MasterType

National Labor Relations Board - Board Decisions

Jul 15, 1992

307 N.L.R.B. 1295 (N.L.R.B. 1992)

1295
307 NLRB No. 198
MASTERTYPE
1 On April 17, 1992, Administrative Law Judge Richard J. Boyce
issued the attached decision. The Respondent filed exceptions and a
supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully reviewed the record and
find no basis for reversing the findings.
1 The charge was filed on August 14, 1989. The complaint issued
on April 29, 1991.
2 Hartmann described the alpha-type equipment as ‘‘a computer
with a video display terminal and a keyboard.’’
3 Kiraly testified that he could not recall Hartmann’s saying that
the ‘‘problem’’ of his availability ‘‘had been solved.’’ I credit Hart-
mann, who was the more convincing on the point.
4 The legality of Respondent’s installing Bergson rather than Hart-
mann as a situation holder is not in issue.
MasterType and Robert J. Hartmann. Case 20–CA–
22808
July 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the question of whether the Respondent with-
held job opportunities and discharged Robert J. Hart-
mann because of his protected grievance activities, in
violation of Section 8(a)(3) and (1) of the Act.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, MasterType, San Fran-
cisco, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Jonathan J. Seagle, Esq., for the General Counsel.
John Cantwell, Esq., of Walnut Creek, California, for the Re-
spondent.
Robert J. Hartmann, of Concord, California, pro se.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. I heard
this matter in San Francisco, California, on February 10,
1992.
The complaint arose from a charge filed by Robert J. Hart-
mann, acting in his individual capacity.1 It alleges that
MasterType (Respondent) violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) by denying em-
ployment opportunities to Hartmann between about February
23 and August 10, 1989, and by discharging him on or about
August 10, 1989.
I. JURISDICTION/LABOR ORGANIZATION
Respondent, a California corporation, is engaged in the
printing business in San Francisco. In 1988, it received
goods and materials worth over $50,000 directly from sup-
pliers outside California and/or from suppliers within the
State who received them from out of State. I find that at rel-
evant times Respondent was an employer engaged in and af-
fecting commerce within Section 2(2), (6), and (7) of the
Act.
The parties have stipulated and I find that Bay Area Typo-
graphical Union Local 21 (the Union) is a labor organization
within Section 2(5) of the Act.
II. THE ALLEGED MISCONDUCT
A. Evidence
Hartmann has been a journeyman typesetter since 1966.
He was employed by Respondent, on a substitute basis, from
March 1987 until discharged on August 10, 1989. All of the
typesetting he did for Respondent was on alpha-type equip-
ment.2 As a substitute, he worked when Respondent’s work-
load so dictated and as a replacement for full-time employees
(situation holders) on vacation or otherwise absent. He was
first in ‘‘priority ranking’’ on the substitute board.
At relevant times, Respondent and the Union were party
to a collective-bargaining agreement. Hartmann was among
those covered by the agreement.
In January 1989, Hartmann told one of Respondent’s two
co-owners, Nino Kiraly, that he wanted to become a situation
holder. Kiraly asked if he would be available day or night,
since he had said in 1987 that he had to be home in the
afternoon when his son, Robby, got home from school. Hart-
mann is a single parent and Robby is retarded. Hartmann re-
plied that that was no longer an issue; that Robby had be-
come ‘‘pretty independent’’ and could ‘‘be by himself any
time of day or night.’’3
On February 3, Respondent hired one Elliot Bergson as a
situation holder. Bergson had worked for Respondent pre-
viously, but had quit about a year before.4
On February 22, having just learned about Bergson’s hire,
Hartmann queried various coworkers whether the job given
Bergson had been ‘‘posted properly,’’ gaining the impression
that it had not. He protested to Kiraly that it was ‘‘unfair,’’
that Kiraly had ‘‘promised [him] the full-time job, and that
‘‘the union contract’’ said he was ‘‘entitled to that job.’’
Kiraly responded, ‘‘Well, you’ll get full-time work anyway
on the sub board, so don’t worry about it.’’
