Kaufman DeDell Printing, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1980

251 N.L.R.B. 78 (N.L.R.B. 1980)

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaufman DeDell Printing, Inc. and Syracuse Print-
ing and Graphic Communications Union, Local
66. Case 3-CA-8574
August 13, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On October 19, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in
this proceeding. Thereafter, Respondent and Gen-
eral Cousel filed exceptions and supporting briefs.
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 of the Administrative Law
Judge, only to the extent consistent herewith.
1. The Administrative Law Judge found, and we
agree for the reasons stated by him, that Respond-
ent discharged employee David Barnello for union
activities and for filing charges with the Board in
violation of Section 8(a)(3) and (4) of the Act.2 We
also agree that Respondent violated Section 8(a)(1)
of the Act when Respondent Vice President Gary
DeDell threatened to inflict physical injury upon
Barnello because Barnello filed a charge with the
National Labor Relations Board and called the
State Department of Human Rights in response to
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established polics not to
overrule an administrative law judge's resolutions with respect to credi-
bilily unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Sandard Dry Wall Prodwit,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 3 2 (3d Cir. 1951) We hase
carefully examined the record and find no basis for reversing his findings.
2 On November 8, 1979, Respondent filed a notice of motion for re-
opening of the record alleging that it had obtained new previously lln-
available evidence. Specifically, Respondent alleges that (I) Leonard Py-
zynski, who was Respondent's "union foreman" and whose whereabouts
were previously unknown, had been located and was capable of testifying
that he, and not Mary DeDell, discharged Barnellol and (2) Pyzynski's
testimony would prove that Barnello was not discharged because of his
union activity. Assuming, for the purposes of ruling on Respondent's
motion, that the evidence Respondent now seeks to adduce was presious-
ly unavailable, we note that at the hearing Mary DeDell testified that Py-
zynski threatened to terminate Barnello but did not assert that Pyyrnski
was responsible for Barnello's firing and that Respondent did not allege
that Pyzynski's testimony was crucial to its case or request a continuance
in order to produce him as a witness. Inasmuch as the Administrative
Law Judge not only credited Barnello's version of what occurred at the
time he was fired but found that Mary DeDell did not specifically con-
tradict Barnello's testimony in this regard and as Respondent asserts only
in conclusionary terms what it would attempt to establish through P-
zynski's testimony, we conclude that Respondent's motion is without
merit and it is, accordingly, denied.
251 NLRB No. 2
Respondent's refusal to make him an apprentice
printer and pay him the contract wage rate.3
2. The complaint also alleges that Respondent
violated Section 8(a)(1) of the Act by (1) interro-
gating David Barnello about his union activities;
(2) threatening Barnello with loss of employment if
he joined the Charging Party, herein called the
Union, or sought to be represented by it; (3) threat-
ening to move its equipment because of employees'
membership in the Union; and (4) granting Barnello
a wage increase to induce Barnello to refrain from
pursuing union representation. The Administrative
Law Judge failed to make any findings with re-
spect to these allegations.
As to (1), Barnello testified that in May Gary
DeDell approached him in the plant and asked,
"Why did you join the Union?" Barnello further
testified that he replied that he had joined in order
to better himself in the field, to which Gary
DeDell did not reply. Barnello also testified that at
a later meeting DeDell again asked in a loud voice
why had he joined the Union and accused him of
joining for the hospital benefits. Gary DeDell did
not testify at the hearing herein. The General
Counsel claims, and we find, that an adverse infer-
ence is warranted by Gary DeDell's failure, with-
out explanation, to testify. Joseph Horne Co., 186
NLRB 754, 759 (1970). Furthermore, Barnello's
testimony is uncontroverted in the record. Thus,
based on that testimony, we find that Respondent
interrogated Barnello in violation of Section 8(a)(1)
of the Act.
As to (2), Barnello testified that also in May
Gary DeDell said to him, "Either take the Union
or us" and "The Union cannot find you any jobs in
Syracuse." The clear implication of these state-
ments was that Barnello would be discharged if he
persisted in his attempt to join the Union. Inas-
much as Gary DeDell did not testify, Barnello's
testimony on this issue also stands uncontroverted
on the record. Based on that testimony we find
that Respondent violated Section 8(a)(1) of the Act
by coercively threatening Barnello with reprisal for
his union activities.
