International Computaprint Corp.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1106 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Computaprint Corp. and Teamsters
Union Local 929, International Brotherhood of
Teamsters. Case 4-CA-10157
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 6, 1980, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent filed exceptions and supporting briefs,
and the General Counsel filed a brief in support of
portions of the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
Contrary to our dissenting colleague, we adopt
the Administrative Law Judge's conclusion that the
General Counsel has not established by a prepon-
derance of the evidence that Respondent addition-
ally violated Section 8(a)(3) and (1) of the Act by
selecting employees Shaw, Caetano, Murray, and
Eagles for layoff. In so doing, we point out that it
1 The General Counsel and Respondenl have excepted to certain credi-
bility findings made by the Administrative Law Judge It is the Blard's
established policy not to overrule an administrative law judge's resolu-
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products, Inc., 91 Nl RB 544 (1950), enfd. 18 F.2d
362 (3d Cir 1951) We have carefully examined the record and find no
basis fior reversing his findings.
2 In concluding that Respondent did not violate Sec 8(a)(3) and (I) of
the Act in selecting four of the five alleged discriminatees for layoff, the
Administrative Law Judge relied, in part, on the absence of animus by
Respondent. Contrary to the Administrative Law Judge, however, his
finding that Respondent violated Sec X(a)(3) and (1) with respect to em-
ployee Leight establishes Respondent's animus Nevertheless, we con-
elude that the General Counsel has not demonstrated by a preponderance
of all the evidence that Respondent committed the additional violations
alleged
In dismissing the complaint allegations as to employee Shaw, the Ad-
ministrative Law Judge stated that he wvas unwilling to infer Respond-
ent's knowledge of her union activities in view of, inter alia, the size of
the employee complement. We find it unnecessary to pass on whether the
small-plant doctrine is applicable to the activities of Shaw or Eagles, the
only two of the remaining alleged discriminatees who admittedly en-
gaged in soliciting on Respondent's premises, since even assuming, ar-
guendo, that Respondent had knowledge of such activities, we would find
the record insufficient to establish that their layoffs were unlawfully mo-
tivated.
s We find that it will effectuate the purposes of the Act to require Re-
spondent to expunge from employee L eight's personnel records, or other
files, any reference to his unlawful layoff. We shall modify the Adminis-
trative Law Judge's recommended Order accordingly
261 NLRB No. 99
is undisputed that Respondent's decision to effect a
layoff was based on legitimate business consider-
ations. Furthermore, it is clear that, as found by the
Administrative Law Judge, Respondent's decision
to prefer second-shift personnel for layoff was con-
sistent with its prior layoff and that such prefer-
ence was also based on valid business consider-
ations since, inter alia, the second shift was less
productive than the first shift in terms of unit costs.
Additionally, we emphasize, as did the Administra-
tive Law Judge, that several employees who were
laid off were not named in the complaint and sev-
eral others who were retained engaged in union ac-
tivity identical to that of the alleged discriminatees.
Furthermore, contrary to our colleague, we
agree with the Administrative Law Judge's find-
ings that the General Counsel has not demonstrat-
ed that Respondent's asserted reasons for selecting
the remaining four alleged discriminatees for layoff
were invalid. Thus, as found by the Administrative
Law Judge, Respondent's assertion that Shaw was
selected because of her excessive absenteeism is
supported by the fact that, so far as this record
shows, she may have had the worse attendance in
the entire division. Additionally, with respect to
Caetano's selection for layoff, it is clear that both
she and employee Latta, whom Respondent re-
tained rather than Caetano, had engaged in the
same union activity. Further, contrary to our col-
league, the facts that Caetano was on a 30-day
warning period at the time of her layoff and that,
immediately prior to the layoff, she had clearly
violated her earlier warning serve as a rational and
legitimate basis for selecting her for layoff, as
argued by Respondent and as found by the Admin-
istrative Law Judge.
With respect to Murray, the Administrative Law
Judge noted that she was the only second-shift em-
ployee in her department, that she had been as-
signed to that shift at her own request because she
could only work those hours due to personal prob-
lems, and that her work was readily absorbed by
the first shift. Accordingly, and based on his find-
ing that Respondent's preference in selecting
second-shift employees for layoff was legitimate,
the Administrative Law Judge concluded that the
General Counsel had not shown that Respondent's
retention of first-shift employee Canfield over
Murray was discriminatorily motivated. Our dis-
senting colleague does not seriously dispute the
above factual findings. Rather, he contends primar-
ily that the Administrative Law Judge erred in dis-
crediting Murray's testimony that Canfield had in-
dicated that she would volunteer for layoff. How-
ever, in making his credibility resolutions the Ad-
ministrative Law Judge noted generally that the
1106
INTERNATIONAL COMPUTAPRINT CORP.
General Counsel's witnesses impressed him as un-
trustworthy. The record further supports his spe-
cific finding that Murray's testimony in various re-
spects was not forthright and was confused and
hedged. Nor can we conclude that the inherent
probabilities here require a reversal of the Adminis-
trative Law Judge's credibility resolutions.
Finally, the Administrative Law Judge credited
the testimony of Respondent's supervisors, as sup-
ported by employee Ragg, and concluded that
Eagles had volunteered for layoff. Our dissenting
colleague, as in Murray's case, relies primarily on
his own view of the credibility of witnesses but
offers no adequate basis for reversing the Adminis-
trative Law Judge's resolutions. Additionally, our
colleague relies heavily on the fact that Respond-
ent, although asserting that Eagles volunteered for
layoff, had prepared a termination slip for him.
That fact, however, is not compelling since Re-
spondent also prepared a termination slip prior to
the layoff for employee Jackson, who was retained
over Eagles. Such evidence may demonstrate that
Respondent acted arbitrarily; it does not establish
that it acted discriminatorily.
In sum, while we recognize, as did the Adminis-
trative Law Judge, that there are some suspicions
raised here, mere suspicion cannot serve as a substi-
tute for proof of a violation.4 Rather, the General
Counsel has the burden of establishing unfair labor
practices by a preponderance of all the relevant
evidence. In view of the foregoing, and the record
as a whole, we agree that the General Counsel has
not met his burden with respect to the four addi-
tional alleged discriminatees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
International Computaprint Corp., Fort Washing-
ton, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order as so modified:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from Bryant Leight's personnel
records, or other files, any reference to his April
25, 1979, layoff, and notify him in writing that this
has been done, and that evidence of this unlawful
layoff shall not be used as a basis for future disci-
pline against him."
4 See, e.g., Kings Terrace Nursing Home and Health Related Facility,
229 NLRB 1180 (1977).
2. Substitute the attached notice for that of the
Administrative Law Judge.5
MEMBER JENKINS, dissenting in part:
I agree with my colleagues' adoption of the Ad-
ministrative Law Judge's finding that Respondent
violated Section 8(a)(3) and (1) of the Act by se-
lecting employee Leight for layoff because of his
activities on behalf of the Union. Contrary to my
colleagues, however, I do not agree with the Ad-
ministrative Law Judge that Respondent did not
additionally violate Section 8(a)(3) and (1) by se-
lecting for layoff employee activists Shaw, Cae-
tano, Murray, and Eagles.
The pertinent facts are as follows: The alleged
discriminatees were employed on Respondent's
second shift. On Friday, April 20, 1979,6 certain
employees participated in a "work action" over Su-
pervisor Tyson's denial of a request for an ex-
tended lunch period that day. Thus, despite the
denial, four of the five alleged discriminatees and
other employees took an extended lunch period.
Later that day, these employees, along with others,
left work prior to the termination of their shift in
protest over certain actions taken by another super-
visor, Bernard. The protestors retired to a local
restaurant where they proceeded to voice com-
plaints about management. While employee Shaw
was the only alleged discriminatee not involved in
this walkout, her uncontroverted testimony is that,
after observing the protesting employees leave Re-
spondent's premises, she inquired, in the presence
of Supervisor Bernard, as to whether those who
left were attempting to start a union. Bernard ad-
mitted that, after the protestors had left the plant,
she telephoned her superior, Supervisor Tyson, to
inform him of what had occurred. Tyson admitted
that Bernard reported the names of the employees
involved in the extended lunch break.
