County Bindery & Die Cutting Service, Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1962

135 N.L.R.B. 97 (N.L.R.B. 1962)

COUNTY BINDERY & DIE CUTTING SERVICE, INC. 97
of pay suffered by reason of the discrimination against him. Loss of pay shall be
based upon earnings which Knott normally would have earned from the date of the
discrimination against him, to the date of his reinstatement, less net earnings, com-
puted on a quarterly basis in the manner established by the Board in F. W. Wool-
worth Company (90 NLRB 289). It will also be recommended that the Respondent
preserve and, upon request, make available to the Board payroll and other records
to facilitate the computation of the backpay due.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent is, and has been at all times material herein, engaged in com-
merce within the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices proscribed by Section 8(a)(1).
4. By discriminating with respect to the hire and tenure of employment of Arnold
Knott, thereby discouraging membership in the above-named labor organization, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
5. By the immediately ,foregoing the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Since the violations of the Act which the Respondent committed are closely re-
lated to other unfair labor practices proscribed by the Act, and the danger of their
commission in the future is reasonably to be anticipated from their past conduct, the
preventative purposes of the Act may be thwarted unless the recommendations are
coextensive with,the threat. To effectuate the policies of the Act, therefore, it will
berecommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
[Recommendations omitted from publication.]
County Bindery & Die Cutting Service , Inc. and Local 116,
International Brotherhood of Bookbinders, AFL-CIO. Case
No. 9-CA-7969. January 10, 1969
DECISION AND ORDER
On October 17, 1961, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the Intermediate Report at-
tached hereto. The Trial Examiner also found that Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint, and recommended that these particular allegations be dis-
missed. Thereafter, Respondent and the General Counsel filed excep-
tions to the Intermediate Report together with supporting briefs, and
135 NLRB No. 17.
634449-62-vol. 135-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent also filed a brief in support of certain portions of the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has considered
the Intermediate Report 1 and the entire record in this case, including
the exceptions andbriefs, and hereby adopts the findings,2 conclusions,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, County Bind-
ery & Die Cutting Service, Inc., Mount Vernon, New York, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Promising or granting wage increases and other economic bene-
fits to its employees for the purpose of inducing them to reject Local
116, International Brotherhood of Bookbinders, AFL-CIO, or any
other labor organization, as their bargaining agent, provided, how-
ever, that nothing herein shall be construed as requiring the Respond-
ent to vary or abandon any economic benefit or any term or condi-
tion of employment which it has heretofore established.
(b) In any like or related manner interfering with, restraining, or .
coercing employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted ac-
tivities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
IWe correct the following inadvertences in the Intermediate Report: (a) The Union
began its organizing campaign among the Respondent 's employees in March 1961 , not March
1960 ; ( b) Naporlee was promised and received a raise of $5 per week, not $5 per hour.
2 We agree with the Trial Examiner that the General Counsel has failed to adduce suffi-
cient evidence to warrant an inference that the terminations of Naporlee and Daly were for
unlawful reasons rather than for valid business reasons.
COUNTY BINDERY & DIE CUTTING SERVICE, INC. -99
(a) Post at its place of business in Mount Vernon, New York, copies
of the notice attached hereto marked "Appendix." I Copies of said
notice, to be furnished by the Regional Director for the Second Re-
gion, shall, after being duly signed by the Respondent's representa-
tives, be posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
had taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations other than those found herein.
' In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words " Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT promise or grant wage increases or other economic
benefits to our employees for the purpose of inducing them to
reject Local 116, International Brotherhood of Bookbinders,
AFL-CIO, or any other labor organization, as their bargaining
agent, provided, however, that nothing herein shall require us to
vary or abandon any economic benefit or any term or condition of
employment which has been heretofore established.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the right to self-
organization , to form, join , or assist labor organizations , to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of any labor organization, except to
the extent this right may be affected by a lawful agreement requiring
membership in a labor organization as a condition of employment.
