Bregg Data Forms, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 624 (N.L.R.B. 1974)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bregg Data Forms, Inc. and Kenneth Rahn and Mi-
chael Rakowski. Cases 29-CA-3707-1 and 29-CA-
3707-2
November 4, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 28, 1974, Administrative Law Judge Well-
ington A. Gillis issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be dismissed in its
entirety.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was tried before me on May 14 and 15, 1974, at
Brooklyn, New York, and is based on charges filed on Jan-
uary 31, 1974, by Kenneth Rahn and Michael Rakowski,
individuals, upon a consolidated complaint issued by the
General Counsel for the National Labor Relations Board,
hereinafter referred to as the Board, against Bregg Data
Forms, Inc., hereinafter referred to as the Respondent or
the Company, alleging violations of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), and on an answer timely
filed by the Respondent denying the commission of any
unfair labor practices.
All parties were represented by counsel and were afford-
ed full opportunity to examine and cross-examine witness-
es, to introduce evidence pertinent to the issues, and to
engage in oral argument. Subsequent to the close of the
hearing, timely briefs were submitted by counsel for the
General Counsel and for the Respondent.
Upon the entire record in this case, and from my obser-
vation of the witnesses, and their demeanor on the witness
stand, and upon substantial, reliable evidence "considered
along with the consistency and inherent probability of tes-
timony" (Universal Camera Corp. v. N.L R.B., 340 U.S.
474, 496 (1951) ), I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Bregg Data Forms, Inc., a New York corporation, main-
tains its principal office and place of business in Plainview,
New York, where it is engaged in printing, sale, and distri-
bution of various business forms and related products.
During the calendar year 1973, the Respondent purchased
and caused to be transported and delivered to its place of
business goods and materials valued in excess of $50,000,
of which goods and materials valued in excess of $50,000
were transported and delivered to its place of business in
interstate commerce directly from States of the United
States other than the State of New York. The parties admit,
and I find, that the Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
It was stipulated by the parties, and I find, that New
York Printing Pressmen and Offset Workers Union, No.
51, International Printing Pressmen and Assistants Union,
AFL-CIO, hereinafter referred to as Local 51, is a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether, during the last part of December 1973 and
January 1974, the Respondent's supervisors engaged in un-
lawful interrogation of its employees.
2. Whether, in discharging Kenneth Rahn and Michael
Rakowski on January 11, 1974, the Respondent did so be-
cause it believed that said employees had engaged in activi-
ties in support of Local 51.
B. The Facts
The Respondent is primarily in the business of manufac-
turing snap-out business forms, and employs between 65
and 70 factory employees. These forms are first printed,
then assembled on collating machines. Each collating ma-
chine is run by a collator operator who is assisted by a
helper. Several years of training and experience are nor-
mally required for an employee to become an experienced
collator operator.
On December 12, 1973,1 Kenneth Rahn and Michael
Rakowski, having dust been laid off as collators at Island
Forms, Inc, applied for work at the Respondent. Both em-
ployees met at the office of Anthony Gargano, vice presi-
Unless otherwise specified , all dates refer to December 1973 and Janu-
ary 1974
214 NLRB No. 94
BREGG DATA FORMS, INC.
dent in charge of production, where they filled out applica-
tions and were interviewed together by Gargano. Gargano
told the boys that he was in need of collator operators, that
his company was a high production shop, and that in order
to keep a job one had to produce. After inquiring and
learning of their experience with collating machines and
their previous employment,' Gargano hired both employ-
ees at $225 per week with the understanding that they
would start on the second shift as a break-in period, and
then transfer to the third shift as permanent employees.
According to Rakowski, at the conclusion of the inter-
view, Gargano told both of them that "he was aware of
what had happened at Island Forms concerning Local 51."
Rakowski further testified that Gargano told them that "if
we were to work there that we would have to join the
Teamsters Union in 60 working days, I am not sure of that,
and he would not be able to stand for any discussion with
the men about Local 51." Rahn corroborated Rakowski,
testifying that Gargano stated that he knew what was going
on at Island Forms, and that "he did not want any of that
s- going on at this shop." Both employees, while testifying
on this on cross-examination were asked whether they then
asked Gargano what he meant by that, and Rakowski an-
swered, no, while Rahn answered, yes, adding that Garga-
no then stated that "he was friends with Julie Seide" that
"he is putting all the other shops out of business and we are
getting all the work." 3 Gargano denied the statements at-
tributed to him by both employees, and testified that he
neither asked nor told them anything about unions during
this conversation.
Gargano introduced Rahn and Rakowski to his second-
shift foreman, Miguel Orrach, telling Orrach that he had
hired them as full operators, and to let them get familiar
with the equipment, and to give them assistance because he
wanted to put them on the third shift in a couple weeks.
The following Monday, December 17, Rahn and Ra-
kowski reported and started work on the second shift,
working from 2:30 p.m. to 11 p.m. They remained on the
second shift for 3 weeks, going on the third shift, 11 p.m. to
6 a.m., during the fourth week, commencing January 7.