At the end of the second shift at 12:30 a.m.,
Shaw joined the other protesting employees at the
restaurant and, with their assent, she telephoned
the Union. Shortly thereafter, a business agent for
the Union met with the employees at the restaurant
and explained to them the need for obtaining
signed authorization cards and the procedure for
soliciting signatures for these cards. Each of the
employees in attendance then signed a card. Many
of these employees thereafter urged their fellow
employees to support the Union and to execute au-
thorization cards. In so doing, discriminatee
Leight, on Monday, April 23, inquired of Supervi-
sor Teich whether he would be interested in start-
s We have substituted a new notice which, inter alia, conforms to par
I(b) of the Administrative l.as Judge's recommended Order
I All dates hereinafter refer to 1979
1107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a union. Teich reported this inquiry to his supe-
rior, Tyson, who in turn related the conversation
to Respondent's division manager, Kircher. Mean-
while, in late March the volume of patent work
performed by Respondent pursuant to a contract
with the United States Department of Commerce
had been reduced because of Government budget-
ing constraints and efforts by Respondent to effect
a reversal of the reduction had proved unsuccess-
ful. During a meeting between Respondent and the
representatives of the Department of Commerce on
April 24, the latter made it clear that the volume of
Respondent's patent work under the Government
contract would not be increased to previous levels.
On the morning of April 25, Division Manager
Kircher met with Respondent's vice president and
they allegedly decided, among other things, that
the Government's cutback made it necessary to lay
off from 8 to 10 employees on the second shift. Re-
spondent immediately instructed its supervisors to
compile lists of those employees recommended for
layoff. Later that day, Respondent hastily informed
the alleged discriminatees and several other em-
ployees that they had been terminated. It is worth
noting that all of the employees laid off, other than
the alleged discriminatees, were probationary em-
ployees. As discussed below, most of the alleged
discriminatees were selected for layoff although
Respondent's supervisors did not recommend such
action.
The Administrative Law Judge found that the
selection for layoff of Leight, one of the five al-
leged discriminatees, was unlawful. The Adminis-
trative Law Judge based this conclusion on his
findings that Respondent had direct knowledge of
Leight's union activity and that the General Coun-
sel had established that Respondent's asserted
reason for selecting Leight for layoff was pretex-
tual. The Administrative Law Judge declined to
find, however, that the layoff of the other four al-
leged discriminatees was unlawful since, in his
view, the record was devoid of evidence of union
animus on Respondent's part and there was no
direct evidence that any of the alleged discrimina-
tees, other than Leight, were known by Respond-
ent to be supporters of the Union. Contrary to the
Administrative Law Judge, it is clear that, as in the
case of Leight, all the necessary elements for find-
ing violations with respect to the four other alleged
discriminatees are present here. Thus, as more fully
set forth below, the record clearly establishes Re-
spondent's union animus and knowledge of the em-
ployees' activities. Further, as in the case of
Leight, Respondent's asserted reasons for the layoff
of the other four employees do not withstand scru-
tiny.
First, it is clear, as my colleagues recognize, that
Respondent's union animus has been established.
Thus, contrary to the Administrative Law Judge,
the finding of an 8(a)(3) and (1) violation with re-
spect to Leight establishes Respondent's union
animus. The record also establishes that Respond-
ent was well aware that its employees were dissat-
isfied with certain aspects of their employment. In
this regard, in response to Supervisor Tyson's
April 2 request, alleged discriminatee Eagles re-
vealed that certain employees were having prob-
lems with Supervisor Bernard. Moreover, it is un-
disputed that Respondent had knowledge of its em-
ployees' organizational activities prior to the layoff.
Thus, as noted above, the record establishes that
between the union meeting on April 21 and the
layoff on April 25 some of the alleged discrimina-
tees solicited union support on Respondent's prem-
ises by urging their fellow employees to execute
authorization cards. Additionally, on April 23, dis-
criminatee Leight solicited union support from Su-
pervisor Teich. Further, there is persuasive record
evidence that Respondent had direct knowledge
that the focal point of the concerted activity was
its second shift which consisted of only 36 employ-
ees. Thus, as mentioned above, on the day of the
walkout, Supervisor Bernard heard Shaw asking a
question concerning the Union and Bernard con-
ceded that immediately thereafter she informed her
superior of the activities of the protesting employ-
ees. Additionally, on April 23, Supervisor Tyson
repeatedly accused alleged discriminatee Eagles of
having prompted his coworkers to engage in a
walkout.
Turning now to an examination of the particular
facts surrounding the layoffs of each of the remain-
ing alleged discriminatees, the evidence compels
the conclusion that Respondent violated the Act
with respect to each of the four employees.
The Administrative Law Judge declined to find
that Shaw's layoff was violative of the Act, since
in his opinion the record contained neither evi-
dence of Respondent's union animus nor evidence
that Respondent had direct knowledge of Shaw's
union activities. As noted above, however, Re-
spondent's union animus has been established. Ad-
ditionally, the Administrative Law Judge clearly
erred in declining to infer, based on the small-plant
doctrine, Respondent's knowledge of Shaw's union
activities in discussing the Union with fellow em-
ployees and soliciting their signatures on authoriza-
tion cards on Respondent's premises. Indeed, it is
noteworthy that the majority has specifically re-
fused to adopt that finding. Contrary to the Ad-
ministrative Law Judge, the size of the employee
complement here-86 total employees, 36 on the
1108
INTERNATIONAL COMPUTAPRINT CORP.
second shift-is subject to the application of the
doctrine. 7 Additionally, contrary to the Adminis-
trative Law Judge's suggestion, an inference of
company knowledge based on the size of the em-
ployee work force may be drawn in the absence of
evidence that employees revealed the alleged dis-
criminatees' union activities to management. 8
Moreover, the record indicates that Shaw engaged
in conduct in the presence of a supervisor from
which Respondent almost certainly would have
suspected that she was involved in the union orga-
nizational drive. Thus, as mentioned above, the
Administrative Law Judge himself found that, on
April 20, Shaw mentioned the Union in the pres-
ence of Supervisor Bernard.
In dismissing the complaint allegation concerning
Shaw, the Administrative Law Judge accepted Re-
spondent's contention that she was selected for
layoff because of her high absenteeism. In so doing,
however, he conceded that the inconsistent actions
taken by Respondent concerning Shaw's attend-
ance record created "doubt" about Respondent's
asserted reason for terminating her. In this regard,
the Administrative Law Judge acknowledged that
Shaw had at no time during her employment with
Respondent received a warning concerning her at-
tendance and that her termination form, in fact, de-
scribed her attendance as "average." Further, al-
though Respondent contended that this "average"
rating was given to Shaw because it did not want
to impair her future employment opportunities, the
Administrative Law Judge noted that such consid-
erations were not extended to other employees
with high absenteeism. Following the layoff these
employees were rated by Respondent as "below
average" on their termination forms. Under these
circumstances, I find that Respondent's rating of
Shaw as "average" was an accurate reflection of its
opinion of her absenteeism and that her rating con-
tradicts Respondent's contention that it regarded
her attendance as a problem which warranted
being selected for layoff. As further evidence that
Respondent did not consider Shaw's attendance to
be a problem, the record establishes that only 1
month prior to her layoff Shaw was granted an
above-average wage increase based on a periodic
job review. Further, Respondent's willingness to
use attendance as a pretext is clear from the Ad-
ministrative Law Judge's finding, which both the
majority and I have adopted, that Respondent's as-
7 See Montgomery County MH/MR Emergency Service, 239 NLRB 821.
825 (1978), and Tayko Industries Inc., 214 NLRB 84, 88 (1974)
s CS.C Oil Company. a Division of Cook United, Inc.. d/b/a Ontario
Gasoline d Car Wash, 228 NLRB 950 at fn. 2 (1977). Further, the small-
plant doctrine is applicable here notwithstanding Shaw's testimony that
she attempted to conceal her distribution of authorization cards Ibid See
also A to Z Portion Meats, Inc., 238 NLRB 643 (1978).
sertion that it selected Leight for layoff was pretex-
tual. Finally, I note that Shaw was laid off al-
though she worked in a department which, accord-
ing to Respondent, would not be immediately af-
fected by the reduction in Respondent's patent
processing. Clearly-, therefore, Respondent's assert-
ed reason for selecting Shaw for layoff is without
merit.
