Datagraphic, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1982

259 N.L.R.B. 1285 (N.L.R.B. 1982)

DATAGRAPHIC, INC. 1285
Datagraphic, Inc. and Brian Maynard and Louis dent would bequeath the shares of Respondent to
Walker, Jr. Cases 3-CA-9858 and 3-CA- the employees upon his death, Respondent has en-
10102 gaged in an unfair labor practice within the mean-
January 28, 1982 ing of Section 8(a)(1) of the Act."
ORDER
DECISION AND ORDER ORDER
Pursuant to Section 10(c) of the National Labor
BY CHAIRMAN VAN DE WATER AND Relations Act, as amended, the National Labor Re-
MEMBERS FANNING AND HUNTER lations Board adopts as its Order the recommended
On August 14, 1981, Administrative Law Judge Order of the Administrative Law Judge, as modi-
D. Barry Morris issued the attached Decision in fled below, and hereby orders that the Respondent,
this proceeding. Thereafter, Respondent filed ex- Datagraphic, Inc., Rochester, New York, its offi-
ceptions and a supporting brief, and the General cers, agents, successors, and assigns, shall take the
Counsel filed cross-exceptions and briefs in support action set forth in the said recommended Order, as
thereof and in reply to Respondent's exceptions. so modified:
Pursuant to the provisions of Section 3(b) of the 1. Insert the following as new paragraphs l(b)
National Labor Relations Act, as amended, the Na- and (c) and reletter the subsequent paragraph ac-
tional Labor Relations Board has delegated its au- cordingly:
thority in this proceeding to a three-member panel. "(b) Impliedly promising employees that if they
The Board has considered the record and the at- vote against Graphic Arts International Union, or
tached Decision in light of the exceptions and any other labor organization, Respondent's presi-
briefs and has decided to affirm the rulings, find- dent will bequeath the shares of Respondent to the
ings,' and conclusions 2 of the Administrative Law employees upon his death.
Judge and to adopt his recommended Order, as "(c) Discharging or otherwise disciplining any
modified herein.3 supervisor because said supervisor failed or refused
to interfere with, restrain, or coerce employees in
AMENDED CONCLUSIONS OF LAW the exercise of the rights guaranteed in Section 7 of
Insert the following as new Conclusion of Law the Act."
4, and renumber the subsequent paragraphs accord- 2. Insert the following as paragraph 2(b) and re-
ingly: letter the subsequent paragraphs accordingly:
"4. By impliedly promising employees that, if "(b) Preserve and, upon request, make available
they voted against the Union, Respondent's presi- to the Board or its agents, for examination and
copying, all payroll records, social security pay-
Respondent and the General Counsel have excepted to certain credi- ment records, timecards, personnel records and re-
bility findings made by the Administrative Law Judge. It is the Board's ports, and all other records necessary to analyze
established policy not to overrule an administrative law judge's resolu- the amount of ackpay due under the terms of this
tions with respect to credibility unless the clear preponderance of all of
the relevant evidence convinces us that the resolutions are incorrect. Order."
Standard Dry Wall Producs Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 3 Substitute the attached notice for that of the
362 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing his findings. Administrative Law Judge.
2 We adopt the Administrative Law Judge's conclusion that Respond-
ent's asserted reasons for discharging Supervisor Maynard were pretex- APPENDIX
tual. In so doing, we note that the reasons given Maynard at the time of
his discharge, i.e., that he was an ineffective supervisor, did not carry out NOTICE To EMPLOYEES
company policies, and improperly used supervisory discretion, were gen-
eral and conclusory and may have been references to his refusal to POSTED BY ORDER OF THE
commit unfair labor practices. Furthermore, although at the hearing Re- NATIONAL LABOR RELATIONS BOARD
spondent presented vague testimony that Maynard was discharged be- A A o t Ui a r
cause of communication problems with employees and because of his An Agency of the Unted States Government
poor handling of inventory, the record fails to establish that any such
problems were other than isolated instances. Finally, there is no evidence After a hearing at which all sides had an pprtu-
that Respondent at any time informed Maynard that he had shortcomings
in these areas which could result in his discharge or otherwise adversely nity to present evidence and state their positions,
affect his employment. the National Labor Relations Board found that we
' The Administrative Law Judge found, and we agree, that Respond- violated t National r Rlations Act a
ent impliedly promised employees that, if they voted against the Union, have violaed the Nationa Labor Relations Act, as
Respondent's president would bequeath the shares of the Company to the amended, and has ordered us to post this notice.
