Empire State Weeklies, Inc.

National Labor Relations Board - Board Decisions

Oct 5, 2009

354 N.L.R.B. 815 (N.L.R.B. 2009)

354 NLRB No. 91
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Empire State Weeklies, Inc. and Graphic Communi-
cations Conference/International Brotherhood
of Teamsters, Local 503. Case 3–CA–26884
October 5, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On May 13, 2009, Administrative Law Judge Ira San-
dron issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel and Charging Party filed answering briefs. The Gen-
eral Counsel filed cross-exceptions and a supporting
brief; the Respondent filed an answering brief; and the
General Counsel filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions, as modified below, and to adopt
the recommended Order as modified and as set forth in
full below.3

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d
410 (2d Cir. 2009), petition for cert. filed __U.S.L.W.__ (U.S. Septem-
ber 11, 2009) (No. 09–328); New Process Steel v. NLRB, 564 F.3d 840
(7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22,
2009) (No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d
36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Au-
gust 18, 2009) (No. 09–213). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for cert,
filed sub nom. NLRB v. Laurel Baye Healthcare of Lake Lanier, Inc.
__U.S.L.W.__(U.S. September 29, 2009)(No. 09–377).
2 The judge failed to include commerce facts establishing the
Board’s jurisdiction over the Respondent. However, we find, as the
Respondent admits, that it is a corporation, with an office and place of
business in Webster, New York, and has been engaged in the business
of commercial printing. Annually, the Respondent, in conducting its
business operations described above, purchases and receives at its
Webster, New York facility goods valued in excess of $50,000 directly
from points outside the State of New York. The Respondent admits,
and we find, that it has been an employer engaged in commerce within
the meaning of Sec. 2(2), (6), and (7) of the Act. We further find that
the Union, Graphic Communications Conference/International Brother-
hood of Teamsters, Local 503, has been a labor organization within the
meaning of Sec. 2(5) of the Act.
3 We modify the judge’s recommended Order to reflect the viola-
tions found, to conform to the Board’s standard remedial language, and
We adopt the judge’s finding that the Respondent’s
discharge of Ronald Foglia violated Section 8(a)(3) of
the Act.4 We further adopt his finding that the Respon-
dent violated Section 8(a)(1) by unlawfully interrogating
Foglia,5 and unlawfully creating an impression that
Foglia’s union activities were under surveillance. As
explained below, however, we find, contrary to the
judge, that the Respondent also violated Section 8(a)(1)

to correct certain inadvertent errors. We also substitute a new notice to
conform to the Order as modified.
We also amend the judge’s remedy in one respect. His remedy pro-
vides for the calculation of backpay in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971). The 8(a)(3) violation we find here, however, involved a disrup-
tion of employment. Therefore, we calculate backpay in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950). See Eugene Iovine,
Inc., 353 NLRB No. 36, slip op. at 1 fn. 4 (2008).
4 We find it unnecessary to pass on the judge’s further finding that
Foglia’s discharge independently violated Sec. 8(a)(1) because it would
not materially affect the remedy.
In adopting the judge’s finding that Foglia’s discharge violated Sec.
8(a)(3), we agree with the judge that the General Counsel met his initial
Wright Line burden of proving unlawful motivation for Foglia’s dis-
charge. 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983). Further, we agree
with the judge that the Respondent’s stated reason for terminating
Foglia, his alleged insubordination, was a pretextual one. According to
the Respondent, it terminated Foglia for failing to print a job containing
the union logo after he was directed to do so. The statements and ac-
tions of David Young, the Respondent’s owner, however, establish that
Foglia’s union activity was the actual reason for his discharge. For
example, at Foglia’s termination interview, Young interrogated him
about his union activities and stated that Foglia had been working with
the Union for months. Young also admitted that, at the time he dis-
charged Foglia, he harbored “derogatory feelings” towards Foglia for
instigating the Union “scenario.” After Foglia’s discharge, Young
questioned other employees about their union sympathies, and even
told employee James Foglia (Foglia’s son and herein J. Foglia) that
because he was a Foglia, he should get the Union out of his head.
Further, the Respondent failed to cite insubordination as a basis for
Foglia’s discharge at the time it discharged Foglia, during its meeting
with the Union regarding Foglia, in its position statement, or in its
answer to the complaint. Given the pretextual nature of the Respon-
dent’s insubordination defense, we find it unnecessary to pass on
whether Foglia’s refusal to print the job constituted protected concerted
activity.
In finding this violation, Member Schaumber does not rely on the
Respondent’s failure to cite insubordination as a basis for Foglia’s
discharge at the time of the discharge or in its answer to the complaint.
In addition while he agrees with the judge’s animus findings, Member
Schaumber does not rely on the judge’s finding that, if the conversation
between J. Foglia and Young had occurred months after Foglia’s dis-
charge, it would have made no difference in the animus analysis.
5 In finding this violation, Member Schaumber relies solely on the
fact that the Respondent presented no arguments in support of its ex-
ception. Therefore, in accordance with Sec. 102.46(b)(2) of the
Board’s Rules and Regulations, he disregards that exception and adopts
the judge’s finding. Akal Security, Inc., 354 NLRB No. 11, slip op. at 1
fn. 1 (2009).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
by threatening Foglia’s son, J. Foglia, with unspecified
reprisals.
Facts
Crediting J. Foglia’s testimony, the judge found that
upon J. Foglia’s return to work from a back injury,
Young, the Respondent’s owner, called him into his of-
fice and discussed J. Foglia’s back injury, any work limi-
tations J. Foglia might have, and accommodations the
Respondent was making for him. By this time, the Re-
spondent had unlawfully fired J. Foglia’s father because
of his union activities. Young told J. Foglia to “get this
union thing out of your head.” When J. Foglia asked
how that pertained to him, Young replied, because he
was a Foglia.
The parties do not dispute that this conversation hap-
pened or the substance of what was said,6 but rather dis-
pute the specific date on which the conversation oc-
curred. J. Foglia testified that the conversation occurred
about September 25, 2008,7 but he also testified that he
was out from work September 22–26. J. Foglia’s time-
card, however, indicated that he worked on September
23–24. In contrast, Young testified that the conversation
occurred after J. Foglia returned to work on October 15.
To that end, the Respondent presented a physician’s note,
dated October 7, excusing J. Foglia from work until “at
least 10/15/08.”
General Counsel’s Motion to Amend
Based on the Young-J. Foglia conversation, the Gen-
eral Counsel initially alleged that Young “told an em-
ployee not to talk about unions.” After the hearing, the
General Counsel moved to amend that allegation to con-
form it to J. Foglia’s testimony. The amended allegation
asserted that Young “made an implied threat of unspeci-
fied reprisals by telling an employee to ‘get this union
thing out of your head.’” The judge granted the General
Counsel’s motion to amend. We find no merit in the
Respondent’s exception that the issue was not fully liti-
gated and that the finding of a violation deprived the Re-
spondent of due process.
Under Section 102.17 of the Board’s Rules and Regu-
lations, a judge has wide discretion to grant motions to
amend a complaint. Moreover, if the matter has been
fully litigated, and the amendment conforms the com-
plaint to the evidence, the Board has stated that the mo-
tion to amend generally should be granted. See, e.g.,
Pincus Elevator & Electric Co., 308 NLRB 684, 685
(1992), enfd. 998 F.2d 1004 (3d Cir. 1993). Here, the
original and amended allegations involve the same indi-