The record reveals that Respondent had a basis
for suspecting that Caetano was a union sympathiz-
er since it was known throughout the plant that she
was dating alleged discriminatee Eagles who, prior
to the layoff, was repeatedly accused by Respond-
ent of having inspired the employees to walk out in
protest. Further, Caetano was among the employ-
ees who extended their lunch period on April 20
and also left work prior to the termination of their
shift that day.
In concluding that Respondent's layoff of Cae-
tano was not unlawful, the Administrative Law
Judge found merit in Respondent's contention that
she was designated for layoff over Latta, another
employee in her department, because Caetano had
been placed on a 30-day warning period for a prior
rule infraction and her tardy return from lunch on
April 20 and her early departure from work that
same day constituted a repeat "offense" during the
warning period. Unlike my colleagues, I am con-
vinced that Respondent's asserted reason for select-
ing Caetano for layoff is pretextual. Thus, Re-
spondent's position that it regarded Caetano's April
20 conduct as sufficient to constitute a repeat of-
fense is undercut by the fact that Latta, who also
returned late from lunch on April 20 and left prior
to the termination of the shift that day, did so with
impunity. Additionally, Respondent's contention
that it viewed Caetano's April 20 conduct as a seri-
ous violation is belied both by Respondent's failure
to issue any reprimand for that conduct and by the
fact that the termination review prepared by Re-
spondent for Caetano is more favorable than that
prepared for Latta. I note, further, that Caetano
testified that, at the time of the layoff, she was en-
gaged primarily in the performance of work which
was not affected by Respondent's patent reduc-
tion.9 Further, Caetano was selected for layoff de-
spite the absence of any such recommendation by
her supervisor. Clearly, therefore, Respondent has
offered no valid reason for its retention of Latta
over Caetano.
Persuasive evidence exists that Respondent had a
basis for identifying alleged discriminatee Murray
as a participant in the union organizational drive.
Although the Administrative I aw Judge preferred not to credit this
testimony, it is significant that it was not controverted
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, it is undisputed that, on April 20, Murray
was among the protesting employees who left
work prior to the termination of their shift and
thereafter participated in the union meeting where
she signed an authorization card. Further, while
Murray, who was described by Respondent as a
"good worker" with no attendance problems, was
laid off, another employee in her department, Can-
field, whose work was characterized by Respond-
ent as "below average" who had a poor attendance
record, and who was junior to Murray in terms of
length of service, was retained. Murray testified
that, prior to being informed of her layoff on April
25, she and other employees had speculated as to
the employees who would be laid off. During the
course of the conversation, Canfield indicated that
she would volunteer for layoff. The Administrative
Law Judge, however, discredited this testimony
because he found that Murray's testimony on an-
other subject had been less than forthright. Fur-
thermore, the Administrative Law Judge omitted
entirely from his analysis Murray's testimony that,
after Tyson informed her that she had been select-
ed for layoff, she inquired as to Respondent's
reason for not selecting Canfield since "Canfield
had volunteered" and that, in response, Tyson said
Canfield "would be laid off eventually." In light of
Murray's uncontroverted testimony that Canfield
had indicated that she would welcome being laid
off, it is significant that Respondent, despite ample
opportunity to offer testimony as to whether Can-
field had, in fact, volunteered for layoff prior to
Murray's layoff, failed to do so. Further, the Ad-
ministrative Law Judge's treatment of Murray's
testimony is suspect since her testimony is clearly
consistent with and corroborated by other evi-
dence. Thus, it is undisputed that Canfield was sub-
sequently laid off at her own request and her termi-
nation form downgraded her as "below average" in
terms of quantity of work performed and attend-
ance. I therefore find that the Administrative Law
Judge's discrediting of Murray is contrary to the
weight of the evidence.' ° Finally, Murray was se-
lected for layoff, although her supervisor did not
recommend such action. Accordingly, in light of
the record as a whole, the Administrative Law
Judge's conclusion that Respondent did not violate
the Act by selecting Murray for layoff is not sup-
ported by the weight of the evidence.
°0 The Administrative Law Judge's specific credibility resolutions with
respect to Murray do not appear to be based on demeanor and, as indi-
cated above, he has ignored certain uncontradicted testimony by Murray.
Furthermore, his discrediting of Murray is at odds with the reasonable
inferences to be drawn from the record. In these circumstances, a de novo
consideration of credibility is warranted. See El Rancho Market, 235
NLRB 468 (1978).
It was not difficult for Respondent to identify
Eagles as a union sympathizer in view of his past
communications to Supervisor Tyson concerning
employee discontent with one of Respondent's su-
pervisors, his extended lunch break on April 20,
and his early departure from work that same day.
Thus, as mentioned above, it was uncontroverted
that on April 2, at Supervisor Tyson's request,
Eagles revealed that employees in his department
were having "problems" with their supervisor.
Thereafter, on April 23, the same day that discri-
minatee Leight solicited union support from a su-
pervisor, Tyson summoned Eagles to his office and
inquired as to the circumstances surrounding the
walkout on the preceding Friday, April 20. Eagles
denied Tyson's accusation that he had taken other
employees with him when he left and told Tyson
that the other employees had walked out spontane-
ously and that he had no control over them. The
conversation then shifted to a discussion of condi-
tions in the plant. Eagles credibly testified that he
again reported to Tyson that employees in his de-
partment were dissatisfied with their supervision
and reminded Tyson that, although management
had assured him that arrangements would be made
to resolve the problem, nothing had happened. The
Administrative Law Judge also credited Eagles'
testimony that Tyson repeated the accusation that
Eagles had precipitated a walkout and stated that,
for this reason, he had "no respect for him any-
more." Eagles additionally testified that on April
25, after learning that other employees had been
laid off, he went to the office where he was in-
formed by Supervisor Tyson that his name was on
the list of employees to be laid off. Eagles further
testified that Manager Kircher then produced and
requested that he sign his previously prepared termi-
nation papers.
The Administrative Law Judge conceded that
the General Counsel's contention that Respondent
had knowledge of Eagles' involvement with the
union organizational drive was supported by
Eagles' uncontradicted testimony that Tyson re-
peatedly accused him of having inspired a walk-
out. The Administrative Law Judge, however,
considered the dispositive issue to be whether
Eagles quit or was involuntarily laid off. He cred-
ited the testimony of Kircher that, on April 25,
Eagles approached him and stated, "lets [sic] get
this thing over with . . . this is what I want" and
that Kircher took these remarks as a request for a
voluntary layoff. He further credited the testimony
II Further, Eagles testified without contradiction that on April 23 he
solicited two employees on Respondnt's parking lot and, as with Shaw,
an inference of knowledge of such union activities is warranted under the
small-plant doctrine.
1110
INTERNATIONAL COMPUTAPRINT CORP.
of employee Ragg that Eagles had told him that he
intended to volunteer for layoff. Accordingly, the
Administrative Law Judge concluded that Eagles
had, in fact, volunteered for layoff. Based on this
conclusion, the Administrative Law Judge rejected
the General Counsel's contention that Eagles'
layoff was in retaliation for his union activities.
The weight of the evidence, including reasonable
inferences drawn from the record as a whole, does
not support the conclusion that Eagles volunteered
for layoff. Indeed, I fail to see how my colleagues
can regard Respondent's contention that it believed
Eagles' remarks to be a request for a layoff as any-
thing other than fallacious. Thus, Eagles' alleged
remarks to Kircher fall far short of a request for a
layoff. Additionally, the Administrative Law Judge
found that Ragg's testimony was marked by "con-
fusion." In this regard, Ragg testified that he en-
gaged in conversations with Eagles concerning the
layoffs but that he "didn't recall" the date on
which Eagles said that he wanted to volunteer for
a layoff. Additionally, at various times during his
testimony, Ragg indicated that he "could not re-
member" and "wasn't sure" of certain crucial facts.
The Administrative Law Judge nevertheless cred-
ited his testimony in toto. However, even if I were
to regard this testimony as reliable, I would not
find it to be probative of the issue of whether
Eagles, in fact, volunteered for layoff since there is
no evidence that Respondent was informed that
Eagles had stated that he intended to volunteer for
layoff. Further, Ragg was not present during the
conversation in which Respondent alleged that
Eagles volunteered for layoff. Finally, it is signifi-
cant that the Administrative Law Judge labled as
"specious" the explanation offered by Respondent
for having presented Eagles with termination
papers which were prepared prior to his alleged
"voluntary" request for layoff. In this regard, Re-
spondent's supervisors testified that, while employ-
ee Jackson had been selected for layoff rather than
Eagles, termination papers had been prepared for
Eagles as well as Jackson because Respondent had
to reduce the work force by a certain number of
employees that day. According to this testimony,
had Jackson been absent from work on the day the
layoffs occurred Jackson would have been retained
and Eagles would have been laid off. In other
words, if Respondent is to be believed, it planned
to reward an absentee by retaining him and to pe-
nalize an employee who reported for work by
laying him off. And this from an employer who
claims it laid off an otherwise exemplary employee,
Shaw, because of her "poor attendance record."