employees upon his death. The Administrative Law Judge, however,
failed to make a specific finding as to whether this conduct was unlawful. WE WILL NOT discharge employees for ac-
We conclude that such reasonably tended to interfere with the employ- tivities protected by Section 7 of the Act.
ees' rights and therefore was violate of Sec. 8(aXI) of the Act. We shall W W N im ie r i
amend the Administrative Law Judge's Conclusions of Law and modifyWE WILL NOT impliedly promise employees
his recommended Order and notice accordingly. that if they vote against Graphic Arts Interna-
259 NLRB No. 173
, in g o f Se c t io n 8( a) ( ) o f th e A c t .
np

it t
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so
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3'supervisor
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. In se r t t h e ( ) r -
. l r t il l
i t i to th e Bo ar d o r t s a en ts, fo r i ti
ll r ll i l curit
'Respondent
Ot O
established policy not to overrule an administrative law judge's resolu- h mu o ak y e n r e rs tidibili le sthe amount of backpay due under the terms of this
t anr ry ll rducts Inc., 9 1 NL RB 544 ( 1950), en id. 188 F .2d 3. ubstitute the attached notice for that of the
2
i ti r i r, i not carry out TI E TO E PLOYEES
I
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it
proble s ere other than isolated instances. Finally, there is no evidence fter a hearing at hich all sides had an opportu-
O St
f , e agree, that espond- L vinlated tri ational Tahnr Rplatirns Act a<. . v e olat i l i
Or O
,
B )(l) .. . OT * r i * _ l^
ify W E W I L L N O T

f d
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1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Union, or any other labor organization, within the meaning of Section 2(6) and (7) of the Act,
the company president will bequeath the and I so find.
shares of the Company to the employees upon THE LABOR ORGANIZATION INVOLVEDII. THE LABOR ORGANIZATION INVOLVEDhis death.
WE WILL NOT in any like or related manner Graphic Arts International Union (herein called the
interfere with, restrain, or coerce employees in Union) is a labor organization within the meaning of Sec-
the exercise of rights guaranteed them by Sec- tion 2(5) of the Act. See Roylype, Division of Litton Busi-
tion 7 of the Act. ness Systems, Inc., 199 NLRB 354 (1972).
WE WILL NOT discharge or otherwise disci- II. THE ALLEGED UNFAIR LABOR PRACTICES
pline any supervisor because said supervisor
failed or refused to interfere with, restrain, or A. The Issues
coerce employees in the exercise of the rights The complaints, as amended, allege that Respondent
guaranteed in Section 7 of the Act. violated Section 8(a)(l) and (3) of the Act by discharging
WE WILL offer full and immediate reinstate- Brian Maynard because he refused to engage in surveil-
ment to Brian Maynard and Louis Walker, Jr., lance of Respondent's employees' union activities; by
to their positions or, if such positions no threatening to change the shift of Louis Walker, Jr., be-
longer exist, to substantially equivalent posi- cause of his union activities; by issuing Walker a negative
tions, without prejudice to their seniority or evaluation, withholding a pay increase, and discharging
other rights and privileges previously enjoyed. him because of his union activities; and by impliedly
WE WILL make whole Brian Maynard and promising benefits to Respondent's employees if they
Louis Walker, Jr., for any loss of earnings would vote against the Union. Respondent denied the al-
legations. The issues, accordingly, are:
they may have suffered by reason of their dis- 1. Was Brian Maynard's discharge a violation of the
charges, with interest. Act?
2. Was Louis Walker threatened with a change of
DATAGRAPHIC, INC. shift, issued a negative evaluation, and denied a pay in-
crease because of his union activities?
DECISION 3. Was Louis Walker discharged because of his union
STATEMENT OF THE CASE activities?
