Consolidated Accounting Systems, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1976

225 N.L.R.B. 93 (N.L.R.B. 1976)

CONSOLIDATED ACCOUNTING SYSTEMS 93
Consolidated Accounting Systems , Inc. and Printing
Pressmen and Graphic Arts Union No. 3, affiliated
with International Printing and Graphic Communi-
cations Union , AFL-CIO. Cases 13-CA-14600 and
13-RC-13788
June 24, 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On March 31, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
consolidated proceeding was heard at Chicago, Illinois, on
January 12 and 13, 1976. In the unfair labor practice case
(Case 13-CA-14600), in which the charge was filed on Au-
gust 13, 1975,1 and the complaint was issued on October
10, the questions presented are whether Consolidated Ac-
counting Systems, Inc. (the Company) interrogated and
threatened its employees in connection with their union
activity, in violation of Section 8(a)(1) of the National La-
bor Relations Act, as amended (the Act), and discharged
employee Richard Gillespie because of his activity on be-
half of the Printing Pressmen and Graphic Arts Union No.
3, affiliated with International Printing and Graphic Com-
munications Union, AFL-CIO (the Union), in violation of
Section 8(a)(3) and (1) of the Act. Pursuant to a petition
filed by the Union after the alleged commission of these
unfair labor practices and a Stipulation for Certification
Upon Consent Election between the Union and the Com-
pany, an election was conducted on September 19. The
tally of ballots disclosed a 3-to-3 tie vote, with a challenged
ballot cast by Richard Gillespie, the alleged discriminatee
in the unfair labor practice case. The issue in the represen-
tation case (Case 13-RC-13788) is Gillespie's eligibility,
which turns on whether his preelection discharge was un-
lawf ul.
Upon the entire record,2 including my observation of the
witnesses, and after due consideration of the brief filed by
counsel for the General Counsel and the brief and appen-
dix filed by the Company, I make the following:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Consolidated Account-
ing Systems, Inc., Highland Park, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
IT IS FURTHER ORDERED that Case 13-RC-13788 be,
and it hereby is, remanded to the Regional Director
for Region 13 for further proceedings consistent with
the recommendations of the Administrative Law
Judge.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
FINDINGS OF FACT
1. JURISDICTION
The Company is an Illinois corporation with its plant
and office located in Highland Park, Illinois, where it man-
ufactures and retails office supplies. During the year pre-
ceding the issuance of the complaint, a representative year,
it made direct shipments valued at more than $50,000 to
points outside Illinois. I find that, as the Company con-
cedes, it is engaged in commerce within the meaning of the
Act, and that assertion of jurisdiction over its operations
will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
1 All dates hereafter are 1975 unless otherwise stated
2 The unopposed motion of counsel for the General Counsel to correct
the transcript in certain respects is hereby granted
The Company correctly points out that the transcript of the oral testimo-
ny fails to show that Resp Exh 5 was received in evidence However, the
exhibit shows on its face that it was received, and my notes also so show I
have considered it as a part of the record herein
225 NLRB No. 13
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Richard Gillespie was hired by the Company in July
1973 as an offset pressman, at $5 an hour. He received a
25-cent wage increase in November 1973, and a 15-cent
increase in May 1974.
In September 1974, employee William O'Donnell went
into Company President Harold Petit's office to ask him
for a raise for himself and fellow pressmen Gillespie and
Paul Malchow. Petit replied that he was "not about to let
[O'Donnell] walk in there like a union and [Petit was] not
going to negotiate or discuss anything with [O'Donnell]
coming in, as [he] did, for the three men."
About May 1, 1975, Gillespie met with Petit and Compa-
ny Executive Vice President Richard LeVally. Gillespie
told them that he was going to quit in 2 weeks unless he
received a 25-cent raise. He was told that the current fiscal
year ended on May 31, and that he would get a raise if the
Company made money during that year. Petit said, "I
think you are making a mistake if you quit. We want you
to stay." The first payday after May 31 was June 2. Gilles-
pie became angry at the fact that his paycheck did not
contain a raise Employee O'Donnell told him that the
June 2 check covered the pay period in May before the
fiscal year ended, and that, if he was going to receive the
raise, it would be on the next check Gillespie then settled
down and continued to work. No raise appeared in
Gillespie's next paycheck, on June 16. Gillespie thereupon
went into LeVally's office, threw his check stub onto Le-
Vally's desk, complained that he had not received a raise,
and accused the Company of lying to him about the mat-
ter.3 Later that day, LeVally told Gillespie that the Compa-
ny had heard from several former employees who were
looking for jobs, and Gillespie replied that he "hoped to
hell one of them was a pressman " 4
Plant Manager Rowland operated the papercutter to cut
all the stock for pressmen O'Donnell and Malchow, except
that after early 1975, O'Donnell would run the papercutter
when Rowland was not in the building. However, prior to
the June 16 conference with LeVally, Gillespie, the only
other pressman , had frequently operated the papercutter to
cut his own stock. After the June 16 incident, Gillespie told
Rowland that Gillespie would not operate the papercutter
During the next 2 weeks (see infra), Rowland cut
Gillespie's stock as well as O'Donnell's and Malchow's,
except that Gillespie cut his own material when Rowland
was not around. Rowland never asked Gillespie to operate
J
My findings about the dates and contents of the Gi llespie-Petit- LeVally
conference and the Gillespie-LeVally conference are based on Gillespie's
testimony, to some extent corroborated by O'Donnell's testimony about his
June 2 conversation with Gillespie Although still in the Company's employ
at the time of the hearing, Company President Petit did not testify For the
reasons stated infra, sec I1,C,1,b, I do not believe LeVally's testimony as to
the dates and contents of such conversations
4 My finding in this sentence is based on a composite of Gillespie's testi-
mony and Resp Exh 10, an allegedly contemporaneous memorandum pre-
pared by LeVally For reasons stated infra, I believe Gillespie's testimony
that this discussion occurred after the conversation in LeVally's office, rath-
er than during it as implied in Resp Exh 10 However, I do not regard the
issue as of any significance
the papercutter After about 2 weeks, in early July 1975,
Gillespie decided-of his own volition, and without any
prodding by Rowland-that Gillespie's failure to run the
papercutter was "`kind of stupid," and he resumed operat-
ing it as he had before. In early 1975, O'Donnell had re-
fused the instructions of both Rowland and Petit to run the
papercutter. He was never told that he would be dis-
charged for his refusal, and was still working for the Com-
pany at the time of the hearing in January 1976.
O'Donnell, whose demeanor impressed me favorably,
testified that Gillespie failed to operate the papercutter for
"a short period of time" after June 16 (Gillespie specified 2
weeks), that O'Donnell had never seen him unoccupied
during this period, and that Gillespie's failure to operate
the papercutter helped the operation of the printing room
because "we had one more man working in the back
room." The Company contends that Rowland "had to .. .
run the papercutter for a matter of several weeks while
Gillespie would just sit and wait." As to Gillespie's conduct
when Rowland was operating the papercutter, the Compa-
ny points to Gillespie's testimony that he resumed working
on the papercutter because "I didn't want to get caught
standing around," and to the italicized portion of his testi-
mony on redirect:
Q. And when you weren't using the paper cutter,
did you go and sit down and have a cup of coffee?
How did you spend your time when you were not
running the paper cutter?
A I went to another press or something, that is why
I thought it was stupid Just sitting around
Q When you were not running the paper cutter,
were you working on another assigned duty of your
job?
A. Right
Q. And you were never simply sitting around wait-
ing for someone else to run the paper cutter?
A. No.
Company Executive Vice President LeVally, who alleg-
edly decided on Gillespie's discharge and was allegedly
motivated in part by the papercutter incident, testified that
he first heard about the incident around June 16, and that
he never noticed Gillespie without any work to do because
he was not running the papercutter.5
On the basis of O'Donnell's, Gillespie's and LeVally's
testimony, I conclude that Gillespie's failure to operate the
papercutter lasted for 2 weeks, and that he occasionally
just sat or stood around while waiting for Rowland to cut
Gillespie's stock, but usually did work elsewhere. In con-
tending that Gillespie failed to operate the papercutter for
several weeks, and that while Rowland used the papercut-
ter Gillespie "would just sit and wait," the Company heavi-
ly relies on Rowland's preheating affidavit, which was
sworn to on September 19, 1975, and was attached to the
Company's answer in connection with a complaint allega-
tion regarding an incident which occurred on August 7,
1975.6 The General Counsel's motion for leave to call Row-
s LeVally testified, "I never paid that much attention whether he was out
of work or not "
6 Par VI(a) of the complaint alleges that about August 7, 1975, the Com-
pany, through Rowland, "interrogated its employees concerning their
CONSOLIDATED ACCOUNTING SYSTEMS 95
land as an adverse witness under rule 611(c) of the Federal
Rules of Evidence and rule 43(b) of the Rules of Civil Pro-
cedure for the United States District Courts was granted
without objection. After Rowland had answered a few
questions, company counsel stated that Rowland's pre-
hearing affidavit was already part of the record. At this
point, the General Counsel stated that "with the indication
of Mr. Rowland's affidavit and the Company that are on
the record, the Board has no further questions of Mr. Row-
land at this time." Company counsel said that he would
subsequently call Rowland as the Company's witness, but
never did.
The Company's brief repeatedly cites Rowland's affida-
vit, including assertions allegedly favoring the Company
and assertions unrelated to the August 7 incident, as if it
were testimonial evidence. I agree with the General
Counsel's contention that while plant manager Rowland's
statement may be used to show admissions unfavorable to
the Company, it is nonprobative hearsay with respect to
allegations favoring the Company.7 In any event, both Gil-
lespie and O'Donnell impressed me as reliable witnesses,
whereas Rowland was not on the stand long enough for me
to form any judgment about his demeanor. Accordingly,
even if Rowland's statement were also receivable as to mat-
ters not unfavorable to the Company, I would not accept it
to the extent it conflicts with these employees' testimony.
