Pittsburgh Press Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pittsburgh Press Company and George Wetz. Case 6-CA-12552 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 21, 1980, Administrative Law Judge Charles M. Williamson issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-exception and a brief in support of the cross-exception and the Adminis- trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions ' of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Pittsburgh Press Company, Pittsburgh, Pennsylva- nia, its officers, agents, successors, and assigns, I Respondent has excepted to certain credibility findings made by he Administrative Law Judge. It is the HBoard's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950). enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings I In adopting the Administrative Law Judge's finding that Respondent violated Sec. 8(a)(3 ) and (I) by suspending George Wertz because of his union activities, we find it unnecessary to reach the General Counsel's exception that Respondent's action also violated Sec. 8(a)(l) based on the Supreme Court's holding in NI..R B. v. Burnup and Sims. Inc.. 379 U S. 21 (1964) 3 In par. (b) of his recommended Order, the Administrative Law Judge provided that Respondent shall cease and desist from "in any other manner" interfering with, restraining, or coercing its employees i the ex- ercise of the rights guaranteed them by Sec. 7 of the Act. However, it is the Board's policy that such an order is warranted only when a respond- ent is shown to have a priclivity to violate the Act. or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. Ilickmnot Foods, Inc., 242 NLRB 1357 (1979). With respect to the istant dispute, we find that the broad injunctive order issued against Respondent is riot warranted. Accordingly, we will modify the Administrative Law Judge's recommended Order and notice In accordance with his partial dissent in Olympic Medicaul Corporation, 250 NLRB No II (1980) Member Jenkins would award iterest on the backpay due based on the formula set forth therein. 252 NLRB No. 75 shall take the action set forth in the said recom- mended Order, as so modified: 1. Substitute the following for paragraph l(b): "(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL_ LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WI.LL NOT suspend any of you because you engage in union or other concerted activi- ties. WE WIIl. NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you in Sec- tion 7 of the Act. Wt WIlEL make George Wertz whole for any loss of pay suffered by him as a result of his suspension, plus interest, and WE WILL remove from his personnel or other records kept by us any record of his suspension. PITTSBURGH PRESS COMPANY DECISION STAI'EMENT OF TIHE CASE. CHARL ES M. WILLIAMSON, Administrative Law Judge: This case was heard before me at Pittsburgh, Pennsylva- nia, on January 29 and 30, 1980, pursuant to a complaint and notice of hearing issued on August 31, 1979. The complaint was based on a charge filed July 11, 1979.1 Amendments to the complaint issued on January 10, 1980, and January 22, 1980. As amended,2 the complaint alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act when it suspended employee George Wertz on June 21 for a period of 3 weeks. Respondent's answer, filed September 6, admits the suspension of Wertz but denies that its conduct vio- lated the Act. I Henceforth, all dates are 1979 unless Iotherwise indicated. 2 The two amendments allege that Robert R. Teti. Robert Seli, and Lois Weixel are supervisors of Respondent within the meaning of Sec. 2(11) of the Act and are agents of Respondent within the meaning f Sec 2(13) of the Act Respondent filed an answer to the amendments admit- ting the truth of these allegations 500 PITTSBURGH PRESS COMPANY All parties have had the opportunity to present evi- dence, to examine and cross-examine witnesses, to argue orally, and file post-hearing briefs. The General Counsel: and Respondent filed post-hearing bricfs which have been carefully considered. Based upon my observation of the demeanor of the witnesses, the record as a whole. and the post-hearing briefs, I hereby make the following: FINDINGS OF FACI I. JURIS)IC lION Respondent, a Pennsylvania corporation, at all times material herein, has been engaged in the publication, cir- culation, and distribution of The Pittsburgh Press, a daily newspaper in the Pittsburgh, Pennsylvania, area. Re- spondent operates an office and place of business in Pitts- burgh, Pennsylvania. During the year prior to July 1, Respondent, in the conduct of its business operations, de- rived gross revenues in excess of $200,000, held member- ship in or subscribed to various interstate news services (including United Press International), published various nationally syndicated features (including