4. Was there an implied promise of benefits to the em-
D. BARRY MORRIS, Administrative Law Judge: This ployees if they would not vote for the Union?
case was heard before me in Rochester, New York, on
March 10-12, 1981. Charges were filed on June 20 and B. The Facts
November 10, 1980, and complaints were issued on July
25 and December 18, 1980,' alleging that Datagraphic, . Background
Inc. (herein called Respondent), violated Section 8(a)(l) During the spring of 1980, Respondent's employees
and (3) of the National Labor Relations Act, as amend- began to discuss the unionization of Respondent's plant
ed. Respondent filed answers denying the commission of in Rochester. The Union was approached by the employ-
the alleged unfair labor practices. ees in April3 to assist them in organizing. Meetings were
The parties were given full opportunity to participate, held with the Union's president and International repre-
produce evidence, examine and cross-examine witnesses, sentative, and employees signed union authorization
argue orally, and file briefs. Briefs were filed by the cards. A petition was filed by the Union on May 2 with
General Counsel and Respondent. the National Labor Relations Board, seeking to represent
Upon the entire record of the case,2 including my ob- all production and maintenance employees at the Roch-
servation of the witnesses, I make the following: ester plant. An election was held on June 26, but the out-
come was not immediately known because three chal-
FINDINGS OF FACT lenged ballots had been cast and were sufficient in
I. THE BUSINESS OF RESPONDENT number to affect the results. The challenged ballots were
subsequently resolved, and on July 28 a revised tally was
Respondent, a New York corporation, with its princi- issued which showed that of the 25 votes counted, 11
pal office and place of business in Rochester, New York, had been cast for, and 14 against, the Union.
is engaged in the manufacture and sale of business forms
and related products. During the 12 months preceding 2. Brian Maynard
the issuance of the complaints, Respondent directly sold Maynard began his employment with Respondent in
goods valued in excess of $50,000 from its plant in Roch- June 1972. In 1978 he was promoted to the position of
ester to consumers located in States other than New press was proom foreman, the positi n which oe held at thepressroom foreman, the position which he held at theYork. Respondent admits that it is engaged in commerce time of his discharge. Maynard testified that a meetingtime of his discharge. Maynard testified that a meeting
was held in April, present were: Allan Shackelford, at-The complaint in Case 3-CA-10102 was further amended on Febru-
ary 6, 1981. and at the hearing.
Certain errors in the transcript are hereby noted and corrected. All dates refer to 1980. unless otherwise specified.
an d r
r f t t t l
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i
t i t io n 5) o f th e A c t . ee
).
i r t r i isci- 111. T E ALLEGED UNFAIR LABOR PRACTICES

T bec a
use i li l
Pro ising benefits to Respondent's employees if they
i l r, r., f l r i w o ul d the t l
they mayL have suffered by reason oftheir dis- l ti . i , r i l , r :
f i i . s i r ' i r i l ti f t
, t ct?

I I . i l i i i
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.
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,
FINDINGS OF FACT t i i t l s t r l-

the issuance f the l i t , t ir tl l i l t it t i
l i f , fr it l t i 7 7 p
room t iti i be l t t
ork. espondent ad its that it is engaged in c erce t . a t t tir 6 6 ~~~~~~~~~time
~~ T .. , „. ,ni r i. -. ̂ f >. w a s h e ld in l r ,
I
'Certain t d t . 'All t s refer t 1980. unless other ise specified.
h m
i t
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DATAGRAPHIC, INC. 1287
torney for Respondent; George Baker, Respondent's Q. [D]id he ask you to use your family contacts
president; Carl Cattau, the Rochester plant manager; and and personal relationships to find out anything?
the supervisors. Maynard credibly testified that Shackel- A. Yes. He wanted me to find out information,
ford and Baker said they were going to "combat" the whatever I could on who was voting which way
Union and advised the supervisors, that "there were and report back to him.
going to be plenty of meetings with the supervisors, be- Q. Did he say anything about what if the union
cause they were going to be involved with a campaign lost?
against the Union." At a subsequent meeting with super- A. Yes. He did.
visors, Shackelford told them that they were not permit- What did he say?
ted to "threaten, interrogate, promise or spy on employ- H s t y he wA. He said that some people might say he was
ees." , ..,.,, , „ /, ,, , , cleaning house, but he was going to smile as they
Maynard testified that on June 9, Cattau called him went out the door.
into his office and told him, "Brian, you are the only Q i he w w g tQ. Did he say who was going to go out theperson who isn't coming forth with tidbits of union in- door?
formation for me." He told Maynard that as of June 11
Maynard would be shifted from operating the Schrieber A. Yes. He stated that he was going to get the
800 press 4 and instead be working on the floor where hetroublemakers out.
would "again be involved on a one-to-one basis with the Maynard testified that on June 13 he asked to have a
employees." Maynard credibly testified as follows:e l ees." r r i l t ti i : meeting with Cattau. At the meeting, he told Cattau that
Q. Did Carl say anything else during this meet- he had been advised that it was illegal for him to do
ing? what Cattau had requested. Approximately 1-1/2 hours
A. Yes, he did. He told me to use my family ties later Cattau asked to see Maynard. At this time Cattau
and personal relationships with fellow employees at said, "[Y]ou are terminated because you are an ineffec-
work or at home or at a bar or on and off company tive supervisor; did not carry out the company policies
property, 24 hours a day, to break-up the union and improper use of supervisor discretion."