On Friday, January 11, Rakowski called Orrach and told
him that he was ill and would not be coming in. Orrach
told Rakowski to forget it and not to come in, that they
had no more use for him in the plant. In reply to
Rakowski's question as to why, Orrach told Rakowski that
he knew, that it had been mentioned to him before, that his
production was very slow and the Company could not car-
ry him any longer. Shortly thereafter, having heard from
his friend Rakowski that he had been terminated, Rahn
also called Orrach, and asked if he, too, were being laid off.
Orrach told Rahn the same thing, that his production was
slow. Both Rakowski and Rahn were terminated as of that
date.
The following day, Saturday, January 12, Orrach having
told both employees that they could talk with Gargano if
2
Rahn had been a collator operator trainee for about 2 years at Albrand
and at Island Forms, and a full collator for about a year at Island Forms
Rakowski had been a collator operator trainee for about 8 months at Island
Forms and a full collator operator for about a year at Albrand
3 Julie Seide is business representative for Local 51
625
they wished, Rahn and Rakowski went to see Gargano.
Gargano spoke with each one separately, explaining to
each that his production had not improved and that he did
not consider either a full collator operator.
The version of Rahn and Rakowski as to this incident
is at variance with that of Gargano. Rakowski testified
that immediately upon walking into Gargano's office be-
fore he had a chance to say anything at all, Gargano said
to him, "I just want to let you know that it was not because
of your production, but because of what you had been
doing with the Union." Gargano then assertedly followed
with the statement that various people had accused Ra-
kowski of advocating Local 51, that he could not survive
with that Union, but it was just out to cross him up. Ra-
kowski testified that he made his denials, and Gargano told
him to call Rahn in. According to Rakowski and Rahn,
Gargano said to both of them that he was letting them go
because he had heard from reliable people that they were
talking about the Union, and also stated that their produc-
tion was fine. Gargano denied without qualification the
statements attributed to him or that the Union or union
activities was mentioned in either of these conversations.
The following Monday, January 14, Rahn went back to
see Gargano, assertedly on the earlier promise of Gargano
that he would talk it over with the accusers of Rahn and
Rakowski. Gargano told him that the decision to discharge
had been made and that was it.4
Analysis and Conclusions
The General Counsel contends that the Respondent un-
lawfully discharged both Rahn and Rakowski because it
believed, contrary to the fact, that they had been talking up
Local 51 among its employees. The Respondent, in deny-
ing the allegations, asserts that Rahn and Rakowski had
proved themselves less than experienced collator operators,
and that they were terminated solely because of their fail-
ure to produce.
With respect to the General Counsel's assertion, the re-
cord reveals that pursuant to an earlier election at Island
Forms, Local 51 along with Graphic Arts International Lo-
cal 119, AFL-CIO, was certified as bargaining representa-
tive for employees at Island Forms. It also appears that,
pursuant to an election at the Respondent's plant several
years earlier , Local 51 had lost out to the Teamsters Local
757, the current bargaining representative under contract
with the Respondent. Other than the fact that Local 51 was
the bargaining representative at Island Forms where Rahn
and Rakowski were previously employed, there is absolute-
ly no evidence, nor is it contended, that either Rahn or
Rakowski in any way or at any time was a union adherent
or espoused the case of Local 51, while employed at Island
Forms or after commencing work for the Respondent.
The only evidence in the record even remotely pertinent
to this concerns a discussion among several employees dur-
ing a lunchbreak approximately 2 weeks after Rahn and
° For reasons hereinafter discussed, I do not credit the testimony of Ra-
kowski or Rahn as to their version of either the interview conversation of
December 12 or the postdischarge conversation on January 12, and specifi-
cally credit Gargano's denial as to the union statements attributed to him on
each question
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rakowski went to work. The discussion involved general
conversation concerning the relative benefits under Local
51, Local 119, and the Teamsters 757, during which Ra-
kowski took no part whatsoever, and Rahn, after inquiring
about the benefits under the current Teamsters contract,
stated that the overall Teamsters policy was better than
that of Local 51. At some point, Joseph Daleo, a collator
trainee , who was hired in November 1972 and long after
the election at the plant, stated that he was glad that Local
51 did not get in because he had heard that under Local 51
there was a waiting period for collators, whereas the Team-
sters gave him a chance to be a trainee faster. The conver-
sation turned away from the relative merits of the Unions
when Rahn suggested to them that they do themselves a
favor and forget about it.
Thus, with this background, the General Counsel asserts
that Gargano's remarks to Rahn and Rakowski during the
December 12 interview and the January 12 post-termina-
tion conversation, along with one additional asserted con-
versation with Gargano in between, supply the discrimina-
tory motivation for the discharge of both employees. The
additional conversation, according to Rakowski, occurred
sometime in the second week of his employment when
Gargano told him that he had received a call from the
Teamsters representative who told him "that somebody in
the shop was advocating Local 51." According to Rakow-
ski, Gargano then proceeded to give Rakowski "a brief
summary" of how the Teamsters became the bargaining
representative, that at the time of the election someone had
threatened the life of a Local 51 representative and "told
them if this Union ever got in to Bregg Data Forms they
would not be out to help the people, they would be out to
destroy him and his Company, he would not be able to
stand for any of that s-." Although not accused, Rakow-
ski allegedly volunteered to Gargano that he was not affili-
ated with Local 51, and that he "had said nothing to no-
body." Gargano denied that this conversation took place,
and I credit his denial.
