Chicago Tribune Co.

National Labor Relations Board - Board Decisions

Dec 28, 1990

300 N.L.R.B. 1055 (N.L.R.B. 1990)

1055
300 NLRB No. 151
CHICAGO TRIBUNE CO.
1 The Charging Party adopted the General Counsel’s brief in response.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In its exceptions, the Respondent also asserts that the judge engaged in im-
proper trial conduct, including, but not limited to, his interference with proper
cross-examination, his interference with the presentation of evidence, his forc-
ing counsel to introduce exhibits, his conducting sua sponte voir dire examina-
tion, and his sua sponte hearsay objections. After a careful examination of the
entire record, we are satisfied that the assertion is without merit.
In his decision the judge inadvertently stated that employee Martin
Kaczmarek used profanity on June 16. The correct date of the incident was
January 16.
In agreeing with the judge that the Respondent violated Sec. 8(a)(3) of the
Act by suspending employee Kaczmarek for ‘‘refusing to respond’’ to a pos-
sible fire situation, we do not rely on his conclusion that the situation was
not an emergency because ‘‘there was, in fact, no fire and no smoke, only
an odor.’’ However, we agree with the judge that the credited evidence shows
that there was no failure to respond to the situation because Kaczmarek imme-
diately attempted to locate the source of the smell of smoke.
3 In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(3) and (1) of the Act by discharging employee Kaczmarek, we agree with
the judge that the Respondent’s asserted reason, namely, Kaczmarek’s use of
obscene and profane language, was pretextual. In doing so, we agree with the
judge’s alternative finding that the Respondent failed to meet its burden under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), to establish that it would have taken the same
action with respect to Kaczmarek even absent his union activities. We do not,
however, adopt the judge’s finding that this case is not appropriate for a
Wright Line analysis. We emphasize that the Board’s test in the application
of Wright Line, 251 NLRB at 1089, applies to ‘‘all cases alleging violation
of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motiva-
tion,’’ including both ‘‘pretext’’ and ‘‘dual motivation’’ cases. Frank Black
Mechanical Services, 271 NLRB 1302 fn. 2 (1984).
1 On July 31, at the hearing that portion of the complaint in Case 13–CA–
28070 alleging a violation by prohibiting employees from bringing food on the
shop floor (par. V) was dismissed on motion by the Respondent, joined by
the General Counsel.
Chicago Tribune Company and Local 134, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Cases 13–CA–28070, 13–CA–28247,
and 13–CA–28311
December 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 3, 1990, Administrative Law Judge Peter E.
Donnelly issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in response.1
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 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, Chicago Tribune Com-
pany, Chicago, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Jessica T. Willis and Paul Bosanac, Esqs., for the General
Counsel.
Douglas A. Darch, Esq., of Chicago, Illinois, for the Re-
spondent.
Robert E. Fitzgerald Jr., Esq., of Chicago, Illinois, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On time-
ly filed charges by Local 134, International Brotherhood of
Electrical Workers, AFL–CIO (Union or Charging Party), a
complaint issued in Case 13–CA–280701 on November 22,
1988, alleging that Chicago Tribune Company (Respondent
or Employer) violated Section 8(a)(1) and (3) of the Act by
prohibiting employees from bringing food on the shop floor
and by suspending Martin Kaczmarek, an employee. There-
after, on January 24, 1989, a complaint issued in Case 13–
CA–28247 alleging that Respondent violated Section 8(a)(1)
and (3) of the Act by issuing a verbal and a written warning
to Kaczmarek. On March 7, 1989, a complaint issued in
Case 13–CA–28311 alleging that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by issuing a written discipli-
nary warning to Kaczmarek and subsequently discharging
Kaczmarek in about February 3, 1989. Answers were timely
filed by Respondent. On March 7, 1989, an order consoli-
dating cases and notice of consolidated hearing on Cases 13–
CA–28070, 13–CA–28247, and 13–CA–28311 was issued.
Pursuant to notice, a hearing was held before the administra-
tive law judge on June 22, 23, July 31, and August 1 and
2, 1989. Briefs have been timely filed by General Counsel,
Respondent, and Charging Party, which have been consid-
ered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
The Employer is an Illinois corporation engaged in the
production, circulation, and distribution of newspapers at its
facilities in Chicago, Illinois. During the past calendar year
in the course and conduct of its business operations, Em-
ployer derived gross revenues in excess of $200,000, held
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There is conflicting testimony regarding some allegations of the complaint.
In resolving these conflicts, I have taken into consideration the apparent inter-
ests of the witnesses. In addition, I have considered the inherent probabilities;
the probabilities in light of other events; corroboration or lack of it; and con-
sistencies or inconsistencies within the testimony of each witness and between
the testimony of each and that of other witnesses with similar apparent inter-
ests. In evaluating the testimony of witnesses, I rely specifically on their de-
meanor and have made my findings accordingly. While apart from consider-
ations of demeanor, I have taken into account the above-noted credibility con-
siderations, my failure to detail each of these is not to be deemed a failure
on my part to have fully considered it. Bishop & Malco, Inc., 159 NLRB
1159, 1161 (1966).