COUNTY BINDERY & DIE CUTTING SERVICE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (745 Fifth Avenue, New York 22, New York; Telephone Num-
ber Plaza 1-5500) if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Local 116, International Brotherhood of Bookbinders,
AFL-CIO, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Second Region, issued his com-
plaint, dated June 29, 1961, against County Bindery & Die Cutting Service, Inc.,
herein called the Respondent. With respect to the unfair labor practices, the com-
plaint alleges, in substance, that Respondent (1) on May 17, 1961, laid off employee
Fred Naporlee and discharged employee Alan Daly because of their union and
concerted activities; (2) promised and granted employees wage increases and
other economic benefits and improvements to induce them to refrain from assisting,
becoming, and remaining members of the Union; and (3) thereby engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a) (1) and (3)
and Section 2(6) and (7) of the National Labor Relations Act, herein called the
Act. In its duly filed answer, Respondent admits the layoff and discharge of Daly
and Naporlee but denies, generally, all unfair labor practice allegations.
iPursuant to notice, a hearing was held before Louis Libbin, the duly designated
Trial Examiner, at New York, New York, on August,14 to 17, 1961. All parties
appeared and were represented. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evidence was afforded to all
parties. The General Counsel and the Respondent engaged in oral argument before
the close of the hearing. Thereafter, the Respondent filed a brief which I have fully
considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with its principal office and place of business
in Mount Vernon, New York, is engaged in the business of providing papercutting,
diecutting, and bindery services. During the fiscal year ending September 1960,
which period is representative of its annual operations generally, the Respondent
furnished services at its plant, valued in excess of $50,000, to The Nestle Co., Inc.,
Sonotone Company, General Electric Company, Royal McBee Corporation, and
General Foods Corporation, each of which enterprises annually produces and ships
goods, valued in excess of $50,000, directly out of the State wherein said enterprise
is located.
Upon the above admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record shows, and I find, that Local
116, International Brotherhood of Bookbinders, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
COUNTY BINDERY & DIE CUTTING SERVICE, INC. 101
III. THE UNFAIR LABOR PRACTICES
The issues litigated in this proceeding are (1) whether the employment termination
of Alan Daly and Fred Naporlee on May 17, 1961, was discriminatorily motivated
in violation of Section 8(a)(3) and (1) of the Act; and (2) whether President
Manuelian's conduct in promising the employees wage increases and other economic
benefits on March 27 and granting wage increases on May 5 was violative of Section
8 (a) (1) of the Act.
A. Interference, restraint, and coercion
1. The facts 1
In March 1960, the Union began its campaign to organize Respondent's employees
by passing out leaflets and application blanks outside the plant premises. Henry
Sahker, the then plant manager, felt that it was his duty as a supervisor to inform
President Manuelian about the talk in the shop about the Union's campaign.
Manuelian told Sahker that if the Union ever came in he had better close up, and
that he would like to get some ideas as to what he could do to combat the Union
and to keep it out of the plant. Sahker suggested that Manuelian contact Genovese,
a representative of the New York Employing Printers Association.2 Pursuant to
this suggestion, Manuelian telephoned to Genovese on March 22 or 23, and stated
that he had a problem about the Union trying to organize the shop and that he
wanted some expert advice on the situation. A tentative meeting was arranged for
Friday, March 24. When Genovese failed to appear at this meeting, Manuelian
telephoned Genovese's home the next morning. Manuelian expressed concern about
his problem and a meeting was arranged at the plant for that very afternoon.
The meeting that Saturday afternoon, March 25, was held in Manuelian's office
and lasted about 4 hours. Sahker, the then plant manager, was the only other
person present. Genovese advised Manuelian as to his rights and obligations under
the law. He had with him a copy of the National Association of Manufacturers'
booklet, which lists 24 things that a supervisor can or cannot do, and mentioned
these points to Manuelian. They then made a wage analysis of his working condi-
tions, including wages and benefits, and compared them with the recommended
standards of the Master Printing Section. Manuelian explained that while he would
like to meet those standards, he was not at that time financially able to do so, and
also took the position that not all of his employees were journeymen. Genovese
told Manuelian that it would not be unlawful for him to give the employees any
wage increase which had previously been promised, or to adhere to past practices.
He also suggested that Manuelian talk to the employees as a group or with a com-
mittee of representatives chosen by the employees
The following Monday afternoon, March 27, the machinery was shut down and
Manuelian addressed the assembled employees. He told the employees that because
the Union was in the process of organizing the plant, he could not do anything that
would be construed as intimidation, coercion, or bribery, but that he was permitted
to fulfill any past promises or commitments, and that since they had been promised
a raise in January they were entitled to it. Manuelian admitted on cross-examination
that he also promised the employees at this meeting that he would try to grant them
more holidays at a later time or, if possible, would make other improvements,
instead, mentioning the fact that they already had seven holidays. He then told them
about Genovese's suggestion for having a committee "so that we could have better
communications between the office and the factory." However, departing from
Genovese's suggestion, Manuelian himself appointed the five members of the com-
mittee. He admitted that he then told the committee members that he wanted them
to communicate with him to work out any problems that would come up. The com-
mittee, however, never functioned
By letter, dated March 27, 1961, James Moore, the Union's International repre-
sentative, informed Manuelian that he had in his possession membership applications
from some of the employees; suggested that they get together to arrive at a mutual
understanding to avoid the need of "having to run to the National Labor Relations
Board" to file for an election; and concluded with the hope that he would hear from
Manuelian soon. Manuelian made no reply to this letter, which he received after
he had addressed the assembled employees.
