East Wind Enterprises

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 685 (N.L.R.B. 1980)

EAST WIND ENTERPRISES
East Wind Enterprises and Graphic Arts Interna-
tional Union, Local 280, AFL-CIO. Case 20-
CA-14788
July 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On March 27, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and General Coun-
sel filed cross-exceptions and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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, East Wind En-
terprises, San Francisco, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge you, lay you off, or
otherwise discriminate against you for support-
ing your International Union, Local 280,
AFL-CIO, or any other labor organization.
WE WILL NOT suggest to you that employ-
ees have been laid off or discharged because of
250 NLRB No. 101
their activity on, behalf of the above-named
Union or any other union.
WE WILL NOT threaten you that we will
close our business if you support the above-
named 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 by Section 7
of the Act.
WE WILL, offer Leonard Gerard full and
immediate reinstatement to his former position
or, if that position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or any other rights or
privileges previously enjoyed, and make him
whole for any loss of pay he may have suf-
fered because of the discrimination practiced
against him, with interest.
EAST WIND ENTERPRISES
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge:
This proceeding, in which a hearing was conducted on
December 20 and 21, 1979, is based upon an unfair labor
practice charge filed on August 8, 1979, by Graphic Arts
International Union, Local 280, AFL-CIO, herein called
the Union, against East Wind Enterprises, herein called
Respondent. On September 14, 1979, a complaint issued
against Respondent by the Regional Director of the Na-
tional Labor Relations Board, Region 20, on behalf of
the General Counsel which, as amended at hearing, al-
leged that Respondent violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended, herein
called the Act, by informing employee Leonard Gerard
that he was laid off due to his union activities, that Re-
spondent would close its facility rather than sign a con-
tract with the Union which included a union-security
agreement and terminated Gerard because of his union
activities. Respondent filed an answer to the complaint
denying the commission of the alleged unfair labor prac-
tices.'
Upon the entire record,2 from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs submitted by Respondent and the
General Counsel, I make the following:
' Respondent admits that the Union is a labor organization within the
meaning of Sec 2(5) of the Act Also. the record establishes that Re-
spondent meets the Board's applicable discretionary jurisdictional stand-
ard and is an employer engaged in commerce within the meaning of Sec
2(6) and (7) of the Act
2 General Counsel's unopposed motion to correct the transcript is
granted I agree with Respondent that I erred in receiving into ecldence
G.C Exh 7 which is an October 3, 1979. letter from Respondent's coun-
sel to the General Counsel which was v, ritten during the course of settle-
ment negotiations andl was a part of those negotilaiolns Se- Fed R
Esid, Rule 408, which In pertinent part states. '"eidence of conduct or
statements made in compromise nlegotiatliolt is like" ise not admissible
Accordingly. I have not considered this letter
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FIN1DINGS OF FAC'I
I. TIHE ALL.EGiDL) UNFAIR L ABOR PRACTICES
A. The Evidence
I. The setting
Respondent operates a commercial printing establish-
ment located in San Francisco, California. During the
time material herein it employed 2 shifts of employees: 4
or 5 persons in the office; 3 in the art department; 6 in
the lithographic preparatory department; 2 on small
presses; 5 on large presses; 8 to 10 in the bindery; and 3
or 4 in shipping. David Young is its owner and presi-
dent.
Leonard Gerard, the alleged discriminatee, worked on
the second shift in the lithographic preparatory depart-
ment, herein called the prep department. The foreman
for that department is Robert Schmidt who Respondent,
in its answer to the complaint, admits is a statutory su-
pervisor and an agent of Respondent.
All of the employees employed in the prep department
are members of the Union and an undisclosed number of
the employees in the press department are also union
members. Respondent does not recognize the Union as
the collective-bargaining representative of any of its em-
ployees, but for several years Respondent and the Union
have been parties to a written agreement whereby Re-
spondent contributes into certain health, welfare, and
pension trust funds on behalf of the Union's members eli-
gible to receive said benefits. Also Respondent follows
the economic terms and conditions of employment con-
tained in the standard collective-bargaining contract
which the Union negotiates in the San Francisco area
and hires its employees through the Union's hiring facili-
ty, if the Union is able to supply qualified applicants.
2. The July 25, 1979, meeting
In July 19793 Respondent was delinquent in making
the various health, welfare, and pension trust fund pay-
ments called for in its agreement with the Union and had
apparently been delinquent for quite some time. On
Wednesday, July 25, Union Representatives Raymond
Pappert and Vincent Passanisi visited the Respondent's
facility during working hours to inform the union mem-
bers employed by Respondent that they were no longer
receiving health insurance benefits because of the Com-
pany's delinquency. They met with these employees in
the prep department at approximately the start of the
second shift, thereby enabling them to speak to both the
first and second shift workers. Pappert, who did the talk-
ing, informed the approximately 12 employees who were
present that they were no longer eligible to receive
health and pension benefits because Respondent was de-
linquent in making its payments. Pappert explained that
the only way they could receive these benefits and con-
tinue working for Respondent would be if they took a
leave of absence, for then they would be covered under
the extended coverage provisions of the agreement.
David Young, Respondent's owner, who joined the
. All dates hereinafter will refer to 1979 unless', otherwise specified.
meeting shortly after it began, acknowledged his failure
to contribute into the various health and pension trusts
but defended his conduct on the ground that there were
other employers who were also delinquent in making
their payments, that Respondent had been delinquent in
the past and had eventually paid what it owed plus inter-
est and penalties, and that in the past the Company had
paid for any medical expenses incurred by the employees
during the periods when they were not covered by the
health and pension agreement due to Respondent's fail-
ure to make contributions on their behalf. Union Repre-
sentative Pappert stated that the Company was so far
behind in its payments that it would never catch up.
Clive Shephard, one of the employees, stated that he
considered his health and welfare benefits as important as
his wages. Young reminded Shephard that Shephard had
previously given his termination notice, asked why She-
phard was still working for Respondent, and told him
that if he did not want to work for Respondent he was
welcome to leave. Young left the meeting at this point.
Foreman Schmidt, the employees, and the union repre-
sentatives remained. Pappert then told the employees
that if they were covered by a union contract "things
like this won't happen" that if they wanted the Union to
represent them they would have to sign union authoriza-
tion cards.
The description of this meeting is based upon a com-
posite of the consistent testimony of alleged discrimina-
tee Gerard, Foreman Schmidt, Union Representative
Pappert, and Respondent's owner, Young. Their testimo-
ny about this meeting is consistent in all significant re-
spects except for Young's testimony that Pappert threat-
ened him with a strike if he did not make his health and
welfare payments and Schmidt's testimony that at the
end of the meeting Pappert placed union authorization
cards on Gerard's worktable for the employees to sign.
Young's testimony was not corroborated by any of the
other witnesses and was specifically denied by Pappert
who impressed me as a more credible witness. Schmidt's
testimony was denied by Pappert. In addition, Gerard
and Passanisi testified that it was not until July 27 that
Gerard was given the union authorization cards when
Passanisi visited Gerard at work and gave him the cards
to distribute to the employees. Accordingly, I have re-
jected Schmidt's testimony that it was at the July 25
meeting when a union representative gave the cards to
Gerard.
3. Gerard distributes the union cards; Respondent's
reaction
Union Representative Passanisi and alleged discrimina-
tee Gerard credibly testified that on Friday, July 27, Pas-
sanisi visited Gerard at work and handed him a stack of
union authorization cards which Gerard agreed to dis-
tribute to the employees. Gerard credibly testified he
placed the cards on his desk and during the next few
working days distributed cards to five employees in the
prep department who signed and returned them to him
and that he gave another employee employed in the
press department five cards to distribute to those em-
ployees.
686
EAST WIND ENTERPRISES
During the period when Gerard was soliciting em-
ployees to sign the union cards, Foreman Schmidt came
to his work station and asked him what he was doing.
Gerard told him he was distributing the union authoriza-
tion cards which Union Representative Pappert had
mentioned at the July 25 meeting. When Schmidt stated
that Gerard had not given him a card, Gerard replied
that Schmidt did not need a card because he was a
member of management. Schmidt acknowledged this was
true but stated that Gerard should give him a card since
Schmidt, like the other employees, was a union member.
Gerard acquiesced and gave him one of the cards which
were lying on his desk. Schmidt took the card and left.
