FPC Advertising, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1135 (N.L.R.B. 1977)

FPC ADVERTISING, INC.
FPC Advertising, Inc. and Service Employees Interna-
tional Union, Local 32E, AFL-CIO. Case 3-CA-
6734-1, -2
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On May 10, 1977, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith and to adopt his
recommended Order, except as modified herein.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(4), (3), and (1) of the Act
by discriminatorily discharging Jeffrey Karasik on
August 6, 1976, Respondent excepts to the finding of
the violation, arguing that the discharge of Karasik
was motivated by valid economic considerations and
business judgment, not the dischargee's union activi-
ties. Contrary to the Administrative Law Judge, we
find, for the reasons stated below, that the General
Counsel has not shown by a preponderance of the
evidence that the selection of Karasik for discharge
was discriminatorily motivated, and thus we do not
adopt the Administrative Law Judge's findings and
conclusions in this regard.
Respondent is a small firm in Rockhill, New York,
which operates a commercial printing business and
an advertising agency in the same facility. In January
1976,1 the Union began an organizational campaign
among Respondent's Rockhill printing plant employ-
ees. After an extended organizational period, which
included representation hearings before the New
York State Labor Relations Board in April and the
National Labor Relations Board in July,2 the Union
won an election held on August 27. The Board
certified the representative status of the Union on
December 28, subsequent to final disposition of
challenged ballot and objections issues.
I Unless otherwise indicated, all dates herein refer to 1976.
The Union initially filed a petition with the New York State Labor
Relations Board Respondent thereafter requested an advisory opinion from
the National Labor Relations Board with respect to whether it would assert
231 NLRB No. 184
The printing plant employees, including alleged
discriminatees Matthew Hoey and Karasik and
Karasik's coworker, Robin Boyd, were actively
involved in the Union's campaign. The Respondent
was aware of the involvement of these individuals in
union activity and their support for collective-bar-
gaining representation. In addition, Respondent's
officials knew that Karasik had been the only
employee witness to testify at the Board hearing in
July.
In April, Respondent's coowners, Bernard Cohen
and James Jacobs, began operations at a newly
acquired printing business in Binghamton, New
York. Thereafter, Cohen and Jacobs decided to
move two of the larger offset duplicating machines
from Rockhill to Binghamton, in hopes that they
would be put to more efficient use in the new plant.
This prompted a reevaluation of personnel and
salary outlays at the Rockhill printing operation in
late June or early July. As a consequence of the
reevaluation, Cohen and Jacobs decided to lay off
some members of the work force. On July 23, Cohen
told alleged discriminatee Matthew Hoey that he was
being terminated. Two weeks later, on August 6,
Cohen made the same announcement to Karasik,
who had been working in Respondent's camera
department. Plant Manager Phil Hurwitz was also
discharged in the effort further to reduce salary
expenditures. Cohen testified that he was reluctant to
discharge either of the camera department employ-
ees, Karasik or his junior coworker, Robin Boyd. but
that one of them would have to be laid off because
there was not enough work for both men. Karasik
himself testified that since November 1975 there had
been numerous times when neither he nor Boyd had
work to do. Karasik was considered more highly
skilled than Boyd and he received $180 per week,
whereas Boyd received $138 per week. However,
both employees did the same work, and no replace-
ment was ever hired for Karasik.
The record reveals that Karasik had resigned twice
from his job at the printing plant, once in November
1975, and again in April 1976. The first resignation
prompted Cohen to hire Boyd to replace Karasik.
However, Karasik changed his mind and asked to
stay, and Cohen kept both men on the job in
anticipation of an increase in the workload. The
second time Karasik resigned, he demanded and
received a salary increase from $130 per week to $180
per week over a period of several months.
In his analysis of the evidence, the Administrative
Law Judge accepted as admitted the fact that
jurisdiction over the Respondent. After the Board advised that it would
assert jurisdiction (224 NLRB 1372 1976)). the l nion filed another petition
invoking that jurisdiction.
1135
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent transferred its offset machines for
legitimate business purposes. In light of this fact and
other circumstances noted in his Decision, he could
not conclude that the economic reevaluation of the
Rockhill printing department and the ensuing deci-
sion to lay off employees was illegally motivated by a
desire to ostracize union activists. We believe that the
Administrative Law Judge therefore correctly limited
himself to a consideration of the question:
"[A]ssuming that someone had to go, may the
termination of Hoey and Karasik be branded as
discriminatory selection?"
The Administrative Law Judge concluded that the
discharge of Matthew Hoey was not in violation of
the Act. since credited evidence revealed both that
Hoey had a continuing attitudinal problem and that
the transfer of the offset machines eliminated
Respondent's need for his skills.3 However, the
Administrative Law Judge did conclude that Re-
spondent's selection of Karasik for layoff was
discriminatorily motivated in violation of the Act.
This conclusion is critically dependent upon his
interpretation of Cohen's testimony that, after
considering the serious necessity to lighten the
Company's financial burdens by reducing the work
force, he finally decided to lay off Karasik rather
than Boyd because it would save the Company more
money. The Administrative Law Judge reasoned that
if this had been Cohen's thought process-if he was
not motivated by Karasik's union activity-he would
surely have offered Karasik a compromise salary,
especially since he was more skilled than Boyd. Such
an alternative, according to the Administrative Law
Judge, "would have irresistibly presented itself to an
employer considering the matter in good faith." He
concluded that the "deliberative process" offered at
the hearing is "contradictory on its face" and "so
inherently incredible that it is appropriate to infer
that the true motive" was an unlawful and discrimi-
natory one. We disagree with this conclusion.
By discrediting Cohen's testimony regarding the
motives for Karasik's discharge and rejecting as
pretextual Respondent's defense of economic justifi-
cation, the Administrative Law Judge improperly
engaged in an analysis that was not based on
objective consideration of record evidence and
witness demeanor, but rather on his own subjective
impression of what he would have done in good faith
had he been in Cohen's position. Board law does not
direct or permit the trier of fact to substitute his
business judgment, which is not a fact of record, for
that of the Respondent. An employer's business
conduct is not to be judged by any standard other
than that which it has set for itself. The Administra-
tive Law Judge in this proceeding should therefore
have determined whether he believed the Respon-
dent would have acted for the reasons and in the
manner alleged on the basis of all evidence in the
record concerning Respondent's past practice and
the behavior of its agents. He did not do so.