:' Ihe Administratile l.a Judge found that Gary DeDell threatened
Barncllo with physical injury if he did not discontinue his union activi-
ties Inasmluchl as DeDell. in making the threat, eplicitly referred to the
National Labor Relations Board and he State Department of Human
Rights, we finld that Barnello was Ii fact threatened because he filed a
charge with the National Labor Relations Board and called he Statle De-
partmeill of Human Rights Nevertheless. it is clear hat Barniell's conri
duct constituted protected concilerted activity and therefore the hreats of
harm fr engaging il such acil.ity vslated Sec 8a){l) of the Act
Member Pcello finds it unnecessary to decide whether Itarncllo's
filing f a charge with the Stlte l)epartntil of Human Rights consiltut-
ed protected, concerted actisil iasmuch as l)el)ell's threateing re-
marks rcferring t his filing a charge with the National l.abor Relatiotns
Hoard clearl 5 iolates Sec 8(a)( 1I of the Act
KAUFMAN DEDELL PRINTING, INC. 79
As to (3), Union Secretary-Treasurer Frank Gra-
bowski testified without contradiction that Gary
DeDell told him that "if it was necessary for ev-
eryone to join the Union he would move the ma-
chinery to another place or move it out of the
building." We find that this threat to move Re-
spondent's operation, which is uncontroverted on
the record, violated Section 8(a)(1) of the Act.
Finally, with respect to (4), Barnello testified
that in May after he had "joined" the Union he
was given a 25-cent-per-hour raise. He testified fur-
ther that he was given another 25-cent-per-hour
raise in June and that on his pay envelope was
written, "Don't tell anybody about this raise in
pay."4 Barnello then stated that in July when Mary
DeDell told him that he was discharged she also
said, "I thought that raise in pay would stop you
from any more Union nonsense." At the hearing,
Mary DeDell did not deny Barnello's testimony
and it was not otherwise contradicted. Her failure
to disavow Barnello's statement certainly adds cre-
dence to his testimony. Locke Insulators, Inc., 218
NLRB 653, 656 (1975). Therefore, we find that Re-
spondent gave Barnello the June wage increase as
an inducement to him to refrain from union activi-
ties and thereby violated Section 8(a)(1) of the
Act. 5
3. The Administrative Law Judge concluded,
inter alia, that the refusal of Respondent to pay em-
ployees John Cavanaugh, Harold Schmidt, and
David Barnello the same wages and benefits as
those employees who were members of the Union
did not violate Section 8(a)(l) and (3) of the Act,
as alleged in the complaint. In reaching this con-
clusion, the Administrative Law Judge found that,
although these employees performed unit work and
were covered by Respondent's collective-bargain-
ing agreement with the Union, Respondent refused
to pay them the contract rates because it had deter-
mined that they did not qualify as journeymen or
apprentice printers rather than because they were
not members of the Union. The Administrative
Law Judge concluded that while Respondent's fail-
ure to pay the contract rate to the three nonunion
employees was a breach of contract it was not sta-
tutorily proscribed. We disagree with the Adminis-
trative Law Judge's conclusion in this regard.
The relevant facts, as found by the Administra-
tive Law Judge, are as follows:
The Union has represented certain of Respond-
ent's employees for a number of years under
successive collective-bargaining agreements.
4 The Administrative Law Judge discussed this latter raise n his Deci-
sion but did not make any findings as to whether it was unlawful.
5 The General Counsel did not allege that the wage increase granted
to Barnello in May was unlawful and we therefore make no findings re-
garding it.
During this first half of 1978,6 Respondent em-
ployed six men who worked on printing presses
and were covered by the provisions of the then
current union contract. 7 Of these six, four were
called journeymen and two apprentices; all of them
were paid the wages required by the contract and
they all received the fringe benefits established in
that agreement.
In January Respondent shifted employee David
Barnello, who began work at Respondent in No-
vember 1977, from work admittedly outside the
ambit of the contract to unit work. Also, in the be-
ginning of 1978, Respondent hired Harold Schmidt
and John Cavanaugh to do unit work. These three
men were paid throughout their subsequent em-
ployment at a much lower hourly wage than the
collective-bargaining agreement mandated for unit
employees.