Hartmann spoke with the chapel chairperson, Yvonne
Rose, about the situation later the same day, obtaining a
grievance form. Still on February 22, Kiraly saw the form on
Hartmann’s desk. Kiraly said, according to Hartmann, ‘‘If
you fill that out, don’t come in tomorrow.’’ Kiraly disputed
Hartmann’s version, testifying that he simply asked, ‘‘What
seems to be the problem?’’
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The form is dated May 22. Timecards in evidence reveal that
Hartmann worked on May 22, but not for a number of days before
or after. I deduce, therefore, that he filled out and dated the form
while at work on May 22, and that he directed Rose to file it fol-
lowing Barta’s unsatisfactory response on May 23.
6 Hartmann testified that he thereafter worked only on June 1 and
2. The timecards disclose, however, that he also worked on May 26.
7 Of which more later.
8 Beales, hired in August 1988, ranked below Hartmann on the
substitute board.
9 Respondent had a regular proofreader, Alex Binder. Kiraly testi-
fied that Hartmann nevertheless was called on to proofread ‘‘for a
short while’’ in 1988, but that it did not work out. Asked if the qual-
ity of Hartmann’s proofreading was worse than that of others, Kiraly
testified: ‘‘Yes. It could be. More or less. Some are worse mistakes
than others. But it depended on, on the, on the day.’’ He also testi-
fied, in this context, that ‘‘everybody makes mistakes,’’ and that he
and Barta ‘‘are always on the premises to make sure that the quality
remains in our product.’’
10 The timecards show that Beales had worked on August 9.
Hartmann did not grieve at that time. He explained, ‘‘I fig-
ured Nino would keep his promise . . . that I would be a
full-time employee as a substitute.’’
In mid-March, Hartmann and the chapel chairperson, Rose,
spoke with Kiraly and the other co-owner, Jiri Barta, about
the Bergson matter. Hartmann complained that he was not
getting ‘‘enough hours,’’ that the opening filled by Bergson
‘‘was not properly posted,’’ and that ‘‘it was rightfully [his]
job.’’ Barta responded that were Hartmann to file a griev-
ance, ‘‘we’ll have ’Goldfinger’ all over us’’; and that per-
haps he ‘‘should just fire both’’ Hartmann and Bergson to
eliminate the problem. ‘‘Goldfinger’’ was the Union’s presi-
dent, Morris Goldman.
Following the meeting just described, in an apparent effort
to circumvent the problem, Respondent reclassified Bergson
as a technician rather than an alpha-type operator.
Hartmann finally caused a grievance to be filed on May
23. Kiraly had said he would work ‘‘three solid weeks at the
end of May,’’ he recalled, because three people would be on
vacation; but Barta told him on May 22, after only 1 day,
not to come in on May 23. Hartmann mentioned Kiraly’s as-
surance, and Barta said, ‘‘Don’t come in, call.’’ When Hart-
mann called on May 23, Barta said he was not needed. Hart-
mann thereupon asked Barta to summon the chairperson,
Rose, to the phone, told her the completed form was in his
desk, and asked her to file it.5
Hartmann had written on the grievance form:
Feb. 6, 1989. A situation was filled without apprising
the sub next on the board of an opportunity to claim.
While calling in every day that month I was told there
was not enough work. On Feb. 23 I finally got a day’s
work. I noticed the situation filled on the priority list.
Bergson had been doing my work for 2-1/2 weeks. I
immediately told Nino and the Chairperson. I was
promised a full-time job as a sub by Nino. This has
never materialized.
Hartmann has worked only three shifts—on May 26 and
June 1 and 2—since the grievance was filed.6 He also
worked a few minutes on August 10, in apparent implemen-
tation of the grievance’s settlement, before being dis-
charged.7
Hartmann testified that he called Respondent ‘‘every day’’
after May 22 to ask if he was needed; and that either Kiraly
or Barta generally replied, ‘‘No, there’s not enough work.’’
On July 3, Hartmann and the Union’s president, Goldman,
met with Kiraly and Barta about the grievance. Although the
evidence regarding this meeting is scant, Goldman apparently
said Hartmann had ‘‘a claim’’ on the hours worked by an-
other substitute, Marcia Beales, under the contract;8 and
Kiraly and Barta commented that Hartmann was ‘‘a very bad
proofreader.’’9
In late July, Hartmann composed a 1-page document enti-
tled ‘‘A Brief History of Bob Hartmann at Mastertype,’’
which he circulated among several coworkers. Its purpose, he
testified, was to assist him and the coworkers should they
have to testify concerning his grievance.