'Unless otherwise indicated, the factual findings in this section are based on credited
evidence and testimony which Is either admitted or uncontradicted,
2 This Association represents about 400 open-shop printers, binderies, typesetters, offset
houses, etc
102
i
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 5, 1961, all of Respondent's employees received a 'wage increase, ranging
from 5 to 15 cents per hour and effective as of the payroll period ending April 27.
2. Concluding findings
The General Counsel contends, as the complaint alleges, that President Manuelian's
conduct on March 27 in promising the assembled employees wage increases, more
holidays, or other improvements, if possible, and in granting the wage increases
effective as of the pay period ending April 27, was violative of Section 8(a)(1) of
the Act. The Respondent contends that such conduct was not violative of the Act
because it was merely in fulfillment of a promise made prior to the advent of the
Union.
Manuelian denied that he gave the wage increases to defeat the Union, and
testified that he did so because he had promised it in January and March but could
not afford it at that time and that he was merely following Genovese's advice.
However, he admitted that he normally conducts salary reviews about once a year,
generally around the fall or winter, and that his last salary review was in early 1960.
He further admitted that he had not previously promised all the employees that
he would give them an increase but had only promised those individuals who had
approached him, totaling about 10 percent of the employees. Sahker corroborated
Manuelian in this respect, testifying that there had been no previous promise to
give everybody in the shop a raise.
It is thus apparent that Manuelian's conduct with respect to the wage increases
promised on March 27 and granted in May to all the employees went beyond prior
promises and past practice. And this was done after Manuelian had previously
pleaded financial inability to give a raise even to 10 percent of his employees.
Moreover, no justification at all was offered by Manuelian for his additional admitted
promises to try to grant more holidays at a later time or, if possible, other improve-
ments instead. As previously found, Manuelian wanted to do something to keep'
the Union out of the shop and it was with this thought in mind that he solicited
Genovese's services.
After full consideration of all the foregoing, I am convinced and find that a
primary purpose for Manuelian's conduct on March 27 in promising all the
employees a wage increase and more holidays at a later time or, if possible, other
improvements, instead, and in granting the wage increases to all employees, on
May 5, was to induce the employees to reject the Union as their collective-bargaining
representative. By such conduct, Respondent has interfered with, restrained and
coerced its employees in the exercise of their rights guaranteed by Section 7, in
violation of Section 8(a) (1) of the Act.
B. Alleged discrimination in hire and tenure of employment of Fred Naporlee
and Alan Daly 3
1. The circumstances under which Naporlee and Daly were employed
Prior to May 1960, Respondent's business was managed by its president, George
Manuelian, with the assistance of Frank Spagnola as working foreman. In May
1960, Sahker, who had experience in large binderies, was brought in by Manuelian
as plant manager on a weekly salary. Sahker was primarily skilled as a cutter.
Spagnola agreed to this change even though it reduced his own status. Shortly
thereafter, the operator of the folding machine resigned and Manuelian told Sahker
to get a replacement. Sahker thereupon called the New York Employing Printers
Association on July 5 for a folding machine operator but did not succeed in getting
one. During Manuelian' s absence in California, Sahker discussed the situation with
Spagnola and decided to hire a cutter and have Spagnola, who up to that time had
been dividing most of this time between the operation of the cutter and the folding
machine, concentrate on the folding machine. Sahker presented this plan to
Manuelian upon his return, pointing out that Spagnola was agreeable to going on
the folding machine and that he (Sahker) knew of a cutter by the name of Fred
Naporlee. Manuelian thereupon hired Naporlee in July 1960.
Naporlee was an experienced journeyman cutter and was hired at $3 per hour
with a promise of a $5 per hour raise in October, which in fact he did not receive
until May 5, 1961. He spent about 98 percent of his time on the cutter. Spagnola
spent almost all of his time on the folding machines. Sahker spent about 50 percent
"Unless otherwise indicated, the factual findings in this section are based on credited
evidence and testimony which is undisputed
COUNTY BINDERY & DIE CUTTING SERVICE, INC. 103
of his time on the cutter and the remainder of his time in supervision and performing
some of Manuelian's managerial functions which Manuelian had delegated to him.