Well aware that, in discrediting the testimony of Rahn
and Rakowski, the General Counsel' s case must fall, I just
am not persuaded, either by their demeanor while testify-
ing or on what I consider to be inherently probable, that
the facts are as they testified. I was not impressed with the
sincerity of either while testifying on the witness stand,
both of whom appeared overly eager to insert the union
matter. Rahn and Rakowski, although together on most
points, testified at odds with each other on a couple of
occasions, with Rakowski contradicting his own testimony
on a major matter. In contrast, Gargano and Orrach, par-
ticularly the latter, impressed me with their candor and
forthrightness.
That Gargano or Orrach, both of whom denied such, at
any time raised the subject of the Union in discussion with
Rahn or Rakowski is not, I find, probable. As the record
reflects, neither Rahn nor Rakowski had at any time been
a Local 51 adherent; neither one was known as such when,
as strangers , he applied for work at the Respondent; and
neither one, while working for the Respondent, at any time
engaged in a discussion of Local 51. Further, with the Re-
spondent under contract with the Teamsters, and having
been so for several years, there would appear no reason for
Gargano to show animosity toward Local 51; there is no
evidence that anyone, employee or supervisor, was out to
get either Rahn or Rakowski, each being a brand new em-
ployee with the Respondent, or is there any reason ad-
vanced as to why someone would want to give either trou-
ble, and thus, no credible evidence as to who the "reliable
people" might have been who assertedly told Gargano that
Rahn and Rakowski were talking Local 51. All of which
adds up to the fact that there just is no evidence or asserted
basis upon which Gargano might have relied in concluding
that Rahn or Rakowski was advocating Local 51. In find-
ing no credible evidence or independent corroborative tes-
timony upon which to substantiate the testimonial asser-
tions of Rahn and Rakowski, and thus, to impute a dis-
cnminatory motive for discharging the two employees, I
find the facts to be as testified to by Gargano and Orrach.5
Turning to the Respondent's assertion that it discharged
Rahn and Rakowski because of their poor production, as
credibly testified to by Orrach, a most forthright witness,
from the very beginning both employees were having diffi-
culty acquainting themselves with the machines, in "setting
up," and with their production. In checking the production
records daily, Orrach found that both employees were lag-
ging far behind all the other operators. At the end of the
first week he spoke with Gargano about Rahn and Rakow-
ski. Orrach questioned that either one was in fact an expe-
rienced collator operator, and told Gargano that he did not
think they were going to work out. Gargano agreed to give
them more time. Orrach then talked with both Rahn and
Rakowski, explaining that they were taking too long to set
up, that they had to improve their production, and that
they were the lowest producing collators in the shop, in-
cluding the collator trainees.
At the end of the second week, having continually
checked their daily production records and learning that
they were not picking up on their production, Gargano
again spoke with Orrach. Orrach told Gargano that both of
them were taking too long to set up a lot of their jobs,
accounting for their low production. Notwithstanding dis-
satisfaction with their production, Gargano was forced to
put them on the third shift as scheduled early in January in
order to honor his commitment to a second-shift operator
who had temporarily, as a favor to Gargano, moved to the
third shift while Rahn and Rakowski were breaking in.
Finally, in early January, Orrach went to Gargano, and
told him that he had to let these two operators go, that they
could not produce, and that had they been experienced
operators they should already have been at full speed with
the rest of the men. It was then that Gargano decided to
terminate both employees, and so instructed Orrach. Com-
pany production records introduced into evidence reflect
that the production of both Rahn and Rakowski through
the 4-week employment period with the Respondent was
below that of the other operators, and even below that of
5 Having found that Gargano did not at any time mention the Union to
Rahn or Rakowski, and specifically during the interview on December 12
and during the second week of Rakowski 's employment, each relied on by
the General Counsel in support of the independent 8(a)(1) allegations, I find
without merit that portion of the complaint alleging unlawful interrogation
of its employees by the Respondent
BREGG DATA FORMS, INC.
the apprentice collators, and thus tend to sustain the
Respondent's assertion that Rahn and Rakowski, after a
reasonable trial period, had failed to prove themselves qua-
lified as experienced collator operators, the position for
which each was hired.
On the record as a whole, including the lack of union
animus on the part of the Respondent, I find that the Gen-
eral Counsel has failed to prove by a preponderance of the
credible evidence that in discharging Kenneth Rahn and
Michael Rakowski on January 11, 1974, and thereafter not
reemploying them, the Respondent did so for discriminato-
ry reasons in violation of Section 8(a)(3) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, I make the following:
CONCLUSIONS OF LAW
1. Bregg Data Forms, Inc., is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. New York Printing Pressmen and Offset Workers
627
Union, No. 51, International Printing Pressmen and Assis-
tants Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in any unfair labor
practices as alleged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER6
It is recommended that the complaint herein be dis-
missed in its entirety.
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes