Goshen Litho, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 795 (N.L.R.B. 1975)

GOSHEN LITHO, INC.
Goshen Litho, Inc. and Graphic Arts International
Union, Local 119B . Case 2-CA-13413
November 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On August 1, 1975, Administrative Law Judge
Abraham H. Mailer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief,' and General Counsel
filed an answering brief and a brief in support of 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
and to adopt his recommended Order.
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 Goshen Litho,
Inc., Chester, New York, its officers, agents, succes-
sors , and assigns, shall take the action set forth in the
said recommended Order.
1 The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the briefs adequately present the
issues and the positions of the parties
DECISION
ABRAHAM H . MALLER, Administrative Law Judge: On
August 16, 1974,'Graphic Arts International Union, Local
No. 119B, herein variously called the Union or Local 119,
filed a charge against Goshen Litho, Inc., herein called the
Respondent. Upon said charge, the Regional Director for
Region 2 of the National Labor Relations Board, herein
called the Board, on December 3, 1974 , issued on behalf of
the General Counsel a complaint against the Respondent.
Briefly, the complaint alleged that employee Paul Schaefer
testified as a witness at a hearing conducted by the Board
on or about June 7, 1971; and on or about April 3, 1972,
Schaefer testified as a witness at a hearing conducted by
the Board in another proceeding; that on or about
February 28, 1974, the Respondent laid off Schaefer and
has failed and refused to recall him to his former or
1 The Respondent did not file a brief After the expiration of the
extended time for filing briefs, Respondent on June 30 , filed a "reply brief"
Although the Board's Rules and Regulations make no provision for the
221 NLRB No. 146
795
substantially equivalent position of employment ; that the
Respondent laid off and thereafter failed and refused to
recall Schaefer because Schaefer had joined and assisted
the Union , testified at the hearings before the Board, and
engaged in other concerted activity for the purpose of
collective bargaining and mutual aid and protection, in
violation of Section 8(a)(1), (3), and (4) of the National
Labor Relations Act, as amended (29 U.S .C. Sec . 151, et
seq. ), herein called the Act . In-its duly filed answer,,the
Respondent denied any violations of the Act.
Pursuant to notice , a hearing was held before me at New
York, New York, on March 17 and- 18 and April 14, 1975.
All parties were present at the hearing and were afforded
full opportunity to be heard and to introduce relevant
evidence . At the conclusion of the hearing , the parties were
afforded an opportunity to'file briefs with me. A brief was
filed by counsel for the General Counsel on June 11, 1975.1
Upon consideration of the entire record and the briefs, and
upon my' observation of each of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under , and existing by virtue
of, the laws of the State of New York. At all times material
herein, Respondent has maintained a plant and place of
business at Route 17 M, Chester, Orange County, State of
New York, where it is, and has been at all, times material
herein, engaged in the printing of books, periodicals, and
related products . During the year preceding the filing of
the complaint, which period is representative of its annual
operations generally, Respondent , in the course and
conduct of its business operations , printed , sold, and
distributed at its plant products valued in excess of
$50,000, of which products valued in excess of $50,000
were shipped from said plant in interstate commerce
directly to States of the United States other than the State
of New York. Accordingly, I find and conclude that the
Respondent is, and has been at all times material herein,
an employer engaged in commerce within - the meaning of
Section 2(2), (6), and (7) of the Act and that it will
effectuate the policies of the Board to assert jurisdiction
here.
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union , Local 119B, is and
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUE
The issue is whether the Respondent laid off Paul
Schaefer and failed and refused ' to recall him because he
had testified against the Respondent in a prior Board
proceeding and/or because 'of his membership in Local
119, in violation of Section 8(a)(4), (3 ), and (1) of the Act.
filing of a reply brief, I have nevertheless accepted and considered the reply
brief
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE UNFAIR LABOR PRACTICES
A. Background-
The matters involved in the instant proceeding had their
genesis in ,two earlier proceedings against the Respondent,
referred to herein for convenience as Goshen Litho I,
reported at 196 NLRB, 977 (1972), and Goshen Litho II,
reported at 199 NLRB, ,769 (1972). Goshen Litho I was the
outgrowth of attempts by three umons,.to organize the
Respondent's plant. Those unions were Local 119, the
Charging- Party herein; Local 318, International Brother-
hood of Pulp, Sulphite & Paper Mills Workers, AFL-CIO,
herein called Local 318; and, Local 1, Amalgamated
Lithographers of America.