The need for another qualified experienced folding machine operator continued
to be apparent to both Manuelian and Sahker but efforts to obtain one were unsuc-
cessful. This matter came to a head during the period of May 1 to 5, 1961, when
Spagnola was ill at home. Sahker admitted that the entire operation had backed
up because of the slowdown in the folding department due to Spagnola's absence.
On Saturday, May 6, Manuelian called in an ad for an "experienced" folding
machine operator to various Westchester newspapers. Alan Daly responded to this
ad and was hired by Manuelian at $1.75 per hour with the promise of a raise if he
proved himself to be qualified. He began working on Thursday, May 11.
2. The union activities of Naporlee and Daly
Early in March, before the commencement of the Union's organizational cam-
paign, Naporlee was discussing the benefits of belonging to a union with a group
of employees during lunch period, when Manuelian came up to the group. Manuelian
asked Naporlee if he believed in unions . Naporlee replied that he did. In response
to Manuelian's further query as to why Naporlee believed in unions, Naporlee
stated that they protect a worker by helping him get a job when he gets laid off.
After some further conversation, Manuelian went to his office and returned with a
letter which he read to the group. The letter referred to the fact that in order
to get or receive money, you have to produce.
When the Union began to organize in March, Naporlee signed a union card
and promised to get signed application cards from the other employees. Thereafter,
he passed out cards to the employees and solicited their signatures. By May 11,
he had obtained signed cards from about 80 percent of the employees. Not long
before his employment termination, he told Spagnola that he had almost everyone
signed up and asked Spagnola if he would sign a card. Spagnola refused.
Alan Daly started working on May 11. On that day Naporlee handed Daly a
union card which the latter signed and returned to Naporlee. That was the extent
of Daly's union activities.
3. The employment termination of Naporlee and Daly
About Christmas 1960 Manuelian and Sahker both realized that the new setup
was not working out as well as they had expected. At that time Sahker volunteered
to step down to an hourly wage, but Manuelian felt that such a change was pre-
mature and preferred to continue the arrangement for the time being. In February
1961, Manuelian criticized Sahker for his inability to get along with one of the
shipping boys. In March, Manuelian's accountant commented on Sahker's salary
and challenged his worth to the Company. Finally, when Spagnola was out sick
in May, he told Manuelian that he resented the fact that he was doing all the work
and that Sahker was getting the credit and that he felt he could do a better job
than Sahker. During that week, Sahker was ready to quit because he felt it was
too much for one man to handle. When Spagnola returned to work on Monday,
May 8, Manuelian asked if he could count on him if he gave Spagnola back his
old job. Spagnola replied in the affirmative.
As previously noted, Daly began working on Thursday, May 11. The next day,
Manuelian wrote out another ad for an "experienced" folding machine operator
and showed it to Sahker. Both Sahker and Spagnola suggested the New York Post
as being the best New York paper in which to run the ad.
On Saturday, May 13, both Spagnola and Sahker were due to work. Sahker
telephoned shortly after 8 a.m. and informed Spagnola that he would not be in
that day. When Spagnola reported this to Manuelian upon his arrival before 9 a.m.,
Manuelian expressed some annoyance at this news. Shortly thereafter, Manuelian
informed Spagnola that he was to take over his old duties effective with the pay
period beginning Thursday, May 18. Manuelian then called the ad for the folding
machine operator in to the New York Post
On Monday morning, May 15, Manuelian informed Sahker of his plan to
reorganize the shop effective May 18 and asked Sahker to stay on as a cutter at
an hourly wage. Sahker agreed to do so. On Wednesday, May 17, Daly reported
about an hour late without calling in, and was informed by Manuelian that this
would be cause for dismissal if it happened again.
That same day, May 17, Galindez responded to the Post ad for an "experienced"
folding machine operator and was hired by Manuelian "on trial." Manuelian told
Spagnola to start him off on difficult jobs to test his skill. By 1 p.m. that day,
Spagnola reported to Manuelian that Galindez had proved himself as a qualified
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
folding machine operator and that he was just the man they were looking for. Man-
uelian then left for New York City where he spent the afternoon on business.
