Book Covers, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1985

276 N.L.R.B. 1488 (N.L.R.B. 1985)

1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Book Covers, Inc. and Humberto Garcia . Case 22-
CA-13300-1
21 October 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 10 July 1985 Administrative Law Judge
Howard Edelman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Book
Covers, Inc ., Newark, New Jersey , its officers,
agents, successors , and assigns , shall take the action
set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Mitchell A . Schley, Esq . and Susan K. Anderson , Esq., for
the General Counsel.
Richard J. Delelk, Esq. (Grotta, Glassman & Hoffman,
P.A.), for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me November 19 through 21, 1984.
On June 14, 1984, Humberto Garcia, an individual,
filed an unfair labor practice charge against Book
Covers, Inc. (Respondent). On November 8, 1984, a
complaint issued alleging Respondent discharged Garcia
in violation of Section 8(a)(1) and (4) of the Act.
Briefs were filed by the General Counsel and Re-
spondent. On my consideration of the entire record, the
briefs, and my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a New Jersey corporation with an office
and place of business in Newark, New Jersey. Respond-
ent is engaged in the manufacture and distribution of
cardboard goods and products. Respondent, in the
normal course of its business, annually sells and ships
from its Newark, New Jersey facility goods and products
valued in excess of $50,000 directly in interstate com-
merce to points outside the State of New Jersey.
I find 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.
As of January 1984 Respondent's production and
maintenance employees were represented pursuant to a
collective-bargaining agreement by Local Union No.
300, United Paperworkers International Union, AFL-
CIO-CLC. This agreement expired on March 31, 1984.
On January 16, 1984, Amalgamated Local 747 filed a
representation petition with Region 22. Pursuant to this
petition, an election was conducted on April 18, 1984.
On June 15, 1984, Amalgamated Local 747 was certified
as the employees' collective-bargaining representative.
Garcia was employed by Respondent as a production
employee. Prior to his discharge on June 14, 1984, he
had been continuously employed by Respondent for a
period of 8 years.
On June 11, a fellow production employee, Blademor
Lemos, spoke with Garcia and advised him that they had
an appointment on June 13 to meet Local 747's attorney
at the offices of Region 22 after work where they intend-
ed to file unfair labor practice charges alleging unlawful
discrimination because of their activities on behalf of
Local 747. Garcia's normal working hours were from
7:30 a.m. to 4 p.m., the same as all production employ-
ees.
Garcia testified that on June 13 about 8 a.m., shortly
after he arrived at work, he informed his supervisor Sal-
vatore Scavuzzo that he would be unable to work over-
time that day because "he had to go out." Scavuzzo
denies that he was so informed. I credit Garcia. I
Sometime about noon, Scavuzzo notified Garcia and
all other production employees that they would have to
work overtime that day. Garcia informed Scavuzzo that
he would not be able to work overtime that day. He did
not state a reason. Lemos and eight other employees
similarly refused to work overtime that day. Aside from
Lemos, the refusal to work overtime by the aforemen-
tioned eight employees was unrelated to union activities
or filing charges with the Board.
i I was favorably impressed with Garcia's testimony. He was candid
and responsive to questions put to him on both direct and cross-examina-
tion and he impressed me as an honest and sincere witness Based on a
comparison of demeanor , I was more favorably impressed with Garcia's
demeanor over that of Scavuzzo
Additionally, Garcia spoke only Spanish. Scavuzzo admittedly spoke
just "a little bit of Spanish ," just enough to get his assignments across. In
view of this language problem, and in view of the fact that overtime is
not usually determined until later in the day, I believe Scavuzzo either
did not understand Garcia, or since overtime had not been determined
for that day, he paid no attention to his statement and dismissed it from
his mind
I find Garcia's testimony to be believable He had a scheduled appoint-
ment at the Board's Newark Office where he was to meet with a fellow
employee and Local 747's attorney. He was also aware that while over-
time was not required on a daily basis, it was required frequently. It is
therefore logical that he would want to give advance notice of his un-
availability should overtime be required to avoid any problems
276 NLRB No. 170
BOOK COVERS, INC.
Scavuzzo then notified Personnel Manager Gemma
Gerstorfer of the 10 employees, including Garcia, who
refused to work overtime. Gerstorfer then met with each
of these 10 employees individually in her office.
