Gateway Press, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 676 (N.L.R.B. 1975)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gateway Press, Inc. and John Clark MacWilliams.
Case 6-CA-7950
September 25, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 30, 1975, Administrative Law Judge
James V. Constantine issued the attached Decision
in this proceeding . Thereafter , the Respondent filed
exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings , findings, 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, Gateway Press, Inc.,
Monroeville , Pennsylvania , its officers , agents, suc-
cessors , and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES V . CONSTANTINE , Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act. 29 U .S.C. 160(b). It was
commenced by a complaint issued on February 25, 1975,
by the General Counsel of the National Labor Relations
Board , herein called the Board, through the Regional Di-
rector for Region 6 (Pittsburgh , Pennsylvania). The com-
plaint is based on a charge filed on December 13, 1974, by
John Clark MacWilliams against Gateway Press, Inc.,
herein called the Employer or the Respondent . In sub-
stance said complaint alleges that Respondent violated
Section 8(a)(l) and (3), and that such conduct affects com-
merce within the meaning of Section 2(6) and (7), of the
Act. Respondent has filed an answer admitting some of the
allegations of the complaint but denying that it committed
any unfair labor practices.
Pursuant to due notice this case came on to be heard,
and was tried at Pittsburgh , Pennsylvania , on April 3, 1975.
All parties were represented at and participated in the trial,
and had full opportunity to introduce evidence , examine
and cross-examine witnesses , and offer oral argument. Re-
spondent argued orally at the close of the trial. Briefs have
been submitted by all the parties.
This case presents the issues of whether Respondent:
1. Instructed employees to act as informers as to the
union activities and sympathies of fellow employees.
2. Gave its employees the impression that their and fel-
low employees ' activities on behalf of Local 7 of Interna-
tional Typographical Union were being kept under surveil-
lance.
3. Discharged employee John Clark MacWilliams for
engaging in action protected by the Act.
Upon the entire record in this case , and from my obser-
vation of the demeanor of the witnesses , I make the follow-
mg:
FINDINGS OF FACT
I. AS TO JURISDICTION
Respondent, a Pennsylvania corporation , is engaged at
Monroeville, Pennsylvania , in the commercial printing
business . During the year immediately preceding the is-
suance of the complaint in this case Respondent 's gross
income exceeded $ 1 million , and, during the same period,
it received goods and other items valued in excess of
$50,000 directly from points outside Pennsylvania. I find
that Respondent is an employer within the meaning of Sec-
tion 2(2), and is engaged in commerce within the meaning
of Section 2(6) and (7), of the Act, and that it will effect the
purposes of the Act to assert jurisdiction over Respondent
in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Typographical Union , Pittsburgh Typo-
graphical Union No . 7, AFL-CIO, herein called Local 7, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Evidence
Kenneth Pearson , a member of the organizing commit-
tee of Local 7 and employed by Pittsburgh Press , testified
substantially as follows . As a result of talking to a friend of
John MacWilliams, Pearson wrote to MacWilliams, the
latter a deaf mute , on October 11, 1974, inviting the latter
to join Local 7. (See G .C. Exh . 2.) Later a fellow employee
Diane , telephoned to Pearson , and set up a meeting be-
tween the latter and MacWilliams. A week later such meet-
ing was held . Local 7 and problems of organizing employ-
ees of Respondent were discussed , and a pamphlet was
given to MacWilliams . (See G .C. Exh. 3.)
On October 21, 1974, MacWilliams was mailed a letter
by Peterson suggesting that the former organize
Respondent 's employees . Later Pearson received a call
220 NLRB No. 102
GATEWAY PRESS, INC. 677
from Gateway Press employee Jay Barrowcliff, the latter
having been talked to by MacWilliams , asking to have an-
other meeting to discuss a union and how to organize. Such
meeting was arranged and held on a Sunday morning with
Pearson. MacWilliams, Barrowcliff, employee Kerry Gren-
don, and a sign language interpreter were present. Organiz-
ing employees of Respondent was discussed on this occa-
sion.
John MacWilliams , a cameraman for Respondent , testi-
fied for the General Counsel. An abridgment of his testi-
mony is here set forth. After receiving a letter from Pear-
son dated October 11, 1974, John spoke to employees
Barrowcliff and Thompson at the Gateway Press plant
about it and showed it to them also. Later John contacted
Pearson through employee Diane from the Gateway Press
plant and arranged to meet with Pearson. They later met at
a local inn where they discussed organizing the employees
of Respondent. Pearson also gave John an I.T.U. pam-
phlet. After meeting with Pearson, John talked to Barrow-
cliff about Local 7.