On Wednesday evening, Manuelian telephoned Daly's home and, in the Tatter's
absence, left a message that he not report for work the next day because he had no
work for him. He made a similar telephone call to Naporlee's home and also told
Naporlee not to come to work the next day .4 Shortly thereafter, Manuelian offered
to employ Naporlee for part-time work, when available, if he were interested.
Beginning Thursday, May 18, Sahker devoted full time to the operation of the
cutter; Spagnola spent considerable time in cutting, in addition to his supervision
duties and work on the folding machine; and Del Monte, who operated a Diddle
Collator machine, also spent about 50 percent of his time on a cutter. Manuelian
himself resumed some of the managerial functions which had been delegated to
Sahker.
4. Respondent's defenses
Manuelian testified, in substance, to the following reasons for reorganizing the
shop by putting Sahker full time on the cutter, restoring Spagnola to his former
position, and for laying off Naporlee: The long-felt need for an experienced folding
machine operator was impressed upon him during Spagnola's illness in the first
week in May when the work came to a virtual standstill and he realized that such a
situation could no longer be tolerated. He had given Sahker a year's trial as plant
manager and was disillusioned with Sahker's progress in that capacity. At the same
time, Spagnola was complaining about Sahker and claiming that.he could do the
work better than Sahker. Manuelian felt that he was top heavy in the cutting depart-
ment, with Sahker, Spagnola, Naporlee, and Del Monte all being qualified to work
on the cutters while only Spagnola was qualified as a folding machine operator, and
that therefore the money he was paying Naporlee could better be invested in hiring a
folding machine operator as he had originally intended when that operator resigned
before Naporlee was hired at Sahker's suggestion. When on Wednesday, May 17,
Galindez proved himself as a qualified and fully experienced folding machine opera-
tor, the situation was resolved. Spagnola could now be relieved to perform some
supervisory functions and to help out on the cutters. With Sahker working full
time on the cutters, and Spagnola and Del Monte helping out on the cutters, Naporlee
became surplus and was the logical one to go.
With respect to the reasons for letting Daly go, Manuelian testified that he realized
from Daly's work the first day or two that he was not the experienced folding ma-
chine operator for whom he had been looking, that he felt that Daly's attitude in
coming in late on May 17 without previously calling in indicated a lack of responsi-
bility for his job, and that when Galindez proved himself to be the man he realty
wanted, Daly became dispensible.
Dorothy Turtill, acting supervisor over about a dozen women, corroborated
Manuelian and testified that during the week of Spagnola's illness, Manuelian told
her that he was thinking of putting Spagnola back in his old position, having Sahker
work as a cutter, and that he really did not think there would then be any need for
Naporlee. She further testified that he asked her opinion 'about it and that she re-
plied that they had all been a happy family under the supervision of Spagnola.
Sahker, who was still working as a cutter for Respondent and who testified under
subpena as a witness for the General Counsel, corroborated Manuelian's testi-
mony concerning the long-felt need for, and unsuccessful efforts to obtain, a folding
machine operator, that during Spagnola's illness in the first week in May there was
no other fully qualified folding machine operator in the plant, and that when work
slowed down in the folding department the entire operation would back up. 'Sahker
further admitted that Galindez was, but that Daly was not, a qualified experienced
folding machine operator. Daly had been hired on a trial basis and himself ad-
mitted that he had misrepresented to Manuelian his past experience on the folding
machine. It is also apparent that with the hiring of Galindez and the rearranged
setup, there was a surplus of cutters, with Naporlee being the logical one to be
selected for the layoff. Thus, Naporlee admitted that Sahker was a better cutter
than Naporlee. Saliker admitted that Naporlee was not as good a cutter as Spag-
nola on flat cutting, which constituted 75 percent of Respondent's work. More-
* Naporlee also testified that when he inquired as to the reason, Manuelian stated that
he could get someone to do the work cheaper. Manuelian denied having made such a state-
ment, and testified that he merely told Naporlee that he had no work for him and would
call him when he had something. A resolution of this conflict is unnecessary to a deter-
mination of the relevant issues.
COUNTY BINDERY & DIE CUTTING SERVICE, INC. 105
over, unlike Naporlee, Spagnola was also capable of operating the folding machine,
which he continued to do part of his time. Although Naporlee claimed that he was
a better cutter than Del Monte, the fact remains that Del Monte was a specialist
who operated the Diddle Collator machine and only spent about half of his time on
the cutter.
