Central Press of California

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 765 (N.L.R.B. 1974)

CENTRAL PRESS OF CALIFORNIA 765
Central Press of California and Sacramento Mailers
Union Local 31, International Typographical Un-
ion. Case 20-CA-8587
May 21, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 28, 1974, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, Charging Party filed a brief in
answer to Respondent's exceptions, and General
Counsel filed a cross-exception and a brief generally
supporting the Administrative Law Judge's Decision.
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 as
modified herein and to adopt his recommended
Order.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(3) and (1) of the Act in
discharging employee Daniel Stone. We agree.
As found by the Administrative Law Judge,' Stone
worked on the night shift in the mailroom; he was
supervised by Night Foreman Fowler, except for a 2-
hour overlap period each day between the day and
night shifts during which Day Shift Foreman Clancy
was in charge and thus had the opportunity to
observe Stone. Two weeks prior to Stone's dismissal,
Clancy asked Fowler if he had overheard any of the
employees discussing anything about the Union or
union activities and specifically asked if he had heard
Dan Stone. Although Fowler testified that he did
hear Stone talking about the Union in the mailroom,
in his reply to Clancy's question, he said only that he
had heard the Union mentioned.2 Clancy then
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 Although the Administrative Law Judge states that Fowler testified
that he had informed Clancy that he had overheard Stone talking about the
Union to other employees, the Respondent correctly points out that the
record , to the contrary, indicates that Fowler acknowledged having
overheard union-related discussions among employees, but he did not
identify Stone as the spokesman
3 According to the transcript of Fowler's testimony , he stated , "He asked
me that Stone 's father was a union executive , a big union official." In his
instructed Fowler to inform him if he heard any of
the employees discussing the union adding that,
". . . if the union thing had started, there would be a
possibility that the plant would close, and we would
possibly lose our job." Clancy at another time asked
Fowler if he was having any trouble with Stone, and
Fowler answered, "No." In still another conversation
Clancy questioned Fowler regarding Stone's father
being a union executive.3 Clancy finally instructed
Fowler to inform Stone of his discharge and stated
that he had personally evaluated Stone and had
decided his work was unsatisfactory and furthermore
that they were going to have a reduction in
personnel. Approximately 2 days after Stone's
discharge, Fowler approached Clancy and said they
would be "hurting" for help since they were losing
two employees (Stone and Garrett). Clancy's reply
was, "yes, I understand we are all going to be
hurting, but we won't have to worry about the union
then."
It is clear from the above, and especially in view of
Clancy's particular concern with Stone's union
activities, that the General Counsel has made a prima
facie showing that Stone was discharged for unlawful
reasons . Once the General Counsel establishes a
prima facie case , it can be overcome only by a
preponderance of competent, credible rebutting
evidence.4 But Respondent has not sustained its
burden of going forward to adduce such proof. We
reach this conclusion notwithstanding Respondent's
contention that Stone's discharge was in part
motivated by an economic determination to reduce
the work force, and even if, as Respondent contends,
Garrett (who worked with Stone in the mailroom)
gave notice of his intention to quit several days
before Stone's discharge and Sagunza was hired
earlier to replace Garrett rather than Stone.5 For
Respondent has merely introduced self-serving testi-
mony consisting of bare assertions which were
discredited by the Administrative Law Judge, and it
failed to supply any documentary evidence to
support its claim of poor economic conditions.
Accordingly, we find no basis for reversing the
report , the Administrative Law Judge found that Clancy asked Fowler, "if
Stone's father was a union executive " General Counsel , in his exception,
argues that the Administrative Law Judge failed to consider the testimony
as reflected in the General Counsel 's motion (assertedly granted by the
Administrative Law Judge ) to correct the record to show that Clancy asked
Fowler , ". if he knew that Stone 's father was a union executive " We
need not ascertain the exact words used in Fowler's testimony , because the
various versions all reflect the same particular concern on the part of Clancy
with Stone's relationship with the Union
4 National Automobile and Casualty Insurance Co, 199 NLRB No. 1
5 As the Respondent points out , the record does not support the
Administrative Law Judge 's statement that Clancy testified that Sagunza
was hired to replace Stone . Nor do we deem the evidence as subject to an
interpretation that Garrett did not inform Clancy of his intention to quit
until the day of Stone's discharge or several days later
210 NLRB No. 113
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge's conclusion that Stone
was discharged in violation of Section 8(a)(3).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Central Press of
California, Sacramento, California, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case
was tried before me at Sacramento , California, on
November 8, 1973,1 upon the basis of a charge filed on
September 6, by the Sacramento Mailers Union Local 31,
International Typographical Union (herein called the
Union or the Charging Party) against Central Press of
California , herein called Respondent ,2 and a complaint
issued on October 5 on behalf of the General Counsel by
the Regional Director for Region 20 of the National Labor
Relations Board , herein called the Board . The complaint
alleged that on or about August 8 Respondent discharged
its employee , Daniel Stone , because of his membership in
or activities on behalf of the Union or because he engaged
in other protected concerted activities for the purposes of
mutual aid or protection . Respondent , while admitting
certain allegations of the complaint , denied that it had
engaged in any unfair labor practices . Upon the entire
record,3 my observation of the witnesses, and upon careful
consideration of the briefs submitted , I make the follow-
ing:
FINDINGS AND CONCLUSIONS
1. RESPONDENT'S BUSINESS
As the complaint alleges and the answer does not deny, I
find the following to be admitted: Respondent , a Califor-
nia corporation with its principal place of business at
Sacramento , California, is and has been engaged in the
retail printing business ; during the past calendar year, it
has received gross revenues in excess of $500,000; during
this same period , Respondent in the course and conduct of
its business operations purchased supplies valued in excess
of $50,000 from business enterprises which, in turn,
purchased said supplies directly from suppliers located
outside the State of California ; and Respondent is engaged
in commerce within the meaning of Section 2 (6) and (7) of
the Act. I further find that it would effectuate the policies
of the Act to assert jurisdiction herein.