6 The Respondent does not except to the judge’s credibility finding
regarding the conversation.
7 All dates are in 2008.
viduals, as well as the same conversation, and allege a
violation of the same section of the Act. Thus, the Re-
spondent was on notice that the conversation between
Young and J. Foglia was at issue. The Respondent had
the opportunity to cross-examine J. Foglia during the
hearing and it also presented evidence regarding the con-
versation through its own witness, Young. Accordingly,
this issue was fully litigated, and the Respondent does
not identify any evidence that it would have presented
had it known of the amendment earlier. For all of these
reasons, we affirm the judge’s decision to grant the Gen-
eral Counsel’s motion to amend. See American Stores
Packing Co., 277 NLRB 1656, 1656–1657 (1986).
Threat of Unspecified Reprisals
While the judge credited J. Foglia’s account of the
conversation with Young, and even relied on this account
to find that the Respondent harbored animus towards J.
Foglia’s father because of his union activity, he dis-
missed this allegation on the ground that the General
Counsel failed to establish a “satisfactory foundation” for
the alleged threat, apparently referring to the precise date
on which the threat occurred. The judge framed the issue
as “whether findings of independent 8(a)(1) violations
can be based on witness testimony that is not reliable as
to the date of their occurrence.” He then noted the dis-
crepancies in J. Foglia’s testimony regarding the date and
found that other records implicitly corroborated Young’s
testimony as to when the conversation took place. Be-
cause the evidence did not “reliably” establish the date of
the threat, the judge dismissed the allegation. We find
that the judge erred in dismissing the allegation solely
because there were minor discrepancies in the witnesses’
testimony as to when the conversation, the substance of
which is undisputed, actually occurred.8
The General Counsel’s failure to establish the conver-
sation’s exact date does not prevent the Board from find-
ing a violation. The complaint alleges that the conversa-
tion took place “on or about” September 24, and the re-
cord indicates that it happened between September 25
and October 15. It is undisputed that the litigated con-
versation is the same as that originally alleged; there is
no indication that the date uncertainty caused any party
to believe otherwise. Moreover, it is undisputed that the
statement alleged to be a violation was made. Under
these circumstances, the General Counsel has established
a satisfactory foundation for the allegation.

8 The dismissed allegation also claimed that Young “made an im-
plied threat to an employee that Respondent would close if employees
selected the Union as their representative.” No party excepts to the
judge’s dismissal of that portion of the allegation.
EMPIRE STATE WEEKLIES, INC. 3
Turning to the merits of the allegation, we find that
Young’s statement unlawfully coerced J. Foglia. An
employer violates Section 8(a)(1) by acts and statements
reasonably tending to interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. The
Continental Group, Inc., 353 NLRB No. 31, slip op. at 3
(2008). The Board employs a “totality of circum-
stances” standard to distinguish between employer
statements that violate Section 8(a)(1) by explicitly or
implicitly threatening employees with loss of benefits or
other negative consequences because of their union activ-
ity, and employer statements protected by Section 8(c).
Sawgrass Auto Mall, 353 NLRB No. 40, slip op. at 2
(2008). Here, given the totality of the circumstances,
Young’s statement was coercive as a threat of unspeci-
fied reprisals. The statement by the Respondent’s owner
followed J. Foglia’s father’s recent unlawful discharge
and would have the natural effect of impermissibly dis-
suading J. Foglia from engaging in protected activities or
run the risk of suffering a fate similar to his father’s.
Young’s statement therefore violated Section 8(a)(1).
See Martech MDI, 331 NLRB 487, 500 (2000), enfd. 6
Fed. Appx. 14 (D.C. Cir. 2001) (respondent violated Sec.
8(a)(1) of the Act by telling employees they had better
stop thinking about the union).
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 4(c).
“(c) Threatened J. Foglia with unspecified reprisals for
engaging in activities protected by Section 7.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Empire State Weeklies, Inc., Webster, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Graphic Communications
Conference/International Brotherhood of Teamsters, Lo-
cal 503, or any other labor organization.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Creating an impression to employees that their un-
ion activities are under surveillance.
(d) Threatening employees with unspecified reprisals
for engaging in activities protected by Section 7.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Ronald Foglia full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Ronald Foglia whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the judge’s decision, as amended.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify the employee in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Webster, New York, copies of the attached
notice marked “Appendix.” Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since September 22, 2008.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 5, 2009
______________________________________
Wilma B. Liebman, Chairman
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
______________________________________
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Graphic Communica-
tions Conference/International Brotherhood of Team-
sters, Local 503, or any other labor organization.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT create an impression that your union ac-
tivities are under surveillance.
WE WILL NOT threaten you with unspecified reprisals
for engaging in activities protected by Section 7.
WE WILL not in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ronald Foglia full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Ronald Foglia whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Ronald Foglia, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
EMPIRE STATE WEEKLIES, INC.
Linda M. Leslie, Esq., for the General Counsel.
James Holahan, Esq. (Bond, Schoeneck & King, PLLC), of
Rochester, New York, for the Respondent.
Daniel Kornfeld, Esq. (Blitman & King LLP), of Syracuse, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. The complaint,
issued on December 31, 2008,1 stems from unfair labor practice
(ULP) charges that Graphic Communications Confer-
ence/International Brotherhood of Teamsters, Local 503 (the
Union) filed against Empire State Weeklies, Inc. (Respondent
or ESW), and alleges violations of Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act).
Pursuant to notice, I conducted a trial in Buffalo, New York,
on March 11–12, 2009, at which the parties had full opportu-
nity to be heard, to examine and cross-examine witnesses, and
to introduce evidence. All parties filed helpful posthearing
briefs that I have duly considered.
Issues
Was Ronald Foglia’s discharge on September 22 because of
his protected activities on behalf of the Union?
Did Respondent’s president, David Young, on September 22,
unlawfully interrogate Foglia and convey an impression that
Foglia’s union activities were under surveillance?
Did Young, on about September 24, make coercive state-
ments to James Foglia (hereinafter J. Foglia), Foglia’s son?
2
Witnesses
The General Counsel called Foglia; J. Foglia; Michael Staf-
ford, the Union’s president; and Tom Trapp, the Union’s secre-
tary/treasurer.
Respondent called Young and employees Lynn Tabak and
William Pawluckie. The General Counsel has not alleged that
Tabak or Pawluckie were supervisors under Section 2(11) of
the Act at any time relevant to this proceeding. Whether they
possessed supervisory authority during the week of September
15 – 19 is not a pivotal issue in this case.
On many matters, the testimony of the General Counsel’s
and Respondent’s witnesses was not necessarily contradictory,
taking into account natural variations in recall and perspective.
In the Facts section, I will address areas in which testimony
conflicted, and explain the reasons for my credibility resolu-
tions. I note here the well-established precept that witnesses
may be found partially credible: “‘[N]othing is more common
in all kinds of judicial decisions than to believe some and not
all’ of a witness’ testimony.” Jerry Ryce Builders, Inc., 352
NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Cam-
era Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other
grounds 340 U.S. 474 (1951). Rather, in evaluating its plausi-
bility, a witness’ testimony is appropriately weighed with the
evidence as a whole. Golden Hours Convalescent Hospitals,