B. Gillespie's Union Activity and His Discharge
About mid-July 1975, in annoyance at his failure to re-
ceive a raise, Gillespie decided to bring in a union to orga-
nize the Company's shop. On Wednesday, July 30, he met
with Union Representative Richard Bee and asked him
how to organize the shop. During this conference, Bee gave
Gillespie some blank union authorization cards. During
lunch and after work the rest of the week, and on the fol-
lowing Monday, August 4, Gillespie gave out blank cards
to his fellow employees. About five employees signed cards
and returned them to Gillespie, who mailed them and his
own card to the Union on his way to work on August 5.
Among these employees was Thomas Maes, whose card is
dated August 1, 1975.
On Monday, August 4, Company President Petit came
into Plant Manager Rowland's office, said that Maes had
union membership, activities, and desires" The Company's answer alleges
that the August 7 conversation "did not constitute within the meaning of the
law any interrogation of its employees which would in any way undermine
or influence the employees' rights under Section 7 or in any way encourage
or discourage Union membership or affect the employees' Union activities,
if any, with regards to Union membership Respondent further states that
the [Board] investigation clearly substantiates the Respondent's posi-
tion through a sworn statement signed by Rowland, and in support
thereof attaches hereto a copy of said signed statement which [supports] the
Respondent's position as alleged herein in all respects"
7 Rules 801(c)(d)(2), 802, Federal Rules of Evidence, Golden State Bot-
tling Company v N L R B, 414 U S 168, 174 (1973), P R Mallory & Co,
inc v N L R B, 400 F 2d 956, 959 (C A 7, 1968), International Union.
United Automobile, Aerospace and Agricultural Implement Workers of Ameri-
ca [Gyrodyne Co of America] v NLRB, 459 F 2d 1329, 1335-45
(C A D C. 1972)
told Petit there was a union being organized at the plant,
and asked Rowland if he knew anything about it . Rowland
replied that he had heard nothing , and that he thought if it
were "serious" he himself would have heard about it, being
in the shop so much Later that day, when Gillespie came
to Rowland to get some more work , Rowland said , refer-
ring to Petit, "The old man heard rumors that there is
union talk ." Gillespie replied , " that is what I heard,
too." 8
Executive Vice President LeVally and his wife , Dorothy,
the Company 's bookkeeper , were on vacation during the
week preceding Monday, August 4 . LeVally testified that
on August 4, Mrs LeVally, outside of his presence, tele-
phoned three newspapers-the Pioneer Press, the Wauke-
gan News-Sun , and the Chicago Tribune-to place a help-
wanted advertisement for a pressman . Immediately after
LeVally so testified , the General Counsel pointed out on
the record that there was no probative evidence about
when these telephone calls were made. Mrs. LeVally did
not testify . The Company 's brief asserts that the advertise-
ment "could not possibly have appeared in the Waukegan
News-Sun on Tuesday , August 5 [as it admittedly did] if it
had not been placed on the morning of August 4" and,
elsewhere , that "To have been printed on August 5, the
advertisement had to have been placed before noon on
August 4." However , the portions of the record cited by the
Company do not support this allegation , nor can I find any
substantial support therefor elsewhere in the record (see
infra, fn . 21) 9 On Tuesday , August 5, through Monday,
August 11 (3 days after Gillespie's discharge ), the News-
Sun carried the following help-wanted advertisement
placed by the Company , "Offset Pressman, Experienced on
A B. Dick 360 and ATF 17 x 22, Highland Park, 831-2250.
Call Mr. LeVally." to About 9: 15 a in. on August 7, Row-
land drew Gillespie's attention to the News-Sun advertise-
ment . Gillespie said that he had seen it. Rowland said that
he did not know who placed it. Gillespie said, ". . . maybe
8 My findings in this paragraph are based on Gillespie's and Rowland's
testimony and Rowland's affidavit to the extent consistent with Gillespie's
testimony For reasons summarized supra, sec 11,A, I regard as nonproba-
tive the assertion in Rowland's affidavit that he never spoke with Petit again
about the Union, or with LeVally, and that Rowland took it very lightly 1
note that Petit did not testify
9 The Pioneer Press advertisement was printed on Thursday, August 7
Company counsel asked LeVally what date this Pioneer Press advertisement
had to be called in in order to be printed on the 8th The transcript sets forth
LeVally's reply as follows "it had to be in Tuesday noon because-but it
had to be done Monday, that is when I found the ad had not been placed,
they were both put in Monday because the ad in the Waukegan Sun ap-
peared on Sunday " The Company's appendix states that this last word
should be "Tuesday " I am unimpressed by the Company's reliance on the
fact that the Waukegan News-Sun advertisement appeared on Tuesday (as
shown infra, other dates tendered by LeVally were inconsistent with docu-
mentary evidence) or on company counsel's notes (in view of the dating
error in counsel's own question) Nor has company counsel moved to cor-
rect the record, which is not inconsistent in this respect with my own recol-
lection In any event, neither LeVally nor anyone else gave any testimony
regarding the News-Sun classified advertisement deadlines As noted infra,
there is hearsay testimony that the Pioneer Press Thursday, August 7, adver-
tisement had to be telephoned in by noon on Tuesday, August 5, but this
was the date on which the News-Sun advertisement began to run
10 A similar advertisement appeared in the Pioneer Press on August 7 and
in the Chicago Tribune on August 9 and 10, after Gillespie's August 8
discharge
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is because I am going to be on vacation and they wanted
somebody to run the press while I am gone." Rowland
said, ". .. if you are into this union thing pretty deep it
will be hard to fire you." Gillespie said that the employees
were "in it pretty deep." Rowland asked, "what union?"
Gillespie replied, "the Pressman Union No. 3, from Chica-
go." Gillespie further said that six out of seven of the em-
ployees were "for it." Rowland thereupon disappeared for
45 minutes. There is no direct probative evidence about
where he went 1l Rowland's affidavit avers that on that
same day (that is, the day before Gillespie's discharge),
LeVally told him that LeVally was preparing a discharge
letter to Gillespie.
On Friday, August 8, at 3:15 p.m., Rowland told Gilles-
pie that LeVally wanted to see him. When Rowland and
Gillespie entered LeVally's office, LeVally gave Gillespie
an envelope containing his paycheck and the following let-
ter dated that day and signed by LeVally:
Requests for credit information and our assistance
in helping your creditors collect amounts long over
due have been increasing for several months and this
has caused our bookkeeping department and our ad-
ministrative personnel costly time on records and the
telephone.
Together with this, an examination of your work
record in 1974 shows only four (4) pay periods (8
weeks) out of the entire year where you worked a full
40 hour week. Your record in 1975 has not improved,
showing only one (1) pay period (2 weeks) where you
worked the full 40 hour week required.
It is our decision that we can no longer tolerate this
record and we must seek to improve our pressmen's
performance. Therefore, your employment is termi-
nated effective the close of business August 8, 1975.
We are, however, paying in advance your one (1) week
vacation pay to which you are entitled.
May I wish you success in your new employment
wherever you choose to locate
Gillespie thereupon opened the envelope, looked at the
check, read the letter, and asked whether the reasons set
forth in the letter were the only reasons for his discharge.
LeVally said no. Gillespie asked what the other reasons
were. LeVally said, ". . . your attitude." Gillespie got up
and started to walk out. LeVally said, ". . . wherever you
go to look for a job, I will give you a good reference "
Gillespie then walked back to his work station, picked up
his belongings , and left the plant.l2
ii
My findings as to this Rowland-Gillespie conversation are based on
Gillespie's testimony, which is partly corroborated by Rowland's affidavit
For the reasons stated, supra, Sec II,A, I credit Gillespie's testimony to the
extent it conflicts with Rowland's affidavit For reasons stated, supra, sec
II,A, I regard as nonprobative the statement in his affidavit that " 1 never
spoke with Mr Petit again [after their August 4 conversation] about the
Union or with Mr LeVally "
12
My findings in this paragraph are based on Gillespie's testimony
Rowland's affidavit does not describe this conversation LeVally admitted
promising Gillespie a good reference and otherwise gave testimony consis-
tent with Gillespie's, except that LeVally testified that he said Gillespie was
also being discharged because of his "attitude toward Mr Rowland lately"
On Monday, August 11, Union Representative Bee vis-
ited the plant, met members of management (including Le-
Vally) for the first time, demanded recognition, and filed
the representation petition which gave rise to the instant
Case 13-RC-13788.
About August 13 or 14 (infra, In. 13), Company Presi-
dent Petit called employee O'Donnell into Petit's office
and gave O'Donnell his profit-sharing statement. Petit fur-
ther said that "this union stuff really got me shaken up,"
and that he and his wife had worked very hard to put the
Company where it was today. Petit then said that he knew
how O'Donnell felt. O'Donnell (who on August 1 had
signed a union card at Gillespie's instance) said that no-
body but O'Donnell himself knew how he felt, that the
only time he had ever belonged to a union was in 1946 or
1947 when he was working for another employer, and that
Petit should not assume that O'Donnell was strictly union.
O'Donnell said that Petit had been wrong in firing Gilles-
pie, and suggested that Petit should call him in and try to
"straighten it out." Petit "agreed, he blew his top, he
agreed to that." O'Donnell said that Gillespie was a good
pressman and a good worker. Petit agreed , and said, "This
damn thing . . . is costing me a lot of money . . . God
dammit, I will spend it, you know, I will beat this." O'Don-
nell suggested that Petit get hold of Gillespie, "maybe it's
not too late, maybe you can straighten the whole thing out
before it goes far." Petit said that this was a good idea, and
suggested that Gillespie and O'Donnell could come togeth-
er to "my place." O'Donnell said, "Fine." Petit further
said, "There is only one thing, Bill, with this union stuff.
There is a lot of no-nos and things that I can't do or can't
say and things like that, but I will ask my attorney."
O'Donnell said that Petit should stop by O'Donnell's press
and let him know, and that he would talk to Gillespie over
the weekend.