drive. Michael Dill, who was production manager of Re-
Q. Did he say what you were supposed to do? spondent during 1980, also credibly testified that at a
A. Yes. He told me to tell people that he didn't meeting held prior to the election, Cattau mentioned that
believe the reason because he had heard only a "George Baker would be working on a plan to turn the
couple of weeks before the petition was filed. He company over to the employees in one form or another,
figured that the union involvement stemmed back when he passed on." Dill testified that in late May or
way before this. And he felt the people ought to early June, after it appeared that the Union would win
give him a chance to show him that he could do a the election, Respondent's strategy changed. Dill was re-
good job. And he knew that there were promises quested to talk to several of the employees concerning
that were made to people in the past that weren't the Union. Dill corroborated Maynard's testimony that
upheld. He told me there's a chance in the Roches- at the time of his discharge, Cattau told him he was
ter Plant, if the union got in, that the company being discharged because he was inadequate as a supervi-
would fold. This was two weeks before the elec- sor. In addition, Dill testified that Cattau listed the rea-
tion. The election, as far as straw were taken, were sons he was firing Maynard as "improper use of supervi-
still on the union side. He was worried about it. He sory discretion and I'm not sure if it was unwilling or
asked me to use these points, when I talked to these unable to support company policies."
people, because a lot of them I was close with, Cattau testified that at the meeting with Maynard on
some of them I was related to; that he thought I June 9 he insisted that Maynard initiate conversations
could persuade these people to vote for the compa- with all employees. He stated that he terminated May-
ny. nard because of his failure to follow company policy and
his failure to act as a supervisor.Maynard further credibly testified as follows: fure t t as a supeso
Cattau further testified as follows:
Q. Did you say that the company would fold--
what did you say about that again? Q. During the course of the campaign, what
A. That there was a chance that the Rochester statement did you make to the employees regarding
Plant would close down if a hunion got in. the possibility of their getting ownership of thePlant would close down if a union got in.
Q. And what were you supposed to do with this company at some point in time?
information? A. Prior to the election, during one of the
A. Use it to persuade the employees that I was weekly meetings that I held; a few days prior to
close with and with family ties, to vote for the com- that had come across a piece of literature in the
pany instead of the union. company files pertaining to the fact that Mr.
George Baker had requested a law firm in Atlanta,
In addition, Maynard credibly testified: Georgia, in the latter part of 1979, to investigate the
possibility that upon his death the employees of Da-
The Schrieber press had been delivered in January or February and tagraphic would receive shares or holdings in the
Maynard had worked on it steadily until June 11 Company.
.
,
ti it r- . es. e did.
t t t t ere t per it- Q. hat did he say?
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1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Okay. What was the general subject of the buddy." DiNicola was very upset by the insinuation that
conversation of which you mentioned this to the he was a "buddy" of the plant manager. He then re-
employees? turned to his press, but soon came back to where Walker
A. At that point in time, in our meeting we were was standing, and took a swing at a pile of boxes that
discussing benefits. And this was not a benefit being was next to Walker. s At thar point DiNicola left the
given to the people then, but we were discussing plant. Later in the afternoon DiNicola called Cattau.
benefits in general; the benefits that they were re- After telling Cattau what had happened between himself
ceiving then and possible benefits in the future. and Walker, Cattau told DiNicola that he was going to
fire Walker. Walker testified that that afternoon Cattau
With respect to the change in policy concerning elec- called him into his office, showed him the handbook rule
tion tactics, Cattau was asked why he wanted the names against "provoking a fight or any kind of fighting or dis-
of the employees, as opposed to just a tally. He an- ruption in the plant," and terminated him.
swered: A number of witnesses testified that there had been
[W]e were not really getting enough information; several fights in the plant both prior, and subsequent, to
they were not bringing forward the information the incident between Walker and DiNicola. No one was
needed to see how we stood in the campaign. I then fired at these times for fighting. Maynard testified that
took it upon myself to direct them to give indivi- no one was ever fired for fighting or provoking a fight
dual names and by writing the names and by during the 8 years that he was employed at Respondent.
making a list out of them so that we could get a Walker and Graham similarly testified. Flynn testified
better feel as to how we were doing in the cam- that he was involved in a fight with DiNicola several
paign, and possibly have more of a knowledge as to months after Walker was fired. Ken Heath, a supervisor,
either changing our strategy in the capsaw mpaign or to he altercation and approached Flynn and DiNicola,
know how we were doing at that point in time. telling DiNicola to go back to his press. Neither of the
two was terminated for the altercaticn. Similarly, Drew
Maynard's testimony is to a large extent corroborated and Dill testified that no one had been fired for fighting
by the testimony of both Dill and Cattau. On June 9, provoking a fight.