On August 2, Hartmann and union officials again met with
Kiraly and Barta, ostensibly resolving the grievance. The res-
olution, in letter-form signed by Kiraly and Goldman, pro-
vided:
The undersigned parties have resolved a grievance sub-
mitted by Robert Hartmann in the following manner:
1. The typesetter situation now being occupied by an
employee with lower priority than Robert Hartmann has
been found to have been improperly posted.
2. Said typesetter situation will be reposted for
claim, effective August 7, 1989.
3. Priority claiming will take place by employees
competent to perform the work.
On August 9, Hartmann reported for work uninvited.
Goldman had advised him to ‘‘go in and claim a situation’’
if he saw someone ‘‘working in [his] spot.’’ ‘‘There was a
lot of work on the desk where the work is handed out,’’
Hartmann testified, but both Kiraly and Barta told him: ‘‘We
don’t need you. Leave immediately.’’ To Hartmann’s rejoin-
der that he saw ‘‘a lot of work,’’ they again directed him to
‘‘leave immediately.’’ He said, ‘‘I’d like to wait for the
chairperson to come’’; and they came back: ‘‘You’re tres-
passing. Leave now.’’
Hartmann did not leave just then, instead declaring that he
was ‘‘documenting everything that [was] said and done,’’
and that he had contacted the Typographical Union, the De-
partment of Fair Employment and Housing, and the National
Labor Relations Board.’’ Kiraly shot back, ‘‘I don’t have
time to document everything.’’ About then, Hartmann’s
‘‘brief history’’ in hand, Barta asked, ‘‘What’s this ’brief
history’ document here?’’ Hartmann said he would ‘‘be
happy to talk . . . about it’’ if Barta wished or if he thought
‘‘there’s anything that’s untrue.’’ Barta rejoined: ‘‘I don’t
have time. I don’t want to talk to you about it.’’ Both Kiraly
and Barta seemed ‘‘very angry,’’ according to Hartmann.
Hartmann reported again the next day, August 10, pursu-
ant to an understanding between Respondent and the Union.
He told Barta, first thing, that he was ‘‘filing a grievance to
claim [Beales’] day’s pay yesterday.’’10 Barta said angrily,
‘‘Do what you want.’’ That over, Hartmann testified he ‘‘no-
ticed a pile of jobs on the old alpha-type printout’’ and ‘‘of-
fered to expedite’’ them. Hartmann to the contrary, Barta tes-
1297MASTERTYPE
11 Over time, Beales helped various of Respondent’s employees
with the linotronic.
12 In June 1989, Hartmann received a ‘‘certificate of achievement’’
issued by the Contra Costa County Regional Occupational Program
which attested to his ‘‘proven proficiency’’ regarding ‘‘Desktop Pub-
lishing—Macintosh’’; and, by letter dated July 26, 1989, his instruc-
tor in that program verified that he was enrolled in the program,
‘‘with a concentration in the area of Desktop Publishing (Macintosh)
& Typesetting’’ from January to June 1989. Hartmann had shown
these documents to Kiraly and Barta.
tified that ‘‘it was an extremely slow day,’’ with only ‘‘two
or three jobs’’ to do.
Regardless, Barta ‘‘split’’ a job being done by Beales
‘‘into two sections,’’ giving half to Hartmann. The job en-
tailed typesetting the ‘‘conventional way,’’ according to
Barta, but was to be printed on newly installed linotronic
equipment. Beales, who had learned to operate that equip-
ment while employed elsewhere, was one of perhaps two
employees then familiar with it. Barta testified that ‘‘that’s
why’’ she had been assigned the job. Hartmann, in common
with most if not all the other employees, had neither training
nor experience on this equipment.
Hartmann recounted that he put the disc in the Macintosh,
with which he was familiar, ‘‘called it up on the screen,’’
and ‘‘pulled it down on the pull-down menu, where it said
print.’’ Barta and Kiraly were looking over his shoulders, he
testified; and, conceding that he did not know ‘‘how to run
this thing,’’ he asked if he was ‘‘doing it right.’’ ‘‘They did
not seem to answer,’’ he testified, but ‘‘just looked at’’ him.