He returned to Gerard's work station in approximately
15 minutes and told Gerard that Respondent's owner,
Young, knew he was passing out the union cards and
that Young was "madder than a hornet." Schmidt took a
pad of paper and covered the cards lying on Gerard's
worktable so that they could not be seen.
The description of Schmidt's aforesaid conversations
with Gerard is based upon the testimony of Gerard who
impressed me as a credible witness. I have credited
Gerard because he impressed me as a reliable and honest
witness whereas Schmidt did not similarly impress me.
Gerard's demeanor was impressive whereas Schmidt's
was unimpressive. Gerard presented his testimony about
these conversations in a straightforward and convincing
manner whereas Schmidt during cross-examination only
reluctantly admitted having spoken to Gerard about the
union cards, after in effect inconsistently testifying he
had not spoken to Gerard about the cards. Thus, at first
Schmidt in effect denied even talking to Gerard about
the union authorization cards, rather he testified that he
only spoke to one of the other employees about the
cards. Later, during cross-examination, Schmidt admitted
going to Gerard and asking why Gerard had not given
Schmidt one of the union cards and that Gerard indicat-
ed his reason for not giving Schmidt a card was that he
felt Schmidt was a part of management. Schmidt did not
deny that shortly thereafter he again spoke to Gerard
and, as Gerard testified, told him that Young knew he
was passing out union cards and was as mad as a hornet.
4. Gerard's termination
On Friday, August 3, toward the end of Gerard's
workday, Foreman Schmidt notified Gerard that he was
laid off and gave him his termination check.
Gerard testified that Schmidt told him he was laid off
due to a lack of work. Gerard's reply was to the effect
that he did not believe this was the real reason for the
layoff. Gerard testified he asked Schmidt to tell him the
real reason and pointed out to Schmidt that there were
two other workers in the department where Gerard
worked with less seniority. Schmidt, according to
Gerard, answered, "Young don't want them off; he want
you off." Gerard indicated he was mad and did not be-
lieve Schmidt. He asked Schmidt if the real reason for
the layoff was because he had distributed union cards.
Schmidt answered, "Yeah, that's the reason."
Schmidt testified that he told Gerard he was laid off
because the Company was eliminating the second shift.
He further testified that he explained to Gerard that the
prep department supports the press department and when
the presses are not operating on the second shift the
Company did not need anyone to work in the prep de-
partment on that shift. Gerard indicated he did not be-
lieve Schmidt and kept asking whether he was being laid
off because he had passed out union cards. Schmidt testi-
fied that he responded by repeating his initial explana-
tion.
As I have found previously, in connection with my
evaluation of Gerard's conversations with Schmidt about
Gerard's distribution of the union cards, Gerard, based
upon my observation of his demeanor, impressed me as a
sincere witness with a reliable memory of what was
stated during his several conversations with Schmidt, in-
cluding the above-described termination interview. Ac-
cordingly, I credit Gerard's version of the termination
interview. Likewise, for the same reason, I credit Ger-
ard's testimony that immediately after the termination in-
terview, while Gerard was in the midst of preparing to
leave the premises, there was a further conversation be-
tween himself and Foreman Schmidt at which time
Gerard told Schmidt that "this ain't going to stop. Even-
tually you are going to have to side with the Union.
Eventually you are going to have to go to a closed
shop." Schmidt replied, "Dave [referring to Respond-
ent's owner] will go out of business before he does."
B. Discussion and Conclusions
I. The unlawful statements attributed to Foreman
Schmidt
In its answer to the complaint Respondent admits that
Foreman Schmidt is a statutory supervisor and its agent.
As I have described in detail supra, on August 3, when
Foreman Schmidt advised Gerard of his layoff, Schmidt
admitted to Gerard that the real reason for the layoff
was Gerard's union activities. Shortly thereafter, as I
have described in detail supra, Foreman Schmidt indicat-
ed to Gerard that Respondent's owner would go out of
business if the employees supported the Union.4 I am of
the opinion that, because of Foreman Schmidt's admitted
status as a statutory supervisor and an agent of Respond-
ent, Schmidt's aforesaid conduct is attributable to Re-
spondent and reasonably tends to restrain and coerce em-
ployees from exercising their statutory right to support
the Union, thereby violating Section 8(aXI) of the Act.