I All dates hereafter refer to 1973 unless otherwise specified.
2 The charge was served on Respondent on September 6.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer did not deny, and I
find that Sacramento Mailers Union Local 31, Internation-
al Typographical Union, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Carl Fowler, Jr., testified that he is an apprentice mailer;
that he was employed by Respondent as a truckdriver,
mailer, and night foreman from May 8 to September 11;
that William (Bill) Clancy was the day foreman and his
immediate supervisor; that he overheard Stone discuss
union representation with employees Duncan , Roland
Garrett, and Angelo Pasquale when Stone was employed
on the night shift from July 7; that he heard mention of the
Mailers Union during the conversation ; that 2 weeks prior
to Stone's termination he had a conversation with Clancy
in which Clancy asked him if he had overheard employees
discussing the Union or discussing union activities; that
Clancy asked him particularly whether Stone had engaged
in union discussions ; that Clancy asked him to report any
union discussions to him , saying that, if "the union thing
had started ," there would be a possibility that the plant
would close and everyone would lose their jobs . About a'
week later, Fowler had another conversation with Clancy
in which he was asked if Stone's father was a union
executive . Fowler replied in the negative . On the day Stone
was discharged , Clancy called Fowler at his home and
asked him if he could come to work that day as Clancy had
something he wanted Fowler to do . Fowler came in and
Clancy told him that they were going to lose another
employee , naming Stone and saying that he had personally
evaluated Stone and had decided his work was unsatisfac-
tory. Clancy added that they were going to have a
reduction in personnel . Clancy then instructed Fowler to
tell Stone that he was discharged and give Stone two
checks-one for the last pay period and the other for his
day's work . Fowler then went to Stone and did as he was
instructed, telling Stone that it was as a result of Clancy's
personal evaluation of his work and that they were going to
have a reduction in work.
On cross-examination, Fowler testified that, during the
time he was night foreman , six persons was the maximum
number under his supervision and three the minimum; that
Stone was under his supervision for approximately I
month; that Stone was in the process of learning the job by
doing work that required less skills; that the night shift
overlapped for 2 hours with the day shift ; that Clancy was
in charge of the mailing room during the overlapping 2
hours and had an opportunity during this time to observe
Stone 's work; that Stone prior to working on the night shift
had worked for a period on the day shift under Clancy's
supervision ; that Clancy constantly went from one part of
the shop to another ; that when Stone worked on the
sacking machine it would break down on occasion and he
would then be required to do cleanup work which was
always needed; and that anyone working on the sacking
machine would be required to undertake cleanup work.
3 General Counsel 's unopposed motion to correct the transcript is
granted
CENTRAL PRESS OF CALIFORNIA
Fowler further testified that on one occasion, about I week
before Stone's discharge, Clancy told him to see that Stone
did not wander around the plant. Fowler, however, did not
caution Stone in this regard and Clancy never told him that
he had cautioned Stone against wandering around. Cross-
examined further, Fowler stated that he is now employed
at the "Sacramento Bee"; 4 that he learned of the vacancy
there through a fellow employee and applied for it; that he
became a member of the Union involved herein about 1
month prior to the hearing and that the "Sacramento
Bee's" mailroom employees are represented by the Union;
that in December 1972 three other employees of Respon-
dent went to work for the "Sacramento Bee"; that he did
hear Stone talk about the Union on two occasions with
employees Pasquale, Duncan, and Garrett, but only during
luncheon hours or break periods; that he did not hear
much of the conversation either time except that it was said
that there would be better opportunities if the plant was
union . Questioned further, Fowler testified that he is
making about $1 per hour more at the "Sacramento Bee"
than he did when he was working for Respondent. Fowler
stated that he had informed Clancy that he had overheard
Stone talking about the Union to other employees.