1 All dates are in 2008, unless otherwise indicated.
2 Relating to this allegation, the General Counsel made a posthear-
ing motion to amend the complaint. I will address this further in the
Facts section.
EMPIRE STATE WEEKLIES, INC. 5
182 NLRB 796, 798–799 (1970).
Facts
Based on the entire record, including testimony, my observa-
tions of witness’ demeanor, documents, and stipulations, I find
the following.
Respondent, a corporation with an office and place of busi-
ness in Webster, New York, is engaged in the business of
commercial printing. Board jurisdiction has been admitted, and
I so find.
Young is Respondent’s president and sole owner. He regu-
larly participates in operations at the facility, which employs
approximately 10 employees.
ESW is comprised of three departments: art/office, press,
and bindery. Tabak and two others work in the art/office de-
partment. At times relevant, the press department had about
four employees, including Foglia and J. Foglia; and the bindery
department had two to three, including Pawlucki and Joseph
Foglia, another son of Foglia.
ESW leases space in its facility to Max Printing (MP), which
occupies an area in the center of the building that is essentially
surrounded by ESW workspace.3 A wide, open doorway sepa-
rates the MP work area from the ESW print shop.
4
Wayne McCrossen, MP’s owner, employs Glen McCrossen
(G. McCrossen), his nephew, at the premises. For many years,
ESW and MP regularly contracted with one another to do re-
spective customers’ print jobs, depending on the type of print-
ing equipment required. MP has represented about 7–8 percent
of ESW’s gross annual revenues. Most of ESW’s work for MP
consisted of printing campaign literature in the fall season.
MP has been signatory to a labor agreement with the Union
and, by virtue of that relationship, has had union authorization
to put the union “bug” or logo on the materials it prints. Cus-
tomers may require the logo because it shows that a union shop
did the job. ESW used MP’s union logo on work it performed
for MP for MP’s customers.
At all times pertinent, Respondent had four presses in opera-
tion, three located in the main pressroom, and the fourth situ-
ated in a larger room that served as a combination bindery
area/pressroom.
Foglia’s Discharge
Young hired Foglia in approximately December 1992, and
the latter worked continuously for him as a press operator for
almost 16 years prior to his discharge. At all times relevant, he
worked on the four-color press located in the main printing
area.
Respondent has not contended, in its December 15 position
statement to the Region, answer to the complaint, or posthear-
ing brief, that Foglia’s work performance or other conduct on
the job preceding September 18 played any role in Young’s
decision to discharge him.
A. Foglia’s Union Activities
In approximately June, Foglia obtained the Union’s phone
number from G. McCrossen, called, and spoke with Trapp.

3 See Jt. Exh. 2, a diagram.
4 See R. Exh. 4, a photograph.
The two met about 2 weeks later at a food court, on Foglia’s
lunch hour. Trapp discussed the benefits to Respondent’s em-
ployees of having union representation, including more work as
a result of ESW receiving the right to use the union logo.
Foglia replied that he already printed with it. Trapp responded
that ESW, as a nonunion shop, should not be using the logo,
and he asked Foglia to notify him the next time this occurred.
Subsequently, Foglia had numerous phone conversations
with Trapp, on the former’s breaks or lunch hours.5 In them,
Foglia provided Trapp with contact information for other em-
ployees.
During this time period, Foglia frequently spoke to his two
sons, and he also talked to press operators Karl Leippe and
Shawn Pink, about the benefits the Union offered and whether
they were interested in representation.
In approximately August, McCrossen came up to Young in
the facility’s parking lot and stated that G. McCrossen had said
Foglia was “talking with the Union.”
6
B. Events of September 17–18
Young went on a scheduled vacation from September 11–22.
Before he left, Tabak requested that he remind Foglia that in his
absence, she was in charge of scheduling print jobs. Young did
so.
During the week of September 15, Foglia was scheduled to
print the Pontiac Club of America book (Pontiac job), which
ESW prints on a monthly basis. It was at least a 40-hour job.
On September 15, McCrossen told Tabak that he needed ESW
to print a job as soon as possible (the MP job). Tabak assigned
it to Foglia, stating that it should take priority over his Pontiac
job.
Foglia first ran the MP job on Tuesday, September 16, as re-
flected in Respondent’s Exhibit 2, a press sheet consisting of
four pages (two fronts and two back). It was a “political post-
card” or campaign literature for a Democratic candidate for a
county position and contained MP’s union logo.
On the morning of September 17, Foglia called Trapp and
told him that Respondent was about to run the union label again
that afternoon. Trapp responded that he had other commit-
ments and could not come then. Foglia said that he could put it
on the following morning, and Trapp replied that he would be
there. After this conversation, Foglia told Tabak that he would
put the job on the first thing the next morning.
The following morning, Stafford and Trapp arrived at the fa-
cility. In light of the above, I find disingenuous Stafford’s tes-
timony that he did not know whom Foglia was at the time. The
same holds true for his testimony that the purpose of their visit
related to speaking with McCrossen about contract revisions
and that he happened to come upon an employee running a job
with the union logo. In this regard, neither Trapp nor Stafford
called to make an appointment with McCrossen, who was not
even there that morning.
Stafford and Trapp first spoke with G. McCrossen. After-
ward, they approached the four-color press on which Foglia