Respondent argues it is not responsible for Foreman
Schmidt's statements, despite its admission that Schmidt
is a statutory supervisor and its agent, because there is no
evidence that Respondent authorized or knew of
Schmidt's conduct or that Gerard had "just cause" to be-
4 I recognize Schmidt did not state this in haec verba, but I am satisfied
that the record in context establishes that the import of Schmidt's state-
ment. as understood by Gerard and Schmidt, was that Respondents
owner would go out of business if the employees supported the Union's
effort to secure a collective-bargaining agreement. Thus, Schmidt's state-
ment that Respondent's owner would go out of business was expressed in
response to Gerard's prediction that the union activities would not stop
simply because Gerard had been laid off Moreover. shortly before ex-
pressing this statement. Schmidt had advised Gerard that Respondent's
owner was mad at Gerard on account of his union activities and that he
was being laid off because of his union activities
687
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lieve Respondent authorized his conduct. In this connec-
tion the record reveals that Schmidt, like all of the other
persons who worked in the prep department, was a
union member and that he spent at least 50 percent of
his time supervising and 50 percent or less of his time
doing the same work as the employees he supervised.
Lastly the record shows that the employees he super-
vised regarded him as a part of management as evi-
denced by Gerard's failure to solicit him to sign a union
authorization card for this reason.
In my opinion Foreman Schmidt's union membership
and his expressed concern that Gerard might suffer repri-
sals because of his union activities because Respondent's
owner was as mad as a hornet rendered his statements
about Gerard being laid off for distributing union cards
and the closing of the business if the employees support-
ed the Union even more believable to Gerard. For, "[a]
rough and ready point made by a supervisor in overalls
· . . who is really more naturally engaged in conversa-
tion with the workers, may be far more credible and in-
fluential so far as the ordinary worker is concerned than
a necessarily more formal . . . and purposeful statement
of a high-ranking executive." International Brotherhood of
Teamsters, Southern Conference v. N.L.R.B., 435 F.2d
416, 417 (D.C. Cir. 1970).
In any event the instant case is not one where due to
unusual circumstances employee Gerard would not have
reasonably believed that Foreman Schmidt was speaking
on behalf of management. Although he is a union
member, Schmidt spends at least 50 percent of his time
supervising the employees who regard him as a part of
management. And when he spoke to Gerard, Schmidt
did not indicate, expressly or by implication, that his
statements were merely his personal opinion, rather than
statements based upon information received from Re-
spondent's owner or other members of management.5
Based upon the foregoing I find that Respondent vio-
lated Section 8(a)(1) of the Act, by notifying employee
Gerard he was laid off because of his union activities and
that Respondent's owner would close the business if the
employees supported the Union.
2. Gerard's layoff
The uncontroverted evidence establishes that employ-
ee Gerard was the leading union adherent-he was the
person whom the Union asked to solicit the employees to
sign union authorization cards and who in fact distribut-
ed these cards and returned them to the Union after they
were signed. The record also shows, as described in
detail supra, that Respondent knew of Gerard's union ac-
tivity, was hostile toward him on account of this and laid
him off at the end of the same workweek it learned of
his union activity. Thus, Foreman Schmidt learned of
Gerard's union activity from one of the other employees
soon after it had commenced and demanded that Gerard
give him a union authorization card. Schmidt, within a
5 Respondent's reliance upon Buttler-Johnson Corporation v. V.L.R.B.,
608 F.2d 1303 (1979), is misplaced because there the record established
that the supervisor "was a supervisor only in the most technical sense of
Sec. 2(11)": "[the supervisor] voted as an employee in [a] union election
and his vote was not challenged by the union or the company"; and "the
other employees knew that his anti-union animus was personal."
half hour after taking the card from Gerard, returned to
Gerard and warned him that Respondent's owner was as
mad as a hornet because of Gerard's union activity. Nev-
ertheless, Gerard continued to engage in his union activi-
ty and was laid off at the end of that same workweek.
Lastly, when Foreman Schmidt notified Gerard about
the layoff he admitted to Gerard that the real reason for
the layoff was Gerard's union activity.
