Distinctive Graphic Arts Corp.

National Labor Relations Board - Board Decisions

Jul 28, 1975

219 N.L.R.B. 640 (N.L.R.B. 1975)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Distinctive Graphic Arts Corp. and Picture Frame and
Moulding Workers ' Union, Local 18-B, Upholster-
ers' International Union of North America, AFL-
CIO. Case 13-CA-13686
July 28, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On April 25, 1975, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. After requesting and receiving an extension of
time in which to file exceptions, the Respondent,
Distinctive Graphic Arts Corp., filed a motion to re-
open the record, together with an affidavit summa-
rizing the evidence which the Respondent seeks to
introduce and explaining why such evidence was not
presented at the hearing . Thereafter, the General
Counsel filed a "Response and Opposition" to the
Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the Respondent's motion
and has decided to deny the motion,' and to affirm
the rulings, findings, and conclusions of the Adminis-
trative Law Judge and adopt his recommended Or-
der.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Distinctive Graphic Arts
Corp., Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
recommended Order.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on February
11, 1975, in Chicago, Illinois, on the complaint of the Gen-
eral Counsel issued on December 10, 1974,' and the answer
of Distinctive Graphic Arts Corp., herein called the Re-
spondent or Company. In issue are the questions whether
the Respondent, in violation of Section 8(a)(l) and (3) of
the National Labor Relations Act, as amended,2 dis-
charged employee Ruby Walls because of her protected
union and concerted activities, and whether the Respon-
dent otherwise interfered with, restrained, and coerced em-
ployees in the exercise of their statutory rights in violation
of Section 8(a)(1) of the Act. At the close of the hearing,
the parties waived oral argument but subsequently filed
briefs in support of their respective positions.
Upon the entire record,3 and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in
the production and sale of picture frames and the sale of
graphics, posters, and related products at its factory and
place of business in Chicago, Illinois. In the normal course
and conduct of its business operations, the Respondent an-
nually purchases and receives goods and services valued in
excess of $50,000 from sources located outside the State.
The Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded , and I find , that Picture Frame and
Moulding Workers' Union, Local 18-B, Upholsterers' In-
ternational Union of North America, AFL-CIO, herein
i Under Sec. 102.48(d)(l) of the Rules and Regulations of the National
Labor Relations Board , Series 8 , as amended, a party may, because of ex-
traordinary circumstances , move to reopen the record . The motion must
state that the additional evidence , if adduced and credited , would require a
different result . The Board finds that the Respondent 's additional evidence,
even if adduced and credited , would not affect the result . Moreover, we are
not persuaded that the alleged personal animosity between Respondent's
counsel and its president constituted , in the circumstances of this case , suffi-
cient reason to reopen the record at this state of the proceeding.
2 As noted, Respondent's counsel requested and received an extension of
time in which to file exceptions but subsequently filed only the motion to
reopen . The Board has examined the record with regard to the findings of
the Administrative Law Judge that are implicitly called into question by the
matters raised in the motion . We perceive no basis for finding that the
Administrative Law Judge committed reversible error. Accordingly, we af-
firm his Decision on the merits.
i The complaint is based on a charge filed on October 23, 1974 , by Picture
Frame and Moulding Workers' Union, Local 18-B, Upholsterers ' Interna-
tional Union of North America, AFL-CIO, a copy of which was duly
served on the Respondent by registered mail on October 25, 1974.
2 Sec . 8(a)(l) of the Act makes it an unfair labor practice for an employer
"to interfere with, restrain , or coerce employees in the exercise of the rights
guaranteed in section 7" of the Act. Insofar as pertinent , Sec 7 provides
that "[elmployees shall have the right to self-organization , to form, join or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection .
Sec. 8(aX3), with certain qualifications not material herein , prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
shi , in any labor organization . ...
S Errors in the transcript have been noted and corrected
219 NLRB No. 139
DISTINCTIVE GRAPHIC ARTS CORP.
called the Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Walls' organizational activities; the appearance of the
Union
The Respondent conducts its shop operations on the
fifth and eighth floors of a building located on 210 West
Van Buren, Chicago, Illinois. At the time of the relevant
events herein, Ruby Walls and four other employees
worked on the eighth floor where they packed pictures in
boxes, wrote up packing slips, bills of lading, and receipts,
stocked merchandise , and maintained inventory. Two of
the men there employed also drove trucks. Working on the
fifth floor were some 13 employees who assembled pic-
tures, cut picture mats and glass, and placed protectors
around the pictures to be packed and shipped by the eighth
floor employees.