In Goshen Litho I, Respondent was found to have
violated Section 8(a)(1), (2), and (3) of the,Act, involving
discriminatory discharges and layoffs of employees, threats
of reprisal and promises of benefits, and other, interference,
largely designed to persuade or coerce its employees to
support and favor Local 318, for whom the Respondent's
officers and supervisors were found to have solicited
employees ' support. In Goshen Litho I, Schaefer and
another employee, Matthew Babula, testified against the
Respondent in June 1971.
In -Goshen Litho II, Schaefer testified without contradic-
tion that when he returned to work after testifying in
Goshen Litho I both of the Respondent's officers, who
theretofore talked with him as a social friend, stopped
talking to him and would not say "good morning" to him.
Shortly thereafter, on June 25, 1971, Schaefer was laid off.
Babula was also laid off. Schaefer was recalled to work at
the end of September and recommenced work September
27, 1971. He was working for the Respondent at the time of
the hearing in Goshen Litho II in April -1972. In Goshen
Litho II, the Respondent relied upon the defense that it
had no work for employees Schaefer and Babula and
therefore laid them off. The Board rejected the Respon-
dent's defense of lack of work and ordered backpay for
Schaefer for the period of his layoff and reinstatement and
backpay to employee Babula.
The Board' s decisions in Goshen Litho I and II were
enforced without opinion by the Court of Appeals for the
Second Circuit.
B. Schaefer's Employment Record
In Goshen Litho II, Schaefer's employment record up to
1971 was set forth as follows:
Employee Schaefer began his employment with
Respondent in 1957, when it was known as Chester
Litho. Before his hiring he had had 6 or 7 years
experience in color stripping and platemaking, and he
was hired as a stripper and platemaker. He worked
steadily and, without interruption for the Respondent,
continuing when the Traubs took over the management
as Goshen Litho (the current name), until the layoff
following , his testifying in June 1971. Even the
temporary closing of the business years back, because
2 Respondent 's president used the names of Weintraub and Traub It is
noted that in Goshen Litho I he was referred to as "Weintraub" and in
of a fire, cost him only the loss of,a day,-since he was
put to work in a temporary location in New York City.
His pay rose steadily to the rate of $5 per hour (at the
time of layoff) through some 15 raises, and he was told
at one point by Vice President Murray Traub that he
(Schaefer)- was a key man in their, business. His work
covered stripping, platemaking, and composing. In the
Spring oft 1971 he was largely doing color stripping,
which calls for a high degree of skill, in contrast to the
lesser skill for black and white stripping. 1199 NLRB at
771.1
Between September 1971, when Schaefer was reinstated,
and February 28, 1974, when he was laid off a second time,
Schaefer received no wage increases. In contrast, every
other employee in his department who was employed as of
July 1971 (when he was first laid off) and remained
employed as of February 28, 1974, had received wage
increases during the intervening period. In September
1973, Schaefer requested a wage increase, "but his request
was rejected without explanation. Except for a 1-month
period in September 1971, Schaefer was not given any
overtime work. In addition, although other employees were
given the privilege of taking their vacations when they
desired, Schaefer was forced to take a vacation in July
1973, despite the fact that he desired to take his vacation
when his brother-in-law would arrive from Europe.