John MacWilliams received a second letter from Pear-
son suggesting that John interest fellow employees in a
union. John showed such letter to employees Barrowcliff
and Thompson and some others at the plant. Then Barrow-
cliff arranged a meeting of Gateway's employees with
Pearson on October 27. John asked employee Grendon at
the plant to attend this assembly. This assembly, held at
Pittsburgh Association for the Deaf Club, was attended by
MacWilliams, Barrowcliff, Grendon, and a lady sign lan-
guage interpreter. Local 7 was there discussed. On October
28 a Gateway employee sought to speak to John about
Local 7 during working time, but the latter informed such
employee that he did not want to talk about such union
during working hours.
In mid-November 1974, MacWilliams spoke to Depart-
ment Supervisor Gerald Weaver in the latter's office about
an ad which the former saw in the newspaper. In this con-
versation MacWilliams told Weaver that the ad caused the
former to inquire whether Respondent needed a "new cam-
eraman." Weaver replied, "No." On November 27 Weaver
handed MacWilliams a written memorandum, signed by
Weaver, stating "you are being given 1 week notice to your
termination here at Gateway Press . Reasons : In the past 4
weeks your performance on the job has become very poor.
This added to my evaluation and observations, had forced
this decision." Said document set out 10 "specific reasons"
for such discharge.
On November 29 MacWilliams, accompanied by his
wife and son, spoke to Respondent's manager, Gene Stepp,
about Weaver's memo discharging MacWilliams. Stepp as-
serted he did not know about it and "was puzzled" by its
contents. In fact Stepp stated to MacWilliams, "You do a
good job, okay, fine."
On cross MacWilliams testified that Respondent hired
him as a cameraman in July 1973, but he was additionally
told at the time that he would also be required to help out
as a stripper and "in some other functions." He first served
under two other supervisors and finally under Weaver. At
first he got along "very good" with Weaver, his supervisor,
"towards [his] termination," but "at the end, it was awful."
Another witness for the General Counsel was Jay Bar-
rowcliff, an employee of Respondent. His testimony may
be compressed as follows. In mid-October 1974, MacWil-
liams showed him letters, including General Counsel's Ex-
hibits 2 and 4, which the former received from Ken Pear-
son. This occurred in Respondent's plant. MacWilliams
also showed him a pamphlet and talked to him more than
once in the plant regarding Local 7. Later Jay called Pear-
son from Respondent's plant and they set up a meeting for
Respondent's employees. Jay, Grendon, MacWilliams,
Pearson, and a sign language interpreter attended said
meeting.
Respondent is a subsidiary of Dardenell Enterprises. In
mid-November Jay observed an ad in one of the Dardenell
publications seeking a cameraman and a midnight stripper.
So Jay asked Respondent's director of printing, Gene
Stepp, whether Jay should apply for said job. Stepp replied
that Jay should "not bother because it was for Gateway
Press."
The week following the termination of MacWilliams, Jay
spoke to cameraman Morasco concerning MacWilliams in
the presence of Stepp. Morasco stated that he thought
MacWilliams was a good cameraman and couldn't under-
stand why they fired him. "Stepp agreed with [Morasco]
and said that he didn't see the reason why they fired Joe,
because he thought that [MacWilliams] was a good camer-
aman, also."
On cross Jay stated that the discharge of MacWilliams
"was really a decision for Gerry Weaver to make and not
for Mr. Stepp," and that Weaver was the supervisor -over
MacWilliams and the entire department in which MacWil-
liams worked.
Kerry Grendon also testified for the General Counsel. A
conspectus of his testimony follows. He is an auxiliary
pressman for Respondent. In late October 1974, MacWil-
liams spoke to Grendon in the plant regarding Local 7 and
the advantages of having a union. Grendon also attended
the October 27 meeting held by Pearson for Respondent's
employees. Among others MacWilliams also came to said
meeting.
William H. Thompson, an artist employee of Respon-
dent for a little more than 12 years, gave testimony which
may be condensed as follows. In late October 1974, Mac-
Williams showed him a letter about Local 7 and also dis-
cussed unionism with him at the plant. As part of his job
MacWilliams photographed certain work of Thompson's.
In Thompson's opinion, MacWilliams' competence as a
cameraman was good, Also, no company official ever com-
plained of the quality of work performed by MacWilliams,
according to Thompson. However, Morasco , a cameraman
who also photographed Thompson's work, in the latter's
opinion "was far superior than MacWilliams." Neverthe-
less Thompson "never received any criticism from any of
the customers regarding that [which] Mr. MacWilliams had
shot for" Thompson.
