Calandra Photo, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1965

151 N.L.R.B. 660 (N.L.R.B. 1965)

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours. Accordingly, the oiler works 6 hours for a chief, and 6
hours for an assistant engineer. Otherwise, there has been no
change in the duties, functions, or authority of the engineers.
In view of the foregoing, we find no reason to alter our conclu-
sion that the engineers employed on the Employer's towboats are
supervisors within the meaning of the Act, and we shall dismiss the
petition for that reason.5
[The Board dismissed the petition.]
5 In view of our disposition of the case we find it unnecessary to pass on Petitioner's
contention that the Employer and two other companies , Midcontinent Barge Company
and M-W-T Company , constitute a single employer for the purposes of collective bargaining.
Calandra Photo, Inc. and Irvin C. Levin , its agent and Member
of its Board of Directors and The International Printing Press-
men and Assistants' Union of North America , Local No. 412,
AFL-CIO
Calandra Photo, Inc. and The International Printing Pressmen
and Assistants ' Union of North America , Local No. 412, AFL-
CIO. Cases Nos. 17-CA-2418 and 17-CA-2416. March 15, 1965
DECISION AND ORDER
On November 24, 1964, Trial Examiner William W. Kapell issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. The Trial
Examiner further found that the Respondents had not engaged in
certain other unfair labor practices alleged in the complaint, and
recommended that those allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a brief in support thereof. The Respondents filed exceptions
to the Trial Examiner's Decision and a brief in answer to the Gen-
eral Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated
its powers in connection with these cases to a three-member panel
[Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
151 NLRB No. 79.
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 661
record in these cases, and with the modification noted below, hereby
adopts the findings,' conclusions, and recommendations 2 of the
Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner, and
orders that the Respondent Calandra Photo, Inc., its officers, agents,
successors, and assigns, and the Respondent Irvin C. Levin shall
take the action set forth in the Trial Examiner's Recommended
Order, with the following modifications :
1. Delete paragraph 1(e) of the Recommended Order and substi-
tute the following :
"(e) In any other manner interfering with, restraining, or coerc-
ing employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist The International Print-
ing Pressmen and Assistants' Union of North America, Local No.
412, AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and 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."
2. From the fifth indented paragraph of the notice, delete the
words "like or related" in the first line and substitute therefor the
word "other," and delete the last three lines.
3. Immediately after the lines in the notice provided for dating
and signing by the representative of the Respondent Employer add
the following:
"IRVIN C. LEVIN,
Agent and Respondent.
Dated---------------- By-------------------------------------
IRVIN C. LEVIN"
i We find, in agreement with the Trial Examiner , that the Respondents by discrimina-
torily discharging Martin violated Section 8 ( a) (3) and (1) of the Act. In reaching
this conclusion , we find, as did the Trial Examiner , that the Respondents used Martin's
smoking as a pretext to discharge him, and that the real motivating cause for his
discharge was his union activity. We also adopt the Trial Examiner 's conclusion that
the Respondents did not violate the Act by discharging John and Michael Biodrowski,
as we agree with the Trial Examiner that the General Counsel failed to establish by a
preponderance of the credible evidence that either of them was in fact discharged. In
view of these findings, we do not adopt or pass on the Trial Examiner 's alternative bases
for his conclusions as to these allegations of the complaint.
2 As a discriminatory discharge such as that found herein "goes to the very heart of
the Act," we shall oider the Respondent to refrain from in any manner interfering with
the rights of employees under Section 7 of the Act. N.L R.B. v. Entwistle Mfg, 120
F. 2d 532, 536 (C.A. 4). As requested in the General Counsel 's exceptions , we shall
add the name of the individual respondent , Irvin C. Levin, to the order and notice As
recommended by the Trial Examiner, however, only the Respondent Company shall be
liable for reinstatement of and backpay to Martin.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint in Case No. 17-CA-2418 issued on June 5, 1964,' based upon
charges filed on March 26, April 3, and May 27, alleges that Calandra Photo, Inc.,
herein referred to ,as Respondent Company, and Irvin C. Levin, its agent and member
of its board of directors, engaged in certain conduct in violation of Section 8 (a)( I)
and (3) of the National Labor Relations Act, as amended, herein called the Act.
The complaint in Case No. 17-CA-2446 issued on June 19, based on a charge
filed on May 15, alleges additional violations of Section 8(a)(1) and (3) of the
Act by Respondent Company. The answers in each case denied the commission
of any violations. The cases were consolidated for hearing and were heard before
Trial Examiner William W. Kapell at Omaha, Nebraska, on July 21, 22, and 23.
All parties were represented by counsel and were afforded opportunity to adduce
evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were
received from General Counsel and Respondent Company and have been carefully
considered.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Respondent Company is a Nebraska corporation with its principal place of busi-
ness at Omaha, Nebraska, where it is engaged in the processing and sale at
wholesale and retail of photographic material. On an annual basis it has gross
sales in excess of $500,000, with sales to customers located outside of the State of
Nebraska exceeding $50,000, and its purchases from outside of the State of
Nebraska exceeding $50,000. I find that Respondent Company is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Printing Pressmen and Assistants' Union of North America,
Local No. 412, AFL-CIO, herein referred to as the Union, is a labor organization
within the meaning of the Act.
III THE UNFAIR LABOR PRACTICES
A. The issues and setting
The complaints allege that beginning the latter part of February, Respondent
Company, by its agents, violated Section 8(a)(1) by interrogating its employees
and an applicant for employment concerning their union activities and interests,
threatening economic reprisals against its employees because of their union
activities, making promises of economic benefits to employees if they abandoned
the Union, and terminating the employment of Production Manager John B.
Biodrowski and his son, Michael Biodrowski, because of the refusal of John B.
Biodrowski to engage in unlawful labor practices, and violated Section 8(a)(3)
and (1) by discriminatorily discharging employees Herman Martin, Robert L.
Kocourek, and Melitta Heaton, because of their union activities. The answers deny
the commission of the alleged violations, and assert that Herman Martin was dis-
charged because of gross misconduct, and that Robert L. Kocourek, Melitta Heaton,
and the Biodrowskis voluntarily quit their employment.
Union activities began at Respondent Company's plant on February 27, when
union cards were distributed to and signed by several employees who began wearing
union badges. By letter dated February 28 the Union demanded recognition from
Respondent Company as collective-bargaining representative of certain of its
employees and requested negotiation of a collective-bargaining contract covering
these employees. Thereafter, on March 2, the Union filed a petition for an election
in Case No. 17-RC-4428 under Section 9(c) (1) (A) of the Act On March 19
the Union and Respondent Company entered into a stipulation for certification upon
consent election, which was set for, but not held, on April 3.
'All dates herein refer to the year 1964 unless otherwise noted.
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 663
B. The alleged discrimination
1. Robert L. Kocourek
On March 20, employee Robert Kocourek, who had recently been transferred
to the warehouse from the plant, was called to the office of Charles Calandra, the
president of Respondent Company, where he was told by Irvin C. Levin s in the
presence of Calandra that for the past week he had been thinking of firing him
because he was talking union on company time. Kocourek admitted talking to
drivers about the Union, and was then questioned as to what his father did and
if he belonged to a union. Following this interview he returned to his work.
On March 31 Levin met Kocourek at the warehouse door, advised him that he had
another bad report, and asked him to come up to the conference room. There,
Calandra and Levin discussed with Kocourek a report that he had been giving rides
to passengers in a company tiuck, which was against company rules. Kocourek
admitted giving rides to other employees but denied knowing that it was against
company rules .3 Levin then said to Calandra, "well, Chuck, I don't see any reason
for keeping him around here any more," and turning to Kocourek, he said, "Why
don't you find employment elsewhere," to which Calandra added, "Yes, we are
going to give you a long vacation like you had last week." (Kocourek had been out
sick because of an injury received in a driving accident.) Kocourek became very
indignant, got up and said, "I am through, I am not going to listen to this any more."
He left the room starting down the stairs with Levin and Calandra following him,
shouting "come back," to which Kocourek replied, "I have heard it all I quit."
He also commented to the effect that he had enough of this "ciap" and was leaving.
He went into the warehouse, got his coat, and insisted upon going out through the
warehouse door for which he had a key despite Calandra's request that he leave by the
door of the plant. As he opened the door Levin said, "You have a key that is ours."
Kocourek replied, "Yes," took the key off a key ring, gave it to Minnig and left.
The following day, April 1, Kocourek returned to the plant to obtain his paycheck.
He was called into Calandra's office where Comptroller Lloyd Johnson, Calandra, and
Levin were present. He told them he wanted his check. They asked "Why," and he
said he had been given the impression that he had been fired. They denied firing him
and told him to go back to work that day. He refused to discuss the matter and said,
"All I want is my check." Lloyd Johnson was instructed to prepare his check, which
was given to him and he left.
On April 10 Kocourek returned to the company plant, accompanied by Herb
Stocker (a union representative), after having heard from the National Labor Rela-
tions Board that his job was open 4 After making arrangements for his reemployment,
to which no conditions were attached, he was asked to sign a statement to the effect
that he had not been fired on March 31, and had been requested to return to work on
the next day, when he came to pick up his check. At first, he demurred about signing
the statement, but finally yielded to Calandra's request and signed it. Later that day
he requested Calandra to return the statement. Calandra referred him to Levin to
whom he had given the statement, but Levin refused to return it.5 Kocourek resumed
working at the warehouse where he was assigned to do digging on the parking lot. A
few days later he was put on filing work, an unfamiliar task, which he was unable to
finish by the following Friday as instructed. On April 20 he quit his job and signed
a statement to that effect.6
2 Levin, named as a party in Case No 17-CA-2418, and designated as an agent and
member of Respondent Company's board of directors, represented the Company as its
attorney, and actively participated in all of the alleged violations, with the exception of
the incident involving the application for employment by Gary Earnest
$ Warehouse Foreman Minnig testified that he had told Kocourek about not hauling
passengers in company vehicles, and that Kocourek had attended a meeting at which
the rule was announced Lavern Rice, an employee-driver, broken in by Kocourek, cor-
roborated Minnig's testimony about Kocourek's knowledge of the rules. Kocourek's testi-
mony about being unaware of the company rule is not credited
4 The only other evidence concerning the circumstances attending the intercession of
the National Labor Relations Board in connection with Kocourek's reemployment, was a
statement by Calandra that he thought Levin had arranged with the National Labor
Relations Board to have Kocourek return to work.
5 The findings related to Kocourek's termination are based on the credited composite
testimony of Levin, Calandra, Johnson, Minnig, Rice, and Kocourek
0 His termination on April 20 is not in issue herein as a violation.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents contend that Kocourek quit his job on March 20 and was not discrimi-
natorily discharged as claimed by General Counsel. I find that the evidence does not
support a finding that Kocourek was told that he was fired. At best, it may be argued
that he was being given a rather hard time because of his violation of the rule against
hauling passengers in company trucks, which may have created the impression that
he was being fired. However, the conversations and the actions of Levin and Calandra
immediately following Kocourek's departure from Calandra's office, and those on the
following morning, should not only have dissipated that impression, but should also
have refused any contention that they intended to fire him. Furthermore, whatever
else may be inferred from the circumstances attending the signing of Kocourek's
statement on April 10, it appears by his own admission that he was reemployed before
being asked to sign the statement to the effect he had not been fired and had quit, and
that there were no conditions attached to his reemployment. Considering the evidence
in its entirety, I find that General Counsel had failed to establish by a preponderance
of the credible evidence that Kocourek was discriminatorily discharged on March 31,
as alleged, in violation of Section 8(a) (3).
2. Herman Martin
Employee Herman Martin had worked for Respondent Company on three or four
occasions since about 1947. In February he signed a union card and began wearing a
union button. On March 20 he was called to Calandra's office where he met
Calandra and Levin. Levin accused him of having done some union soliciting. After
at first denying it, he admitted it, explaining that he had merely asked a man for his
name in order to talk to him at some convenient time. Levin then demanded that he
furnish the list of names of employees whom he was going to solicit and when Martin
denied having any, he was told, "You lie, if you tell me the truth, we will not fire you."
Martin then mentioned one name, Wayne Donder, but denied having any more,
stating that he may have lost other names in the plant He was sent down to the plant
accompanied by Comptroller Johnson (who by that time had also entered the office)
to look for other names which he may have lost. They returned to the office with
only one name, George Miles. Martin was then questioned about smoking in the
plant. He admitted that he had been smoking, that John Biodrowski (plant manager)
had caught him smoking several times and had advised him not to smoke because it
was strictly against the (fire) rules, and on one occasion had said, "Herman, put out
that cigarette or we will have to fire you," and that he had continued smoking despite
the warnings.? Levin thereupon called in Calandra's secretary and dictated a state-
ment containing certain questions. After the statement was typed, it was handed to
Martin, and he was told to read it, to fill in the answers in the blank spaces with "yes"
or "no," and to sign it,8 which he did. Levin then said to Calandra, "I don't feel
Herman is working for the Company, he seems to be against our principles, I don't
see why you are keeping him, Chuck, that is up to you." Calandra thereupon told
Martin, "Well, Herman, you no longer work for the Company. Do you know why
you are being let go?" Martin replied, "I have a general idea, for union activities
and smoking," and Calandra replied, "That is right." 9
Respondents contend that Martin was discharged solely because of his smoking,
and not as a result of his union activities as alleged by General Counsel. The testi-
mony of several employees was conflicting concerning the posting of "No Smoking"
signs in the plant, both as to time and locations, and whether employees other than
Martin were seen smoking before and/or after Martin's discharge.'°
7 The above findings are based upon the uncontradicted and credited testimony of
Martin and Johnson
8 The statement sets forth that Martin had been smoking in the darkroom ; that he
had solicited two employees for the Union ; that John Biodrowski, his foreman, had
caught him smoking in the darkroom and told him if he ever caught him again he would
fire him, that he was unable to identify employees other than George and Wayne, whom
he had solicited , and that he was voluntarily signing the statement
8 These findings are based upon the uncontradicted and credited testimony of Martin
10 Employee Mary Leslie testified she saw "No Smoking" signs being posted when she
returned from her vacation in the third week of March, but had not seen any before.