Garcia credibly testified he met with Gerstorfer in her
office. She spoke Spanish fluently so that no interpreter
was required. Gerstorfer asked Garcia why he was
unable to work overtime. Garcia told her he had a prob-
lem at home and he had to leave at 4 p.m. She told him
this was no excuse to refuse overtime. Garcia then told
her he had an appointment at the "Labor Department"
and he was going to file charges against Scavuzzo, Ger-
storfer, and Edward Johnson, plant manager. He then
left Gerstorfer's office.
Gerstorfer was not called by Respondent as a witness,
nor did Respondent contend that she was unavailable for
any reason.
Edward Johnson, plant manager, testified that after
Gerstorfer met with Garcia she contacted him and told
him that Garcia had refused to give any reason for not
working overtime. Gerstorfer also told him that during
her discussion with him he was abusive and at one point
told her "to go fuck herself." At this point Johnson told
Gerstor€er to bring Garcia to his office.
Garcia denied using the obscenities attributed to him
by Gerstorfer through Johnson's testimony.2
About 3 p.m. Garcia was escorted into Johnson's
office. Present were Gerstorfer, who acted as an inter-
preter, Johnson, and Scavuzzo. Garcia testified Johnson
asked him why he did not want to work overtime.
Garcia told him he had a personal matter at home. John-
son said that was no excuse. Gerstorfer then told Garcia
to tell Johnson what he had told her. Garcia then told
Johnson he was going to the "Labor Department" to file
charges. Johnson said he had to work the overtime.
Garcia asked Johnson if he would be disciplined if he did
not work the overtime and Johnson said he did not
know. Garcia then left and returned to work.
Johnson testified that he began the meeting by telling
Garcia that his abuse of Gerstorfer was unacceptable and
would not be tolerated in the future. Johnson then ex-
plained to Garcia that he was required to work overtime
under the collective-bargaining agreement, unless he had
a reasonable excuse. Although Johnson asked Garcia
three or four times why he could not work, Garcia gave
absolutely no explanation. Instead, Garcia became abu-
sive and arrogant to Johnson, stating that he did not
have to work more than 8 hours, he did not have to
work overtime, his private life was his own business, and
Johnson could not force him to work overtime. Johnson
concluded the meeting by informing Garcia he was-,re-
quired to work until 6 p.m. (2 hours' overtime), and his,
failure to do' so would result in discipline up to and in-
cluding discharge.3
2 As set forth above, and as will be more fully set forth below, I find
Garcia to be a credible witness. As set forth below, I find Johnson to be
an incredible witness who I believe fabricated significant testimony.
Moreover, Gerstorfer was not called as a witness by Respondent to cor-
roborate Johnson's testimony although there is no contention that she
was unavailable.
5 I credit Garcia's testimony As set forth above, I have concluded that
Garcia is a credible witness, and Johnson is not a credible witness who,
1489
Garcia continued working until 4 p.m. when he left
with Lemos to file charges at the Board.
Sometime between 4 p.m. and 5 p.m., Garcia and
Lemos met with the Local 747 attorney, Charles Rosen-
berg, and his secretary, Maria Andino, who acted as an
interpreter. Garcia testified that while at the Board's
office waiting to file a charge, he expressed concern that
disciplinary action would be taken against him because
he had come to the Board to file charges rather than
work overtime. Rosenberg asked him what reason he
gave to Respondent for not working overtime and
Garcia told him that he advised Johnson, Gerstorfer, and
Scavuzzo that he was going to the Board to file charges
against them.
Andino testified as to this meeting and fully corrobo-
rated Garcia's testimony.4
Shortly before 5 p.m. Garcia and Lemos filed unfair
labor practice charges against Respondent alleging dis-
crimination in their working conditions because of their
membership in Local 747.5
On June 14, 1984, Garcia reported for work at 7 a.m.,
his regular starting time. He noticed his timecard was
missing and spoke to Gerstorfer after he changed into his
work clothes. Gerstorfer took him to Johnson's office.
Johnson told Garcia that he was fired because he refused
to work overtime, and gave him a letter of discharge.
Johnson escorted Garcia to his locker. Garcia testified
that after he cleaned out his locker he saw Johnson
speaking to Gerstorfer. He asked Gerstorfer what John-
son was saying. She responded, "Let the Labor Depart-
ment resolve your problem."
I credit Garcia's testimony. As set forth above Ger-
storfer was not called as a witness by Respondeni. John-
son did not deny Garcia's testimony.
Johnson then handed Garcia a letter which stated:
Dear Humberto,
As of today , June 14, 1984, your employment at
Book Covers , Inc. has been terminated for your fail-
ure to work overtime as instructed . Your final check
for this week 's work and accrued vacation will be
forwarded to you.