5 See Jt. Exh. 1, a stipulated listing of phone calls that Foglia made
or received from Trapp, from June 26 on.
6 Tr. 462.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
was running the MP job. Stafford told Foglia that ESW was
not a union shop, that he was not supposed to be running the
job, and to stop. He asked who was in charge. Foglia pointed
to Pawluckie and continued with the job.
Stafford and Trapp went over to Pawluckie. Stafford asked
if he was in charge and said that Respondent could not print the
job. Pawluckie responded that Young was in charge but was on
vacation.
Pawluckie went over to Foglia, who was still running the MP
job. Pawluckie either “suggested” (Pawluckie) or “insisted”
(Foglia) that Foglia stop the job until Tabak was aware of what
was going on. Foglia did so. The difference in their charac-
terization is immaterial because Respondent does not contend
that Foglia acted improperly at that point.
In finding facts in the events that follow, I give the greatest
weight to Tabak’s testimony and credit it where it differed from
that of other witnesses. Tabak testified in detail and with a
seemingly good recall, and she did not appear to make deliber-
ate efforts to skew her testimony in Respondent’s favor. In this
regard, I note that her testimony did not fully corroborate
Young’s.
After speaking with Foglia, Pawluckie proceeded to Tabak’s
office, where he told her what had occurred. She followed him
out to the pressroom. Foglia’s press was not running. She
asked what had happened. He replied that two union men had
come up and told him that he could not run the job because of
the union label.
Tabak next went to the MP shop, where Stafford and Trapp
were talking to G. McCrossen. Stafford had the press sheet in
his hand, waved it in front of her face, and said that ESW could
not print it because it had the union logo. She responded that
neither Young nor McCrossen were there and that ESW was
printing the job it was hired to do. Stafford inquired if she
would print counterfeit money if asked. G. McCrossen sug-
gested that everyone calm down, saying that he had called
McCrossen. He further suggested that Stafford and Trapp leave
and that McCrossen would call them when he came in. Before
they left, Tabak asked them for some kind of identification, and
Stafford gave her his business card.7
After that, Tabak spoke with McCrossen about the MP job
and then returned to the four-color press. The MP job was still
loaded, but Foglia was standing there. She asked if he had
pulled the MP job from the press yet. He said no, and she told
him to go ahead and finish it.
Tabak left and came back about 10–15 minutes later. Foglia
was talking to Pink, and the press was not running. She heard
Foglia mention McCrossen’s name and asked him if he wanted
to speak with McCrossen, who was on his way. Foglia said no,
“I’m just questioning your authority.”8 She asked, her authority
for what. He replied, “To tell me to print this job.”
9
Tabak stated that she had talked to McCrossen by phone, and
he wanted his job finished.
Foglia responded that he did not care what McCrossen said
because McCrossen was not his boss. She again asked him to

7 See CP Exh. 1.
8 Tr. 384.
9 Ibid.
finish the job.
About 10–15 minutes later, Tabak was at a computer with a
direct view of the four-color press. She went over and saw that
it was still not running. Foglia was still standing by the press
but was not engaged in any work activity. She made the deci-
sion at that point that the press should be operating rather than
idle, and she told him that if he was not comfortable doing the
MP job, to go ahead and put the Pontiac job back on. He did
so. There is no evidence that any other employees’ work was
disrupted that morning.
At the facility on Sunday afternoon, September 21, Tabak
and Young discussed the events of September 18. She also
related that on September 17, Foglia had come to her and said
he was going to print the MP job the following morning. By
his own testimony, Young construed as union activity what he
heard about Foglia’s conduct. Thus, in response to the Charg-
ing Party’s counsel’s question of when he knew of Foglia’s
union activity, Young mentioned that his summer conversation
with McCrossen was the “only information that I knew until I
met with Lynn Tabak on [September 21].”
10
Young testified that he discussed with Tabak the impact on
ESW of not being able to continue to print for MP. However,
she mentioned nothing about this, testifying that in response to
her recitation of what had taken place, he simply stated that he
would think about it.
Young further testified that before he made a final decision
to terminate Foglia, he wanted to speak with McCrossen “to get
more information on what had transpired on [September 18].”
11[

Yet, McCrossen was not even present at the facility during the
events in question, so he had no first-hand knowledge thereof.
The following day, Young spoke with McCrossen, who
stated that Respondent had lost four printing jobs from MP on
September 19 because the Union was watching over him. He
added that Respondent would probably not be able to do any
political work for MP that year. Young testified that he de-
cided to discharge Foglia after speaking with McCrossen.
Respondent did not complete the MP job and was not able to
invoice McCrossen for any of the work done. The approximate
invoice value was $1500, and the cost of materials and other
items used was about $800. Although Young testified that the
reason the MP job was not finished was Foglia's refusal to print
it, he also testified, inconsistently, that another person could
have operated the necessary press and that there was time to
print the job after the refusal.
C. Events of September 22
When Foglia came in to work that morning, he saw that his
work notes and Stafford’s business card that had been on his
desk since September 18 were missing. At about 9:30 a.m.,
Young approached and asked to see him in his office.
Their respective versions of the discharge interview that took
place differed greatly, especially on what Young said about the
Union. In resolving this credibility matter in Foglia’s favor, I
find it significant that Young admittedly asked each of the other
four shop employees, one-by-one, almost immediately after he