Employee Melitta Heaton saw "No Smoking" signs being posted 2 days before Martin
was fired, and noticed Biodrowski, Bihler, Levin, Calandra, and some of the salesmen
smoking Employee Larry Leach testified that "No Smoking" signs were always posted,
and that he put them up from time to time Foreman Tom Mewhirter and employees
Sue Ossino, Ada Poort, Eileen Donnelly, Donna Taylor, and Beverly Jeffrey testified that
"No Smoking" signs were posted. Employee Pike testified that he saw Bihler, Biodrowski,
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 665
I find that Martin admittedly continued to smoke in the darkroom despite repri-
mands and threats to fire him. The evidence concerning the posting of "No Smoking"
signs and the smoking violations by other employees establishes that, although it was
generally known that smoking was proscribed , violations occurred , but it does not
appear that any disciplinary measures were ever taken against any employee other
than Martin for smoking . Viewing the evidence in the light of Martin 's known union
activities , the uncontradicted evidence of the manner in which he was questioned and
coerced concerning those activities , and the Company 's union animus , I find that
his smoking was used as a pretext to discharge him, and that the real motivating
cause for his discharge was his union activity , in violation of Section 8(a)(3).
Furthermore , even assuming that his smoking violations constituted valid grounds
for discharging Martin, it is no defense to a violation of Section 8(a)(3) and (1) of
the Act unless his discharge was predicated solely on that ground. N.L.R.B. v.
Symons Manufacturing Co, 328 F. 2d 835, 837 (C.A. 7). It is well settled that the
presence of valid grounds for an employee 's discharge do not legalize it where the
circumstances reasonably indicate that union activities weighed more heavily in the
decision to fire him than did other factors. N.L.R.B. v. Whitin Machine Works, 204
F. 2d. 883, 885 (C.A. 1).
3. Melitta Heaton
Melitta Heaton, a former employee of Omaha Photo Co., was transferred with its
other employees to Respondent Company when they merged in October 1963. Her
duties consisted of racking film, taking down and cutting film, and helping in the
billing department . On February 27 she signed a union card, which she had obtained
the night before from Stocker ( a union official ) at his office , at which time she was
told not to solicit cards on company time. Early on the morning of February 27,
before work began, she approached two employees on the Company 's parking lot and
unsuccessfully attempted to have them sign union cards. About a week later she
attended a meeting of company employees at which Levin and Calandra discussed
the disadvantages of joining a union . On March 23 she was summoned to Calandra's
office where she met Calandra and Levin . Levin told her, "We are going to fire you
for union activities ." Heaton denied engaging in such activities during working hours.
She was then asked if she would consider coming over to the Company 's side , to which
she replied , "What guarantee would I have I wouldn 't be fired?" Levin replied,
"Mickey, if you come over to the Company side and you give us the names of
employees by April 3 that you have convinced that will be company , I will guarantee
your job and their jobs." Heaton agreed and was sent back to work after Levin shook
her hand and stated, "That is the kind of people we want on our side, somebody that is
smart like you." 11
On April 8 Heaton was called to Calandra's office in connection with an altercation
on April 6 between her and employee Sue Ossino . Heaton's version of the incident
was that while working in a narrow passageway on the billing line running the stamp
machine, putting postage on outgoing packages, Sue Ossino passed behind her and
struck her in the back with her purse , causing her to lose her balance, fall backward
and push Ossino into the mailbags , and that Ossino made a practice of striking her
in the back whenever she was working at that station and Ossino had occasion to
pass her. Sue Ossino denied striking Heaton and claimed that Heaton pushed her
sister who was with her and shoved her (Ossino ) over the mail rack, stepped on her
Chuck Lipari , Frank Morello, and Sam Georges smoking in the plant prior to Martin's
discharge Martin testified he saw Chuck Lipari smoking in the darkroom. Chuck
Lipari testified that Calandra caught him and Biodrowski smoking in January, and
warned them against smoking , and that he never smoked thereafter . Bihler testified
that he smoked only in the quality control room after January when Calandra called
his attention to the "No Smoking " signs The record indicates that smoking was
permitted in the restrooms , the lunchroom , and probably in the quality control, and
that the greatest danger from smoking was in the darkroom where flammable materials
were handled
"These findings are based upon Heaton's credited testimony . Calandra testified that
at this meeting he told her they had received some complaints about her organizing
on company time, and that she had been loud and boisterous . He denied any discussion
about trying to win her over to the Company ' s side Levin in his testimony stated
that at this meeting he had asked her to cooperate because the work was affected, and
that the employees should not congregate in small groups and yell at each other . Heaton's
testimony concerning this meeting is credited because it was convincing and appears to
be consistent with what occurred with other employees.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ankle and also called her vile names . At the meeting on April 8, Heaton was blamed
for having caused the incident and reprimanded.12 Thereafter, Heaton received a
letter dated April 17 from Respondent Company in which she was accused of having
pushed another employee on April 6, of carrying on a note-writing type of activity,
and also of having made a derogatory remark to Minnig, an incident unrelated to her
altercation with Ossino. The letter also stated that: she was an undesirable employee
and the Company would be much better off if she were no longer in its employ;
although she had suggested to the Company that it fire her, it declined to do so; her
attitude would no longer be tolerated; and it was sincerely hoped she would find
employment elsewhere or conduct herself differently. By letter of April 18, Heaton
answered to the effect that: the charges against here were unfounded; she would no
longer permit them to interrogate her; and she had no intention of quitting inasmuch
as she was doing her job in a satisfactory manner. She also asked why the Company
had not terminated her employment in view of all its charges.
The accusation appearing in the Company's letter of April 17 to Heaton concerning
the derogatory remark she made to Minnig stems from the following- On April 16
Foreman Minnig was walking from the basement to the plant and when he passed near
where Heaton and three other girls were standing, he beard Heaton make the follow-
ing remark about him, "There is a real son-of-a-bitch." He reported the incident to
Calandra, who in his presence shortly theieafter asked Heaton why she called him
filthy names. Heaton denied making the remark, and said she was tired of being
falsely accused. Calandra, thereupon, told her she could quit if she did not like it
In reply, Heaton asked, "Why don't you fire me?" to which Calandra responded that
he would not fire her.13
On May 7 Heaton and employee Beverly Jeffrey engaged in an argument when
Heaton occupied her seat at her work station during her temporary absence and
refused to give it up upon her return. Jeffrey called Heaton an "old bitch." Shortly
thereafter, Heaton and Jeffrey were called to the office of Calandra where they met
Bihler,14 Johnson, and Calandra. In discussing the foregoing incident Jeffrey admitted
calling Heaton a name and apologized. Calandra admonished both women to act like
ladies and told Heaton she did not know the difference between right and wrong.
Heaton replied, "Do you?" and then asked why did he not fire her if her work was
not satisfactory. Calandra replied, "I am not going to fire you and you know why."
At the end of the discussion Calandra told both women to go back to work and they
left the office.15 Heaton never returned to work.
General Counsel contends that Respondent Company discriminatorily discharged
Heaton because of her union activities, whereas the Company contends that she
voluntarily left her job and was not fired, as alleged The evidence reveals that in all
the confrontations between Calandra and Heaton prior to their meeting of May 7,
Calandra refrained from firing her despite invitations and provocations to do so.