3 All dates refer to either 1988 or 1989 as appropriate to the chronology,
unless otherwise indicated.
4 All the electricians on each shift were members of the emergency response
team.
membership in or subscribed to various interstate news serv-
ices, published nationally syndicated features and advertised
various nationally sold products. During the past calendar
year, Employer, in the course and conduct of its business op-
erations, purchased and received at its Chicago, Illinois fa-
cilities, products, goods, and materials valued in excess of
$5000 directly from points outside the State of Illinois. The
complaint alleges, the Employer admits, and I find that the
Employer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Facts2
Respondent publishes the Chicago Tribune, as well as
press runs of USA Today. These operations are conducted
principally out of the Respondent’s Chicago printing facili-
ties known as Freedom Center. Approximately 1800 employ-
ees work at Freedom Center, which operates three shifts on
a 24-hour basis. Most of the newspaper runs take place in
late evening and early morning hours so that these editions
are available for early morning delivery. The third shift (11
p.m. to 7 a.m.), which is the shift primarily involved in the
instant case, has about 800 employees, including the alleged
discriminatee, Kaczmarek, who is an electrician on that shift.
The hierarchy of supervision from the top, insofar as rel-
evant here, consists of Thomas Hojnicki, director of engi-
neering, with overall supervision of electricians and machin-
ists. Franz Perfect, operations manager, was responsible for
electricians. Each of the three shifts employed an electrical
supervisor. On the third shift, these were Ken Muskievicz
until January 1989, and Leon Gebhart thereafter. As noted
above, Kaczmarek was an electrician on the third shift. Occa-
sionally, Kaczmarek was supervised by Tom Beilke, second
shift supervisor (3 p.m. to 11 p.m.), when Kaczmarek was
the ‘‘early man’’ on the third shift reporting to work 1 hour
early at 10 p.m.
For over 40 years, the electricians have been represented
informally, without a contract, by the Union. This informal
relationship terminated when the Union filed a petition for an
NLRB election, conducted on October 4, 1988, wherein the
Union was elected the exclusive bargaining representative for
the electricians’ unit. Kaczmarek had been a union member
throughout his employment, beginning in 1983. From 1986
until his discharge in February 1989, Kaczmarek was the
union steward for all three shifts of electricians. When union
unfair labor practice charges were filed, Kaczmarek gave a
statement to the National Labor Relations Board. During the
election campaign, Kaczmarek was an active and open union
supporter. In this regard, Kaczmarek told electricians about
upcoming organizational meetings and attended organiza-
tional meetings during the summer of 1988. He campaigned
for the Union at work, soliciting employee support for the
Union at lunchtimes and during breaks. He also appeared to
testify at the representation case hearing set for August 17,
1988.3 Several times prior to the October 4 election,
Kaczmarek wore a T-shirt to work inscribed ‘‘October 4th
Vote Yes.’’ He was observed by several supervisors wearing
the T-shirt, including Hojnicki, Perfect, and Gebhart.
Hojnicki and Perfect commented to him about the T-shirt.
Kaczmarek also acted as the Union’s observer at the October
4 election.
On the same day of and after the election, at about 5 a.m.,
Kaczmarek was doing some preventive maintenance work in
the reel room in the area of press 3 when he was approached
by Robert Sweet, a pressroom supervisor who was unknown
to Kaczmarek, although Sweet knew who Kaczmarek was
and was aware that he was a union member. Sweet men-
tioned to Kaczmarek that he smelled smoke and asked
Kaczmarek if he smelled it. Kaczmarek credibly testified that
he told Sweet that he did not smell any smoke and directed
Sweet to his foreman, Ken Muskievicz, who was also the
leader of the emergency response team charged with re-
sponding to emergency situations.4 Sweet left; Kaczmarek
stopped working and began to investigate Sweet’s concern.
As Kaczmarek began to investigate, he smelled an odor. He
went to the reel room where he inspected drive motors for
overheating and was discussing the problem with two ma-
chinists named Bill Stewart and Bob Wojota. In the mean-
time, Sweet had approached Hojnicki and complained that
when he asked Kaczmarek about the smell, he got a ‘‘smart
ass answer’’ to go ask Kaczmarek’s foreman. Hojnicki then
went to Kaczmarek and directed him to find the source of
the odor. It does not appear that Hojnicki said anything to
Kaczmarek about Kaczmarek’s response to Sweet nor did
Kaczmarek say that he was already looking for the source of
the odor at the time Hojnicki approached him.