On Monday, August 18, the Company received its copy
of the Union's charge herein, alleging that Gillespie had
been discharged because of his union activity. About Au-
gust 19, Petit approached O'Donnell, shoved a copy of the
charge at him, and said, ". . . this is going to cost me a
bundle, but dammit, I am going to beat it." 13
For demeanor reasons , because of Rowland 's failure to testify as to this
matter, and because of LeVally's demonstrated unreliability as to other mat-
ters (infra, sec 11,C,1), I credit Gillespie over LeVally where their testimony
conflicts
u My findings as to these O'Donnell -Petit conversations are based on
O'Donnell's testimony, received over the Company's objection based on
materiality and remoteness in time O'Donnell placed the first conversation
as having occurred on a Wednesday or Thursday toward the end of August
and the second as having occurred the following Tuesday The fact that the
Company received the charge on Monday, August 18, leads me to conclude
that O'Donnell erred about the date of the first conversation
The Company contends that Petit failed to testify about these conversa-
tions mostly because the General Counsel "admitted questioning O'Donnell
regarding these conversations with Mr Pent for the sole purpose of estab-
lishing Mr Petit's anti-union attitude and opinion " The record contains no
such admission The portions of the record relied on by the Company are
directed partly to a subsequent letter from Petit to O'Donnell and partly to
their September 1974 conversation
CONSOLIDATED ACCOUNTING SYSTEMS 97
C. Analysis and Conclusions
1. Gillespie's discharge
a. Evidence bearing on the Company 's explanations
(1) Evidence regarding the hire of Gillespie's alleged
replacement
As somewhat amplified below , the Company contends
that the Company ' s decision to discharge Gillespie was
made many weeks before his union activity began. On di-
rect examination , LeVally testified that in response to a
telephone message left at the Company 's switchboard by
Martin Rudolph , which message is dated August 5 at 2:05
p.m.,14 LeVally telephoned Rudolph on an undisclosed
date , talked to him about his qualifications , and "asked
him to come in and fill out an application ." When compa-
ny counsel then asked, "When did he come in, do you
recall?", LeVally testified " it was about two days later, he
had to make arrangement , he couldn't come while he was
at work, so he came in after 5:00." LeVally went on to
testify that Rudolph was hired before LeVally wrote out
Gillespie's termination and that Rudolph was Gillespie's
replacement.
On cross-examination , upon being asked when Rudolph
began his employment , LeVally initially testified , "He gave
one week notice at Abbott Lab [ Rudolph 's then employer],
he would have begun on the 18th, I would assume." (As
previously noted , Gillespie was discharged on Friday, Au-
gust 8 .). The General Counsel thereupon drew LeVally's
attention to Respondent 's Exhibit 8, which is a summary
prepared by the Company of the hours worked by its em-
ployees in 1974 and 1975, and which states that Rudolph
was "hired 9-30-75." The General Counsel then asked,
"So his actual beginning date was 9-30-75, not August 8,
as you have just stated?," to which LeVally replied , "Yes, I
would have to check with the time cards and sheets and his
earnings record ." On redirect examination , LeVally testi-
fied that Rudolph came in on August 5 and filled out an
application . On further redirect examination by Company
Counsel MacDonald , LeVally testified as follows'
MR. MACDONALD ' . . . [Rudolph ] told you that he
wanted what , a week or two notice to give Abbott
Laboratory before he quit that fob?
THE WITNESS: Yes, Sir.
MR. MACDONALD' And or about-
JUDGE SHERMAN: Which, a week or two weeks?
THE WITNESS . Two weeks , I think.
Q. (By Mr. Macdonald) The Petition, in this case,
was filed on August the 11th, is that correct?
A. Yes, sir.
Q. And then , subsequent [sic] to Mr. Rudolph com-
ing to work , didn't we, as your counsel, give you in-
structions not to hire anybody or fire anybody?
A. That is right, sir.
Q. And then you made arrangement , therefore to
have Mr. Rudolph start his employment after the
[September 19] election , is that correct'
14 This document is further discussed infra, fn 21
A. Yes, sir, that is right.
Q. And you communicated to Mr. Rudolph to that
effect?
A. Yes.
When asked to explain the interval between the Septem-
ber 19 election and Rudolph 's September 30 starting date,
LeVally testified, "Apparently , I didn't need him up to that
point ." LeVally was not asked to give the date of his al-
leged posthire communication or communications to Ru-
dolph about a starting date Nor was LeVally asked what,
if any, discussion occurred regarding Rudolph 's arrange-
ments with Abbott.
LeVally gave the foregoing testimony on the first day of
the hearing . On the second day of the hearing , the General
Counsel offered Rudolph 's job application into evidence.
This job application is dated September 25, 1975; repre-
sents that Rudolph worked for Abbott between September
1973 and September 14, 1975, when he left for "lack of
interest"; 15 states that Rudolph could start work as soon as
possible;16 and contains an entry, admittedly filled out by
LeVally, which states that Rudolph was interviewed by Le-
Vally on Thursday , September 25, 1975, contains a check
mark after the printed word "hired ," and contains a hand-
written "9/29" after the printed words "will report." On
redirect examination after Rudolph 's application was re-
ceived into evidence , LeVally testified that the first time he
saw Rudolph face to face was "I think it was Saturday of
that same week [referring to the week which included Tues-
day, August 5, when Rudolph allegedly first contacted the
Company ] but it was a Saturday morning , I know that, he
came in and we talked and I didn't have him fill out an
application at the time . . . I gave him an application and
told him to take it home with him and fill it out because we
weren't going to do anything for a while anyway ." As pre-
viously noted , before the General Counsel drew this Sep-
tember 25 application to LeVally's attention , he had testi-
fied that Rudolph came into LeVally's office for a job
interview after 5 p.m. on a working day which he initially
dated as about Thursday, August 7,17 and then as Tuesday,
August 5; that during that visit Rudolph filled out an ap-
plication ; and that Rudolph was hired by LeVally (who
was on vacation during the week ending Sunday, August 3)
before Gillespie was discharged on Friday, August 8.
Moreover (as previously noted), before thus attempting to
explain the September 25 date on the application , LeVally
testified that he had told Rudolph not to report to work
until late September because of company counsel 's advice
based on the Union 's petition , which was filed 2 days after
the Saturday when (according to LeVally's final testimony)
he allegedly told Rudolph that "we weren ' t going to do
anything for a while anyway."
15 The application states that Rudolph worked for Abbott from "9-I8-
73" to "9-14-73 " LeVally testified that the latter entry should be "9-14-
75 "
16 LeVally so explained Rudolph 's entry "ASAP" after the printed words
"Date you can start"
17 This was the date on which LeVally , according to Rowland 's affidavit,
told Rowland that LeVally was preparing Gillespie's discharge letter, which
according to LeVally was prepared after Rudolph was hired On the first
day of the hearing , LeVally testified that he hired Rudolph after 5 p in
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Waukegan News-Sun continued to carry the
Company's advertisement for a pressman for 3 days after
Gillespie's discharge-that is, on August 9, 10, and 11. The
Chicago Tribune began to carry this advertisement on Au-
gust 9, the day after Gillespie's discharge, and also carried
it on August 10. The Tribune advertisement cost the Com-
pany about $35 The News-Sun advertisement and (infer-
entially) the Tribune advertisement requested applicants to
telephone the Company There is no evidence that the
Company made any attempt to cancel either of these ad-
vertisements.
(2) Evidence regarding the date of the decision to
discharge Gillespie
Company counsel asserted in his opening statement that
the decision to discharge Gillespie had been made "weeks
before" Gillespie's discharge.
LeVally testified that his "mind was pretty well made
up" after a meeting (discussed infra) which allegedly oc-
curred on June 2, 1975, to discharge Gillespie "as soon as
possible." 18 However, a document (Resp. Exh 10) which
LeVally identified as a memorandum prepared by him on
June 2, 1975, to Company President Petit, makes no refer-
ence to any decision to discharge Gillespie but, instead,
states, "I think we should advertise for a pressman, as I
believe [Gillespie] is going to quit. In fact I have a very
strong suspicion, he has been looking around anyway." Le-
Vally initially testified that "June and July are very busy
seasons for us, and to try to get through the June and July,
I was going to wait until that, after that busy period was
over." (As discussed infra, the Company contends that Gil-
lespie was discharged partly for tardiness, absenteeism, and
refusal to perform certain work.) Then LeVally testified
that he wanted to run advertisements on July 1 for a re-
placement. LeVally went on to testify that he told Plant
Manager Rowland "to get an ad in the paper about two
weeks before I left on vacation," which vacation began on
July 25. LeVally further testified that Rowland "wrote the
ad and gave it to the Assistant Manager and he missed the
deadline and didn't get it in." The assistant manager did
not testify, and LeVally's testimony in this respect is not
corroborated by Rowland's affidavit. LeVally went on to
testify that before leaving on July 25 for his vacation, he
left instructions with Rowland to put an advertisement in
the Waukegan News-Sun and the Pioneer Press Rowland's
statement avers: "Before the [Pioneer Press] ad went in I
was instructed by Mr. Petit to put the ad in in two weeks
I wrote the ad and Mrs. LeVally called it in . . . There
was another ad run in the Waukegan News-Sun after this
.. " It is undenied that Rowland told Gillespie that
Rowland did not know who placed the News-Sun adver-
18 This was his initial testimony on direct examination and his testimony
on cross-examination However, toward the end of his direct examination,
he replied, "Right, yes sir," to the following question by company counsel,
"When you filled out [Gillespie's] termination notice this was a culmi-
nation of a decision which you had reached, as you testified to, in the prior,
latter part of [sic] middle part of June to the first of July9" The Company's
brief asserts that the decision to replace Gillespie was made "early in the
month of June, which was two months prior to the earliest admitted union
activity "
tisement. LeVally further testified that during his July 25-
August 3 vacation, Rowland prepared a draft advertise-
ment which LeVally identified as being Respondent's Ex-
hibit 11. Rowland's affidavit does not corroborate Le-
Vally's testimony in this respect, and it is unclear from
Respondent's Exhibit 11 which newspapers the advertise-
ment was to be placed in.19 LeVally further testified that
when he returned to the office on August 4, Assistant
Bookkeeper Rena Simchiff told him that she had tried to
place the advertisement in the Pioneer Press by telephone
call on Tuesday afternoon, July 29, to be printed on Thurs-
day, July 31; that she had then learned that an advertise-
ment has to be phoned in before noon on Tuesday of a
particular week for it to be printed on Thursday of that
week; and that since she missed that deadline, she did
nothing about putting the advertisement into the Wauke-