Jack Anderson's Washington Merry-Go-Round column and Parade Maga- zine), and advertised various nationally sold products, in- cluding automobiles and appliances. Based on the forego- ing, I find, and Respondent admits, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE AL.I.EGEID UNIAIR ABOR PRACTICES The alleged unfair labor practices in this case grow out of contacts between Respondent's employees George Wertz and Yvonne Flowers in the context of an organiz- ing drive begun in May by the International Typographi- cal Union, Local No. 7. The organizing effort was di- rected towards Respondent's Advertising Department employees. The Typographical Union filed a representa- tion petition with the Board's Region 6 office in Case 6- RC-8522 on June 14. The alleged unfair labor practice occurred on June 21 when Respondent suspended Wertz for 3 weeks. The op- posing accounts of the suspension interview highlight one of the chief controversies in the case-the exact reason or reasons for Wertz' suspension. According to Wertz, 4 he was called into Advertising Director Robert J. O'Connell's office on June 21 at or about 5:10 or 5:15 p.m. by Classified Advertising Manager Robert Seli. Seli remained present while O'Connell spoke with Wertz. Wertz' account of the interview is as follows: Q. (By General Counsel) To the best of your rec- ollection, what was said at that time? A. Mr O'Connell told me that I was being sus- pended for three weeks-that they had evidence, that I had threatened, intimidated an employee, and offered to falsify a medical excuse. He said that the I This term will henceforth he ued to designate counsel ofir the Gen- eral Counsel. 4 Wertz had been employed by Respondent since May 1960, and at the time of the hearing he was a classified advertising sales person He had held that position since 1965 Prior to the incident related in this Deci- sion, Wertz had never been disciplined by Respondent three week suspension was a middle of the road de- cision-that they could have done nothing, they could have fired me, or they could have suspended me for three weeks. That a lot of thought went into this. One the length of my service, the other that I was a good employee, I was-he didn't use good employee-that I was doing a good job. And I said to him, aren't you even going to ask me my side of the story. He motioned with his hand to go ahead. O'Connell's version of the suspension interview differs in that he testified that only a single reason for suspen- sion was given Wertz: Q. And where did you tell Mr. Wertz-where were you when you told Mr. Wertz this? A. In my office. Q. Was anyone else present at that time, sir? A. Mr. Robert Sely [Seli], the Classified Ad Man- ager. Q. And would you tell the Court what you told Mr. Wertz with regard to his suspension? A. I told George that we had documented evi- dence that he, indeed, had tried to obtain a false medical certificate and on that basis we were going to suspend him for a three week period. O'Connell insisted throughout his testimony that Wertz' alleged attempt to obtain "a false medical certifi- cate" was the sole reason for the suspension and was the only reason given to Wertz at the June 21 meeting. O'Connell did testify, however, that Wertz' alleged threat to Flowers was mentioned at the June 21 inter- view: Q. Now, sir, at your meeting with Mr. Wertz at about 5:15 p.m., was there any discussion about the Yvonne Flowers incident from the previous week? A. There was. Q. Would you tell the Court what you said with regard to that incident? A. I told George that we had further evidence that he had threatened an employee in his attempt to have her sign an authorization card. I reminded him that in the beginning of the campaign that our Company had sent out a letter saying that the Com- pany would not tolerate intimidation or threatening of an employee on either side-for the Union or for the Company and that the Company would protect the employees. And I told George that after he returned that if this happened again I would take a much stronger action. Q. Why did you even raise the question of the June 8th incident? A. I felt I had to tell him everything at the time-what had led up to the incident of why we had then made a decision. What I really wanted to do was to tell George that one, the suspension that came about from one, the false or attempt at a false medical certificate i501 DECISIONS OF NATIONAI. LA()OR RELATIONS BOARD that I wanted George to know that we had infor- mation on the other end of the case. For the reasons set out below, I credit Wertz' account of the suspension interview. Additionally, I find (1) that Respondent was motivated to suspend Wertz because of his alleged threat to Yvonne Flowers at the time he so- licited her signature oil an authorization card; (2) that Wertz' alleged attempt to obtain a false