Sincerely,
Edward V. Johnson
During Garcia's 8 years' employment he had never re-
ceived any prior warnings concerning a refusal to work
overtime or any other warnings. He had never received
any suspensions or other discipline. His work record in
substance, prior to June 13, was perfect.
in my opinion, fabricated significant testimony. This will be discussed in
detail below.
4 I conclude that Andino was a very credible witness She was most
forthright and responsive as to alfi questions put to her on both direct and
cross-examination . Additionally, she displayed an excellent recollection as
to the details of this meeting. Although she was an employee of the attor-
ney who represented Local 747, I believe such relationship was too
remote that it could be argued that she was a biased witness . I was very
impressed with her demeanor and I do not believe she would fabricate
testimony to further the interests of one of her employer's clients.
5 It appears these charges were ultimately resolved The resolution of
these charges is not relevant to the disposition of this case.
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The existing collective-bargaining agreement between
Respondent and Local 300 provided that Respondent
could require its employees to work overtime. This
agreement expired on March 31, 1984. Pursuant to this
agreement and following its expiration, Respondent fre-
quently assigned unit employees overtime.
Respondent had an extremely liberal policy when it
came to excusing employees who requested to be ex-
cused from assigned overtime. This policy was never re-
duced to writing nor communicated directly to the em-
ployees, but was rather the practice in effect, and so un-
derstood by the employees. The practice was as follows.
If an employee assigned to work overtime provided his
immediate supervisor with what the supervisor deemed a
reasonable excuse, the employee would be excused. Em-
ployees were excused from overtime for a wide latitude
of reasons which included celebrating a mother's birth-
day, picking up a relative at the airport, and buying a
new suit of clothes. On those occasions when the super-
visor determined the excuse was unreasonable, the em-
ployee would meet with Gerstorfer, the personnel man-
ager. In some cases she would reverse the supervisor's
decision, while in others she would confirm his decision.
If she determined the excuse was unreasonable, the em-
ployee had the option of working the overtime or being
subject to progressive discipline. This discipline would
start off with a verbal warning, then a written warning,
then a possible suspension, and lastly a possible dis-
charge. Among the excuses found to be unreasonable
and subject to a verbal warning was arefusal to work
overtime because of "personal business." Although John-
son did not testify why such reason was not deemed rea-
sonable, so as to excuse working overtime, the conclu-
sion is obvious, the employee who states "personal busi-
ness" has not stated any reason unlike the employee who
states his personal reason is to buy a new suit or to pick
up a relative at the airport.
In the year 1983 and up to June 13, 1984, only 11 em-
ployees were disciplined for refusing to work overtime
and none of these disciplinary actions went beyond issu-
ing a warning. Prior to the discharge of Garcia and
Lemos on June 14, 1984, Respondent had never suspend-
ed, much less discharged, any employee for refusing to
work overtime. On June 13, 1984, the date that Garcia
and Lemos refused to work overtime, eight other em-
ployees similarly refused to work overtime. Of these
eight employees, five were deemed to have acceptable
reasons for their refusal and were excused. Three em-
ployees were not excused. One told Gerstorfer he
wanted to shop for a new car for his daughter, another
stated he had to take care of his son, and another refused
to give a specific reason, but merely stated he had "per-
sonal business." These employees refused to work the as-
signed overtime and were subsequently given oral warn-
ings.
Johnson incredibly testified that, in addition to the
practice described above, if an employee refused to give
any reason, this employee would be required to meet
with him and he would require the employee to set forth
a specific reason , or work the overtime. If the employee
refused to work the overtime he would be discharged.
When Johnson was questioned as to who, if any, em-
ployees were ever discharged pursuant to such alleged
practice, he replied Garcia and Lemos. Johnson admitted
such practice was never communicated to the employees.
I conclude that Johnson's testimony in this connection
is a total fabrication designed to support and justify his
discharge of Garcia and Lemos.6
I find no distinction in an employee being questioned
as to the reason for his unavailability to work overtime
and stating "personal business" or refusing to state a
reason. I conclude that Johnson, after denying that
Garcia told him the reason for his unavailability to work
overtime was because he was going to the Board to file
charges, had to come up with some explanation, howev-
er incredible, for the discharge in the face of his ultra lib-
eral overtime policy, and so I believe he manufactured
this alleged practice. In support of my conclusion that
such testimony was fabricated, Johnson further attempt-
ed to bolster his justification for Garcia's discharge by
contending, for the first time at trial, that Garcia was
also discharged for leaving the plant without permission,
and being insubordinate to Gerstorfer, notwithstanding
that the discharge letter prepared and signed by Johnson
specifically set forth only his refusal to work overtime as
the reason for discharge. Moreover, I was generally un-
impressed with Johnson's overall demeanor during his
testimony. He did not impress me as a candid forthright
witness and appeared to be rather shifty and uneasy
throughout his testimony.