when it appeared that the Union was winning the elec- It is not clear from the record whether Walker "pro-
tion, Respondent decided to change its strategy. May- voked" the fight. While I credit DiNicola's testimony
nard was asked to initiate conversations with employees that Walker called DiNicola a "buddy" of Cattau, I do
concerning the Union. I conclude that he was asked to not decide whether that constitutes "provocation." With
find out from the employees what their feelings were respect to who struck the first blow, I credit DiNicola's
about the Union. In addition, I conclude that he was testimony that he did not attempt to strike Walker, but
asked to pass on the information to the employees that if instead attempted to, and did, strike a stack of boxes.
the Union were successful, there was the chance that the There is no question that both Walker and DiNicola
Rochester plant would be closed. I find that Maynard were engaged in a "fight" or argument. However, the
was discharged because he refused to involve himself in testimony is uncontroverted that no one had been termi-
what he regarded to be illegal activity. I find that the nated for such behavior either before or after the inci-
reason given by Cattau for the discharge, that Maynard dent. Indeed, DiNicola and Dill testified that there was
was an ineffective supervisor, was a mere pretext. I find constant teasing going on in the plant. Inasmuch as there
that the reason Maynard was discharged was because he was constant teasing going on and no one had previously
refused to comply with Cattau's directive that he initiate been discharged for fighting, I do not believe that the
conversations to ascertain what the feelings of the em- actual reason for Walker's termination was the fighting. I
ployees were concerning the Union. believe that the reason for Walker's discharge was his
3. Louis Walker, Jr. prior union activities, and I find that the reason given for
3.' LoisWkrJWalker's termination, namely, that he was engaged in
a. Discharge fighting or provoking a fight, was a mere pretext.
Walker began his employment with Respondent in b. Threat to change shifts
April 1977. He testified that the union organizing drive
began in the spring of 1980, that he went to all of the Walker testified that in August Cattau asked him to
union meetings which were held before the election, that work nights Walker stated that he could not because his
he signed an authorization card for the Union to repre- wife was pregnant. Cattau then responded that he could
sent him, and that he helped solicit others to sign cards. wait until after his wife gave birth but "then he wanted
Walker testified that on October 28 he and another me on nights." Walker further testified that he was in
employee, Terry Graham, were standing in front of their fact not required to work nights.
presses talking. Vincent DiNicola, another employee, Maynard testified that Walker was never ordered to
came up to them and overheard their conversation. go on the night shift. Dill testified that Cattau wanted to
Walker and Graham complained to DiNicola that DiNi-
cola was getting overtime, whereas Walker and Graham ' While Walker testified that DiNicola took a swing at him, I credit
were not. I credit DiNicola's testimony as to what then instead DiNicola's version of the facts. On this point no one corroborated
Walker's version. In addition, the record reflects, and I observed, that
ensued. DiNicola testified that Walker said to him "l DiNicola is shorter and weighs less than Walker. It is unlikely that DiNi-
know why you got all the overtime, because Carl is your cola would have attempted to strike Walker
5
i t i li r i l c- calle i into his office, sho ed hi the handbook rule
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DATAGRAPHIC, INC. 1289
transfer Walker to the night shift because there were 4. Implied promise of benefits
more people on the day shift than on the night shift and Walker credibly testified that, at one of the meetings
because Walker was able to run the 8-1/2- and 11-inch that was held between the employees and Cattau prior to
printers. When it was pointed out to Cattau that, because the election, Cattau told he employees that "Georgethe election, Cattau told the employees that "George
of Walker's seniority he had preference with respect to Baker had said that if anything happened to him or if he
which shift he wished to work, Cattau changed his mind ever died, that the companies, all three plants would be
and decided that Walker would not be transferred to the split up with the employees that were working there at
night shift. that time." This conversation took place at one of a
With respect to the reason for the intended transfer, series of weekly meetings held after the petition was
Cattau testified as follows: filed. Walker testified that at such meetings Cattau
would tell the emloyees the "bad points" about having a
Q. Why did you want Louie Walker, Jr., to go union. Similarly, Graham testified that, after the petition
on the second shift? was filed, weekly meetings were held between Cattau
A. At that point in time, as a General Manager I and the employees, at which time Cattau said "we didn't
found it very necessary to run as much equipment need a union." Graham further testified that at one of the
back to back, meaning from one shift to another, as meetings Cattau said that "George Baker was having his
I could. The flow of work going out of the building lawyers draw up papers so that when he died the compa-
was very poor. Louie had the capability of running ny would be divided up between the employees." Flynn
such pieces of equipment. I then proceeded to re- testified to like effect. Dill testified that the meetings of
quest him to go on night work. At that point in employees were split, so that the procompany employees
time the company was losing thousands of dollars attended one meeting and the prounion employees at-
every month and I had to do whatever I could to tended a separate meeting. At one of the meetings at-
change that. tended by the prounion employees, held prior to the
election, Dill testified that "it was basically pointed out
I find that the General Counsel has not sustained his that the company had big plans and couldn't make any
burden of showing that a threat was made because of promises. But George Baker would be working on a plan
Walker's union activities. I find that Cattau had a valid to turn the company over to the employees in one form
reason for requesting the change in work hours. When it or another, when he passed on; but he couldn't go into it
was pointed out to him that Walker had seniority rights any further at that time."