The contract contained a union-security clause
which required current union members to retain
their membership and new employees to join the
Union after 30 days of employment. However,
Schmidt and Cavanaugh never applied for union
membership and were not advised of their obliga-
tions in this regard. These three employees were
the only employees in the bargaining unit who
were not members of the Union; they were also the
only three employees who did not receive the
wages and benefits provided for in the contract. In
April, Barnello applied for membership in the
Union and was accepted. The Union thereafter
asked Respondent to recognize Barnello's status as
an apprentice printer and pay him the contract rate
but Respondent refused on the ground that Bar-
nello did not possess sufficient skill to become an
apprentice. Barnello has not at any time received
the contract rate or been made an apprentice.
The General Counsel contends that Respondent
violated Section 8(a)(1) and (3) of the Act by
paying Schmidt, Cavanaugh, and Barnello at a rate
significantly below the contract rate because they
were not members of the Union. We agree.
In this case, the record establishes, the Adminis-
trative Law Judge found, and we agree that Ca-
vanaugh, Schmidt, and Barnello were in the bar-
gaining unit, performed unit work, and were cov-
ered by Respondent's collective-bargaining agree-
ment with the Union. However, Respondent paid
the contract rate to all union employees in the unit
but paid significantly less to the three nonunion
employees in the unit.
There can no doubt that Respondent labored
under the misapprehension that only union mem-
6 All dates hereinafter are 1978 unless otherwise indicated.
I The agreement in existence at that time was effective front February
15, 1977. o Fehruary 1980
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers are entitled to be paid the contract rate and
was accordingly adamantly opposed to any attempt
by these three employees to join the Union. Re-
spondent's open hostility to union representation
for these employees is demonstrated by its numer-
ous and serious unfair labor practices which it un-
dertook as soon as it learned that one of them, Bar-
nello, had sought aid from the Union. Thus, Re-
spondent interrogated and threatened Barnello
when he expressed interest in joining the Union
and threatened to move the plant "if it was neces-
sary for everyone to join the Union" (clearly indi-
cating a cavalier approach to the contract's union-
security clause). When this conduct proved unsuc-
cessful in persuading Barnello to abandon his ef-
forts to obtain representation by the Union, Re-
spondent gave Barnello two pay raises. However,
Barnello filed charges with the National Labor Re-
lations Board, whereupon Respondent threatened
him with physical injury and, finally, discharged
him.
It is clear from the foregoing that Respondent
believed that only union members were entitled to
be paid the contractual wage. Consequently, Re-
spondent was determined not to pay that rate to
employees who were not members of the Union,
while at the same time denying those employees
the opportunity to join the Union and thus become
eligible, in Respondent's view, for the higher wage
rate. Under these circumstances, we find that Re-
spondent, by refusing to pay Cavanaugh, Schmidt,
and Barnello the contractual wage to which they
were entitled by virtue of their membership in the
bargaining unit covered by the collective-bargain-
ing agreement, discriminated against them in viola-
tion of Section 8(a)(3) and (1) of the Act. 8
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Having found that Respondent violated Section
8(a)(1) and (3) of the Act by failing to pay Harold
Schmidt, John Cavanaugh, and David Barnello the
wage rate provided for in the collective-bargaining
agreement and by denying them the fringe benefits
provided for in said contract, we shall order that
Respondent make whole Harold Schmidt, John Ca-
vanaugh, and David Barnello for any loss of pay or
other benefits they may have suffered by reason of
Respondent's discrimination against them. Said
8 Rockaway Vews Supply Co., Inc., 94 NLRB 1056 (1951); Meycr Bros.
of Missouri, Inc., 151 NLRB 889, 901 (1965): and'arranganserr Restaurant
Corp., 243 NLRB No. 30 (1979).
backpay (with respect to Barnello, up to the date
of his discharge) shall be computed in the manner
established by the Board in Ogle Protection Service,
Inc., 183 NLRB 682 (1970). The interest on back-
pay shall be computed in the manner set forth in
Florida Steel Corporation, 231 NLRB 651 (1977). 9
Having found that Respondent violated Section
8(a)(1), (3), and (4) by discharging David Barnello,
we shall order that he be offered immediate and
full reinstatement to his former position or, if such
position no longer exists, to a substantially equiva-
lent 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 discharge.