Such an explanation is obviously contrived and
clearly indicates that Respondent was attempting to
hide its true motivation for selecting Eagles for
layoff. Accordingly, and in light of Respondent's
established union animus and its persistent badger-
ing of Eagles concerning his role in the walkout
only 2 days prior to his layoff, I am convinced that
Respondent unlawfully selected him for layoff.
It is clear that the General Counsel has estab-
lished the additional complaint allegations. Thus,
the majority has found, and I agree, that the record
establishes that Respondent harbored union animus.
Additionally, the finding that Respondent had
knowledge of the alleged discriminatees' union ac-
tivities is clearly warranted here. Moreover, in
light of the haste with which Respondent acted in
selecting the alleged discriminatees for layoff, the
failure of Respondent to establish its asserted rea-
sons for selecting the alleged discriminatees there-
for, and the fact that the only other employees se-
lected by Respondent for layoff were probationary
employees, I am compelled to conclude that the
layoffs of all five of the alleged discriminatees in
this case were motivated by antiunion consider-
ations and were violative of Section 8(a)(3) and (1)
of the Act. I dissent from my colleagues' failure to
so find.
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE Wll I NOT select for layoff or otherwise
discriminate against you because you have en-
gaged in activity on behalf of Teamsters Union
Local 929, International Brotherhood of
Teamsters, or any other labor organization.
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights set forth above.
WE WIILL offer Bryant Leight immediate
and full reinstatement to his former position
or, if that job no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed, and pay him for the earnings he
lost by reason of our discrimination against
him, with interest.
WE WILI expunge from Bryant Leight's
personnel records, or other files, any reference
to his April 25, 1979, layoff and notify him in
writing that this has been done and that evi-
dence of this unlawful layoff shall not be used
as a basis for future discipline against him.
INTE;RNATIONAI.
CORP.
COMPU TAPRINT
DECISION
STATEMINTI OF TIHI CASE
JoF.i. A. HARMATIZ, Administrative Law Judge: This
proceeding was heard before me in Philadelphia, Penn-
sylvania, on November 28 and 29, 1979, upon an unfair
labor practice charge filed on May 1, 1979, and a com-
plaint issued on June 25, 1979, alleging that International
Computaprint Corp. (herein called Respondent) violated
Section 8(a)(3) and (1) of the Act by the layoff on April
25 of employees Peggy Shaw, William Eagles, Gloria
Murray, Bryant Leight, -nd Isabel Caetano because of
their union activity. In its duly filed answer, Respondent
denied that any unfair labor practices were committed.
After close of the hearing, briefs were filed on behalf of
the General Counsel and Respondent.
Upon the entire record in this proceeding, including
consideration of the post-hearing briefs, and my observa-
tion of the witnesses while testifying and their demeanor,
it is hereby found as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with a place of
business in Fort Washington, Pennsylvania, from which
it is engaged in the operation of data-base systems and
photocomposition. In the course and conduct of said op-
erations, Respondent, during the representative period,
performed services valued in excess of $50,000 for var-
ious enterprises located in States other than the Com-
monwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that 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.
11. TIHE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Teamsters Union Local 929, International Brother-
hood of Teamsters, is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
111. TIHE ALI..GF.I) UNIAIR ILABOR PRACTICES
A. The Issues
As indicated, this proceeding is confined to allegations
stemming from a layoff in Respondent's printing division.
In all, nine employees were terminated, including Peggy
Shaw, Gloria Murray, Isabel Caetano, Bryant Leight,
and Ted Eagles on April 25, 1979.' It is noted that no
serious challenge is registered to testimony which was
substantiated in a number of significant respects by docu-
mentation to the affect that work available in said divi-
sion was reduced measurably prior to the layoff and that
it became apparent on April 24 that said condition would
continue into the indefinite future. The claim of discrimi-
nation is premised on the General Counsel's view that
the timing of the layoff and the fact that it was hastily
arranged, coupled with the questionable grounds upon
which the discriminatees were selected, all serve to es-
tablish that Respondent sought to eliminate those known
or suspected of having manifested their support of the
Union. By way of defense, Respondent observes that the
record is devoid of evidence of union animus and that
the General Counsel has failed to prove, except in the
case of Bryant Leight, that the layoff was affected with
knowledge of individual union activity. As for alleged
discriminatee Ted Eagles, Respondent asserts that he
volunteered for layoff. Basically, however, Respondent
argues that the layoff was prompted by, timed, and af-
fected pursuant to a formula grounded solely in legiti-
mate business considerations.
B. Background
Respondent's printing division is one of several sepa-
rate operating arms of the Company. At times proximate
to the layoff, some 86 employees were assigned thereto,
with operations conducted on a two-shift basis. Some 36
employees were assigned to the second shift under the
immediate supervision of Peggy Bernard, the sole man-
agement representative regularly assigned thereto.
There was no history of bargaining for these employ-
ees and the instant union campaign originated with em-
ployees on the second shift, primarily because of their
disenchantment with Supervisor Bernard. Both the initial
contact and meeting with the Union took place during
the early morning of April 21, after second-shift employ-
ees had gathered at the "Beef and Ale" restaurant
(herein called the "Beef and Ale." Respondent admits to
learning of union activity on April 23 when alleged dis-
criminatee Leight approached admitted Supervisor Bob
Teich and asked Teich if he would be interested in start-
ing a union. Teich, on April 24, reported this conversa-
tion to Production Supervisor Bud Tyson, who in turn
' Unless otherwise indicated, all dates refer to 1979
1112
INTFRNATIONAI COMPUTAPRINT CORP.
relayed the information to Dean Kircher, Respondent's
division manager.
The layoff occurred on April 25. The nine selected
were second-shift employees. 2 Other than the five al-
leged discriminatees, one had volunteered for layoff
(Diane Chapman) and three others had recently been
hired in March, were on trial, and according to Re-
spondent, had not responded to training. (Len Dough-
erty, Paul Jensen, and William Vare.)
Of the five alleged discriminatees, it appears that with
the exception of Gloria Murray who was rehired by Re-
spondent at another division, none were recalled or of-
fered employment subsequent to the April terminations.
C. Concluding Findings
1. The union activity
During the second shift on April 20, certain employees
participated in "work actions," which apparently were
inspired by an earlier denial by Tyson of a request by
Ted Eagles that he be granted permission on April 20 to
take an extended lunch hour to celebrate a birthday. De-
spite the denial, alleged discriminatees Eagles, Leight,
Murray, and Caetano joined by Vicki Latta, Steve Gal-
lagher, and Robert Requio, all second-shift employees,
took an extended lunch period on the evening of April
20. Subsequently, during the shift, these employees and
others left work early, prior to the termination of the
shift. Alleged discriminatee Peggy Shaw w\as not in-
volved in the extended lunchbreak and did not join the
walkout. She testified that after observing the employees
leaving she approached others who stayed on as they
were talking to Bernard, inquiring as to whether those
who left were trying to start a union. 4
At the close of the shift at 12:30 a.m., Shaw went to
the "Beef and Ale." After learning of employee discon-
tent, she, with the assent of the others, contacted Augus-
tine Vandetti, a business agent for the Union who shortly
thereafter appeared at the "Beef and Ale." During his
meeting with employees, Vandetti explained the need for
obtaining signed authorization cards, and the procedure
for soliciting and obtaining authorization cards, and the
procedure for soliciting and obtaining execution of these
cards. At his request, all in attendance signed cards.