Counsel for Respondent contends that, even crediting
Garcia's testimony, he did not inform Gerstorfer or
Johnson that he was going to the "NLRB" to file
charges, but rather that he was going to the "Labor De-
partment." However, Garcia testified that, in his June 13
conversation with Johnson, he used the Spanish term of
Labor Department, and that "this place here" (the
Board), to his knowledge, is referred to as the Labor De-
partment in Spanish. Notwithstanding Garcia's use of the
term Labor Department rather than Labor Board, the
record is clear that Johnson understood Garcia's refer-
ence to the Labor Department to mean National Labor
Relations Board. This is conclusively shown by Re-
spondent's Exhibit 7, which is a handwritten memo from
Johnson to Carl Crook, another management official, set-
ting forth Johnson's account of the facts concerning Gar-
cia's discharge. The last paragraph of the memo states:
"On June 14 we received the attached charge from the
Labor Department." Below that paragraph is a list of
items enclosed with the memo. The third item listed
reads "Charge from Labor Dept." The charge attached
to the memo is, in fact, a copy of the charge which
Garcia filed with the National Labor Relations Board.
Thus, in Johnson's mind, the Labor Department was syn-
onomous with the NLRB. Moreover, during this period,
an representation petition had been filed, an election and
a certification were pending before the NLRB. I con-
clude that, when Garcia told Johnson he was going to
6 The Region concluded that the discharge of Lemos violated Sec.
8(a)(i) and (4) of the Act and issued a complaint against Respondent al-
leging such violation The complaint was withdrawn when it was agreed
by all parties to take this discharge to arbitration.
BOOK COVERS, INC.
the Labor Department, Johnson knew he was going to
the NLRB.
Counsel for Respondent contends that Garcia cannot
be credited concerning his testimony that on June 13 he
told both Gerstorfer and Johnson that he was unable to
work overtime because he was going to the Labor De-
partment (NLRB) to file charges against Respondent, be-
cause he gave contrary testimony at a unemployment in-
surance hearing . The record in the unemployment hear-
ing established that when questioned on cross -examina-
tion by Respondent 's attorney as what reason he gave to
Johnson and Gerstorfer for not being able to work over-
time on June 13, he testified he told them he was unable
to work overtime for personal reasons.' In the instant
case Garcia similarly testified that, when initially ques-
tioned by Gerstorfer and Johnson why he was unable to
work overtime, he replied for' personal reasons. It was
only after they pressed him for a reason that he told
them he was going to the Labor Department (NLRB) to
file charges. Significantly, he was not specifically asked
by counsel for Respondent, although the current unfair
labor practice charge was pending , or the appeals exam-
iner, whether he told Gerstorfer and Johnson he was
going to the Labor Board.
There is no question that there is some inconsistency
between Garcia 's testimony at the unemployment hear-
ing and the instant trial . I have taken this into careful
consideration in my conclusion that Garcia was a credi-
ble witness and specifically in crediting his testimony
concerning this conversation with Gerstorfer and John-
son.
As set forth above , I was most impressed with Gar-
cia's demeanor. Secondly, his testimony at the unemploy-
ment hearing is not so much inconsistent as it is incom-
plete. He was not questioned by Respondent 's counsel as
to whether he told them he was going to the Labor
Board to file charges, although the present unfair labor
practice charges were pending at the time and the in-
quiry would have been relevant.
Third, Maria Andino , Local 747's attorney 's secretary
and a witness with whose credibility I was most im-
pressed, corroborated Garcia's testimony.
Andino's testimony was introduced to rebut a charge
against Garcia of recent fabrication concerning his unem-
ployment hearing testimony. Counsel for Respondent ob-
jected to such testimony as being outside the scope of
Rule 801 (d)(1)(3) of the Federal Rules of Evidence. This
objection was overruled . The Board has recently held in
a case squarely on point, that such testimony is admissi-
ble. Pagerly Detective Agency, 273 NLRB 494 ( 1984).