We find that the evidence does not show that
Respondent owner Cohen selected Karasik for
discharge because of his union activity and participa-
tion at a Board hearing. The record clearly supports
the contrary conclusion that Cohen, pursuant to
implementation of an admittedly valid economic
reorganization, discharged Karasik in a legitimate
attempt both to reduce Respondent's payroll to the
fullest extent possible and to eliminate the undis-
puted problem of underemployment in the Respon-
dent's camera department. We believe Cohen credi-
bly testified that he perceived the available business
alternatives under the circumstances extant as a
choice between discharging Karasik or Boyd. After a
period of indecision, he discharged the employee
whose absence would effectuate the most savings for
the Company.
Assuming, arguendo, the relevance of the Adminis-
trative Law Judge's business judgment to this
proceeding, we do not similarly view as irresistible
the alternative action which he believed Cohen
should have taken had he been acting in good faith.
The fact that Karasik had recently threatened to
resign if he was not given a substantial pay increase
accords with the unambiguous meaning of Cohen's
testimony that he had not considered offering
Karasik a reduced salary to be a feasible alternative.
Furthermore, such an alternative, even if accepted by
Karasik, would not have solved Respondent's prob-
lem of having two men on the payroll when there was
not enough work for both to perform. Finally, since
both Boyd and Karasik were union activists but the
latter possessed greater work skills than the former,
the contention that a desire to retaliate against union
activity motivated Cohen to disregard the "irresisti-
ble" alternative and discharge Karasik is not persua-
sive.
Accordingly, we conclude that Respondent's dis-
charge of Jeffrey Karasik did not violate Section
8(a)(4), (3), and (1) of the Act. The Administrative
Law Judge's Decision is hereby reversed in this
respect, and the relevant complaint allegations are
dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
:' The General Counsel did not except to this finding.
1136
FPC ADVERTISING, INC.
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that the Respon-
dent, FPC Advertising, Inc., Rockhill, New York, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Delete paragraph l(a) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the following for the paragraph now
lettered as l(b):
"(b) In any' like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid and
protection, or to refrain from any and all such
activities."
3. Delete paragraphs 2(a) and (b) and reletter the
subsequent paragraphs accordingly.
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT threaten employees with reprisal
for exercising their statutory rights and WE WILL
Nor promise them benefits in order to induce
them to refrain from exercising their statutory
rights.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid and protection, or to refrain
from any and all such activities.
FPC ADVERTISING, INC.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge: Pursuant to
charges duly served and a complaint duly issued, these
cases were heard at Monticello, New York, on January 12
and 13, 1977. Briefs were received from the General
Counsel and the Respondent on or about March 7, 1977.
On the basis of my impression of the witnesses and after
careful analysis of the record' and the briefs, I make the
following:
FINDINGS
I. JURISDICTION; STATUS OF THE LABOR
ORGANIZATION
Respondent, a New York corporation, is engaged in the
business of operating an advertising agency and a printing
company in Rockhill, New York. During the year preced-
ing the issuance of the complaint, Respondent received
gross revenues in excess of $500,000 and performed
printing services in excess of $50,000 for International
Business Machines Corporation, over which the Board has
jurisdiction. As the answer concedes, Respondent is, and
has been at all times material, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Respondent admits, and I find, that Service Employees
International Union, Local 32E, AFL-CIO (hereafter the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ISSUES PRESENTED
The complaint alleges that Respondent terminated
Matthew Hoey, Jr., on July 23, 1976, and refused to
reinstate him thereafter, because he assisted and supported
the Union, and terminated Jeffrey Karasik on August 6,
1976, and refused to reinstate him thereafter, for the
foregoing reason and, in addition, because he gave
testimony in a Board proceeding. The original complaint
alleged that Respondent also threatened and promised
benefits to employees in April and May 1976, in violation
of Section 8(a)(1); at the end of General Counsel's case, he
successfully moved to amend the complaint to further
allege that the introduction of work rules on April 29, the
installation of a timeclock on June 13 and the issuance of
rules pertaining thereto on June 21, and the institution on
i Errors in the transcript have been noted and corrected.
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 2 of a new policy regarding unpaid absence, also
constituted 8(a)(1) violations.
Ill. THE RELEVANT FACTS
Respondent is a small firm in Rockhill, New York, which
operates two businesses in a single facility: an advertising
agency and a commercial printing activity. Its owners are
Bernard Cohen and James Jacobs. In 1976, Cohen and
Jacobs purchased a printing plant in Binghamton, which
they named Cojac Printing Company.
We are primarily concerned here with the Rockhill
printing business, which consists principally of printing
and binding operations. The largest offset printing press
owned by Respondent during the material times was called
a "Chief 22"; a smaller model was the "Chief 15."
Respondent also operated four multilith duplicators of the
same size as the Chief 15. In 1976, printing was done by
three pressmen-Matthew Hoey, Jr., Richard Olmstead,
and Harold Jackman-and a linotype operator, Art Leroy.
Hoey was the senior pressman, having commenced
employment in January 1971; Olmstead started in June
1972 and Jackman in 1973. Jeffrey Karasik and Robin
Boyd performed related functions in the camera depart-
ment, consisting of camera work, stripping, and platemak-
ing, which were preparatory to the work of the printing
pressmen. Karasik began working for Respondent in
November 1974 and Boyd a year later (Boyd had
previously worked for Respondent for a few months in
1974.)
On January 23, 1976, the Union filed a representation
petition covering Respondent's printing department with
the New York State Labor Relations Board. At a hearing
on April 1, and by motion on April 26, Respondent asked
the New York Board to withhold assertion of jurisdiction
pending submission to the National Labor Relations Board
of a request for an advisory opinion as to whether the latter
would assert jurisdiction over Respondent.
On June 21, the National Labor Relations Board advised
that it would assert jurisdiction over Respondent. Pursuant
to a petition filed by the Union with that Board, a hearing
was held on July 13. An August 27 election was at first
inconclusive, due both to the casting of determinative
challenged ballots and to the Regional Director's refusal to
consider objections filed by Respondent on the ground of
untimeliness. On December 28, the Regional Director,
after some legal skirmishing, certified the Union; at the
time of the hearing, Respondent had requested the Board
to review the Regional Director's decision.
Karasik, Hoey, and six other employees had agreed in
January to attempt to organize the shop. Hoey and
Olmstead attended and testified at the April I hearing
before the state board in New York City.