medical certifi- cate for Flowers did not motivate Respondent to sus- pend him but was, in fact, used by Respondent as a pre- text to suspend Wertz because of his union activities and (3) that Wertz did not, in fact, offer to obtain a false medical certificate for Flowers nor could Respondent have had a good-faith belief that he did so at the time of the suspension and that Wertz did not threaten Flowers. A. The Authorization Card Incident The Typographical Union began an organizing drive among Respondent's advertising department in May. Wertz took no role in this activity until June 5, at which time he was contacted by employee Sydney Smith who gave him a number of blank authorization cards to dis- tribute to other employees for signature. One such em- ployee was Yvonne Flowers, who, although not a member of the classified advertising section sales force, was in the advertising department and could, arguably, have been included in a unit appropriate for purposes of collective bargaining. Wertz first contacted Flowers on June 6 by telephone from his desk and told her he thought it would be a good idea for her to sign a union card. He later gave her a card and Flowers decided to take it home and think it over. On Thursday, June 7, Wertz contacted Flowers again and inquired of her as to whether she had brought the authorization card to work. Flowers told him she had not, whereupon Wertz told her he would obtain another card. Wertz also said that Flowers might as well sign a card because if she were to be seen with him or to be friendly with him, O'Connell would believe her to be a union organizer. 5 That afternoon, June 7, around 5:35 p.m., Wertz handed Flowers an envelope containing an authorization card and told her "here Yvonne, if you don't sign this card, don't bother coming to work tomorrow." Flowers was on her way leaving work near the elevator in Re- spondent's building. Other employees leaving work heard the remark and there was general agreement that the remark was made in a jocular fashion and general laughter ensued. 6 I Flowers' version of this remark was that Wertz said something to the effect that he would tell O'Connell she was a union organizer. I credit Wertz' version Flowers impressed me as an extremely sensitivc, nervous person who sas given to remembering her inferences from things said rather than the actual form of words used, . This finding is based on the mutually corroborative testimony of Wertz. Flowers DeNinno, Urbanek. and Sampson. Flowers. while admit- ting that Wertz and others laughed, nevertheless insisted that she did not interpret the remark as a joke and that she was frightened of losing her job, particularly in light of Wertz' previous statement about O'Connell potentially believing her to be a union organizer. I find that Flowers may have been nervous about the situation revolving around the authorization card and her job as she did not impress me as being as sophisticated as the other witnesses to this incident concerning matters (of labor relations On Friday, June 8, as Wertz and Smith were leaving at the end of the day, Flowers invited Wertz to a sur- prise birthday party for her mother, Mrs. Dorothy Flow- ers.7 B. The Medical Certificate Incident On Saturday, June 9, Yvonne Flowers left her home in Pittsburgh, after having packed some personal items in a bag, and drove to the home of her aunt in Portsmouth, Virginia. She first testified that she did this "Because I had been having some arguments with my boyfriend and I couldn't talk to him and I just left out and felt real tight. And I felt as though, if I got in the car and started driving, that would ease things to clear my mind." She later testified that "the problems at work" was also a part of the reason for going to Portsmouth. Flowers stayed in Portsmouth over the weekend and did not go to work on Monday, June II. She contacted her mother by telephone on Sunday, June 10 and let her know where she was. She did not tell her mother at that time her reasons for leaving Pittsburgh. On June II11, her mother called her and told her to contact O'Connell be- cause she had talked to O'Connell and he wanted to know what the problem was and why Flowers was not at work that day. Flowers did not call O'Connell until the afternoon of Tuesday, June 12. O'Connell asked her what the problem was and she related the problems she was having with her boyfriend' and the situation with Wertz on the job. She apparently told O'Connell about the incident with the authorization card on June 7 and the alleged remark to the effect that Wertz would tell O'Connell that she was a "union organizer." O'Connell asked if she was going to return to work and she re- quested to return on Monday, June 18. O'Connell agreed. Flowers stayed in Portsmouth until the following Saturday, June 16 because she was trying to "get my