Daniel Stone testified that during the entire time he was
employed by Respondent he had engaged in conversations
concerning the Union with other employees. The day after
his discharge he talked with Clancy in the mailing room
and asked him the reason for his layoff. Clancy told him
that he had made an evaluation of his work and that he
was not satisfied . Clancy assigned as another reason for
Stone's discharge the fact that they were cutting back and
laying off people in other departments. Stone inquired
whether he was being laid off or being discharged. Clancy
replied that he was fired. When asked for the reason,
Clancy said that Stone had a bad attitude. In cross-
examination , Stone conceded that conversations in the
mailing room concerning the Union were held during
working hours but that he was never cautioned about this.
He also stated that he had never left his work area for these
conversations.
Clancy, called as a witness by Respondent, testified that
he has been employed by Respondent for about 6-1/2
years, the last 10 months as mailroom foreman; that he
supervised the mailroom employees and saw that the work
was performed; that normally there were four full-time
day-shift employees and five night-shift employees with
one or two part-time employees; that he had Stone on his
day shift for a time and then assigned him to the night shift
on July 7; that he observed employees while they were at
work; that after Stone was transferred to nights he
observed Stone on occasion leave his assigned work area to
talk to other employees so as to interrupt their work; that
he told Stone on two occasions "to go back where he was
supposed to work and quit talking to the other people;"
that Stone complied; that a few days later Stone again left
his work area to talk to other employees, and continued to
do so several other times; that on occasion when Stone's
machine stopped Stone would stand around and he had to
direct Stone to do cleanup work; that it is the practice of
4 A Sacramento newspaper.
5 According to Clancy's testimony, Sagunza came to work the day after
767
employees to do cleanup work without direction when their
machine breaks down ; and that Stone had been so
instructed . Continuing his testimonial account , Clancy
stated he had instructed Fowler to tell Stone he was being
let go because of his poor work and poor attitude towards
work.
Asked by counsel what he observed which led him to
believe that Stone had a poor attitude, Clancy replied as
follows:
A. Well, he was on the day shift , he was working
the full 8 hours , and he seemed to be more interested at
work. And then when he went on the night shift, it
seemed that his attitude changed, his interest changed.
It's just-it seemed to be-
Q. Were there any particular acts or words that
you observed or heard?
A. Myself, I would direct him to do something, or
Carl-?
Q. Carl-?
A. Carl Fowler, he would direct him to do
something or one of the other supervisors , and he might
do it eventually, but it was the attitude that he
impressed me with.
Clancy admitted he talked with Stone the day after his
discharge and that he told Stone that he concluded that his
work was poor because he wandered away from his
machine and paid no attention to his work ; that Stone
replied that he was going to take the matter to the National
Labor Relations Board ; that he hired a man the day before
Stone's discharge who came to work the following day;
that he also received word that Garrett was leaving at the
end of the week ; and that he hired another person about I
month later.
On cross-examination, Clancy testified that after the first
time he spoke to Stone he talked with Fowler and asked
Fowler if he was having any trouble with Stone; that
Fowler replied in the negative ; that he told Stone on both
occasions "to go back to work and to stay with his job, and
not to wander off, and that he was working on the machine
and that he had work to do." Questioned further, Clancy
stated that on the first occasion when he saw Stone wander
from the labeling machine the machine had stopped, and
that it usually stopped for about 15 or 20 minutes; that
when the machine stops it could be only a few minutes and
the men are not required to start immediately to do
cleanup work; that on many occasions the men wait for
instructions as to what to do.
Fowler, recalled as a witness, testified that about 2 days
after Stone's discharge he had a conversation with Clancy
in which he told him that they would be "hurting" for help
as they were losing two employees and that Clancy replied;
"Yes, I understand we are all going to be hurting but we
won't have to worry about the Union then"; that as far as
he remembered no employees were hired until after Stone's
discharge; 5 that he did not know whether Sagunza was
replacing Stone or Garrett; that Sagunza did not come to
work until about a week after Stone's discharge.
Stone's discharge.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clancy, recalled as a witness, testified that Sagunza came
to work the day Stone was fired or the day after, then
added, "But, I believe he was hired before, but didn't come
to work right away . . . . He didn't come to work right
away for a couple of days." Clancy admitted he talked to
Fowler about help after Stone's discharge, but denied
telling Fowler that he would not worry about the Union,
saying, "I don't recall any such thing at all."