Around late April, Cohen asked Hoey to perform a task
(moving a skid from the top of another skid) which was the
Cohen testified that Hoey had denied placing the skid. Hoey at first
testified, according to the transcript, "[Cohen I] did ask me iT I'd put that up
there and I said I didn't." Shortly thereafter, he admitted that he had in fact
placed the skid and, when confronted with his prior testimony, stated, "I
never told Mr. Cohen that I wasn't the one that put it there." He stated that
he had so intended to testify in the first place, i.e., that he had earlier said
"did" rather than "didn't." Although General Counsel has filed a motion to
kind of work normally done by another employee. Hoey
accused Cohen of "singling me out," which Cohen denied.
Hoey admitted that, as Cohen testified, Cohen had
expressed a belief that Hoey was the one who had
unnecessarily placed the skid atop the others.2
On or about April 29, Production Manager Phillip
Hurwitz handed out a set of work rules to employees. Hoey
testified that he believed that two or three of the employees
were not given the rules.3 There had previously been no
written rules. An explanatory covering letter signed by
Hurwitz stated, in part, that it was better for men who work
together "to know where they stand" "so that we can make
this into a successful, effective team," and expressed the
belief that "written rules ... would simplify matters for all
of us."
According to Cohen, the rules had been suggested by
Hurwitz, who had been hired in early April to replace
Harry Madnick, the former production manager. After
being at the plant for a few weeks, Hurwitz had found the
place a "mess" and had concluded that the rules, which he
drafted, were desirable.
Karasik testified that, on the day the rules were
distributed, he confronted Cohen and asked why they were
needed and why Boyd had not been given a copy. Cohen
replied that he was tired of the lack of decorum in the
printing area-"noises that were being made, things like
that, and that he wanted more-a more orderly place run
in the back and this is why he had hired Phil...." In
response to Karasik's assertion that Hurwitz' appearance
had suspiciously coincided with the Union's, Cohen said he
could prove he was looking for a replacement for former
Production Manager Madnick before the Union arrived.
In the course of conversation, Karasik asked why Cohen
was fighting the Union. Cohen said that "any employer
would rather not have the union," and expressed his
dismay that employees he had "always taken care of' had
fostered a union without coming to him first to work it out.
Cohen told Karasik that in the past he had, when
necessary, borrowed money rather than lay off employees,
and that "if the union came in that he might not be able to
do that in the future." Cohen went on to say that he had
nothing against the Union, that his father had been a union
supporter, and that his wife, a teacher, was represented by
a union. At some point, however, Cohen said that "those
employees who sided with me would find it to their
advantage and that those who don't will find it to their
disadvantage." On cross, Karasik conceded that, in talking
to Cohen about one of the rules which prohibited "various
intentionally caused loud sounds," Cohen had objected to
an employee prank of yelling "Moo," which Karasik
agreed the employees were doing (and had been doing
since he had begun employment), and further agreed that it
was embarrassing when customers were present.
Cohen testified that Hurwitz was present during the first
part of this discussion concerning the work rules, but he
correct the transcript, he has not requested that the word "didn't" be
changed to "did."
3 Hoey stated that he assumed this was done because Cohen was at the
time contending that the excluded employees were not appropriately part of
the bargaining unit. In fact, one of the three was eventually excluded from
the unit, and the Company, apparently unsuccessfully, contended that one
of the remaining two should have been excluded.
1138
FPC ADVERTISING, INC.
asked him to leave for its remainder, so as to be able to talk
to Karasik "without a third party present." He says that he
used the words "advantage" and "disadvantage" in opining
that he saw "no advantage to FPC Advertising" in having a
union, and that the union "could possibly make us
noncompetitive by increasing our labor costs." He went on
to say that the wages paid by Respondent were competitive
and "if they were driven any higher, we could be made less
competitive, which would be, of course, a disadvantage,
not only to him personally but to everybody there." I found
Karasik to be a more reliable witness than Cohen, and I
credit his version of the encounter.
Richard Olmstead testified that around the end of April,
in the course of requesting a raise, he asked Cohen why he
was fighting the Union. A discussion followed in which
Cohen said that he had been unaware of employee
problems or grievances, that "if you have any grievances or
problems that his door was always open and that I could
form a committee of the guys in the back and what not and
we could come in and work the matters out without the
union intervening." When asked how Olmstead could be
expected to rely on that, Cohen offered to "set down any
type of papers or legal things saying-holding him to his
promises then." Cohen further "reminded me of the last
winter that-when it was very slow, he kept the production
on during the winter. And, he said that, if the union came
in he definitely wouldn't be able to hold them anymore if it
got slow." 4
Testifying about the April conversation, Cohen said, "I
believe that I may have expressed disappointment at the-
instead of unionizing, they could have come to me if they
had some kind of grievance which nobody had approached
me. And, to the best of my belief, I did not indicate setting
up a grievance committee at that time. And, I believe that
it-if it was discussed at all, I said it was kind of academic
now that the petition had been filed. And, we were all sort
of frozen into a position where that was out of the
question." Cohen's testimony did not address Olmstead's
claim that Cohen had referred to the no-layoff policy of the
prior winter or the unlikelihood of maintaining such a
policy if the Union came in. I considered Olmstead to be a
more credible witness than Cohen, and I credit Olmstead's
version.
In the work rules distributed on April 29, mention was
made that, to avoid arguments over tardiness, and at the
suggestion of some employees, a timeclock system would
be adopted. About June 15, a timeclock was installed.
Thereafter, on June 21, a notice explaining its use was
distributed to the affected employees. Cohen testified that
the clock was installed because employees were arriving
late and leaving early. Hoey conceded that, sometime in
1976, in a discussion between Cohen and some employees
in the lounge, employee Leroy suggested to Cohen that a
timeclock be installed. Cohen sought out Hoey's views, and
Hoey expressed indifference. Karasik testified that he had
indicated agreement to "the idea of a timeclock."
Cohen testified that the June 21 rules, which specified the
employees who were to use the timeclock and described
Olmstead also testified that, around the beginning of August, having
had a brief discussion with Jacobs earlier in the day about some campaign
literature posted hs Respondent. Jacobs said to him as he was punching out,
how it was to be used, were issued after discussion with
Hurwitz because there seemed to be a deliberate prankish-
ness by Hoey, and perhaps a misunderstanding by other
employees, with regard to punching in and out. Hoey's
card for the first week the timeclock was installed shows
that he punched the clock II times each day. Another
employee, after punching properly for 3 days, registered 10
punches on the fourth day; another punched 5, 6, and 7
times for the last 3 days of the week. The first paragraph of
the June 21 notice contains an admonition against playing
"pranks" or "practical jokes" with the clock.
On July 2, Respondent posted a notice, signed by Cohen
and Jacobs, which stated, "Time off that is not scheduled
at least 48 hours in advance may be deducted from
vacation time only at the discretion of management."