gan Sun-News or the Chicago Tribune.20 LeVally went on
to testify that Mrs. LeVally telephoned all three of these
newspapers on August 4 to place advertisements for a re-
placement pressman. However, he admitted that these tele-
phone calls were all placed outside his presence. Although
still in the Company's employ at the time of the hearing,
Mrs. LeVally did not testify. Aside from the fact that help-
wanted advertisements did appear in the Waukegan Sun-
News on Tuesday, August 5, the Pioneer Press on Thurs-
day, August 7, and in the Chicago Tribune on Saturday,
August 9, there is no probative evidence about when these
advertisements were called in.21
Rowland's affidavit avers that the first time he, Petit,
and LeVally discussed firing Gillespie "was probably six
"The Pioneer Press is listed with an "X" in front of it, but is crossed out
The Tribune is listed with a question mark The Waukegan News-Sun is
also listed Rowland's affidavit does not allude to the Tribune As previous-
ly noted, his affidavit does not aver that he was asked to put an advertise-
ment in the News-Sun, and he said he did not know who placed this adver-
tisement
While the phrasing of the News-Sun and Pioneer Press advertisements is
much the same, the latter bears a closer resemblance than the former to
Resp Exh 11, which LeVally testified was a draft advertisement prepared
by Rowland The record fails to show the precise language of the Tribune
advertisement
20 This was the first reference to the Tribune in LeVally's testimony At
the time of the hearing, Simchiff was no longer in the Company's employ I
draw no inference from her failure to testify
21 LeVally testified that a document received in evidence as Resp Exh 14
is a message written to him on Tuesday, August 5, by the Company's then
switchboard operator, who at the time of the hearing was no longer in the
Company's employ This document asserts, inter a/ia, that Rudolph had
telephoned at 2 05 p in about "job offer in paper " This time entry would to
some extent limit the time before which the News-Sun advertisement must
have been telephoned in, assuming that Resp Exh 14 is accepted at full
face value Entries made thereon by LeVally, allegedly when talking to
Rudolph on the telephone later that day, state that Rudolph was then work-
ing for "Abbott Labs" and "needs $4-hr" Rudolph's September 25 job
application, however, states that Abbott had been paying him $4 50 an hour
when he quit on September 18 and that the Company hired him at $4 50
Because it seems unlikely that the Company would have hired him when
unemployed at a figure 10 percent higher than he had been willing to accept
when still employed 2 months earlier, and in view of LeVally's untruthful
representations about other aspects of the timing and circumstances of
Rudolph's hire, I have grave reservations about the authenticity of Resp
Exh 14 Moreover, while it is true that the document contains certain nota-
tions in LeVally's handwriting about, inter a/ia, Rudolph's plant telephone
number, it is curious that the Company allegedly kept this August 5 docu-
ment after he allegedly filled out an employment application and was prom-
ised a job later that same day, and until the Company received the charge
on August 18
CONSOLIDATED ACCOUNTING SYSTEMS 99
months before he was fired"-that is, in early February
1975. LeVally did not corroborate Rowland's statement in
this respect, it is undenied that in early May Petit urged
Gillespie not to quit, and Petit failed to testify. Rowland's
affidavit further avers that "the last couple of months [Gil-
lespie has] refused to run the paper cutter . . . I thought we
could work this out, but after a couple of weeks I could see
we couldn't, so we ran an ad for a pressman, I think it was
in August." 22 In addition, Rowland's affidavit avers that
the Company obtained no qualified applicants from the
Pioneer Press advertisement, that an advertisement was
run in the Waukegan News-Sun after the Pioneer Press
advertisement had run, that qualified applicants were ob-
tained from the News-Sun advertisement, that "We had
qualified applicants from that ad before the decision was
made to fire" Gillespie, and that the discharge decision was
made by LeVally. As previously noted, LeVally testified
that he decided on June 2 to discharge Gillespie and that
Gillespie's replacement called in about the job 2 days be-
fore the Pioneer Press advertisement was printed. Nor does
LeVally's testimony describe any other applicants for the
job. Rowland's statement also avers that LeVally told him
the day before Gillespie was fired that LeVally "was get-
ting together a letter because they just had too much aggra-
vation in bookkeeping."
(3) Evidence regarding the Company's tendered reasons
for discharging Gillespie
The Company contends that the decision to discharge
Gillespie was made by LeVally. As previously noted, Le-
Vally testified that on June 2, he "pretty well made up his
mind" to discharge Gillespie after July. When asked by
company counsel, "Did [Gillespie's] refusal to work on the
paper cutter have any effect on your judgment?", LeVally
replied, "Part of it, sir." Counsel then asked LeVally what
factors he had considered in arriving at his June 2 decision
to terminate Gillespie, and LeVally replied, "The general
attitude over the period of time and Mr. Rowland's contin-
ually talking to me about the attitude out there, out in the
plant and just a build-up of things along the line, and when
he did this, that is when I just knew we had to do some-
thing about it." LeVally further testified that he discharged
Gillespie because of his "attitude toward Mr. Rowland,
lately," which LeVally explained as "Just refusing to run
the cutter and being obstinate and what he would do and
what he wanted to do and run the job he wanted to run
and not run the job he did not want to run and so on "
LeVally testified that he found out about the papercutter
incident about 2 weeks after June 2, the day on which he
allegedly reached a decision to terminate Gillespie. LeVally
did not further amplify his description of Gillespie's "atti-
tude" toward Rowland 23
22 It is unclear whether "the last couple of months " referred to the months
Just before Gillespie ' s discharge ( in which event , Rowland was dating the
papercutter incident as having begun in early June ) or the months just
before he gave the statement on September 19 (in which event , Rowland
was dating the papercutter incident as having begun in mid-July)
Gillespie's and O'Donnell's credited testimony that Gillespie failed to run
the papercutter during the last 2 weeks in June is to some extent corroborat-
ed by LeVally's testimony about when he learned about this
LeVally's termination letter to Gillespie asserted that he
was being discharged partly because of inconveniences al-
legedly imposed on the Company in consequence of
Gillespie's difficulties with creditors.24 LeVally testified
that he had never had any telephone conversations with
Gillespie's creditors. LeVally further testified that Mrs. Le-
Vally and Petit had had such conversations, but neither of
them testified. Later in LeVally's testimony, he conceded
that the only harassment he was aware of that the Compa-
ny suffered because of Gillespie's creditors was the harass-
ment of sending letters to the Company. During the 2 years
that Gillespie worked for the Company, he received five or
six notices of creditors' claims which were sent to him at
the Company's address and which the Company turned
over to him unopened. In addition, during this period, the
Company received three or four letters stating that the
signer was having trouble collecting a debt from Gillespie
and asking the Company to see if he would take care of the
matter (see infra, In. 26). On one occasion in the winter of
1973-74, Mrs. LeVally spoke to Gillespie about a bill for a
child's crib and furniture. That same day, Gillespie
punched out for lunch, took extra time, and drove over to
pay the bill.25 On two later occasions, once in the summer
of 1974 and once in the spring of 1975, LeVally gave Gil-
lespie a letter to the Company from a creditor of Gillespie's
and said, "For God sake, just take care of this ... Please
get off the hook " 26 In addition, on one occasion when the
LeVallys were out of town, Petit spoke to Gillespie about
his creditors' problems. This conversation occurred about
June 1975, but the record fails to show whether it occurred
prior to June 2, when LeVally allegedly decided to dis-
charge Gillespie. Some of these creditors' letters were
based on hospital and doctor's bills for the September or
October 1974 delivery of Gillespie's child; but aside from
inferences suggested by the identity of the creditors, there
23 For reasons set forth supra, sec II,A, I regard as nonprobative the
statement in Rowland's affidavit that Gillespie "had a very bad attitude "
24 The Company makes no claim that the mere existence of Gillespie's
debts played a part in his discharge Between July 1974 and May 1975,
employee Maes obtained four loans from the Company which totaled
$1,000 and which included one loan of an undisclosed amount for tuition
fees, one $150 loan which may have been for moving expenses, one $200
loan for rent when he still owed $50 on a previous $200 loan, and a $500
loan for a purpose which LeVally did not recall After a 1970 discharge
because Maes' creditors were dunning the Company, he was rehired in May
1974 and remained in the Company's employ until at least the end of 1975,
more than 4 months after Gillespie's discharge Also, in December 1974 the
Company lent $100 to employee Allen Glader, and in November 1975 the
Company advanced $100 bail to employee Pat Maddox, who was charged
with driving while his license was suspended On five occasions between
March 1974 and June 1975, the Company made advances to Gillespie for
sums ranging from $20 to $150 and totaling $420, but all of these were
prepayday advances for moneys already earned In March 1975, the Com-
pany also deducted about $130 to pay off the balance of some furniture he
had bought from it, and about $2 for a phone call made by him
25 My findings as to this bill for a child's crib and furniture are based on
Gillespie's testimony on redirect examination On cross-examination, he de-
nied having "some problems with the furniture collection" I have consid-
ered this discrepancy in assessing his credibility
26 My findings as to the number of letters received by the Company,
which LeVally testified were all shown to Gillespie, and the number of
conversations between him and LeVally are based on Gillespie's testimony,
which I credit over LeVally's for demeanor reasons and because of Le-
Vally's demonstrated unreliability as to other matters My findings as to the
contents of the LeVally-Gillespie conversations about this matter are based
on a composite of their testimony
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence that the Company knew why Gillespie had
incurred these debts. Gillespie was never told that he
would be discharged if there were any more inquiries from
his creditors, or that disciplinary action would be taken
against him because of creditors' inquiries. Nor were his
wages ever garnisheed before his discharge.27
Respondent's Exhibit 2 purports to be a notice instruct-
ing a collection agency to place for collection a $200 claim
against Gillespie by `Dr. Joseph L Burke, M.D.S.C." (cf,
supra, fn. 27) 10 days from June 3, 1975. The document is
stamped, "Listed June 13, 1975." After being marked for
identification, this document was shown to LeVally, who
testified on direct examination as follows:
Q. (By Mr. MacDonald): Mr. LeVally, I will show
you Respondent's Exhibit 2, and ask you if you know
what that is?
A. Yes. This is one of the documents we received in
our office regarding credit due, or payment due a Dr.
