Allied Printing Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1973

202 N.L.R.B. 1045 (N.L.R.B. 1973)

ALLIED PRINTING CORP. 1045
Allied Printing Corp. and Local 8, Newark Newspaper
Pressmen 's Union, a/w International Printing
Pressmen and Assistants Union of North America,
AFL-CIO. Cases 22-CA-4919 and 22-CA-4982
April 10, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 18, 1972, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and the General Counsel
filed a brief in opposition to the Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
In issue are the questions whether the Respondent, in
violation of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended,2 discriminatorily discharged
employees Robert Rudolph and Hugh Gray because of
their union membership and activities , and otherwise
interfered with, restrained, and coerced employees in the
exercise of their statutory rights. At the close of the
hearing, the parties waived oral argument, but thereafter
the General Counsel and the Respondent filed briefs in
support of their respective positions.
Upon the entire record3 and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a New Jersey corporation, is engaged
in the business of providing and performing printing and
related services at its plant in Saddle Brook , New Jersey,
where it also maintains its principal office. In the regular
course and conduct of these operations , the Respondent
annually furnishes printing services valued in excess of
$50,000 to firms located outside New Jersey.
It is undisputed , and I find , that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Allied Printing
Corp., Saddle Brook, New Jersey, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
I Respondent in its brief has also requested the case to be set for oral
argument before the Board. Since we believe that the record and briefs
adequately present the contentions of the parties, we deny this request.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on August
24, 25, September 6, and 7, 1972, in Newark, New Jersey,
on the consolidated amended complaint of the General
Counsel issued on July 24, 1972,' and the answer of Allied
Printing Corp., herein called the Respondent or Company.
' The amended complaint is based on separate charges filed by the
Union on May 8 , 1972, in Case 22-CA-4919 and on June 21, 1972, in Case
22-CA-4982, copies of which were duly served on the Respondent by
registered mail on the respective filing dates.
2 Sec. 8(axl) of the Act makes it an unfair labor practice for an employer
"to interfere with , restrain , or coerce employees in the exercise of the rights
guaranteed in section 7." Insofar as pertinent , Sec. 7 provides that
"[e lmployees shall have the right to self -organization, to form , join , or assist
labor organizations , to bargain collectively through representatives of their
II. THE LABOR ORGANIZATION INVOLVED
In accordance with the stipulation of the parties, I find
that Local 8, Newark Newspaper Pressmen 's Union, a/w
International Printing Pressmen and Assistants Union of
North America, AFL-CIO, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This is another one of those familiar cases where an
employer is charged with attempting to prevent the
unionization of his employees by terminating those
responsible for such activity and by engaging in other
unlawful conduct, while the employer vigorously asserts its
innocence.
A. The Evidence
1. The advent of the Union; the Respondent's
reaction
The Respondent is a commercial printer of publications,
operating a nonunion shop. Jules Jacobsen and William
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection... .
Sec. 8(a)(3) prohibits, with certain qualifications not material herein, an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to . . . discourage membership in any
labor organization... .
3 G.C. Exhs. 7A, 7B, and 7D, which were received in evidence, are
erroneously identified in the transcript of testimony as G.C. Exhs. 6A, 6B,
and 6D. The transcript is accordingly corrected.
202 NLRB No. 160
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cohen are its principal stockholders and serve as president
and secretary-treasurer, respectively. The Company's day-
to-day operations are entrusted to General Manager Ralph
Mizrahi, under whom is Pressroom Superintendent Gus-
tave Semon, who is in charge of production. The Company
employs a total of 18 to 20 production employees on the
day and night shifts.4 Prior to April 26, 1972,5 Robert
Rudolph and Hugh Gray, the two pressmen on the night
shift, discussed between themselves the need for union
representation. On that date, Rudolph requested Gray, a
member of the Union, to arrange for a union representa-
tive to speak to him about organizing the employees: Gray
thereupon telephoned James Sherlock, the Union's finan-
cial secretary, who, within an hour, arrived at the plant.
After Sherlock explained to Rudolph the advantages of
unionization, Rudolph signed an authorization card and
agreed to secure employee signatures to additional cards
which Sherlock furnished him. Thereupon, both of them
proceeded to discuss the Union with several employees in
the shop with the result that Rudolph succeeded in signing
up two of them that evening.6 No management official was
present in the plant at the time of this solicitation.
Subsequently, Rudolph secured two or three more signed
cards, as did another employee, who, at Rudolph's request,
solicited employees on the day shift.
Being of the opinion that Sherlock should talk over his
organizational intentions with Pressroom Superintendent
Semon, whom Gray had known for some 15 years, Gray
arranged for the three of them to meet. On Thursday, May
4, at about 7 in the evening, Gray and Sherlock drove to
the plant where they met Semon and together they went to
a local bar. After exchanging amenities, Sherlock brought
up the subject of the Union's interest in organizing the
Respondent's pressroom employees. In answer to Semon's
inquiry as to how he intended to proceed, Sherlock stated
that he would talk to the employees individually and
explain the benefits of union representation. However,
Sherlock did not inform Semon that this activity had
already started, indicating, instead, that Semon would not
know when it did begin. Semon then requested Sherlock to
defer organizing the plant until the following Wednesday
so that he (Semon) would have more time to think it over.
Sherlock replied that he could not promise to delay. Semon
also questioned Sherlock concerning the Union's demands
and was assured that the Union would offer the Company
a contract with which the parties could live and that the
Union had no desire to put the Company out of business.
In response to Semon's inquiry regarding the number of
employees the Union required to man the press, Sherlock
commented that this, too, would be worked out. At one
point in the conversation, Sherlock told Semon that, if the
plant were organized, he probably would regain the union
card he once had. Throughout the discussion, Rudolph's
name was not mentioned.?
There is a conflict in testimony whether on this occasion
Gray explained his absence from the plant since May 2.
4 The Respondent has an additional 16 to 18 employees who work in the
mailing area of the plant and are not involved in this case.
5 Unless otherwise indicated , all dates relate to 1972.
6 One of these cards signed by employee Robert Howe was erroneously
dated April 28 instead of April 26.
7 The above findings are based on Sherlock 's virtually uncontradicted
According to the mutually corroborating testimony of
Gray and Sherlock, Gray expressed his regret for not
coming to work, stating that it was due to his father-in-
law's illness and that he had to drive his wife to visit him in
Brooklyn. Semon assured Gray that he had nothing to
worry about and that he could return to work when
circumstances permitted. Gray then indicated that he
would come to the plant the following day (Friday, May 5)
to get his check.
Semon denied that Gray mentioned his father-in-law's
illness in the conversation. He testified, however, that when
he asked Gray why he had not come to work that evening,
Gray answered that the Company did not need him as the
Rolling Stone printing job would be completed early, but
that he would report for work the next day. Semon also
testified that he did not pursue the matter further, even
though he actually required Gray's services that night.