According to Karasik, the prior policy had been to permit
employees who had no accumulated sick leave to deduct
days off from vacation time, as the notice also implicitly
permitted; he knew of no previous specific time limitations,
"[b]ut they always asked that you let them know ahead of
time if there was ever any-" [sic ].
Karasik gave testimony at the Board hearing on July 13
(the only employee to do so), 5 and found the time (5 hours)
deducted from his next paycheck. He testified that he had
notified Hurwitz of his expected absence more than 48
hours prior thereto. When he asked Cohen about the
matter, and pointed out that he had complied with the rule,
Cohen said, "Well, that was at my discretion and this was
my discretion." Karasik also asked Jacobs about the
matter; Jacobs said he would look into it, but never again
broached the subject with Karasik.
Cohen testified that, prior to the Board hearing in July,
he had heard a rumor that "most of the printing unit"
would be attending the hearing, and he issued the notice set
out above. All six employees who attended the hearing
were docked for the actual number of hours of absence
from work; only Karasik complained. Cohen agreed that
Karasik had asked why he was not being paid; he further
testified that he had claimed lack of notification, and that
Karasik had asserted that Hurwitz had been notified
sufficiently in advance. Unlike Karasik, Cohen testified
that he told Karasik that he "had no knowledge" of the
notice to Hurwitz. Cohen also testified that he said he was
"using the management discretion of not paying because of
lack of notification," and that in a "subsequent conversa-
tion" with Hurwitz, "I believe Phil told me that he was not
notified."
In the summer of 1976, the only operator of the Chief 22
and Chief 15 presses was Hoey, who also was capable of
operating the other presses. Hoey had shown his support
for the Union by testifying at the April hearing and by
wearing a union T-shirt and exhibiting union buttons,
bumper stickers, etc. On July 23, Cohen called Hoey in. He
told Hoey that the Chief 22 and the Chief 15 were being
sent to the Cojac Company in Binghamton, noting that the
Chief 22 would be more useful there; that, with the removal
of the machines, Hoey's services were no longer needed
and he was being terminated. Cohen gave Hoe), his weekly
apparently believing they had agreed to continue the conversation. "You
know the company could never survive the economic burden of a union."
I Although a number of other employees attended.
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
salary and also offered him a check for 2 weeks' severance
pay, which Hoey declined. Hoey testified that Cohen said
he had always been an "excellent worker." Hoey then left
the office and told Olmstead that he had been fired, which
incident shortly thereafter apparently provoked an argu-
ment between Cohen and three of the employees in which
Leroy and Karasik called Cohen a liar.
Thereafter, Hoey received a letter from Cohen dated July
23 which read:
Matt:
In the tension of our last meeting, I neglected to tell
you the fact that we'd be happy to have you work as a
pressman on those presses (Chief 15 and 22) at
Binghamton.
Unfortunately, the Plant Manager at Binghamton
has informed me that they do not need additional help
to man those presses at this time.
I would suggest, however, that you file an employ-
ment application there, as a pressman, and you will be
given priority consideration.
Hoey never applied at the Binghamton plant. Hoey
testified that in August he saw an ad placed by Respondent
in a local newspaper seeking an "experienced multilith
operator." While the ad did not name Respondent, Hoey
recognized the number given as Respondent's, and he
knew that Harold Jackman was leaving and that Cohen
was looking for another pressman. He posted a letter to
Respondent declaring his availability, but received no
reply. Cohen conceded that he received Hoey's application,
but did not bother to reply to it.
Jeffrey Karasik, who began employment in November
1974, was a counterman, stripper, plate maker, and
photographer. He was senior to, and, the record shows,
clearly more skilled than, Robin Boyd, his only other
colleague in the camera department. He had manifested his
union sympathies by testifying at the July 13 hearing by
wearing union T-shirts and buttons and by affixing union
bumper stickers in the plant and on his car.
Karasik testified that, on August 6, Jacobs called him
into the office and said that because they no longer had the
Chief 22 and because "things were slow," they no longer
needed someone of Karasik's skills. He was given I week's
severance pay.
Cohen testified that, in the past, Respondent had, due to
lack of equipment, been forced to broker out much of its
work to other companies. Such a plant in Binghamton,
Hall Printing Company, closed down in 1975, and
Respondent concluded that it would be worthwhile to take
over that business and its more sophisticated equipment.
Respondent began negotiating for the purchase of Hall in
December 1975, and commenced operations there in April
1976 under the trade name of Cojac Printing. In hiring for
the new operation, it sought out the former Hall Printing
employees, who had been represented by a graphic arts
union, and extended recognition to that union.
Around June or July, according to Cohen, it became
apparent that the most economically sensible use of the
" Hoey acknowledged the substance of this call and conceded that he
might have said something by way of apology. Hoey also conceded that, in
Chief 22 and 15 presses would be at the Binghamton plant,
and that the work at Rockhill should be restricted to small
press items. With concomitantly less work being performed
at Rockhill, and in an effort to reduce a labor cost ratio
which was "out of whack," Respondent decided to release
not only Hoey and Karasik, but also Manager Hurwitz,
whose skills were no longer needed to run a shop with only
simple presses. Jacobs took over the duties of production
manager when Hurwitz departed on August 6, which was
also the day of Karasik's termination.
Cohen testified that Hoey had been an excellent worker
until 1975, when his attitude and the quality of his work
deteriorated. He became "less cooperative" and difficult
about taking instructions. In the summer of 1975, during
the course of a phone conversation in which he asked
Cohen for assistance in finding an attorney to represent
him in a divorce proceeding, Hoey apologized for having
been difficult, attributing his attitude to his personal
problems. 6
By September 1975, Hoey had shown no improvement.
Accordingly, Cohen and Jacobs decided to replace him.
They placed ads in four or five area newspapers. The ad in
evidence, from the September edition of the Kingston
Daily Freeman, reads:
OFFSET PRESSMAN
Must be experienced on Chief 22 & 1OX 15 duplicators.
Permanent job, good salary, fringe benefits. All details
first letter. Write Box 513, Daily Freeman.
Cohen explained that the failure to mention the Chief 15
press as one of the machines to be operated was an attempt
to disguise the fact that Respondent was the advertiser.
The placement of this ad was apparently unknown to
Hoey. Cohen testified that no suitable employee replied to
the ad for a pressman to replace Hoey, and that he made
no subsequent effort to find a replacement for a combina-
tion of reasons: for one, Respondent began negotiating for
the purchase of the Binghamton plant around December 1,
and for another, the union demand for recognition in
January had a "sort of freezing" effect.