Although not specifically stated, it presumably appears that he refrained from doing
so, despite his patent desire to get rid of her, because of the pending union organizing
12 The contentions of each of the parties involved in this incident were supported by
the testimony of other witnesses. However, its resolution is unnecessary to a deter-
mination of the issues involved herein, and is related as background leading up to
Heaton's alleged discharge.
13 These findings are based upon the composite credited testimony of the parties
directly involved
14 Alfred S. Bihler, referred to herein as Bihler, previously owned the Omaha Photo
Shop, which was merged with Respondent Company in October 1963. He, thereupon,
received a very substantial stock interest in Respondent Company by whom he was em-
ployed, and given an annual salary of $ 29,000. He claimed that he held no office and
exercised no supervisory authority in Respondent Company until March 27, when he re-
placed John B Biodrowski as plant manager . It was admitted that he was not a rank-
and-file employee . Viewing his interest in, and affiliation with, Respondent Company,
his attendance at managerial conferences , and the nature of his work , I find that at all
times material herein he was an agent of Respondent Company within the meaning of
the Act.
15 These findings are based upon the credited testimony of Johnson , Bihler , and Calandra.
Heaton testified that when she replied to Calandra ' s question whether she knew the differ-
ence between right and wrong and said "Do you ?" he told her she was fired, to get her
timecard punched out and to get out of there In view of the preceding incidents in
which Heaton challenged Calandra to fire her and his refusal to do so , and my observa-
tion of the demeanor of all the witnesses while testifying concerning this incident, I do
not credit Heaton's testimony to the effect that she was fired
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 667
activities. I find it difficult to believe that he would finally fire her at the meeting of
May 7. I conclude that General Counsel has failed to establish by a preponderance
of the credible evidence that Heaton was fired on May 7 because of her union activities,
in violation of Section 8(a)(3), and find on the basis of the credited testimony that
she walked out on the job.
C. The alleged interference, restraint, and coercion
1. Ronald Pike
On the afternoon of February 27 Bihler noticed that employee Ronald Pike was
wearing a union badge and questioned him privately in the control room of the plant
about who was behind the Union. When Pike disavowed such knowledge, Bihler said,
"Tell me who was behind this and you and I will be like this [indicating his hand
with the index and second finger together]-Mr. Calandra and I have discussed this
previously and if something like this happens, the Union would get in here or strike
against us, that we would send all of our finishing out to other photo finishers-they
would close the doors." Bihler also told Pike he had discussed with Calandra what
a good job Pike had been doing and about getting him a raise and putting him on a
salary because he was being trained for management, and that any person in manage-
ment should be for the Company. Pike replied that he would stick with the employ-
ees, and Bihler asked him to think it over for 5 minutes and let him know. About
5 minutes later, Pike approached Bihler and advised him he was going to stick with
the employees. He again declined to identify those who were behind the Union,
and Bihler said, "If you don't tell me who is behind this, then I will find out and I
will fix that," and he then cautioned Pike not to tell anybody about their conversation.16
Two days later, on February 29, Pike was summoned to the office of Calandra, who
asked him whether he had signed a union card and had been wearing a union button.
Pike replied that he had. Levin was then called m from an adjoining room, and
after being introduced to Pike, joined the conversation. Calandra proceeded to
question Pike as to what union it was, who was behind it, and what they wanted, and
why Pike was on their side instead of the Company's side, inasmuch as he was sup-
posed to be up for promotion 17 On the advice of Levin, Calandra then informed
Pike that his raise could not be given while union activity and organizing were going
on. He also stated that Pike had been getting overtime but if he were going to show
he was on the Union's side, he would be "classified just the same as the rest of the
people on hours and wages and so forth," and that he would close the plant before
having a union.18
On March 21 Pike was summoned to Respondent Company's lunchroom where he
met Calandra, Levin, and Tom Mewhirter (director of warehouse and customer
service), and had a discussion with them lasting about l to 11/a hours. He was told
that employee Herman Martin had been fired the preceding night for soliciting for
the Union and smoking in the darkroom; they had a couple of witnesses to his
smoking in the darkroom, which was against company policy; Martin had signed a
statement to the effect that he had been fired for union soliciting on company time
and smoking on the job; 19 if Martin had not lied about his smoking on the job he
would not have been fired; and, although there had been complaints about employee
Bob Kocourek soliciting for the Union on company time, they were not going to fire
him because he admitted it, and had not lied. They also told Pike that employees
36 The above findings are based on the credited testimony of Pike. Bihler admitted
that he saw Pike wearing a button in the plant on February 27, asking him what it was
for, and being told it represented a union, but denied having any other conversation with
Pike about the Union at that time. Pike's demeanor in testifying was direct, positive,
and convincing, and his version of this conversation is credited
17 Pike had discussed a raise with Calandra during the preceding month, but its con-
sideration had been postponed for a month.
is The above findings are based on the credited testimony of Pike Calandra denied
discussing anything other than leaving consideration of Pike's requested wage increase in
status quo because of the pending union activities. Levin corroborated giving such
advice to Calandra, and stated that their conversation was discontinued at that point.
Pike's testimony is credited because it was positive, straightforward, and appeared to
be more consistent with subsequent events.
>e Pike was- shown the statement but read only a part of it where Martin had signed
it Levin also remarked that the statement "will disclose to you something the firm
feels it had to do."
`668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melitta Heaton, Irene Maseman, and Georgia Centretto were union organizers, and
questioned him as to who was soliciting. He replied that employees Donna Taylor
and Sue Ossino had been soliciting for the Company, seeking signatures to a petition.
Levin thereupon stated that there would be no more soliciting for or against the
Union. Pike was also advised that he did not have to reveal how he would vote
tbecause it was a secret ballot, but that they would know by his actions how he
participated.20
On March 23 Calandra came into the chemical mix room where Pike was working,
and after ascertaining that they were alone, said , "I know that you and Mickey and
Melitta Heaton, and Irene Maseman, went down to see Mr. Stocker [a union official]
about getting this union in here ... you will all be forgiven if you come up and see me
before April 3 [the election date], but after that you will be too late." Calandra also
compared the salaries of management people with what the Union set. Two or three
days later Calandra again spoke to Pike and made a comparison between what the
Union could do for him, and what he (Calandra) could do for him, and said again
that if Pike changed his mind he could see him before April 3, but after that it would
be too late. They also discussed what would happen if Pike did not join the Com-
pany's side, and Calandra said, "Employers check together and they talk about people
that are employed with them, if they try something like this, or don't cooperate, and
consequently you will have a hard time finding a job." About April 16 Pike was
summoned to Calandra's office where Calandra offered him the job of supervisor of a
night crew which they were going to start, but which would require him to get out of
the Union because he would become part of management. Pike declined to accept
the job.21
Findings and Conclusions
As related above, I find that Pike, Martin, and Heaton were interrogated by
Respondents concerning their union interests and activities, and the identities of
other union adherents. The test laid down in the case of Blue Flash Express, Inc., 109
NLRB 591, is "whether under all the circumstances the interrogation tends to restrain
or interfere with the employees in the exercise of rights guaranteed by the Act." In
the context of the attending circumstances in which the interrogation occurred, and
in the absence of any evidence to establish that the interrogation had a legitimate
purpose or motive, I find that such interrogation tended to restrain, coerce, or interfere
with the employees in the exercise of rights guaranteed by the Act, in violation of
Section 8(a) (1) of the Act. I find further that Respondents also restrained, coerced,
or interfered with employees in the exercise of rights guaranteed by the Act by
threatening Pike with economic reprisals, including the closing of the plant and/or
the subcontracting out of the finishing work, the implied loss of overtime work, and
the difficulty of obtaining another job, if lie continued to favor the Union or if the
Union got in; by making promises or offers of economic benefits to Pike by indicating
to him that the Company would be more disposed to his managerial aspirations if he
cast his lot with the Company, and by offering him a supervisor's job on the proposed
night shift; and by making a promise of economic benefit to Heaton by guaranteeing
her job if she would reveal the identities of employees favoring the Company.