On further investigation, Kaczmarek determined that there
was no smoke and no fire; that the odor was coming from
a heat duct, apparently the type of odor caused by turning
on an unused electric heating system. Kaczmarek then went
to Hojnicki and reported this to him.
As to this incident, Sweet wrote a memo dated October 4
to his supervisor, Bill Unger, manager/plate and press, recit-
ing:
This letter is to inform you of what I consider a poor
response to a question asked to one of our support staff
members.
This morning Lee Langon, Don Wickersham, and
myself were in the Pressroom Office when Lee re-
ceived a call from someone saying they smelled smoke
in the Pressroom. Upon our investigation it seemed the
strongest odor of smoke was coming from the area
1057CHICAGO TRIBUNE CO.
around Press 3, the Audit press. I thought there might
have been a chance of some welding being done since
Electricians and Machinist were working on the Audit.
I asked an Electrician named Marty if he had
smelled any smoke, and he responded yes. I walked
away to continue looking for the source of the smell.
A few minutes later I returned to Marty and asked him
if he knew if anyone had been welding in the
Reelroom. Marty’s response was for me to go to the
Machine Shop Office and ask Kenny the Foreman.
I don’t feel this response was appropriate from an
Electrician when being asked about a possible fire situ-
ation by a Pressroom Supervisor.
Hojnicki, by memo dated October 4, wrote to Perfect stating,
inter alia:
Subject: Possible Fire Situation
At approximately 05:00 hours while touring the
Reelroom area, Bob Sweet approached me and ap-
peared concerned about the strong smell of smoke odor
around press #3. It smelled like an electrical fire.
Bob Sweet indicated that he approached M.
Kaczmarek and asked for help and was told ‘‘see my
foreman.’’ I later approached Marty and told him to
stop what he was doing and assist us in locating the
source of smoke.
Franz, I was of the opinion that our electricians are
part of an emergency response team. I think that M.
Kaczmarek demonstrated his lack of interest in the situ-
ation, and did not effectively represent this department
in what could have been a most serious situation.
It is important that you reinforce this division’s posi-
tion in matters such as this.
Unger also wrote to Hojnicki, by memo dated October 5,
stating:
I’m sure you will agree that this type of cooperation
in a potentially dangerous situation is not acceptable.
Response by your staff is critical. It could have been
a ‘‘fire’’!
A memo on Perfect’s calendar for October 6 reads:
TOM HOJNICKI GAVE ME LETTERS FROM BOB SWEET,
BILL UNGER AND HIMSELF. THE LETTERS RELATED AN
INCIDENT ON OCT 5 IN WHICH M. KACZMAREK DID NOT
RESPOND TO A SMOKE CALL ON PRESS 3. I WILL MEET
AUDREY BANK TO DISCUSS THIS AT 4:20.
AUDREY BANK WE WILL MEET AT 6:00 AM. TOMOR-
ROW TO TALK TO MARTY KACZMAREK ABOUT THE FIRE
RESPONSE PROBLEM.
However, Perfect went on vacation and it was not until Octo-
ber 12 that a disciplinary meeting was held. In addition to
Kaczmarek, the meeting was attended by Perfect and Luis
Lewin, manager of employee relations who is Banks’ super-
visor. It is undisputed that whatever investigation was con-
ducted prior to October 12, it did not extend to Kaczmarek,
Stewart, or Wojota. At the October 12 meeting, Kaczmarek
was advised that he was being suspended without pay for
failing to respond to a fire emergency, pending further inves-
tigation to determine his employment status. Kaczmarek de-
clined to give any statement to Lewin, saying that the matter
was idiotic and that he would consult his attorney.
On October 18, Kaczmarek was called by Perfect to report
on October 19 at 6:45 a.m. for a meeting with Lewin. This
meeting was also attended by Jim Kulas, who Kaczmarek
thought was a lawyer for Respondent. Kaczmarek was given
a written suspension from Perfect dated October 19, which
he refused to sign. The suspension notice read:
On October 12, 1988, you were placed on suspen-
sion without pay pending further investigation and a re-
view of all facts regarding your serious violations of es-
tablished Company policies prohibiting safety viola-
tions; neglect of job duties; refusal to carry out super-
visor’s instructions; and failure to respond to an emer-
gency situation as a qualified member of the EMER-
GENCY RESPONSE TEAM.
On October 4, 1988, at approximately 5:00 a.m.,
there was a strong smell of smoke around Press #3
where you were assigned. The smoke smelled like an
electrical fire. You failed to immediately respond and,
when approached by a supervisor and directed to take
care of the problem, you responded, ‘‘go see my fore-
man.’’ The division manager of the Engineering De-
partment had to request you personally to locate the
source of the smoke. Your negligence in responding to
a potential emergency situation was a very serious un-
safe act. A possible fire in the Pressroom could have
catastrophic consequences in terms of injuries to fellow
employees and damage to very expensive equipment.