The above-described circumstances establish a prima
facie case that Gerard was laid off for his union activity.
The burden was then on Respondent to show that the
layoff was motivated by legitimate business consider-
ations since proof of its motivation was most accessible
to Respondent. See N.L.R.B. v. Miller Redwood Co., 407
F.2d 1366, 1369 (9th Cir. 1969). 1 am of the opinion, for
the reasons set forth hereinafter, that Respondent failed
to meet that burden and that the record establishes that
the asserted justification advanced by Respondent for
Gerard's layoff was false, thus reinforcing the General
Counsel's prima facie case rather than rebutting it.
Respondent takes the position that on August 3 its
second shift was discontinued for bona fide business rea-
sonse and because there was only one vacancy on the
first shift in the prep department that it was necessary to
lay off either Zeke Schmidt or Gerard, the two employ-
ees who worked in the prep department on the second
shift, and that Gerard was selected for layoff for legiti-
mate business reasons.7 Respondent's owner, David
Young, testified he was the person who decided to dis-
continue the second shift and that he made this decision
by himself without consulting anyone. An examination
and evaluation of Young's testimony pertaining to his de-
cision to discontinue the second shift reveals the follow-
ing:
Young was not able to settle upon an explanation for the
elimination of the second shift. When asked what was the
basis for his decision to eliminate the second shift, Young
initially testified:
Really 2 bases. One, our volume at that time was
down. Work had been cut back toward the tail end
of the summer. The plant was not overly busy. The
second [basis] was, of course we would have
nobody with any supervisory ability on the second
shift and the safety of the employees.
Young subsequently added another reason: "plus the fact
we had openings on the first shift. It did not make any
sense to run with half crews on the first shift when you
had people from the second shift that could be utilized."
And later added still another reason, testifying that
"profits dropped during this period of time" which influ-
enced his decision to discontinue the second shift.
6 The record indicates that the second shift had been in existence since
at least September 1978 when Gerard began work on that shift The
second shift employees worked from 12:30 p.m. to 7:30 p.m whereas the
first shift employees worked from 8 a.m. to 3 p.m.
7 During the week ending August 3 there were two employees em-
ployed in the prep department's second shift. Zeke Schmidt and Gerard
The elimination of the second shift resulted in Gerard's termination and
the transfer of Schmidt to the first shift.
688
EAST WIND ENTERPRISES
Young's testimony concerning his reasons for discontinu-
ing the second shift conflicts in significant respects with Re-
spondent counsel's representations expressed on this subject
at the outset of the hearing. At the outset of the hearing
Respondent's counsel took the following position: "Re-
spondent contends merely that there was a lack of work
which required the closing of the night shift. It was not
closed because of lack of profit or losses or this kind of
thing, but simply because there was a lack of work."
And shortly thereafter further represented: "The night
shift was terminated for lack of work" its elimination
"had nothing to do with . . . the profitability of the
Company's operations" rather there was "simply a lack
of work." This casts suspicion on the bona fides of the
additional reasons advanced by Young for discontinuing
the second shift, particularly his assertion that a drop in
the Company's profits influenced his decision to discon-
tinue the second shift.
The principle reason advanced by Young to justify discon-
tinuing the second shift-the lack of work-was patently
false.s Respondent did not present any documentary or
other evidence to corroborate Young's testimony that
"our volume at that time [referring to the time when the
second shift was discontinued] was down [and] [w]ork
had been cut back toward the tail end of the summer
[and] [t]he plant was not overly busy." General Counsel,
on the other hand, subpenaed Respondent's income state-
ments for the 12-month period ending August 31 which
showed that July, the month immediately preceding the
elimination of the second shift, was the Company's busi-
est month during this entire 12-month period. In addi-
tion, during an unemployment compensation hearing
connected with the unemployment compensation claim
of employee Clive Shephard, who was terminated on the
same date as the second shift was discontinued, Young
informed the hearing officer in that proceeding that She-
phard's employment was terminated during one of the
Company's "busier periods." And Respondent's income
statements show that, although its sales in June had de-
creased in comparison to May's, sales had decreased by
even greater amounts on two other occasions in 1979
without any effect on the second shift's employment.
