'observer' on behalf `of' Local 'One (though he appears -not to have actually '-acted in1-that-capacity). ' Cipriano `gave` no' testimony from "which` a lack of justifi- cation for Responden't's' action could have: been inferred. On the`contrary,. he conceded that he and Silburn were the only"persons-in the :camera " section:''the question of whether the discretionary leave policy was 'discriinina- torily applied by-restricting its application. in this in- stande' to the cameramen alone, instead of- applying it- to the entire' stnpping`department, was not arguedby "either 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel or Respondent. I suspect that this is because it would seem to make little sense to send a stripper home if work is in short supply for the camera- men. That was, in fact, precisely the case. Von Erden testi- fied that work was extremely slow and the camera de- partment had had no work the preceding week. Cipriano had 3 weeks of accumulated leave and Silburn had no discretionary weeks left at all It would thus appear that, considering the specialized nature of the cameramen's work, the policy was fairly and nondiscriminatorily ap- plied. Von Erden satisfactorily explained the late notice to Cipriano by pointing out that it was customary to wait until the last possible minute of the last day before.put- ting an employee on discretionary leave in order. to allow for the possibility that. work might come in. This practice was followed with everybody. (The, General Counsel's suggestion that there had been some variation from that practice with respect to Iannuzzi was ex- plained by the fact that that had occurred in the old premises where the workflow was different and they had greater leadtime, and thus knew a longer period of time in advance when it would become necessary to take dis- cretionary leave.) I find no violation of the Act by reason of the direc- tion to Cipriano to take discretionary leave in February 1982. - 5. Cipriano's evaluation by Caputo, February 1982 It is alleged that an evaluation of Cipriano by Caputo in February 1982-was violative of the Act. The charge is provoked by the fact that Charles Caputo, 'in his capacity as night supervisor, went out of his way to append a memorandum addressed to Orbine and the Review Com- mittee to the'form for the 1981 evaluation of Cipriano. The memorandum read as follows: To: Steve Orbme and Review Committee Although Sal is not directly under my supervi- sion I feel.that as overall Night Supervisor it.is my 'duty to report any observations or problems which I feel need attention in order to be fair to the Com- pany and all: the- other employees. _The reason I have not discussed this with Sal directly is that this is a continuing problem and the last time I spoke to him about it approx. 4-6 mos. ago he became loud and abusive towards me and did not seem willing to correct the problem: Which is Sals excessive per- sonal phone calls, although Sal has been making and receiving several calls each night I did not bother counting or timing them until lately when more than one-other employee made a complaint wanting to know, why he'couldn't use the, phone that often. On • Tuesday-,I 2/15 I noticed, Sal make at,least - 3 calls' which, lasted no less than a total of 25 minutes, them ,in between receive.; 2 calls' on Wednesday 12/16. I noticed 2 being made totalling at least 15 minutes, also Sal. makes anywhere from one to four trips each night from his assigned work area into the pressroom for short personal conversations. . Although I feel Sal is in general a good employee and I am not fully qualified to evaluate him on his job performance, I feel that this evaluation (partial) should be added to his overall evaluation. Charles W. Caputo Night Supervisor The question is whether the evidence shows that this adverse rating was written to intimidate Cipriano or jeopardize his position because of his union- activities or whether, it was done because he was abusing the tele- phone privilege and-leaving his work area too frequent- ly. The telephone records show the number of times a Sayville, New York telephone number was called and the number of minutes the telephone calls consumed. Ci-' pnano's financee resided in Sayville at that time. Considering this aspect as part of the overall picture, in which Cipriano complained of being followed and stared at, it- is apparent that he was coming in for more than the usual attention. For example, his activities in checking with his brother and calling home appear to have been noted by Caputo on the night of February 17, 1982, when he made memoranda concerning Cipriano's being out of his work area at 10:10 p.m. and a telephone call he made at 10:41 p.m. Caputo noted that the first conversation lasted 2 to 3 minutes and the telephone con- versation concluded at 10:45 p.m. - However, as is true with respect to almost all facets of - this case, the aura of suspicion which hangs over Re- spondent's motivation because of the pendency of the Local One campaign is dispelled by an almost over- whelming presentation of abundant justification for the disciplinary measure imposed. Caputo testified that he first had, occasion to speak to, employees about the use of the Company's telephone around May or June 1980, prior to the removal of the plant to Long Island City. Orbine had complained to.him that several customers and officers of the Company had been unable to get telephone calls through because the lines were continuously busy. He asked Caputo to find out if there was a problem with the telephones or if they were acutally in use. Caputo discovered what he termed abuses of the telephone and reminded the employees in the prep department and the offset department that per- sonal phone calls on company time or.on the Company's phone were prohibited except in case of an emergency or illness or to let their families know that they were working overtime. Bindery • Foreman Spencer Silvers was instructed, to convey the same message to the per- sonnel of his department. Silvers subsequently informed Caputo that an employee had, angrily pulled the tele- phone off the wall in protest against the restriction. This employee turned out to be Vincent Cipriano, who, when questioned by Caputo, said that he did it because he had not been allowed to make