5. Position and contentions of the General Counsel
The General Counsel contends that the operational changes in Respondent's
plant-the demotion of Sahker from plant manager to full time cutter and the trans-
fer of Spagnola to his former position-were undertaken for the sole reason of find-
ing a plausible pretext for getting rid of Naporlee because he was the one responsible
for bringing the Union into the plant. He further contends that Daly was terminated
because he had signed a union card and was believed to be a union plant. In support
of his position, the General Counsel relies primarily on the following factors:
(a) Naporlee was most instrumental in getting a majority of the employees to
sign union cards, and Respondent was aware of his role in this respect.
The record fully supports this contention. Indeed, as previously found, Manuelian
became aware of Naporlee's prounion sympathies and interest even before the Union
began its organizational campaign. However, it is significant that at the March 27
meeting, despite this knowledge, Manuelian appointed Naporlee as one of the com-
mittee members who he believed would be most vocal in representing the employees.
It also seems significant that when Naporlee refused to accept his $5 raise on May 5
and admittedly "cursed him (Manuelian) out" about it because he felt entitled to
more after having waited so long, Manuelian made no reference to Naporlee's
union activities or sympathies but merely replied that he could not afford to pay
any more, that if Naporlee wished he could get a job any place where he felt he
could get what he was entitled to, and that he had hired Naporlee when he should
have hired a folding machine operator in the first place.
(b) The timing of the decision to make the operational changes, relying on the
testimony of Union Representatives Moore and Klett.
After the Union's letter of March 27, Manuelian did not hear from the Union
until Saturday, May 13. In this connection Union Representatives Moore and Klett
testified as follows:
About 9:30 a.m., Saturday, May 13, Moore telephoned Manuelian at his office,
informed him that he had received sufficient application cards the preceding night
to give him a majority, and requested a meeting. Manuelian replied that he was
too busy and not interested. When Moore stated it would be necessary to go to
the Labor Board, Manuelian replied that what Moore did was his business. Moore
then telephoned Klett, president of the Union, and asked him to telephone and try
to persuade Manuelian to meet with them. Klett called Manuelian about 10 a.m.
and was equally unsuccessful in getting Manuelian to agree to meet with them.5
Manuelian testified that the two telephone calls came that afternoon, the first one
about 2:45 and the second one about 20 minutes later. He further testified that it
was about 9:15 that morning that he told Spagnola about the change in Spagnola's
and Sahker's positions to be effective with the pay period beginning the following
Thursday and that it was between 9:30 and 9:45 that he called in the ad to the
New York Post for an experienced folding machine operator.
The General Counsel contends that the two calls from the union representatives
were the motivating factors which set the operational changes, into play for the
purpose of getting rid of Naporlee. I find it unnecessary to determine whether the
union representatives made their telephone calls in the morning, as they testified, or
in the afternoon, as Manuelian testified. For, even accepting the version of the
union representatives in this respect, the record still fails to disclose with any degree
of certainty or accuracy that the calls came before Manuelian spoke to Spagnola
about the changes. Moreover, the record does not warrant attaching the usual sig-
nificance to the timing in this case in view of the fact that during Spagnola's illness
in the first week of May, Manuelian had already discussed with Turtill his plans to
shift Spagnola and Sahker and the probable layoff of Naporlee, that upon Spagnola's
return to work on May 8 Manuelian talked to him with respect to his possible change
of status, and that it was on the afternoon of Friday, May 12, that he wrote out the
ad for an experienced folding machine operator, showed it to Sahker, and was ad-
vised by Sahker and Spagnola of the desirability of running it in the New York Post.
6 Manuelian did meet with Moore and Klett when they appeared at the plant on the
following Monday morning of their own accord . He also met with them the following
Thursday morning for the purpose of discussing the Union 's contract proposals , although
such discussion did not take place because of the position taken by Moore and Klett.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Manuelian's inquiry of Spagnola as to whether he knew if Daly had signed
-up for the Union.
On Monday morning, May 15, when Moore and Klett voluntarily appeared at the
plant premises to try to see Manuelian , Spagnola informed Manuelian that the
union delegates were outside. Manuelian replied that he could not do anything
about that, and later asked Spagnola if Daly had signed up for the Union. Spagnola
replied that he did not know.
While the foregoing shows that Manuelian was interested in learning whether
Daly had signed up with the Union, by the same token it also shows that Manuelian
was unaware of Daly's union status even after he had announced the operational
changes and had placed the ad in the New York Post for an experienced folding
machine operator. Manuelian denied having knowledge of Daly's union status at
the time of his termination. As previously found, Daly's sole union activity con-
sisted of signing a card on May 11, the first day of his employment. There is no
credible evidence in the record to warrant a finding that Manuelian knew or sus-
pected, prior to Daly's termination, that Daly had signed a union card or was a
union adherent.