with respect to shift preference, the request to change The statements concerning Baker's turning the Compa-
shifts was canceled. Accordingly, the allegation is dis- ny over to the employees were made at meetings specifi-
missed. cally called to discuss the benefits of not having a union.
Indeed, Dill testified that it was specifically mentioned in
c. Negative evaluation and denial of raise the meetings attended by the group consisting of the
"pro-Union" employees. Accordingly, I find that Re-Walker testified that on July 16, after the election, he ponon employees. i f that Re-spondent implied to the employees that if they votedreceived a poor evaluation and, accordingly, was not agat the io t o pon th f the pres
granted a raise. Dill testified that Walker was an average dent, George Baker, would see to it that at his death the
employee but that he was "doing below his potential." shares of Respondent would be distributed to the em-
Dill recommended "a small token raise, maybe ten or ployees.
twenty cents; not outstanding but something to show we
have a little faith in him." Dill testified that Cattau told C. Discussion and Analysis
him, "[W]ell, Mike, you have got all of these 'needs im-
provement' on here. It is obvious to me that he should 1. Discharge of Maynard
.not get a raise." . It is well settled that a supervisor cannot be lawfully
I conclude that the General Counsel has not sustained discharged for declining to commit an unfair labor prac-
his burden of showing that Walker was issued a negative tice. Belcher Towing Co, 238 NLRB 446, 447 (1978),
evaluation because of his union activities. Respondent enfd. in part 614 F.2d 88 (5th Cir. 1980). I have found
claims that the negative evaluation was issued because that Maynard was instructed to do various things which
Walker was performing poorly. Dill did not controvert would have constituted unfair labor practices. Thus,
that contention. He conceded that Walker was "doing Maynard was told that there was a chance that the
below his potential" and that he showed a number of Rochester plant would fold if the Union was elected. He
"needs improvement" on the evaluation. Indeed, the was to use this information to persuade employees to
evaluation shows six checks in the "average" category vote against the Union. Such a remark, if made to em-
and seven checks in the category marked "needs im- ployees, would violate Section 8(a)(1) of the Act. See
provement." Dill recommended a "token" raise merely Publishers Printing Co., Inc., 233 NLRB 1070, 1072
to show that "we still have a little faith in him." Essen- (1977), enfd. 625 F.2d 746 (6th Cir. 1980). In addition, I
tially, therefore, it was Dill who gave Walker the poor have credited Maynard's testimony that Cattau wanted
evaluation, and there is nothing in the record to indicate him to "find out information, whatever I could on who
that this was done because of Walker's union activities. was voting which way and report back to him." Such
Accordingly, the allegation is dismissed. conduct on the part of Maynard would have constituted
r l t ift t t i t ift l tsie
l l t - / - -i
W al er .c redi l y ;[tfidtt a t o n e ^ o
h e let n g s
becase alke wa abl torun he -1/2 an 11-nch that was held between the employees and Cattau prior to
ri t r . it i t t t tt t t, h l e t t e he em p l o y e es t'..,,., . * . . , . .~~the l ti e r 's t o i f i f
i ift i t r , tt i i i ll
i l t t i t t
if t t ti . i ti t l t f
i t i kl ti l ti
ti l ti
l
l , i il rl , ti titi
i il kl ti l t tt

.„ ,, .. ,., .. , , ,, , ... " A in a . ., .. * . ,. .~~~~spondent
s i t t p l t if t
granted a raise. Dill testified that Walker was an average against the Union at some point in the future the presi-
graned rase.Dilltesifid tat alke wa anaveage dent, George Baker, would see to it that at his death the
l t t t i
ll t raise, aybe ten or ployees.

