Denver Post Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1999

328 N.L.R.B. 118 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
The Denver Post Corporation and Graphic Commu-
nications International Union, Local 22. Cases
27–CA–14513, 27–CA–14814, and 27–CA–15149
April 29, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 18, 1998, Administrative Law Judge Albert
A. Metz issued the attached decision. The General Coun-
sel and alleged discriminatee Donald Grabhorn filed ex-
ceptions and supporting briefs, and the Respondent filed
cross-exceptions and a brief in support of cross-
exceptions and in support of the judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging press-
man Donald Grabhorn because he engaged in protected
concerted activities in support of the Union. The judge
found that the General Counsel had established that
Grabhorn’s union activity was a motivating factor in his
discharge, but that the Respondent had proved that it
would have discharged Grabhorn even in the absence of
his protected concerted activity, and therefore that it had
not violated the Act by firing him.2 The General Counsel
and Grabhorn have excepted to the latter findings, and
we find merit in their exceptions.

1 The Respondent and Grabhorn have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
No exceptions were filed to the judge’s findings concerning the al-
leged violations of Sec. 8(a)(5) or to his finding that Pressroom Man-
ager Dan Armand did not violate Sec. 8(a)(1) by telling employee
Charles Lahm that the Union was “screwing him” because of a recent
series of production problems.
The judge found that Armand violated Sec. 8(a)(1) by telling acting
Chapel Chairman (the Union’s equivalent to a shop steward) Trinidad
Torres that he would get in trouble by doing as the other men asked and
telling substitute employees that they could leave before the end of
their shifts, and that Torres should reconsider being the chairman be-
cause he was going to get fired. In adopting the judge’s finding, we
emphasize that Armand’s statement amounted to a threat to fire Torres
because he held union office.
In affirming the judge’s finding that Plant Manager Larry Charest
unlawfully threatened pressman Robert Laidley, we do not rely on the
judge’s unsupported statement that Charest admitted being at work on
the night in question.
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982). Actually, the judge found that
the General Counsel had shown that Grabhorn’s union activities “may
have” motivated his discharge. Earlier, however, the judge noted that
the elements commonly supporting a finding of discriminatory motiva-
tion include antiunion animus, union activity, employer knowledge of
the protected conduct, and the timing of the employer’s action. The
judge further found that each of those elements had been established in
this case. The Respondent, in its brief in support of the judge’s deci-
sion, concedes that the General Counsel met his initial Wright Line
burden. We therefore find that the judge implicitly found that the Gen-
eral Counsel had demonstrated that Grabhorn’s discharge was, in fact,
motivated at least in part by his union activities, and that this finding
(which the Respondent concedes) is well supported. Contrary to the
judge, however, we do not rely on the Respondent’s unilateral promo-
tion of apprentices to provisional pressman status, in violation of Sec.
8(a)(5), as a basis for finding antiunion animus. We find nothing in
that action indicating animus against the Union or its supporters.
Grabhorn has been a journeyman pressman for ap-
proximately 28 years. He was employed by the Respon-
dent from September 1, 1991, until the evening of Febru-
ary 21, 1997, when he was fired. During his tenure of
employment with the Respondent, Grabhorn was coun-
seled twice about his job performance (once in 1992 and
once on an undetermined date), and received a warning
about tardiness in 1992.
On February 21, Grabhorn was working with pressman
Stanley Cole in the reel room on D press. Reel room
employees load rolls of newsprint onto the press, splicing
the rolls together so that the paper runs through the press
continuously. They are also responsible for checking the
rolls of paper for damage and defects to prevent “web
breaks,” or breaks of the paper, as it is fed through the
press.
During the evening shift, a web break occurred on D
press, which automatically shut the press down. Because
the break occurred on a roll that Grabhorn had prepared,
he was responsible for repairing the break. This involved
making a diagonal tear, called a taper, in the leading edge
of the paper on the roll so that it could pass easily
through the press. Grabhorn testified that he started
making the taper, but almost immediately realized that,
in working from the drive side of the reel, he was doing
it “backwards.”3 He moved to the operator side of the
reel, but before he resumed making the taper, he noticed
that paper had fallen into the reel area when the web
broke. He cleared that paper away and carried it with
him as he went back to finish making the taper.
At that point, Pressroom Manager Dan Armand en-
tered the reel room. Armand was not normally at work
in the small hours of the morning. On that evening,
however, he had been called at home at about 1 a.m. to
come in because of production problems. Armand had
been called in at night to rectify production problems
several times in the days leading up to February 21, and
he was not happy about it. On one of those occasions, he
told an employee that “heads were going to roll” if he
had to come in again. By the time Armand approached
D press after the web broke, one head had, in fact, rolled.