Fourth, Respondent admittedly issued a mere verbal
warning to an employeewho refused to work overtime
on June 13 and who gave no reason other than "personal
reasons" for such refusal . For the reasons set forth
above, I have rejected as incredible Johnson's testimony
that if an employee gave no reason for such refusal he
would be subject to discharge . I am convinced had
Garcia insisted his refusal was based on "personal rea-
sons" he would have been permitted to leave at his usual
quitting time , 4 p.m., and received an oral warning, the
7 R. Exh. I.
1491
same discipline as the other employee received. That he
and Lemos were discharged as a result of their conversa-
tions with Johnson concerning their refusal to work
overtime convinces me that Garcia, during his conversa-
tion with Johnson, stated a reason which so infuriated
Johnson that he discharged both Garcia and Lemos.
Such action might be expected following Garcia's re-
sponse that he intended to go to the Labor Board to file
charges against Respondent . I find that Respondent's dis-
charge of Garcia and Lemos in the circumstances of this
case to be consistent with Garcia's testimony.
For all these reasons I credit Garcia's testimony.
U. ANALYSIS AND CONCLUSIONS
In cases involving a discriminatory discharge for union
activities within the meaning of Section 8 (a)(1) and (3) of
the Act, the General Counsel has the burden of proving
union animus was a substantial or motivating factor in
the discharge. Once such motivating factor is established
the burden of proof shifts to the Respondent to establish
that the same action would have taken place even in the
absence of the employees' protected activities. NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983);
Wright Line, 251 NLRB 1080 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
Board has held the same burdens apply to cases involv-
ing discharges within the meaning of Section 8(a)(4) of
the Act. Parker Laboratories, 267 NLRB 1174 (1983);
Haynes-Trane Service Agency, 259 NLRB 83 (1981).
Applying a Wright Line analysis to the facts of the
case, the General Counsel has established the following.
Garcia was discharged immediately after he announced
his intention to file a charge with the Board. He in-
formed Gerstorfer and Johnson of his intention to file
charges at 3 p.m. on June 13 and was discharged before
he could punch in to work on June 14. Thus, the timing
of the discharge supports the General Counsel's conten-
tion that the discharge was discriminatorily motivated.
By far, the strongest evidence in support of General
Counsel's case is the evidence of disparate treatment.
The General Counsel contends that such evidence is
overwhelming . I believe this may be an understatement.
As set forth above in detail, Respondent had an ultra lib-
eral policy with respect to employees' refusals to work
overtime. Employees were routinely excused for a wide
variety of reasons and when they were not excused they
received minimal discipline when they refused to work
assigned overtime. Although discipline was progressive,
starting with an oral warning and proceeding to a writ-
ten warning , suspension and ultimately possible dis-
charge, no employee prior to Garcia had 'ever received
discipline beyond a warning. Prior to Garcia's refusal to
work overtime on June 13, he had never been disciplined
for refusing to work overtime or for any other work-re-
lated matter during his 8-year period of employment. To
discharge an employee in these circumstances suggests
the reason for the discharge was not because Garcia re-
fused to state a reason for his refusal to work overtime,
as contended by Respondent , but rather that such dis-
charge was, discriminatorily motivated. In this regard it
should be noted that Lemos, who similarly refused to
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work overtime because he intended to file a similar
unfair labor practice charge on June 13 was also dis-
charged on June 14.
In view of the timing a' d the disparate treatment dis-
cussed above , I conclude that the General Counsel has
established virtually conclusive evidence that a substan-
tial or motivating factor in Garcia's discharge was his an-
nounced intention to file unfair labor practice charges
with the Board.
Respondent now has the burden to establish that
Garcia would have been discharged even given his an-
nounced intention to file charges with the Board.8
In Respondent 's June 14 letter, notifying Garcia of his
discharge , Respondent set forth his refusal to work over-
time as the only reason for his discharge . At trial, appar-
ently recognizing that in the face of its liberal overtime
policy, this defense would not stand up, Respondent
added additional reasons, namely , that Garcia left the
plant without permission and that he was insubordinate.
The contention that Garcia left the plant without per-
mission is obviously contrived . It suggests that he left
work during his normal working hours without asking
permission . This is not the case. What he did was to
refuse to work overtime. No other employee who re-
fused to work overtime ever received a warning for
leaving the plant without permission . This contention
needs no further discussion . To consider it is to reject it,
except to the extent that it discredits Respondent's de-
fense.
Respondent 's contention that Garcia was discharged
because he was insubordinate rests mainly on Johnson's
testimony that Gerstorfer told him that Garcia told her
to "go fuck herself." As set forth above, Gerstorfer was
not called as a witness by Respondent and Johnson's tes-
timony as to Gerstorfer' s assertion was not credited. If
Garcia had used such an obscene expression in the con-
text of his conversation with Gerstorfer as contended by
Respondent , it is inconceivable that Johnson would not
have imposed some discipline upon Garcia during his
meeting with him as he was allegedly aware of such
gross insubordination at the time . Yet, not only was he
not disciplined for such alleged insubordination, but it
was not even set forth in Respondent's June 14 letter as a
reason for Garcia 's discharge . I conclude all of Respond-
ent's testimony concerning such alleged insubordination
to be fabricated , to support an otherwise untenable de-
fense.
Respondent's after-the-fact attempt to demonstrate that
Garcia's discharge was not only for his failure to work
overtime as set forth in its June 13 letter of dismissal, but
rather for leaving the plant without permission, and in-
subordination, only serves to buttress the General Coun-
sel's case. The Board has repeatedly held that the at-
tempted assignment of a multiplicity of additional reasons
for the discharge , raised for the first time at the hearing,
raises an inference that a respondent is attempting to
cover up the true reason for the action , namely, the un-
lawful motivation. Bohn Heat Transfer Group, 267 NLRB
8 My credibility resolutions discussed above completely negate Re-
spondent 's contention that Garcia gave no reason for his refusal to work
overtime.
369, 373 ( 1983); Bohemia, Inc., 266 NLRB 761, 777
(1983).
Respondent additionally contends that, even if Garcia
told Johnson he was going to the "Labor Department,"
a discharge for such reason is not a violation of 8(a)(4)
because that section does not extend protection to em-
ployees who resort to or threaten to resort to any
agency other than the Board. Inked Ribbon Corp., 241
NLRB 7 (1979). I agree with counsel for Respondent's
interpretation of the law, however , that the facts of this
case discussed above establish that, when Garcia told
Johnson he was going to the "Labor Department," both
he and Johnson knew that Garcia was referring to the
Board and in particular Region 22 , which was then proc-
essing a representation petition with Respondent. Ac-
cordingly, I find the law cited by Respondent 's counsel
to be inapplicable to the facts of this case.
After a careful consideration of Respondent 's defenses
and contentions , I conclude that Respondent has not
come close to establishing its Wright Line burden, but
rather that its defense only serves to strengthen the Gen-
eral Counsel 's case.
Accordingly, I conclude that Respondent discharged
Garcia in violation of Section 8(a)(4) as alleged.
CONCLUSIONS OF LAW
1. Respondent Book Covers , Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent violated Section 8(a)(4) and (1) of the
Act by discharging its employee Humberto Garcia on
June 14, 1984, because he had filed charges with the Na-
tional Labor Relations Board.
THE REMEDY
Having found Respondent has engaged in violations of
Section 8(a)(4) and (1) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act. The affirmative action shall include
an order requiring Respondent to reinstate Garcia to his
former job if it still exists , and to make him whole for
any loss of pay he may have suffered by reason of the
discrimination against him . Backpay and interest shall be
computed on a quarterly basis and in the manner pre-
scribed by the Board in F. W Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962). In addition , Respondent shall be required to ex-
punge from its records any reference to Garcia's unlaw-
ful discharge , to provide written notice of such expunc-
tion to him and to inform him that its unlawful conduct
will not be used as a basis for further personnel action
concerning him.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
9 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Continued
BOOK COVERS, INC.
ORDER
The Respondent , Book Covers , Inc., Newark, New
Jersey, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging employees because they have filed
charges with the National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately offer Humberto Garcia reinstatement
to his former job or , if that job no longer exists , to a sub-
stantially equivalent job, without prejudice to his seniori-
ty or any other rights or privileges and make him whole,
with interest, for lost earnings in the manner set forth in
the section of this decision entitled "The Remedy," dis-
missing if necessary any employee who replaced him.
(b) Remove from Garcia 's personnel records and all
other files any reference to his discharge.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Newark, New Jersey facility and jobsites
copies of the attached notice marked "Appendix."a®
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 pur-
poses.
10 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1493
Copies of the notice , on forms provided by the Regional
Director for Region 22, after being signed by the Re-
spondent 's authorized representative , shall be posted im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
such notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees because they have
filed charges with the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL immediately offer Humberto Garcia rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority or any other rights or privileges and
make him whole, with interest , for lost earnings , dismiss-
ing if necessary any employee who replaced him.
WE WILL remove from Garcia's personnel records and
all other files any reference to his discharge.
BooK COVERS, INC.