N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409; A. P. Green Fire Brick Company
v. N.L.R.B., 326 F. 2d 910, 913 (C.A. 8); N.L.R.B. v. Economy Food Center, Inc.,
333 F. 2d 468 (C.A. 7).
2. Gary Earnest
About the middle of February, Gary Earnest applied for a job at Respondent Com-
pany after having been told by Bob Kocourek that they might need help. He filled
out an application which the receptionist gave him before being interviewed by
Calandra. During his interview he was questioned concerning his schooling and work
20 The above findings are based upon the credited testimony of Pike. Calandra testified
that the only topic discussed at this meeting was the discharge of Martin and that he
wanted Pike to know that Martin was fired because of his smoking, and that occasionally
he told one employee of the discharge of another employee "to help communications on
occasion, yes." Neither Levin nor Mewhirter testified about the meeting, although
present. Pike's testimony is credited because Calandra's reason for summoning Pike to
the meeting is far from convincing, and it appears unlikely that the entire meeting,
lasting over an hour, could have been devoted to discussing Martin's discharge only.
Furthermore, Pike's testimony was unequivocal and convincing.
ii The above findings are based on Pike's credited testimony. Calandra's testimony
made no specific references to the conversation of March 23 and to the one held a few
days later , and his testimony concerning the conversation of April 16 does not materially
differ from the above recital.
CALANDRA PHOTO, INC ., & IRVIN C. LEVIN ,. ETC. 669
experience , and also whether he ever belonged to a union . After stating that he never
belonged to a union, Calandra asked whether he would ever join a union . He replied
that he would not know because , "I had never belonged to one." Calandra then
advised him that he would have to talk to Mr. Levin , who was then sick , before doing
any hiring . Earnest left his application on Calandra 's desk before leaving, but never
heard from the Company.22
General Counsel contends that Respondent Company violated Section 8 ( a)(1) by
its interrogation of Earnest . Although interrogation of union inclinations or affiliation
may not, per se, be violative of Section 8(a) (1), I find in the absence of any justifica-
tion of its use, and in the context of the unfair labor practices committed herein, that
the interrogation had a coercive effect and violated Section 8(a)(1). Clark Printing
Company, Inc., 146 NLRB 121; Transamerican Freight Line , Inc., 122 NLRB 1033,
1034, footnote 3.
3. The termination of John B . Biodrowski and his son , Michael Biodrowski
John B. Biodrowski , a long-time employee of Respondent Company, was its plant
manager until March 27. His son, Michael , a 16-year-old schoolboy , who in the past
had worked during school vacations for Respondent Company, was employed by
Respondent Company during his Easter school vacation from March 21 to 27, and
arrangements had been made for him to work part time the following week after
school . General Counsel contends that both these employees were discharged on
March 27, because John B. Biodrowski refused to engage in unfair labor practices
involving employee Herman Martin . The evidence of their terminations is conflicting
and confusing , and the matter is also complicated by the fact that John B. Biodrowski
died on April 23 prior to the hearing . The pertinent evidence is as follows:
Rosemary Biodrowski , the widow of John C. Biodrowski , testified 23 that on
Wednesday night, March 25, her husband advised her that he was going to hand in his
resignation because he was fed up with the way things were going on at the plant, and
felt badly over the way Herman Martin was fired. The next night he told her that
he had informed Calandra and Levin that he was resigning and giving them 2 months'
notice. The following day, March 27, hei husband and son, Michael , came home
about 10:30 a.m., and her husband told her that he and Michael had been fired under
the following circumstances : Calandra and Levin had tried to get him to sign a paper
against Martin , and he refused to sign it unless he had his own lawyer present; Levin
^ These findings are based on the credited testimony of Earnest. Calandra denied
having interviewed Earnest, and stated that Biodrowski interviewed applicants for work
in the plant . Comptroller Johnson testified that he vaguely recalled seeing an applica-
tion bearing an address 1800 M Street ( Earnest ' s address is 1811 M Street ) ; that such
an application would have come over his desk to check on references and other informa-
tion therein ; that he did not recall anyone by that name ; that generally he did the in-
terviewing of job applicants , kept 90 percent of the applications , and was unable to find
Earnest ' s application ; and that Mewhirter kept the balance of the applications, and
interviewed applicants for jobs as Rarehouse drivers , which he presumed Earnest would
have applied for , and he was positive Mewhirter would have the application . Mewhirter's
testimony contains no reference to Earnest ' s application . Earnest's testimony is credited
because it impressed me as being truthful and convincing
'3 Respondents objected to the admission in evidence of any testimony by witnesses
concerning conversations had with the deceased , John B. Biodrowski , during his life-
time, on the grounds that it was excluded specifically by the Nebraska Dead Man's
Statute Section 25-1202 R . S Nebraska 1943 , and was also hearsay The Dead Man's
statute by its terms is inapplicable where the witness ' interest (as appears herein) is
not adverse to the interest of the representative of the deceased , and has been so con-
strued by the Nebraska courts See Dowding v. Dowding , 152 Neb. 61 , 40 N. W. 2, 245,
247, where the court held, "Having in view the common law rule as to competency, and
the mischief which this statute sought to prevent , it should be construed as if it read
that no person having a direct legal interest in the result of an action shall be permitted
to testify when the party interested adversely to the witness ' interest is the representa-
tive of a deceased person " Furthermore , whether or not such testimony would be
admissible in the courts of Nebraska , the Board has held it to be admissible but
cautioned about the weight to be accorded it. Thus, in Wallick and Schwalm Corp.,
et at., 95 NLRB 1262, 1263, the Board stated , "The Board is not precluded from
considering as evidence statements attributed to deceased persons It does , however,
subject such testimony to the closest scrutiny before deciding what weight to give it"
See also Quarles Manufacturing Company and Southern Wholesalers , 83 NLRB 697,
699, footnote 8; and West Texas Utslity Company, Inc , 94 NLRB 1638, 1639
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then got mad and refused to give him a recommendation and told him to hand over
the keys to the plant; and her husband said to her if that doesn ' t mean firing, he didn't
know what would. Later that day Calandra called her on the telephone and asked
her if she knew why John had quit his employment and she replied that she did not
know. Thereafter, on March 28, she and her husband went to St. Paul, Minnesota,
where he obtained employment at Mondo Photo Co.,24 and he began working there
on April 6. On April 13 he returned to Oniaha seriously ill and was hospitalized until
April 23 when he died after undergoing surgery on April 20 (his death certificate
indicates he died from a tumor of the brain). Not long after his death she was
called to Calandra's office where he handed her a check for $10,500 in payment of an
insurance policy carried by the company covering her husband's life.25 At that
time, pursuant to Levin's request and as a favor to the Company, she signed a letter
dictated by him to the effect that her husband had not been fired and had quit, and
was going to seek employment in Minneapolis.26 She was also requested on a later
occasion to have her son, Michael, call at the Company's offices for the purpose of
signing a statement concerning his termination, but she refused to have him involved.