10 Tr. 462.
11 Tr. 447.
EMPIRE STATE WEEKLIES, INC. 7
discharged Foglia, “if they had an interest in having a union.”12
Revealing, too, was Young’s testimony that at the time he dis-
charged Foglia, he had derogatory feelings about him because
he had refused to do the job for Tabak after having been spe-
cifically told to follow her instructions, and also “the fact . . .
that he had instigated the whole scenario with the union people
coming in.”13 I find as follows.
When they arrived in Young’s office, Foglia asked about his
notes and the business card. Young responded, “What’s going
on with this union?”14 Foglia replied that Stafford had left his
business card and that he (Foglia) had wanted a better educa-
tion on why he should not print the union logo and had gotten
it. Young then stated that Foglia had been working with the
union for months. Foglia asked where he had heard that, and
Young answered, “I have my sources.” Foglia asked who, and
Young replied that he could not tell him. Foglia denied it.
Young went on to say that he had just lost an $180,000 con-
tract because of it, MP was in “deep shit,” and in no way,
shape, or form would the Union be formed in ESW. Young
next stated that he needed Foglia’s letter of resignation by the
end of the day. Foglia said he (Young) could not do that,
Young asked why not, and Foglia responded, “Fuck you. I’m
out of here now.”15 He left at that point.
Even if Young’s account is credited over Foglia’s, Young
indicated that the discharge went beyond Foglia’s conduct in
refusing to finish the MP printing job. Thus, according to
Young, when Foglia came into his office, Foglia said that he
bet this had something to do with the two union guys, and
Young gave the rather contradictory response, “No, it really
doesn’t, but in a way, it does,” and then went on to explain the
cost of losing the particular MP job and other MP jobs.16 Re-
spondent’s position statement relates that Young told Foglia
that his services were terminated “because of the substantial
loss of printing business in the first half of 2007 [sic] and the
anticipation of a reduction of printing work from Max Print-
ing.”17 These were the same reasons advanced for Foglia’s
termination in the September 22 letter that Young prepared at
Foglia’s request.
Between about 9:30 and 11 a.m., Young spoke to each of the
four shop employees on an individual basis and asked whether
they were interested in having a union. They all said no.18
Although Young testified that he spoke to the employees
probably in the midafternoon, about 4—5 hours after he dis-
charged Foglia, I credit the testimony of Stafford and Trapp
that Young mentioned his questioning of employees at their

12 Tr. 448. For reasons stated infra, I find that he interrogated them
between about 9:30 and 11 a.m. that day.
13 Tr. 465—466.
14 Tr. 268.
15 Ibid.
16 Tr. 424.
17 GC Exh. 4 at 1.
18 The General Counsel does not allege any such questioning as a
violation of the Act. Par. VI(a)(1) of the complaint speaks of interroga-
tion of “an employee about the employee’s union membership . . . ;”
referring to Foglia. As to par. VI(a)(2), which refers to creating an
impression of surveillance “among its employees,” no evidence of such
is in the record pertaining to employees other than Foglia.
meeting with him at about 11 a.m. In this regard, the chronol-
ogy set out in Respondent’s position statement also has
Young’s questioning of employees preceding his meeting with
Stafford and Trapp “[l]ater that morning.”19
After hearing of Foglia’s discharge, Stafford and Trapp came
to the facility at about 11 a.m. and asked McCrossen to set up a
meeting between them and Young. McCrossen did so. After
introductions in Young’s office, McCrossen left.
The versions of Young vis-à-vis Stafford, and Trapp of what
was said at their meeting were consistent in many respects. To
the extent they differed, I credit Stafford and Trapp, whose
accounts were quite similar but not identical (for example, on
how the meeting ended), and find the following facts.
Stafford and/or Trapp stated that reinstatement of Foglia was
necessary before any other arrangements could be made be-
tween ESW and the Union. Young replied that he would not
reinstate Foglia because he had brought employees back in the
past, and they had not worked out. He also alluded to Foglia’s
“mood” problems and said that he should have fired him ear-
lier. They explained the advantages that Young would receive
if ESW became a union shop, including health care and retire-
ment benefits, and the ability to use the union logo. He asked if
he could be an affiliate or associate member and have his em-
ployees pay an association fee but not be union members, in
order to be able to use the union logo. In this regard, he said
that he had gone around and asked everybody if they wanted to
join a union, and nobody did; they were happy with the status
quo. Stafford stated that he did not believe such an arrange-
ment was possible but would look into it.
Young’s Statements to James Foglia
J. Foglia (hereinafter Foglia in this section) was employed
from September 2002 until his discharge in approximately Feb-
ruary 2009. ULP charges regarding the discharge were pending
at the time of the trial. I draw no inferences on his credibility
from those facts. I have taken into account that he would have
a natural tendency to testify favorably to his father. Neverthe-
less, he appeared to be forthright, albeit somewhat nervous,
during his testimony, which was detailed as far as the pertinent
conversation he had with Young.
As noted earlier, the General Counsel made a posthearing
motion, dated April 9, 2009 (all dates in this paragraph are in
2009), to amend paragraph VI(b) of the complaint, the allega-
tion pertaining to Young’s statements to Foglia, to conform to
Foglia’s testimony,
20[22]
and a memorandum of the same date in
support of said motion. Respondent then filed a request to
extend the time for filing briefs for at least 2 weeks “to review
and respond to this motion.” The General Counsel next filed a
motion in opposition to Respondent’s request to extend time to
file briefs. By order dated April 15, Chief Administrative Law
Judge Robert A. Giannasi referred both motions to me, and by
order of the same date, I deferred a ruling on the General Coun-
sel’s motion to amend, and denied Respondent’s motion to