I find Gray's and Sherlock's testimony more plausible. It
seems to be only natural that Gray would mention his
father-in-law's illness to account for his absence since May
2. On the other hand, I find it difficult to believe that
Semon would only question Gray- about his failure to
report to work on May 4, especially since Semon testified
that Gray had not notified him of his absence on the 2
preceding days. Moreover, if Gray had really told Semon
that he would not return to work on the May 4 evening
because the Rolling Stone job was in the process of
completion , it is incomprehensible to me why Semon
would not impress upon Gray that there actually was a
need for his services that evening, as Semon testified there
was. Accordingly, I credit the accounts given by Gray and
Sherlock.
The following morning, Friday, May 5, Semon apprised
General Manager Mizrahi that he had been with Union
Representative Sherlock and Gray the night before.
Mizrahi suggested that Semon convey this information to
President Jacobsen, and Secretary-Treasurer Cohen, which
he did when they arrived at the plant about 11 a.m. for
their customary Friday management meeting .8 In relating
his conversation with Sherlock and Gray, Semon advised
them of the Union's intention to organize the pressroom
employees, that he was questioned concerning his opinion
of having a union in the shop and that he was offered his
International union card back. Jacobsen and Cohen
thanked him for the information. Thereafter, Jacobsen
asked Mizrahi whether he knew anything about the
Union's interest in the plant and received Mizrahi 's answer
that all he knew was what Semon had told him.
Apparently not happy with the prospect of a unionized
plant and sensing that the Union's appearance was
indicative of employee unrest and dissatisfaction, Jacobsen
decided to talk to several employees about the situation.
Accordingly, within the next few hours after learning of the
Union, Jacobsen summoned employees Ramiro Lugo,
testimony. Semon's recollection of this conversation did not appear' to be
too clear and, whatever variances there are in his account , they are of no
consequence.
8 Management meetings attended by Jacobsen, Cohen, and Mizrahi, are
customarily held every Friday. This is the day when Jacobsen and Cohen
also sign employee paychecks.
ALLIED PRINTING CORP. 1047
Frederick Dilgard, and Leroy Gaskins individually to a
room in the office area where he interviewed them .9 Cohen
was present at least during the conversations with Dilgard
and Gaskins, while Mizrahi was in and out of the room,
preoccupied with business matters.10
Lugo gave the following account of his conversation with
Jacobsen: After Jacobsen opened the conversation with
the statement that he understood there were some
problems in the plant, he asked Lugo how long he had
known him. Lugo replied that it was 4 1 /2 years. Jacobsen
thereupon questioned him whether he knew what happens
if a union gets into a plant. When Lugo made no response,
Jacobsen remarked that Lugo surely knew what happened
at other places or papers. Jacobsen then remarked that, if
the union got in, it would "cripple this place," adding that
the Respondent was a new company, that its equipment
had not been paid for, and that Jacobsen and his partner
were not drawing any salary. At about this point, Jacobsen
inquired whether a union representative had approached
Bob Howe, a camera room employee on the night shift.'1
Lugo answered that he had not seen any union representa-
tive in the plant. In reply to Jacobsen's further question
whether he was going to attend a union meeting scheduled
for the next day (Saturday, May 6),12 Lugo stated that he
would not, as he had to leave the city for upstate New
York. Lugo also testified that Jacobsen made no threats or
promises of benefit, but assured him that whatever he said
would not affect his job.
Jacobsen conceded that he did bring up the subject of
the Union in his conversation with Lugo, but in the
following context and manner: Stating that something was
not quite right in the plant, Jacobsen told Lugo that he
wanted his help and information regarding the problems
there which he would keep in confidence and which would
not jeopardize his job; Lugo thereupon related that the
only thing wrong in the plant was Mizrahi's attitude
toward the employees and that, if the owners corrected
that situation, some of the problems would disappear. This
led to Jacobsen's inquiry whether Lugo knew anything
about a union. Lugo replied that no one had spoken to him
about it and that, as a matter of fact, he would not be
interested in a union because it was against his religion.13
Although Jacobsen categorically denied that he ever used
the word "cripple" in any conversation for personal
reasons, he did recall expressing a hope to Lugo that the
plant would not be unionized, because it would be a
terrible burden vn the Company. He further testified that
he in nowise indicated that he would close down the plant
if the Union came in. In addition, Jacobsen contradicted
Lugo's testimony that he asked Lugo about the Saturday
union meeting or whether he intended to be there. On the
9 It appears that Jacobsen separately interviewed Lugo and Gaskins in a
general purpose room in the office area and Dilgard in another paneled
room in that area which was originally intended as an office but was being
used as a sort of storeroom. It is this paneled room that Jacobsen and
Cohen customarily use when they visit the plant. According to Jacobsen, the
Respondent's chief executive officer, he spends a day or a day and a half a
week in the plant.
15 Only Jacobsen testified to these conversations on behalf of the
Respondent. Mizrahi testified that because of his preoccupation with
business matters he was not in a position to testify to the conversations.
11 As shown above, Howe had signed a union authorization card for
Rudolph on April 26 when solicited by him in Union Representative
contrary, Jacobsen testified, Lugo volunteered the infor-
mation that he had overheard someone mention that such
a meeting was going to be held and that he would not
attend because he was going to New York.
I have no doubt that Jacobsen was concerned that a
situation existed in the pressroom which caused employee
unrest and inspired the union movement and that he
interviewed Lugo, among other trusted employees, to
ascertain the root causes . It is also clear from Lugo's and
Jacobsen's testimony that, whether or not Jacobsen
actually used the term "cripple" to describe the effect a
union would have on the Company, Jacobsen's remarks to
Lugo were intended to, and did, convey the idea that the
presence of a union in the plant would create economic
difficulties for the Company. While I therefore find no
inherent contradiction in the testimony of Lugo and
Jacobsen in the above respects, there is a conflict regarding
Jacobsen's interrogation of Lugo whether a union repre-
sentative had approached employee Howe and whether
Lugo intended to be at the Saturday union meeting. I
credit Lugo's version. He is a long-time employee of the
Respondent, apparently trusted by Jacobsen, who im-
pressed me as a witness whose recollection of the events
could be safely relied upon.14
On May 5, Dilgard, a cameraman on the night shift,15
was summoned to see Jacobsen after he reported for work
about 3 in the afternoon. Dilgard testified that, in a brief
conversation with Jacobsen, he was asked either if he knew
of any union activities going on in the plant or if he knew
anything about a union. He further testified that, when he
answered in the affirmative, Jacobsen asked him why he
had not mentioned it before. Admittedly, this was a
friendly conversation without any threats or promises of
benefit being made. Although Dilgard also gave a "yes"
answer to a leading question asked on cross-examination
that Jacobsen assured him that nothing he said would be
held against him, his other testimony indicates that
Jacobsen did not say he had nothing to fear nor gave him
assurances that he could engage in union activity without
fearing a loss of his job or being disciplined.
According to Jacobsen, after telling Dilgard that he
could talk freely and not to be concerned about his job, he
made the same general inquiry as he had made of him on
other occasions about the problems in the plant. Continu-
ing, Jacobsen testified that Dilgard responded in an
emotional and disturbed tone that there was much wrong
in the plant, blaming employee discontent on Mizrahi and
cautioning that the owners should pay more attention to
their business if they wanted to save their investment.