The layoff of April 25 did not reach several second-
shift employees present at that meeting, who also failed
both to return from the lunchbreak on a timely basis and
to complete the balance of their shift on the evening of
April 20. Nonetheless, a strong effort was made to isolate
the discriminatees, as especially vulnerable to reprisal,
through testimony that they alone volunteered to serve
2 See G C Exh. 6.
: Gallagher. also a second-shift employee, did not return from lunch
that evening. Leight testified that he left work early for no specific
reason, but, upon observing that others were leaving, told Supervisor
Bernard that he was not feeling well. Eagles testified that he left because
he had taken ill after lunch. an explanation that was echoed by Cactano
and Murray as the reason for their respective early departures Upon
leaving work all four went to the "Beef and Ale."
4 The walkout seemed related to employee disdain for actions by Su-
pervisor Bernard. The only other evidence of a specific grievance was
that imputed to employee Gallagher. who was apparently disgruntled as
to his failure to receive increases on time
on an employee organization committee. The testimony
offered in support of this element of the General Coun-
sel's theory was lacking in consistency. Thus, Vandetti
testified that in the course of the April 21 meeting he
"got five people who volunteered to be on an organizing
committee"; namely, Shaw, Leight, Eagles, Caetano, and
Murray. According to Vandetti, all were given blank
cards and told to obtain signatures from other employees
at the plant. Aspects of his testimony were highly sus-
pect and somewhat contradictory. The purpose in form-
ing this group and the role of its members as described
by Vandetti was twofold: to obtain signatures to organi-
zation cards and to inform employees of a meeting to be
held during the following week.5 Nonetheless, Vandetti
conceded that employees other than those designated for
the organization committee took extra cards at the meet-
ing, 6 and that, after their layoff, at the second union
meeting, the five discriminatees were formally elected to
serve on the organizing committee, even though none at
the time enjoyed payroll status. The confusion was com-
pounded by testimony of Leight and Caetano, both of
whom acknowledged that they obtained no blank cards
at the April 21 meeting.
Another item of curiosity originates with an acknowl-
edgement by Eagles that in his sworn prehearing affida-
vit he named only four employees as having volunteered.
Caetano was omitted. At the time Caetano was Eagles'
girlfriend, and this discrepancy did not strike me as at-
tributable to an inadvertent oversight in reporting facts
truthfully.
Although I believe that a meeting took place at the
"Beef and Ale" in the early morning hours of April 21,
that Shaw made the initial contact with the Union, and
that those in attendance signed union authorization cards
at that time, the testimony concerning the "volunteers"
was viewed as unworthy of trust. The faulty and unbe-
lievable testimony offered in regard to the latter related
to a matter of considerable import and may not be light-
ly dismissed as a byproduct of confusion or hazy per-
spective. My disbelief of this testimony was sufficiently
deep to cast a cloud upon much of the testimony of the
General Counsel's witnesses. It was regarded as a con-
trived effort to enhance suspicion with respect to the
treatment accorded the five named discriminatees and to
diminish the import of Respondent's failure to include in
the layoff certain others whose union activity was no less
than certain of the discriminatees. 7
I Murray testified that the so-called Committee was formed after Van-
detti asked for volunteers "to hold cards." for signature of others, the
only function delegated to the volunteers.
[:lor example. Eagles named Gallagher as having obtained extra
cards, but no one named Gallagher as having volunteered to serve on
any such committee
I Leight testified that Tommy Thompson did not sign a card at the
April 21 meeting and that Requio left prior to the arrival of Vandetti
Eagles testified that Jackson and Requio left the meeting before he did
and were not present when union literature was distnbuted. Murray testi-
fied that she was sure that Requio signed a card at the April 21 meeting.
There was no testimony that Thompson had left prior to the distribution
of cards by Vandetti. And Vandetti, who impressed me as not inexperi-
enced in such matters, testified that "all" present signed authorization
cards at the April 21 meeting It is assumed that Vandetti, rather than the
others. would have superior knowledge and his observation that all
Continued
1113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the interim between the April 21 meeting and the
April 25 layoff, certain of the discriminatees discussed
the Union with their fellow employees urging them to
support the Union and to execute authorization cards.
Because of Leight's action in soliciting union support
from Supervisor Teich, Respondent had admittedly re-
ceived information as to the existence of such activity
prior to the layoff. With the exception of Leight, howev-
er, there is no direct evidence that Respondent was
aware that a union meeting was held at the "Beef and
Ale" or of the identity of either those who attended or
who engaged in subsequent activity in furtherance of the
organization effort.
2. The layoff
Work available to Respondent's printing division was
under threat well prior to the advent of the Union. Rev-
enues generated by that division as well as the work of
employees assigned thereto depended critically upon
services provided for the Bell Telephone System and the
United States Patent Office, Department of Commerce.
With respect to the latter, as of September 1978, a con-
tract was negotiated throught the United States Govern-
ment Printing Office (GPO) on behalf of the Department
of Commerce, whereby Respondent could expect to per-
form the original printing of 58,000 patents per year or
an average of 1,286 units per week for the next 12
months. Approximately 95 percent of the work per-
formed by Respondent under that contract was complet-
ed in the printing division. The volume of work generat-
ed thereby constituted 80 percent of the work performed
in the printing division.
In 1979, budgeting constraints on the Department of
Commerce produced a reduction in printing division
intake. By letter dated March 20, the Company was for-
mally advised that volumes of work under the above
contract would be reduced. By virtue thereof a "con-
tracting officer" of the United States Department of
Commerce, informed Respondent, inter alia, that its
weekly unit requirements for delivery between May 29
and November 20, would be cut by some 45 percent to a
weekly average of 650 units.8 Respondent reacted quick-
ly and by letter dated March 23, 1979, protested to the
United States Government Printing Office that the posi-
tion taken by the Department of Commerce was in viola-
tion of the annual agreement. In that letter," the impact
upon Respondent (ICC) of the planned reductions was
defined as follows:
The consequences of this abrupt change for ICC are
staggering and far reaching. Since drawings are re-
ceived 42 days before issue day our work force re-
duction must begin the week of March 26, 1979.
ICC would have to lay off about half of its trained
staff which it has taken so long to build. Once these
signed seemed likely to have been representative of fact. While it is possi-
ble, that Requio and Jackson may have left the meeting before authoriza-
tion cards were distributed, my strong disbelief of critical aspects of testi-
mony afforded by the General Counsel's witnesses leads me to reject the
testimony of Leight and Eagles in this respect as well
8 See Resp. Exh. 8 (Program 306-S). The letter in question also refers
to a reduction in data base work performed outside the printing division
9 See Resp. Exh. 9.
reductions begin, other trained personnel will "bail
out" because of the unexpected behavior of the con-
tract. As we know from past experience, ICC will
develop a reputation in the labor market which will
hinder our present and future hiring.
Pursuant to the foregoing, effective March 29, 1979,
orders actually submitted to Respondent were at the re-
duced 650 weekly level. Parenthetically, it is noted at
this juncture that the various tasks performed on these
units took a period of 8 weeks or 42 days from date of
delivery to date of shipment. According to my calcula-
tions, printing at the reduced 650 unit level would bring
about-effective the week commencing March 29-an
immediate reduction in the work available to the printing
division of 4.5 percent weekly. On a cumulative basis,
upon expiration of the initial 8-week cycle, this forebode
an ultimate reduction upon the demands upon the work
force which would continue at a constant 36 percent
weekly.
Following the March 29 letter Respondent's repre-
sentatives engaged in various efforts to bring about a re-
versal of the Government's position. Although the intake
of patent work continued at the reduced level, there
were signs that the Government would recede and
return to pre-March 29 volumes. However, on April 24
Respondent's vice presidents, Dariano and Klosterman,
met in Washington, D.C., with representatives of the De-
partment of Commerce. In the course thereof, a final de-
cision was made by the Governmental representatives to
increase the weekly patent volume from 650 to 750 only.
By letter dated April 26, Respondent was informed of
the revision and that delivery of units at the 750 level
would commence on July 3 .'
°
Following the meeting with government officials on
April 24, of that same evening, Klosterman telephoned
Dean Kircher advising that a layoff would be necessary.
They agreed to meet the next morning to discuss the
layoff. I On the morning of April 25 Klosterman and
Kircher discussed generally the means by which the
layoff would be implemented. It was decided that since
volume would be reduced by some 43 percent, a 30- to
35-percent reduction of staff would be required. A deter-
mination was made to immediately reduce staff by from
8 to 10 employees. The layoff was to be concentrated on
the second shift, 2 which in relation to the first, was
smaller, subject to limited supervision on a regular basis
by a single individual, and at least in terms of unit costs,
less productive since second-shift employees were paid
on parity with first-shift employees while working a half
hour less each day.