(d) The testimony of Naporlee that when he appeared at the plant premises on
Thursday morning, May 18, and asked Manuelian if there was any other reason for
his layoff, Manuelian replied that Naporlee had started trouble by bringing the
Union around.
Manuelian denied having made the above statement to Naporlee. This therefore
presents a pure credibility issue. While Manuelian appeared to be an excitable
person, he by no means impressed me as being a stupid or foolish one. Naporlee
also impressed me as being an excitable, as well as a shrewd, person. Naporlee's
testimony does not indicate that he and Manuelian were engaging in an argument
during the course of which one might blurt out a remark of this kind. Genovese
had previously impressed upon Manuelian that he could not lawfully discriminate
against, or discharge, an employee for union activity. I do not mean to suggest
that this indicates that Manuelian did not or would not undertake such action. But
it is an additional bit of evidence which, in its totality, persuades me that if Manuelian
had in fact gone to all the trouble of reorganizing his operational setup for the very
purpose of getting rid of Naporlee because he brought the Union in, as the General
Counsel contends, it seems less likely that a man of his intelligence would have
immediately nullified his entire stratagem by admitting his true purpose to Naporlee.
And if in fact his true purpose in changing his operational setup was not to penalize
Naporlee for bringing the Union in, then he certainly would not have made such a
false confession . Moreover, Manuelian 's ready admission that he did tell Daly sub-
-stantially what Naporlee and Daly attributed to him, as detailed in subparagraph (e),
infra, does demonstrate a degree of candor on his part. On the other hand, Napor-
lee's testimony strikes me as being somewhat too pat. Under all the circumstances,
I do not credit Naporlee's testimony in this respect , and find that Manuelian did not
make the alleged statement attributed to him.
(e) The alleged testimony of Naporlee and Daly that Manuelian told Daly that
same Thursday morning that Daly was discharged for being a union plant.
Without prior arrangement , both Naporlee and Daly appeared at the plant premises
on Thursday morning, May 18. When Manuelian arrived for work, he asked Daly
if he had received Manuelian's message and Daly replied in the affirmative.
Manuelian then went over to Naporlee and had a conversation during which
Manuelian is alleged to have made the statement discussed in subparagraph (d),
• supra. Manuelian then went into the office. When he came out about 20 minutes
later, he saw Naporlee and Daly still standing by the bus barn. Manuelian walked
,over and asked what they were still doing there. Naporlee replied that he was a
member of the Union, that he had called the Union, and that he was waiting for
the union representatives to come down. Manuelian asked Naporlee what he ex-
pected to gain by that, and Naporlee repeated his answer. Manuelian then asked
Daly what he was doing there. Naporlee motioned with his head for Daly not to
answer, and Daly made no reply. Manuelian then asked Daly why he did not
speak up and whether he was a man or a mouse. Naporlee again motioned with
his head for Daly not to answer, and Daly again remained silent. Manuelian then
asked Daly if he had a mouth, and Daly replied that he had.
There is a dispute as to Manuelian 's exact response at this point. In view of
Naporlee's admissions as to the truth of his statements in his pretrial affidavit in
,this connection and in view of Daly's testimony that Manuelian may have said
Daly "must have been sent by the Union," I find that Manuehan's response to Daly
at this point was, "I know what you are. You must be a union member and must
be (or must have been ) a union plant sent up by the Union."
COUNTY BINDERY & DIE CUTTING SERVICE, INC. 107
- The foregoing does not, in my opinion , amount to a statement that Daly was dis-
echarged because he was suspected of being a union plant sent in by the Union. On
the contrary, Manuelian's remark was clearly evoked by the conduct of Naporlee in
directing Daly not to answer and by Daly's silence , and indicates Manuelian 's surprise
and deduction from their unusual conduct. Indeed , it demonstrates Manuehan's
lack of prior knowledge of Daly's union status.
(f) The testimony of Moore and Klett that Manuelian stated on Thursday morning
that Naporlee was a good boy until the Union came around and he became an insti-
gator for the Union.
Union representatives Klett and Moore testified as follows:
That same Thursday morning they arrived at the plant with a proposed contract
which they wanted to discuss with Manuelian. They met Naporlee and Daly out-
side and were told what had happened. Moore and Klett then went into the plant
and asked Manuelian to reinstate Naporlee and Daly, stating that they were told
Naporlee was fired for union activities and Daly for being a union plant . Manuelian
refused to reinstate Naporlee and Daly and , during the course of the discussion , stated
that Naporlee was a good boy until the Union came around and he became an insti-
gator for the Union.