C. Schaefer's Layoff and Respondent 's Refusal To
Recall Him . '
On February 28, 1974 ,, Schaefer was ill at home, .when his
wife informed , him that Arnold - Winters, Respondent's
office manager, called to say that Schaefer was laid off
because business was slow. Later, Schaefer called Winters,
himself, and was told that he would be laid off for a couple
of weeks; that business was slow because the Respondent
had lost two magazines. Schaefer asked if he was the only
one laid off, but Winters did not reply . Winters said that he
would talk to Schaefer when the latter came in to -pick up
his tools and his paycheck . According to Respondent's
president, Harry Weintraub , also known as Harry Traub,2
Winters told Schaefer that he was selected for layoff on the
basis of his poor attendance . However, moments later
under questioning by his own counsel , Weintraub changed
his testimony and stated that he could not remember
whether he was present when Winters spoke to Schaefer.
Sometime in April 1974 , Schaefer called Winters' and
asked what , his prospects were for returning to work.
Winters said ' that things were still slow and he did not
know when Schaefer would be recalled : In early May 1974,
Schaefer again called Winters and asked about the outlook
for returning to work . Winters replied that things were still
slow and he did not know when Schaefer would be
recalled . In late May 1974, Schaefer called Weintraub and
asked him whether he would be recalled . Weintraub said
that things were still slow and referred , him to Winters.
Schaefer replied that he had spoken to Winters and that
Winters did not know . Weintraub then said that he did not
Goshen,Lrtho II as "Traub" In-the record in the instant proceeding, the
names "Weintraub" and "Traub" are used interchangeably
GOSHEN LITHO, INC. 797
know either. Schaefer never called again to inquire about
his fob.
D. Schaefer's Union Membership
In his opening statement, counsel for the Respondent
admitted that the Respondent knew that Schaefer was an
adherent of'Local 119.
E. Events Subsequent to Schaefer 's Layoff
On October 10, 1974, Local 119 withdrew its petition. On
or about November 12, 1974,-the Respondent and Local
318 conducted a card check , and Respondent recognized
Local 318 as the representative of all its employees except
office clericals.
On November 15, 1974, Respondent abruptly discharged
Richard Millheiser who, like Schaefer; was an experienced
color stripper.3 On November 6, 1974 , apparently in
anticipation of discharging Millheiser , the Respondent
advertised for a color stripper and shortly thereafter hired
Edward Kasabian when he applied.
F. Concluding Findings
As in Goshen Litho II, Respondent relied upon an
economic defense, i,e., that business was slow; that in
February 1974 Respondent decided to operate with three
less employees in the stripping department; and that
Schaefer and two others were selected because their
attendance records were not good.4 From a review of the
record, I find and conclude that not only did Respondent
fail to prove its defense, but, to the contrary, the evidence
establishes that Respondent's business was not slow when
Schaefer was laid off and when he was denied reinstate-
ment.
In -support of its defense, President Weintraub testified
that business was slow, that Respondent, having lost
magazine customers in 1971 was trying to get commercial
work, but had not been too successful in that regard. I
found President Weintraub to be an evasive witness5 and I
do not credit his testimony which is contradicted by other
evidence.
Contrary to President Weintraub's testimony, Respon-
dent's sales in 1974 amounted to $3,440,303, as compared
to $3,443,577 in 1973 - a drop o€only,$3,274, or less than
one-tenth of 1 percent. Conversely, ,in 1973, sales dropped
$50,145 below that of 1972. Yet Schaefer, wwas kept
employed during 1973. More particularly, in January and
February 1974, Respondent's billings, amounted to
$609,080 compared 'to $491,708' in the same months of
1973. Second, with the loss of the magazine business,
3 Millheiser was also a member of Local 119 However, the discharge of
Millheiser was not alleged to be a violation of the Act. -
4 Respondent did warn Schaefer on July 30, 1973, that his excessive
absenteeism would no longer be tolerated Schaefer testified that his
attendance improved "100 percent" thereafter Respondent's records do not
substantiate Schaefer's'testimony in this regard However, Schaefer testified
further without contradiction that, after receiving the warning, notice,
whenever he took time off for reasons other than illness he received advance
approval from his supervisor
5 For example, President Weintraub did not remember that Schaefer had
been laid off in 1971, although Schaefer's layoff was the subject of Goshen
Litho II and of the subsequent enforcement proceeding in the court of
Respondent sought commercial work which was more
profitable than magazine works Although President
Weintraub testified that Respondent had not been too
successful in obtaining commercial work, Supervisor
Medow, called by the Respondent, testified that commer-
cial work constituted a "considerable portion" of the
Respondent's business., Third, Respondent's records show
that a substantial amount of overtime was performed by
employees in the strapping department in January and
February 1974, and this continued through 1974,, Fourth,
the purported poor economic condition of the Respondent
is belied by the fact that in January 1974 it paid out more
bonuses to employees than it did in January 1973: $7,400
against $6,500.7, ,- -
As part of its attempt to establish its economic condition,
Respondent sought to introduce into evidence a list of its
purchases of paper to show that the cost of paper had-risen.