Said backpay shall be computed on a quarterly
basis as established by the Board in F W. Wool-
worth Company, 90 NLRB 289 (1950). The interest
on backpay shall be computed in the manner set
forth in Florida Steel Corporation, supra.
Upon the foregoing findings of fact and upon the
entire record in the case, we make the following:
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 and
hereby orders that the Respondent, Kaufman
DeDell Printing, Inc., Syracuse, New York, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating in regard to terms and condi-
tions of employment of employees by failing to
grant them the wages and benefits provided for in
the collective-bargaining agreement with Syracuse
Printing and Graphic Communications Union,
Local 66, because of the employees' membership or
lack of membership in that labor organization.
(b) Discharging or in any other manner discrimi-
nating against employees because they engage in
union activities or file charges with the National
Labor Relations Board.
(c) Threatening to inflict physical injury on em-
ployees because they filed a charge with the Na-
tional Labor Relations Board and called the State
Department of Human Rights.
(d) Interrogating employees about their union ac-
tivities.
(e) Threatening employees with loss of employ-
ment if they joined the Union or sought to be rep-
resented by it.
~ Sc, generally, Imi Plumbing &d eating Company, 138 NIRB 716
(1962)
Am See fl 9.
KAUFMAN DEDELL PRINTING. INC. 81
(f) Threatening to move its plant because of em-
ployee membership in the Union.
(g) Granting employees a wage increase to
induce them to refrain from union activities.
(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collec-
tively through representatives of their own choos-
ing, 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.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Offer David Barnello immediate and full rein-
statement to his former position or, if such position
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed.
(b) Make Harold Schmidt, John Cavanaugh, and
David Barnello whole for any loss of pay or any
benefits they may have suffered by reason of Re-
spondent's discrimination against them, in the
manner prescribed in "The Remedy" section
herein.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, 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.
(d) Post at its place of business in Syracuse, New
York, copies of the attached notice marked "Ap-
pendix." i Copies of said notice, on forms pro-
vided by the Regional Director for Region 3, after
being duly signed by its representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
i ' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu
ant 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
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.
WE WILL NOT discriminate against our em-
ployees in regard to terms and conditions of
employment by failing to grant them the
wages and benefits provided for in the collec-
tive-bargaining agreement with Syracuse Print-
ing and Graphic Communications Union,
Local 66, because of the employees' member-
ship or lack of membership in that labor orga-
nization.
WE WILL NOT discharge our employees for
engaging in union activities or for filing
charges with the National Labor Relations
Board.
WE WILL NOT threaten to inflict physical
injury on our employees because they filed a
charge with the National Labor Relations
Board and/or called the State Department of
Human Rights.
WE WILL NOT interrogate our employees
about their union activities.
WE WILL NOT threaten our employees with
loss of employment because they join the
Union or seek to be represented by it.
WE WILL NOT threaten to move our plant
because of employee membership in Syracuse
Printing and Graphic Communications Union,
Local 66, or any other labor organization.
WE WILL NOT grant our employees a wage
increase to induce them to refrain from union
activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights to self-organi-
zation, to join Syracuse Printing and Graphic
Communications Union, Local 66, or any
other labor organization, to bargain collective-
ly through representatives of their own choos-
ing, 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.
WE WILL offer David Barnello immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent position, without prejudice to his
seniority or other rights and privileges previ-
ously enjoyed.
WE WILL make John Cavanaugh, Harold
Schmidt, and David Barnello whole for any
loss of pay they may have suffered as a result
of the discrimination against them, with inter-
est.
KAUFMAN DEDELL PRINTING, INC.
DECISION
STATEMENT OF TIHE CASE
THOMAS A. Ricci, Administrative Law Judge: A hear-
ing in this proceeding was held at Syracuse, New York,
on August 27, and 28, 1979, on complaint of the General
Counsel against Kaufman DeDell Printing, Inc., herein
called the Respondent or the Company. The complaint
issued on December 22, 1978, based on a charge filed on
June 28, 1978, by Syracuse Printing and Graphic Com-
munications Union, Local 66, herein called the Union.