Kircher then met with Tyson wherein it was decided
to cut back one production control employee, one plate-
making employee, and one pressman, with the balance to
be drawn from the distribution and collation department.
"' See Resp. Exh. 17.
" See credible testimony of Klosterman and Kircher.
l In September 1977, through competitive bidding, Respondemr lost
the annual contract for original printing of patents to a competitor. A
layoff resulted, which, according to the credited testimony, was at that
time concentrated on the evening shhfts. The printing division sustained a
reduction from 86 to some 16 employees at that time.
1114
INTERNATIONAL COMPUTAPRINT CORP.
As it was Kircher's intention to retain the best employ-
ees, Tyson was instructed to consult with the first-shift
supervisors to obtain their recommendations as to who
should be included in the layoff. After the lists were sub-
mitted, Tyson met with Kircher and they made the se-
lections.
The layoff was effected on the afternoon of April 25.
Thus, following arrival of the second shift, employees on
a departmental basis were assembled and informed that a
layoff would be necessary because of the reduced
volume of patent work. Subsequently, those to be termi-
nated were called to Kircher's office on an individual
basis and informed of their terminations.
3. Concluding findings with respect to the
allegations of discrimination
a. Preliminary statement
There can be no serious quarrel on this record that a
reduction in force in the printing department was prob-
able at some point following the reduction in patent vol-
umes. The General Counsel argues that the decision to
take such action on April 25, when considered in the
light of a number of factors, raises serious question as to
the genuine nature of the considerations on which Re-
spondent acted in selecting the five discriminatees.
The only explanation for the immediacy with which
Respondent acted appears in parole testimony that
Kircher on April 26 was leaving for Detroit on a 5-day
trip, and that he felt it his responsibility to manage per-
sonally the initial layoff to its conclusion, rather than
place that burden upon a subordinate.
The General Counsel's theory proceeds from the fact
that union activity centered on the second shift, which
coincidentally was the focal point of the job cutback.
Furthermore, while Respondent professed to a desire to
retain the best employees, the determination as to who
would be included was made by Kircher and Tyson with
input from other first-shift supervisors. Their determina-
tion was finalized prior to the arrival of the second-shift
supervisor Bernard. Thus, Bernard was unable to con-
tribute in the formative stages of this determination in-
volving employees with which she would be the most fa-
miliar. '
The General Counsel also challenges Respondent's
wisdom in laying off employees in departments which
had not as of April 25 sustained any reduction in work.
Thus half of the employees selected, namely, Leight,
Shaw, Vare, Dougherty, and Jensen, were in depart-
ments at the tail end of the patent processing. The Gen-
eral Counsel observes, with accuracy, that, under Re-
spondent's own explanation of the impact of the Govern-
ment's action, departments in which the latter worked
would remain at full production levels at least until after
Kircher returned from his trip to Detroit. On this latter
: An attempt to diminish this odd circumstance was apparent in tesi-
mony on the part of Kircher and Tyson. Kircher related that the layoff
had to take place immediately and prior to his scheduled departure for
Detroit. Tyson testified to the effect that the recommendations from first-
shift supervisors were sufficient in that the second-shift employees had
been trained on the first shift and that, in addition, some overlapping ex-
isted between the shifts
date, according to the General Counsel, the selections
could be made on a considered basis with full input from
the second-shift supervisor. It is argued that in the cir-
cumstances the haste with which Respondent acted was
indicative of an unlawful intent to thwart at the outset
any expansion in the employee organizational movement.
The foregoing lends suspicion to Respondent's action.
At the same time, however, business judgment is not
always exercised within a framework of equity. In any
event, the fact that the cutback was limited to second-
shift personnel was not lacking in precedent, but was
consistent with the approach adopted by the Company
during the only prior layoff in its history.i 4 Further-
more, the General Counsel's claim concerning the haste
with which the layoff was implemented is mitigated
somewhat by the fact that as of April 25, for a period of
almost a month, Respondent was engaged in printing di-
vision operations at manpower levels unjustified by di-
minished volumes which by then had reached about 13.5
percent. There is no question that the layoff was justi-
fied, and the issue of whether Respondent acted on pro-
scribed grounds in selecting the five alleged discrimina-
tees, rather than others, requires an assessment of any
discrepancies in the defense in the light of the affirmative
burden to be carried by the General Counsel in such a
case. Here, the layoff reached several employees not
named in the complaint and several others were retained
though engaged in union activity identical to that of al-
leged discriminatees. Further, evidence of union animus
is lacking and, with the exception of Bryant Leight, it
does not appear directly that any of the discriminatees
were known by Respondent to be supporters of the
Union. While these omissions are not necessarily fatal to
the complaint, the circumstances affecting each of the
discriminatees differ. and, in the final analysis, the critical
issues turn on each of their separate cases.
b. The individual cases
1. The collation department
Peggy Shaw and Bryant Leight were the two employ-
ees selected from the second-shift collation department.
Respondent claims that Shaw was selected because of
her high absenteeism, and Leight was selected because of
his poor record of productivity as well as his absentee-
ism.
Shaw was hired in August 1978. Although Shaw was
the employee who initially contacted the Union on April
21, she was not among the group that returned late from
lunch on April 20, nor did she leave work that day prior
to the end of her shift. She signed an authorization card
at the April 21 union meeting. Later that Saturday eve-
ning while working overtime, Shaw discussed the Union
with fellow employees on the second shift and solicited
signatures to authorization cards from among them. On
Monday, April 23, Shaw again distributed authorization
cards.
Consistent with Respondent's assigned ground for her
selection, Shaw since her hire on August 8, 1978, had
"4 See uncontradicted testimony of David Klosterman, Respondent's
vice president of finance and administration, as corrobo rated by Kircher
115
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
119 hours of accrued absenteeism. It does not appear that
this adverse attendance record was equaled or exceeded
by any other enployee in the collation department. 5 Fa-
voring the General Counsel is the fact that the personnel
action form completed upon the layoff of Shaw describes
her attendance as "average,"'i a factor which contrasts
starkly with the action taken by Tyson upon subsequent
termination of employees Beth Canfield and Vicky Latta,
whose forms were marked "below average" in the area
in which their attendance was rated. Also puzzling is the
fact that on March 19 a periodic review on Shaw was
prepared, signifying that she was granted a 6-percent in-
crease based thereon. Tyson testified that the average
raise granted during this timeframe averaged "approxi-
mately 5 percent." Thus, based on documentary evi-
dence, Shaw's adverse attendance history as recently as a
month earlier, did not impair her opportunity for an
above-average wage increase.
Despite these discrepancies, I am not persuaded that
the General Counsel has met his burden of proof in this
instance. As heretofore found, the layoff itself was based
on legitimate economic considerations and occurred the
day after Respondent learned that a reduction in patent
work had been finalized. Direct evidence that Respond-
ent was aware of Shaw's role in the union effortS7 was
lacking. Unlike other named discriminatees, Shaw en-
gaged in no activity in the presence of Respondent's
agents from which it might be inferred that Respondent
assumed or suspected that she might have been involved
in the organization effort. The inconsistent actions taken
by Respondent in connection with the attendance record
of Shaw' 8 create an element of doubt. However, absent
elements of union animus and knowledge coupled with
the fact that Shaw, insofar as this record discloses, may
have compiled the worst absentee record in the division,
I am convinced that her selection was based on that
ground alone. I find that the General Counsel has not
met his burden of proving that her termination was based
on considerations proscribed by Section 8(a)(3) and (1)
of the Act.
Leight was hired on August 4, 1978. He was among
the second-shift employees that took an extended lunch-
break on April 20 and also left work prior to the expira-
tion of his shift that evening. He was the only individual
Ls Shaw credibly testified that she had never before been warned con-
cerning her attendance or absenteeism. In my opinion this consideration
favors the General Counsel to a lesser degree where discriminatory selec-
tion for layoff is in issue than would he true in the case of a discharge
based on that ground
I See G C Exh. 21(a).