ll ' i -

not..,..„ get a raise."It is well settled that a supervisor cannot be l f lly r l l t i li i i f i l r -
i r f i t t l r i ti . l i ., ).
l ti f i i ti iti . t f . i rt . t i . . I f
l i t t t ti l ti i
l rf i rl i i l ti i
t t ti . t t l i t l t t t t t t
l ti l t r f
e s l ti . l t
l ti i r i t if
r ti )(l
i l lishers inting .
e till ), i i
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t
s
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercive interrogation of employees concerning their The motion was first made after the close of the hear-
union activities in violation of Section 8(a)(1) of the Act. ing in the General Counsel's brief. Respondent was not
See Osco Drug, Inc., a wholly owned subsidiary of Jewel given an opportunity to meet the allegation at the hear-
Food Companies, Inc., 237 NLRB 231, 233 (1978). ing or in its brief. Inasmuch as Respondent was not
Accordingly, I conclude that Maynard was requested aware that the conduct in question would be considered
to engage in activities which would have constituted to be a separate violation, it did not adequately deal with
unfair labor practices in violation of Section 8(a)(l). His the matter on cross-examination. I conclude that the
discharge, because of his failure to violate Section matter has not been fully litigated. Accordingly, the
8(a)(1), is in itself an unfair labor practice in violation of General Counsel's motion to amend the complaint is
Section 8(a)(1) of the Act. denied. See Chandler Motors, Inc., 236 NLRB 1565
2. Discharge of Walker (1978).8
With respect to the discharge of Walker on October CONCLUSIONS OF LAW
28, Respondent had been aware of Walker's prounion
sympathies. Dill testified that Walker was identified to 1. Respondent is an employer engaged in commerce
Cattau as being "a hard-core union supporter." Respond- wthin the meaning of Section 2(6) and (7) of the Act.
ent's attitude towards the Union is also clear. I have 2. The Union is a labor organization within the mean-
credited Maynard's testimony that Cattau told him to use ing of Section 2(5) of the Act.
his personal relationship with employees to persuade 3. By discharging Brian Maynard for his refusal to
them to vote for the Company and "break up the union commit unfair labor practices, Respondent has engaged
drive." With respect to the timing of the discharge, it oc- in an unfair labor practice within the meaning of Section
curred approximately 4 months after the election. I be- 8(a)(l) of the Act.
lieve that in the interval Respondent was looking for a 4. By discharging Louis Walker, Jr., for his union-re-
proper "excuse" so as to be able to terminate what it re- lated activities, Respondent has engaged in an unfair
garded as the "hard-core" union supporters. See Butler- labor practice within the meaning of Section 8(a)(l) and
Johnson Corporation, 237 NLRB 688, 690 (1978), enforce- (3) of the Act.
ment denied on other grounds 608 F.2d 1303 (9th Cir. 5. The aforesaid unfair labor practices constitute unfair
1979). labor practices affecting commerce within the meaning
I conclude that the General Counsel has made a prima of Secion 2(6) and (7) of the Act.
facie showing to support the inference that the protected 6. Respondent did not violate the Act in any otheractivity was a motivating factor in Respondent's decision dd nt latt
to discharge Walker. See Wright Line, A Division of manner alleged i the complaits.
Wright Line, Inc., 251 NLRB 1083 (1980). As discussed THE REMEDY
above, I regard Respondent's contention that Walker
was discharged for fighting as mere pretext-this, in Having found that Respondent has engaged in certain
view of the uncontroverted testimony that no employee unfair labor practices, I find it necessary to order Re-
was discharged for fighting or provoking a fight, either spondent to cease and desist therefrom and to take cer-
before or after Walker's termination. 6 Clearly, therefore, tain affirmative action designed to effectuate the policies
Respondent has not shown that the "same action would of the Act.