The issues are whether the Respondent violated Section
8(a)(1), (3), and (4) of the National Labor Relations Act,
herein called the Act, by discriminating against employ-
ees in their conditions of employment. Briefs were filed
by the General Counsel and the Respondent.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Kaufman DeDell Printing, Inc., is engaged in the busi-
ness of providing and performing commercial job print-
ing, including books, business stationery, business forms
and services, and related services, at its place of business
in the city of Syracuse, New York. During the 12-month
period preceding issuance of the complaint the Respond-
ent manufactured, sold, and distributed from this one lo-
cation products valued in excess of $50,000, of which
products valued in excess of $50,000 were shipped di-
rectly to States other than New York. I find that the Re-
spondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
The basic theory of illegality, both as alleged in the
complaint and as articulated by the General Counsel at
the hearing and in his post-hearing brief, can only be
evaluated coherently if at first the basic facts are set out
clearly. The Respondent runs what its president called a
"commercial job shop printing business."l A group of its
employees have for many years been represented by the
Charging Party herein, Union Local 66, under successive
written collective-bargaining agreements. Six men, all of
whom worked on printing presses of one kind or an-
other, were at work during the first half of 1978 and
covered by the provisions of the current union contract.
Of these six, four were called journeymen and two ap-
prentices; all of them were paid wages as called for in
the contract and they all received the fringe benefits set
out in that agreement.
In the beginning of 1978 the Respondent hired two
men-Harold Schmidt and John Cavanaugh. Also in
January 1978 it shifted another employee-David Bar-
nello-from one kind of work, admittedly outside the
ambit of the Union's contract, to other duties. These
three men were paid-throughout their subsequent em-
ployment-at a much lower hourly wage than the col-
lective-bargaining agreement mandated for whatever em-
ployees might be covered by the language of the agree-
ment. Barnello was discharged on July 5, 1978. Defer-
ring for the moment the arguments that are advanced,
and the conflicting factual contentions asserted, two
more facts can be stated clearly. The General Counsel
asserts that the Respondent committed two unfair labor
practices: (1) The discharge of Barnello in July, and (2)
the payment for work performed at a rate below the
contract terms to Schmidt, Cavanaugh, and Barnello
from January 1978 until July 1978. Beyond this there is
some confusion in the pleadings and in the transcript.
B. Disparate Treatment of Employees Doing Work
Covered by a Single Collective-Bargaining Agreement
Much of the ambiguous testimony given at the hearing
stemmed from the wording of the union contract in this
case. There is no bargaining unit description, as collec-
tive-bargaining agreements under this statute are sup-
posed to have. Indeed there is no clear description of
jobs, so that the incumbents at one time or another could
understandably be identified. Instead, what is said to
spell out the so-called unit employee coverage, reads as
follows:
It is understood that this contract applies to the
Union pressrooms operated by the Employer, and
that the jurisdiction of this contract extends over all
printing presses employed, in said pressrooms, in-
cluding, but not limited to gravure, offset and letter-
press printing presses and associated devices (all
work in connection with offset and dycril platemak-
ing, including camera operation, all darkroom work,
stripping, layout, opaquing and platemaking).
The contract also contains the usual union-security
clauses-current union members to retain their member-
ship and new employees obligated to become members
after 30 days of employment.
At the time of the hearing the business was shut down because of
financial difficulties, but that is a matter that relates to the compliance
stage of the proceeding only.
KAUFMAN DEDEI., PRINTING, INC. 83
Schmidt and Cavanaugh never applied for union mem-
bership and no one on behalf of the Union ever asked
them to, or even approached the Company to say they
should not be permitted to work because their 30 days
were up. Right here the first distracting phrase, appear-
ing in the complaint, emerges. It says: "Since on or
about December 28, 1977, Respondent has paid lower
wages and benefits to nonunion pressmen than to press-
men who are members of and represented by the
Union." With both Schmidt and Cavanaugh never indi-
cating any desire to join the Union, what has "union" to
do with their pay? Schmidt first came to work on De-
cember 28. Was the Respondent obligated to deal with
him as a union member during the first 30 days? Again:
What did "union" have to do with that man then?