't In the circumstances, I am unwilling to infer that such knowsledge
existed in view of the size of Respondent's facility Cf Ibm's Ford, Incor-
porated, 233 NLRB 23, 27 (1977) At times material to this prolceeding,
the printing division was manned by 86 employees, 36 of whom were on
the second shift It does not appear that representatives of management
interrogated or otherwise initiated conversations concerning the union
effort with any employees during the period between the inception of
union activity and the April 25 layoff
aR Tyson testified that, in completing the termination reports on those
selected for layoff on April 21, he completed their ratings so as to avoid
stating anything detrimental that might impair their future employment
opportunities. The same considerations were not extended tol others, who,
following the layoff, failed to perform according to expectations. None-
theless, considering his testimony against other credible facts I was in-
clined to believe Tyson in this respect.
selected for layoff shown on this record to have been
known by Respondent to be a union advocate.
Respondent claims that Leight was selected by reason
of his poor attendance and productivity. Although a bor-
derline issue is presented, I agree with the General
Counsel that the reason assigned for the layoff of Leight
was pretextual. The involvement of Leight in the Union
was known by Tyson and Kircher at the time of his se-
lection. Also, unlike the other alleged discriminatees, in
this instance the General Counsel has substantiated dis-
parate treatment. Thus, Raymond McKeever was also as-
signed to the collation department on the second shift.
He was hired on July 25, 1978. Since that date he accu-
mulated absences of 114 hours. Leight on the other hand
was absent 95 hours during his employment." 9 I did not
believe the testimony of Tyson that he selected Leight
over McKeever because McKeever was black and since
a decision had already been made to terminate another
Black, Murray, to eliminate McKeever would prejudice
Respondent's equal employment opportunity profile.
Tyson's testimony struck as afterthought. Tyson was ob-
viously less than conversant with minority employment
requirements. The selections of those to be laid off were
made simultaneously and the question arises as to why
McKeever was given consideration as a minority em-
ployee when Murray was not.
With respect to the poor production issue, Tyson con-
ceded that he did not spend "an exceptional amount" of
time personally observing Leight in the performance of
his duties. He denied consulting any production records
in selecting Leight for layoff. He claimed, however, that
this charge was made against Leight on the basis of
Tyson's recollection of the content of his 6-month
review which was completed more than a month earlier
on March 15. At that time, Leight was afforded a less-
than-average raise of just 3 percent. 2 Although that
document contains a notation that Leight's production
was below standard, Tyson was not in a position to
evaluate Leight in terms of his improvement or the lack
thereof during the period following his evaluation. More-
over, Tyson recommended the layoff of Leight, despite
the absence of any such recommendation from Supervi-
sor Nichols, who preferred four other employees from
the second-shift collation department for termination. 2
Considering Respondent's retention of McKeever, as
well as its failure to consult with Supervisor Bernard,
though including Leight in a layoff upon a ground which
would be peculiarly within her knowledge, prior to final-
izing the decision with respect to Leight, I find that
Leight was included by reason of his known support of
the Union and in violation of Section 8(a)(3) and (1).
2. Platemaking
Isabel Caetano was hired on September 18, 1978. She
was one of three regular full-time employees assigned to
iY Supervisor Nichols, who held responsibility for the collation depart-
ment, submitted a list of second-shift employees indicating his preference
for layoff. Ieight's name did not appear on that list
"I Fmployee McKeever's most recent evaluation also reflected a mere
3-percent raise
' See (iC Exh. I(h)
1116
INTERNATIONAL COMPUTAPRINT CORP.
the platemaking department on the second shift. Re-
spondent claims that she was designated for layoff over
another employee in that department, Vicky Latta, 2 2 be-
cause Caetano had received a formal warning on March
30. Thus, on March 30, 1979, Caetano received a notice
of reprimand for "leaving work [and] not notifying su-
pervisor." In consequence Caetano was placed on warn-
ing for a period of 30 days.22 On April 20, Caetano was
among the employees who extended their lunchbreak
without authorization, and also left work, prior to the
conclusion of their shift. Respondent observes that Cae-
tano's conduct on April 20 involved a repeat offense, oc-
curring during the established 30-day warning period.
Apart from the warning of March 20, it appears that
Vicky Latta and Caetano were somewhat similarly situ-
ated in terms of the events of April 20. Latta, like Cae-
tano and the others, was late in returning for work, and
also left early that day. Latta was also identified by the
General Counsel's witnesses as having attended the union
meeting at the "Beef and Ale" that night.24 The General
Counsel seeks to bridge this gap by claiming that Re-
spondent had a basis for suspecting Caetano was a union
sympathizer by virtue of her relationship with Ted
Eagles. It is argued that because Eagles, prior to the
layoff, discussed with management his own dissatisfac-
tion and that of other employees Eagles would necessar-
ily have been associated with the organization effort.
From this it is asserted that because Eagles was dating
Caetano Respondent would assume that she too was in-
volved. In my opinion this pyramiding of inferences fur-
nishes too slender a reed to form the predicate for a find-
ing of discriminatory selection. Persuasive evidence of
disparate treatment is lacking, and in the circumstances,
on the credible evidence, and considering Caetano's in-
disputable violation of her warning, the record does not
warrant a finding that Respondent violated Section
8(a)(3) and (1) in designating Caetano for layoff.
3. Production control
Gloria Murray was hired on August 8, 1978. Of the
five named discriminatees, Murray was the only one em-
ployed by the Respondent as of the date of the hear-
ing."5 Murray, on April 20, returned from lunch late and
left work early, repairing to the "Beef and Ale" where
she signed an authorization card during the meeting with
Vandetti.
Respondent contends that Murray was selected for
layoff since she was the only employee in her depart-
ment assigned to the second shift. At the time, Murray
served in a position she had occupied only 6 weeks. Her
training in that position had not been completed. Her de-
"2 The only other employees in the platemaking department on the
second shift were Kenneth Kerner, a long-term employee and the group
leader, and a "casual" or "as needed" employee, Donna Bauer.
2a See Resp. Exh 6.
24 Caetano, like essentially all the employee witnesses offered on
behalf of the complaint, impressed me as untrustworthy. I discredit her
testimony that at the time of the layoff and during periods prior thereto
she was not engaged primarily in the performance of the type patent
work involved in the governmental cutback.
25 Murray applied for a job after seeing a newspaper advertisement,
and in consequence was offered employment, which she accepted, im an-
other division of the Company.
partment on the second shift was the first to receive a
low volume of work, 2 6 enabling day-shift personnel to
adequately handle the work of the second shift.
In contending that Murray was discriminatorily select-
ed, counsel for the General Counsel relies on the fact
that she was a good employee, 2 7 who, though black,
was laid off in the face of Respondent's indication that
minorities were to be given consideration in the selection
process. In addition, the General Counsel points to Beth
Canfield, a first-shift employee assigned to the produc-
tion control department, who, though junior to Murray
in terms of length of service, was retained. In finding
that the General Counsel has not established anything
untoward in Respondent's election to retain Canfield
over Murray, it is noted that Tyson credibly testified
that Murray was afforded this position on the second
shift at her request based on personal problems which re-
quired her to work those hours.28
Having concluded that Respondent's decision to prefer
second-shift personnel in effecting the layoff was based
on legitimate business considerations, and having cred-
ited Respondent's testimony that Murray's work had
readily been absorbed by the first shift, considering the
General Counsel's failure to establish through credible
evidence that the layoff of Murray was based on dispar-
ate considerations, 2 9 I find that Respondent did not vio-
late Section 8(a)(3) and (1) by laying off Murray on
April 25.
4. The printing department
Respondent's formula for effecting the layoff called for
elimination of a single employee on the second shift from
the printing department. According to Respondent, this
requirement was filled when William T. Eagles resigned.
Eagles was a group leader in the press area on the
second shift and a relatively long-term employee, having
been initially hired in August 1977.
On April 2, Eagles was formally reprimanded and
given a 30-day warning for having left work without no-
tifying his supervisor.a ° Upon issuance of that warning
'l Based on the testimony of Tyson. Murray confirmed that, when she
reported for work at 4:30 on April 25. the work that she usually per-
formed was unavailable
27 See (i.C. Exh. 19(a)
24 Murray's apparent denial in this respect was less than forthright. If
not contradictory, it was confused and hedged to the point of persuading
as to the accuracy of Tyson's claim that Murray prevailed upon the
Company to obtain the exclusive second-shift assignment only a few
months before the layoff My mistrust of Murray also leads to a rejection
of her testimony that on April 25 she had a conversation with employees
concerning their speculation as to who would be laid off, and in the
course thereof Canfield indicated that she would volunteer for layoff
29 I have taken account of the fact that Canfield subsequently volun-
tecred for layoff and that a termination record dated May 11, 1975,
downgraded her as "below average" in terms of the quantity of work
performed and attendance. However, the rating of Canfield, apparent
from C;.C Exh 21, might well have been attributable to a fall off in Can-
field's performance during a period after the layoff, as Respondent's testi-
mony indicates. Furthermore, that document shows that Canfield occu-
pied the position of "paste-up artist" while the position held by Murray
at the time of her layoff was described on G.C. Exh. 19(b) as "produc-
lion control." Accordingly, I am unwilling to accept the argument of
counsel for the General Counsel that because both earned the same rate
they, perforce, had to have occupied the same job. From the record this
does not appear to have been the case.