19 GC Exh. 4 at 2.
20 To change “Told an employee not to talk about unions“ to “Made
an implied threat of unspecified reprisals by telling an employee to ‘get
this union thing out of your head.’”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
postpone the filing of briefs. As I noted therein, this matter is
also the subject of a 10(j) proceeding in Federal District Court,
making time of the essence in the issuance of my decision.
In addressing this issue, I am compelled to analogize it to the
proverbial tempest in a teapot. Suffice to say, the amendment
is merely a partial rephrasing of an existing allegation to reflect
Foglia’s testimony, Respondent had a full opportunity to rebut
that testimony during its case in chief, and I see absolutely no
prejudice to Respondent in allowing it. Accordingly, I grant
the General’s Counsel’s motion to amend. See Payless Drug
Stores, 313 NLRB 1220, 1220–1221 (1994); Pincus Elevator &
Electric Co., 308 NLRB 684, 684–685 (1992), enfd. mem 998
F.2d 1004 (3d Cir. 1993).
Foglia testified about a conversation he had with Young on
about September 25 (a Thursday), upon his return to work after
being off for 1 week due to a back injury. He specifically testi-
fied that he was out the week that his father was terminated
(September 22–26), inconsistent with a September 25 conversa-
tion and with his timecard for the week ending September 28,
showing that he worked on September 23–24.
21
He never of-
fered an explanation for these inconsistencies. On the other
hand, Respondent provided a physician’s note dated October 7,
excusing J. Foglia from work until “at least 10/15/08.”
22
Possi-
bly, he may have been out more than once for a week-period
during the relevant timeframe, but speculation cannot substitute
for evidence.
J. Foglia testified that he was at his press at about 8–8:15
a.m. on the day of the conversation, when Young asked him to
come to his office. There, Young discussed Foglia’s back in-
jury, limitations he might have, and accommodations Respon-
dent was making for him. Young went on to state that the
company was legally performing the jobs it was doing and
would continue to do so. He told Foglia to “get this union thing
out of your head.”
23[25]
Foglia asked how that pertained to him,
and Young replied, because he was a Foglia. He went on to say
that ESW was not doing well and that everyone needed to pull
together to get out of the slump.
Young did not specifically address the statements attributed
to him by Foglia at a September 25 meeting. According to
Young, they had a conversation after Foglia returned to work
on October 15, following leave due to his back injury. They
discussed his back condition and his ability to perform his du-
ties. He mentioned Foglia’s absenteeism and that with today’s
economy, everyone had to pull together.
I do not believe that Foglia fabricated his account of what
Young said in the conversation, and I find it consistent with
other evidence of record, including Young’s own testimony. I
therefore credit it as far as content only because, for the reasons
stated earlier, there is a foundational problem in establishing
the date.
Analysis
The framework for analyzing alleged violations of Section
8(a)(3) is Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d

21 GC Exh. 6.
22 R. Exh. 6.
23] Tr. 203.
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This
analysis also applies to alleged discrimination for protected
concerted activity under Section 8(a)(1) when employer moti-
vation is at issue. Benjamin Franklin Plumbing, 352 NLRB
525 (2008); General Motors Corp., 347 NLRB No. 67 slip op.
3 at fn. 3 (2006) (not published in the bound volume).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient to support an inference that the em-
ployee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in pro-
tected conduct, the employer knew or suspected the employee
engaged in such conduct, the employer harbored animus, and
the employer took action because of this animus.
Under Wright Line, if the General Counsel establishes a
prima facie case of discriminatory conduct, it meets its initial
burden to persuade, by a preponderance of the evidence, that
protected activity was a motivating factor in the employer’s
action. The burden of persuasion then shifts to the employer to
show that it would have taken the same adverse action even in
absence of such activity. NLRB v. Transportation Corp., 462
U.S. 393, 399–403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d
800, 811 (6th Cir. 2002); Serrano Painting, 332 NLRB 1363,
1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993).
To meet this burden, “an employer cannot simply present a
legitimate reason for its action but must persuade by a prepon-
derance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano
Painting, supra at 1366, citing Roure Bertrand Dupont, Inc.,
271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for the employer’s actions are either
false or not in fact relied on, the employer fails by definition to
show that it would have taken the same action for those rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. SPO Good-Nite Inn, LLC, 352 NLRB
268, 269 (2008). On the other hand, further analysis is required
if the defense is one of “dual motivation,” that is, the employer
defends that, even if an invalid reason might have played some
part in the employer’s motivation, the employer would have
taken the same action against the employee for permissible
reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 323, 223 (D.C. Cir. 2006).
Conceptually, Foglia’s conduct can be bifurcated: seeking
union representation starting in about June, and arranging the
Union’s arrival on September 18 to confirm what it considered
Respondent’s improper use of the union logo.
As to the first, Foglia contacted the Union about organizing
Respondent’s employees, and he spoke to several of them re-
garding the benefits of becoming unionized and whether they
would be interested in supporting the Union. This conduct was
clearly protected activity under Section 8(a)(3).
Regarding the second, Foglia on September 17–18 notified
the Union that he was running a job with the union logo and
offered to postpone the job until the following morning so that
the Union could be present. The case most on point, cited in all
counsels’ briefs, is Circle Bindery, 218 NLRB 861, 861–862
(1975), enfd. 536 F.2d 447, 452 (1st Cir. 1976). Therein, the
EMPIRE STATE WEEKLIES, INC. 9
Board held protected under Section 8(a)(3) an employee’s ef-
forts to bring to a labor organization’s attention a nonunion
company’s use of the union logo licensed to a unionized em-
ployer. As the Board stated, “To the extent a licensee [here,
MP] . . . violates its agreement with a union . . . union members
are deprived of work contractually reserved to them.” 218
NLRB at 862.
Respondent points out in its brief (at 14) that the employee in
Circle Bindery was a union member, unlike Foglia, and avers
that his conduct was therefore not concerted. I do not consider
this distinction significant. Nor does the fact that Foglia’s con-
duct may have inured directly to the benefit of employees of
other companies make it any less protected. As the Supreme
Court has held, Section 2(3)’s provision that the term “em-
ployee . . . shall not be limited to the employees of a particular
employer unless the Act explicitly states otherwise” was “in-
tended to protect employees when they engage in otherwise
protected activities in support of employees of employers other
than their own.” Eastex, Inc. v. NLRB, 437 U.S. 563, 564–565
(1978). See also Coca Cola Bottling Co. of Buffalo v. NLRB,
811 F.2d 82, 87 (2d Cir. 1988); Misericordia Hospital Medical
Center v. NLRB, 623 F.2d 808, 812, 815 fn. 8 (2d Cir. 1980).
Based on the above, I conclude that this conduct of Foglia
also constituted union activity within the meaning of Section
8(a)(3).
Since the General Counsel alternatively alleges that Foglia’s
conduct regarding the logo came under Section 8(a)(1) pro-
tected concerted activity, I will address that matter, in particu-
lar, the necessary element of “concerted.” The Supreme Court
has also held that “[T]he language of §7 does not confine itself
to situations where two or more employees are working to-
gether at the same time and the same place toward a common
goal, or to situations where a lone employee intends to induce
group activity or acts as a representative of at least one other
employee.” NLRB v. City Disposal Systems, Inc., 465 U.S.
822, 822–823 (1984). In that case, the Court held that a lone
employee’s refusal to drive what he deemed an unsafe vehicle,
based on his invocation of a right under the collective-
bargaining agreement, constituted concerted activity because it
affected the rights of all employees under the agreement. I
therefore conclude that the General Counsel has established the
necessary element of “concerted” and that Foglia’s actions
constituted protected concerted activity.
Respondent argues that Foglia was “disloyal” and his con-
duct removed from protection because he arranged to meet with
Trapp so that he would be “caught” printing the MP job, and
because he precipitated the “workplace disruption” on Septem-
ber 18.24 Regardless of whether one agrees or disagrees with the
course of action the Union took, the fact remains that Foglia’s
efforts to assist the Union in determining if a nonunionized
company was improperly using the union logo was protected
activity, as the cases above establish. Nor does the record show
a “workplace disruption,” there being no evidence that any
other employees ceased work. I will address Foglia’s conduct
with Tabak when discussing Respondent’s defenses.
Turning to knowledge of Foglia’s protected activity, Young