One morning in August 1974 4 Walls engaged the other
four employees on the eighth floor S in a conversation in
which she expressed her opinion that a union was needed
in the shop. All but one of these employees agreed with
Walls who thereupon asked where a union could be locat-
ed. At an employee 's suggestion , Walls obtained the name
of the charging party from the telephone book. At lunch-
time, Walls telephoned the Union and informed the indi-
vidual who took the call of the employees' union interest.
That individual explained the nature of his organization
and the benefits to be derived from unionization and sug-
gested that Walls speak to Union President and Business
Manager Theaplus Lee who was expected to return from a
trip in a week. Walls left her telephone number.
The following week, Walls called Lee who advised her to
form an employee committee and to come with the com-
mitteemen to the Union's office . Because she was subse-
quently unable to form such a committee or to persuade
any employees to accompany her to the Union, Walls, on
September 11, in the presence of employees Cole, Hill,
Smith, Calderone, and Howard Marcus, drafted on the
eighth floor a two -page document for employees to sign.
On the first sheet, which was the signature page, Walls
printed "We the Fellow Employee (sic) of Distinctive
Graphic Art (sic) agree on the Following Terms Listed."
On the second page, which was attached to the first, Walls
set forth "Wanted Conditions ," listing the improvements
the signers sought .' After Walls, Cole, Marcus , Hill, and
Smith signed the signature page, Walls handed the docu-
ment to Cole or Marcus 7 to secure the signatures of the
4 Unless otherwise indicated , all dates refer to 1974.
s They were Rosenda Calderone, Freddie Hill , Sam Smith , and Oscar
Cole.
6 Specifically, they were : a starting salary of $ 115 a week , $ 125 a week
after 30 days, and a 12.5-cent increase every one -half year ; paid holidays;
paid vacations after I year; better insurance ; sick pay, pensions; a prohibi-
tion against framers driving company trucks; and better working conditions
(porter, etc.).
7 Walls testified that she gave this document to Cole to have the fifth floor
641
employees on the fifth floor. At lunchtime, the document
was returned to Walls with 9 additional signatures totaling
14. On the same day (September 11), Walls delivered the
signed document to Lee at the Union's office. Lee, there-
upon, handed Walls authorization cards with instructions
to have the employees sign before he could do anything.
At lunchtime on September 12, Walls signed an authori-
zation card and solicited signatures from four other eighth
floor employees. Apparently, no supervisor was present
during Walls' solicitation. Walls then requested Marcus or
Cole to secure signatures from the employees on the fifth
floor, cautioning him to be careful that Shop Manager
Robinson did not observe him soliciting. Shortly thereaf-
ter, Marcus or Cole returned with eight signed cards which
he gave to Walls who, in turn, mailed all 13 signed cards to
Lee. The next day Lee called Walls and acknowledged re-
ceipt of the cards and advised her that he was sending a
letter to the Company.
By letter dated September 13, which the Respondent re-
ceived on September 16, Union President Lee informed
Jack Newman, the Respondent's president, that a majority
of the employees had designated the Union as their bar-
gaining agent and accordingly requested recognition and
the institution of contract negotiations. It appears that sub-
sequent to Walls' discharge the Respondent granted recog-
nition to the Union and concluded a contract with it .8
About 2 days after sending the above correspondence,
union representatives arrived in front of the plant at 4 p.m.,
the close of the workday, and drove some nine employees
to a union meeting where Lee explained the benefits of
unionization and the employees voiced their complaints
against the Company.
2. The September 20 company meeting with employees
On Friday morning, September 20, Company President
Newman assembled all the employees on the fifth floor
and addressed them in the presence of Shop Manager Rob-
inson and Supervisor Leavelle. According to Walls' ac-
count, which was corroborated by employee Cole in essen-
tial respects, the following occurred: Newman opened up
his remarks by noting that he had received a letter from the
Union and that he was going to speak to the union repre-
sentatives. He also stated that the Union was a good one;
that he was glad that the employees had not selected the
Teamsters because they were a bunch of cutthroats; and
that a lawyer-friend of his advised him to accept the
Union. However, Newman thereupon added that the em-
ployees were "going to catch it" and proceeded to tell them
that they would be required to pay a $150 union initiation
fee and weekly dues of $15. When Walls shook her head in
disagreement with Newman's latter remarks, Newman re-
peated the amounts and told her to verify their accuracy
with Robinson, which Walls declined to do, asserting that
employees sign and the next day she gave authorization cards to Marcus to
secure the same signatures . Cole testified he was given the cards and Marcus
the document . It is obviously unimportant to determine who was requested
by Walls to solicit signatures to the document or the cards.