As a member of the EMERGENCY RESPONSE TEAM you
have been specifically trained to respond to situations
like this. In addition, as an electrician assigned to the
Pressroom, you should have responded immediately.
Your refusal to respond to a potential emergency situa-
tion is a very serious violation of Company policy.
After conducting a thorough investigation and a re-
view of all pertinent facts regarding the aforesaid viola-
tions, we have no other alternative but to uphold your
suspension without pay from October 12, 1988, to Oc-
tober 19, 1988.
The aforesaid serious violations of Company policies
and procedures are inexcusable. Please be advised that
this is your LAST AND FINAL WARNING. Any additional
violations of Company policies and/or procedures will
result in the immediate termination of your employment
with Chicago Tribune Company.
Since the time of his suspension had been served, Kaczmarek
was allowed to return to work that evening.
On November 4, another incident occurred. Kaczmarek
was working as the early man on the third shift. As the early
man, Kaczmarek reported to work 1 hour early at 10 p.m.
and worked until 6 a.m. Each shift had an early man who
reported 1 hour early. The purpose of the early man was pri-
marily to cover a time period of about one-half hour from
about 10:45 p.m., when the electricians on the second shift
left the floor to wash up, to 11:15 p.m. when the third-shift
electricians reported to work on the floor. The early man also
performed prerun checks on press equipment, covered run-
ning press lines, and was available for emergencies.
On November 4, Kaczmarek reported to work sometime
before 10 p.m. He went to the second floor maintenance
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shop to get his tools. On the way to the elevator, at a few
minutes past 10 p.m., he stopped at the cafeteria. Perfect and
Tom Beilke were also in the cafeteria at this time. He pur-
chased coffee and some food which he carried with him to
the elevators and then to the fifth floor maintenance shop.
When he arrived on the fifth floor, Kaczmarek went to the
fifth floor maintenance shop to check the log to see if any
breakdowns had occurred requiring his attention. There being
none, he went to the back of the shop, set down his food
and coffee on a table and, as he took a bite, there came into
the shop Perfect and Beilke, who told Kaczmarek that he
was out of his work area and was not supposed to be eating.
With that, Kaczmarek put the food into the refrigerator,
picked up his tools, and went out onto the shop floor.
Kaczmarek testified that there were no work rules prohib-
iting eating in the maintenance shop and it was part of his
normal routine, when he was the early man, to stop at the
cafeteria for coffee and food. This testimony was corrobo-
rated by electricians Gene Szostak and Frank Sojka, both of
whom testified that it was a normal practice to pick up food
and drink to consume when starting work as early men. It
does not appear that this practice had been previously prohib-
ited. Szostak testified, ‘‘I don’t know if it is a verbal. It is
just understood, you know. It has always been done. You eat
in the shop.’’
On November 10, Kaczmarek was called into Perfect’s of-
fice. Beilke and Muskievicz were also in attendance.
Kaczmarek was advised by Perfect that he was being given
a verbal warning for eating and being absent from his work
area. Kaczmarek protested that Muskievicz had allowed this
since the cafeteria closed before the third shift’s regularly
scheduled lunchbreak. Muskievicz denied this at this time but
later conceded that he and Perfect had authorized third-shift
electricians to take an early lunch when requested and work
allowed, because the cafeteria hot food line closed at mid-
night. Muskievicz apologized to Kaczmarek for having de-
nied this in Perfect’s office.
On November 15, Kaczmarek was called into Perfect’s of-
fice and given a written warning dated November 10, de-
scribed as a ‘‘verbal warning,’’ covering the incident.
Kaczmarek refused to sign it. The warning read:
This is to confirm our conversation of Thursday, No-
vember 10, 1988, regarding your unauthorized absence
from your work area.
On November 4, 1988, you were assigned to be the
‘‘early morning person’’ on the third shift. As you are
well aware, the ‘‘early morning person’’ starts his shift
one hour earlier than the rest of the electricians. The
purpose of this early start is to insure a smooth transi-
tion between shifts in the packaging area. It is the re-
sponsibility of the ‘‘early morning person’’ to begin
work promptly and to seek out electricians from the
previous shift to make sure that he’s well acquainted
with any problems which will transfer to his shift. He’s
also accountable for checking out equipment to insure
that all is ready for the run of his shift. These respon-
sibilities have been explained to all electricians and is
part of their overall performance.
On the above date, you were found at approximately
10:10 p.m. (start time (10:00 p.m.) eating instead of
being at your assigned work area in the Packaging De-
partment. This is a direct violation of departmental pro-
cedures.
Please be advised that this is a VERBAL WARNING.
The unauthorized absence from the work area com-
promises the efficient performance of work duties. Any
additional violations of policies and/or procedures will
lead to further and more severe corrective action which
could be the termination of your employment with the
Chicago Tribune Company.