Jacobsen further testified that he did not recall whether he
asked Dilgard if he heard about a union or whether
Sherlock's presence.
12 Rudolph credibly testified , without contradiction , that he had
arranged for the employees to have a meeting with Sherlock and Union Vice
President Scofield on May 6, and that there was a poor turnout on that day
since the employees who had previously indicated they would attend failed
to do so. As later discussed , Rudolph and Gray had been terminated the
day before.
13 However, Lugo testified that he had signed a union card.
14 Georgia Rug Miii, 131 NLRB 1304, 1305, In. 2.
15 At one time prior to May 5, Dilgard was a supervisor. At his own
request , he stepped down from that position to become a rank-and-file
employee.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dilgard volunteered such information but that Dilgard
remarked that, if a union got in, Jacobsen would deserve it.
As indicated above, Jacobsen sought to elicit informa-
tion from Dilgard concerning employee unrest, as he had
done from Lugo. Moreover, it is undisputed that the union
movement also was involved in the conversation. I credit
Dilgard's testimony concerning the union interrogation by
Jacobsen, which I find essentially uncontradicted and
convincing.
The third employee interviewed on May 5 was Gaskins,
who replaced Rudolph as lead pressman after the latter's
discharge. He, too, was called to the office area by
Jacobsen when he reported for work about 2 p.m.
According to Gaskins, Jacobsen asked him whether he had
heard anything about employees wanting a union and he
answered that he had heard employees joking about a
union but that nobody had ever approached him.about
having a union. Gaskins also testified that Jacobsen then
inquired whether he liked a union and that he replied that
he "didn't go too much" for one. In addition, he testified
that Jacobsen made no threats or promises of benefit to
him but that he was assured by him that anything he said
would not be held against him or affect his job.,
Jacobsen testified that he made much. the same inquiry
of Gaskins, as he had of Lugo and Dilgard, regarding
problems in the plant and that Gaskins stated that he did
not know of any specific ones. With respect to his
questioning of Gaskins concerning a union, Jacobsen's
account did not differ substantially from Gaskins' except
that Jacobsen did not testify whether he asked Gaskins if
he liked a union, as Gaskins testified he did. Gaskins was
not unfriendly to the Respondent and, indeed, was called
as a witness by it to support another phase of its case.
Accordingly, I credit his testimony concerning union
interrogation.
Later in the evening of May 5, Rudolph was summarily
discharged without prior warning. The Respondent insists
it took this action because of Rudolph's unsatisfactory
work performance, while the General Counsel contends
that the discharge was prompted by his union activities.
The General Counsel also alleges that Gray was similarly
terminated the same evening. The Respondent, on the
other hand, denies discharging,Gray, asserting that Gray
just stopped coming to work.
The next day the Union held a meeting which Rudolph
had previously 'arranged for employees to meet Union
Representative Sherlock and Vice President Scofield.
However, there was a poor turnout. Rudolph testified that
employees who had previously indicated an intention to
attend failed to show up.
2. Rudolph's discharge
Before his employment with the Respondent, Rudolph
worked for a business form printing company for some 6
16 There is some question whether , at the time of his discharge , Rudolph
was still a leadman . It appears that the situation became confused when, in
about January 1972, the Respondent's controller posted a notice on plant
bulletin boards authorizing the employees ' foreman to approve timecards.
Gray, who was a pressman hired in the latter part of October 1971, was
designated on that notice as foreman of the night crew . In view of my
ultimate determination , it is unnecessary to resolve this question.
17 It appears that many of them were inexperienced part-time workers.
years. After performing various jobs there, he became an
apprentice on a business form offset press, achieving
pressman status. In October 1970, Rudolph was inter-
viewed by Pressroom Superintendent Semon and General
Manager Mizrahi and was hired to learn to operate a Goss
Urbanite webb offset press with which he had had no prior
experience. Initially, he worked on the day shift at an
hourly rate of $4 until he was transferred to the. night shift
in December 1970 where he received a 7-percent differen-
tial, bringing his wage rate up to $4.28 an hour. On
February 1, 1971, he was given a 20-cent raise to $4.48 an
hour. When he was reassigned to the day shift in May
1971, he was permitted to retain the previously granted
night differential. On October 1, 1971, Rudolph was
promoted to lead pressman on the night shift, at which
time he was given another 7-percent night differential,
thereby increasing his. hourly rate to $4.79. OnFebruary 9,
1972, he received a 20-cent raise to $4.99 an hour, which
was his wage rate at the time of his discharge on May 5. As
lead pressman,16 concededly a nonsupervisory position,
Rudolph was responsible for the production and comple-
tion of customers' printing jobs assigned to the night shift.
In that capacity, he operated the press with Gray, assisted
by four to eight employees,17 who helped on the press and
performed other services, such as bundling the publications
for delivery to customers. Semon, who was in' overall,
charge of the printing operation on both shifts and ran the
press on the day shift, usually remained in the plant about
4 nights a week until 9 or 10 o'clock,18 supervising the
night shift operation. It also appears that Mizrahi also
made frequent visits to the plant at night to check on the
progress of jobs.
On May 5, at about 5 p.m., when Rudolph reported for
work, he was met by Semon at the lockerroom door.
Informing Rudolph that the night shift was being discon-
tinued, Semon advised him that his services were no longer
needed and handed him his check. Rudolph then remarked
that this was quite sudden, as indeed it was since his
termination was without prior notice or warning, and he
inquired whether he was being terminated for something
he had done. Semon answered Rudolph's inquiry in the
negative, adding that, if he needed a job recommendation,
he would furnish it. Actually, the Respondent never
discontinued the nightshift. Semon testified that, although
the true reason for Rudolph's discharge was his unsatisfac-
tory performance, he personally contrived the reason given
to Rudolph only to soften the blow of. his termination.
Following his summary dismissal by Semon, Rudolph
spoke to Mizrahi, who similarly attributed Rudolph's
separation to the discontinuance of the night shift,
asserting that the Company could not afford to operate it
any longer. Rudolph again expressed his surprise at the
suddenness of this action.19 After Rudolph's discharge,
Semon operated the press on the night shift until about the
18 Because of the lateness of the hour, Semon on occasion did not go
home but slept in the plant.
19 The findings concerning Rudolph 's conversation with Mizrahi are
based principally on the former's credited testimony , which I find more
reliable than Mizrahi's version . Mizrahi testified that, when Rudolph
mentioned the discontinuance of the night shift as the reason for his
termination , he indicated that it was not true and that it was only Rudolph
who was being terminated because the Company could not afford him. As
ALLIED PRINTING CORP.
middle of May, when Leroy Gaskins was transferred from
the day shift to assume the functions of lead pressman on
the night shift.