8 Among other things, the Union alleged in its unfair labor practice
charge filed herein on October 23 an unlawful refusal to recognize the
Union and to bargain in good faith.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robinson lacked knowledge. Newman then discussed the
benefits employees were enjoying. He alluded to the paid
lunch hour employees had which the Union would not give
them, thus saving him (Newman) $750. Newman also re-
ferred to newborn baby gifts and wedding presents which
he customarily gave employees and which they would not
obtain from the Union. Observing that the employees were
aware of his financial problems and that nothing like this
had ever happened to him before, although he had been in
business for a number of years and had been a millionaire
a couple of times , he chided them for not once according
him any consideration. Newman then stated that, if the
employees wanted a union, they should have asked him for
one and he would have tried to bring it in, as he had once
tried to do but nobody really wanted it. Newman turned to
Robinson for confirmation and Robinson concurred.
Apparently near the close of his remarks , Newman
warned that, should the shop be unionized, the employees
would no longer be granted raises every 2 or 3 months.
This evoked Walls' comment that she had not received an
increase since the past April , which was a fact .9 Newman,
nevertheless , insisted that Walls was mistaken and asserted
that she had been granted a larger raise than any other
employee. Newman then ordered the employees to return
to work, declaring that neither the Union nor anybody else
,.was going to make him keep smart asses ." It is noted that
Walls was the only employee who spoke up during this
meeting.
Without contradicting the details of Walls' above testi-
mony except in one respect, Shop Manager Robinson gave
this version of the September 20 meeting: Newman first
informed the employees that he had been contacted by the
Union. He then stated that they could have a union if they
wanted and that he would try to help them get one. How-
ever, he added that the Union would not obtain for them
the benefits they were then having and, in fact, the Union
would benefit him (Newman) more than the employees.
Concerning raises , Robinson quoted Newman as saying
that "most time" he gives them to the employees every 5 or
6 months. Robinson further testified that at this point
Walls "smirked and said it was a lie" and that she had
never received a raise . He also testified that he did not hear
Walls say that she had not received a raise since April.
Both Walls and Cole specifically disputed this portion of
Robinson's testimony, categorically denying that Walls
charged Newman that he lied in his above comments about
raises or that Walls unqualifiedly said that she had never
been given a raise. Instead, Walls and Cole repeated that
Walls said that she had not received an increase since
April, which was true.
From my appraisal of the testimony, I find that Walls'
version, substantially corroborated as it was by employee
Cole,10 more accurately reflects Newman's remarks at this
meeting than does Robinson's testimony. Indeed, not only
9 The parties stipulated that since her employment in August 1973 Walls
had received a raise on August 23 and September 6, 1973, and April 19,
1974.
10 As an individual still in the Respondent's employ , it is hardly likely that
Cole would deliberately lie about his employer 's remarks and thereby incur
his displeasure . Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961).
was Newman not called as a witness, although he was pre-
sent at the hearing, but Robinson did not controvert the
details of Walls' testimony except with respect to Walls'
exchange with Newman regarding raises. As for such dis-
puted testimony, I find it hard to believe that Walls, who
impressed me as an intelligent and candid witness, would
falsely deny that she had ever received an increase when
she had actually received three, and then would publicly
charge her employer with lying. It is more likely, as she and
Cole testified, that she stated that she had not been granted
an increase since April which, as indicated above, was a
fact. Accordingly, I credit Walls' corroborated testimony
and reject Robinson's insofar as it is in conflict with hers.
3. Walls' insecure tenure; Robinson's poll of employees
regarding union representation
While at lunch several hours after the above employee
meeting, Shop Manager Robinson informed Walls that
Newman told him to fire her but that he (Robinson) stated
to Newman that he could not do it because Walls was one
of his best workers. tt
Later in the day (September 20), Robinson conducted a
poll among the employees to ascertain whether or not they
wanted the Union. Accordingly, with a written list of em-
ployees entitled "Union-Vote?" in his hand, Robinson ap-
proached Walls and, after informing her that Newman di-
rected him to take a vote to see who wanted the Union, he
put that question to her. When she answered she favored
the Union, Robinson noted "Yes" alongside her name on
the list and told her to initial her response , which she did. It
was stipulated that the same procedure was followed by
Robinson with respect to all the other employees on this
list. The result of the poll showed that 14 employees de-
sired union representation while 3 did not.