have taken place even in the absence of the protected Respondent having discharged Brian Maynard and
conduct." See Limestone Apparel Corp., 255 NLRB 722 Louis Walker, Jr., in violation of the Act, I find it neces-
(1981). Accordingly, I conclude that Respondent, by its sary to order Respondent to offer them full reinstatement
discharge of Walker, violated Section 8(a)(l) and (3) of to their former positions or, if such positions no longer
the Act. exist, to substantially equivalent positions, without preju-
3. Motion to amend complaint dice to their seniority or other rights and privileges, and
to make them whole for any loss of earnings they may
The General Counsel has moved to amend the com- have suffered from the time of their termination to the
plaint to include, as a separate violation of Section date of Respondent's offers of reinstatement,
8(a)(l), Respondent's instructions to its supervisors to Backpay shall be computed in accordance with the
provide it with the names of the union adherents and in- formula approved in F W. Woolworth Company, 90
stigators. This motion was first made in the General NLRB 289 (1950), with interest computed in the manner
Counsel's brief (p. 25, fn. 61). Respondent has objectedbed in Floida Steel Corporation 231 NLRB 651
to the motion on the ground that Respondent "did not (1977) 9
have the opportunity to truly litigate the matter or con-
sider it in its brief." 7 Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
The Board has held that an employer's exaggeration of a minor inci- of the Act, I hereby issue the following recommended:
dent out of proportion to its importance and a severe penalty for that of-
fense indicates a pretextual reason for that action. See Electri-Flex Cornm- The General Counsel concedes that "no evidence was presented as to
puny, 238 NLRB 713, 725 (1978). whether employees explicitly knew" of the directive. It would appear
7 Copies of a letter dated May 4. 1981, from counsel for Respondent that the General Counsel thus recognizes that the matter was indeed not
and a letter dated May 6, 1981, from the General Counsel are admitted "fully litigated."
into the record as ALJ Exhs. I and 2. respectively. See, generally, Isis Plumbing Hleating Co., 138 NLRB 716 (1962).
(l
.

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l
). 8
l ' r i
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it h in t h e i ti ( ) (7) f t t.
. T h e o n s
.

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1979). la r r ti ti
t
6 R d not vi t Ac i a oh
ti it ti ti f t r i t' i i manne ae d i o mplats.
f m a n n e r a l le e d n t h e plaint
(1980). s discussed THE REMEDY

is i , I it
( ). r i l , I l t t t, it t
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the c t. i t, t t ti ll i l t siti s, it t r j -
.
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r l ,
l' i f ( . , f . . t j t d p bed lor da oration,
t i t ( ).9
tt -
it i .
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« r has l t t an l y r's r ti f a i r i i-
o f t h e A c t , I is s t h e f ll i :
l m- l
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* e
DATAGRAPHIC. INC. 1291
ORDER' any loss of earnings in the manner set forth in the section
of this Decision entitled "'The Remedy."The Respondent, Datagraphic, Inc., Rochester, New of this Decision entitled The Remedy.(b) Post at its facility in Rochester, New York, copies
York, its officers, agents, successors, and assigns, shall: of the attached notice marked "Appendix."" Copies of
1. Cease and desist from: said notice, on forms provided by the Regional Director
(a) Discharging employees for activities protected by for Region 3, after being duly signed by Respondent's
Section 7 of the Act. authorized representative, shall be posted by Respondent
(b) In any like or related manner interfering with, re- immediately upon receipt thereof, and be maintained by
straining, or coercing employees in the exercise of their it for 60 consecutive days thereafter, in conspicuous
rights under Section 7 of the Act. places, including all places where notices to employees
2. Take the following affirmative action necessary to are customarily posted. Reasonable steps shall be taken
effectuate the policies of the Act: by Respondent to insure that said notices are not altered,
(a) Offer Brian Maynard and Louis Walker, Jr., imme- defaced, or covered by any other material.
diate and full reinstatement to their former positions or, (c) Notify the Regional Director or Region 3 in writ-
if such positions no longer exist, to substantially equiva- ing, within 20 days of the date of this Order what steps
lent positions, without prejudice to their seniority or Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of theother rights and privileges, and make them whole for IT S FURTHER ORDERED that those alleations of thecomplaints as to which no violations have been found
are hereby dismissed.
" In the event no ecepoions are fied as provided by Sec. 102.46 of
the Rules and Regulations of the Nationl Labor Reltions Board. the In Ihe event that this Order is enforced by a Judgment of a United
findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals. the words in the notice reading -Poted by
in Sec. 102.48 of the Rules and Regulations, be adopted by Ihe Board and Order of the National Labor Relations Board" shall read -Posted Pursu-
becone its findings, conclusions and Order. and all objections thereto an to a Judgment of the United States Court of Appeals Enforcing an
shall be deemed waived for all purpose. Order of the National Labor Relations Board.
10 i
Th _ Respondent, Datagraphic, Inc. Roch.ster, Newr f t i i i titl 'The .
e Respondent. Datagraphic, Inc., Rochester. New ( ) t i ili t r
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