Joseph Burke by Mr. Gillespie.
Q. And was that document handed to you?
A. Yes, it was.
Q. And about what date was that?
A. Well, we received it on June the 13th, or so I
assume I gave it to him the same day.
Q. I see. All right.
And did this particular notice that you received
have any particular significance in regards to your
thinking in conjunction with all of the prior discussion
and history that you have had with Mr. Gillespie?
A It was basically the same one or the same
client-the same document I had seen many times be-
fore, and it was just an additional from the same one
when I had asked many times to have it taken care of.
I assumed that he would and it was on a friendly basis
and it wasn't-It was just the straw that broke the
camel's back about that time.
At this point, company counsel offered Respondent's
Exhibit 2 for identification into evidence. On voir dire, Le-
Vally testified that his allegedly authenticating testimony
was based on a belief that the document had been sent to
Mrs. LeVally in consequence of an August 4 conversation
between her and the creditor outside LeVally's presence
LeVally did not know of his own knowledge when this
alleged conversation occurred or when the Company re-
ceived the document. Respondent's Exhibit 2 was received
in evidence simply to explain LeVally's testimony, and not
as an authentic document in fact received by the Company
before Gillespie's discharge
LeVally did not in terms testify that he discharged Gil-
lespie for frequently failing to work a full 40-hour week,
27 In December 1975, more than 3 months after Gillespie's August 1975
discharge, the Company received a wage deduction summons based on a
November 1975 judgment in favor of Or Joseph L Burke against Gillespie
for $200 plus costs In response to an attached interrogatory, the Company
denied that it owed Gillespie any money A document attached to the wage
deduction summons states , inter alia , that Federal law provides, "No em-
ployer may discharge any employee by reason of the fact that his earnings
have been subjected to garnishment for any one indebtedness " However,
LeVally testified to a company feeling or policy that an employee with one
garnishment would be terminated
nor does Rowland's statement aver in terms that Gillespie
was discharged for this reason. However, Gillespie' s termi-
nation letter asserts that he was discharged partly for this
reason. Moreover, Gillespie's "Confidential Employee His-
tory" in the Company's records states that he was dis-
missed for "unsatisfactory work record (attendance)," and
mentions no other reason.
The Company's records disclose that during 1974 and
1975, Gillespie missed more hours of work than any other
employee Gillespie admitted that he put in "very few" full
40-hour weeks and that he was "late a lot"-usually 15 or
30 minutes, but sometimes up to 2 hours. LeVally testified,
and the Company's records show, that Gillespie missed no
more hours of work during the period immediately before
he was discharged than he had throughout his 2-year tour
of duty with the Company. On some of the occasions when
Gillespie was late, he drove to the shop with Plant Manag-
er Rowland or employee O'Donnell, both of whom were
still in the Company's employ at the time of the hearing.
Gillespie testified that LeVally may have mentioned
Gillespie's tardiness and attendance record when Gillespie
asked for a raise in March or April 1975; but LeVally did
not testify that he then mentioned Gillespie's tardiness and
attendance record to him. Gillespie testified that with the
foregoing exception, no company officials ever talked to
him about his tardiness or his attendance, or threatened to
discipline him if he continued to be late or absent, or told
him that in consequence of his tardiness or absence the
entire schedule would get behind. He further testified that
his tardiness never caused the schedule to get behind.
Pressman O'Donnell testified that he had never seen the
Company miss a deadline or have its schedule interrupted
because of Gillespie's lateness in arriving, and that neither
he nor any other employees had to work overtime because
of Gillespie's absences. LeVally testified that in the first
part of April 1975, Petit reproached Gillespie for his tardi-
ness and attendance record, and that in early June LeVally
reminded Gillespie of Petit's reproof, but Petit did not tes-
tify. Rowland's affidavit avers that Gillespie "very seldom"
missed a whole day without calling in, but that Rowland
"talked to [Gillespie] a number of times about his lateness.
It was very casual. I'd tell him Dick, you better start com-
ing in on time or its gonna get me in trouble, I didn't call
him in and chew him out or anything like that. Then he'd
be ok for a couple of weeks and it would start all over
again " Rowland's statement further avers that when Gil-
lespie was late, the whole shop was behind schedule the
whole day. In addition, Rowland's statement avers, "A
couple of times when [Gillespie] had missed a day I had
him come in Saturday or work late, and I came in with him
and did work in my office to make up for the time. There
hasn't been much overtime because of his being late, but
I've had to pull a man off the overhead press to run his
press, I've even had to run the vertical press myself, where
if he was here I would have been working in my office." 28
28 O'Donnell's testimony and Rowland's affidavit as to the absence of
overtime gain some support from Resp Exh 8, which sets forth the number
of hours available to each employee if he worked a full week and the num-
ber of hours which he actually worked over or under that amount However,
the exhibit does not in terms distinguish between straight time and overtime
hours
CONSOLIDATED ACCOUNTING SYSTEMS 101
LeVally testified that the Company used the vertical press
a couple of hours in a day, and, at a maximum, once a
week. O'Donnell testified that this press was very seldom
used, and that it was run by him, Gillespie, and Rowland.
For the reasons stated supra, section II,A, and infra, sec-
tion II,C,I, I credit Gillespie's testimony regarding the ab-
sence of statements to him about his lateness and absences.
For the reasons stated supra, section II,A, I credit
Gillespie's and O'Donnell's testimony that Gillespie's late-
nesses did not cause the Company to get behind schedule,
O'Donnell's testimony that they did not cause the Compa-
ny to miss deadlines, and O'Donnell's testimony (corrobo-
rated by Rowland's affidavit and the Company's records)
that they did not cause the Company to work employees
overtime. On the basis of the probabilities of the situation,
I conclude that Gillespie's lateness and absences did incon-
venience Rowland to some extent. However, for the rea-
sons stated supra, section II,A, Rowland's affidavit is non-
probative as to Rowland's alleged reproofs to Gillespie and
as to the extent that Gillespie's tardiness inconvenienced
the Company. Moreover, LeVally's and O'Donnell's testi-
mony that the vertical press was seldom used and was used
by others as well as by Gillespie leads me to conclude that
Rowland's affidavit exaggerated such inconveniences. I
note, further, Rowland's affidavit that "There was never
any problem with [Gillespie's] work, as far as production."
b. Reasons for crediting Gillespie 's testimony regarding
predischarge conversations with management
As previously noted, I have credited Gillespie's testimo-
ny regarding the dates and contents of his two conferences
with management, several weeks before his discharge,
about his wages. LeVally and Gillespie both testified that
the first of these conferences had been requested by Gilles-
pie, that it was attended by them and Petit, that during this
conference Gillespie asked for a raise, and that in refusing
to give Gillespie a raise Petit said that the Company's fiscal
year closed on May 31. Moreover, Gillespie testified with-
out denial that he threatened to quit in 2 weeks if he did
not receive a raise, and that Petit said, "I think you are
making a mistake if you quit. We want you to stay." Le-
Vally testified that Petit said the Company would not give
raises to anyone until it learned from its accountant, about
August 1, how good its business had been during the cur-
rent fiscal year; that "there was no .. . promise for a raise.
There was a promise to be investigated as to whether a
raise would be profitable on both parties"; and that Petit
also said that Gillespie had frequently been late or absent,
to which Gillespie made no response. LeVally's testimony
in these respects conflicts with Gillespie's testimony that he
was promised a wage increase after the close of the fiscal
year if the Company made money, and that Petit never
mentioned Gillespie's tardiness or attendance record. Petit
did not testify. LeVally testified that the second meeting
with Gillespie occurred on June 2 (contrary to Gillespie's
testimony, indirectly corroborated by O'Donnell, that this
meeting did not occur until June 16). Both LeVally and
Gillespie testified that during this meeting, Gillespie al-
leged that he had been promised a raise, pointed out that
he had not received one, threw his check stub on LeVally's
desk, and said that he had been lied to again. Both LeVally
and Gillespie further testified that the same day this con-
ference was held (during the conference, according to Le-
Vally, see supra, fn. 4, and later that day, according to
Gillespie), LeVally remarked that he had received job ap-
plications from several former employees and that Gilles-
pie replied that he hoped one of them was a pressman.
LeVally testified that during this conference, Gillespie said
"he was finished with a very nasty attitude." Gillespie de-
med saying on this occasion that he was finished.
If the Company had really told Gillespie during the first
meeting that (1) he might not get a raise even if the Compa-
ny made money during the current fiscal year, and (2) in
no event would he receive a raise until August-according
to LeVally, 3-1/2 months later, I regard it as unlikely that
Gillespie would have left the meeting with the belief that
(1) he had been promised a raise if the Company made
money during the current fiscal year and (2) he would re-
ceive it on May 31. Moreover, Gillespie's subsequent con-
duct is consistent with his version of the first conference,
but inconsistent with LeVally's to the extent it differs from
Gillespie's. Thus, as LeVally in effect conceded, Gillespie's
admitted assertion during the second conference that he
had been "lied" to obviously referred to an unkept promise
of a raise . Furthermore, the testimony of O'Donnell, who
was still in the Company's employ at the time of the hear-
ing, establishes that Gillespie expressed extreme annoyance
at not receiving a raise in his June 2 paycheck, but calmed
down when O'Donnell pointed out that this paycheck cov-
ered the fiscal year which terminated on May 31. Further,
O'Donnell's testimony in this respect indirectly corrobo-
rates Gillespie's testimony that his complaint to LeVally
about the Company's failure to give him a raise was made
on June 16, rather than on June 2 as LeVally testified.
For these reasons, because Petit failed to testify about
the first conference, because LeVally was demonstrably
untruthful as to other matters, and in view of the witnesses'
demeanor, I credit Gillespie's testimony regarding the
dates and contents of both conferences, and discredit Le-
Vally's testimony except where corroborated by Gillespie.