Raymond Henry was the General Counsel 's last witness.
A synopsis of his testimony follows. Henry, an employee of
Respondent since 1966, worked with MacWilliams and
"found [the latter] to be an excellent cameraman. He
cleaned his lenses , he mixed his chemicals and . . . I was
glad to assist him." In fact Respondent's General Manager
Bondi said that Henry and MacWilliams "were an out-
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing team and he said we did miracles."
In November 1974, foreman Kovaly instructed Henry
"to keep an eye on Mr. MacWilliams to see if he was
screwing off on the time clock and if he was , I was to
report it to Mr. Kovaly. [Kovaly] also said that we need
people, the company needs people we can trust." Later that
day Henry asked Kovaly what the latter had against
unions. Kovaly replied that he once applied for employ-
ment at a union printing plant "and they told me to go
blow." Still later Kovaly asked Henry if Henry had heard
any talk about Local 7 and, when Henry answered in the
negative , Kovaly requested Henry to inform him if Henry
heard any talk about a union.
A couple days after MacWilliams had been terminated,
Henry overheard Department Supervisor Weaver tell Ko-
valy "organizers"; Kovaly mentioned "dissenters"; and
then Weaver said "dissenters . . . the company is better off
without a union."
Henry, who worked " as a team" with MacWilliams, de-
scribed the latter as "very co-operative, I can't speak more
highly of a man." From Henry's outline of the authority of
Kovaly over him, which I credit, which need not be related
here, together with other credited evidence described else-
where herein, I find Kovaly had authority responsibly to
direct employees and, therefore, I find Kovaly is a supervi-
sor within the meaning of Section 2(11) of the Act.
On cross Henry stated that Morasco was not "far superi-
or" to MacWilliams, and that the latter is not "far superi-
or" to the former, as a cameraman, but that these two "are
both on a competitive level." Henry also asserted that em-
ployees discussed with him in the plant "about a union."
They told him that it was a good idea to have a union "to
better conditions."
Further, on cross , Henry testified that he asked Kovaly
why Kovaly was "so p-ed off at the union. . . . What do
you have against union ." Kovaly replied that when he once
applied for a job in a union printing shop he was told there
to "go blow," and that Kovaly "was upset about it." Also,
Henry asserted that he was "told" that MacWilliams
played ping-pong while MacWilliams "was supposed to be
on the camera"; but, Henery added, "There are employees
in there that screw off and they [management ] don't do
anything about it. They [management] pick out the ones
they want." Finally, on redirect, Henry testified that Kova-
ly said to him, "If you hear any talk about a union, casu-
ally let me know."
At this point the General Counsel rested.
B. Respondent's Defense
James S. Steele, president of Dardenell Enterprises, testi-
fied substantially as follows for Respondent. Dardenell
had two subsidiaries, Gateway Press, "the mechanical arm,
the production area," and Dardenell Publication, "the pub-
lication area of the company." Gateway Press "has had a
very open door policy through the years" regarding the
hiring of handicapped people. In the last 13 years it has
employed "at least five to six people who would be classi-
fied as . . . physically handicapped."
He first learned of the termination of MacWilliams
when General Counsel's Exhibit 5 (the discharge notice
dated November 27, 1974) was brought to his attention by
Gerry Weaver and Roy. Thereupon Steele directed Weaver
to "communicate this to the General Manager, Mr. Bondi,
to be certain of his facts." But at this meeting with Weaver
there was "no discussion about antiunion or union activi-
ties on behalf of Mr. MacWilliams." Moreover, Steele nev-
er authorized, or encouraged, or ratified, any antiunion
conduct or statements by any of his managers or employ-
ees; nor did he ever act in any manner which would indi-
cate approval of such conduct or statements to any of the
employees.
On cross Steele declared that prior to November 27,
1974, Weaver at no time had any discussion with him re-
garding the conduct or performance of MacWilliams as an
employee of Respondent.
Another witness for Respondent was Gus Bondi, its gen-
eral manager. A precis of his testimony follows. He holds
weekly meetings with the supervisors who serve under him.