nerve up to drive back I hadn't driven that far before and, after I got down there and realized just how far it was, it scared me a little bit more." When Flowers re- turned to work on June 18, she related the various inci- dents in which she had been involved to an attorney re- tained by Pittsburgh Press.9 While Flowers was in Portsmouth, Wertz was at work on both June 11 and 12. On June 12, a fellow employee, 7 The timing of this incident is disputed Wertr knew Yvonne's mother because she had been instrumental in obtaining some needed car registra- rtiins for Wertz the previous April. Wertz had taken her to lunch by way of expressing his appreciation (Mrs. Flowers is a clerk in the State De- parmetrt of General Services). Wertz, Smith, and Kelly all testified that the incident took place on a Friday. Wertz and Smith said June 8 Kelly testified it was on a Friday at "the beginning of June." Kelly's disinterest- ed testimony leaves the date open as either June 1 or June 8. The maltter is settled by Yvonle Flowers' testimony that she only began organizing this party the week of June 4 Flowers reluctantly admitted inviting Wertz to the party but insisted she did soi earlier in the week prior to the June 7 authorization card incident and Wertz' remark to her concerning ()Connell's belief that she might be a union (organizer I credit Wertz, Smith, and Kelly and find that while Flowers may have been nervous, Wezrt4had not frightened her n Flowers attributed these problems to the fact that she was tense over her work situation but had not communicated her concerns to her boy- friend. She said he was getting upset "because he knew that there was something that I was keeping from him . and I wouldn't tell him." u Her written statement is in evidence as G.C. Exh 7 attachment A. 502 PITTSHlURGH PRESS COMPANY who kept attendance records, asked Wertz where Yvonne Flowers was and commented that Flowers had not been at work either Monday or that Tuesday. Wertz replied that he hoped Flowers had not been in an acci- dent, that he knew Yvonne's mother, and that he would give the mother a call. Wertz proceeded to do so and asked Dorothy Flowers if Yvonne had been hurt or been in an accident. D. Flowers replied, "No, Yvonne is a- right. She will be at work tomorrow .... " Wertz re- plied that the Company might ask Yvonne for a doctor's excuse and stated that he knew where one could be ob- tained from a company doctor. Dorothy Flowers' ac- count of the conversation does ot materially differ from Wertz' testimony. ° Flowers testified that immediately after Wertz called her, she in turn called O'Connell and related to him what Wertz had said. She stated that she did this because she had talked to O'Connell the day before and "he was very concerned about Yvonne and he had stated that Yvonne was doing such a good job and that he had wanted her back...." This June II conversation occurred as a result of O'Connell's secre- tary coming to D. Flowers at her place of work to in- quire about Yvonne Flowers' whereabouts. D. Flowers told the secretary about the union card incident involv- ing Wertz and her daughter the week before. After the secretary left, D. Flowers received a telephone call from O'Connell and she related to O'Connell what her daugh- ter had told her about the union authorization card inci- dent. D. Flowers stated that she told O'Connell that Wertz "had threatened [her] daughter." In the June 12 conversation with O'Connell, D. Flow- ers told him: Yes, I told him Mrs. Wertz had called me and was inquiring about Yvonne and wanted to know if she was okay and that he had offered to recom- mend a doctor friend of his so Yvonne could get a work slip to go back to work and I had told Mr. Wertz that Yvonne was okay. On cross-examination, D. Flowers first stated that Wertz did not offer to obtain "a falsified medical excuse," she stated that he "offered the name of a doctor for Yvonne . . . he would have offered the name, I sup- pose, if I had asked." Immediately after, in answer to a question by the court she replied that she did understand Wertz to be making an offer to falsify. Her explanation, in brief, was that Wertz made his offer of a doctor right after she had said Yvonne was "okay." In a written statement given Respondent on June 14 (G.C. Exh. 7, at- tachment B), D. Flowers stated, "It was clear to me that °0 Considerable effort was expended by all parties on the question of whether it was reasonable for Wertz to assume that Yvonne Flowers was ill after her mother said she was not hurt or in an accident and, in fact. stated that Yvonne was "all right" I find Wernz' assumption reasonable as it is consistent with the obvious remaining possibility that even if Flowers had not been "hurl" or "in an accident." she might still have been the ictim of one of the minor medical almenlts-e.g.. flu or a