24 R. Br. at 16.
admittedly heard from McClendon in August that Foglia was
“talking with the union.” His testimony reflected that he con-
sidered the events of September 18 also to be union activity on
Foglia’s part. In the discharge interview on September 22,
Young brought up Foglia’s union activities, including what had
occurred on September 18. Accordingly, I conclude that the
element of knowledge has been established by direct evidence.
As to the element of animus, Young admitted that when he
discharged Foglia, he had derogatory feelings about him be-
cause “he had instigated the whole scenario with the union
people coming in.” Animus also can be inferred from the fol-
lowing. First, Young stated at the beginning of the termination
interview that Foglia had been working for the Union for
months, and, later in the meeting, that ESW would never have a
union. Second, almost immediately after the interview, Young
went around and questioned employees about their union sym-
pathies. Third, in Young’s September or October conversation
with J. Foglia, Young stated that the company was legally per-
forming the jobs it was doing and would continue to do so, told
J. Foglia to “get this union thing out of your head” and, when J.
Foglia asked how that pertained to him, replied because he was
a Foglia. These statements obviously referred to Foglia and his
union activities. Thus, animus has been shown.
Foglia’s discharge, at which Young cited his union activities,
satisfies the final necessary element (action), and I therefore
conclude that the General Counsel has established a prima facie
case of unlawful termination.
Had Respondent timely raised Foglia’s insubordination to
Tabak on September 18 as a reason for the discharge, I would
treat this case as one as one of dual motivation since “It is
axiomatic that an employer may lawfully take appropriate ac-
tion, including discipline and discharge, to address an em-
ployee’s insubordination.” Amerisino Markets Group, LLC,
351 NLRB 1055, 1056 (2007). See Oaktree Capital Manage-
ment , LLC, 353 NLRB No. 127, slip op. at 1 (2009) (cursing at
a coworker a legitimate ground for discipline that raised need
for dual-motivation analysis).
However, Young did not cite “insubordination” as a basis for
Foglia’s discharge either at the time he discharged Foglia or in
his meeting with Stafford and Trapp when they sought his rein-
statement. Neither was insubordination mentioned in Respon-
dents position statement to the Region, or even in Respondent’s
answer to the complaint. Respondent’s 11th-hour interjection
of “insubordination” as a new reason leads to the inference that
it is a mere pretext and to the applicability of the doctrine hold-
ing that shifting reasons advanced by an employer undermine
their credence. See Abbey’s Transportation Services v. NLRB,
837 F.2d 575, 581 (2d Cir. 1988); Tracer Protection Services,
328 NLRB 734, 734 (1999); Scientific Ecology Group, Inc.,
317 NLRB 329, 329 (1995).
I note that even had insubordination been timely raised as a
defense, I would have to conclude that the punishment of dis-
charge for this one instance of insubordination by a 16-year
employee raises a red flag that the discharge was based on un-
articulated unlawful reasons rather than the one cited. See De-
troit Paneling Systems, Inc., 330 NLRB 1170 (2000); Neptune
Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir. 1977).
Regardless of whether a pretext or dual-motive standard is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
applied, Respondent faces a fundamental problem: Young’s
statements and actions, as well as his testimony about his state
of mind at the time he discharged Foglia, show that Foglia’s
protected activities were the major motivating reason for
Foglia’s discharge. At the termination interview, Young inter-
rogated Foglia about his union activities and stated that Foglia
had been working for the Union for months. Almost immedi-
ately after the interview, he went around and questioned em-
ployees about their union sympathies, and in a later conversa-
tion with J. Foglia, he implicitly referenced the union logo mat-
ter and essentially told him that he should not be prounion like
his father. Moreover, Young testified that at the time he dis-
charged Foglia, he harbored animosity toward him for having
instigated the Union coming into the facility.
Even Young’s statements that Foglia was terminated because
of a reduction of printing work from MP indirectly related to
Foglia’s protected activity regarding the logo, since the loss of
that work resulted directly from the Union’s pressure on
McClendon not to continue to allow ESW to use MP’s union
logo.
In this regard, Respondent could not lawfully discipline
Foglia because of its loss of MP business due to MP’s obliga-
tions to the Union with respect to the union logo. See Circle
Bindery, supra at 862. In affirming the Board in that case, the
First Circuit Court of Appeals held (535 F.2d at 452) that
“[c]oncerted activity that is otherwise proper does not lose its
protected status simply because it is prejudicial to the em-
ployer.” In Misericordia Hospital Medical Center, supra at 815,
the Second Circuit Court of Appeals cited this language with
approval and added, “To hold otherwise would be to render
meaningless the rights guaranteed to employees by Section 7.”
The Court in Circle Bindery noted that any economic loss the
nonunion employer suffered was a result of losing union-label
work that it was not entitled to perform in the first place. Ibid
at 453 fn. 7. Such was the situation here.
In sum, I conclude that Respondent’s defenses were either
legally invalid or pretexts and that Foglia was discharged on
September 22 because of his protected activity on behalf of the
Union. The discharge therefore violated Section 8(a)(3) and (1)
of the Act.
Independent Violations of Section 8(a)(1)
I start with Young’s statements to Foglia at the September 22
discharge meeting in Young’s office. In response to Foglia’s
question about the union business card that was missing from
his desk, Young asked, “What’s going on with this union?”
After Foglia responded that he had wanted a better education
on why ESW should not use the union log, Young replied that
he (Foglia) had been working with the Union for months.
When Foglia asked where he heard that, Young replied, “I have
my sources” and refused to provide further information. Young
proceeded to tell Foglia that he was being terminated.
The above statements were clearly coercive, and I conclude
that Young violated Section 8(a)(1) by (1) interrogating Foglia