Frank Grabowski, secretary-treasurer of Local 66, as a
witness, again and again spoke of "union work." What is
"union" work? If it means only a "union" man can do
the work covered by the contract, the agreement be-
comes a closed-shop contract, and therefore illegal. Is
that what Grabowski was saying? The confusion goes
on. When a collective-bargaining agreement says it "ap-
plies to the union presses," and that the "jurisdiction" of
the contract extends over "printing presses," one asks
whether it is the presses, the machines themselves, that
are represented. Still from Grabowski's testimony:
Q. Were there a ci ployees, who, as you read
this contract, were covered by the contract, should
have joined, as the contract required, but who, nev-
ertheless, did not become Union members'?
A. Yes.
Q. Can you name those employees?
A. Yes . Harold Schmidt and John Cavan-
augh.
As will appear clearly below, both these men were doing
the kind of work which the contract-comprehensively
read-was intended to cover. And, while Grabowski.
who does not work in this shop, said he never learned
until after the events that Schmidt and Cavanaugh were
so employed, surely the chapel chairman, who was in
fact the union steward in the shop, must have known it.
The presses are all in the same room, and the union
agent worked right there every day. If he did not com-
plain of the two men being paid below the contract rate,
or about their not becoming union members. What be-
comes of the contention that the Company unlawfully
discriminated against them?
C. Breach of Contract as Distinguished From
Discrimination Based on Union Animus
The distracting use of words is best illustrated in the
case of Barnello. The contract then in effect provided
that all employees would be classified as either journey-
men or apprentices; the wages set out for the spring of
1978 called for varying weekly pay depending upon the
different kinds of presses in the shop. According to
which particular machine was involved, the rates varied
between $218 and $284 for a 37-1/2-hour week. Barnello
was being paid $3 per hour. This means that, even if it
be assumed he was doing the lowest skilled work, he was
being underpaid at least by $105.50 per week, for 37-1/2
times $3 equals $112.50. The same formula applies to
Schmidt. who was also receeiviig $3 per hour. Cavan-
augh was being paid $4 per hour; his measure of under-
payment therefore was $78 per 37-1/2-hour week.
Because he was being so underpaid, and because he
also was not receiving the fringe benefits called for in
the contract, in April Barnello applied for membership in
the Union, was accepted, and had the Union formally
ask the Company to recognize his status as an appren-
tice On behalf of the Respondent, Mary DeDell. presi-
dtent, and her son Gary DeDell, vice president, refused
to agree that Barnello acquire apprenticeship standing
under the contract. There were several meetings. on his
question, between union and company represcnllttives.
'Ihe essential burden of the testimony of Grahowski. for
the Union. is that he tried to convince management Bar-
nello was qualified to become an apprentice and that his
capability gave promise of success in the trade Mrs D)e-
Dell's story is that she simply did not believe Barnello
was good enough to become a printer. As a defense \xit-
ness she leaned heavily upon a provision in the contract
which says there could not be more than two apprentices
at a time in this shop anywvay; there were already t5xo.
Nothing could he clearer on this record but that the dis-
agreement between the parties was over the question
whether Barnello had enough skill, as or as IOt per-
sonally qualified for the job he held.
But as they talked at the hearing. the General Coun-
sel's witnesses, both Grabowski and Barnello, kept para-
phrasing the dispute in terms of Barnello's union meni-
bership or nonmenmbership. Grabowski said: "ie [Bar-
nello] was not covered because he was not a member of
the union." It was purely a conclusionary statement in-
tended to spell out an unfair labor practice by the Re-
spondent. 2 If the work Barnello was doing was in fact
covered by the intendment of the contract-however it
reads-membership in the Union had nothing to do with
it at all. Later Grabowski said he reminded the Compa-
ny, in one of the meetings, that "all people working in
the jurisdiction of the contract in the shop had the right
to join the Union." But this is not what the participants
in the joint meetings were talking about. If Barnello had
a right to join the Union because of what ever work he
was doing, why did Grabowski strive, as he admitted he
did, to sell the man's work qualifications to the Compa-
ny? Since when has a man's right to join a union depend-
ed on his relative work skill?
The distortion of the facts continues in the General
Counsel's brief. The Company's first reaction of the sug-
gestion that Barnello rise to apprenticeship status as in
a letter dated May 8. The General Counsel paraphrases
the letter as Mrs. DeDell's "disapproval of Barnello join-
ing the Union." This is not what the letter says. It reads
instead: "We feel that David J. Barnello is not reads for
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84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an apprenticeship into the Union, as he has only worked
on a printing press for the total time of two (2) months."