cold-that are the most common reasons for an employee missing I r 2 days of work Hasving such an ailment is not inconsistent with D Flo)w- ers' description of Yvonne as "all right" Werlz' assumption might not possess the rigor of textbook logic, but t accords ith the casual assump- lions or inferences made in eeryday life George [Wertz] was offering a doctor who would sign a slip that Yvonne was sick. even though she was not." O'Connell's version of the June 12 conversation about the medical excuse does not differ materially from D. Flowers' account. Based on the testimony of Wertz, Dorothy Flowers, and O'Connell I find that Wertz was not, in any sense, attempting to assist Yvonne Flowers in obtaining a false medical excuse. I cannot find that the form of words used by him to Dorothy Flowers could give rise to a reasonable inference that he intended so to do. There is nothing in the circumstances of his tele- phone call to Dorothy Flowers on June 12, nor in his previous employment record as known to Respondent., which could give rise to a reasonable inference that he was engaged in a fraudulent attempt to obtain a medical excuse for Yvonne Flowers. O'Connell nevertheless in- sisted at the hearing that he drew this inference immedi- ately after he was informed by Dorothy Flowers of Wertz' remarks to her. He stated that when he was told of it that he immediately came to the conclusion that "here I had someone who was going to cheat this com- pany." C. Antiunion .lnimus The General Counsel presented employee Sidney Smith to testify concerning Respondent's conduct of em- ployee meetings immediately after the start of the Union's organizing campaign. " Smith testified that Re- spondent's supervisors, Robert Seli and Lois Weixel, conducted one such meeting on May 23. Employees Smith, Donnally, Schuetz, and Miller attended. At this meeting, Seli began by stating that the union was trying to organize. Weixel then said that the union had tried to organize about 4 years previously and the company had let it go for weeks before they did anything about it but this time "they were going to nip it in the bud." Seli then commented that the Union was going broke, that the)' had more people on pensions than they had work- ing, and, if they went broke, none of the people would get their pensions, and that was why the Union wanted the advertising department employees-because the Union needed the dues. Seli then spoke about the Union's high dues and initiation fees and pointed out that Respondent had recently instituted a new dental and eye- care plan. Seli stated that these plans made the advertis- ing department employees' benefits more than the union benefits "and he said we wouldn't want to lose those." Two employees then commented that they needed the benefits. Smith then said that she thought everything was negotiable. Weixel replied that Respondent would have to negotiate with everyone in the bargaining unit and that there were more younger people who just want - The allegations concerning these meetings constituted alleged 8(a)(1) violations in Cases 6-CA-12445 and 6-CA-12552. The General Counsel introduced informal written settlements in these cases Int, c- dence for the purpose of showing that the settlements contain wairs h) Respondent of any objection to the use of such evidence in any subse- quent proceedings in the nstant case. (See G.C. Exhs 2 and 3) I re- ceived he settlemenits only fr that purpose I will not issue any remedial order inl, lsing such (a)(1) allegations in the instant case The .ct;lleent in Case 6 CA 125S2 represented a partial settlement of the instant case B)oth settlenicrlt i, conlJained "llinadmilission" clIuses 503 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD money as opposed to older employees who would be in- terested in benefits. Smith replied that the Union would probably want to keep the benefits and pension plan and negotiate for more money. Seli replied, "You can't do that. You have to start out with nothing and work your way up." Weixel then reminded Sell to say something "about Birmingham." Seli then stated: [I]n Birmingham, they were negotiating for five years and that they don't get any raises the whole time that they are negotiating and he said: they still don't have a contract,-so, he said: that's what you have to look forward to. After some interim comment by Smith, Weixel then said, "that you have to start out with nothing and that you'll be lucky to get out of this with what you already have anyway." Seli testified that he kept announcing that everything was "negotiable." He admitted mentioning the Birming- ham situation but testified that he had said employees were obtaining raises even though no contract had been signed. He denied saying that the Birmingham situation was what the employees would "have to look forward to." Weixel insisted