about his union membership, activities, and sympathies and, (2)
creating an impression that Foglia’s union activities were under
surveillance.
I turn to J. Foglia’s account of a conversation he had with
Young in which the latter made certain statements pertaining to
the Union. I do credit him that at some point the conversation
occurred and am mindful that I found Young’s statements
therein to reflect animus toward Foglia because of his union
activity. However, for such purpose, the date of the conversa-
tion is not critical; whether it occurred on about September 25
(J. Foglia), October 15 (Young), or even months after Foglia’s
discharge would make no difference.
Here, I address whether findings of independent 8(a)(1) vio-
lations can be based on witness testimony that is not reliable as
to the date of their occurrence. Both J. Foglia and Young testi-
fied about one conversation in which they discussed the for-
mer’s back condition, so presumably they were referring to the
same conversation, despite their differing accounts of what was
said about the Union. J. Foglia testified that he had the con-
versation on about September 25, after being out for a back
injury for a week, the week that his father was terminated. Yet,
his father was terminated on September 22, and time records
show that J. Foglia worked on September 23–24. He never
offered an explanation for these discrepancies. Furthermore,
other records implicitly corroborate Young’s testimony that
they had this conversation on October 15.
Section 10(b) of the Act, 29 U.S.C. § 160(b), and Section
102.39 of the Board’s Rules and Regulations provide that ULP
proceedings “shall, so far as practicable, be conducted in accor-
dance with the rules of evidence applicable in the district courts
of the United States.”
This reflects the status of ULP hearings as formal legal pro-
ceedings under the Administrative Procedures Act of 1946
(APA), 5 U.S.C. §§ 511–599. See also Federal Maritime
Commission v. South Carolina, 535 U.S. 743, 756–757 (2002);
Butz v. Economou, 438 U.S. 478, 513 (1978). Section 556(d)
of the APA specifically states that except as otherwise provided
by statute, the proponent of a rule or order has the burden of
proof, consistent with our general jurisprudence.
Accordingly, since the General Counsel failed to establish a
satisfactory foundation for the allegations relating to J. Foglia, I
recommend their dismissal.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act: Discharged Ronald Foglia because he engaged
in protected activities on behalf of the Union.
4. By the following conduct, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(1) of
the Act:
(a) Interrogated Foglia about his union membership, activi-
ties, and sympathies.
(b) Created an impression that Foglia’s union activities were
under surveillance.
EMPIRE STATE WEEKLIES, INC. 11
REMEDY
Because Respondent has engaged in unfair labor practices, it
must be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Since Respondent discharged Ronald Foglia in violation of
Section 8(a)(3) and 8(a)(1), it must offer him reinstatement and
make him whole for any loss of earnings and other benefits in
accordance with Ogle Protective Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). I deny the General Counsel’s request for compound
interest, based on the Board’s decision in National Fabco Mfg.,
352 NLRB No. 37 slip op. at 3 fn. 4 (2008) (not reporte in
Board volumes).
ORDER
The Respondent, Empire State Weeklies, Inc., Webster, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees be-
cause they engage in activities on behalf of Graphic Communi-
cations Conference/International Brotherhood of Teamsters,
Local 503, or otherwise engage in protected concerted activi-
ties.
(b) Interrogating employees about their union membership,
activities, or sympathies.
(c) Creating an impression to employees that their union ac-
tivities are under surveillance.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights that Section
7 of the Act guarantees to them.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Ronald
Foglia full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make employee Ronald Foglia whole for any loss of
earnings and other benefits he suffered as a result of his unlaw-
ful discharge, in the manner set forth in the remedy section of
the decision.
(c) Within 14 days of the Board’s Order, remove from its
files any references to the September 22, 2008 discharge of
Ronald Foglia, and within 3 days thereafter, notify him in writ-
ing that this has been done and that the discharge will not be
used in any way against him.
(d) Within 14 days after service by the Region, post at its
facility in Webster, New York, copies of the attached notice
marked “Appendix.”25[ Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by
Respondent’s authorized representative, shall be posted by

25 If this Order is enforced by a judgment of a United States court of
appeals, the wordsin the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, Respondent has gone out of
business or closed the facility involved in these proceedings,
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees
employed by Respondent at any time since September 22,
2008.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. May 13, 2009.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this No-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties
WE WILL NOT discharge or otherwise discipline you for your
activities on behalf of Graphic Communications Confer-
ence/International Brotherhood of Teamsters, Local 503, or any
other labor organization, or otherwise engage in protected con-
certed activities.
WE WILL NOT interrogate you about your union membership,
activities, or sympathies.
WE WILL NOT create an impression that your union activities
are under surveillance.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL make Ronald Foglia whole for any loss of pay or
other benefits suffered as a result of our discrimination against
him.
WE WILL within 14 days from the date of this Order, offer
full reinstatement to Ronald Foglia to his former position of
employment, or if such a position is no longer available, to a
substantially equivalent position, without prejudice to any sen-
iority or other rights and privileges he previously enjoyed.
WE WILL remove from our files any reference to the unlawful
discharge of Ronald Foglia, and within 3 days thereafter notify
him in writing that this has been done and that the discharge
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
will not be used against him in any way. EMPIRE STATE WEEKLIES, INC.