Hartmann suggested that he ‘‘go get [Beales] and she can
show me this in 30 seconds and we’ll get this job out’’; and
they said, ‘‘She can’t help you.’’11
Hartmann’s account went on that Kiraly or Barta asked,
‘‘What about all these documents that you’ve given us that
say you know how to run the linotronic?’’ and that he re-
plied: ‘‘I never told you I knew how to run the linotronic.
All the documents that I have given you were for Macintosh
and laser printers.’’12 Hartmann further told them, as he re-
called:
I could not possibly know how to run this machine.
. . . [T]he last day I worked here, which was June 2nd,
this machine was not even out of the box. . . . How
can you expect me to know how to run this machine
if the last day I was here it wasn’t even running?
With that, Hartmann testified, Barta said, ‘‘Take your
things and leave.’’ Hartmann added that he offered to take
the program home ‘‘and learn it on [his] Macintosh,’’ but
‘‘they did not seem to be the slightest bit interested.’’ Barta
presently asked him to sign a document stating: ‘‘I, Bob
Hartmann, was unable to perform the tasks and jobs that I
was given August 10, 1989, at Mastertype.’’ Hartmann re-
fused to sign, remarking, ‘‘Do you think I’m that stupid?’’
Hartmann’s recital proceeded that he then said, ‘‘I want to
wait for the chairperson, and I want to have some representa-
tion here.’’ Kiraly and/or Barta said in turn, ‘‘Leave, you’re
trespassing again’’; and Hartmann responded, ‘‘I’m thirsty,
can I go into the lunchroom and wait for her?’’ They per-
sisted: ‘‘No, you’re trespassing. Leave now.’’ Hartmann re-
fused to punch out without seeing Rose. Barta punched out
for him, and he left, assuming without being expressly told
that he had been discharged.
Barta recalled the events of August 10 somewhat dif-
ferently. He testified that after assigning Hartmann a portion
of Beales’ job he left to make some calls; that, when he re-
turned, Hartmann said he could not ‘‘perform the job’’; and
that he consequently ‘‘gave it back to Marcia to complete
it.’’ Barta recounted that he left again to answer some calls;
that he asked Hartmann, upon returning, what he was doing;
and that Hartmann told him, ‘‘very sarcastically,’’ that he
was ‘‘practicing’’ because he ‘‘forgot how to type.’’
Barta continued:
I told him that, since I don’t have anything conven-
tional, in conventional typesetting, and I knew that he
went through all this training on Macintosh, and I had
two, one or two jobs to be performed on Macintosh, I
took him to [a] different department, and I told him to
run it on, through the printer, because [the] person who
was in charge in the department had lunch at that time.
Barta testified that he left yet again to answer some calls;
that, when he came back, Hartmann said once more that he
‘‘couldn’t do it’’; and that he responded, ‘‘Well, sorry, Rob-
ert, I don’t have . . . anything else for you to do.’’
Barta proceeded:
Under union rules . . . once he’s punched in I have to
pay him seven hours. And being an extremely small
company compared to my competition, I just cannot af-
ford that. So I told him to punch out and, you know,
some other day when, when we would be busy, we
could again do something. However, he didn’t want to
punch out, and so I told him that, because I have noth-
ing for him to do and he cannot perform it, that he’s
fired as of that moment.
Kiraly did not address the events of August 10 in his testi-
mony, and Barta did not expressly implicate Kiraly in those
events.
After Hartmann’s departure on August 10, Kiraly, Barta,
and Rose signed this letter, which Respondent then sent to
the Union:
To whom it may concern:
Bob Hartman [sic] stated that he was capable/quali-
fied to do Desktop Publishing/Macintosh . . . and do
any other typography jobs assigned to him. Therefore,
he was hired on August 10, 1989 for the 12 o’clock
shift.
1. 12:02—Robert was given part of Mastertype’s job
#30093. Second part was given to Marcia Beales. Rob-
ert stated that he was not able to do the job.