At from 6 to 10 of those meetings Weaver mentioned that
MacWilliams' workmanship and attitude toward his super-
visor were deteriorating, that MacWilliams was becoming
insubordinate and was "not following our policy." Mac-
Williams started with Respondent August 1, 1973, and
Weaver became his supervisor in August 1974. Also, ac-
cording to Bondi, "we had some problem with the custom-
ers who were rejecting through me [Bondi] the quality of
work that [MacWilliams] was producting." About 12 to 15
rejections occurred from June to September 1974. But Bon-
di had no similar customer complaints "from the other
man working day shift." Bondi did not identify these cus-
tomers or describe their complaints.
So Bondi instructed Weaver "obviously to try to be fair
to" MacWilliams, to give MacWilliams "the benefit of the
doubt," and "to mold [MacWilliams] into a person who
could do the job to the same standards we were getting
from the other shifts." In Bondi's opinion MacWilliams
was not "a finished polished cameraman when he was em-
ployed," but that he "could improve." Bondi also claimed
that Respondent "advertised for new people" because
MacWilliams expressed to Bondi "a desire to leave the em-
ploy of the company."
Continuing, Bondi testified that he rejected work of
MacWilliams "a dozen times, fifteen times," so that Bondi
"had to have it redone by the day time cameraman." Bondi
also insisted he never "authorized, or encouraged, or rat-
ified any antiunion conduct or statements by any of the
employees." Finally, on direct, Bondi stated that MacWil-
liams was putting in too much overtime at a time when the
latter's productivity was dropping; i.e., "More hours but
less productivity." Nevertheless, Bondi did not investigate
to ascertain whether this "too much over time was his
[MacWilliams] fault or may have been some one else's
fault" in not sending work fast enough to MacWilliams.
Moreover, Bondi never talked to MacWilliams "about the
overtime."
Another witness for Respondent was Gene Stepp, its di-
rector of printing. A resume of his testimony follows. "Su-
pervisory meetings" which he attended discussed the per-
formance of MacWilliams "during the period of August
until December." Such discussions disclosed that "basical-
ly . . . Weaver was not satisfied with [MacWilliams'] per-
GATEWAY PRESS, INC. 679
formance , that it was a known fact that he caught him
playing ping-pong while he was on the clock. That his atti-
tude was changing . . . [Weaver] felt there was definitely a
change in [MacWilliams'] behavior pattern." However
when Stepp dealt directly with MacWilliams, Stepp found
MacWilliams cooperative. Stepp also found that although
the quality of MacWilliams' work "went up and down .. .
there were times when his work was very acceptable .. .
and that he [MacWilliams] proved that he had the capabili-
ties." During the 3 months preceding the termination of
MacWilliams there was but one occasion when Stepp had
"experience directly . . . about the quality of his work,"
and "the quality was adequate."
Stepp never authorized or encouraged Kovaly to con-
duct any antiunion activities or make any antiunion state-
ments, and did not ratify such conduct or utterances by
Kovaly. According to Stepp the former's "function was to
make sure that the proper flow of material was going
through the department as far as the pressroom 's request
for priorities." Although Kovaly could recommend hiring,
"we would take it into consideration but not effectively."
Kovaly had no other duties than those mentioned above,
but he could "effectively recommend assignments of differ-
ent functions." Moreover, Kovaly was an hourly paid em-
ployee who punches a clock and did not attend meetings of
supervisors.
On cross it developed that Kovaly received 50 cents an
hour more than other employees working in his depart-
ment, but Kovaly makes a dollar an hour more than "Mr.
Henry" because Kovaly "has a more responsible job" and
"because of certain responsibilities." Although Kovaly, "in
fact, tells people [employees] to do this instead of some-
thing else" they "could ignore him "; but Kovaly "had the
right to come to [Stepp] and complain . . . if someone ig-
nored what he [Kovaly] said which was a direction or an
order." Also, on cross, Stepp stated that in September
1974, he asked MacWilliams "to be about and not only
that, but try to get more work done after midnight." And,
testified Stepp on further cross, "I would like to add that I
did see the difference. It got better for a couple of weeks."
Another witness for Respondent was Gerald Weaver. An
abstract of his testimony follows. He worked for Respon-
dent from August 1, 1974, to February 1, 1975, as a super-
visor whose duty it was to "co-ordinate the efforts of all
departments, to keep the work flowing, and to be directly
responsible for the heart of production which is the cam-
era, plate, and stripping areas." According to him, "the day
shift was running fairly smooth , the night shift needed su-
pervision ." MacWilliams gave Weaver many problems,
such as desiring "to get into color , he also confronted me
with raises, and I felt that even though he was a capable
cameraman, he had a lot to learn as far as going into the
higher pay raise or color work."