3 Because D press is configured differently from the other three
presses, a taper on it is prepared from the operator side of the roll,
rather than from the drive side.
328 NLRB No. 22
DENVER POST CORP. 119
Armand had decided that Charles Starling, a substitute
employee from the Rocky Mountain News who was
working the night shift for the Respondent,4 was not do-
ing his job correctly and summarily fired him. One em-
ployee described Armand to another that evening as
looking like he was “on a rampage.”
Armand went to D press with Foreman Gene Sonntag
to investigate the web break. As the judge found, they
saw a tear about 2 inches long, straight across the roll of
newsprint Grabhorn had been working on. Armand testi-
fied that the tear was discolored at the edges; this indi-
cated to him that the tear had been exposed to the light
for some time and therefore was not recent.5 Armand
asked Grabhorn if he had checked the roll before using it,
according to standard procedures, and Grabhorn replied
that he had done so, as he always did. Armand asked
Grabhorn about the tear; Grabhorn said that it was the
start of a taper, and then pulled the torn paper off the roll.
Armand remarked that “if there was any need for any
evidence, it’s destroyed now.”
As the judge further found, Armand did not believe
Grabhorn’s explanation about the tear because it was not
a normal tear for a taper and because, given the discol-
oration, it appeared to have been there for some time.
Armand concluded that the web break was due to Grab-
horn’s failure to inspect the paper roll and fired him, cit-
ing his negligence in that regard. Armand alone was
responsible for the decision to discharge Grabhorn.
As discussed above, the judge found that the General
Counsel had demonstrated that the discharge of Grab-
horn was motivated in part by his union activities. The
judge also noted, however, that Armand was irritated by
a series of bad press runs that caused him to be rousted
out of bed in the middle of the night, so much so that he
had threatened that “heads would roll” if he was called in
again. Indeed, before he terminated Grabhorn, he had
terminated Starling (and Starling’s discharge is not al-
leged to be unlawful). Moreover, the judge was con-
vinced by Armand’s testimony that he believed that
Grabhorn had negligently failed to inspect the paper roll
as he was supposed to. Thus, the judge found that Ar-
mand fired Grabhorn for negligence, and that this expla-
nation was not pretextual. He also found that the Re-
spondent had shown that it would have discharged Grab-
horn even in the absence of his union activities.
Given the judge’s finding that Armand convincingly
testified to his belief that Grabhorn had acted negli-
gently, we do not disturb his finding that Armand’s
stated reason for firing Grabhorn was not pretextual.
That is, we do not find either that that reason did not ex-

4As discussed by the judge, the two newspapers routinely hire each
other’s employees on an as-needed basis. Employees hired on a tempo-
rary basis in this fashion are called substitutes, or “subs.”
5 Sonntag testified that he saw the tear, but could not see whether it
was discolored.
ist or that Armand did not actually rely on it.6 Contrary
to the judge and our dissenting colleague, however, we
find that the Respondent has failed to show that it would
have fired Grabhorn regardless of his union activities.7
To begin with, as the judge found, the Respondent’s
records show that other employees whose job perform-
ance was subpar, or even negligent, were not discharged.
For example, pressman Greg McDougle received several
writeups for poor performance, including poor make-
ready procedures and subpar startup procedures, both
before and after Grabhorn’s discharge. On September
27, 1997, McDougle put a plate in his press incorrectly,
and some 40,000 papers were run before the error was
found. Armand testified that he considered McDougle’s
actions negligent. Yet despite his negligence and his
earlier poor performance, McDougle was only warned
that “further actions would be taken if this kind of per-
formance is kept up.” On an unspecified date, pressman
Sam Rinehold and another employee let the blue ink run
out, causing the loss of around 5000 papers. The em-
ployees were only instructed as to the “gravity of the
situation.” On December 4, 1996, Rinehold left too
much ink on a web, leading to a 2-hour delay for clean-
ing and rewebbing. Rinehold received a reprimand and
warning. On September 25, 1997, pressman Lindsey
Burr failed to plate up properly on C press and, as a re-
sult, 40,000 papers were printed incorrectly. Although
Armand testified that this was a negligent act, Burr re-
ceived only a warning. On April 2, 1997, Armand gave
Steve Earley a verbal warning for missing page numbers
on his press. On September 25, 1996, pressman John
Dixon misplated the yellow and red plates on one paper,
adversely affecting an entire run of 200,000 papers. Yet
despite having received three previous reprimands,
Dixon received only a warning for what Armand de-
scribed in the warning as “neglect of duty.”
As the Respondent notes, both Starling and substitute
pressman Elton Moyer were discharged for negligence
and neglect of duty, respectively. Neither employee’s
case was like Grabhorn’s, however. Thus, Armand testi-
fied that he had previously counseled Starling concerning
the proper way to prepare a “paster,”8 but Starling failed
to follow his instructions. Armand concluded that Star-
ling had shown a lack of concern over the matter, and
therefore terminated him. Although Grabhorn had been
counseled twice about his job performance (once more
6 Cf. Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
7 Contrary to the dissent, we are not reversing the judge’s credibility
findings. We have adopted the judge’s findings that Armand believed
that Grabhorn was negligent and that he relied on that negligence in
firing Grabhorn. We reverse the judge only insofar as he found that the
Respondent would have discharged Grabhorn for that reason even in
the absence of his union activities.
8 A paster is a pattern of sticky tape that enables a new roll of paper
to stick to an expiring roll, allowing the press to continue to run while
the rolls are changed.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
than 4 years before he was discharged), neither episode
involved the kind of conduct for which he was fired.
Moyer was discharged for failing to set the ink correctly,
causing the ink to fade out on an entire run, but, unlike
Grabhorn, he was later reinstated. The Respondent
therefore failed to show that negligent job performance
always, or even usually, leads to discharge, let alone to
immediate and permanent discharge.9
The Respondent does not contend, and has not demon-
strated, that negligently causing a web break is such a
serious offense that it should be treated less leniently
than other types of poor or negligent job performance.
Indeed, according to Grabhorn’s testimony, the web
break caused his press to be shut down for approximately
15 minutes. By contrast, other substandard and/or negli-
gent performance that had seemingly more serious ef-
fects on production (e.g., 2 hours downtime, tens or hun-
dreds of thousands of papers incorrectly printed) led to
only reprimands and warnings.
Armand’s remarks to pressman Charles Lahm on
March 11 further undercut the Respondent’s Wright Line
defense. In a conversation on that date, Armand asked
Lahm why he had a bad attitude. Lahm replied that it
was because, in the past, he had not seen Armand firing
people for no reason, evidently referring to the firing of
Grabhorn. Armand responded that the negotiating ses-
sion for a new contract had not gone well and the plant
was having production problems every night.10 As Lahm
testified, Armand further stated that “you guys,” meaning
the Union, were “screwing” him and that he had to do
something. Lahm said, “So you fired him for no reason.”
Armand replied that he had found damage on Grabhorn’s
paper roll. Thus, in responding to Lahm’s query about
his termination of Grabhorn, Armand first blamed frus-
tration over collective-bargaining negotiations and then
the Union’s assertedly “screwing” him, before mention-
ing that he had found damage on the paper roll. Armand
thereby indicated that relations between the Union and
the Respondent, and not the damage to the roll, were
uppermost in his mind when he fired Grabhorn. This
further weakens the Respondent’s contention that Ar-
mand would have fired Grabhorn even in the absence of
his union activities.
In its response to the General Counsel’s exceptions,
the Respondent acknowledges that Armand acted
precipitously, and that he “did not apply a just cause test
or progressive discipline principles to Grabhorn’s disci-
9 Inconsistency also characterized the Respondent’s treatment of
other kinds of employee misconduct. Thus, although some employees
were discharged, apparently for the first offense, for failing to appear
for work, for leaving work early without permission, and for drinking
on the job, others received only warnings or suspensions for the same
offenses.
10 The Respondent neither contends nor cites any evidence to suggest
that Grabhorn had been responsible for the repeated production prob-
lems.
pline.”11 The Respondent contends, however, that this is
attributable to Armand’s understandable irritation at hav-
ing been repeatedly called to the plant in the middle of
the night and is not evidence of an unlawful motive.
Assuming, arguendo, that this explains Armand’s pre-
cipitous actions on the night of the discharge, it does not
explain why the discharge was allowed to stand even
after the immediate pressures of that night had passed.
There is evidence of at least one other instance in
which a pressman (Moyers) who was discharged for fail-
ing to operate a press correctly was reinstated. Armand
admitted in his testimony that his decision to fire Grab-
horn was also subject to reversal by higher management.
Yet in this instance, no action was taken by the Respon-
dent to convert Grabhorn’s discharge to discipline more
in keeping with that meted out to other employees for
similar offenses. Its failure to do so further undercuts its
Wright Line defense, i.e., that it would have discharged
Grabhorn even absent his union activities.
For the foregoing reasons, then, we find that the Re-
spondent has failed to carry its Wright Line burden.12
We therefore find that the Respondent violated Section
8(a)(3) and (1) by discharging Grabhorn.
ORDER
The National Labor Relations Board orders that the
Respondent, the Denver Post Corporation, Denver, Colo-
rado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally promoting apprentices without provid-
ing Graphic Communications International Union, Local
22 (the Union) with timely notice and a meaningful op-
portunity to bargain.
(b) Threatening employees about testifying in support
of employees’ grievances.
(c) Coercing employees by telling them they have a
bad attitude because they are engaged in protected con-
certed activities.
(d) Threatening employees with discharge if they serve
as a union representative.
(e) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
11 See Respondent’s brief at pp. 17 and 20.
12 We find it unnecessary to decide whether the Respondent was re-
quired by custom or contract to apply progressive discipline or to dis-
charge only for “just cause.” However, even without either such re-
quirement, the Respondent’s failure to show a pattern of similar treat-
ment of other employees for misconduct similar to Grabhorn’s obvi-
ously makes it more difficult for it to show that it would have fired
Grabhorn even absent his union activity.
DENVER POST CORP. 121
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All employees, including journeymen, second men in
charge, men in charge, and other employees who hold
the rank of assistant foremen employed in the press
room, excluding guards and supervisors as defined in
the Act.

(b) On request of the Union, rescind the October 1996
unilateral promotions of apprentices to conditional
pressmen.
(c) Within 14 days from the date of this Order, offer
Donald Grabhorn full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(d) Make Donald Grabhorn whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in F.W.
Woolworth Co., 90 NLRB 289 (1950), less any net in-
terim earnings, plus interest to be computed as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(e) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify Grabhorn in writing
that this has been done and that the discharge will not be
used against him in any way.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Denver, Colorado, copies of the attached
notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 27,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice

13 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to all current employees and former employees employed
by the Respondent at any time since April 12, 1996.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I would adopt the judge’s finding that the Respon-
dent’s discharge of employee Donald Grabhorn did not
violate the Act.
The judge found that the General Counsel made a
prima facie showing that Grabhorn’s union activity was a
motivating factor in his discharge. However, he further
found that the Respondent effectively rebutted the Gen-
eral’s Counsel’s case, and he recommended dismissal of
the allegation. The General Counsel and the Charging
Party except. I agree with the judge.
In view of the judge’s credibility resolutions, my col-
leagues accept the fact that the Respondent’s reason for
the discharge (i.e., Grabhorn’s negligence) was not a
pretext. Nonetheless, my colleagues conclude that the
Respondent failed to demonstrate that it would have dis-
charged Grabhorn for his negligence in the absence of his
union activities. I disagree.
As fully recounted by the judge, the Respondent’s
pressroom manager, Dan Armand, discharged Grabhorn
on February 21, 1997. Numerous production problems
occurred in the Respondent’s pressroom in February
1997. Armand had to be called in at night to rectify
these problems. Armand was upset by this and an-
nounced that “heads were going to roll” if he had to be
called in again. Armand was called in again on February
21, 1997, and heads did roll. Armand discharged both
Grabhorn and employee Charles Starling.1 As the judge
found, Armand was “genuinely piqued” by the produc-
tion problems and the interruption of his sleep. Further,
the judge credited Armand’s testimony that Armand con-
cluded that Grabhorn had acted negligently on February
21, causing production problems. Under these circum-
stances, the judge concluded that the Respondent would
have discharged Grabhorn irrespective of his union ac-
tivities.
As noted above, my colleagues say that they accept the
judge’s credibility findings. One such finding is that
Armand testified credibly that Armand discharged Grab-
horn for negligence. There is no rational reason for the
acceptance of credibility findings and the rejection of this
particular finding.
My colleagues proceed at some length to show that
other employees have been “negligent” and have not
been discharged. However, the critical point is that
Grabhorn and Starling were unlucky enough to be negli-
1 The General Counsel does not challenge the discharge of Starling.
There is no showing that Starling engaged in union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
gent on the night when Armand was very upset and had
vowed to discharge anyone who caused a work problem.
It is clear that Armand was upset not because of union
activity but rather because he had been called in on prior
nights to deal with work problems. Although it may
have been unfortunate for Grabhorn and Starling to have
suffered because of Armand’s pique that night, this does
not establish the kind of discrimination barred by the
Act.
My colleagues seize upon a March 11 postdischarge
statement by Armand to employee Lahm. In this state-
ment, Armand referred to the production problems at
night and to the contract negotiations. However, in par-
ticular reference to the Grabhorn discharge, Armand told
Lahm that Grabhorn’s negligence caused the discharge.
Further, in the critical period prior to the discharge, it
was only the production problems that caused Armand to
say that “heads would roll” if there were a repetition of
these problems. Accordingly, the judge found, and I
agree, that Armand would have discharged Grabhorn and
Starling without regard to contract negotiations.
Finally, Armand’s opinion that the Union was “screw-
ing him” because of production problems was not an
unlawful statement, and it does not contradict the fact
that Grabhorn’s production problem caused his dis-
charge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unilaterally promote apprentices without
providing Graphic Communications International Union,
Local 22 (the Union) with timely notice and a meaning-
ful opportunity to bargain.
WE WILL NOT threaten employees about testifying in
support of employees’ grievances.
WE WILL NOT coerce employees by telling them they
have a bad attitude because they are engaged in protected
concerted activities.
WE WILL NOT threaten employees with discharge if
they serve as a union representative.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the Union, or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union as the
exclusive collective-bargaining representative of em-
ployees in the following appropriate unit:

All employees, including journeymen, second men in
charge, men in charge, and other employees who hold
the rank of assistant foremen employed in the press
room, excluding guards and supervisors as defined in
the Act.

WE WILL, on request of the Union, rescind our October,
1996 unilateral promotion of apprentices to conditional
pressmen.
WE WILL, within 14 days from the date of the Board's
Order, offer Donald Grabhorn full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Donald Grabhorn whole, with interest,
for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set
forth in the Board’s decision.’ Order, remove from our
files any reference to the unlawful discharge of Donald
Grabhorn, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the dis-
charge will not be used against him in any way.
THE DENVER POST CORPORATION

Leticia Pena, Esq., for the General Counsel.
Howard M. Kastrinsky, Esq., for the Respondent.
Walter C. Brauer III, Esq., for the Charging Party Union.
David A. Grabhorn, Esq., for Donald Grabhorn.
DECISION
ALBERT A. METZ, Administrative Law Judge.1 This case in-
volves issues of whether the Respondent has violated Section
8(a)(1), (3), and (5) the National Labor Relations Act (Act).2
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel, Respondent, and counsel for
Donald Grabhorn, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Union
is a labor organization within the meaning of Section 2(5) of
the Act.

1 This case was heard at Denver, Colorado, on December 8–11,
1997. All dates refer to the time period April 1996 through March 1997
unless otherwise stated.
2 29 U.S.C. § 158(a)(1), (3), and (5).
DENVER POST CORP. 123
II. BACKGROUND
The Respondent publishes one of the two major daily news-
papers in Denver, Colorado. The Union represents a unit of the
Respondent’s pressroom employees.3 The Respondent and the
Union have had a long-term collective-bargaining relationship
which includes a collective-bargaining agreement that expired
November 15, 1995. Following the expiration of that agree-
ment the parties engaged in negotiations but were unable to
reach a new agreement until July 1997. During the bargaining
for a new contract there were demonstrations and leafleting by
the Union. Pressman Donald Grabhorn participated in some of
these union activities.
The other major daily newspaper in the Denver area is the
Rocky Mountain News (News). Historically the Respondent
has used “subs” from the News to supplement its pressroom
employees. Subs are hired by Respondent’s management noti-
fying the Union’s chapel chairman of the number of workers
needed. The chairman (or other designee) telephones the out-
side chairman at the News with the request for subs. The
News’ outside chairman then hires the needed News’ employ-
ees to work temporarily for the Respondent. Once the subs are
working at the Respondent’s pressroom they are directed on
each of the several presses by unit employees called the man-
in-charge.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
A. Threat to Torres
On the evening shift of April 12, 1996, pressman Trinidad
Torres was the acting chapel chairman at Respondent’s printing
plant. On his own initiative he allowed some substitute News
workers to “breakout” or leave work early. Pressroom Man-
ager Dan Armand, was in the plant that night because of press
run problems and noticed men missing from the crews. He
questioned Torres about the shortage and learned that Torres
had unilaterally approved the breakout. He then called Torres,
along with his union representative, pressman Robert Laidley,
to his office.
Armand was angry that management had not been consulted
about the News employees being allowed to leave early. Ar-
mand angrily accosted Torres about why he should not be fired.
Torres apologized and said he thought it was the practice to let
the Union grant the News substitutes the right to leave early.
He said that he would not do the same thing again. During the
conversation Torres stated to Armand that the subs had asked
him to allow the breakout. Armand retorted that Torres was
going to get in trouble if he did what the men asked. Torres
and Laidley recalled that Armand also said that Torres should
reconsider being the chairman because he was going to get
fired. Armand denied making that statement. Judging the de-
meanor of the witnesses, I find that Armand did make the
statement about getting fired in the context of Torres being
unwisely influenced by his members in allowing the breakout.
I find that the statement was coercive in that it threatened Tor-
res if he listened to union members’ requests. I thus conclude
the statement was a violation of Section 8(a)(1) of the Act.

3 All employees, including journeymen, second men in charge, men
in charge, and other employees who hold the rank of assistant foremen
employed in the press room, excluding guards and supervisors, as de-
fined in the Act.
B. Practice Regarding “Breakouts”
On April 13 Armand called a meeting of foremen and chapel
chairman in the breakroom. Armand told the assemblage that
the union representatives were not to allow News substitutes
early exit from shifts without first receiving permission of su-
pervision. The Government alleges this is a unilateral change
of past practice that granted the chapel chairman that right. The
Respondent contends that there has not been such a practice.
Several witnesses testified in regard to this allegation. In
sum, the union witnesses contended that while there was no
written agreement, it was common for the chairman to permit
News employees to leave work early. The Respondent’s wit-
nesses testified that while News substitutes were allowed to
leave early on occasion it was only after the chairman had re-
ceived permission from supervision. It was uncontroverted that
Respondent’s regular employees are not permitted to leave at
any time without first obtaining supervisory permission. There
were instances where breakouts of News subs had occurred
without Respondent’s permission. One such situation involved
a new foreman, Gene Sonntag, who soon learned that was not
the practice and stopped the unapproved breakouts. Likewise,
Armand gave uncontroverted testimony that he had repri-
manded Union Chairman Wayne Scott and another union offi-
cial on earlier occasions for unapproved breakouts. Respon-
dent’s notes from a departmental meeting of January 1993
show that employees were reminded that breakouts required
supervisory permission.
The record demonstrates that there may have been instances
where breakouts occurred without Respondent’s permission.
However, the record as a whole does not show that there was an
established past practice that breakouts were acquiesced in by
the Respondent. To the contrary, when management learned of
subs early release the practice was challenged. I find that the
Government has failed to prove by a preponderance of the evi-
dence that the Respondent unilaterally changed a past practice
of allowing union officials to solely approve breakouts of News
employees. I find that the Respondent did not violate Section
8(a)(1) and (5) of the Act by stopping the Union’s representa-
tives from granting unapproved breakouts of subs. Chef’s Pan-
try, 274 NLRB 775–776 (1985).
C. Assignment of Color Printing Work
The Respondent has several presses and each press requires
approximately eight to nine unit employees in order to run
properly. The pressmen are assigned to a press by the Respon-
dent and then they select their jobs on that press by seniority.
News employees do not have seniority in the selection of jobs
and take the remaining positions. One of the jobs involves
working with color. The Respondent is sensitive about this
operation because it in part involves advertisements and cus-
tomer satisfaction with the appearance of their ads. In August,
the Respondent was receiving complaints from some major
advertisers about the appearance of their colored ads. As a
result a management meeting was convened to rectify the prob-
lem. Several things were done to alleviate the complaints. One
solution was a decision to not allow News substitutes to work
on color jobs of the press as it was felt that Respondent’s full-
time employees would perform better in this function.
In August the Respondent unilaterally implemented its deci-
sion to restrict News subs in the color work they performed.
This had the effect of eliminating some press jobs for News
employees, with the result that Respondent’s employees were
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
limited in the positions they could fill by seniority. This
change lasted for approximately 2 to 3 months before News
employees were again allowed to work color. The parties have
had disputes in the past on the interpretation of the seniority
provisions in the contract and clauses giving the Respondent
the right to assign work and determine workers’ competency.4
The Respondent adequately showed that it was seriously con-
cerned about the poor results it had been getting in color print-
ing and that it was motivated to attempt to rectify the situation
by assigning its full-time employees this task for a period of
time. There is no allegation nor evidence that the color printing
assignment resulted from animus, bad faith, or an intent to un-
dermine the Union. I find that the Respondent had at least an
arguable contract defense to making the color assignment based
on the terms of the expired collective-bargaining agreement and
conclude that the Respondent has not violated Section 8(a)(1)
and (5) of the Act in making this work determination. Atwood
& Morrill Co., 289 NLRB 794, 795 (1988).
D. Upgrading Apprentices
In October, the Respondent needed more journeymen press-
men in the unit. On approximately October 3 Armand tele-
phoned the Union’s president, Ronald Westkamp, and asked if
he would agree to the Respondent giving three apprentices
early promotion to conditional pressmen status. Armand asked
Westkamp if there would be a possibility that Westkamp could
bring Respondent’s request before the Union’s general mem-
bership and get approval to upgrade the apprentices. West-
kamp said that the next general membership meeting was not
scheduled for a week and a half. Armand said that would not
be satisfactory and that he needed approval sooner. Armand
and Westkamp then discussed the possibility of polling the
Union’s executive board and Westkamp said that might be a
possibility. According to Westkamp, Armand said, “Well, Ron,
you know, I’m backed up against the wall. I’m going to have
to do it with the union’s permission or without it.” Westkamp
asked Armand to let him try to contact the executive board to
see if he could get approval. Subsequently, Westkamp was
able to poll a majority of the executive board members and they
expressed opposition to the Respondent’s proposal. Westkamp
unsuccessfully attempted to telephone Armand the following
day with this information. On October 4 or 5 Westkamp
learned the Respondent had already unilaterally made the pro-
motions.
I find that the subject of the apprentices’ promotion is a
mandatory subject of bargaining. Armand did not afford a
reasonable opportunity for the Union to bargain about the mat-
ter and announced that the change would be made with or with-
out the Union’s permission. The Respondent thus unilaterally
changed the status of apprentices without satisfying its obliga-
tion to provide the Union with timely notice and a meaningful
opportunity to bargain. Intermountain Rural Electric Assn.,
305 NLRB 783, 786 (1991), affd. 984 F.2d 1562 (10th Cir.
1993); Intersystems Design, Inc., 278 NLRB 759–760 (1986).
Respondent’s unilateral early promotion of apprentices is found
to be a violation of Section 8(a)(1) and (5) of the Act.

4 Art. II, sec. 3, reads in pertinent part: “The foreman representing
the Publisher shall be the judge of any man’s competency as a work-
man. He shall select and employ all help and supervise and control all
employees in the pressroom. All pressmen shall perform such press
work as he may direct.”
E. Discharge of Grabhorn
On several nights before February 21 there had been numer-
ous problems with the press runs. Armand had been called in
the night at home to come into work to rectify the problems.
On one of these occasions he told an employee if he had to
come in again, “Heads were going to roll.” On the night of
February 21 Armand was once again called at home about 1
a.m. to return to work because of production problems. When
he arrived at work he determined that Charles Starling, a News
substitute worker, was not doing his job properly and immedi-
ately fired him. Starling’s discharge is not contested by the
Government. Armand continued checking the pressroom for
problems after the Starling termination. Appointed Union
Chairman Robert Bullard was present for Starling’s discharge
and could tell that Armand was in an angry mood. As a result
he telephoned Union Chairman Wayne Scott. Bullard reported
the Starling termination and asked Scott to come to the plant
because, “Danny [Armand] looked like he was on a rampage.”
During the February 21 evening shift, pressmen Donald
Grabhorn and Stanley Cole were working in the reel room of
the D press. At that station large rolls of newsprint are loaded
on the press and spliced together at the beginning of the print-
ing cycle. The reel room employees are responsible for check-
ing the paper rolls for damage and defects as they are prepared
for use. This prevents breakage of the “web” or paper roll as it
goes through the multilevel press. Armand was at the D press
during the evening and noticed that Cole had not been watching
his reel. Armand angrily confronted Cole who assured him that
he would pay attention to the roll. Later during this shift a
paper (web) break occurred on the D press and it automatically
shut down. Grabhorn had prepared the paper roll for use and
was responsible for fixing the break. He testified this involved
making a tear in the roll at an angle so it could be spliced to the
next roll. Grabhorn stated he quickly realized that he was do-
ing the tear in error on the wrong side of the roll. The splicing
process is done “backwards” on the D press where he was
working this night. On the other three presses the tearing proc-
ess is done on the opposite side.
Armand and Foreman Gene Sonntag arrived at the D press to
investigate the web break. They noticed a tear in the roll which
Armand described as approximately 2 inches straight across the
newsprint roll. The tear appeared to Armand to be discolored
at the edges. The discoloration indicated to Armand that the
tear had been exposed to light for a period of time and thus was
not of recent origin. Sonntag testified he likewise saw a tear in
the roll, but he was not close enough to the roll to notice if it
was discolored. Armand asked Grabhorn if he had followed
standard procedures and checked the newsprint roll before its
use. Grabhorn said that he always checked the rolls. Armand
questioned Grabhorn about the tear in the roll. Grabhorn told
him it was the start of a taper to make a patch in the roll. Grab-
horn then pulled the torn paper off the roll and Armand told
him, “If there was any need for any evidence, it’s destroyed
now.”
Armand did not believe Grabhorn’s statement that the tear
was the start of a repair because it was not a normal tear for that
purpose. Additionally, the tear was discolored which caused
Armand to believe the tear had been there for some time. Ar-
mand concluded that Grabhorn’s negligence had contributed to
the bad runs of the night. Grabhorn fixed the break and was
then called to Armand’s office with union representative, Bul-
lard. In the office Armand accused Grabhorn of negligently
DENVER POST CORP. 125
ignoring the damage to the roll. He then rejected Grabhorn’s
excuses that it was not his fault and fired him. Armand was
solely responsible for making the termination decision.
F. Analysis of Grabhorn’s Discharge
The Government alleges that Grabhorn’s discharge was the
result of his union activities. The General Counsel has the
initial burden of establishing that union or other protected activ-
ity was a motivating factor in Respondent’s action alleged to
constitute discrimination in violation of Section 8(a)(3). The
elements commonly required to support such a showing of
discriminatory motivation are union activity, employer knowl-
edge, timing, and employer animus. Once such unlawful moti-
vation is shown, the burden of persuasion shifts to the Respon-
dent to prove its affirmative defense that the alleged discrimina-
tory conduct would have taken place even in the absence of the
protected activity. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Presbyterian/St. Luke’s Medical Center v.
NLRB, 723 F.2d 1468, 1478–1479 (10th Cir. 1983). The test
applies regardless of whether the case involves pretextual rea-
sons or dual motivation. Frank Black Mechanical Services, 271
NLRB 1302 fn. 2 (1984).

[A] finding of pretext necessarily means that the reasons ad-
vanced by the employer either did not exist or were not in fact
relied upon, thereby leaving intact the inference of wrongful
motive established by the General Counsel.

Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. sub
nom. NLRB v. Limestone Apparel Corp., 705 F.2d 799 (6th Cir.
1982).
Grabhorn was active in the Union and held various union of-
fices. He was a visible participant in union demonstrations held
at the Respondent’s downtown Denver offices during the
months preceding his discharge. Armand denied having
knowledge of Grabhorn’s particular union activities, but I find
that Grabhorn’s union activities were well known in the print-
ing plant and that he was consulted by less experienced union
members concerning grievances. I infer that Armand was at a
minimum aware that Grabhorn was a union member and sup-
porter. The timing of Grabhorn’s discharge was concurrent
with the Union’s lengthy ongoing attempts to obtain a new
collective-bargaining agreement with the Respondent. Evi-
dence of the Respondent’s animus toward the Union is demon-
strated by the unfair labor practice violations set forth in this
decision, including Armand’s unilateral actions in prematurely
promoting apprentices. The record also shows many examples
of other employees with serious work problems who were not
discharged for their conduct. Thus, the Government has shown
a sufficient basis to conclude that Grabhorn’s discharge may
have been motivated by his union activities.
The record also shows, however, that Armand was very irri-
tated by days of bad press runs that required his attendance at
the plant in the middle of the night. As he stated, “Heads were
going to roll” if he was called from home again because of
production problems. I find that Armand was genuinely piqued
by the spate of production troubles and the resultant interrup-
tion to his sleep. The initial result of Armand’s anguish was the
discharge of Starling early on the night shift of February 21.
The secondary result was Grabhorn’s discharge later that night.
Armand convincingly testified that he believed Grabhorn had
failed to properly inspect the newsprint roll as required. I find
that Armand made the discharge decision because of what he
perceived to be Grabhorn’s negligent work and that this reason
was not a pretext. I further find that the Respondent has met its
burden of showing that Grabhorn would have been discharged
regardless of his protected concerted activities. I conclude that
the Respondent did not violate Section 8(a)(1) and (3) of the
Act when it terminated Grabhorn.
G. Threat to Laidley
Pressman Robert Laidley was working on the evening shift
the night after Grabhorn’s discharge. He was approached by
Plant Manager Larry Charest, who had been called into work
because of production problems. Laidley testified that Charest
said to him that if he testified against Danny Armand they were
going to get him. Laidley had on previous occasions testified
on behalf of union members who had grievances against the
Respondent. Charest conceded being at work that night but
denied he threatened Laidley about testifying against Armand.
Laidley was a persuasive witness who presented a credible
demeanor. Charest’s demeanor and denial of making the
statement were not convincing. I credit Laidley’s version of the
encounter. I find that Charest’s threat to Laidley was coercive
and intended to prevent his supporting any appeal that Grab-
horn might make concerning his discharge. I find by this threat
the Respondent violated Section 8(a)(1) of the Act. Overnite
Transportation, 297 NLRB 638, 641 (1990).
H. Armand’s Conversation with Lahm
Early in the evening of March 11 Armand was having a con-
versation with several pressmen. Employee Charles Lahm,5
who was a part-time union on the night shift, walked by and
yelled to the employees that they had the right to have a pre-
sent when they spoke with Armand.
Later in the evening Lahm was working on a press when
Armand approached and started to assist him. Lahm objected,
telling Armand it was unit work and he should not be assisting.
Armand told Lahm that he could not say that to him. Lahm
said they were apparently having a problem and he needed a
union chairman. Armand then left and returned with Bullard
who was the union chairman that evening. Armand told Bul-
lard that Lahm had a bad attitude and that he was obstructing
production because he had told some employees not to talk to
him that night. Bullard then walked away and Armand and
Lahm continued their conversation.
Armand asked Lahm why he had a bad attitude. Lahm re-
plied it was because in the past he had not seen Armand firing
employees for no reason—referring to Grabhorn’s discharge.
Armand replied that the contract bargaining session the week or
two before had not gone well and the plant was having bad
nights every night. Lahm recalled Armand stated, “And that
you guys, meaning the union, was screwing him and he had to
do something.” Lahm then said, “So you fired him for no rea-
son.” Armand stated that he had found damage on the roll that
Grabhorn had made.
I find that Armand’s statement to Lahm that he had a bad at-
titude referred to two protected matters: (1.) Lahm’s telling
employees they could be represented when they spoke to Ar-
mand, and, (2.) Lahm’s protest that Armand was improperly

5 Lahm’s name is misspelled in the transcript as “Long.” The Gov-
ernment’s unopposed posthearing motion to correct the transcript to
accurately reflect Lahm’s name is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
performing work reserved for unit employees. I conclude that
such a statement is coercive and a violation of Section 8(a)(1)
of the Act. Armand’s statement the union was screwing him
because of the series of recent production problems was his
opinion. I find that the Respondent did not violate Section
8(a)(1) of the Act by this statement.
CONCLUSIONS OF LAW
1. The Denver Post Corporation is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Graphics Communications International Union, Local 22is
a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has violated Section 8(a)(1) and (5) of the
Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not violated the Act except as here speci-
fied.
[Recommended Order omitted from publication.]