More specifically, I discredit LeVally's testimony that dur-
ing the first conference Gillespie was not promised a raise
if the Company made money that year and his tardiness
and attendance record was mentioned by Petit;29 that the
second conference occurred on June 2, and that during the
second conference (which according to LeVally preceded
Gillespie's discharge by more than 2 months) LeVally re-
minded Gillespie of Petit's alleged prior reproof and told
Gillespie that he had not been promised a raise , and Gilles-
pie said that he was "finished." I regard as without proba-
tive value Respondent's Exhibit 10, which LeVally testified
is a memorandum written by him to Petit on June 2. There
is no testimony from Petit, who did not testify, that he
29 Gillespie testified that this conference occurred about May I and Le-
Vally that it occurred during the first half of April Because I regard
Gillespie's testimony as more credible than LeVally's in connection with
both conferences, I also credit Gillespie as to the May I date However, this
particular conflict is of little significance Indeed, the Company's brief as-
serts that this conference occurred in May
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received this alleged memorandum. The document strongly
implies, if indeed it does not state, that the first conference
was initiated by management, rather than by Gillespie as
both he and LeVally testified. Further, although both Le-
Vally and Gillespie testified that during this conference
Gillespie asked for a raise, the document at the very most
implies that he made such a request. Moreover, plant man-
ager Rowland did not corroborate the statement in the
document that he suggested a discussion of Gillespie's fu-
ture with him and was not in favor of a raise. Furthermore,
although the document suggests that the Company adver-
tise for a pressman, the Company did not do so for more
than 2 months after this document was allegedly prepared.
I conclude that Respondent's Exhibit 10 is not in fact a
memorandum written on June 2 to Petit which is an honest
attempt accurately to describe events which occurred on
June 2 and previously, but rather is a document prepared
by LeVally in an effort to lend credence to LeVally's un-
truthful testimony about the events leading to Gillespie's
discharge.
c. The legality of Gillespie's discharge, his eligibility to vote
The uncontradicted evidence establishes the following
sequence of events : On July 30 , Gillespie, an employee of 2
years' standing, began to distribute union cards to his fel-
low employees . Rumors of the union movement reached
Company President Petit by August 4, and , later that same
day, Gillespie admitted his awareness of the union drive to
Plant Manager Rowland. On August 5, after having solic-
ited all his fellow employees to sign cards , Gillespie mailed
to the Union his own union card and five cards which he
had successfully solicited from his fellow employees. Early
in the morning of August 7, Rowland drew Gillespie's at-
tention to the Company 's advertisement for a pressman
and commented ". . . if you are into this union thing pret-
ty deep it will be hard to fire you " Gillespie told him that
the employees were "in it pretty deep," and, in response to
Rowland 's inquiries , that six out of the seven employees
were for the Union . Rowland thereupon disappeared for 45
minutes. That same day, LeVally told Rowland that Le-
Vally was preparing a discharge letter for Gillespie. The
following day, in Rowland's presence , LeVally gave Gilles-
pie a discharge letter, but volunteered to give him a good
reference elsewhere . In a conversation with employee
O'Donnell less than a week later , Company President Petit
said that "this union stuff really got me shaken up." When
O'Donnell then brought up Gillespie 's discharge, Petit
agreed that he had been wrong in firing Gillespie, agreed
that Gillespie was a good man and a good worker, and
then added, "This damn thing is costing me a lot of money
... God dammit , I will spend it, you know , I will beat
this." That by "This damn thing" Petit meant the Union is
shown by his earlier reference to being "shaken up" by
"this union stuff" and to the Company 's hard -earned pre-
sent position , by his earlier reference to O'Donnell's feel-
ings followed by Petit's tacit acceptance of O'Donnell's in-
ference that such remarks referred to his union feelings,
and by Petit's immediately following remarks, when agree-
ing to confer with O 'Donnell and Gillespie in order to try
to straighten out Gillespie 's discharge , that Petit would
have to consult with counsel about what to do with "this
union stuff." These last remarks disclose, moreover, that
Petit was spontaneously connecting Gillespie's discharge
with the "union stuff" which Petit was determined to
"beat." About a week later, upon receiving the union
charge which alleged that Gillespie had been discharged
for union activity, Petit evinced a change of heart about
possibly recalling Gillespie, concomitantly with again ex-
pressing an intent to "beat" the Union. The foregoing evi-
dence, all of it uncontradicted, makes a strong prima facie
case in favor of the General Counsel's contention that the
real reason for Gillespie's discharge was his union activity.
This prima facie case is strengthened by the numerous
inconsistencies and improbabilities in the Company's ten-
dered explanations regarding the timing of and reasons for
Gillespie's discharge. LeVally testified that Gillespie was
discharged on August 8-10 days after he began to distrib-
ute union cards-because, earlier that week, LeVally had
hired Rudolph as Gillespie's replacement. However, Le-
Vally's initial testimony that Rudolph was hired that week
during an interview when he filled out an application blank
is inconsistent with Rudolph's application blank, which
bears a late September date and includes LeVally's written
"remarks" bearing that same date; and is also rendered
questionable by the Company's failure (so far as the record
shows) to try to save money and the receipt of further tele-
phone calls from applicants by canceling its help-wanted
advertisements, which continued to run for 4 to 6 days
after Rudolph was allegedly hired. LeVally's initial testi-
mony that Rudolph began work on August 18 or 25 is
refuted by company records showing that he began work
on September 30. LeVally's subsequent testimony that this
7-week interval subsequent to Rudolph's alleged August 5
or 7 hire was due to counsel's advice regarding the inter-
vening August 11 representation petition is inconsistent
with LeVally's final testimony that the Rudolph hiring in-
terview occurred in the morning of Saturday, August 9,
and that LeVally then told him to fill out an application
blank at home because the Company would take no action
for a while anyway, which final testimony is inconsistent
with LeVally's initial testimony that Rudolph's hire preced-
ed and triggered Gillespie's August 8 discharge. Further,
LeVally's final testimony that on Saturday morning, Au-
gust 9, he told Rudolph to fill out an application blank at
home is inconsistent with LeVally's initial testimony that
Rudolph filled out his application during an interview
which occurred after 5 p.m. on a weekday prior to August
8. Also, LeVally's testimony that Rudolph was to work out
a notice to Abbott Laboratories until August 18 or 25, and
LeVally's notations on the purported August 5 memoran-
dum that Rudolph needed $4 an hour, are difficult if not
impossible to reconcile with Rudolph's September 25 ap-
plication blank, which recites that Rudolph wanted to start
work as soon as possible, resigned from Abbott on Septem-
ber 14 for "lack of interest," was making $4.50 an hour
there, and was hired by the Company at the same rate.
Likewise characterized by inconsistencies and improba-
bilities is the Company's contention that it decided to dis-
charge Gillespie almost 2 months before he started his
union activity, and more than 2 months before he was ac-
tually discharged. Thus, after testifying that LeVally
CONSOLIDATED ACCOUNTING SYSTEMS
reached the discharge decision on June 2 (a decision not
reflected in LeVally's alleged June 2 memorandum to Pet-
it), LeVally testified that his discharge decision was partly
based on the papercutter incident (which he admittedly
learned about some 2 weeks after June 2, and which began
about June 16) and on Respondent's Exhibit 2 (relating to
a doctor's bill owed by Gillespie), characterized by LeVally
as the "straw that broke the camel's back" which was not
received by the Company until June 13.30 Moreover, the
Company admittedly did not request the placement of any
help-wanted advertisement to obtain a replacement for
Gillespie until a date which was more than 2 months after
LeVally allegedly decided to discharge him but which coin-
cided with Petit's admission that he had heard rumors of a
union movement. LeVally sought to explain the last 5
weeks of this delay by testifying that in early July and
again in late July he directed Rowland and others to place
such advertisments, and on both such occasions someone
missed a deadline. For demeanor reasons, and because this
somewhat fishy testimony is inconsistent with both
Rowland's affidavit and his representations to Gillespie, I
do not believe LeVally's testimony that he issued such in-
structions. LeVally testified that he made no efforts to ob-
tain a replacement during June because June and July are
the Company's busy season, but this testimony is difficult
to reconcile with the Company's contention that it dis-
charged Gillespie partly because of his attendance and tar-
diness record. For demeanor reasons, and for the reasons
set forth supra, I do not believe this testimony either.
The evidence likewise militates against the Company's
contention that Gillespie's discharge was motivated by his
deficiencies as an employee. Thus, although LeVally testi-
fied that he decided to discharge Gillespie partly because
of his failure to run the papercutter, LeVally admitted that
he did not find out about this incident until 2 weeks after
allegedly deciding on the discharge. Moreover, the Compa-
ny did not discharge O'Donnell when he refused the in-
structions of both Rowland and Petit to run the papercut-
ter, Gillespie went back to working on the papercutter a
month before he was discharged, Rowland never ordered
him to operate the papercutter, Rowland had always cut
the stock for the other pressmen, and the other pressmen
never operated the papercutter at all (except that O'Don-
nell would run it when Rowland was not in the building).
Gillespie's discharge letter asserted that he was being dis-
charged partly because "Requests for credit information
and our assistance in helping your creditors collect
amounts long over due have been increasing for several
months and this has caused our bookkeeping department
and our administrative personnel costly time on records
and the telephone." However, Gillespie was never told that
he would be discharged if there were any more inquiries
from his creditors, or that disciplinary action would be tak-
en against him because of creditors' inquiries. Moreover, so
far as the probative record evidence shows, the predis-
charge inconveniences imposed on the Company by
Gillespie's difficulties with his creditors were limited to giv-
ing him five or six unopened letters from creditors and
30 As found supra, sec II,C,3, there is no probative evidence that the
Company received the document before discharging Gillespie
103
receiving three or four letters requesting assistance in get-
ting Gillespie to pay; nor does the record support the dis-
charge letter's assertion that such requests had been in-
creasing toward the end of his 2-year tenure. Furthermore,
according to LeVally, "the straw that broke the camel's
back" was a "Notice before Placement" which (according
to LeVally's initial testimony) the Company received more
than 2 weeks after LeVally allegedly decided to discharge
Gillespie, and there is no probative evidence that the Com-
pany received it before discharging him. Nor do the
Company's personnel records state that Gillespie was dis-
charged because of his difficulties with creditors. More-
over, while the Company contends that Gillespie was dis-
charged partly for lateness and absenteeism, LeVally
conceded that Gillespie's record in this respect was no
worse during the period immediately before his discharge
than throughout his 2-year tour of duty with the Company;
he was never told that he would be disciplined if he contin-
ued to be late or absent; and his conduct in this respect did
not substantially discommode the Company. Further,
Rowland's affidavit concedes that "There was never any
problem with [Gillespie's] work so far as production"; and
the Company's contention that Gillespie's shortcomings
rendered him unsatisfactory to it is difficult to reconcile
with LeVally's admission that during the discharge inter-
view, he volunteered to give Gillespie a good recommenda-
tion for a job elsewhere. Indeed, less than a week after
Gillespie was discharged, Petit admitted that he was a good
pressman and a good worker.