Following this, at their next meeting on the subject,
Grabowski arrived with three letters of recommenda-
tions each attesting, by an experienced pressman, that
Barnello "was qualified, and should be given an opportu-
nity to serve an apprenticeship . . ." Mrs. DeDell an-
swered she would consider this but had still not made up
her mind as to the man's ability. There is no basis on this
record for the conclusion, set out in the brief, that the
meeting was spent discussing "the Respondent's opposi-
tion to Barnello's joining the Union."
Apart from the issue presented by Barnello's later dis-
charge, I think the real question to be decided in connec-
tion with this first part of the case is whether the work,
which Barnello, Schmidt. and Cavanaugh were doing,
was or was not covered by the collective-bargaining
agreement. At the two meetings with the union agents,
the management people never once defended their refus-
al to grant Barnello apprenticeship status on the ground
he was working outside the coverage of the contract. All
they said was he was not "qualified." At the hearing
Mrs. DeDell at times contended Barnello did not work
on the particular machines listed in the contract. She
called one of the presses a "duplicator," and tried to
liken it to an office xerox machine. She was unconvinc-
ing. In fact, her very letter o' May 8, already quoted, is
the clearest admission he was working on a printing
press. This was the Respondent itself saying the man's
work fell within the substantive coverage of the con-
tract.
As I consider the totality of her testimony, I find it a
fact Barnello, as well as the other two men, were in
truth doing work covered by the contract. What Mrs.
DeDell was really saying was that the particular assign-
ments given Barnello required much less skill than the
work done by the other employees, brought much less
income to the Company, and therefore were not deserv-
ing of the contract pay scale. "The journeymen never
worked on the presses that Barnello worked on." "We
had government contracts and they had to be done
quickly for Rome Air Force Base because they had to be
back in their hands to send out to different parts of the
county to direct the man how to do operations. So that
is why we had these quicky presses that did not need
quality work done." The following question was put to
Mrs. DeDell by company counsel:
Q. You testified that you made a statement that
he wasn't ready to join the Union.
A. Yes....
Q. Why did you say that?
A. Well, there was too much waste in the work
that he did, which affects production, plus it is
costly.
And finally, asked what was the difference between the
work Barnello did and what the regular journeymen did,
Mrs. DeDell said: "It didn't have to be quality work. It
didn't take long to make ready. We called it schlock
work; dead time. That was what Schmidt, Cavanaugh
and Barnello did."3
Having agreed in writing with the Union to pay an es-
tablished wage scale to employees doing work covered
by the contract, it was too late in the spring of 1978 for
this Respondent to pick and choose which among its
current complement deserved the full scale and which
deserved only a lesser amount. Barnello and the other
two men as well were doing contract work, however,
much it may have fallen in the schlock class. The Re-
spondent breached the contract when it paid them less.
But a contract violation by employers is not an unfair
labor practice under their statute. Restated in terms of
dispassionate reality: The reason why the DeDells paid
Barnello $3 instead of over $5 an hour was not because
he was " not a union member" (the complaint language),
but because they thought him too poorly qualified for
the higher rate. Such reasons, or such motivations for
discrimination, have nothing to do with statute. For re-
dress against such treatment employees go to arbitration,
if the contract so provides, or they go to the local civil
courts. I find, on the total record, that the probative evi-
dence does not support the complaint allegation that the
Respondent underpaid these three men because they
were not members of the Union. I shall therefore recom-
mend dismissal of this part of the complaint.
D. The Discharge of Barnello
In view of what has thus far been stated, the first im-
portant fact to be noted about Barnello's discharge is
that the Respondent did not dismiss him because he
wanted more money. No such defense is advanced. In
fact, at the hearing the Respondent's sole witness articu-
lated no reason at all for the discharge. In his brief,
counsel for the Respondent says it was because he dis-
obeyed an order to work on Monday, July 3, before the
July 4 holiday.