Cohen testified that he chose Hoey for termination
because the departure of the Chief 22 rendered useless his
unique skill on that machine, and also because, for "quite a
while," his attitude had not been "conducive to the best
interests of production in the shop." He cited the objective
proof of the September 1975 ad. He referred to the incident
with the skid in April, which he considered spiteful and
dangerous. He mentioned the fact that Hoey had punched
his timecard an unnecessary number of times when the
system was first installed, which had prompted Cohen to
instruct Hurwitz to admonish Hoey. He testified that he
did not consider suggesting that Hoey work for less money
because "[q]uite frankly, I didn't want him to work at FPC
and I had felt that way for a long time." This also
explained his failure to respond to Hoey's reply to the ad
for a replacement for Jackman.
Cohen further testified that, also in September 1975, he
was dissatisfied with the "lack of common ordinary
1975, comments had been made to him about the quality of his work and his
attitude.
1140
FPC ADVERTISING, INC.
discipline" in the shop, concluded that his production
foreman, Harry Madnick, was unable to control the
employees, and accordingly advertised in the New York
Times for a new printing production manager.7 No
satisfactory applicant was found. In April 1976, however,
Phil Hurwitz, an area resident, was hired for the job.
Cohen testified that the reason for keeping Karasik on
for 2 weeks after Hoey's departure was that he was "sort of
making the decision whether to let Jeff go or Robin [Boyd].
And, I guess you'd call it a coward's delay. Jeff had just
bought a home and had a baby. I guess money won." The
latter remark referred to the fact that Karasik earned more
than Boyd ($180 as compared to $130) and was "slated to
get an annual increase of twenty dollars a week," pursuant
to an arrangement previously made and testified to by
Karasik. The possibility of offering Karasik the opportuni-
ty to stay on at less money, and terminating Boyd, was not
"even consider[ed]"; just prior to this testimony, however,
Cohen said, "I, frankly, didn't feel he would accept [a
decrease in wages]."
IV. CONCLUDING FINDINGS
A. The Discharges of Hoey and Karasik
Cohen's explanation of the underlying reasons which
resulted in the termination of Hoey and Karasik is dual in
nature. He testified that, after Respondent's owners
purchased the larger Binghamton plant, it became obvious,
in June or July, that it "just wasn't economically feasible
for us to run the [Chief] 22 at our place. And it became
apparent to me that it would be the best type of operation
for economics to have everything above 10 by 15 work in
size at Binghamton where there were the-not only the
facilities but the people and the talent." The Chief 15 was
moved to Binghamton "because we thought that it would
fulfill a slot in the press range at Cojac" because "Cojac too
had small orders to fulfill and the [10 x 15] duplicating
came in very, very handy for them." A decision was thus
made that Respondent "should be restricting itself to the
accommodation work8 plus its fast print that could be
done on multis." 9
At or about the same time, in June and early July, it
became apparent to Cohen that the operation of the
printing department was, "at that point, extremely unprofi-
table." In making his determination that Respondent was
"beginning to run extremely high in salaries for the amount
of work being done in the plant," Cohen took into account
the rule of thumb that labor costs should amount to one
third, and noted that Respondent's labor costs annualized
at $100,000 as compared to the annual sales for 1976 of a
net of less than $200,000. He concluded that "without the
22 and running only multi size presses for either paper
plates or metal plates, we were able to release three people,
Matt, Jeff and Phil Hurwitz, the then production manag-
er," thus effecting a saving of $35,000 a year. It was
concluded that with the removal of the Chief 22 "and with
the operation being more standardized to basically a single
size press," the skill of Production Manager Hurwitz was
no longer required and Jacobs could take over for him.
7 A copy of the ad is in evidence.
Small printing jobs. such as business cards, letterheads, and envelopes.
Ior the clients of Respondent's advertising agency.
The reappraisal in June or July, resulting in the
termination of the two employees and Hurwitz, is rather
suspicious. In the past, Respondent had apparently been
lenient in keeping its employees on even though business
was slow. Thus, Olmstead and Karasik credibly testified
that Cohen had spoken to them of having borrowed money
in the winter of 1975-76 in order to avoid laying off
employees. The record shows that Karasik had given notice
in November 1975 and then, after Cohen hired Boyd to
replace him, had changed his mind and asked to retain
employment. Cohen agreed to take Karasik back, even
though he had called Jacobs a "moron" in notifying him
that he was quitting, and indicated that he would retain
Boyd as well because he "anticipated a greater flow of
work coming in. Because at the time there really wasn't
enough work for two people, but there were [sic] certainly
more than enough work for one person." Moreover, as
Respondent brought out on cross-examination of Karasik,
that condition continued from November 1975 into the
summer of 1976, becoming "very slow" even before the
transfer of the Chief 22.
This relative generosity compares unfavorably with the
hardnosed decision in 1976 to discharge, for economic
reasons, two of the principal union supporters, both of
whom had testified against Respondent in the state and
National Board proceedings. There is a circumstance here,
however, which injects a most relevant constraint into the
decisional process; that is the General Counsel's conces-
sion at hearing, under my questioning, that he was not
relying on the theory that the two machines were moved
"in an attempt and for the purpose of eliminating work so
that employees could be laid off or discharged from the
[Rockhill] facility." What evidence there is on this subject
suggests the contrary but, undoubtedly in reliance on
General Counsel's representation, the matter was not fully
developed by Respondent. This disavowal by General
Counsel requires me to accept as a premise that the
removal of the two machines was done for a legitimate
business purpose.
Given that premise, it is obvious that the disappearance
of the Chief 22 reduced the amount of work available to
Hoey. He testified that it had been in operation 30 percent
of the time and he was its only operator. There is nothing
in the record to indicate, unlike November 1975, when
both Karasik and Boyd were kept on the payroll, that
Respondent "anticipated a greater flow of work coming
in." Karasik testified that, between November 1975 and
July 1976, most of the time there had not been enough
work for both him and Boyd, and that by July "there were
weeks that there was just hardly anything to do." No
replacements were hired for Hoey and Karasik, although
Cohen testified that some $600 or $700 had been expended
for part-time pressmen between August 1976 and January
1977 to handle the rush IBM fast-print orders. Cohen
testified that, between July I and August 31, Karasik and
Boyd, the only camera department employees, actually
worked a combined total of only some 76 man-hours in 68
man-days.