2. 12:06—Robert started to set on Mastertype’s ter-
minal #4 ‘‘quick brown fox jumps over the lazy dog.’’
He told us that he wanted to make sure he could still
type. . . .
3. 12:08—Robert was given a Macintosh disc to
print out job for desktop publishing. After telling us
that he is unable to do this job he said he needs help
and training before he could do any of the jobs that
were given him. At that time he was discharged for in-
competency. He was asked to sign a note stating that
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Respondent placed in evidence a graph showing that sales
slumped in June and July and again in September and October 1989.
14 Kiraly testified that the linotronic cost $120,000.
15 Hartmann grieved his discharge. A tentative settlement—ulti-
mately rejected by him—was reached on August 22, 1989. Among
its provisions were that Respondent would ‘‘make his equipment
available for Hartmann to receive training,’’ and that Hartmann bore
the responsibility ‘‘to provide an instructor for such training.’’ Hart-
mann testified that, with this in mind, he asked Brown to teach him
to operate the linotronic, ‘‘and she was all agreeable.’’ Hartmann
continued: ‘‘And then I called her two days later to set up a time,
and all of a sudden she didn’t want to do it. . . . I don’t know
why.’’
16 In Wright Line, 251 NLRB 1083 (1980), the Board stated at
1089:
[W]e shall henceforth employ the following causation test in all
cases alleging violation of Section 8(a)(3) or violations of Sec-
tion 8(a)(1) turning on employer motivation. First, we shall re-
quire that the General Counsel make a prima facie showing suf-
ficient to support the inference that protected conduct was a
‘‘motivating factor’’ in the employer’s decision. Once this is es-
tablished, the burden will shift to the employer to demonstrate
that the same action would have taken place even in the absence
of the protected conduct.
This formulation received Supreme Court approval in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
17 Hartmann impressed me in this instance and generally, by both
demeanor and the content of his testimony, as a sincere and capable
witness. Kiraly’s alternative version of this incident was hollow by
comparison.
he was unable to set the jobs given to him. At that time
he said: ‘‘Do you really think I’m that stupid?’’ Then
he got his things and left after only 15 minutes into his
shift.
Hartmann testified that Kiraly often had praised his work,
and that Respondent had never warned, reprimanded, or sus-
pended him before August 10.
Asked why Respondent did not use Hartmann after June
2, Kiraly testified:
Because . . . we didn’t have any conventional type-
setting to be produced . . . that we couldn’t produce
with our regular situation holders.
Seemingly speaking to the same question, Barta testified
that summer is Respondent’s slow season; that Hartmann
‘‘didn’t work one single shift all summer’’ in 1988, either;13
and that Respondent could not afford to have him ‘‘work for,
let’s say, three hours and pay him for seven hours,’’ particu-
larly since it had ‘‘committed’’ itself to purchase the
linotronic equipment.14
Kiraly added that ‘‘the trend’’ at the time was ‘‘to go
more and more desktop and less and less conventional hard-
copy keyboarding, with somebody sitting at a keyboard’’;
and that Respondent since has reduced its number of alpha-
type operators by ‘‘more than half.’’ He then clarified:
‘‘They have not necessarily been let go. . . . We retrained
a number of them over the years.’’ As a result, he continued,
9 of Respondent’s 11 situation holders now are ‘‘fully com-
petent to use the linotronic equipment,’’ with the remaining
two ‘‘in the process of starting their training.’’
While Respondent may print mainly on the linotronic
equipment at present, this was not so in August 1989.
Beales, on whom Respondent then relied most heavily to op-
erate it, testified that she spent ‘‘maybe’’ 20 percent of her
time on it in August 1989. Rita Coy testified that she oper-
ated ‘‘the alpha-type system’’ exclusively in August; and
that, since learning how to operate the linotronic equipment
‘‘way, way after’’ it was installed, she spends ‘‘far less than
ten percent’’ of her time on it. Coy added that, except for
Beales, nobody used the new equipment much in its early
days. Coy elaborated:
Marcia [Beales] was the only one that knew how. So,
. . . nobody was using it. . . . So, if we got something
in, it was given to her. Because she knew how to run
it. So, we basically didn’t learn it.