In the very beginning Weaver told MacWilliams what
Weaver "hoped [MacWilliams] will do" and MacWilliams
"wrote me a nice letter saying I would like to be friends."
About the first of September Weaver "started realizing
problems" with MacWilliams and informed MacWilliams
that he was "not staying on the camera as much as he
should" so that -"someone else would be operating the cam-
era, in order to keep that work flow going ." Weaver was
aware that MacWilliams played ping gong, sometimes
"still on the clock." But "at that time I [Weaver] did not
feel that I should confront John [MacWilliams] and repri-
mand him at the time [about the ping pong]. I was discuss-
ing it with my supervisor."
On September 11 Weaver in writing warned MacWil-
liams that the latter's "working habits" were causing Weav-
er to "wonder if you are here to work to your best abilities,
or are you here to strangle the company by forcing over-
time." MacWilliams replied he needed more money. In
said Respondent's Exhibit 1 Weaver also wrote that "if you
need more money then I suggest you better find another
job . . . . You have to decide which is more important .. .
either your work's skill at cameraman or your recreation
ping-pong." In said letter Weaver also complained that he
saw MacWilliams "wasting time talking with pressmen a
long time ." It also states that "Norm [Kovaly] is the de-
partment head when I am not here. You will listen to him
always." I have considered this last statement, together
with other testimony, in finding Kovaly to be a supervisor
under the Act.
After September 11 Weaver had further discussions,
roughly weekly, with MacWilliams about the latter's per-
formance and Weaver's "concern for productivity." On
one such occasion "we did change . . . the processing con-
ditions of the film," and Weaver told him "not to touch the
dial." But the next morning "the entire chemistry was out
of proportion" because "the two main dials had been
moved" by MacWilliams. The latter said he did so because
"he did not like those conditions." This occurred during
October 1974. On other occasions Weaver "a few times"
told MacWilliams that the latter's "half tones . . . were not
satisfactory." MacWilliams also disobeyed Weaver's
order's to the former, but Weaver did not describe such
orders at the trial.
On the evening of November 27, 1974, Weaver again
had to get after MacWilliams. Weaver thereupon "decided
that this was the time [to] . . . type out his termination."
But, according to Weaver, although there were "no other
times when he [MacWilliams] wasn't co-operative," there
were times when MacWilliams was "very temperamental"
and also "argued with" Weaver. Further, Weaver claimed
that MacWilliams' attitude undermined the former's au-
thority in that MacWilliams "felt that he had the responsi-
bility to stay there past the designated time at night." Also,
MacWilliams was careless on three occasions: once he
"pulled down all the plumbing when he fell off a ladder;'
another time he had chemistry and water "all over the
floor"; and he once "broke the glass on the vacuum
frame."
A conversation between Weaver and MacWilliams on
November 27, 1974, when the latter was given a written
termination, is set out in Respondent's Exhibit 2. In it,
among other things, MacWilliams claimed that Norm Ko-
valy told MacWilliams that MacWilliams worked "too
fast" in reply to Weaver's assertion that "you have not
been a good' employee." In this conversation MacWilliams
insisted, among other things, "That is O.K. for play [sic]
1 MacWilliams insisted to Weaver that the former fell because the "ladder
was broken "
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ping-pong for lunch time."
On December 3, 1974, MacWilliams spoke to Weaver.
MacWilliams requested Weaver to "call him back ... and
I [MacWilliams] will improve my way for sure." Also
Weaver indicated he discussed the dismissal of MacWil-
liams with management.
On cross Weaver asserted that both he and Kovaly could
give orders and that employees could "ignore" such orders.
But he also testified employees would "get into trouble" if
they ignored his or Kovaly's orders. I have taken Kovaly's
authority to give orders into consideration in finding he is
a supervisor within the import of Section 2(11) of the Act.
Also, on cross, Weaver stated that during September
1974, MacWilliams "indicated to" him that MacWilliams
"might want to look for a job some other place." Conse-
quently, "based on the fact that . . . I had to [maintain] a
complete, up-to-date file of the personnel who are key peo-
ple," Weaver "put an ad in the newspaper to get someone
to work for him . . . in case that MacWilliams left." Said
ad was published in October or maybe November 1974.
Weaver also testified that whenever he told MacWilliams
"to get on the camera as much as he should " MacWilliams
"did improve." And although Weaver in part terminated
MacWilliams because the latter played ping pong "on only
one occasion . . . on the clock," Weaver did not take any
disciplinary action against the employee with whom Mac-
Williams was playing on this occasion.