9 I.e., on the remaining 10 x 15 duplicators.
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is thus difficult, taking into account the General
Counsel's concession that the removal of the machines was
legitimate and the other circumstances related above, to
conclude that the decision to take a fresh look at the
economics of the printing department in June or July was a
radical and unreasonable departure from past practice
which was inspired by a determination to retaliate against
the employees. That appears to leave the question in the
form suggested by General Counsel's presentation of his
case: assuming that someone had to go, may the termina-
tion of Hoey and Karasik be branded as discriminatory
selection?
After considerable thought, I am not persuaded that the
evidence suffices to support that contention as to Hoey.
The record shows that Hoey, although an excellent
employee in his first few years with Respondent, had
experienced a personal crisis in 1975 which he admitted,
after some prodding, might have led him in that summer to
say to Cohen that "if he felt this was affecting my
performance there, that I would be sorry about it." Hoey
also conceded that management had made comments to
him in 1975 about the quality of his work and his attitude.
That his performance continued to be unsatisfactory is
evidenced by the advertisement placed by Respondent in
several local area newspapers in September 1975, prior to
the union activity, seeking a pressman with the particular
skill-the ability to operate a Chief 22 press-which only
Hoey, of the three pressmen, possessed. That it was
Respondent's intention, as declared by Cohen, to replace
Hoey, and not just to seek an additional pressman, is
corroborated by the fact that business was slow at the time
and that, according to Hoey, he had been operating the
Chief 22 only 30 percent of the time.
No satisfactory applicant for the job appeared, however,
and, by December, Respondent had begun negotiations for
the Binghamton plant, which presumably left matters fluid
at Rockhill. Furthermore, as Cohen candidly noted, the
union activity in January had a certain "freezing" effect on
personnel actions.10
The claim that there was a general lack of order in the
plant, recognized by management, prior to the inception of
union activity, is given substance by the advertisement
placed by Respondent, also in September 1975, for a new
production manager. Karasik testified that the then
manager, Harry Madnick, ran a disorganized shop, and
there is every reason to believe that firmer control over the
employees was, as Cohen testified, desirable.
That Hoey had contributed to this disorder prior to
September 1975 is witnessed by Respondent's effort to
replace this previously well-regarded employee in that
month. And I am inclined to think that, after the union
"' Hoey was a witness for the Union at the state labor board heanng in
April.
I" Hoey's testimony as to whether he lied to Cohen about placing the
skid, and his failure to mention this exchange as to culpability in his direct
examination, make me question his veracity here.
1Z Hoey testified that he was merely following Hurwitz' order to "block"
off the pages already worked. However, Olmstead, in testifying about the
fact that he had been suspended for a few days for refusing to use the sheets,
admitted on cross-examination that he had asked Cohen why only he, and
not Hoe), was being suspended, and that Cohen had replied that "spiteful as
what Matt had done, he had at least filled it out." The fact that Olmstead
activity commenced, there was no noticeable improvement
in Hoey's attitude.
Cohen's testimony that he believed that Hoey placed a
skid, mischievously and dangerously, on top of another one
in late April, was given in a particularly emphatic and
credible manner," although I did not find Cohen to be
uniformly convincing, and I could understand that he
would be annoyed by such conduct. After Hurwitz came to
the plant in April, he revitalized the use of a worksheet for
the IBM jobs which had been a work procedure for the
pressman for several years, but had only been conscien-
tiously followed by employee Jackman. Olmstead and
Hoey resisted using the sheets, Olmstead by simply
refusing to use them, and Hoey by marking them in what
appears to be a stubborn effort to obscure them.' 2 When
the timeclock was installed in June, Hoey punched it
excessively during the first week, 10 or 11 times a day as
compared to the required 4 times, necessitating the
issuance of the June 21 instructions regarding use of the
clock. While Hoey testified that it was his understanding
that the employees were to punch the clock every time the
bell rang (signaling the beginning and end of breaks,
washup time, etc.) and that "everyone" else did the same,
the timecards of the other employees in evidence for the
same week show quite the contrary; while there were some
aberrations, mostly due to a mechanical fault causing the
machine to register one ring more than one time, the other
employees plainly were not deliberately punching in and
out every time the bell rang. Employee Olmstead testified
that the employees had been told to punch the clock only
four times a day.
It thus appears to me that Hoey, whose performance
prior to the union activity had deteriorated sufficiently to
lead Respondent to advertise for a replacement for him,
did not materially improve thereafter. Cohen testified that
he selected Hoey for discharge both because his skill on the
Chief 22 was no longer needed and because of his
continued attitudinal problems. Given the clear existence
of these problems prior to the organizational effort which,
had an eligible replacement been available, might well have
led to Hoey's discharge in September 1975; given my
conclusion that Hoey continued to be a behavioral
problem thereafter; and given the fact that the transfer of
the Chief 22, a decision which is immune from attack here,
eliminated 30 percent of Hoey's work and, as well,
eliminated the need for his particular skill on that press,
Cohen's explanation as to why Hoey was the natural
candidate for termination is certainly reasonable.
I have, of course, considered the letter written by Cohen
to Hoey on the date of the discharge, saying he would be
"happy to have you work as a pressman on those presses
(Chief 15 and 22) at Binghamton," and suggesting that he
would put such a question to Cohen, and the reply. both clearly indicate
that, at the time, the two considered that Hoey had not handled the
worksheets properly.
The fact that Cohen retained these April worksheets, even though he
admitted that they were normally discarded, raises a suspicion that he was
attempting to build a case against Hoey. On the other hand, Cohen is no
dullard; in an open situation like this, where Hoey was a declared union
supporter, Cohen might well have foreseen the possibility of future
disciplinary action against Hoey, should his behavior continue as it had, and
it is not irrational for an employer in such a situation to preserve evidence of
misconduct.
1142
FPC ADVERTISING, INC.
file an application there. Cohen testified that he wrote the
letter because the Cojac plant "is unionized. There is a very
good attitude. And, the supervision up there is good and-
and with firm supervision, knowledgeable supervision, he
might be a very good employee." In my opinion, Cohen
would not in the least bit have been "happy" to have Hoey
work at Binghamton. I have little doubt that Cohen
harbored some animosity against Hoey for his known
support for the Union. I infer that he wrote this letter
because of the very notoriousness of that support, and out
of an excess of caution, knowing that a spotlight might well
fall on this discharge. Nonetheless, despite Cohen's
probable dissembling here, I cannot conclude, considering
the background and the constraints which are operative in
this case, that the choice of Hoey for discharge was
effectively motivated by illicit considerations. On the facts
and the limitation of General Counsel's legal theory, it
seems to me that the principle underlying the Board's
statement of Law in Klate Holt Company, 161 NLRB 1606,
1612 (1966), squarely applies here:
The mere fact that an employer may desire to terminate
an employee because he engages in unwelcome con-
certed activities does not, of itself, establish the
unlawfulness of a subsequent discharge. If an employee
provides an employer with a sufficient cause for his
dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer
discharges him for that reason, the circumstance that
the employer welcomed the opportunity to discharge
does not make it discriminatory and therefore unlawful.
Accord: Golden Nugget, Inc., 215 NLRB 50, 52 (1974).
I reach a contrary conclusion as to the discharge of
Karasik, however. Unlike Hoey, Respondent had not
previously been dissatisfied with Karasik and had not been
seeking to replace him; indeed, when Karasik had tendered
his resignation in November 1975, calling Jacobs a
"moron," he had nonetheless been allowed to withdraw the
resignation, despite Boyd's having been hired to replace
him, and despite the fact that there was not enough work
for two prep men at the time. That Karasik was clearly
better at his trade than Boyd, and that Cohen and Jacobs
so recognized, is an inescapable conclusion from the
record. In testifying about Respondent's decision to retain
Boyd and fire Karasik, Cohen said that it was "strictly
money"-Karasik earned $180, and was due to be raised to
$200, and Boyd made only $130.
It seems highly unlikely that the difference between
Karasik's wage and Boyd's wage would have been such a
critical determinant, given the difference in skills. As
noted, in the past Respondent had exhibited a certain
liberality in spending money for employees, retaining both
Boyd and Karasik, and borrowing rather than laying
employees off; in the context of a decision already made to
terminate both Hoey and Hurwitz, thus effecting a saving
of more than $23,000 in wages a year, one might think that
the $50 difference between the wages of Karasik and Boyd
could be absorbed in deference to Karasik's greater skill.
This seems especially true in light of the fact that Boyd was
given a $20 raise in November, which presumably would
have been foreseen in August.
What is especially difficult to accept, however, is Cohen's
testimony about the decisionmaking process with regard to
Karasik and Boyd. Cohen said that, while he concluded in
July that Hoey and Hurwitz should go, it took 2 weeks of
deliberation to decide about Karasik. "[A] coward's
delay," he called it, due to the facts that "Jeff had just
bought a home and had a baby."'3 According to Cohen,
the process was a painful and painstaking one, which lasted
for 2 weeks:
Well, basically, the time spent was not great. It was
basically a question of sitting down, partially discussing
it with my partner. During the day, that sort of
discussion was impossible. We would have to wait until
the end of the day, when the activity and phones and so
on stop.
* *
In addition to that, it is the kind of a decision that
you-I guess you feel badly about it. But economics
really decide it. I guess it was just a natural distaste for
doing it.
Despite all this agonizing, however, Cohen eventually
testified that he never considered asking Karasik to take a
pay cut in order to stay on, a resolution which would seem
such an obvious answer to Cohen's distress. I use the word
"eventually" advisedly, because Cohen at first indicated
that he had entertained making such a proposition:
Q. Would you have offered him less money if the
matter had been raised?
A. No, I don't believe we would have.
Q. Why?
A. Well, we had a man there who could-without
the 22 and the-basically, without the 22 and the 15,
who could adequately perform the work and--I,
frankly, didn't feel he would accept it.
Q. You mean Mr. Karasik wouldn't accept it?
A. I must tell you I just didn't even consider that.
Thus, in moments, Cohen changed the description of his
thought process from "frankly" having felt that Karasik
would not accept a decrease to not having "even consid-
erled ]" the possibility.
It seems quite incredible to me that any employer who
assertedly spent 2 weeks in anguish over the possible
discharge of a new father with a new home would have
failed to consider the alternative of saying, "Jeff, we need
to discharge either you or Boyd for economic reasons.
Since you earn more money, we should choose you, but
since you are a more useful employee, and have a new child
and home, we will retain you if you will accept a pay cut to
$130, which will be increased to $150 in November." Such
an approach with Karasik would not have presented the
kind of morale problems which might conceivably be
I BoHd was unmarried, which Cohen knew.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encountered by drastically reducing the pay or authority of
highly paid and high-powered executives. Prior to late
April 1975, Karasik had been earning only $130. In that
month, he was raised to $150 and by October was up to
$180. It seems most improbable that, in his circumstances,
he would have rejected in July 1976 a reduction to $130, to
be increased to $150 again in November.
Despite the inarguable likelihood that such an alternative
would have irresistibly presented itself to an employer
considering the matter in good faith, particularly one
experiencing the torment to which Cohen testified, he
said-ultimately-that he never even considered the
possibility, although he spent 2 weeks of "coward's delay"
in deliberating Karasik's fate. That assertion seems
inconceivable to me.
I believed Karasik's testimony that Cohen told him in
April that "those employees who sided with me would find
it to their advantage and that those who don't will find it to
their disadvantage." At the representation hearing on July
13, Karasik took the stand in order to contradict testimony
given by Cohen. I find Cohen's testimony about his
deliberative process in deciding to terminate Karasik both
contradictory on its face, as noted above, and so inherently
incredible that it is appropriate to infer that the true motive
"is one that the employer desires to conceal-an unlawful
motive," Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966);
Sinclair & Valentine Company, 223 NLRB 1043 (1976). In
all the circumstances, I conclude that the discharge of
Jeffrey Karasik on August 6, 1976, violated Section 8(a)(3),
(4), and (1) of the Act.
B. The Alleged 8(a)(1) Violations
The original complaint alleged that on April 29 and
"around May," Cohen unlawfully threatened employees
with reprisals, and on April 29 and "around May," made
unlawful promise of benefits to employees.
The April 29 allegations must relate to Cohen's conversa-
tion with Karasik on that day. I was impressed with
Karasik and credit his testimony that Cohen said that, in
the past, he had borrowed money rather than lay off
employees and that "if the union came in that he might not
be able to do that in the future." I further have credited
Karasik's testimony that Cohen said that employees who
sided with him would find it to their advantage and those
who worked against him would find it to their disadvan-
tage. The former statement is clearly an unlawful threat;
the latter statement constitutes both a threat and an
unlawful promise of benefits, in violation of Section
8(a)(l). I do not detect from General Counsel's brief that
he considers any other portion of the conversation to be
violative.