The second and last meeting between union and com-
pany agents over Barnello's attempt to be called an ap-
prentice took place on May 18. The Company held fast
to its refusal. On June 28 the Union filed the charge
against the Respondent, accusing it of unfair labor prac-
tices in its discrimination against Barnello. Grabowski
also advised Barnello to call a man named Dave Quintry,
of the State Department of Human Rights, to seek help
there on the same problem. Barnello did, during the
morning of June 30, and with Quintry not in his office,
left word for Quintry to call him, Barnello, at the Re-
spondent's shop. An hour and a half later, while he was
at work, Barnello was approached by both Mrs. DeDell
and her son Gary. Mrs. DeDell asked who was Quintry,
and her son answered: "[lit was a guy from the Human
Rights." Gary then said, according to Barnello's uncon-
tradicted testimony: "If you give my mother any more
trouble with the National Labor Relations Board or
Human Rights, I will kill you."
Also during June, Barnello was given a 25-cent-per-
hour raise. He first learned of the increase when he re-
:' Ihi Joys of Yiddish, by Leo Rosten, the word "schlock" is defined as
"A shoddy, cheaply made article "
KAUFMAN DEDELL PRINTING, INC.
ceived his weekly pay; on the envelope was written a
note reading: "Don't tell anybody about this raise in
pay."
On Monday, July 3, none of the printing press employ-
ees who, according to the Respondent, were in fact cov-
ered by the contract, were scheduled to work. Barnello
too did not work that day. When he arrived on Wednes-
day, July 5, his card was missing from the rack and he
was fired. He testified that when telling him he was
through Mrs. DeDell said: "I thought that raise in pay
would stop you from any more Union nonsense." He
was given no other reason for the discharge.
Analysis and Conclusion
When Barnello turned to the Union for help to obtain
the higher pay he thought he was entitled to be paid, he
was for the least engaged in collective and union activi-
ty. The pressroom complement of six men was a union-
ized group, and the group was certainly engaged in that
joint action which the statute was intended to protect. It
is one thing to pay a man less than the agreement calls
for, but it is something else again to punish a man for
trying to better his conditions of employment via the
fundamentally protected collective activity route. Absent
a convincing, affirmative story proving some unrelated
and lawful reason for the discharge, the testimony set
out above establishes without question that the underly-
ing motive in this case wa., retaliation in resentment
against the man's joining his fellow employees within the
Union. While Mrs. DeDell said, at the hearing, that she
never threatened to fire Barnello for any union activity,
she did not deny having said, at the critical discharge
moment, that she resented the printer's union activity as
such. And the threat by the company vice president to
hurt Barnello in some fashion because he had filed a
Labor Board charge, as well as gone to the Human
Rights office, is absolutely credible. Mrs. DeDell did
recall having asked Barnello that day why had he called
the Human Rights agency.
Against this clear evidence of illegal motive, I find the
Respondent's belatedly asserted defense of just cause un-
convincing. Barnello testified that two or three times, in
the course of his employment, he did refuse to work
overtime. He also said that on one occasion, a Saturday
before the events, Mrs. DeDell told him to come in on
Saturday, and that if he did not he would be discharged.
Barnello did come to work that day. Barnello continued
to testify that, a week before the Fourth of July week-
end, Leonard Pyzynski, the foreman, told him there
would be no work on July 3, Monday, and that he there-
fore made other plans for the following weekend. On
Friday, June 30, still according to Barnello, Pyzynski
asked him to come in on Monday, and when he said he
had made other plans, the foreman answered. "You
really should work, but if you can't, Harold Smith would
come in." I believe all this about Pyzynski, because he
did not testify at all.
When I add to the foregoing the fact none of the
"union" men in the pressroom worked that day, and the
fact that Barnello's work, like theirs, was also printing
press work, I find the assertion, now advanced, that Mrs.
DeDell's real reason for the discharge was the refusal to
work that day, insufficient as a defense to the prima Jacie
case of illegally discriminatory discharge. I find, on the
total record, that the Respondent discharged Barnello on
July 5, 1978, in violation of Section 8(a)(1), (3), and (4)
of the Act.4 I also find that by Gary DeDell's threat to
inflict physical injury upon Barnello if he did not discon-
tinue his union activities the Respondent violated section
8(a)(1).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCI USIONS OF LAW
1. By discharging David Barnello for engaging in
union activities, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) and (4) of the Act.
2. By the foregoing conduct and by threatening to in-
flict physical injury upon employees for engaging in
union activities, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
A4 41eluia Cuvhion Co., 221 NLRBH 99 (1975)
85s