I ruled that I would not receive such raw data; that the best
evidence, of Respondent',s economic condition would be
the periodic financial statements issued to it by its auditors.
Respondent's counsel repeatedly, represented to me that
Respondent had no such statements. However, when I
questioned, Respondent's bookkeeper„ she -admitted that
Respondent did have its books audited by a certified
public accountant who issued financial statements periodi-
cally. Counsel for Respondent then requested a recess to
check the matter with President Weintraub, after which he
returned and stated that-the Respondent did have financial
statements, that President Weintraub "doesn't want to
testify to them," but wanted the certified public accountant
to testify toy them. However,' he represented that he could
not call the'accountant because he was in Florida at that
time. I informed counsel that, while I was going,to close
the hearing, if Respondent wanted to offer 'financial
statements issued by the certified public accountant, it
could make a motion ,to reopen the record. Counsel for
Respondent stated that he would produce such statements,
and, if counsel for the General Counsel would not stipulate
their admissioii into evidence, he -would make a motion to
reopen the record. However, instead of • producing such
statements, Respondent after the close of the''hearing
submitted four sets 'of periodic inventory 'l'ists totaling
about 80 pages.
It is apparent from the foregoing that Respondent has
been unwilling to make full disclosure ' of its economic
condition. A party seeking to defend its actions on the
ground of economic necessity does not prove its case by
offering to lift only a corner of the blanket, thus permitting
the Board to see only that limited portion of its economic
situation which ft believes to be beneficial to it.s Indeed,
Respondent's studied failure and refusal to disclose fully its
appeals -
6 Goshen Litho, Inc., 196 NLRB 977,990-994
7 Respondent argues that its records indicated that less man -hours were
worked in the stripping department during 1974, as compared to 1973
However, Respondent's records admittedly, do not reflect the amount of
overtime worked by supervisors, and it is conceded that supervisors} who
were not paid on an hourly basis, did work overtime , . '
',In this connection , it is pertinent to note the comment of 'J dministra-
tive Law Judge Plame in his Decision in Goshen Litho II
Respondent was asked by General Counsel to produce the record of
its orders. Respondent replied that it did not keep a record of orders I
(Continued)
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic condition' gives rise to the inference that such
disclosure, if made, would be detrimental to its defense.
Accordingly, I find and conclude that Respondent's
economic condition was not the motivating cause of
Schaefer's layoff.
But even if, contrary to the fact, Schaefer's layoff were
occasioned by Respondent's economic condition, Respon-
dent nevertheless violated the Act 'in November 1974,
when coincident with the, discharge of Millheiser, it hired
Kasabian, a new employee, instead of recalling Schaefer
from his layoff. No reason has been advanced by
Respondent to justify or explain its failure to recall
Schaefer. The hiring of Kasabian to replace Millheiser
indicates Respondent's continuing need for another strip-
per. Nor, can it be said that economic considerations
prompted the hiring of Kasabian in lieu of recalling
Schaefer. Kasabian was hired at a rate of $8.125 per-hour,
whereas Schaefer had been paid only $5 per hour.