The General Counsel was in error when he stated at the oral argument that at the
Thursday meeting Manuelian did not deny the accusation of Moore and Klett as to
the reason for the termination of Naporlee and Daly. Both testified that before
they left Manuelian told them that he had no work for Naporlee and Daly. Moore
further testified that Manuelian also stated that he did not think Daly had enough
abilityand that he had reported an hour late without calling in thereby demonstrating
a lack of interest in his work . Both also testified that Manuelian explained that he had
to take a hand in running the plant and that he was putting Sahker on the cutters
and Spagnola in charge again . Manuelian testified that he told Moore and Klett that
he had told Naporlee and Daly that he had no work for them, and that he explained
about the operational changes and about Spagnola being the keyman . He denied
ever saying that Naporlee was a good boy until the Union came around or ever calling
Naporlee an instigator.
Upon consideration of the foregoing , and the entire record as a whole, I credit
Manuelian 's testimony where it conflicts with that of Klett and Moore , and find that
Manuelian did not make the alleged statement hereinabove attributed to him.
6. Concluding findings
There are undoubedly circumstances present in this case which tend to cast doubt
on the bona fides of Respondent 's asserted basis for the termination of Naporlee and
Daly. For example, there is Manuelian 's expressed desire to Sahker to keep the Union
,out of the plant and his observations to Sahker , during discussions about the Union,
that he believed Naporlee was "bringing the fire to burn in the shop "; the summary
manner in which the two were terminated ; Manuelian's inquiry ,as to whether Daly
had signed up for the Union ; Manuelian 's statement to Daly that he could be dis-
'charged for coming late without reporting in, if it happened again; the fact that Daly
was not hired as an experienced and qualified folding machine operator ; the fact
that Manuelian was advertising for a box boy at $ 1.50 per hour at the time of Daly's
termination but did not offer this work to Daly; and the Respondent 's unfair labor
practices previously found . In the final analysis, determination must turn on whether
the circumstances suggesting pretext are in strength sufficient to overcome and dis-
credit Respondent 's testimony as to the primary motivating reason for the discharge
and layoff . On the issue of pretext , the case is by no means free from doubt. How-
ever, on the record considered as a whole, and bearing in mind that the burden of
proof is on the General Counsel , I simply am not fully persuaded that the remaining
circumstances upon which the General Counsel relies, highly suspicious though they
are, mount to sufficient probative stature to warrant an inference , contrary to Re-
spondent's testimony, that the actual or suspected union activities of Naporlee and
Daly weighed more heavily in the decision to terminate them than did the reason
Respondent gives. Accordingly , I find that the General Counsel has failed to sustain
the allegations of his complaint relating to the terminations of Naporlee and Daly and
shall recommend dismissal of such allegations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. By promising the employees on March 27, 1961 , a wage increase and more holi-
days at a later time or, if possible, other improvements , instead , and by granting a
wage increase to all employees on May 5 , 1961, to induce them to reject the Union as
their collective-bargaining representative , the Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights guaranteed by Section 7
of the Act and thereby has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices by the employment
termination of Fred Naporlee and Alan Daly on May 17, 1961.
[Recommendations omitted from publication.]
Cone Brothers Contracting Company and Local 925, Inter-
national Union of Operating Engineers , AFL-CIO
Tampa Sand & Material Company and Teamsters , Chauffeurs,
Helpers Local Union No. 79, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America
Cone Brothers Contracting Company, Tampa Sand & Material
Company, and Florida Prestressed Concrete Co., Inc. and Local
925, International Union of Operating Engineers , AFL-CIO
Cone Brothers Contracting Company and John P. Siers
Cone Brothers Contracting Company, and/or Tampa Sand &
Material Company, and/or Florida Prestressed Concrete Co.,
Inc. and Robert Alvarez. Cases Nos. 12-CA-1493, 12-CA-1477,
12-CA-1492, 12-CA-1674, 12-CA-1687, and 12-CA-1767. Janu-
ary 10, 1969
DECISION AND ORDER
On May 26, 1961, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondentshad engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that Respondents
had not engaged in certain other unfair labor practices. Thereafter,
the General Counsel and Respondent Tampa Sand & Material Com-
135 NLRB No. 18.