As indicated above, it is the Respondent's position that it
was Rudolph's unsatisfactory work performance that
prompted his discharge. In support of its case, the
Respondent's officials painted such a bleak picture of
Rudolph's incompetence and shortcomings, which assert-
edly became progressively worse during the last several
months of his employment, that, if true, one is perplexed
why he was ever promoted to lead pressman, retained as
long as he was, and granted the wage raises he had
received. Thus, General Manager Mizrahi testified that
Rudolph was an inadequate pressman from "the very
beginning" of his employment, causing "a continuous flow
of complaints" from customers concerning jobs on which
he worked. When questioned why then was Rudolph
selected for promotion to lead pressman on the night shift,
Mizrahi replied because "beggars can't be choosers" and
the Company had no one else.20 He further testified that
since March 1972 the quality of Rudolph's work deteriorat-
ed and caused him "no end of grief" from two of his
regular customers, the publishers of the Suburban Shopper
and the Riverdale Press, whose publications he printed
poorly "week after week."21 According to Mizrahi, he
repeatedly complained about Rudolph's performance to
Superintendent Semon and, although Semon "for many
months" wanted Rudolph terminated, he (Mizrahi) refused
to do so out of consideration for Semon who would have
been required to assume additional burdens at a time when
he was already overworking himself. Significantly, Mizrahi
never spoke to Rudolph about his unsatisfactory perform-
ance except perhaps on one occasion concerning a May 1
job, which will be considered later.
Continuing with his testimony, Mizrahi related that a
point was reached about April 14 or 15 when, as a result of
a large number of complaints he had been getting about
Rudolph's work, he became upset and finally decided to
terminate him. The evidence shows that from April 18 to
22 the Respondent ran several ads in various local
newspapers for a lead pressman and that no response was
received.22 Mizrahi then alluded in his testimony to
Rudolph's uninterrupted deficient performance during the
latter period of his employment from April 24 to the date
of his discharge. Among other things, he testified to a
Suburban Shopper job which had been poorly printed on
April 24 on R,.udolph's shift and involved an abnormal
later found , Mizrahi's testimony concerning Rudolph's performance is
incredibly exaggerated.
20 It is noted , however, that Leroy Gaskins. who ultimately replaced
Rudolph after the latter's discharge , had been in the Company's employ
longer than Rudolph . Mizrahi testified that Gaskins was not originally
selected to be lead pressman in preference to Rudolph because, although
Gaskins was far superior to Rudolph as far as printing ability was
concerned , he lacked a sense of responsibility manifested in his bad
attendance record. There is no evidence that at the time of his promotion
Gaskins had become more reliable in this respect.
21 It appears, however , that none if Rudolph 's jobs was ever rerun,
although there was an occasion or two when a price adjustment was made.
Moreover , there is testimony that the Company also received customer
complaints for work done on the day shift for which Rudolph was
undeniably not responsible.
22 It is clear that the Respondent has repeatedly advertised for
experienced pressmen both before and after this occasion but without too
1049
amount of waste; that the next morning (April 25) he
"bitterly" complained to Semon and ordered him to tell
Rudolph to straighten out; that President Jacobsen called
Mizrahi the same morning to discuss the publisher's
complaint about this job and asked Mizrahi why he had
not yet fired Rudolph, as Jacobsen assertedly had
requested him to do on other occasions; and that Mizrahi
simply assured Jacobsen that a bad Suburban Shopper job
would not happen again . Surprisingly, Mizrahi did not
mention to Jacobsen on this occasion his purported April
14 or 15 decision to discharge Rudolph or his alleged
efforts to find a replacement for Rudolph. Nor, according
to Mizrahi's testimony, did he convey this information to
Jacobsen at the Friday management meeting on April 28
when, in the course of the discussion of Rudolph's
unsatisfactory performance of the Suburban Shopper and
other subsequent jobs,23 Jacobsen again asked Mizrahi for
the reason he had not yet fired Rudolph. Mizrahj testified
that he did not answer this inquiry. It is incomprehensible
that, if Mizrahi had really decided to discharge Rudolph,
he would not have informed Jacobsen or Secretary-
Treasurer Cohen of this decision that they purportedly
wanted to hear. However, the truth soon became clear
when, contradicting his earlier testimony, Mizrahi testified
that at the time of the April 28 management meeting, he
had not yet made a decision to terminate Rudolph.
According to Mizrahi he finally determined on Friday
morning, May 5, to discharge Rudolph. Mizrahi testified
that he reached this decision when he inspected the job
Rudolph had completed the night before for Peoples Press,
a want-ad publication; that it was poorly printed and
folded and looked like waste; 24 that he anticipated that the
job would upset the publisher; 25 and that this was the last
"straw." He further testified that he thereupon directed
Semon summarily to terminate Rudolph when he reported
for work in the evening. At this point, Mizrahi testified,
Semon attempted to tell him something about a union but
he cut him off with the remark that he was not interested,
repeating instead, his instruction to fire Rudolph. Howev-
er, Mizrahi testified that shortly thereafter when he calmed
down he listened to Semon' s statement that a union
representative had visited him the previous night and that
he thereupon told Semon first to discuss the matter with
Jacobsen, who was due to arrive shortly for a regular
Friday management conference.
As shown above, Semon informed Jacobsen of his
meeting with Union Representative Sherlock. According to
much success.
23 Mizrahi testified that he made his customary complaint about
Rudolph 's performance on these jobs to Semon , whose allegedly persistent
requests to Mizrahi to discharge Rudolph went unheeded.
24 According to the testimony of Semon and the publisher , the bundles
of the publication were messed up, badly bundled and tied , haphazardly
thrown on the cart for delivery, and the publication itself poorly folded and
printed. The function of tying, bundling, and stacking was the job of flyboys
and other employees on Rudolph 's crew . After Rudolph's discharge, the
Respondent installed an automatic stacker which counts publications more
accurately and stacks them more neatly.
25 Mizrahi and Semon testified that the Peoples Press job could not be
rerun because they were then preoccupied with completing the Rolling
Stone publication , whose publisher is the Respondent's biggest customer. It
appears that Rudolph ran part of the Rolling Stone job on the same night as
the Peoples Press job. There is no question that Rudolph 's work on the
Rolling Stone was satisfactory.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Semon, he, however, did not tell Jacobsen that he had
received instructions from Mizrahi to terminate Rudolph.
In the course of Jacobsen's subsequent conversation with
Mizrahi concerning Semon's union disclosure, Mizrahi
interrupted to apprise Jacobsen that he had ordered Semon
to fire Rudolph. and Jacobsen retorted that it was about
time. At the hearing, Mizrahi and Jacobsen denie&prior
knowledge of the Union's organizational interest or of
Rudolph's involvement. Semon testified that he also was
unaware of Rudolph's union activity.
Semon's appraisal of Rudolph's performance was much
in the same general vein, although^he was more generous
than Mizrahi in his opinion of Rudolph's earlier efforts.
Semon testified, as follows: At the inception of his
employment, Rudolph was diligent, eager to learn, and
worked hard, with the result that he was promoted to lead
pressman on the night shift. In the latter capacity, Semon
assisted Rudolph if he encountered difficulties. However,
for about 2 months before his discharge, Rudolph's work
"went downhill" and he started "to turn out garbage" and
jobs which were "totally unacceptable," although no job,
except possibly one,26 was rerun. Because of Rudolph's
"downhill" performance he advised Mizrahi about 3 to 5
months before Rudolph's discharge that he wanted him
terminated. However, Mizrahi declined to accept Semon's
recommendation, which he had repeatedly made, on the
ground that webb offset pressmen were unavailable, but
expressed the hope that Rudolph's work would improve.