It may be questioned philosophically how long animus
against an employee who has testified against his employer
continues in effect. In the instant proceeding, there is no
need to consider this question in the abstract. The record
of Respondent's treatment- of Schaefer after his original
reinstatement in 1971 ^ demonstrates beyond dispute that
Respondent's animus, against -him continued throughout
his subsequent employment. I therefore find and conclude
that such, animus pervaded the relationship and was a basis
for Schaefer's layoff and Respondent's unexplained failure
to recall him in November 1974. In addition, Respondent
admittedly knew of Schaefer's membership in and activity
on behalf of Local 119, which Respondent did not want to
recognize, even to the extent of illegally assisting its rival,
Local 318.9 By its conduct the Respondent violated Section
8(a)(4), (3), and (1) of the Act.
V. THE EFFECT OF THE UNFAIR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of -the
Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(4), (3),
and (1) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily laid
off, Paul Schaefer and, thereafter failed and refused to recall
find' this difficult to believe for a company grossing $3 5 million
annually from printing orders for a wide variety of literature from a
fairly large assortment of customers" -
The prima facie indication of unlawful motive was fortified by the
failure of Respondent to support its contention that the layoffs were
due to lack of work for the two employees, either with adequate records
or by'the-import of the evidence it did produce. [199 NLRB at 7721
9 Goshen Litho, Inc, 196 NLRB 977, 992-993.
him, I shall recommend that the Respondent be ordered to
offer him immediate reinstatement to his former job,
discharging, if necessary, any employee hired to fill such
job, or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and make him whole for any loss of earnings
he may have suffered by reason of such layoff, with interest
to be computed in the customary manner.10
I shall further recommend that the Respondent be
ordered to preserve and make available to the Board or its
agents, upon request, payroll and other records to facilitate
the computation of the backpay due and the right to
employment.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, I shall recommend that it
cease and desist from infringing in any manner upon rights
guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 119B is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily laying off Paul 'Schaefer and
thereafter failing'and refusing to recall him, because he had
testified against, the Respondent in a prior Board proceed-
ing' and because he was a member of Local 119B, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(4), (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act,' I hereby issue the following recommend-
ed:
ORDER ii
Respondent Goshen Litho, Inc., Chester, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a)' Laying off, refusing to recall, or in any other manner
discriminating against any employee with respect to his
hire or tenure of employment or any term or condition of
employment because he has given testimony under the Act.
(b) Discouraging membership in Graphic Arts Interna-
tional Union, Local 119B, or in any other labor organiza-
tion of its employees, by laying off, refusing to recall, or in
any other manner discriminating against employees with
regard to hire and tenure of employment or any term or
condition of employment.
10 F. W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
ii In the event that no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
GOSHEN LITHO , INC. 799
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
organization, to form , join , or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities,
except to the extent that such right is affected by the
proviso to Section 8 (a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Paul Schaefer full and immediate reinstatement
to his former job, discharging , if necessary , any employee
hired to fill such job, or, if thatjob no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights , and make him whole for any loss
of earnings he may have suffered by reason of his layoff, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its plant at Route 17 M, Chester , Orange
County, State of New York, copies of the attached notice
marked "Appendix." 12 Copies of said notice, on forms
provided by the Regional Director for Region 2, after
being duly signed by an authorized representative of the
Respondent, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
12 In the event that the Board's Order is enforced by a Judgment of the
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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off, refuse to reinstate , or "in any
other manner discriminate against any employee with
respect to his hire or tenure of employment or any term
or condition of employment because he had given
testimony under the Act. -
WE WILL NOT discourage membership in Graphic
Arts International Union , Local 119B , or in any other
labor organization of our employees, by laying off,
refusing to reinstate , or in any other manner discrimi-
nating against employees with regard to hire and tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization, to form , join, or assist any
labor organization , to bargain collectively through
representatives of their own choosing, and,to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities , except to the
extent that such right is affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL offer Paul Schaefer full and immediate
reinstatement to his former job, discharging , if neces-
sary, any employee hired to fill such job , or if that job
no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights, and
WE WILL make him whole for any loss of earnings he
may have suffered by reason of his layoff.
All of our employees are free to become and remain
members of the above -named Union, or any other labor
organization , or to refrain from doing so.
GOSHEN LITHO, INC.