Further, on cross, Weaver asserted that the only instance
of insubordination, which occurred on October 1, was in-
cluded in the termination notice of November 27, 1974,
given to MacWilliams , notwithstanding that such notice is
based only on "your performance ... in the past 4 weeks"
and said notice does not specify "insubordination" as one
of the "performance" defects of MacWilliams.
As an example of "uncooperativeness" as Weaver used
the term in his dismissal notice to MacWilliams is the
latter's "trying to help Kovaly" and not "following my
[Weaver's] instructions." However, MacWilliams did "go
back to his job" when Weaver told him to, but not until 10
minutes later . Moreover, MacWilliams did all the work as-
signed to him that night, and "didn't leave it for the man
the next morning."
Again, on cross, Weaver mentioned that three acts of
carelessness contributed to his decision to discharge Mac-
Williams. The first was "he [MacWilliams] was on the lad-
der repairing something and the ladder was not sturdy and
the ladder fell." The second was flooding the floor "with
water and chemistry." And the third was breaking "a vacu-
um frame with a glass to seal up the vacuum ." I fail to
comprehend why the breaking of an unsturdy ladder can
be attributed to MacWilliams.
It was further developed on cross that Weaver communi-
cated in writing with MacWilliams on December 2, 1974.
Among other things MacWilliams pleaded for "one more
chance" to remain on the job. Replying, Weaver promised
"to take a proposal to management [on condition] . . . a
written agree from you . . . to the fact that I will direct and
manage."
Norman Kovaly was another witness for Respondent.
The essential import of his testimony follows . He is "more
or less the senior table man or stripper and [his] functions
are, as I come to work, if there is no overlapping of day-
light work , then I go into night turn and I take the neces-
sary steps in getting it out of the way . . . . On occasions
when I have to ... I do" assign work "to people in [my]
department ." He made such assignments whenever the
press foreman informed him that a certain job had to be
done immediately. As a result Kovaly "would need to
change [the] normal work flow," and Kovaly would "redi-
rect or reassign any type of work." He also made assign-
ments when he came in to work after looking "at the
schedule pertaining to the jobs ." Changes in such assign-
ments occurred when he "would be informed by the imme-
diate supervisor telling [him] of the change."
However, he punches a time clock and is accorded no
privileges other than those received by hourly paid employ-
ees. He first learned of union activity at Respondent's
plant when John O'Connell, a field examiner of the NLRB,
interviewed him.
On cross Kovaly admitted he can assign work to "peo-
ple" in his department "if I have to ." He also stated on
cross that he signed an affidavit for O'Connell of the
NLRB on November 17, 1974. Also, on cross, he stated
that when he asked MacWilliams or Henry "to do some-
thing" they "would do it"; he "could tell them" to work
overtime; and if an employee "is giving [him] too much
trouble or carrying on . . . I have the ability" to "punch an
employee's time card out . . . but I'd rather not . . . I
could definitely punch him out and tell him to report to the
supervisor the next day." He also could excuse an employ-
ee who wanted to go home early "if [the employee] wasn't
feeling good." I find Kovaly is a supervisor within the
meaning of Section 2(11) of the Act. Broyhill Company, 210
NLRB 288, enforced 514 F.2d 655 (C.A. 8, 1975).
Respondent's final witness was John MacWilliams, the
Charging Party in this case, who also previously testified
for the General Counsel. An adequate summary of his tes-
timony is here related. Bondi was "very happy" with his
work and told him that he, MacWilliams, "did a very good
job." In September 1974, Bondi did criticize some slow
work of MacWilliams, but "when I [Mac Williams] had
later experience, that I got along fine." Also, before Sep-
tember 1974, Bondi told him that some customers had
complained about the work of MacWilliams; but, "as we
progressed I did better and better."
Also, Weaver told him that MacWilliams' work "had to
improve" and to "spend more time on the camera and less
time playing ping-pong." Weaver was his supervisor from
whom MacWilliams sought permission to leave early or an
increase in wages . MacWilliams also spoke to Kovaly to
change him to the day shift and for an increase in wages,
"but it didn't work out." Further, "most of the time" Mac-
Williams followed Weaver's instructions; but, on small
jobs or on jobs on which MacWilliams "shortened
Weaver's ways," when he did not follow instructions,
Weaver "would be satisfied and he [Weaver] said ev-
erything was okay." Sometimes he and Weaver argued
about the best way to perform a job but MacWilliams al-
ways "would just accept it [Weaver's way] because he
[Weaver] told me to follow his ways." MacWilliams con-
ceded that he played ping pong at the plant "most on or
GATEWAY PRESS , INC. 681
during my lunch hour" but "twice or three times on com-
pany time."