:"' Sce (i C Exh. 16
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tyson inquired of Eagles as to why he had left work
early, and Eagles indicated that press and camera person-
nel were having problems with the second-shift supervi-
sor, Peggy Bernard. Also prior to the layoff, Eagles re-
quested permission of Tyson to take an extended lunch
period on April 20 to celebrate a birthday. Tyson denied
the request, but Eagles, with others, nonetheless did not
return from lunch on time that evening. Eagles claimed
that he left work prior to the expiration of the shift that
evening because he was ill, but like the others he too
went to the "Beef and Ale.""3
Eagles remained at the "Beef and Ale" through the
appearance of Vandetti and the discussion of union mat-
ters, and signed a union card. He claimed to have been
among the last to leave.
Eagles testified that on Monday, April 23, Tyson
called him to the office and inquired as to Eagles' behav-
ior on Friday evening. Eagles explained that he left early
because he was not feeling well whereupon Tyson in-
quired as to whether it was true that Eagles had taken
others with him when he left. This was denied by
Eagles, who stated that the others walked out spontane-
ously and that he had no control over them. The conver-
sation then shifted to a discussion of conditions in the
shop. Eagles reported again to Tyson that employees in
the press department were dissatisfied with Peggy Ber-
nard and reminded Tyson that, though, Eagles had been
assured that arrangements would be made to resolve the
problem, nothing had happened. Tyson persisted in the
accusation that Eagles precipitated a walkout on April
20 and told him that for this reason he had "no respect
for him anymore."3 2 There is no indication that the
Union was mentioned in that conversation.
33
The General Counsel contends that Respondent,
having knowledge prior to April 25 that union activity
was in progress, would naturally assume that Eagles was
a part of that effort in view of his past communications
to Tyson of employee discontent, and his extended
lunchbreak and his early departure from work on April
20. The inference sought by the General Counsel in this
regard is enforced somewhat by Eagles' uncontradicted
testimony that Tyson repeatedly accused Eagles of
having inspired a walk out on April 20.
Nonetheless, the dispositive issue is whether Eagles
quit or was involuntarily laid off. Thus, following notifi-
cation of employees that a layoff would be required, Re-
spondent, also on the evening of April 25, individually
31 Eagles explained that employee Steve Gallagher had not returned
from lunch that day and that he elected, though not feeling well, to go
by the "Beef and Ale" to see if Gallagher was still there and what his
problem was.
S2 Tyson testified that Caetano and Eagles were written up as a result
of their conduct on April 20 in this regard but Respondent was unable to
produce corroborative documentation. I find that Tyson was mistaken in
this regard.
S3 In addition to his attendance at the union meeting, and his expres-
sions to Tyson of discontent with Bernard, Eagles claimed to have dis-
tributed authorization cards on the morning of April 25 to employees
Requio and Dan Jackson. I have considerable reservation as to the truth-
fulness of this assertion. As heretofore indicated, both Requio and Jack-
son were present at the April 20 meeting Although it is possible that
both could have left prior to Vandetti's distribution of authorization
cards, I am not convinced that this was the case Murray testified that
she was certain that Requio had signed a card at the meeting.
summoned those selected to management offices where
they were informed of their termination. In this process,
Caetano, Eagles' girlfriend, was notified of her layoff
prior to any adverse action taken against Eagles.
Eagles testified that after the group meeting in which
employees were told of the layoff, generally names were
being called over the loudspeaker. Caetano, Leight, and
Shaw had been summoned, and were leaving the prem-
ises. Eagles claimed to be curious as to his own plight,
and therefore went to the office, whereupon he confront-
ed Kircher. Eagles claimed that he asked Kircher if his
name was on the list because if he was he would like to
"take a trip and go down to Atlantic City." Eagles fur-
ther testifed that Kircher claimed to have been unaware,
and referred Eagles to Tyson. Later, according to
Eagles, Tyson entered the office, whereupon Kircher
asked Tyson if Eagles was on the list. Tyson shook his
head and said, "Yes." Kircher then opened his drawer,
and gave Eagles his already prepared termination papers,
requesting Eagles to sign.
On the other hand, Kircher and Tyson testified that
Dan Jackson had been designated for layoff from the
press department. Both claimed that Jackson was not laid
off because Eagles volunteered. In this connection it is
noted that an employee in the press department, Francis
G. Ragg, testified that Eagles, who worked adjacent to
him, questioned him twice on April 25 as to who would
be laid off. In the second conversation, Eagles is alleged
to have said, "Well, I'm going in and asking for a volun-
tary layoff."3 4 Consistent therewith Kircher, with cor-
roboration from Tyson, testified that Eagles approached
him that evening, stating; "[l]et's get this thing over
with...." Kircher asked Eagles if he was sure, and
Eagles indicated he was and that "this is what I want."
These remarks by Eagles were taken as a request for vol-
untary layoff. Eagles was then presented, and apparently
signed, termination forms that had been previously pre-
pared.3 s
Crediting Respondent's testimony, I find that Eagles
volunteered for layoff and on that limited basis shall dis-
miss the 8(a)(3) and (1) allegations in his case.
CONCILUSIONS or LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the
Act by discriminatorily selecting Bryant Leight for
34 Ragg was obviously confused as to the timing of the conversations
in relation to the layoff. but said discrepancy when his overall testimony
is considered was not regarded as critical.
35 Kircher testified that, though Jackson was selected for layoff, termi-
nation papers had been prepared on Eagles, as well, because Kircher had
been given orders to reduce the work force by a certain number of jobs
tha' day. Kircher claimed that, had Jackson been absent from work on
April 25, he would have been retained, and Eagles would have been
eliminated. lie testified that this measure was also taken in the case of
Vicky I.atta who would have been laid off had Isabel Caetano been
absent that day. Although this procedure seemed a bit specious, on bal-
ance I preferred the testimony of Kircher and Tyson, with support from
Ragg, that Eagles did in fact quit
1118
INTERNATIONAL COMPUTAPRINT CORP.
layoff on April 25, 1979, because he engaged in activity
on behalf of the Union.
4. The aforesaid unfair labor practice is an unfair labor
practice having an effect upon commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that Re-
spondent be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated the Act by
discriminatorily selecting Bryant Leight for layoff, it
shall be recommended that Respondent offer him imme-
diate and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money
equal to that which he normally would have earned
from April 25, 1979, to the date of a bona fide offer of
reinstatement, less net interim earnings during such
period. Backpay shall be computed on a quarterly basis
as prescribed in F: U: Woolworth Company, 90 NL RB
289 (1950), with interest thereon to be computed in ac-
cordance with Florida Steel Corporation, 231 NLRB 651
(1977).36
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER3 7
The Respondent, International Computaprint Corp.,
Fort Washington, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall:
36 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
a1 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National L.abor 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 swaived for all purposes
1. Cease and desist from:
(a) Selecting for layoff or otherwise discriminating
against employees in regard to their hire, tenure, or other
terms and conditions of employment in order to discour-
age them from engaging in union activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Bryant Leight immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority and other rights and privileges previously
enjoyed, and make him whole for any loss of earnings he
may have suffered by reason of the unlawful discrimina-
tion against him 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, time-
cards, 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 place of business in Fort Washington,
Pennsylvania, copies of the attached notice marked "Ap-
pendix. " a3 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly
signed by Respondent's representative, shall be posted
immediately upon receipt thereof and be maintained by it
for 60 days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, covered, or de-
faced, by any other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
I-r IS FURTIiHER ORDERED that, except as herein specifi-
cally found, the allegations of the complaint are hereby
dismissed.
am In the event that this 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 Pur-
suant To a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1119