4. Walls' discharge; the Respondent's asserted reasons
As indicated above, Walls was employed as a shipping
clerk on the eighth floor in early August 1973. Since that
time she had received wage increases on August 23 and
September 6, 1973, and April 19, 1974. On September 23,
the Monday morning 12 following Newman's meeting with
the employees, Robinson informed Walls shortly after she
reported for work that Newman had directed him to fire
her. In answer to her inquiry as to the reason, Robinson
stated that Newman said she had "a smart mouth" in de-
claring at that meeting that she had not received a raise
since April. Robinson also requested Walls not to call the
union people because he wasn't supposed to notify her of
the discharge until 4 o'clock. About 5 in the afternoon,
Walls was paid off for the time she had worked on Friday,
11 This finding is based on Walls' uncontradicted testimony, which I
credit.
12 There is a conflict in the evidence whether Walls had reported for work
on time (8 a.m.) on September 23, as she testified she did , or whether she
reported for work at 8.22 a in., as indicated on her timecard, which she
claimed was incorrect However , it is unnecessary to resolve this conflict
since it appears that the discharge decision had been previously made and
Robinson , who purportedly recommended the discharge , had not seen the
card until he computed Walls' earnings after informing her of her termina-
tion.
DISTINCTIVE GRAPHIC ARTS CORP. 643
September 20, and Monday, September 23. It appears that
the workweek ends on Thursday and employees are regu-
larly paid on Friday. There is no question that Walls had
received her regular paycheck the Friday before her dis-
charge.l3
The Respondent denies that it was unlawfully motivated
in terminating Walls and presented Robinson 's testimony
and documentary evidence to support its position. Rob-
inson testified that it was he who made the initial decision
that it was time to get rid of Walls after she falsely asserted
at the September 20 meeting, in contradiction of Company
President Newman's statement , that she had never received
a raise. At that time, he testified, he had no knowledge of
Walls' union activities, although undeniably he was by
then aware of the Union 's presence . He further testified, in
effect, that , in reaching that decision , he also considered
Walls' poor attendance record and unsatisfactory job per-
formance manifested in errors she made in the merchan-
dise she packed for shipment to customers and in the pack-
ing slips she prepared. Robinson also testified that he
discussed the matter with Newman on Friday, after the
meeting, and secured his approval of the discharge, as he
was required to do.
As found above, Walls did not make the false statement
at the meeting which allegedly precipitated her discharge.
Indeed , the Respondent 's letter to the Board 's Regional
Office sent on October 31, in response to the unfair labor
practice charge filed by the Union herein, does not even
mention such a reason for Walls' dismissal.14
Concerning Walls' alleged poor attendance, Robinson
testified that she was late once or twice a week. However,
the Respondent produced only two of her timecards,15 one
of which was her final timecard covering 2 days only-
Friday, September 20, and Monday, September 23, when
she was terminated. It shows that on September 20 she
reported on time, which was before 8 a.m., and on Septem-
ber 23 she reported late (8 :22 a.m.). Walls challenged the
correctness of the September 23 notation , insisting in her
testimony that she had reported early for work that day.
However , since the discharge decision was made on Sep-
tember 20 , Walls' alleged lateness on September 23 obvi-
ously was not considered. The second timecard embraces
the period September 6 to 12 and discloses a few minutes
lateness on each of 3 days but that Walls clocked out short-
ly after the end of these workdays and received credit for a
full 8-hour day. Oddly enough, no timecard was-produced
13 The foregoing findings embody Walls' credible testimony which Rob-
inson did not dispute except that he testified that he told her that she was
being removed from the payroll because "she made a falsified statement
against the company and [because of] her work and her attendance." Rob-
inson did not impress me as a candid witness . His reliability suffered greatly
in his unconvincing efforts to substantiate the reasons for his discharge
decision or recommendation , which will presently be discussed.
14 The letter states that "Ruby Walls was not discharged because she was
a Union enthusiast , but because she was constantly late or absent . She was
also careless ," referring to a packing error she had made on September 18,
which will later be discussed.
15 Since each timecard was supposed to cover a week ending Thursday,
the procedure followed , according to Robinson , was for him to prepare
usually on Thursday a new timecard for each employee to punch during the
next workweek beginning Friday. The preparation consisted of inserting the
employee 's name, clock number, and department number.
for the week immediately preceding September 20 (Sep-
tember 13 to 19) so that it would not be unreasonable to
infer that she was probably punctual during that period.16
In other words, whatever might have been her record of
lateness during her period of employment-and Walls con-
ceded that there were occasions when she was late but no
more frequently than other employees-it appears that she
was, in all likelihood, punctual at least during the 8 days
immediately preceding the Respondent's discharge deci-
sion. In any event, Robinson admitted that other employ-
ees were also frequently tardy. Moreover, there is no evi-
dence that the Respondent was sufficiently concerned
about Walls' tardiness as to warrant a reprimand, warning,
or other discipline.'?
As for Walls' performance, Robinson testified that he
was informed "mostly" by Debra Gilbert, who then
worked in the Respondent's showroom's as store supervi-
sor and payroll clerk, that she had received complaints
from customers regarding Walls' unsatisfactory packing
work involving "loose" boxes and incorrect packing slips.
He further testified rather ambiguously that he "mentioned
to her plenty of times about trying to get it altogether as far
as tightening up the packing and getting the packing slips
correct and so on." When questioned whether those com-
plaints were relayed to Walls or to some other employees,
Robinson answered, "No, there were others there." He
then replied in the affirmative to a leading question by the
Respondent's attorney, "And you talked to these people
and told them to do better work?" Under cross-examina-
tion, Robinson agreed that there were complaints about
other employees in addition to Walls.
In another part of his testimony, Robinson stated that he
had received "numerous" complaints about Walls' work.
Upon further interrogation, he testified, as follows:
Q. When was the last time you received com-
plaints?
A. I can't say.
Q. Did you ever talk to her [Walls] about the com-
plaints?
A. Yes, I have. _
Q. How often have you spoken to her about com-
plaints?
A. I can't say the amount of times but it was more
than once.
Q. Do you know when the last time was that you
spoke to her . . . [a]bout the complaints?
A. Well, when I took her off the payroll I explained
it to her.
Q. What about before that?
A. I can't say.
16 it is noted that in the Respondent's October 31 letter to the Regional
Office, it submitted detailed records of lateness and absenteeism of four
employees other than Walls, who were also named in the charge herein as
individuals discriminatorily laid off or discharged about a month after
Walls' termination Similar information , however, was not transmitted with
respect to Walls The other four employees were not included in the com-
plaint subsequently issued in this case.
17 Although, as indicated above, the Respondent informed the Regional
Office that Walls was discharged , among other things, because "she was
constantly late or absent ," no evidence was produced relating to her absen-
teeism
18 The showroom and factory are located in different buildings
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
s s reason-good , bad, or indifferent-provided he is not mo-
tivated by the employee 's actual or suspected union or con-
certed activities . To be sure , it is equally well established
that the existence of a "justifiable ground for dismissal is
no defense if it is a pretext and not the moving cause." 20
From my analysis of the evidence , I am persuaded that
Walls was discharged because of her protected union and
other concerted activities , as the General Counsel main-
tains , and not because of any false statement that she alleg-
edly made at the September 20 meeting that she had never
received a raise , or because of her record of lateness or
unsatisfactory performance , as the Respondent urges. It is
clear that Walls instigated the union movement ; acted as
contact with the Union ; drafted and circulated among the
employees the petition for improved working conditions;
secured blank authorization cards from the Union; with
the assistance of an employee , solicited signatures from
other employees ; and then transmitted the signed cards to
the Union which thereupon sought recognition from the
Respondent . Moreover , Walls was the only employee who
spoke up at the- September 20 meeting called by Company
President Newman to discuss the Union about which he
had ambivalent feelings . There , Walls challenged
Newman's assertion that employees would be obligated to
pay the Union an initiation fee of $150 and $ 15 weekly
dues . When Walls also voiced her disagreement with
Newman 's statement that he customarily granted wage
raises every 2 or 3 months and Walls truthfully alluded to
the fact that she had not received any increase since the
previous April , Newman reacted with the declaration that
neither the Union or anyone else "was going to make him
keep smart asses ." As discussed above, this prophesy soon
became a reality in the Respondent's summary termination
of Walls the next workday, Monday , September 23.
There can be little doubt that, when viewed in the con-
text of the above events , the timing and suddenness of the
discharge in the middle of the workweek of the leader of
the union movement lend strong support for the inference
that there was more than a coincidental connection be-
tween Walls ' union activity and her termination. Indeed,
strengthening a finding of discrimination is the fact that
the reason which assertedly precipitated the discharge,
namely, the alleged falsity of Walls ' statement to Newman
regarding a raise , has no credible basis in the record. It is
not without significance that the Respondent did not even
advance this reason in its letter to the Board 's Regional
Office as a ground for the discharge , although it urged
other reasons . Reliance on unfounded reasons to justify a
discharge can only serve to cast doubt on the purity of the
underlying motive.
The Respondent's other grounds for Walls' termina-
tion-her lateness and poor performance-are equally sus-
pect . Thus, as indicated previously, Shop Manager Rob-
inson did not inform her at the time of her discharge that
these shortcomings had brought about her separation. In-
stead, answering Walls' inquiry as to the reason , Robinson
stated that Newman said she had "a smart mouth" at the
meeting. It is hard to understand, if Walls' tardiness and
unsatisfactory performance really were the grounds'for her
Q.... Did you ever warn Ruby Walls that she was
subject to discharge if her performance did not im-
prove?
A. I warned the whole department.
Q. Well, I 'm asking you about Walls?
A. Well, yeah.
Q. And you warned other employees the same way?
A. Right.
Q. Well, when did you warn Walls last?
A. I can 't remember the date , you know , exact date.
It's been quite a while back.
In its previously mentioned letter to the Regional Office
in which the Respondent assigned Walls' carelessness as
one of the reasons for her separation , the Respondent spec-
ified an error that Walls made on September 18 19 in send-
ing a customer a signed Salvador Dali graphic costing
much more than a Barlett poster which the customer had
ordered and which was listed on the packing slip signed by
Walls. However , according to the credible testimony of
former employee Gilbert , the Respondent was first in-
formed of this error when the customer telephoned her on
September 27, 4 days after Walls' discharge . Clearly, this
error could not possibly have entered into the
Respondent's discharge decision . Gilbert also testified to
other mistakes assertedly made in shipping two instead of
one picture of several items which were listed on packing
slips signed by Walls or in shipping a different item than
that ordered and described on a packing slip. However,
Gilbert further testified that all the employees made similar
mistakes . Moreover, she conceded that she was not famil-
iar with the packing procedures and that she did not have
personal knowledge who had packed the items in question
but attributed the above mistakes to Walls simply because
Walls had signed the packing lists. However , there is evi-
dence that fifth floor employees placed protectors around
the pictures and that thereafter the packers on the eighth
floor packed a number of these pictures in one box des-
tined for the customer . It is thus not too clear who was
actually responsible for the indicated errors.
Walls admitted that "a couple times" during her tenure
of employment management had spoken to her about
packing errors she had made and complaints it had re-
ceived from customers regarding the shipment of wrong
pictures. She further credibly testified that the last time
Robinson criticized or warned her about her performance
was about 4 or 5 months before her discharge.
B. Concluding Findings
1. With respect to Walls' discharge
The question of discrimination presented here is essen-
tially a factual one whose resolution rests , as it often does,
on circumstantial evidence . Of course , in making this de-
termination , one must be ever mindful of the settled princi-
ple that an employer may terminate an employee for any
19 The packing slip is dated September 17. 20 N. L. R. B. v. Solo Cup Company, 237 F.2d 521, 525 (C A. 8, 1956).
DISTINCTIVE GRAPHIC ARTS CORP.
discharge, why she was not so informed , unless they were
mere afterthoughts designed to cover up an impermissible
reason.
Further demonstrating the pretextual nature of the as-
signed reasons for Walls' discharge is the fact that, whatev-
er was her record of tardiness , it did not seem to be of
sufficient concern to the Respondent to warrant a repri-
mand or disciplinary action or some warning that she
risked discharge if she did not improve , until her union
sympathies became apparent . Probably, the reason she was
not reprimanded or warned in the past was that her record
of lateness was no more intolerable than that of other em-
ployees . Moreover , since Walls appears to have been punc-
tual during the 8-day period immediately preceding the
discharge decision , the Respondent's reliance on lateness
as a factor prompting the decision is highly dubious.
With respect to Walls' job performance , here , too, all the
employees made packing errors which were the subject of
customer complaints . Apparently, management spoke to
all the employees about their mistakes and warned them to
do a better job. In Walls' case , she credibly testified, with-
out contradiction , that the last time she was criticized or
warned by Robinson was about 4 or 5 months before her
termination . When to the foregoing is added Robinson's
statement to Walls on September 20 that he regarded her
as one of his best workers and that that was the reason he
gave Newman on that day for refusing to fire her, it be-
comes readily evident that it was not Walls' alleged unsat-
isfactory performance that contributed to her discharge
but rather her union activity . Indeed , the Respondent
grasped at straws to justify to the Board 's Regional Office
Walls' discharge on account of poor performance by rely-
ing on a packing error about which it had first learned 4
days after Walls' termination . In short, I find that Walls'
alleged shortcomings assigned by the Respondent as the
cause for her discharge are at best afterthoughts designed
to conceal its real motivation which was to eliminate the
spearhead of the union movement . The fact that other em-
ployees were also engaged in organizational activity who
were not discharged does not relieve the Respondent of
liability for the discriminatory treatment accorded to
Walls. , Reinforcing the inference of discrimination
against Walls is the Respondent's antipathy to the Union
revealed at the September 20 meeting in Newman 's threats
to withdraw employee benefits if the shop were unionized
and in his other statements to the employees, although, to
be sure , some of his opening remarks were somewhat con-
ciliatory.
Considering the foregoing factors which lead me to be-
lieve that Walls' discharge was discriminatorily motivated,
I find the Respondent 's denial of knowledge of Walls'
union activity at the time of her dismissal less than candid.
While it is true there is no direct evidence of such knowl-
edge, all the circumstances described above , as well as the
small size of the shop , combine to reveal the Respondent's
awareness of Walls' prominence in the union movement 22
Certainly , Walls' outspoken challenge to Newman at the
21 N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F.2d
272 276 (C.A. 5, 1952), cert. denied 344 U.S. 865.
2^ Cf. Alberto-Culver Company, 199 NLRB 156, In. 2 (1972); Long Island
645
September 20 meeting concerning the Union' s initiation
fee and weekly dues, her verbal exchange with Newman
regarding raises and Newman's response that no union
could force him to keep "smart asses" in his employ, sug-
gest that the Respondent was not entirely without knowl-
edge of Walls' union involvement.
Accordingly, I find that Walls was discharged'in reprisal
for her union activity and that the reasons assigned by the
Respondent were mere pretexts. Such conduct clearly con-
stitutes discrimination in employment to discourage union
membership which Section 8(a)(3) of the Act prohibits.
Moreover, there is no question that, in addition to her or-
ganizational activity, Walls was engaged in concerted ac-
tivity for mutual aid and protection to improve working
conditions at the Respondent's shop. This right is guaran-
teed to employees by Section 7 of the Act and is protected
by Section 8(a)(1). As Walls was terminated, in part at
least , as a result of her dispute with Newman at the Sep-
tember 20 meeting over the Respondent's asserted practice
or policy concerning wage raises, the Respondent thereby
independently violated Section 8(a)(1) of the Act. Even
were it assumed that Walls' purported deficiencies to some
extent entered into the-Respondent's discharge decision, I
find that her protected union and concerted activity was a
substantial cause of her discharge and that therefore the
same statutory provisions were violated.23
2. With respect to interference, restraint , and coercion
As shown above,, President Newman made it clear at his
meeting with employees on September 20 that, if the shop
were unionized, they would lose the benefits they were then
enjoying, such as a paid lunch hour, raises every 2 or 3
months, newborn baby gifts and-wedding presents. More-
over, when employee Walls questioned Newman' s state-
ment of the Company's practice or policy respecting wage
raises, Newman warned Walls that "smart asses" risked
discharge and the Union could do nothing to prevent the
Company from taking such action. Plainly, such remarks
amounted to coercive threats of reprisals against employ-
ees for their union sympathies and for engaging in other
protected concerted activity for mutual aid and protection
and constituted interference, restraint and coercion of em-
ployees in the exercise of their Section 7 rights in violation
of Section 8(a)(1) of the Act.
In addition, it is undisputed that Shop Manager Rob-
inson on September 20 conducted a poll among the em-
ployees to ascertain whether or not they favored union rep-
resentation . Interrogation of this type without complying
with the conditions indicated by the Board in Struksnes
to minimize the coercive impact of such interrogation on
employees also violated Section 8(a)(1) of the-Act.
Airport Limousine Service Corp, 191 NLRB 94, 95, enfd. 468 F.2d 292, 295
(C.A. 2, 1972); Wiese Plow Welding Co., Inc., 123 NLRB 616, 618 (1959).
23 N.LR B v. Herdis E. Gammon d/b/a Gammon Trucking Company, 506
F.2d 1403 (C.A. 7, 1974), J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F.2d
292, 300 (C.A. 2, 1967), cert. denied 389 U.S. 1005; N.L.R.B. v. Jamestown
Sterling Corp., 211 F.2d 725, 726 (C.A. 2, 1954).
24 Struksnes Construction Co, Inc., 165 NLRB 1062, 1064 (1967).
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and take certain affirmative action designed to ef-
fectuate the policies of the Act.
It has been found that the Respondent unlawfully dis-
charged employee Ruby Walls because of her protected
union and other concerted activity. To remedy these unfair
labor practices, it is recommended that the Respondent
offer Walls immediate and full reinstatement to her former
job or, if that job no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of
earnings she may have suffered by reason of her unlawful
discharge by payment to her of a sum of money equal to
that which she normally would have earned from the date
of her discharge to the date of the offer of reinstatement,
less her net earnings during the said period. Backpay shall
be computed with interest on a quarterly basis in the man-
ner prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). To facilitate the computation, as well as
to clarify the named employee's right to reinstatement, the
Respondent shall make available to the Board, upon re-
quest, payroll and other records necessary and appropriate
for such purposes. The posting of a notice is also recom-
mended.