Lastly, the income statements reveal that in August, after
the elimination of the second shift, Respondent, in order
to meet its customer's demands, was forced to subcon-
tract a substantial amount of work. This subcontracting,
when compared to Company's total sales for August and
the amount of work contracted out by Respondent
during the previous 6 months, reveals that the subcon-
tracting in August had increased drastically.9 Respond-
ent offered no explanation for this drastic increase in its
subcontracting which occurred abruptly after the second
shift was discontinued. Absent such an explanation or
evidence that the amount of subcontracting in August
was merely an isolated instance, I infer that the drastic
a As described supra, this was also the reason advanced by Respond-
ent's counsel at the outset of the hearing and the ostensible reason given
by Foreman Schmidt to Gerard during Gerard's termination interview
9 In August Respondent subcontracted $26,428 worth of work; July-
$8,606; June--5,973; May--$8284; April--8,238; March-S7,592; Feb-
ruary-S4,137; January--28.043, December 1978--11,148; November
1978-$15,547. October 1978-S10.444; September 1978--3,237
increase in the subcontracting was caused by the discon-
tinuance of the second shift. It is for all of these reasons
that I am persuaded that Young's testimony that a lack
of work resulted in his decision to discontinue the second
shift was a fabrication.
The additional reasons advanced by Young to justify his
decision to discontinue the second shift do not withstand
scrutiny. (1) The fact that the employees employed on
the second shift lacked supervision for most of the shift
and there had been safety problems on that shift was ad-
mittedly a state of affairs which had existed ever since
the start of the second shift;t 0 (2) as I have found supra,
Young's testimony that the Company's drop in profits
played a part in his decision to discontinue the second
shift was a belated claim and was specifically repudiated
by Respondent's counsel at the outset of the hearing; (3)
Young's testimony that he needed to use the second-
shift employees to fill job vacancies on the first shift is
made suspect by his unexplained delay in filling the job
vacancy created by employee McConnell's termination
and his unexplained termination of employee Shephard,
which created a vacancy. McConnell, employed on the
first shift as a pressman, terminated his employment July
23 after giving Young 2 weeks' notice yet, for some un-
explained reason, Young did not fill this vacancy for 2
weeks and only after learning of Gerard's union activi-
ties. I And, in the case of Shephard, a first-shift prep de-
partment employee, Young needlessly created a vacancy
by abruptly terminating Shephard even though it is un-
disputed that, when Shephard told Young he intended to
quit his employment, Shephard had assured Young he
would remain in Respondent's employ until Young was
able to find a suitable replacement. Nonetheless, on
August 3 Young abruptly terminated Shephard and re-
placed him with Zeke Schmidt, an apprentice employed
on the second shift who Shephard's credible testimony
reveals was only barely qualified, if at all qualified, to
perform all of Shephard's duties.
Young's testimony that his decision to discontinue the
second shift was made prior to Gerard's union activity is pa-
tently false and constitutes further evidence that the decision
was unlawfully motivated. Young testified that he made
his decision to discontinue the second shift in the middle
of July, which was prior to Gerard's union activity.
When asked why the decision was not implemented until
August 3, Young at first evaded answering the question
and then, in response to the question, testified: "The de-
cision was made and held off on because there were
some people on vacation, and I had to wait until they
got back in order to make sure everything was covered.
We had a heavy vacation schedule during July and
August, at that time Young, however, was not able to
name a single employee whose vacation delayed the im-
Io I note that Young's assertion that there was no supervision for the
second shift is not entirely accurate inasmuch as even though Foreman
Schmidt left the premises early during that shift. Young remained until
the end of the shift Young's self-serving testimony that he had gotten
tired of working nights was not convincing. There is no evidence that
Young ever expressed this feeling to either Foreman Schmidt or an) of
the employees
'' As I have found infra. Young's explanation for the delay in imple-
menting his decision to discontinue the second shift was false
689
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plementation of the decision and the Company's payroll
records failed to substantiate his contention. Quite the
opposite, the Company's records revealed that not one
employee employed in the prep department on either the
first or second shift was on vacation during July, up
through the week ending August 3. Under the circum-
stances, I am persuaded that Young's testimony concern-
ing the reason for the supposed delay in implementing
the decision to discontinue the second shift was a fabri-
cation and further find, under the circumstances of this
case, that this constitutes additional evidence that the de-
cision itself was made only after Gerard's union activity
and was made in order to provide a pretext for Respond-
ent to terminate Gerard on account of his union activity.