Kiraly denied that Hartmann’s grieving and complaining
annoyed him. He conceded, however, that he ‘‘may have’’
called Hartmann ‘‘an asshole’’ because of it.
As against Hartmann’s 2 days in June, Beales worked 8
despite her lesser rank on the substitute board. Beales
worked 5 days in July, as well, and 8 in August—including
the day before and the day of Hartmann’s discharge. In Janu-
ary 1989, according to the timecards, Hartmann worked 13
days to Beales’ 10; in February, 8 to her 0; in March, 9 to
her 12; in April, 11 to her 7; in May, 5 to her 11.
Respondent hired two people in early June, Laura Brown
and Linda Kattwinkel. Kiraly testified that Brown had ‘‘four
years’ experience . . . with the linotronic and the
Macintoshes,’’ and that Kattwinkel ‘‘was not a keyboard op-
erator’’ and worked ‘‘in a whole different department.’’ As
earlier summarized, the record indicates rather conclusively
that Respondent relied principally on Beales, not Brown, to
do its linotronic work in the early months after installation
of that equipment.15
B. Conclusion
Applying the analytical approach prescribed in Wright
Line,16 I conclude that the General Counsel has made the
requisite prima facie showing that Respondent withheld em-
ployment opportunities from and discharged Hartmann be-
cause of his inarguably protected grievance activities. I base
this conclusion on these considerations:
(a) Respondent mightily resented Hartmann’s grievance
activities. Thus, crediting Hartmann, Kiraly stated in Feb-
ruary upon seeing a grievance form on his desk, ‘‘If you fill
that out, don’t come in tomorrow.’’17 Further, Kiraly admit-
tedly ‘‘may have’’ called Hartmann ‘‘an asshole’’ in the con-
text of his grievance activities; and Barta voiced alarm in
March that ‘‘we’ll have ’Goldfinger’ all over us’’ should
Hartmann file a grievance.
(b) Hartmann suffered an almost immediate and drastic re-
duction in work opportunities after the May 23 filing of his
grievance. Whereas he worked an average of about 10 days
per month from January through April and worked 4 days in
May before May 23, Respondent used him only 3 times—
on May 26 and June 1 and 2—in the ensuing 2-plus months.
(c) Beales, who was below Hartmann on the substitute
board and averaged fewer days than he from January through
April, worked 8 days in June and 5 in July.
(d) Hartmann’s discharge occurred within a few minutes
on his first day at work following ostensible settlement of his
1299MASTERTYPE
18 I credit Hartmann that ‘‘a pile of jobs on the old alpha-type
printout’’ were awaiting execution.
19 The weight of evidence does not support the conclusion urged
by the complaint that Respondent unlawfully withheld employment
from Hartmann starting on about February 23, 1989.
20 Backpay shall be computed in accordance with F.W. Woolworth
Co., 90 NLRB 289 (1950). Interest shall be calculated as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
21 I deny any outstanding motions inconsistent with this Order. If
no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by
the Board and all objections to them shall be deemed waived for all
purposes.
grievance on August 2, which suggests a link between the
two.
(e) On August 10, before the discharge and with trans-
parent malice, Respondent needlessly subjected Hartmann to
a situation in which he—and most of the employees—could
not possibly succeed.18 Barta’s subsequent effort to have
Hartmann acknowledge in writing that he ‘‘was unable to
perform the tasks and jobs’’ given him, and the follow-up
letter to the Union, meticulously detailing Hartmann’s as-
sorted failures that day, underscored Respondent’s vindictive
predisposition toward him.
(f) Amalgamating Hartmann’s and Barta’s accounts, Barta
held out the prospect on August 10 of calling Hartmann
‘‘some other day,’’ but then discharged him when he insisted
upon seeing the chairperson before punching out. This indi-
cates that the latter—a protected grievance-related activity—
and not Hartmann’s job performance that day, was the imme-
diate trigger.
I further conclude that Respondent has not overcome the
General Counsel’s prima facie showing with respect to either
the withholding of opportunities from Hartmann or the dis-
charge.
With regard to the withholding of opportunities, the evi-
dence is uncontroverted that Respondent suffered a seasonal
dip in the summer of 1989. That did not prevent its consider-
able June and July use of Beales to the exclusion of Hart-
mann, however, or its hire of Laura Brown in early June.