The "around May" allegations appear to refer to Cohen's
conversation with Olmstead, which he described as
occurring "around the end of April." Olmstead's credited
testimony that Cohen had reminded him of the retention of
14 The complaint contains no allegation with respect to Jacob's
statement to Olmstead in August that Respondent "could never survive the
economic burden of a union," and I make no findings thereon. Jacobs did
not testify.
15 Karasik thought it was a good idea.
the employees during a slow winter and had stated that "if
the union came in he definitely wouldn't be able to hold
them anymore if it got slow" is a patent threat. Assuming
that the General Counsel is also claiming to be invalid that
portion of the conversation relating to Cohen's remark that
his door was always open and that the employees should
consider forming a grievance committee, I think that
urging Olmstead to form a grievance committee in which
Cohen and the employees would "work the matters out,"
including the drawing up of papers "holding him to his
promises then," particularly in the context of a conversa-
tion in which was discussed the more bleak consequences
of voting in a union, sufficiently got across to Olmstead the
benefits which would accrue from withdrawing support
from the Union.'4
After resting, General Counsel moved to amend the
complaint (having initially rejected that possibility prior to
resting) to allege as independent violations of Section
8(a)(1) the issuance of the April 29 work rules; the
installation of the timeclock on June 14 and the promulga-
tion of rules pertaining thereto on June 21; and the
"implement[ation] [of] a new policy regarding the taking of
time off" on July 2.
I perceive no basis for concluding that the April 29 rules
were intended as a reprisal for the employees' union
activities. According to Cohen, they were drafted by the
new production manager, Hurwitz, who was brought in to
impose the discipline and order which former Production
Manager Madnick had been unable, as Hoey conceded, to
achieve. They are just the kind of rules which a new
manager might plausibly wish to promulgate in order to
create some order. They were not unduly restrictive and
they make sense. I find no violation here.
As Hoey conceded, the timeclock had been the sugges-
tion of employee Leroy, and Cohen had sought out the
views of Hoey and Karasik about its installation.15 Since
there appears to have been a problem regarding late arrival
and early leaving, it is difficult to see how a solution
suggested by one employee and acceded to by others can
be considered a coercive act, unlawfully motivated, by an
employer.' 6 And since it seems clear that the June 21
instructions were plainly provoked by Hoey's prankish
misuse of the clock (and perhaps some perceived uncer-
tainty on behalf of the other employees as to its proper
use), I detect no unfair labor practice in their issuance.
The remaining allegation relates to the time off policy
posted on July 2, which stated that, if employees did not
give 48 hours' notice in advance of taking time off, their
right to deduct such time off from vacation time would be
allowed only at the discretion of the management. Cohen
testified that the notice was posted because he had heard
that "most of the printing unit" would be attending the
July 13 hearing, and he obviously wished to have ample
16 Indeed, in Rust Craft Broadcasting of New York, Inc., 225 NLRB 327
(1976). the Board held that an employer did not violate Sec. 8(aX5) by
unilaterally substituting a timeclock for its existing manual practice. The
record is silent here as to the prior practice for keeping time.
1144
FPC ADVERTISING, INC.
notice of the complement he could expect to have on that
day.' 7 Karasik conceded that, prior to issuance of the
notice, the practice had been that "they always asked that
you let them know ahead of time if there was ever any-
[sic ]."
The prospective absence of a large number of employees
at one time was very likely an unprecedented event, and I
find it understandable that Respondent, which had always
wanted to "know ahead of time" the projected absences of
employees, would have legitimately wished to have notice
of such anticipated absenteeism. The problem lies in the
discretionary sanction attached; there is no showing that,
in the past, a failure to give adequate notice had resulted in
a refusal to set off the lost time against vacation time.
Nonetheless, the burden imposed on the employees was
miniscule: if they intended to attend the hearing, all they
needed to do to escape the rule completely was to give 48
hours' notice and, even if they failed to give such notice,
their potential of not having the time off credited against
vacation time was not automatic but within the discretion
of management. The rule served a realistic purpose in
special circumstances, and it did not impose a burden on
the employees. In the circumstances, I am inclined to
believe it did not violate the Act.'8
CONCLUSIONS OF LAW
1. FPC Advertising, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Service Employees International Union, Local 32E,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Jeffrey Karasik on August 6, 1976,
Respondent violated Section 8(a)(4), (3), and (1) of the Act.
4. By making unlawful threats and promises of benefits
to employees in April 1976, Respondent violated Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Other than as set out above, Respondent has not
violated the Act as alleged in the amended complaint in
this case.
THE REMEDY
In order to remedy the unfair labor practices found
herein, I shall recommend that Respondent be required to
cease and desist therefrom and take certain affirmative
action.
Having found that Respondent discriminatorily dis-
charged Jeffrey Karasik on August 6, 1976, I shall
recommend that Respondent be ordered to offer Karasik
17 A major part of Respondent's work at this time was deadline jobs for
IBM.
'" I do not address the matter of the application of the rule to Karasik.
who testified that he in fact gave Hurwitz 48 hours' notice. The amended
allegation onls charged that Respondent violated the Act by "imple-
mentling] a new policy regarding the taking of time offT on "Jul 2." I do
not regard this as ample notice that the application of the rule to Karasik
alter Jul) 13 was implicated in the amendment, nor do I find that the matter
was lull) and consciously litigated. Cohen testified that he asked Hurwitz
aboul Karasik's claim that he had given notice. and that Hursitz said he
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent one,
without prejudice to his seniority or other rights and
privileges, and to make him whole for any loss of earnings
he may have suffered from the time of his termination to
the date of Respondent's offer of reinstatement. His
backpay shall be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
I shall also recommend that Respondent be required to
post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 19
The Respondent, FPC Advertising, Inc., Rockhill, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees for giving testimony under the Act, for assisting
Service Employees International Union, Local 32E, AFL-
CIO, or any other labor organization, or for engaging in
other union activity or concerted activities for the purpose
of mutual aid and protection.
(b) Threatening employees with reprisals for exercising
rights guaranteed them by the Act and promising benefits
to employees in order to cause them to refrain from
exercising rights guaranteed them by the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and
protection, or to refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Jeffrey Karasik full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, person-
nel records and reports, and all other records necessary or
appropriate to analyze the amount of backpay due to
Karasik.
had not. Hurwitz was not produced to corroborate Cohen. which might have
been the case had the matter been more specifically pinpointed as being in
issue.
"I In the event no exceptions are filed as provided b' 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.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its place of business at Rockhill, New York,
copies of the attached notice marked "Appendix." 20
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by
Respondent's authorized representative, shall be posted by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
"" In the event 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
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1146