On cross MacWilliams testified that in the fall of 1974
Bondi told him that he "did good work," and also wrote
him a note saying, "you are doing a good job, keep it up."
C. Concluding Findings and Discussion
In making the findings set forth below I have been guid-
ed by the following well-recognized applicable principles of
law. (a) Upon the General Counsel is the burden of proof
to establish his case , and this onus remains with him during
the entire trial. A corollary is that no burden is imposed
upon Respondent to disprove any of the allegations plead-
ed in the complaint. (b) Further, the failure of Respondent
to prove any one or more of its defenses does not amount
to affirmative evidence contributing to the General
Counsel's obligation to prove his case. (c) As hereinafter
recited, I have not credited Respondent's evidence on some
aspects of the case. But this does not constitute affirmative
evidence capable of aiding the General Counsel in fulfill-
ing the burden of proving his case. N.L.R.B. v. Harry T
Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8, 1969);
Ri-Dell Tool Mfg. Company, Inc., 199 NLRB 969, 973
(1972). "The mere disbelief of testimony establishes noth-
ing." N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.
A. 1, 1966). See Guinan v. Famous Players, 167 N.E. 235,
243 (Mass.). Cf. N.L.R.B. v. Walton Manufacturing Compa-
ny & Loganville Pants Co. 369 U.S. 404, 408 (1962). (d)
Finally, I recognize that an employer "may hire and dis-
charge at will, so long as his action is not based on opposi-
tion to union activities." See N.L.R.B. v. South Rambler
Company, 324 F.2d 447, 449-450 (C.A. 8, 1963).
1. As to instructing employees to act as informers of
union activities
Crediting employee Raymond Henry, and not crediting
Kovaly, whom I have found to be a supervisor of Respon-
dent within the contemplation of Section 2(11) of the Act,
I find that Kovaly instructed Henry in November 1974, "to
keep on eye on MacWilliams." Later that day Kovaly
asked Henry if the latter had heard any talk about Local 7
and also requested Henry to inform him of any talk about
a union which Henry did hear. I find that by such language
Kovaly was directing Henry to act as an informer of union
activities among Respondent's employees. And I further
find that such conduct by Kovaly contravenes Section
8(a)(1) of the Act.
2. As to giving employees the impression their union
activities were kept under surveillance
The General Counsel contends that the statements of
Kovaly to employee Henry, recited in the preceding para-
graph of this Decision, "created the impression that the
union activities of employees were being kept under sur-
veillance." I find it is not necessary to pass upon this con-
tention, as the conduct recited above has been found to
contravene Section 8(a)(1) of the Act. An order of the Na-
tional Labor Relations Board prohibiting such acts, regard-
less of how they are characterized or depicted, in my opin-
ion suffices to prevent their repetition or recurrence.
3. As to the discharge of John MacWilliams
Upon an analysis of the entire record I am persuaded,
and find , that MacWilliams was discharged for discrimina-
tory reasons and that the grounds, advanced at the trial;
i.e., "in the past 4 weeks [preceding November 27, 1974]
your performance on the job has become very poor" are a
pretext to disguise the actual reason for terminating him.
In arriving at this conclusion I have credited the General
Counsel's evidence and have not credited Respondent's ev-
idence not consonant therewith . This ultimate finding is
based upon the entire record and the following subsidiary
findings, which I find as facts.
a. MacWilliams was very active, and the principal or-
ganizer, for Local 7 at Respondent's plant. Of course this
in itself does not grant him immunity from being dis-
charged for good cause, bad cause, or no cause, so long as
such cause is not one prohibited by the Act. N.L.R.B. v.
McGahey, 233 F.2d 406, 413 (C.A. 5, 1956); Charles L.
Hawkins [Mitchell Transport, Inc.], v. N.L.R.B., 358 F.2d
281, 283-284 (C.A. 7, 1966). Nevertheless the elimination
of a leading advocate of unionism often tends to discour-
age other employees from taking an interest in a union
(N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003,
1006 (C.A. 5, 1965) ), and this factor may be evaluated in
arriving at the authentic reason inspiring a termination.
N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5,
1962); Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298,
304 (C.A. 4, 1966).