In view of the nature of the discrimination for protected
union and other concerted activity for mutual aid and pro-
tection which "goes to the very heart of the Act," 25 there
exists the danger of the commission by the Respondent of
other unfair labor practices proscribed by the Act. Accord-
ingly, I recommend that the Respondent be ordered to
cease and desist from in any other manner infringing upon
the rights guaranteed employees in Section 7 of the Act 26
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS of LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discriminating in regard to the hire and tenure of
employment of Ruby Walls to discourage membership in,
and activities on behalf of the Union, the Respondent en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
3. By discharging Ruby Walls for engaging in protected
concerted activities for mutual aid and protection, the Re-
spondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. By warning employees that, if the shop were union-
ized, they would lose the benefits they were then enjoying,
such as a paid lunch hour, wage raises every 2 or 3 months,
newborn baby gifts, and wedding presents; by warning em-
ployees that they risked discharge for engaging in union or
25 N.L. R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 534 (C.A. 4, 1941).
26 N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 433 (1941).
concerted activity for mutual aid and protection; and by
interrogating employees concerning their union sympathies
in a manner prohibited by the Act, the Respondent inter-
fered with, restrained, and coerced employees in the exer-
cise of their statutory rights within the meaning of Section
8(ax 1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER 27
The Respondent, Distinctive Graphic Arts Corp., Chica-
go, Illinois , its officers, agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Picture Frame and
Moulding Workers' Union, Local 18-B, Upholsterers' In-
ternational Union of North America, AFL-CIO, or any
other labor organization, by discharging employees, or in
any other manner discriminating against them in regard to
their hire or tenure of employment or any term or condi-
tion of employment.
(b) Discharging or otherwise disciplining employees for
engaging in protected concerted activities for mutual aid
and protection with respect to wages, hours, or other terms
and conditions of employment.
(c) Warning employees that, if the shop were unionized,
they would lose the benefits they were then enjoying, such
as a paid lunch hour, wage raises every 2 or 3 months,
newborn baby gifts, and wedding presents.
(d) Warning employees that they risked discharge for
engaging in union or concerted activity for mutual aid and
protection.
(e) Interrogating employees concerning their union sym-
pathies in a manner prohibited by Section 8(a)(1) of the
Act.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Ruby Walls immediate and full reinstatement
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
DISTINCTIVE GRAPHIC ARTS CORP. 647
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her se-
niority and other rights and privileges , and make her whole
for any loss of earnings she may have suffered by reason of
her unlawful discharge in the manner set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary and useful in analyzing the amount of backpay due
and the right to reinstatement and employment under the
terms of this recommended Order.
(c) Post at its shop in Chicago, Illinois, the attached no-
tice marked "Appendix." 28 Copies of said notice, on forms
provided by the Regional Director for Region 13, after
being duly signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, where no-
tices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
28 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of those activities.
WE WILL NOT discharge or lay off employees or
otherwise discriminate against them because of their
membership in, or activities on behalf of, Picture
Frame and Moulding Workers ' Union, Local 18-B,
Upholsterers ' International Union of North America,
AFL-CIO, or any other labor organization.
WE WILL NOT discharge or otherwise discipline em-
ployees for engaging in protected concerted activities
for mutual aid or protection with respect to wages,
hours , or other terms or conditions of employment.
WE WILL NOT warn employees that , if the shop were
unionized, they would lose the benefits they were then
enjoying, such as a paid lunch hour, wage raises every
2 or 3 months , newborn baby gifts , and wedding pre-
sents.
WE WILL NOT warn employees that they risked dis-
charge for engaging in union or concerted activity for
mutual aid and protection.
WE WILL NOT interrogate employees concerning their
union membership , sympathies or activities in a man-
ner prohibited by Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist the above-named Union or any other
labor organization , to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a con-
dition of employment , as authorized by Section 8(a)(3)
of the Act.
WE WILL offer Ruby Walls immediate and full rein-
statement to her former job or, if that job no longer
exists , to a substantially equivalent position , without
prejudice to her seniority and other rights and privi-
leges, and make her whole for any loss of earnings
suffered by reason of her unlawful discharge.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of Picture
Frame and Moulding Workers' Union, Local 18-B, Uphol-
sterers' International Union of North America , AFL-CIO,
or any other labor organization , except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the Act.
DISTINCTIVE GRAPHIC ARTS CORP.