In summation, an evaluation of the evidence presented
by the owner of Respondent, David Young, to justify
the elimination of the second shift reveals the following:
Young was not able to settle upon an explanation; there
was a significant conflict between Young and Respond-
ent's counsel; Young's principal reason was patently false
and the additional reasons do not withstand scrutiny;
Young's testimony that the decision was reached at a
time prior to Gerard's union activity was patently false.
These circumstances and the fact that when Young testi-
fied about the elimination of the second shift I received
the impression from Young's demeanor that he was not
an honest witness have persuaded me to reject Respond-
ent's contention that the second shift was eliminated for
legitimate business reasons. I recognize that my conclu-
sion that Young falsified his testimony is a harsh judg-
ment and that no fact finder is an infallible observer
when it comes to assessing the credibility of witnesses.
However, there are additional reasons besides the afore-
said circumstances and Young's unimpressive demeanor
for viewing Young's testimony as a fabrication. There
were only three portions of Young's testimony pertaining
to his motive for discontinuing the second shift which
could be tested for truthfulness by means of company
records: the alleged lack of work; the alleged drop in
profits; and the fact that supposedly vacationing employ-
ees caused a delay in implementing the decision. In the
case of the alleged lack of work and the alleged employ-
ees who were on vacation, the Company's records, as
described in detail supra, demonstrate that Young lied.
And in the case of the drop in profits Young's testimony
that this was one of the reasons for the elimination of the
second shift was made only belatedly and was repudiated
by Respondent's counsel. It is for all of these reasons
that I am convinced that Young's testimony concerning
what motivated him to discontinue the second shift is
completely unreliable and I reject it in its entirety.
Based upon the foregoing, I find that Respondent has
failed to rebut the General Counsel's prima facie showing
that the moving cause for the elimination of the second
shift was Respondent's desire to terminate Gerard be-
cause of his union activity,'2 and further find that this
a1 In view of this conclusion I have not considered whether assuming
the elimination of the second shift was economically motivated that Re-
spondent's selection of Gererd for layoff, rather than another employee,
was unlawfully motivated
failure reinforces the conclusion that but for his union
activity Gerard would not have been terminated. 13
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act by discriminatorily terminating the
employment of Leonard Gerard, I shall recommend that
Respondent offer to fully and immediately reinstate him
to his former job or, if that job no longer exists, to a sub-
stantially equivalent job. I shall also recommend that Re-
spondent make him whole for any loss of earnings he
may have suffered by reason of the discrimination
against him, by payment of a sum of money equal to that
which he would have earned from the date of his unlaw-
ful termination, less his net earnings, if any, during such
period, to be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950). Interest
on the backpay shall be computed as set forth in the
Board's decision in Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 14
The Respondent, East Wind Enterprises, San Francis-
co, California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating
against employees for supporting or engaging in activi-
ties on behalf of Graphic Arts International Union, Local
280, AFL-CIO, or any other labor organization.
(b) Suggesting to employees that they have been ter-
minated because of their union activity.
(c) Threatening employees that it would close its busi-
ness if the employees supported a union.
(d) 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:
(a) Offer Leonard Gerard full and immediate reinstate-
ment to his former position or, if that position no longer
' ' I reject Young's testimony that he was without knowledge of Ger-
ard's union activity The circumstances discussed previously which have
led to my concluding that the General Counsel has established a prima
facie case and that Respondent's defense was without merit, plus the
small size of the Respondent's facility, warrant the inference that Young
knew about Gerard's union activity
4 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
690
EAST WIND ENTERPRISES
exists, to a substantially equivalent position, with full se-
niority, privileges, and benefits and make him whole for
any losses he may have suffered because of the discrimi-
nation practiced against him, in accordance with the pro-
visions set forth in the section of this Decision entitled
"The Remedy."
(b) Post at its San Francisco, California, facility copies
of the attached notice marked "Appendix."'5 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
'5 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 Pur-
suant to a Judgement of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
691