that she said little during the meeting and denied making any remarks about pensions or nip- ping the union "in the bud." Weixel described herself several times as "very quiet" during the meeting. Mary Schuetz, testifying on behalf of Respondent, admitted being at the meeting although she could not recall the date. Her testimony concerning the various statements attributed to Seli and Weixel was somewhat ambiguous. When asked about specific statements she replied, e.g., "I don't recall that", "I don't recall that either," and "no, I didn't hear that." Based upon my observation of the rela- tive demeanor of the witnesses, I credit Smith. In making this determination, I have taken into account Smith's ad- mission on cross-examination that she had at one time a close personal relationship with George Wertz. Howev- er, in my opinion, this factor is outweighed by her forth- right, direct manner of testifying and the fact that she was testifying against the interest of her employer. See Southern Paint & Waterproofing Co., Inc., 230 NLRB 429, 431, fn. 11 (1977); Astrosystems, Inc., 203 NLRB 49 (1973); Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1966), enfd. as modified 308 F.2d 89 (5th Cir. 1962). The guarded, careful testimony of Seli and Weixel and the ambiguous answers of Schuetz are relatively less credible and their numerical superiority to Smith does not require a different result. Credibility is not dependent on cor- roboration. See Sea-Land Service, Inc., 189 NLRB 13 (1971); Roman Cleanser Company, 188 NIRB 931 (1971). I find that the remarks of Respondent's supervisors at the May 23 meeting unlawfully implied to the employees that Respondent would adopt a retrogressive bargaining posture as a result of their voting for the union. Madison Kipp Company, 240 NLRB 879 (1979) (example given to employees of company which bargained 8 years without reaching agreement); Tufts Brothers Incorporated, 235 NLRB 808 (1978); Coach and Equipment Sales Corp., 228 NLRB 440 (1977). Analysis I find that Wertz was suspended for two reasons (I) the authorization card incident and (2) the medical certif- icate incident. I credit Wertz' account of the June 21 sus- pension interview. These findings are based on the rela- tive demeanors of Wertz and O'Connell as they testified; the inherent probabilities of the situation; the fact that Robert Seli, whom Respondent called to testify on other matters was present at the suspension interview but was not questioned by Respondent on this hotly disputed topic;' 2 the fact that Respondent's campaign letter of June 22 (G.C. Exh. 5) implies strongly that Wertz was suspended for both reasons;'3 and finally, the August po- sition letter of Respondent's attorney (G.C. Exh. 7) which is not consistent with O'Connell's testimony re- garding the reason for the Wertz suspension.14 I find that Wertz did not threaten Yvonne Flowers by his conduct towards her in connection with soliciting her signature on an authorization card. Twilight Heaven, In- corporated, 235 NLRB 1337, 1342 (1978). That Yvonne Flowers was upset, in part, by the circumstances sur- rounding the solicitation is true. However: [I]t would be improper to deprive an employee of the Act's protection solely on the basis of the listen- er's reaction. So long as the appeal is protected, the reaction of those who hear it is immaterial. '5 Thus, it appears that Respondent through its agent, O'Connell, suspended Wertz for two reasons, neither which withstand analysis nor constitute misconduct. Under these circumstances, the court is compelled to look elsewhere for the correct reason. In the light of Re- spondent's antiunion animus, reflected in part C, supra, the shifting reasons for the suspension given by Respond- ent as found above, the evasive testimony' 6 of O'Connell G2 Good'ear Tire & Rubber Company, 190 NLRB 84. 86, fn 3 (1973). ": C. E xh. 5 stops just short of so stating I note that O'Connell was able to draw this rather subtle inference when questioned about GC. Exh. 5. 1 have taken this demonstrated ability of O'Connell into account in evaluating the inference he drew about the medical excuse from what he was told by Dorothy Flowers on June 12. See infra. 14 This letter was not composed by representatives of the law firm which represented Respondent at the hearing in this matter. 'i Twilight Heaven, supra at 1343. I do not rely on certain other cases cited by the General Counsel, viz, Synchro Corporation, 234 NLRB 550 (1978), where a specific statement of intent to slash tires was made or FMC Corporation, 211 NLRB 770 (1974), where specific statements like "I guess I'll have to run over you" were made. '6 Thus, O'Connell at one point testified that the alleged fraudulent medical excuse was the "main reason" for Wertz' suspensioI. He was unable to explain what subsidiary reasons, if any, existed. Despite the contention that only one reason existed. O'Connell admitted that he men- tioned the authorization card incident at the suspension interview because he thought Wertz ought to be aware of all sides of Respondent's "case" (O'Connell's word). Finally. O'Connell testified that when he heard of the medical excuse incident (on June 12, he dismissed from his mind "par- tially" the alleged threats to employee Flowers. When questioned as to why he regarded the medical excuse incident as being far more serious than an alleged threat to an employee, O'Connell could not give a re- sponsive answer. On redirect, Respondent's counsel elicited testimony that O'Connell was a Roman Catholic and thus extremely sensitive to questions of dishonesty in regard to money or property. I reluctantly ad- mitted this testimony despite the existence of Rule 610, Federal Rules of Evidence, oin the ground that motivation not credibility was at issue. The Continued 504 PITTSBURGH PRESS COMPANY regarding his conduct at critical moments, and the failure to obtain Wertz' side of the controversy before deciding on discipline, I find that the sole reason for Wertz' sus- pension was his activity on behalf of the Typographical Union. See Tama Meat Packing Corp., 230 NLRB 116 (1977), enfd. in pertinent part at 575 F.2d 661 (8th Cir. 1978) (failure to obtain employee's version of story): Skaggs Payless Drug Stores, 188 NLRB 784, 786 (1971) (shifting reasons). 7 CONCI USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By suspending George Wertz on June 21 because he engaged in activities on behalf of Typographical Union, Local No. 7, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. THif RIm NI )Y Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom, and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having suspended George Wertz for a period of 3 weeks, I shall direct that Respondent make him whole for any loss of backpay that may have oc- curred and shall remove from his personnel and other re- cords any record of his suspension. Wertz' backpay shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). " Upon the foregoing findings of fact, conclusions of law, and on the entire record, including the post-hearing briefs of the parties,19 and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: matter is a delicate one, but I am led to discount this testimony by virtue of the observation that all Western Judaeo-Christian religions have simi- lar prohibitions in this area and all discountenance personal threats 17 The General Counsel, in part, relies on VL.R.B. v. Burnup and Sims Inc., 379 U.S 21 (1964), as regards the authorization card incident. That case involves violation of Sec 8(aXI) where the employer's actions are not motivated by anti-union considerations. In the instant case, I have, however, found that the employer's entire conduct in suspending Wertz was founded on an anti-union motive. Therefore, a violation of Sec. 8(a)(3) is found, not Sec. 8(a)(1). Moreover, there is no "partial moti- vation" involved as the General Counsel argues 18 General Counsel filed a supplemental brief seeking interest at the rate of 9 percent At the time of writing his Decision. the Board has not changed its Phorida Sl prescription for the interest rate (on backpas awards I find nothing in the present record which convinces me that a change is necessar. in the instant case. Additionall, I am hound by the Board's precedent. ' Respondent filed a reply brief after he initial briefs were filed The General Counsel moved o strike Respondenl's replN brief on the ground ORDER 2 0 The Respondent. The Pittsburgh Press Company, its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Suspending employees for engaging in union or other concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole George Wertz for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records nec- essary to analyze and compute the amount of backpay due under the terms of this Order. (c) Remove from the personnel or other records kept by it regarding George Wertz any record of his June 21 suspension. (d) Post at its place of business in Pittsburgh, Pennsyl- vania, copies of the attached notice marked "Appen- dix."2 t Copies of the notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. that the Board's Rules and Regulations. Series 8. as amended, make no provision fir reply briefs. The General Counsel's motion is denied I have received and considered Respondent's reply brief. 20 In the eent no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec 102 4H of the Rules and Regulations. be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2I In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words n the notice reading "l'Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- aint to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 505