a telephone call to, his girl friend. Caputo placed him on suspension. He repeated to Cipriano that the company telephone was not for,person- al use but for company business and that, barring a family emergency, an illness, or the necessity to notify his family that he was working overtime, he was not to use it. Cipriano's response was insulting and defiant. CONFORT & CO. Caputo reminded him that he was -the supervisor of the shift and that he was simply restating a longstanding company policy. Cipriano's attitude remained' defiant, so Caputo left the matter on the basis of a direct order to Cipriano to stop using the company telephone. In spite of this, a year later, in May or June 1981, a number-of long-distance telephone calls made during Cipriano's shift hours turned out to have been made to the tele- phone number of his fiancee in Sayville, Long Island, New York. When confronted, Cipriano contended 'that he had a right to make the telephone calls. Caputo again told him that use of the company telephone was limited to company business and that personal telephone calls had to be made on a pay telephone which had been in- stalled -near the men's room in November or December 1980. Cipriano became abusive. Caputo` asked George Von Erden as Cipriano's immediate supervisor, to try to do something about it. The pay telephone to which Caputo was referred was frequently used by employees;' including Cipriano, who used it frequently after he was spoken to and in the period between May and September 1981. Nevertheless, that did not end the problem because his telephone calls, instead of-lasting the permissible 1 or 2 minutes, normal- ly ran 5 to 10 minutes on each-occasion. Caputo; noticed that Cipriano often made three or four calls in an evening. After consultation with Orbine, Caputo noted the violation on Cipriano's yearly evaluation-and submit- ted it to the evaluation group. The text of his remarks was quoted above. Cipriano testified that he did not see the evaluation until January 1982, but Caputo testified that, after he submitted it, Cipriano's telephone usage stopped for a short time. Then it picked- up again, with Cipriano making four to six lengthy calls each night. While Caputo was vague about the time, fixing the increase in Cipriano's telephone usage as being "in late January, February and March of '81" I credit his testimony and find that events occurred substantially in the manner he described. Caputo testified that he made a practice of putting himself in plain view where he could create eye contact with Cipriano and signify to him by gestures that he should get off the telephone..He again consulted Von Erden and Orbine and, in accordance with Orbine's sug- gestion, began keeping a record of the telephone calls. There is thus a considerable history ,of attempts to curb Cipriano's improper use of the company telephone and excessive use of the pay telephone when he should have been working. Cipriano's conduct appears to have bordered on insubordination; at the very least, there ap- pears to have been a studied failure to heed the requests of supervisory personnel, as when Caputo found it neces- sary, on approximately five occasions between July and the end of November 1981, to step into plain view of Ca- priano' while he was on the telephone, in each instance for an extended length of time. time, Cipriano testified that at the time Capu to questioned him about telephone calls, and Cipriano conceded that the specific number he questioned him about was the telephone number of his girl' friend, Caputo did not tell him he was not permitted to make telephone calls to his girl friend on the company telephone. Cipriano conceded 593 that Caputo did not say it was all right for him to make telephone calls to his girl friend on the company tele- phone. According to Cipriano, Caputo asked him why he made the telephone calls and he told Caputo that • he was letting her know that he was working late those nights. He asserted that this explanation satisfied Caputo, who said, "O.K." I cannot-believe that testimony, espe- cially when Cipriano also insisted that he was never told by anyone at all that he was not to use the company tele- phone during working hours. He modified this to assert only that he could not recall whether or not he had been told. He also backtracked on testimony that use of the pay telephone was curbed and conceded that he did not think he was ever actually told that he could' not use' the telephone. His uncertain testimony cast serious doubt on his genral credibility. Certainly there were others besides Cipriano who abused the telephone privilege by using the telephone in remote areas of the plant, but that cannot justify Ci- priano's conduct. The differences in the telephone system in the new premises were such that vigilance on the part of management was essential. The evaluation of Cipriano appears to have been-legitimate, being a good report but noting the difficulties which have been reviewed here. - Evidence of any connection to Cipriano's activities on behalf of Local One is nonexistent and the contention is undermined by Cipriano's lack of credibility. (For exam- ple, he testified that he only requested to see his evalua- tion in January,1982 because he had heard that other em- ployees were seeing theirs. This is strange, coming from a former president of the CEA, but in any event his anxi- ety was obvious from other testimony he gave that he "insisted" on seeing it. He also testified that prior to the time he saw his evaluation, neither Caputo.nor any other management representative. had spoken to him about.his use of the telephone or his travels about the plant, which is testimony I cannot credit) The evidence fails to convince me that the evaluation of Cipriano was motivated by the fact that he was en- gaging in union activity. Legitimate business concerns were involved and-he was clearly violating company di- rectives and ignoring his obligation to pay attention to his work. The tightening of disciplinary control over the employees is obviously conincidental in time with the Local One campaign, but to find a violation of the Act requires that some actual evidence be presented which establishes a bridge between the two events consisting of some actual motivation to or action designed to curb .union