Be further advised that this is your second violation
of company policy. On October 19, 1988, you received
a Last and Final Warning for serious violations of com-
pany policy.
In another incident on January 16, 1989, Kaczmarek was
working with an apprentice electrician, Mike Kielba. At
about 11:15 p.m., Kaczmarek suggested that they go into the
breakroom on the fifth floor to have a cigarette and divide
up some of their assigned work. When they entered the
breakroom, which is the only designated smoking area on the
fifth floor, they discovered that a meeting was in progress
being conducted by Ed Cook, a packaging department super-
visor, and some eight employees under his supervision. It ap-
pears that Cook and Kaczmarek exchanged words, with Cook
asking them to leave because he was conducting a meeting.
Kaczmarek complained that since this was the only smoking
area on the fifth floor, that Cook should hold his meeting
elsewhere. Cook testified that Kaczmarek, on leaving, asked
‘‘why the fuck’’ he could not smoke there, and told Cook
that he should ‘‘get his shit’’ together.
On January 17, Cook called Audrey Banks and reported
the incident to her. On the following day, January 18, Banks
and Perfect met with Kaczmarek and advised him of the alle-
gations that had been made against him by Cook and asked
if he would like to give a statement relating his account of
the incident. Kaczmarek refused to do so without first con-
sulting an attorney and thereupon he was again suspended in-
definitely pending investigation by Respondent of the inci-
dent to determine if further disciplinary action was war-
ranted.
On January 25, while on suspension, Banks called
Kaczmarek and asked if he would come to the plant to give
statement on the January 16 incident. On the morning of Jan-
uary 26, Kaczmarek went to the plant. A meeting took place
in Lewin’s office, attended by Lewin, Kulas, and Kaczmarek.
Lewin was taking notes of Kaczmarek’s version of the inci-
dent. Perfect was not present at this meeting, however Lewin
handed Kaczmarek a written warning dated January 26 from
Perfect concerning another incident which had occurred on
January 10, predating the January 16 incident, wherein
Kaczmarek was alleged to have refused to cooperate with a
newsprint supervisor as to an overload problem on a graphic
panel, telling the supervisor to call the electrical shop for as-
sistance. That warning reads:
This is to confirm our conversation of Thursday, Jan-
uary 26, 1989 regarding your unacceptable perform-
ance.
On January 10, 1989 you were assigned to work in
the Reel Room. At approximately 6:10 a.m. (regular
working hours), a newsprint supervisor requested assist-
ance because of an overload on one of the graphic pan-
1059CHICAGO TRIBUNE CO.
els. You refused to cooperate and told the supervisor to
call the shop and proceeded to leave the area. Prior to
this incident your own supervisor informed you that re-
sponding to these situations was a requirement of your
job. Your failure to follow procedures outlined by your
supervisor is a direct violation of company policy. In
addition to other violations; you were also found taking
an unauthorized break in direct violation of depart-
mental policies and procedures. This failure to neglect
your duties is very serious .
Please be advised that this is a warning for a serious
violation of procedures. Any similar incidences will re-
sult in either suspension and/or the termination of your
employment with Chicago Tribune.
Be further advised that this is your third violation of
company policy.
This was the first time that this incident had been called
to Kaczmarek’s attention. Kaczmarek refused to sign the
warning and told Lewin that he was not involved in that inci-
dent at all; that he was not there. It is undisputed that Perfect
had not spoken to Kaczmarek from the time he was sus-
pended on January 18 until Lewin gave him the written
warning from Perfect on January 26.
With respect to the January 10 incident itself, John
Cannizzo, a newsprint supervisor, testified that about 6:10
a.m., he walked past a breakroom where he saw three elec-
tricians but could identify only Kaczmarek. As he walked
into the reel room he noticed that an overhead light on a
conveyor system was lit. At first, Cannizzo thought the elec-
tricians were working on it, but when it was still lit some
20 minutes later, he went to the breakroom and asked
Kaczmarek if they were working on the conveyor light.
Kaczmarek said they were not and Cannizzo asked if they
would take a look at the problem or whether he should call
the shop. According to Cannizzo Kaczmarek directed him to
call the shop. Cannizzo then called Gebhart, but he was ab-
sent for the day. Cannizzo then decided to look into the
problem himself and solved it by simply pressing the reset
button. Cannizzo testified:
I went to the conveyor panel where the light was on.
Normally, sometimes during a lot of heavy use the con-
veyors will overload. It is just a matter of pressing a
reset button. It is a fairly standard practice. Rather than
bother a machinist or electrician to run downstairs to
reset it, we do it ourselves. If that was the case I could
take care of that. It was. I went over there and press[ed]
the reset button and the conveyor reset.