Finally, the Company contends that the complaint as to
Gillespie must be dismissed because there is no evidence
that before his discharge, the member of management who
decided to discharge him knew about his union activity. I
regard this contention as disposed of by Petit's mid-August
remarks to O'Donnell, which show that Petit was spontane-
ously associating Gillespie's discharge with the Union
which Petit was determined to "beat." The Company's con-
tention to the contrary focuses on LeVally's testimony that
he did not find out about the union movement until the
Company received the Union's bargaining demand 3 days
after Gillespie's discharge, LeVally's further testimony that
it was he alone who decided to discharge Gillespie, and the
events of August 4 and 5.
At the time Gillespie was discharged, the Company had
about seven employees. LeVally testified that the Compa-
ny runs a very small operation and has only three manage-
ment officials-himself, Rowland, and Petit. LeVally fur-
ther testified that although "Mr. Petit and I are not too
much in contact pretty much of the time," LeVally and
Rowland "are in contact pretty much." Rowland's testimo-
ny (as an adverse witness) and affidavit establish that on or
before August 4 Petit heard of the union movement, and
that on August 4 Petit told Rowland about it. In effect, the
Company seeks to depreciate this evidence on the ground
that there is no direct evidence that before orders were
issued to telephone in the help-wanted advertisements, in-
formation about the Union had reached the company rep-
resentative who initiated such orders. The difficulty with
the Company's position in this respect, however, is that
much of the relevant information lay solely within the
knowledge of persons connected with the Company whom
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it elected not to call as witnesses. Company President Petit
was not called to testify about the date and hour when he
found out about the union movement and Gillespie's active
role therein,31 or whether and when he relayed this infor-
mation to LeVally, or whether and when a role in the dis-
charge decision was played by Petit, whose postdischarge
remarks to O'Donnell strongly suggest that it was Petit
who decided thereon'32 and who according to Rowland's
affidavit told him to put in the Pioneer Press help-wanted
advertisement. Plant Manager Rowland was not called by
the Company to testify about the hour when Petit told him
about the union movement, or about whether and the date
and hour when Rowland told LeVally about it, or about
whether Rowland played a part in the discharge decision,
as his affidavit suggests he did. Mrs. LeVally (who is the
Company's bookkeeper and is the wife of executive Vice
President LeVally) was not called to testify about the date
and hour when her husband allegedly told her to telephone
in the advertisements, and the date and hour when she
allegedly made the calls. Indeed, although LeVally testi-
fied, in effect, that his alleged instructions to his wife were
issued in the "early morning" of August 4, he never gave a
more exact hour. Moreover, there is no evidence other than
the date of actual publication regarding the deadlines for
the August 5-11 News-Sun and August 9-10 Tribune ad-
vertisements , and no probative evidence other than the
date of actual2ublication for the August 7 Pioneer Press
advertisement.
In short, the Company's entire contention regarding pre-
discharge ignorance of Gillespie's Union activity rests
upon the testimony of its sole witness LeVally, even though
his testimony, if true, could have been almost wholly cor-
roborated by Mrs. LeVally, by Company president Petit,
and by plant manager Rowland, and even though Le-
Vally's testimony in other material respects was repeatedly
impeached. I reject the Company's explanations for its fail-
ure to call Mrs. LeVally and Petit,34 and I conclude that
their and Rowland's testimony would have been adverse to
the Company (see cases cited supra, In. 7) 35 Further, for all
31 O'Donnell's uncontradicted testimony about his posthearing confer-
ences with Petit establishes that by August 13 or 14, Petit knew that Gilles-
pie was involved in the union movement
32 O'Donnell testified in part as follows
I probably come back and says, "Hal, God dammit, you knew you
were wrong in firing this-" and I called him a "Bad Hutta," "You
knew you were wrong in firing him" I said, "Why don't you just call
him in and talk to him and try to straighten it out " [Petit] agreed, he
blew his top, he agreed to that
33
There is hearsay testimony that the relevant Pioneer Press deadline was
noon on August 5 This was the date on which the News-Sun advertisement
was printed
34 The Company's brief advances the view that Mrs LeVally's testimony
would have added nothing to her husband's testimony, and (citing LeVally's
testimony) that "there is ample testimony that Mr LeVally made the deci-
sion to terminate Gillespie on his own, in June " Counsel further asserts that
Petit (referred to in the plant as "the old man") "has not enjoyed the best of
health recently and it seemed foolhardy to subject him to a hearing where
his presence was not required " However, counsel does not assert that Petit
was physically unable to testify and, indeed, suggests that the General
Counsel could have subpenaed him
35 The Company's failure to call Rowland as a witness undermines its
analysis of Rowland's August 7 remark to Gillespie, "if you are into this
union thing pretty deep it will be hard to fire you " The Company argues
that "There would have been no reason for such a statement if a decision
the foregoing reasons and in view of LeVally's demeanor, I
do not believe his testimony that he alone decided on the
discharge, that he discharged Gillespie before learning of
his union activity, that Rowland and Petit did not tell him
about such activity, and that such activity played no part
in the motives for Gillespie's discharge. Rather, I conclude
that Gillespie's discharge was motivated by his union activ-
ity. While the Company may have had valid grounds for
discharging Gillespie, "the presence of valid grounds for an
employee's discharge does not legalize a dismissal which
was nevertheless due to a desire to discourage union activi-
ty." Borek Motor Sales, Inc. v N.L.R B, 425 F.2d 677, 680
(C.A. 7, 1970), cert. denied 400 U.S. 823.36 Accordingly, the
Company's motion to dismiss the complaint as to Gillespie
is hereby denied.
The Company contends that the August Petit-O'Donnell
conversations must be ignored because of Section 8(c) of
the Act, which provides, "The expressing of any views, ar-
gument, or opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form, shall not consti-
tute or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains no
threat of reprisal or force of promise of benefit." I regard
Section 8(c) as irrelevant to the Petit-O'Donnell conversa-
tions. These conversations are significant because they
show that even before the charge was filed, Petit spontane-
ously connected the admittedly "wrong" discharge of an
admittedly good worker, Gillespie, with a union movement
which Petit said had "shaken [him] up" and he would
"beat"; and that upon receiving the charge, Petit evinced a
change of heart about possibly recalling Gillespie concomi-
tantly with again expressing an intent to "beat" the Union.
Although clearly calling for the inference that Petit pos-
sessed antiunion views, such remarks did not constitute
merely an expression of those views but, rather, were im-
plicit admissions and otherwise acts in themselves and, as
such, unaffected by Section 8(c). II Leg. Hist. 1541, 1624
(1948) National Labor Relations Act, 1947, (remarks by
Senator Robert Taft, Sr.).
Further, I regard the evidence summarized supra regard-
ing events before and during this second Petit-O'Donnell
had not been made long before to replace Gillespie and if the Company
were not looking for a replacement Rowland saw the union activities as a
totally unanticipated roadblock to the discharge " In the absence of any
such explanation by plant manager Rowland , I infer that such remarks
reflected Rowland's awareness that an active union and a number of union
sympathizers would make it hard for the Company to carry out unscathed
its previous decision or tentative decision to discharge the Union leader for
his union activities
J6 Nor do I believe LeVally's testimony that he hired Rudolph as a re-
placement for Gillespie before discharging Gillespie on August 8 Rather,
on the basis of the Company's payroll records and Rudolph's job applica-
tion form, I infer that Rudolph quit his job with Abbott on September 14
for reasons unrelated to any notice being worked out by him, that when he
quit this job he was being paid $4 50 an hour, that prior to this date he had
not accepted any company promise to hire him, that on September 25 Le-
Vally interviewed him and promised to hire him at $4 50 an hour, and that
he started to work on September 30 Assuming, arguendo, that I should take
at full face value the alleged August 5 telephone memorandum slip regard-
ing an alleged telephone call for LeVally from Rudolph (Resp . Exh 14, see
supra, In 21), this memorandum and the other documentary evidence would
lead me to infer that LeVally talked to him over the telephone on or within
a few days after August 5, that he was then making no more than $4 an
hour, that Abbott thereafter increased his wages to $4 50, and that his Au-
gust discussions with LeVally were inconclusive
CONSOLIDATED ACCOUNTING SYSTEMS 105
conversation as preponderantly establishing that Gillespie
was discharged because of his union activity . Accordingly,
the result herein would remain unchanged even if I accept-
ed the Company 's contention that Section 8(c) compels me
to ignore its September 1975 letter to O'Donnell , about 6
weeks after Gillespie's discharge , which concluded with the
following capitalized message, "BE SURE TO VOTE VOTE
RIGHT-VOTE NO, VOTE NO AGAINST THIS OUTSIDE UNION " 37 In any
event , the Board entertains the view that statements of this
type are admissible evidence of motive. Smith 's Transfer
Corporation of Staunton , Virginia, 162 NLRB 143, 161-164;
Sun Hardware Co, 173 NLRB 973, fn . 1, (1968), enfd. 422
F.2d 129 (C A. 9, 1970). While the Company cites some
judicial precedent pointing to a contrary result , 38 "it re-
mains the [Administrative Law Judge' s] duty to apply es-
tablished Board precedent which the Board or the Supreme
Court has not reversed . Only by such recognition of the
legal authority of Board precedent , will a uniform and or-
derly administration of a national act, such as the National
Labor Relations Act, be achieved ." Iowa Beef Packers,
Inc., 144 NLRB 615, 616 ( 1963), modified 331 F.2d 176
(C.A. 8, 1964).
Up to this point in my Decision , I have disregarded an
affidavit executed by Thomas Maes, who did not testify.
Paragraph VI(b) of the Company's original answer, filed
on October 17, 1975, denied the complaint allegations that
Petit threatened to sell the printing part of the Company's
business if a union successfully organized the employees in
that department , "and in support thereof attaches hereto
the affidavit of Thomas Mayes [sic], a document taken by
an attorney of the National Labor Relations Board on Sep-
tember 16 , 1975, wherein it appears that any conversation
pertaining to the Union with . . . Petit, was not only of a
jocular nature , but said statements were in fact non-coer-
cive in nature ." Because this original answer with its at-
tached affidavits was received in evidence , on the General
Counsel 's motion and without objection , as General
Counsel's Exhibit 1(g), I regard the Maes affidavit as pro-
bative against the Company even though , after such an-
swer was received , I granted the Company' s motion for
leave to amend this paragraph VI(b) and to substitute a
denial of the foregoing complaint allegations 39 Nisbet v.
Van Tuyl, 224 F 2d 66, 71 (C A 7); Fuhrer v. Fuhrer, 292
37 No contention is made that this letter constituted an unfair labor prac-
tice At the hearing , company counsel asserted , inter aba, "I wrote it, so I
would like to know in what way it reflects the company , in the course of the
campaign , prior to the election , that it is taking a position it 's opposed to the
union " The Company's brief does not renew this contention
38 Indiana Metal Product s Corp v N L R B, 202 F 2d 613, 617 (C A 7,
1953) Cf NLRB v Kropp Forge Co, 178 F 2d 822, 827-829 (C A 7,
1949), cert denied 340 U S 810, N L R B v LaSalle Steel Co, 178 F 2d
829, 834-835 (C A 7, 1949), cert denied 339 US 963, Angwell Curtain
Company, Inc v NLRB B . 192 F 2d 899, 903 (C A 7, 1951)
39 Company counsel stated on the record at this point that the motion for
leave to amend his answer was required by the parties' prior stipulation at
the hearing , contrary to the eventually amended paragraph of the original
answer , that Maes was an employee rather than a supervisor Not until all
parties had rested did company counsel in terms allege that the effect of the
amendment to the answer was to effect "the withdrawal and the no longer
assertion by the respondent" of the Maes affidavit At this point, the Gener-
al Counsel averred that if he had understood the motion to amend as en-
compassing the striking of the Maes affidavit , he would have opposed the
motion and , if it had been granted , would have called Maes as his witness
F.2d 140, 144 (C.A. 7); Borel v. United States Casualty Co.,
233 F.2d 385, 387-388 (C.A. 5), and cases cited ; 3 Moore,
Federal Practice, 15.08[7] (2d ed ), 29 Am. Jr., Evidence
§ 693, pp. 748-751 (1967); 71 C.J.S. Pleading § 321 at 717
(1951). To be sure , because my action in granting the mo-
tion to amend deprived the amended portion of the origi-
nal answer of all function as a pleading ,40 the Company
thereafter had the right to bring in evidence contrary to the
Maes affidavit , but the Company did not do so.
The Maes affidavit states that Maes first learned about
the union activity on the day Maes and Gillespie had lunch
at MacDonald 's (a restaurant), a date which Gillespie's tes-
timony and Maes' union card fixes as Friday, August 1, a
week before Gillespie's discharge . The Maes affidavit fur-
ther states that Maes told Petit , "We've got talk of a union
again ," about a week and a half before Gillespie's August 8
discharge. However , Maes' statement elsewhere suggests
that this conversation with Petit occurred a day or two
after Maes ' August 1 execution of a union card (that is, on
Saturday, August 2, or Sunday, August 3). Moreover,
O'Donnell testified without contradiction that Petit was on
vacation until August 4 Accordingly, I conclude that
Maes told Petit about the union movement on August 4. In
this connection , I note that Petit failed to testify. Accord-
ingly, the Maes affidavit provides some additional corrob-
oration for my previous finding that the Company knew
about Gillespie's union activity before discharging him.
In view of my finding that the Company discharged Gil-
lespie on August 8, 1975, because of his union activity, in
violation of Section 8(a)(3) and (1) of the Act, I further find
that he was eligible to vote in the election on September 19,
1975, and that the challenge to his ballot should be over-
ruled. Accordingly, the Company' s motion to sustain the
challenge is hereby denied.
2. The independent 8(a)(1) allegations
I agree with the General Counsel that the Company vio-
lated Section 8(a)(1) of the Act when Plant Manager Row-
land impliedly asked how "deep" Gillespie was "into this
union thing," and further asked the identity of the union in
question . In so finding , I note that no legitimate reason
appears for such questioning , and that Gillespie was dis-
charged on the following day because of how "deep" he
was "into this union thing." I note, moreover , the assertion
in the Company' s brief that Gillespie "attempted to protect
himself by intentionally keeping his union activities se-
cret." Under these circumstances , the fact that Gillespie
and Rowland were personal friends is not available as a
defense to the Company. Princeton Sportswear Corporation
of Pennsylvania, 220 NLRB 1345 (1976), Hanes Hosiery,
Inc, 219 NLRB 331 (1976). Accordingly, the Company's
motion to dismiss the complaint as to this interrogation is
hereby denied
40 Bullen v DeBretteville , 239 F 2d 824, 833 (C A 9), cert denied 353 U S
947, Lubin v Chicago Title and Trust Company, 260 F 2d 411, 413 (C A 7)
41 However , LeVally did not refer to Petit 's absence when asked to ex-
plain why Petit and Rowland allegedly did not tell him about the union
activity when LeVally returned from his vacation on August 4 Moreover, it
is a little curious that two members of the division's three-member manage-
ment team were both on vacation the same week
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record contains no evidence to support the com-
plaint allegation that the Company threatened to sell the
printing part of its business if a union successfully orga-
nized it . Accordingly, the Company' s motion to dismiss the
complaint as to the alleged threat is hereby granted.
CONCLUSIONS OF LAW
I The Company is 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. The Company discharged Richard Gillespie on Au-
gust 8, 1975, because of his activity on behalf of the Union,
in violation of Section 8(a)(3) and (1) of the Act
4 The Company violated Section 8(a)(1) of the Act by
interrogating Gillespie about activity on behalf of the
Union.
5. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. The Company has not threatened to sell part of its
business if a union successfully organized it.
THE REMEDY
Having found that the Company has violated the Act in
certain respects, I shall recommend that the Company be
required to cease and desist therefrom . Because the unfair
labor practices found include the discharge of the leader in
the union movement because of his union activity, a broad
order is called for. SKRL Die Casting, Inc., 222 NLRB 85
(1976); Brom Machine and Foundry Co., 222 NLRB 74
(1976). Accordingly, I shall recommend that the Company
be required to cease and desist from infringing on employ-
ee rights in any other manner. I shall also recommend that
the Company be required to offer Gillespie immediate re-
instatement to the job of which he was unlawfully de-
prived , or, in the event such job no longer exists , a substan-
tially equivalent job, without prejudice to his seniority or
other rights and privileges , and make him whole for any
loss of earnings he may have suffered by reason of the
discrimination against him, from the date of his discharge
to the date of a valid offer of reinstatement , less his net
earnings during this period, to be computed in the manner
described in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as described in Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). In addition, I shall recom-
mend that the Company be required to post appropriate
notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case , and pursuant to
Section 10(c) of the Act and the Regional Director's order
consolidating cases dated October 14, 1975, I issue the fol-
lowing recommended:
ORDER 42
The Respondent, Consolidated Accounting Systems,
Inc., Highland Park , Illinois , its officers , agents , successors,
and assigns , shall:
I Cease and desist from:
(a) Discouraging membership in Printing Pressmen and
Graphic Arts Union No. 3, affiliated with International
Printing and Graphic Communications Union , AFL-CIO,
or in any other labor organization , by discharging employ-
ees, or otherwise discriminating in any manner in regard to
hire or tenure of employment , or any term or condition of
employment.
(b) Interrogating employees about activity on behalf of
that Union or any other labor organization, in a manner
constituting interference , restraint , or coercion.
(c) In any other manner interfering with , restraining, or
coercing its employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Richard Gillespie immediate reinstatement to
his former job or, if his former job no longer exists, to a
substantially equivalent job, and make him whole for any
loss of pay he may have suffered by reason of the discrimi-
nation against him , in the manner set forth in the section of
this Decision entitled , "The Remedy."
(b) Preserve and, upon 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 neces-
sary or useful to analysis of the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Highland Park, Illi-
nois, copies of the attached notice marked "Appendix." 43
Copies of the notice , on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent 's representative , shall be posted by it, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted Reasonable steps shall be
taken by Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order , what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 13-RC-13788 be re-
manded to the Regional Director for Region 13 to open
and count the ballot of Richard Gillespie, to issue a revised
tally of ballots, and to take such further action as then
becomes appropriate.
IT IS ALSO FURTHER ORDERED that the complaint is dis-
missed to the extent that it alleges that the Company vio-
lated the Act by threatening to sell part of its operation
42 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
43 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
CONSOLIDATED ACCOUNTING SYSTEMS 107
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence , it has been decided that we violated
the law by, among other things , discharging Richard Gil-
lespie because of his union activity . We have been ordered
to post this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT discharge or otherwise discriminate
against any employee to discourage membership in
Printing Pressmen and Graphic Arts Union No. 3, af-
filiated with International Printing and Graphic Com-
munications Union, AFL-CIO , or any other union
WE WILL NOT ask our employees about union activity
in a manner constituting interference , restraint, and
coercion.
WE WILL offer Richard Gillespie reinstatement to his
job or , if that job no longer exists , to a substantially
equivalent job, and make him whole, with interest, for
loss of pay resulting from his discharge.
The National Labor Relations Act gives employees
the following rights:
To engage in self-organization
To form, join , or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from any such activities
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in exercise of these
rights.
Our employees are free to exercise any or all of these
rights, including the right to join or assist Pressmen's
Union No 3, or any other union . Our employees are also
free to refrain from any or all such activities , except to the
extent that union membership may be required by a collec-
tive-bargaining agreement as a condition of continued em-
ployment as permitted by the proviso to Section 8(a)(3) of
the Act.
CONSOLIDATED ACCOUNTING SYSTEMS, INC.