Review of the pertinent evidence set forth above shows
that Clancy did not deny the crucial aspects of Fowler's
testimony. While the circumstances may indicate that
Fowler may have some mild bias in favor of the Union,
nevertheless, the main thrust of his testimony stands
uncontroverted. In this posture, I credit Fowler's testimony
that Clancy in July interrogated him as to whether the
employees were discussing the Union and particularly
whether Stone was engaging in such discussions. I regard
Clancy's desire for information concerning the Union as
more than idle curiosity inasmuch as Clancy added that if
the Union got in the plant would close and alljobs would
be lost. Clancy's interrogation of Fowler concerning the
union position Stone's father held and his inquiry whether
Fowler was having any trouble with Stone constitute
additional evidence that Clancy was singling out Stone for
special attention with regard to union activity among the
employees.
In view of the foregoing, I do not regard the two
occasions when Clancy allegedly told Stone to keep on
working as the sole or controlling reasons for Stone's
discharge. Respondent's other reason for Stone's discharge
with regard to a cut in personnel is hardly credible under
all the circumstances. If Sagunza, according to Clancy's
testimony, was hired the day before to replace Stone, then
it follows that Stone's discharge was not for the purpose of
cutting personnel . On the other hand, the available
evidence lends itself to an interpretation that Garrett did
not inform Clancy of his intention to quit until the day of
Stone's discharge or several days later. Therefore, Sagunza
could not have been hired to replace Garrett .6 Clancy
admitted that 2 days after Stone's discharge he had a
conversation with Fowler in which Fowler said they were
hurting for help, I credit Fowler's further assertion that
Clancy at that time said, in effect, that at least now they
would not have to worry about the Union. Accordingly, I
find that the assigned reasons for Stone's discharge were
pretextual and that the true reason was Stone's suspected
union sympathies and activities. A discharge for this
reason constitutes a violation of Section 8(a)(1) and (3) of
the Act. I so find.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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.
6 Clancy was very uncertain as to when he received information that
Garrett was quitting
T 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,
3. By discharging Daniel Stone because of his sympa-
thies for and activities on behalf of the Union , Respondent
unlawfully discriminated against Stone and thereby violat-
ed Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
As Respondent unlawfully discriminated against Daniel
Stone by discharging him on August 8, 1973, it will be
recommended that Respondent offer Stone immediate and
full reinstatement to his former job without prejudice to his
seniority and other rights and privileges or, if this job no
longer exists, to a substantially equivalent job, and to make
him whole for any loss of pay that he may have suffered by
reason of Respondent's discrimination against him, by
paying to him a sum of money equal to that he normally
would have earned as wages from August 8, 1973, to the
date of Respondent's offer of reinstatement, less his net
earnings during that period. The amount of backpay due
him is to be computed according to Board policy as set
forth in F. W. Woolworth Company, 90 NLRB 289, with
interest on backpay computed in the manner set forth in
his Plumbing & Heating Co., 138 NLRB 716. Payroll and
other records in possession of Respondent are to be made
available to the Board or its agents, to assist in such
computations.
Upon the foregoing findings of fact , conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I hereby
recommend that there be issued the following:
ORDER?
Respondent, Central Press of California, Sacramento,
California, its officers, agents , successors, and assigns,
shall:
1. Cease and desist from discouraging membership in
Sacramento Mailers Union Local 31, International Typo-
graphical Union, or any other labor organization of its
employees by discharging any of its employees because of
their sympathies for or activities on behalf of the above-
named Union, or any other labor organization, or by
discriminating against its employees in any like or related
manner in regard to hire or tenure of employment or any
term or condition of employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Daniel Stone immediate and full reinstate-
ment to his former job without prejudice to his seniority
and other rights and privileges or, if his job no longer
exists, to a substantially equivalent job, and to make him
whole in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
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
CENTRAL PRESS OF CALIFORNIA 769
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amounts of backpay due under the terms of
this Order.
(c) Post at its place of business in Sacramento, Califor-
nia, copies of the attached notice marked "Appendix."8
-Copies of the notice, on forms provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative of the Respondent, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
8 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."
Union, or any other labor organization of our employ-
ees by discharging any of our employees because of
their sympathies for or activities on behalf of the
above-named Union, or any other labor organization,
or by discriminating against our employees in any like
or related manner in regard to hire or tenure or
employment or any term or condition of employment.
WE WILL NOT in any like or related manner, restrain
or coerce our employees in the exercise of their rights
guaranteed them under Section 7 of the Act.
WE WILL offer Daniel Stone immediate and full
reinstatement to his former job or, if that job no longer
exists , to a substantially equivalent job, without
prejudice to his seniority or other rights or privileges.
WE WILL pay Daniel Stone for the earnings he lost
because of the discrimination against him , with 6-
percent interest.
Dated By
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Sacramento
Mailers Union Local 31, International Typographical
CENTRAL PRESS OF
CALIFORNIA
(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 concerning this notice or compliance with
its provisions may be directed to the Board 's Office, 13018
Federal Building , Box 36047, 450 Golden Gate Avenue,
San Francisco , California 94102 , Telephone 415-556-0335.