Kielba testified that he and another electrician, Dave Coo-
per, were in the breakroom when Cannizzo came in and
asked them if they knew anything about a conveyor system
that was not running. According to Kielba, Kaczmarek was
not to his recollection in the breakroom. They did not and
suggested that Cannizzo call the shop, that maybe someone
was working on it or they would send someone to check it
out, whereupon Cannizzo simply said okay and left. Having
reviewed the record and in evaluating the probative testi-
mony, I am satisfied that Kielba and Kaczmarek’s recollec-
tions are more reliable. Cannizzo’s testimony was
unimpressive, particularly in its failure to clearly establish
the positions and identities of those in the breakroom.
Kielba’s testimony was more credible, particularly since it
was given against the interests of his own employer. In short,
I am persuaded that Kaczmarek was not present during the
time of this incident. On the next day, Cannizzo told Gebhart
about the incident. Gebhart asked Cannizzo if he would pro-
vide a statement later if it were needed, and he agreed. Sub-
sequently, Lewin called Cannizzo and asked him to write up
a brief statement about the incident. By memo dated January
17, Cannizzo complied with Lewin’s request. That memo
reads:
AT APPROX. 6:10 AM ON TUES 1-10-89 I ENTERED
NEWSPRINT OP. THRU SOUTH DOOR AND SAW 3 PEOPLE
SITTING IN THE SOUTH CANTEEN. THEY WERE MARTY
KACZMAREK (2) AN ELECTRICIAN, AN ELEC. APPREN-
TICE WHO I KNOW BY SIGHT, BUT NOT NAME AND 1
OTHER EMPLOYEE WHO I DO NOT KNOW AND COULD
NOT IDENTIFY. I SAW AN OVERLOAD ON ONE OF MY
GRAPHIC PANELS & THOUGHT THAT THEY WERE WORK-
ING ON THE SYSTEM. I RETURNED ABOUT 6:35 AM AND
ASKED THEM IF THEY WERE WORKING ON THE SYSTEM.
THEY SAID ‘‘NO.’’ I THEN ASKED IF I SHOULD CALL
THE SHOP OR IF ONE OF THEM WOULD TAKE A LOOK
AT THE OVERLOAD FOR ME. MARTY RESPONDED ‘‘CALL
THE SHOP BECAUSE THEY WEREN’T WORKING DOWN
HERE. (OR SOMETHING SIMILAR) THEY THEN GOT UP
AND WENT THEIR OWN WAYS. I FOUND THE PROBLEM
AND TOOK CARE OF IT MYSELF. I DIDN’T REPORT THIS
TO THE ELECT. SHIFT SUPERVISOR TILL 1-12-89.
Kielba and Cooper were also given written warnings in
connection with this incident. However, both of these warn-
ings were rescinded by Perfect. As to Kielba, Perfect deter-
mined that since Kielba, an apprentice, was obligated to fol-
low the directions of a journeyman, he was not responsible
for the incident. As to Cooper, his disciplinary notice was re-
scinded by Perfect on the grounds that it was Kaczmarek, not
Cooper, assigned to cover trouble calls that day and that dis-
cipline was not appropriate.
After the meeting on January 26, Kaczmarek’s suspension
continued and Kaczmarek received notice of his termination
by letter from Perfect dated February 3, 1989. The letter
reads:
This is to apprise you of your employment status
with Chicago Tribune Company. On January 18, 1989,
you were placed on suspension without pay pending
further investigation and review of all facts regarding
your alleged serious violations of established company
policies prohibiting the harassment of other employees;
the use of vile, obscene and profane language, and of-
fensive and abusive behavior toward a management
representative. At this time, you were informed that a
determination regarding your employment status with
the Chicago Tribune Company would be communicated
to you.
After conducting a thorough investigation, including
your own statement of the facts, it has been determined
that all relevant facts regarding the aforestated vio-
lations of company policies have been substantiated.
Specifically, on January 16, 1989 at approximately
11:15 p.m. (unauthorized break time), you went into the
west canteen on the 5th floor to smoke a cigarette. The
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
door on the canteen was closed because a Packaging
Supervisor was holding his regularly scheduled weekly
meeting with his crew. At this time, the Packaging Su-
pervisor told you that he was having a crew meeting
which would end in approximately ten minutes. You
became abusive and offensive toward this Supervisor,
and used obscene and profane language which resulted
in several complaints of harassment from the Packaging
employees in this room. This resulted in employees be-
coming extremely upset and in the disruption of this
meeting.
A review of your overall performance shows that
you have continuously refused to abide by company
and/or departmental policies and procedures. Specifi-
cally, on October 12, 1988, you were placed on suspen-
sion without pay for refusing to respond to an emer-
gency situation; on November 10, 1988, you were
issued a a warning for an unauthorized absence from
your work area, and on January 10, 1989, you were
issued another warning for 15neglect of duties and tak-
ing an unauthorized break.
Based on the aforestated repeated violations of com-
pany and departmental policies, we have no other alter-
native but to terminate your employment with Chicago
Tribune Company effective immediately.