Describing Rudolph's deficiencies for the approximate 4-
month period preceding his termination, Semon referred to
the protracted time it took him to do a job, the greater
number of employees he needed on his crew, the abnormal
amount of waste he produced, the bad quality of his
printing, the improper folding of papers, and the careless
tying and handling of bundles. Although Semon testified
that he had received complaints about Rudolph's work
which he "very strongly" called to his attention, there is no
evidence that at any time he warned Rudolph that he
risked discharge if his work did not improve.27
President Jacobsen gave the following testimony of his
knowledge of Rudolph's unsatisfactory performance and
his .reaction to such work: He first learned that Rudolph
was a lead pressman in March or April. For a long period
of time he heard more and more of Rudolph's poor
performance mostly from Mizrahi and occasionally from
Semon. Although Rudolph sometimes did a good job,
"very frequently" his work was "very" poor. In the early
spring, Mizrahi and Semon complained to him that the
situation on the night shift was becoming increasingly
more -aggravated with more problems being presented
there. These problems were due to Rudolph's. failure to
shape up and his poor production. As a consequence,
26 Semon, however, could not identify the particular job or the time it
was run.
27 Semon testified that, when Jacobsen informed him of the customer's
complaint about the April 24 Suburban Shopperjob and that he feared that
the Company would lose this account if there were no improvement, he
assured Jacobsen that the situation would not happen again. Semon further
testified that he criticized Rudolph for printing that type of "garbage" and
told him he had to do better or the Company would lose the Suburban
Shopper account. Semon also testified that 2 weeks before this episode, and
"quite a few times" before that, he had the occasion to tell Rudolph that he
was not performing well, although sometimes he did do good work for
Rudolph's performance was a "constant" subject of
discussion at the Friday management meetings where
Jacobsen and Secretary-Treasurer Cohen urged28 or
instructed Mizrahi to get rid of Rudolph. At first, Mizrahi
stated that nothing could be done about the problem
because of his inability to get pressmen and expressed the
hope that Rudolph would improve. Then, at subsequent
meetings during April, Mizrahi would hardly answer
Jacobsen's and Cohen's requests to discharge Rudolph. In
fact, at the April 21 management meeting, when Jacobsen
and Cohen practically directed Mizrahi to fire Rudolph,
Mizrahi made no response, only "sort of shrugged it off."
Jacobsen further testified that, after he received the
Suburban Shopper complaint and. discussed it with
Mizrahi. and S'emon, he was "furious" with Mizrahi for
failing in his managerial responsibilities and arranged for
the discussion of the matter at the April 28 management
meeting. Moreover, Jacobsen testified that on this occasion
he and Cohen instructed Mizrahi to fire Rudolph and that
this action, which was long overdue, was-to be taken
whether or not a replacement could be obtained and even
if it meant reducing the amount of work the Company
would accept from customers. He also testified that he
assumed that Mizrahi would terminate Rudolph the
following Friday, May 5, although no date had been
indicated. When questioned regarding the raises given to
Rudolph, Jacobsen testified that they were granted by
Mizrahi without,his knowledge. However , it is noted that
Jacobsen and Cohen were the officers who signed the
employees' paychecks.
Rudolph denied, ever receiving.a complaint, notice, or
warning that his work was unsatisfactory. However, he
acknowledged that every now , and then,. Semon, in the
regular course of his duties, would check a paper coming
off the press and require him to make certain corrections or
changes in the printing process. Moreover, he admitted
that there were several occasions when Semon and Mizrahi
told him that a particular job took too long. In addition,
Rudolph testified that Mizrahi expressed displeasure
concerning a job he had run on or about May I and the
abnormal amount of waste produced. Rudolph further
testified that Mizrahi, however, told him on that occasion
that he was not criticizing him personally but that he
wanted to know what was wrong, whether Gray was the
cause. Rudolph answered that Gray was not at fault but
placed the blame for the type of job that was produced on
insufficient manning of the press and the cause of the
waste on his belief that the press might have been cold
because of some maintenance work which might have been
done on the day shift.29 In this conversation, Rudolph
testified, Mizrahi stated that he wanted more production.30
In addition, Rudolph testified that this was the occasion
which he was complimented. .
28 Jacobsen , as the Respondent 's chief executive officer , engaged in
semantics when he testified that he never instructed. Mizrahi to discharge
Rudolph but only requested such action.
29 It is unnecessary to resolve . a conflict in testimony whether
maintenance work on the press was regularly done on Mondays. However,
it appears that maintenance work would be done at any time the need arose.
30 Mizrahi gave the following account of this episode: On Monday
evening, May I, because of Semon's absence, he himself spoke to Rudolph
about his poor printing and lack of production. He then told Rudolph that,
if he continued to perform as he had been doing, Rudolph would put the
ALLIED PRINTING CORP. 1051
when he was waiting for plates from the camera depart-
ment and that without the plates he could not proceed with
the production job.31
There is also evidence in the record that Rudolph had
received compliments from several customers, including
Riverdale Press and Peoples Press, for good work per-
formed on their publications. Indeed, Mizrahi conceded
that he once conveyed a Riverdale Press compliment to
Rudolph and Gray. However, he minimized its importance
because of a prior history of poor jobs produced for that
customer and considered the compliment as a means of
inspiring the continuance of good production. However,
Mizrahi testified, Rudolph's performance soon reverted to
poor quality work. Rudolph, on the other hand, denied
ever receiving complaints regarding the quality of his
printing of Riverdale Press publications, although there
were some complaints concerning the paper count in
bundles. As previously indicated, bundling is the function
of flyboys. Finally, testimony was adduced at the hearing
attesting to Rudolph's general competence as a pressman.
Indeed, one of these witnesses, Gray, a concededly good
worker who operated the press with Rudolph as a team,
testified that he considered Rudolph a better webb offset
pressman than he was.
From my review of the evidence, I find that the
testimony of the Respondent's officials regarding Ru-
dolph's incompetence, the progressive deterioration of his
work, and the number and nature of customer complaints
to be grossly exaggerated and beyond reasonable belief.
While undoubtedly Rudolph's performance was not
faultless, it is incredible and unnatural that the Respondent
would have promoted him to leadman, granted him wages,
and tolerated his retention for as long as it did, if he
actually had been the woefully inept pressman he was
depicted to be. I am not persuaded by the Respondent's
attempt to explain Rudolph's promotion, raises, and
retention to General Manager Mizrahi's failure properly to
perform his managerial responsibilities. Indeed, it is
incomprehensible that Mizrahi would deliberately ignore
the repeated requests or orders purportedly given to him by
the Company's chief executives and owners to get rid of
Rudolph. Also inexplicable is the absence of any clear and
unequivocal warnings to Rudolph that he courted dis-
charge unless his work performance improved. On the
contrary, it seems to me that the reason Rudolph was not
terminated stoner or even threatened with discharge was
the fact that he really was not regarded by the Respondent
as an unsatisfactory or inadequate employee. Probably,
many of the problems experienced on the night shift were
due to causes which were not of Rudolph's doing or for
which he was not responsible. In fact, Superintendent
Semon himself customarily remained on the night shift
about 4 days a week until 9 or 10 p. m. supervising the jobs
in production.
Considering all the facts and circumstances herein, I
reject the testimony of the Respondent's witnesses,
Mizrahi, Semon, and Jacobsen, concerning Rudolph's
unsatisfactory performance and find Rudolph's account
and that of supporting witnesses to be more reliable.
3. Gray's discharge
In October 1971, Hugh Gray, a letter pressman with
some 15 years experience and a member of the Union,
answered the Respondent's newspaper ad for a webb offset
pressman. At that time, Gray had been on strike for 7
months against his then employer, Newark Evening News.
He was interviewed by Superintendent Semon, an old
friend with whom he had once worked but had not seen for
a number of years. Semon recommended Gray to General
Manager Mizrahi who spoke to Gray about his qualifica-
tions and the salary he wanted and asked whether he still
belonged to the Union. When Gray answered that he still
was a member, Mizrahi stated that, although he did not
like getting involved with a union man, he nevertheless
would try him because he needed a pressman. Gray was
thereupon hired at $185 for a 40-hour week to learn to
operate a webb offset press which he had never run before.
Two days later his salary was raised to $214 a week when
Gray informed Mizrahi of his intention to quit because the
workload was too much for the money he was being paid.
After working 2 weeks on the day shift, where Semon
taught him the operation of the offset press, he was
transferred to the night shift. There he worked on the press
with Rudolph who also contributed much to his knowledge
of running the machine. Undeniably, Semon and Mizrahi
were satisfied with Gray's performance and reliability,32
although they testified that he had not yet achieved the
status of a fully qualified operator of an offset press.
On April 10, the strike at Newark Evening News ended
and publication was resumed. Gray then returned to his
job there on the day shift but continued working for the
.Respondent at night. At that time, Gray informed Semon
that he would not be hurt if he hired another pressman to
replace him at the Respondent's plant. Semon, however,
saw no reason for Gray to leave his night job and arranged
with Gray to accommodate his night job to his day job
responsibilities by permitting Gray to report to work at the
Respondent's plant a little later and to leave a little earlier
if necessary. In this manner, Gray was able to hold down
both jobs, working for the Respondent 5 nights a week,
approximately 8 hours a night until a few days before May
Company out of business; that his production was less than half of what the
Company required to be competitive; and that it would be difficult to go
along with him if he persisted in printing the way he was doing. Mizrahi
further testified that he did not directly warn Rudolph that he would be
discharged if he did not improve. It is also undisputed that, when Rudolph
discussed his discharge on May 5 with Mizrahi, and Rudolph noted that the
action was sudden, Mizrahi did not question the statement by referring to
any prior warnings given to him. As later indicated, Mizrahi is not a reliable
witness and I therefore credit Rudolph's testimony where in conflict with
Mizrahi's.
31 According to Gray's testimony, the night shift frequently experienced
delay in receiving plates for the Suburban Shopper job . He also testified that
when a machine is not in operation waste results after it is started up again.
32 As indicated above, 2 months after he was hired, a notice was posted
designating him foreman of the night crew with authority to approve
timecards.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5, when he was obliged to be absent because of his father-
in-law 's illness.33 As found above, on May 4,34 Gray
explained the reason for his absence to Semon who assured
him that he need not be concerned and that he could
return when circumstances permitted. This was the
occasion when, at Gray's initiative, Semon met Union
Representative Sherlock who advised him of the Union's
intention to organize the plant.
On May 5, Semon admittedly discharged Rudolph when
he reported for work in the evening. There is an
irreconcilable conflict in testimony, however, whether
Semon also terminated Gray a short while later the same
evening when he arrived at the plant. According to Gray,
he came to the plant, as he had informed Semon the day
before he would do to pick up his check. He further
testified that Semon handed him the check, saying that the
Company was doing away with the night shift and that his
services were no .longer needed. Gray also testified that he
took the check and departed without making any com-
ment.
Brian Goodwin, an 18-year-old former employee, who
witnessed this episode, corroborated Gray in significant
part. He testified that he heard Semon tell Gray that the
Company was discontinuing the night shift because of
insufficient work, that it would extend the duration of the
day shift to handle its requirements, and that therefore
they no longer needed Gray. Goodwin further testified that
Gray reacted to this announcement with obscenities.35
Contradicting both Gray and Goodwin, Semon categori-
cally denied that he had any conversation at all with Gray
on May 5 or ever telling him that the night shift was being
discontinued. He testified that he noticed from the corner
of his eye Gray enter the shop and that he saw Bill Stay-
win36 hand Gray his check and Gray then leave.
I find the testimony of Gray and Goodwin that Semon
terminated Gray on May 5 for the asserted reason that the
night shift was being discontinued more plausible and
convincing than Semon's testimony.37 If Gray had not
been discharged, I am unable to understand the Respon-
dent's conceded failure to communicate with Gray,
admittedly a good worker, to return to work, especially
since the Respondent was suffering from a serious shortage
of pressmen undoubtedly aggravated by Rudolph's dis-
charge. Moreover, there is nothing in the record to indicate
that Gray had lost interest in his job with the Respondent.
On the contrary, I find that his failure to report for work
after May 5 was due solely to his discharge. Accordingly, I
credit Gray's and Goodwin's testimony, as indicated
above.
On the occasion of his discharge on May 5, Gray learned
from Goodwin that Rudolph had also been terminated.
When Gray arrived home the same evening, he telephoned
Rudolph and verified that both of them had been told that
they were dismissed because of the discontinuance of the
night shift.
The following week, Gray returned to the plant to
remove his work clothes from the locker. While there, he
was informed by an employee that Semon had remarked
that Gray had been laying down on his job. Gray
thereupon approached Semon. A serious conflict- in
testimony was presented as to what transpired from this
point on. Gray gave this version of his encounter with
Semon: When he confronted Semon with the remarks the
employee attributed to him, Semon denied that he made
them, asserting that he had always liked Gray's work and
that he had no complaints about his performance, Gray
then asked Semon to speak to Mizrahi about being paid for
the sick days to which he was entitled, but Semon declined
to do it and suggested that Gray see Mizrahi himself. Gray
then commented that he thought there was no more night
side. Semon replied that he had nothing to do with it and
the conversation ended.
Semon testified , as follows: While he was running the
press, Gray came to him and thanked him for telling him
that he was no longer working there. Semon answered that
he never told him he was fired or that he was no longer
working there. Thereupon, Gray became loud and boister-
ous and demanded the vacation pay which was due him.
Semon' stated that he was not concerned with money
matters and told him to see Mizrahi. Semon then repeated
that Gray was not fired and was welcome back. Gray then
left.
I find Gray's testimony more credible and in accord with
the realities of the situation than Semon 's account and
therefore accept it.38
It is undisputed that neither before nor after the above
Semon-Gray conversation did the Respondent attempt to
communicate with Gray to return to work, although it has
always been in need of help on the night shift. Semon
testified that he did not call Gray back to work after that
last conversation because Gray had a steady job at the
Newark Evening News and he ( Semon) did not "want to
start any trouble or open old wounds because of his
attitude that night . . . [and he] didn't want to have any
trouble in the shop."
33 The foregoing findings are based on the substantially uncontradicted
testimony of Gray, Semon, and Mizrahi.
34 I also credit Gray's testimony that on Tuesday, May 2, he notified the
office of his inability to come to work and that the following day he spoke
to Semon personally at the plant about it . Although there is some confusion
in Gray's recollection of the sequence of events and what he said on each
occasion , I have no doubt that he had a sense of responsibility to report his
absence. In any event , the Respondent does not claim that he was
discharged for this or any reason.
35 Although Goodwin showed uncertainty about the dates of certain
occurrences , I find from his entire testimony that his above account related
to the May 5 episode. Goodwin also testified that he saw Gray the following
week when Gray returned to the plant and engaged Semon in a "fairly" long
conversation , which'he did not overhear.
3s Staywin, who works under Semon in the collation department on the
day shift, was not produced as a witness . Semon testified that he (Semon) is
in charge of distributing paychecks to employees and that when he is not
around he gives Staywin the checks for distribution.
37 It is also probable that Gray reacted to Semon's announcement with
obscenities as Goodwin testified.
38 Although the Union filed an unfair labor practice charge on behalf of
Rudolph on May 8, 1972, a separate charge on behalf of Gray was not filed
until June 21, 1972. According to Gray and Sherlock, the delay was due to
their inability to get together to file it . It appears that Gray at that time
worked for the Newark Evening News on the day shift while Sherlock
worked for another employer on the night shift.
ALLIED PRINTING CORP.
B. Concluding Findings
1. With respect to interference, restraint, and
coercion
I have found above that on May 5, shortly after he
learned of the union movement from Superintendent
Semon, President Jacobsen individually summoned em-
ployees Lugo, Dilgard, and Gaskins to a room in the office
area where, in the course of interviewing them, in the
presence of Secretary-Treasurer Cohen, concerning prob-
lems in the plant, he questioned them, as follows: He asked
Lugo whether he knew anything about a union in the plant,
whether a union representative had approached employee
Howe, and whether he was going to attend a union meeting
scheduled to be held the next day. Dilgard was asked
whether he knew anything about union activities or a
union in the plant and, when Dilgard answered in the
affirmative, Jacobsen inquired why he had not mentioned
it before. Gaskins was questioned whether he heard that
employees wanted a union and whether he liked a union.
Considering the circumstances of the individual interroga-
tion by the chief executive officer of the Company in the
presence of another official in the privacy of a room in the
office section of the plant, without adequate assurance
being given the employees that their union interest or
activity would not bring reprisals, there can be little doubt
of the coercive impact such interrogation is likely to have
on the employees' exercise of their self-organizational
rights. Indeed, the discriminatory discharge a few hours
later of Rudolph and Gray, the two employees responsible
for the union movement in the plant, discussed below,
certainly demonstrated to the employees that the interroga-
tion was more than casual or innocuous inquiries.
Accordingly, I find that the Respondent's conduct inter-
fered with, restrained, and coerced employees in violation
of Section 8(a)(1) of the Act.
However, I do not interpret Jacobsen's other remarks to
Lugo as a threat to close the plant down in retaliation for
employee support of the Union, as alleged in the amended
complaint. Those remarks appear to be at best a prediction
that the presence of a union would only create economic
difficulties. As such an expression of opinion is plainly a
privileged communication, it is recommended that the
pertinent allegations of the amended complaint be dis-
missed.
2r With respect to discrimination
a. Rudolph
The question whether an employee was illegally dis-
charged because of his union activities is not susceptible of
easy determination as it involves an inquiry into the
employer's state of mind. In resolving this question,
therefore, all the facts and circumstances surrounding the
separation must be carefully appraised with due recogni-
tion being accorded to the settled principle that an
employer may terminate an employee for any reason,
39 N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8).
40 As will later be discussed , Gray was also terminated on his arrival at
the plant the same evening.
1053
good , bad, or indifferent , provided he is not motivated by
union considerations . It is equally well established that the
existence of a `justifiable ground for dismissal is no
defense if it is a pretext and not the moving cause."39
A careful review of the evidence persuades me that the
Respondent discharged Rudolph because of his union
leadership and not because of his purported unsatisfactory
work performance , as the Respondent urges . Without
repeating the details , it is clear that Rudolph was one of the
two employees-the other being Gray-who was instru-
mental in bringing the Union into the plant . In addition,
Rudolph solicited employee signatures to union authoriza-
tion cards . It is equally clear that the Respondent did not
welcome the prospect of its pressroom employees being
organized and that immediately upon learning of the union
movement from Superintendent Semon on May 5 Presi-
dent Jacobsen proceeded to interrogate individual employ-
ees concerning the Union and the root causes of the
problems in the pressroom . Against this background, it
appears to be more than a strange coincidence that within
a few hours after the interrogation , when Rudolph reported
for work in the evening, he should be summarily dis-
charged without prior warning.40 Such timing , coupled
with the precipitateness with which the Respondent acted,
certainly casts doubt on the purity of its motives . When to
this is added the fact that a concededly false reason was
given by Semon to Rudolph at the time of his discharge
that the action was necessitated by the Company 's decision
to discontinue the night shift on which Rudolph worked, it
becomes more apparent that it was really Rudolph 's union
activity that prompted his discharge .41 If , as the Respon-
dent argues, it was his poor performance that brought
about his discharge , I cannot perceive any plausible reason
why he was not so informed at that time . It is just not
natural for an employer to withhold from an employee a
legitimate basis for his dismissal and to resort to a
subterfuge unless it really is not the moving cause.
Probably, this ground for discharge was not given to
Rudolph because the Respondent did not honestly regard
him to be the woefully incompetent and unsatisfactory
pressman it depicted him to be at the hearing , whatever
shortcomings he might have had. Indeed , at the time of the
discharge , Semon offered to furnish Rudolph with job
.references . Moreover , the inference that Rudolph was not
considered an inadequate pressman is further indicated,
not only by the fact that he was never warned that he
risked dismissal if his work did not improve, but also by
the fact that he was promoted to lead pressman, was
granted wage raises, and was retained in the Respondent's
employ during the long period of ostensibly progressive
deterioration in his performance . This is additional strong
evidence of the Respondent's discriminatory motivation.
The Respondent argues that since it had advertised for a
lead pressman in the period around April 18, prior to the
advent of the Union , it shows that it had decided to replace
Rudolph for a nonunion-related reason. However , in view
of the evidence recited above , it does not necessarily follow
that its advertisements for lead pressmen establish that the
41 Shattuck Denn Mining Corpordtion v. N.L.R . B., 362 F .2d 466, 470
(C.A.9).
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had definitely determined at that time
completely to dispense with Rudolph's services as a
pressman. Not only has the Respondent been continuously
.in need of pressmen and has repeatedly sought to recruit
such help, but, when. it received no response to the April
ads, it did not replace Rudolph with Gaskins until after
Rudolph had introduced the Union into the plant. The
Respondent's disavowal of knowledge of Rudolph's union
activity at the time of his dismissal appears to me to be less
than candid. While it is true that there is no direct evidence
of knowledge, all the circumstances mentioned above, as
well as the smallness of the plant,42 combine to reveal the
Respondent's awareness of Rudolph's union leadership 43
Moreover, President Jacobsen's interrogation of employee
Lugo to ascertain whether employee Howe had been
approached by a union representative indicates that the
Respondent had more information concerning union
activity than it pretended to have. As shown above,
Rudolph had successfully solicited Howe to sign a union
authorization on April 26 in Union Representative
Sherlock's presence. Finally, it is not without significance
that the Respondent discriminatorily terminated Gray, the
other employee responsible for the Union's appearance at
the plant and admittedly a good worker, the very same
evening that Rudolph was discharged, and for the same
assigned false reason that the night shift was being
discontinued.
In view of the foregoing, I find that Rudolph was
discharged in reprisal for his involvement in the Union's
organizational efforts and that his purported unsatisfactory
performance was only a pretext to conceal its true unlawful
motivation. Such conduct constitutes discrimination in
employment to discourage union membership and violates
Section 8(a)(3) and (1) of the Act. Even assuming that
Rudolph's alleged deficiencies to some extent entered into
the Respondent's decision to discharge him, I find that a
substantial moving cause was his union sponsorship and
that therefore his termination would still violate the same
provisions of the Act.44
b. Gray
It is the Respondent's position that the evidence does not
establish that Gray was discharged. However, it has
otherwise been found above. Indeed, if, as the Respondent
contends, Gray had simply failed to report for work, it is
beyond comprehension why, in the face of the Company's
dire need for pressmen, aggravated by the termination of
Rudolph, it made no effort to communicate with Gray,
admittedly a good worker, to persuade him to return to his
job. The obvious answer is that Gray, like Rudolph,.had
become persona non grata to the Respondent because of his
responsibility for the union movement in the plant.
In sum, I find, on the basis of all the evidence, including
42 Alberto-Culver Company, 199 NLRB No. 22.
43 N.L.R.B. v. Long Island Airport Limousine Service Corp., 468 F.2d 292
(C.A. 2).
44 N.L.R.B. v. Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2);
N.L.R.B. v. Historic Smithville Inn, 414 F.2d 1358, 1361 (C.A. 3).
45 I find that effectuation of the policies of the Act requires that such an
offer, of reinstatement be made to Gray, even though he testified at the
hearing that his day shift job with Newark Evening News was about to end
because that company was closing down its operation and that he had
the timing and the precipitate nature of Gray's discharge,
'the absence of prior warning, the assignment of a
pretextuous reason for. his termination, and the Respon-
dent's awareness of his union membership and support,
that the Respondent discriminated against Gray in
violation of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that the Respondent unlawfully discharged
employees Robert Rudolph and Hugh Gray because of
their union activity. To remedy this violation, it is
.recommended that the Respondent offer them immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges,45 and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them by payment to each of them of a sum of
money equal to that which each one normally would have
earned from May 5, 1972, the date of his discharge, to the
date of the offer of reinstatement, less his net earnings
during the said period.46 Backpay shall be computed with
interest on a quarterly'basis in the manner prescribed by
the Board. in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. To
facilitate the computation, as well as to clarify the named
employees' right to reinstatement and employment, the
Respondent shall make available to the Board, upon
request, payroll and other records necessary and appropri-
ate for such purposes. The posting of a notice is also
recommended.
In view of the nature of the discrimination for union
membership and activity which "goes to the very heart'of
the Act," 47 there exists the danger of the commission by
the Respondent of other unfair labor practices proscribed
by the Act. Accordingly, I recommend that the Respon-
dent be ordered to cease and desist from in any other
manner infringing upon the rights guaranteed employees in
Section 7 of the Act.48 ,
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
another night shift job under consideration which, if accepted, would
require him to decline the Respondent' s offer if limited to the night shift.
46 As Gray was regularly employed on the day shift of Newark Evening
News at the time he worked on the Respondent's night shift , moneys earned
on the day shift job shall not be offset against the moneys he would have
earned from the Respondent during the period of discrimination.
47 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4).
48 N. L. R. B. v. Express Publishing Company, 312 U.S. 426, 433.:
ALLIED PRINTING CORP. 1055
3. By discriminating in regard to the hire and tenure of
employment of Robert Rudolph and Hugh Gray to
discourage membership in, and activities on behalf of, the
Union, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, by interrogating employ-
ees concerning the union movement and activities in the
plant by questioning an employee about his intentions to
attend a union meeting, and by inquiring of another
employee regarding his union sympathies, the Respondent
interfered with, restrained, and coerced employees in the
exercise of their statutory rights within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a)(1) of
the Act by threatening employees with plant closure if they
supported the Union, as alleged in the amended complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of. the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER49
Board or its agents, for examination.and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful in analyzing the amount of backpay
due and the right to reinstatement and employment under
the terms of this recommended Order.
(c) Post at its plant ' in Saddle Brook, New Jersey, the
attached notice marked "Appendix." 50 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter- in conspicuous
places where notices to employees are customarily posted.
Reasonable steps shall be taken'to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the receipt of this Order, what
steps Respondent has taken to comply herewith.51
IT IS FURTHER ORDERED that the allegations of the
amended complaint that the Respondent violated Section
8(a)(1) of the Act by threatening the employees with plant
closure if they,.supported the Union be, and they hereby
are, dismissed.
The Respondent , Allied Printing Corp., Saddle Brook,
New Jersey, its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local 8, Newark
Newspaper Pressmen 's Union, a/w International Printing
Pressmen and Assistants Union of North America,
AFL-CIO, or any other labor organization, by discharging
employees or in any other manner discriminating against
them in regard to their hire or tenure of employment or
any term or condition of employment.
(b) Coercively interrogating employees concerning their
union sympathies , activities, and attendance at union
meetings.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Robert Rudolph and Hugh Gray , immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them , in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
49 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
51 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to read:
"Notify the Regional Director for Region 22, in writing, within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees 'the following rights:
To organize themselves
To form, join or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these activities.
WE WILL NOT discharge or lay off any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of, Local 8,
Newark Newspaper Pressmen's Union, a/w Interna-
tional Printing Pressmen and Assistants Union of
North America, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT coercively interrogate our employees
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning their union sympathies, activities, or attend-
ance at union meetings.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section
8(a)(3) of the Act.
WE WILL offer Robert Rudolph and Hugh Gray
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights and privileges, and make them whole
for any loss of earnings suffered by reason of the
discrimination against them. .
All our employees are free to become, remain, or refrain
from becoming or remaining, members of Local 8, Newark
Newspaper Pressmen 's Union, a/w International Printing
Pressmen and Assistants Union of North America,
AFL-CIO, or any other labor organization , except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized by Section 8(a)(3)
of the Act.
Dated By
ALLIED PRINTING CORP.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
.from'the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may. be
directed to the Board's Office, 970 Broad Street, Federal
Building, 16th Floor, Newark, New Jersey 07102, Tele-
phone 201-645-2100.