The continued use of Beales and the hire of Brown, in com-
bination with the obviously limited use of the linotronic
equipment until much later, also belie Kiraly’s assertion that
Respondent had no ‘‘conventional typesetting . . . that [it]
couldn’t produce with [its] regular situation holders’’ in June
and July.
As for the discharge, Hartmann’s supposed incompetence
was narrowly based and shared by most of the employees at
the time. While increased reliance by Respondent on the
linotronic equipment perhaps would have occasioned less call
for him pending the enhancement of his skills, it would not
have warranted his discharge. The weight of evidence estab-
lishes, in any event, that the new equipment was receiving
only limited use as of August 10.
I conclude, in short, that Respondent has not overcome the
General Counsel’s prima facie showing in either regard, and
that Respondent therefore violated Section 8(a)(3) and (1) by
withholding employment from Hartmann in June, July, and
early August 1989, and by discharging him on August 10.19
CONCLUSION OF LAW
Respondent violated Section 8(a)(3) and (1) of the Act by
withholding employment opportunities from Hartmann in
June, July, and early August 1989, and by discharging him
on August 10, 1989.
REMEDY
I will include in my recommended Order provisions that
Respondent cease and desist from the unfair labor practices
herein, and that it take certain affirmative action to effectuate
the policies of the Act.
With regard to the latter, I will specify that Respondent
immediately reinstate Hartmann to his former place atop the
substitute board, without prejudice to his seniority or any
other rights or privileges, and that it notify him in writing
that this has been done; that it henceforth afford him employ-
ment opportunities in keeping with his qualifications and his
place on the substitute board; that it make him whole, with
interest, for earnings and benefits lost because of its unlawful
discrimination against him;20 and that it remove from its files
and destroy any and all writings documenting or referring to
the conduct comprising that unlawful discrimination, and no-
tify Hartmann in writing that this has been done and that
those unlawful actions will in no way serve as a ground for
future personnel or disciplinary action against him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended21
ORDER
The Respondent, MasterType, San Francisco, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withholding employment opportunities from, dis-
charging, or otherwise discriminating against Robert J. Hart-
mann or any other employee because of their protected griev-
ance activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights pro-
tected by the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately reinstate Hartmann to his former place
atop the substitute board, without prejudice to his seniority
or any other rights or privileges, and notify him in writing
that this has been done.
(b) Henceforth afford Hartmann employment opportunities
in keeping with his qualifications and his place on the sub-
stitute board.
(c) Make Hartmann whole as prescribed above in the rem-
edy section for earnings and benefits lost because of its un-
lawful discrimination against him.
(d) Remove from its files and destroy any and all writings
documenting or referring to the conduct comprising the un-
lawful discrimination against Hartmann, and notify him in
writing that this has been done and that those unlawful ac-
tions will in no way serve as a ground for future personnel
or disciplinary action against him.
(e) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary or help-
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ful to determine the backpay owing under the terms of this
Order.
(f) Post copies of the attached notice marked ‘‘Appen-
dix.’’22 Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed by Re-
spondent’s authorized representative, shall be posted by it
immediately upon receipt, and maintained for 60 consecutive
days, in conspicuous places, including all places where no-
tices to employees customarily are posted. Respondent shall
take reasonable steps to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT withhold employment opportunities from,
discharge, or otherwise discriminate against Robert J. Hart-
mann or any other employee because of their protected griev-
ance activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
protected by the Act.
WE WILL immediately reinstate Hartmann to his former
place atop the substitute board, without prejudice to his se-
niority or any other rights or privileges, and WE WILL notify
him in writing that this has been done.
WE WILL henceforth afford Hartmann employment oppor-
tunities in keeping with his qualifications and his place on
the substitute board.
WE WILL make Hartmann whole for earnings and benefits
lost because of our unlawful discrimination against him.
WE WILL remove from our files and destroy any and all
writings documenting or referring to the conduct comprising
our unlawful discrimination against Hartman, and WE WILL
notify him in writing that this has been done and that those
unlawful actions will in no way serve as a ground for future
personnel or disciplinary action against him.
MASTERTYPE