B. Analysis and Conclusions
Respondent contends that Kaczmarek was disciplined for
engaging in various misconduct which justified his suspen-
sion and subsequent discharge. The General Counsel takes
the position that the justification offered for the disciplinary
actions against Kaczmarek were pretextual and that the Re-
spondent was actually motivated by antiunion considerations.
I am satisfied that the General Counsel’s position should pre-
vail.
Turning first to Kaczmarek’s union activity, there can be
no doubt that Kaczmarek was an active union official and
supporter and that Respondent was aware of his activities on
behalf of the Union. As set out more fully above, Kaczmarek
was shop steward fully committed to the Union’s organiza-
tional effort and an observer at the election held on October
4.
With respect to the October 4 incident, Kaczmarek was
suspended on October 12 for what was described in the Feb-
ruary 3 discharge letter as ‘‘refusing to respond to an emer-
gency situation.’’ This conclusion is not warranted by the
facts. When Kaczmarek was approached by Sweet, although
he did not smell smoke himself, he directed Sweet to contact
his supervisor who, as head of the emergency response team,
needed to be notified. Sweet only asked Kaczmarek if he
smelled smoke and did not ask Kaczmarek to help him look
for the source. Moreover, Kaczmarek did not refuse to re-
spond and, in fact, he began to investigate the situation and
was so engaged when Hojnicki asked him to check out the
source of the odor. Nor was the situation an emergency,
since, as Kaczmarek discovered, the odor was coming from
heat ducts caused when the heating system was turned on.
There was, in fact, no fire and no smoke, only an odor. In
these circumstances, noting particularly Respondent’s failure
to interview Kaczmarek, I am convinced that Kaczmarek was
suspended on October 12 for his activities on behalf of the
Union and not for any misconduct because, in my view,
there had been no ‘‘refusal to respond’’ and no ‘‘emergency
situation,’’ whatever Sweet’s reaction to his conversation
Kaczmarek may have been.
Turning to the verbal warning of November 10 and the
followup written warning of November 15, it appears that
Kaczmarek, when he came to work as the early man, picked
up some food which he was eating in the fifth floor mainte-
nance shop when confronted by Perfect and Beilke. While
the Respondent’s discipline was predicated on Kaczmarek’s
‘‘unauthorized absence from the work area,’’ the mainte-
nance shop is a part of the work area. Respondent really ap-
pears to be contending that Kaczmarek was disciplined be-
cause he was eating when he should have been working.
However, the evidence discloses that there are no rules pro-
hibiting the eating of food in that area and that it was com-
mon for electricians on all three shifts when serving as early
men to do so, and none, except Kaczmarek, had ever been
disciplined. Crediting, as I do, the testimony from elec-
tricians that eating at this time was a common practice, it is
highly improbable that the shift foremen were not aware that
it was happening, which persuades me that Kaczmarek was
singled out by Respondent for disciplinary action. Noting
particularly the prior unlawful suspension of Kaczmarek on
October 12, I conclude that the disciplinary action of No-
vember 10 and 15 also constitute disparate treatment, under-
taken because of Kaczmarek’s activities on behalf of the
Union.
The January 26 disciplinary warning recites Kaczmarek’s
refusal on January 10 to cooperate with a newsprint super-
visor in connection with an overload light on a graphic panel
and taking an unauthorized break. As noted above, I con-
clude that Kaczmarek was not involved in that incident, and
accordingly that Respondent’s recital of that incident does
nothing to support its contention that Kaczmarek’s discharge
was justified by disciplinary considerations. Further, I con-
clude that this warning was discriminatorily motivated. In
this regard, I have concluded that Cannizzo was not a reli-
able witness and have credited the testimony of Kaczmarek
and Kielba that Kaczmarek was not present.
In addition, even assuming that he was, this was an insig-
nificant matter, not warranting disciplinary action. Moreover,
while the other participants in the incident had their warnings
rescinded, Kaczmarek’s was retained and cited as a factor in
his discharge. In context with the other 8(a)(3) misconduct
found, consisting of written warnings, suspensions, and fi-
nally discharge, I conclude that the January 26 written warn-
ing was a part of a continuing pattern of discrimination being
conducted against Kaczmarek in an effort to provide a pro-
gression of disciplinary action in the hope of justifying
Kaczmarek’s discharge.
Finally, as to the January 16 smoking in the breakroom in-
cident, it seems to me that Respondent’s characterization of
the incident is a distortion of what actually occurred.
Kaczmarek and Kielba went to the only designated smoking
area on the floor, a breakroom, for a smoke. The room was
occupied by Cook who was using it for a meeting with his
supervisees. While it may be that Kaczmarek reacted with
some profanity to his disappointment at not being able to
smoke in the breakroom, I cannot conclude that this mis-
conduct was sufficiently serious to constitute, either standing
alone or in context with other incidents cited by Respondent,
sufficient justification for his discharge. In short, the evi-
1061CHICAGO TRIBUNE CO.