activity. That does not.exist here. - 6. Assignment' to less desirable work' duties, . March_5, 1982 Respondent is alleged to have violated Section 8(a)(1) and (3) 'of the Act 'on March''5, 1982; by assigning less desirable work -duties to Cipriano. The record is barren of proof to-support this allegation., March 5, of course, was a= memorable day for Cipriano for reasons already discussed. - I regard the instant allegation as an attmept on Ci- priano's part to justify his refusal to work. overtime that evening, as previously 'described., The only difference be- 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tween Friday night work and Saturday daytime work, in that instance, would have been the number of hours worked. There would have been 2 additional hours on Saturday which, for reasons already discussed, _ were amply demonstrated to have, been properly held unavail- able to Cipriano. The nature and type of, work that Ci- priano was doing- and The nature and type of work he was asked to do on overtime on that Friday night was not different from the work he normally did. He testified to no respect`in'which there was any difference whatso- ever.! - Accordingly, I find that on the date in question he was not assigned to less desirable work duties. I liave already found that there was no illegal motivation for any -of Re- spondent's actions on that evening. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The violations of the Act herein found to have been committed by Respondent have a close, intimate,- and substantial relationship to trade, -traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent Confort & Company, Inc. is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2.' Local One, Amalgamated Lithographers of Amer- ica, a/w International Typographical Union, AFL-CIO is a" labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated - Section 8(a)(1), (3), and (4) of the • Act by discharging -Ronald lannuzzi on April 20, 4983, because he engaged in protected concerted activi- ties. 4. Respondent violated Section 8(a)(1) and --(3) of the Act by issuing a written disciplinary warning to Ronald lannuzzi on January 28, 1982, -ostensibly on account of his lateness but actually because he had engaged in pro- tected concerted activities. - - - 5. Respondent violated Section 8 (a)(1) of the Act when its president John Confort interrogated the execu- tive committee of the Confort Employees Association in ,his office 'on September 9, 1981, about their intentions with respect to the announced intention of Local One to organize the lithographic employees of Respondent and when John Confort asked an employee who had testified in a hearing to determine the appropriate bargaining unit, "Joe, how the hell did you get involved in this?" 6. Respondent did not commit any other violations of the Act except as herein found. - 7. The unfair labor practices .found above affect com- merce within the meaning of Section 2(6) and (7) of-the Act. action to effectuate the policies of the Act. I shall recom- mend that Respondent be directed to offer Ronald Ian- nuzzi reinstatement to his former position or, if that posi- tion' is not available, to a substantially equivalent posi- tion, without prejudice to his seniority rights and privi- leges, and make him whole for any loss of earnings and other benefits which he may have suffered by reason of his discharge on April 20, 1983, with backpay to be com- puted in the"manner prescribed, in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be com- puted in the manner prescribed in Florida Steel,Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). 1 further recommend that Respondent be required to expunge from its records any, reference to the unlaw- ful discharge of Ronald lannuzzi and provide him with written notice of such expunction and that his unlawful discharge will not be the basis of any further personnel action against him. On these findings of fact and conclusions of law and on the- entire record, I issue the following recommend- ed' - - :ORDER - The Respondent, Confort & Company, Inc.,'Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercivelyinterrogating any employee about union support or union activities.- (b) Discharging or discriminating against any employ- ee for supporting Local One, Amalgamated Lithogra- phers of America, a/w International Typographical Union, AFL-CIO or any other union. (c) Issuing written disciplinary warnings for lateness or absence to any employee because he has engaged or is engaging in protected concerted activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the ,exercise of the rights guaranteed them by Section 7 of the Act.In any other manner interfere with , restrain, or coerce you -in the exercise of the rights guaranteed you by Section 7 of the Act. - 2. Take the following affirmative action necessary to effectuate the policies of the Act. - (a) Offer Ronald lannuzzi immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or any other rights- or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as , a result of the discrimina- tion : against him, in the manner set forth in the remedy section of the decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records ne'c- THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that Respondent be directed to cease and desist therefrom and to take certain affirmative poses. I If no exceptions are filed as provided by Sec 102 46 of the, Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, -be adopted by the Board and all objections to them shall be deemed waived for all pur- CONFORT & CO. essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the unlawful discharge of Ronald Iannuzzi and notify him in writing that this has been done and that the discharge will not be used against him in any way. (d) Post at its plant in Long Island City, New York, copies of the attached . notice marked "Appendix."2 Copies of the notice, on foiins provided by the Regional a If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." 595 Director for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent `immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by-the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint. is dismissed insofar as it alleges violations- of the Act not specifically found. i . .t i