Michael J. Biodrowski testified that while at work during mid-morning on March 27,
he was told by Bihler to punch out and wait for his father in the car; 27 that he
went to the cai and waited for about 20 minutes until his father appeared, and that
they then drove home during which time his father told him he had been fired. He
testified further than when he returned home from school on April 1, he found his
father talking to Mark Kitchin, a representative of the National Labor Relations
Board, in the latter's car, and was with them in the car from about 3:45 p.m. to
5:30 p.m., during which time he heard Kitchin ask his father questions and prepare
a statement; and that his father read the statement after it was completed, initialed
erasures on each page, and then signed and swore to it.
Ronald Pike testified that John Biodrowski told him that he had informed employ-
ees Larry Leach and Chuck Lipari on March 26 that he was going to resign; that on
March 27 he telephoned to John Biodrowski and asked whether he had been fired; that
Biodrowski said, "Yes," that he couldn't take any more of it down there, and that
when they asked him to sign a paper that he had fired Herman Martin, he refused
and they discharged him; and that on the night before Biodrowski died he saw him at
the hospital where Biodrowski again told him he had been discharged because he could
not take any more, and he declined to sign a paper stating he had fired Herman Martin.
Melitta Heaton testified that there was a meeting of all the employees in the lunch-
room at the Company's plant on March 27, at which time they were told by Levin that
John Biodrowski had had a disagreement upstairs and was very angry, got mad and
walked out, and was being replaced by Bud Bihler as plant manager; that on the same
afternoon, she, Irene Maseman and a few other employees visited John Biodrowski's
home where he told them that he had been discharged when he refused to sign a
statement that he had fired Mai tin because he caught him smoking; that when he
refused Levin said to him, "I can see you are a union sympathizer You are not
with the Company ... give us the keys and get out of here," and that Biodrowski
replied , "If I am being fired I want my paycheck now."
Johnson testified that he prepared final paychecks for Biodrowski on March 27,
pursuant to Calandra's instructions after being told that Biodrowski was quitting;
that after Biodrowski picked up his check and was leaving, Levin reminded him that
he was doing it and not the Company, and that a letter of recommendation had been
prepared but was not given to him.
Larry Leach, who worked in the black and finishing department, testified that on the
evening of March 26, Biodrowski told him he had just quit and would leave in 2 or 3
weeks because he was fed up with things in general.
Charles Lipari, who worked on photo finishing, and is the son of James Lipari, a
vice president of the Company, testified that late in the afternoon of March 26,
Biodrowski told him he had given notice of quitting but would not say when; and
that he was unable to get along with Tom Mewhirter, who was trying to take over
his job.
u Previously , on March 26 , Biodrowski had made a telephone call to Moore who
operated the Mondo Photo Co.
a This policy had lapsed following Biodrowski 's termination , but shortly before his
death Calandra had arranged to have it reinstated.
20 At the hearing she claimed she did not realize what she was signing, and it was not
clear to her
07 According to his mother 's testimony , he told her that Bihler said , "Mike, go out
in the car and wait for your father out there "
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 671
Levin testified that on March 26 he spoke to Biodrowski and suggested that he think
over for a few days whether he wanted to leave the Company; and that on March 27
he told Biodrowski he could return whenever he wanted, but preferred that he did
not leave.
Calandra testified that Biodrowski came to his office on March 26 and said he was
quitting because he was tired of the work and disturbed by Mewhirter who seemed
to want to take over his job; that he was unable to talk Biodrowski out of quitting,
and he left with the idea he was going to leave in about 10 days; that the next morning
Biodrowski came into his office and said he was leaving and wanted a letter of
resignation (recommendation); that he was given his check; and that before he left
he said, "I want my boy" and went to the telephone, called Bihler and said, "Send my
boy to the car."
Elizabeth Olds, Calandra's secretary, testified that on March 27 in the conference
room she took down in shorthand a statement by Biodrowski, and after typing it up
brought it back to the conference room. She identified the contents of Respondent's
Exhibit No. 3 for identification, as what she had taken down in shorthand and typed
up. It 28 sets forth that in January Biodrowski saw Martin in the darkroom putting
out a lighted cigarette; that previously he had warned all employees, including Martin,
concerning smoking; that he told Martin, "if I catch you smoking again, you will be
fired," and Martin replied, "I won't do it anymore"; and that he felt it necessary to
give Martin this stronger warning because it was highly dangerous to the safety of
the employees, the equipment, and the supplies.
Biodrowski's sworn statement 29 sets forth, in connection with his own termination
as At the hearing, the statement was rejected when offered in evidence as Biodrowski's
statement because it was unsigned. Upon reconsideration, I am reversing its rejection
and admitting it in evidence as Respondent's Exhibit No. 3, on the ground that it is a
record of what Blodrowski told her, and is admissible subject to the same precautions
as to the weight to be accorded it, as were other conversations had with Biodrowski.
25 The statement was admitted in evidence over Respondent's objection. In their brief
Respondents contend that the statement was improperly admitted because it was hear-
say which did not fall within any of the recognized exceptions to that rule, and in
support quoted the following from the decision in Superior Engraving Co. v. N.L.R.B.,
183 F. 2d 783, cert denied 340 U.S 930:
The Act, Section 10(b), provides that the proceedings before the Board, so far
as practicable, should be conducted "in accordance with the rules of evidence ap-
plicable in the district courts of the United States." The rule excluding hearsay
is a basic rather than a technical rule The reason for the rule is that the un-
sworn statement of a person not called as a witness or subjected to the test of cross-
examination is not recognized as having sufficient probative effect to raise an in-
ference that the fact is as stated. Lest complainant points out that this quotation
applies to unsworn while here we seek to exclude a sworn statement, let us observe,
and not overlook, the words "or subjected to the test of cross-examination" which
forms the real test for admissibility.
An examination of that decision, however, reveals that the last sentence of the quota-
tion does not appear therein. It is also a significant distinction to note that in that
case the individual whose unsworn testimony was offered in evidence was not deceased
as in the instant case or otherwise shown to be unavailable to testify.
Furthermore, even assuming that the statement would not be admissible in a judicial
proceeding, it does not necessarily follow that it would be inadmissible in an administra-
tive proceeding. The Supreme Court had occasion to expound on the admissibility of
hearsay evidence in administrative proceedings in Consolidated Edison v. N.L.R.B., 305
U.S. 197, 229-230, where it stated:
The companies urge that the Board received "remote hearsay" and "mere rumor."
The statute provides that "the rules of evidence prevailing in courts of law and equity
shall not be controlling." The obvious purpose of this and similar provisions is to
free administrative boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent in judicial proceedings
would not invalidate the administrative order (Citations omitted ) But this as-
surance of a desirable flexibility in administrative procedure does not go so far
as to justify orders without a basis in evidence having rational probative force
Mere uncorroborated hearsay or rumor does not constitute substantial evidence.
This clearly indicates that the question is not one of admissibility of hearsay evidence
but rather one of evaluating such evidence. The Board passed on the admissibility of
an individual's sworn statement at a hearing which was held after his death in Brick-
layers and Masons Union No. 24, etc. (Booth and Flinn Company), 129 NLRB 867, 868,
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that of his son, as follows: On March 25 he and his wife decided that he should
resign because of differences which kept coming up with Calandra, and that the union
business , especially the firing of Martin , was the end . On the morning of March 26
he told Calandra in the presence of Levin, "as of right now I am giving you my
resignation and what is called a 2-month notice." Levin replied, "We 're terribly
sorry to have this happen , we'll do everything we can for you, and we appreciate the
2-month notice ." When Levin asked him if it was because of the union turmoil he
said "No," he was fed up . Levin then asked if it was because he hated Calandra,
and he replied , "No," he could not work with Tom Mewhirter . He then returned
to work, saw Charley Lipari , and told him that he had given his 2-month notice and
he, Lipari , would have to learn more about the job. On the morning of March 27
he was summoned to Calandra 's office where he was asked whether he was sure he
wanted to resign . He replied that he had made up his mind, and Calandra told him
he hated to see him leave . A little later , Levin joined them and they held a meeting
in the conference room, at which time Levin dictated a statement to Betty Olds about
Herman Martin , which she typed up and brought back . Calandra then slid a pen
over to him to sign, and he asked where was his recommendation . Levin told him
he would get no recommendation until he signed the Martin firing statement. When
he persisted in his refusal to sign unless his lawyer saw it, Levin said to Calandra,
"Make out this man's checks , both of them ." Johnson then prepared the checks,
and Levin said, "Have him give up his company keys right now." He thereupon
turned over his keys and Levin said, "Have his son punched out and escorted out
of the plant and put him in his car." He then pleaded unsuccessfully for a recom-
mendation before leaving the plant. The same night he obtained a job in another
State. On March 31 Levin telephoned him at his home and repeatedly told him he
was under the wrong impression and had not been fired , and had quit or resigned. He
persisted in maintaining that he and his son were fired, stating that if a man gives
up his keys he is fired . Levin then asked whether he had another job , to which he
replied, "No ," that he needed a job , adding, "I have seven kids." He also stated
that he liked Calandra , "he is a wonderful man, I hated to leave "
After carefully scrutinizing and evaluating the testimony of Biodrowski's widow
and that of the employees to whom he stated he had been discharged for refusing
to sign the paper to the effect that he fired Martin for smoking , I find that such tes-
timony cannot be considered as probative corroboration of similar comments appear-
ing in his sworn statement because, in substance , they constitute utterances by the
same individual and are self -serving. Thus, even if such evidence were credited,
we would have hearsay corroborating other hearsay , which would be insufficient to
support a finding. Furthermore , this evidence does not completely support the con-
clusions or inferences drawn by Biodrowski as to his discharge , and, moreover, does
not appear entirely compatible or congruous with other assertions by him. Accord-
ing to his widow's testimony , and also as set forth in his own statement , he assumed
he was fired because he had been asked to turn in his company keys, which he could
construe only as meaning that he was fired. No contention was made that he was
told he was fired. Also, when Levin repeatedly assured him in his telephone con-
versation on March 31 , that neither he nor his son were fired and he was under the
wrong impression , he persisted in maintaining he was fired because he turned in his
company keys It is difficult to understand why, despite Levin's assurances that he
had not been fired and his assertion to Levin that he had no job and was in dire need
of one, he, apparently , made no attempt to discuss or negotiate a return to his former
job. His further comment at that time to Levin that he liked Calandra, "he is a
wonderful man, I hated to leave ," also adds to the difficulty of comprehending or
accepting his contention that he was fired.
Furthermore , his assertions that he was discharged for refusing to sign a paper
stating that he had fired Martin for smoking become even less understandable in
view of the fact that the paper sets forth only that he caught Martin smoking and
threatened to fire him if he smoked again, a fact readily admitted by Martin, and
also included in Biodrowski 's statement . An additional complicating circumstance
where it affirmed the Trial Examiner 's rejection of the statement as an exhibit on the
ground that there was no evidence authenticating it, all such evidence having been prop-
erly stricken . It is not unreasonable to conclude that the proffered exhibit would have
been received but for the fact that there was no evidence of its authentication. The
weight , however , to be given to such statements must be carefully evaluated . Self-serving
statements by the declarant would not suffice as a basis for findings or inferences unless
corroborated by other evidence , whereas admissions or statements against interest would
not be so circumscribed.
CALANDRA PHOTO, INC., & IRVIN C. LEVIN, ETC. 673
is that Martin had been fired a week previously by Calandra. Viewing all of these
confusing, inexplicable and, in some respects, conflicting statements,3° I conclude that
General Counsel has failed to establish by a preponderance of the credible evidence
that Biodrowski and/or his son had been discharged on March 27.
Moreover, even assuming that Biodrowski and his son had been discharged because
of his refusal to sign a statement to the effect that he had caught Martin smoking
and had fired him, General Counsel is still faced with the burden of establishing by a
preponderance of the credible evidence that they were discharged because of his
refusal to engage in unfair labor practices concerning Martin, as alleged. The dis-
charge of a supervisor may be a violation of Section 8(a)(1), despite the specific
exclusion of supervisors from the protection of the Act, if the effect of his discharge
was to intimidate, interfere, or restrain nonsupervisory employees in the exercise of
their rights guaranteed them in Section 7. Better Monkey Grip Company, 115 NLRB
1170, enfd. 243 F. 2d 836 (C.A. 5), cert. denied 353 U.S. 864; Jackson Tile Manu-
facturing Company, 122 NLRB 764, 767, enfd. 272 F. 2d 181 (C.A. 5); Golub Bros.
Concessions, 140 NLRB 120. Biodrowski's statement and the testimony of all the
witnesses, with the exception of Heaton,31 concerning his discharge fail to indicate
that any prounion or antiunion activity on his part was connected in any way with
his refusal to sign the statement concerning the firing of Martin for smoking. His
objection to signing such a statement appears to have been based upon the ground
that an infraction of the rule against smoking did not warrant so drastic a disciplinary
measure.
Viewing the evidence in its entirety I find that General Counsel has failed to estab-
lish by a preponderance of the credible evidence that nonsupervisory employees were
intimidated, interfered with, or restrained in the exercise of rights guaranteed to them
in Section 7 by the discharge of the Biodrowskis, even assuming that they were dis-
charged. I conclude, therefore, that their discharges would not constitute a violation
of Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent Company's activities, set forth in section III, above, occurring in con-
nection with the Company's operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents engaged in unfair labor practices in
violation of Section 8 (a) (1) and (3) of the Act, it will be recommended that the
Respondents cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. It will be recommended that the Respondent
Company offer employee Herman Martin immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to seniority and other
rights and privileges, and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by payment to him of a sum of
money equal to that which he would have earned as wages from the date of the dis-
crimination against him to the date of offer of reinstatement less interim earnings,
and in a manner consistent with Board policy set out in F. W. Woolworth Company,
30 In possible explanation of the confusing circumstances involving Biodrowski's
termination, it is pertinent to refer to some of the evidence bearing on his mental con-
dition immediately prior, during, and following his alleged discharge Such evidence
indicates that: Blodrowski was out on sick leave on two occasions in February and
March, once for 3 weeks prior to March 16; he had complained of headaches, drowsiness,
and feeling generally bad during this period ; Levin thought he was acting incoherently
and was extremely emotional at their meeting of March 27, and did not appear to be
himself ; and during the week following his alleged termination, his widow testified, he
became mentally confused in a long-distance telephone conversation with Moore (of
Mondo Photo Co.) when he tried to put across an idea, and upon completion of the
call be grabbed the bannister and ripped at it in utter frustration, and then slammed
the door. Furthermore, and of even more significant import, Biodrowski was hospitalized
in a critical condition about 2 weeks after his alleged termination, which during surgery
on April 20 was discovered to be a brain malignancy, and he died on April 23.
31 1 do not credit the testimony of Heaton to the effect that Biodrowski told her that
Levin accused him of being prounion when he refused to sign the statement about
Martin, in view of all the other evidence on that point.
783-133-66-vol. 151-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
90 NLRB 289, and Crossett Lumber Company , 8 NLRB 440, to which shall be added
interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716.
I shall recommend that the Respondent Company preserve and make available to
the Board or its agents , upon request , for examination and copying , all payroll records,
social security payment records , timecards , personnel records and reports, and all
other records necessary to analyze the amount of backpay due and the right to rein-
statement under the terms of these recommendations.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. The Respondent Company is engaged in commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.
3. By discriminating in regard to the hire or tenure of employment of Herman
Martin, thereby discouraging membership in the above Union, Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By engaging in interference , restraint , and coercion , Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
6. Except as specifically found herein , Respondents have not otherwise engaged
in acts or conduct in violation of Section 8(a)(1) and ( 3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pursu-
ant to Section 10(c) of the Act, I hereby recommend that Calandra Photo, Inc., its
officers , agents, successors , and assigns , shall.
1. Cease and desist from.
(a) Discouraging memberhip in International Printing Pressmen and Assistants'
Union of North America, Local No. 412 , AFL-CIO , or in any other labor organiza-
tion by discharging , refusing to reinstate , or in any other manner discriminating
against employees in regard to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees or applicants for employment concerning their union
intentions or activities or the intentions or activities of other employees with respect
to the above -named or any other labor organization in a manner constituting inter-
ference, restraint , or coercion violative of Section 8(a)(1) of the Act.
(c) Threatening employees with economic reprisals because of their adherence to,
or activities on behalf of , the Union , or any other labor organization.
(d) Promising or offering economic benefits to employees if they refrain from
union activities.
(e) In any like or related manner interfering with, restraining , or coercing employ-
ees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Herman Martin, immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority and other rights
and privileges , and make him whole for any loss of earnings he may have suffered
by reason of Respondent 's discrimination against him, as set forth in the section of
this Decision and Recommended Order entitled "The Remedy."
(b) Notify the above -named employee , if presently serving in the Armed Forces
of the United States of America, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
(c) 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 other records necessary to analyze the
amount of backpay due and all other rights under the terms of this Recommended
Order.
(d) Post in conspicuous places at its plant in Omaha , Nebraska , including all places
where notices to employees and applicants for employment are customarily posted,
CALANDRA PHOTO , INC., & IRVIN C. LEVIN , ETC. 675
copies of the attached notice marked "Appendix ." 32 Copies of said notice, to be
furnished by the Regional Director for Region 17, shall , after being duly signed by
Respondent Company's representative , be posted by it immediately upon receipt
thereof, and be maintained by it for at least 60 consecutive days thereafter . Reason-
able steps shall be taken by the Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director , in writing , within 20 days from receipt of this
Decision , what steps Respondent has taken to comply herewith.33
Those allegations of the complaint which relate to alleged violations of Section
8(a)(1) and ( 3), not specifically found herein, are hereby dismissed.
83 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner " in the notice In the turther event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words " a Decree of the United States
Court of Appeals , Entorcing an Order " shall be substituted for the words "a Decision
and Order"
as In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read "Notify said Regional Director , in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Printing Pressmen and
Assistants ' Union of North America, Local No. 412, AFL-CIO, or any other
labor organization , by discharging or refusing to reinstate any of our employees,
or in any manner discriminating in regard to their hire or tenure of employment,
or any term or condition of employment.
WE WILL NOT mteriogate our employees or applicants for employment con-
cerning their union intentions or activities or the intentions or activities of other
employees , with respect to the above -named or any other labor organization,
in a manner constituting interference , restraint , or coercion violative of Section
8(a)(1) of the Act.
WE WILL NOT threaten employees with economic reprisals because of their
adherence to, or activities on behalf of , the Union or any other labor organization.
WE WILL NOT promise or offer economic benefits to employees for refraining
from union activities.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above-named 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 , and to refrain from any and all such activities except to the
extent that such rights may be affected by an agreement in conformity with
Section 8(a)(3) of the National Labor Relations Act, as amended.
WE WILL offer to Iiernian Martin immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to seniority and
other rights and privileges , and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become , remain , or refrain from becoming or remain-
ing, members of the above -named Union , or any other labor organization.
CALANDRA PHOTO, INC.,
Employer.
bated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above -named employee , if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
676 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731 if they have any question concerning this notice or compliance
with its provisions.
Mississippi Valley Barge Line Co. and District 2, Marine Engi-
neers Beneficial Association , AFL-CIO and Marine Officers' As-
sociation , Party to the Contract. Case No. 14-CA-3017 (for-
merly Case No. 13-CA-5480). March 15, 1965
DECISION AND ORDER
On July 9 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondent and the
Party to the Contract filed exceptions and supporting briefs. The
Charging Party filed cross-exceptions and a brief in support
thereof, and the General Counsel and the Charging Party both filed
answering briefs.
The National Labor Relations Board 1 has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no prej-
udicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
and briefs, and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner only to the extent consistent with this Decision and Order.
The complaint alleges that Respondent violated Section 8(a) (3)
and (1) by interrogating and subsequently discharging certain
of its chief and assistant engineers who favored representation by
District 2, Marine Engineers Beneficial Association (MEBA) when
the Respondent had recognized the Marine Officers' Association
(MOA). It further alleged that the Respondent had rendered
illegal assistance to MOA through the coercion of the MEBA
engineers in violation of Section 8(a) (2). Both the Respondent
and MOA contend that both the chief and the assistant engineers,
are supervisors, are not protected by the Act, and, therefore, that
no violations of the Act have occurred.
The Trial Examiner found that the assistant engineers were not
supervisors and indicated that but for a stipulation that the chief
1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-
member panel [ Chairman McCulloch and Members Fanning and Brown].
151 NLRB No. 74.