5 251 NLRB 1083 (1980).
6 In accordance with the Board’s decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on or after January 1, 1987, shall be com-
puted at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set
out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued
prior to January 1, 1987 (the effective date of the 1986 amendment to 26
U.S.C. § 6621, shall be computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977).
7 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 objec-
tions to them shall be deemed waived for all purposes.
8 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
dence adduced at this hearing convinces me that Respondent,
since the time of the October 4 election, was seeking out in-
cidents, however trivial, on which to build a record to sup-
port Kaczmarek’s eventual discharge. Accordingly, I con-
clude that the reasons assigned by Respondent for the dis-
ciplinary action it took were pretextual and that the real rea-
son was Kaczmarek’s open, significant, and long-term sup-
port for the Union. I do not regard this as a dual motive case
appropriate for the application of ‘‘Wright Line’’5 criteria. I
conclude that there was only one motive for the disciplinary
action taken by Respondent and that was discriminatory,
prompted by Kaczmarek’s union activity. Cone Mills Corp.,
298 NLRB 661 (1990).
However, in the event that a Wright Line theory were
deemed appropriate, I further conclude that only
Kaczmarek’s use of profanity during the June 16 incident
could be viewed as misconduct. However, as noted above,
the substance of the misconduct, despite Respondent’s hyper-
bole, was inconsequential. Therefore, I conclude that General
Counsel has made out a prima facie case since Kaczmarek’s
protected union activity was a motivating factor in Respond-
ent’s decision to discharge him. I further conclude that Re-
spondent has not sustained its burden under Wright Line of
showing that it would have taken the same action, even in
the absence of Kaczmarek’s union activity. In fact, the only
misconduct so trivial as to virtually preclude such a result.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with Respondent’s operations
described in section I above, have a close and intimate rela-
tionship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
REMEDY
Having found that the Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend that it
cease and desist and take certain affirmative action des-
ignated to effectuate the policies of the Act. I have found
that Respondent suspended and discharged Martin
Kaczmarek for reasons which offended the provisions of Sec-
tion 8(a)(3) and (1) of the Act. I shall therefore recommend
that Employer make him whole for any loss of pay he may
have suffered as a result of the discrimination practiced
against him. All backpay and reimbursement provided herein,
with interest, shall be computed in the manner described in
New Horizons for the Retarded.6
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By suspending and later discharging Martin Kaczmarek,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By issuing written disciplinary notices to Martin
Kaczmarek on November 10 and 15, and January 26, Re-
spondent has engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(3) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Chicago Tribune Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing verbal or written warnings to employees in
order to discourage their membership in or activities on be-
half of Local 134, International Brotherhood of Electrical
Workers, AFL–CIO, or any other labor organization.
(b) Suspending or discharging employees in order to dis-
courage their membership in or activities on behalf of Local
134, International Brotherhood of Electrical Workers, AFL–
CIO, or any other labor organization.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Martin Kaczmarek immediate and full rein-
statement to his former job or, if that job no longer exists,
to substantially equivalent employment, and make him whole
for any loss of pay he may have suffered as a result of the
discrimination practiced against him in the manner set forth
in the remedy section of this decision.
(b) Remove from its files the disciplinary memos of No-
vember 10 and 15, and January 26 and any references to the
suspensions or discharge of Martin Kaczmarek, and notify
him in writing that this has been done and that evidence of
his unlawful suspensions and discharge will not be used as
a basis for future personnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security records and reports, and all other records nec-
essary to analyze the amount of backpay due.
(d) Post at its Freedom Center facilities in Chicago, Illi-
nois, copies of the attached notice marked ‘‘Appendix.’’8
Copies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be taken by the Respondent to ensure that the 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 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 issue verbal or written warnings to employ-
ees in order to discourage their membership in or activities
on behalf of Local 134, International Brotherhood of Elec-
trical Workers, AFL–CIO, or any other labor organization.
WE WILL NOT suspend or discharge employees in order to
discourage their membership in or activities on behalf of
Local 134, International Brotherhood of Electrical Workers,
AFL–CIO, or any other labor organization.
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 offer to Martin Kaczmarek immediate and full
reinstatement to his former job or, if that job no longer ex-
ists, to substantially equivalent employment, and make him
whole for any loss of pay he may have suffered as a result
of the discrimination practiced against him.
WE WILL remove from our files the disciplinary memos of
November 10 and 15, and January 26 and any references to
the suspensions or discharge of Martin Kaczmarek, and no-
tify him in writing that this has been done and that evidence
of his unlawful suspensions or discharge will not be used as
a basis for future personnel action against him.
CHICAGO TRIBUNE COMPANY