On this aspect of the case it is significant that "Direct
evidence of a purpose to discriminate is rarely obtained,
especially as employers acquire some sophistication about
the rights of their employees under the Act; but such pur-
pose may be established by circumstantial evidence." Cor-
rie Corporation of Charleston v. N.L.R.B., 375 F.2d 149, 152
(C.A. 4, 1967). "Nowadays it is usually a case of more
subtlety . .. . " N.L.R.B. v. Neuhoff Bros., 375 F.2d 372,
374 (C.A. 5, 1967).
b. It is reasonable to infer-and I do-that Respondent
was aware of the union activity of MacWilliams. On this
issue I find that Supervisor Weaver told Supervisor Kovaly
that "the company was better off without a union." In this
conversation the words "dissenters" and "organizers" were
used. I infer that they were referring to MacWilliams as a
"dissenter" and an "organizer." In addition, Kovaly asked
employee Henry to report to him any union activity in the
plant. This indicates that Respondent was aware of union
activity at the plant. And I further find that Kovaly asked
employee Henry "to keep an eye on MacWilliams." This
causes me to infer that Respondent at least believed that
MacWilliams was engaged in espousing a union among the
employees. Evidence of actual knowledge thereof is not
fatal. Rosen Sanitary Co., 154 NLRB 1185, 1187 (1965).
c. Respondent entertained antiunion hostility, as found
in the preceding paragraph. While this alone does not re-
quire a finding that MacWilliams was terminated for a dis-
criminatory reason, it may nevertheless be evaluated in as-
certaining the true motive generating his dismissal. "All the
circumstances surrounding [his discharge ], particularly . . .
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the timing," i.e., discharging him at the height of the union
campaign, indicate that his termination was "the first step
in a campaign to discourage membership in the labor orga-
nization." Rosen Sanitary Co., 154 NLRB 1185, 1187
(1965). Such circumstances also point to the conclusion,
although direct evidence of knowledge of the union activity
is lacking , that Respondent nevertheless knew of the union
activities of MacWilliams . Cf. Majestic Molded Products v.
N.L.R.B., 330 F .2d 603, 606 (C .A. 2, 1964).
d. MacWilliams was discharged during the organiza-
tional campaign of Local 7. Thus timing is significant. Ar-
kansas -Louisiana Gas Co ., 142 NLRB 1083 , 1085-86 (1963).
And the timing of the discharge to coincide with the union
campaign of MacWilliams also carries weight . Texas Indus-
tries, 156 NLRB 423, 425 ( 1965).
e. MacWilliams was not effectively warned by prior no-
tice that his performance on the job exposed him to disci-
plinary action ; and such performance was tolerated for a
long time . Harper & Row, 196 NLRB 343 , 355-356 ( 1972).
Failure to warn MacWilliams warrants the inference,
which I draw , that Respondent was aware of MacWilliams'
union activity when it suddenly discharged him without
previously warning him of his supposed deficiencies.
f. Respondent condoned or overlooked any deficiencies
of MacWilliams in the past . Apico Inns of California, Inc.
d/b/a Holiday Inn of America of San Bernadino 212 NLRB
280 (1974) enforcement denied 512 F.2d , 1171 (C.A. 9,
1974). By reviving them after they had been disregarded it
may be inferred-and I do so-that Respondent used such
past alleged deficiencies as a pretext to disguise the fact
that MacWilliams was being discharged for engaging in
activity protected by the Act . Hence I find that, under the
circumstances , the failure to alert MacWilliams to the pos-
sibility of discharge is laden with probative value in discov-
ering the genuine reason for his dismissal . N.L.R.B. v. Mel-
rose Processing Co., 351 F.2d 693 , 699 (C.A. 8, 1965).
Merely informing MacWilliams of complaints about his
work does not amount to a warning.
Consequently, it is not unusual for an employer to sud-
denly emphasize an employee's real or doubtful shortcom-
ings , theretofore ignored or overlooked by the employer, in
justifying a dismissal prompted by antiunion consider-
ations . I find that this applied in the instant case , so that
the failure to warn MacWilliams of possible discharge can-
not be overlooked . Sterling Aluminum Co. v. N. L. R. B., 391
F.2d 713 , 723 (C.A. 8, 1968).
g. MacWilliams was given false reasons for his dis-
charge . Giving false reasons warrants the inference, which
I draw, that the true reason was union activity. Sterling
Aluminum Co. v. N . L.R.B., 391 F.2d 713 , 723 (C.A. 8,
1968). See N.L.R.B. v. Antell, 358 F.2d 880, 883 (C.A. 1,
1966).
The following findings disclose false reasons, in my
opinion.
(1) Director of Printing Stepp stated that at meetings of
supervisors Weaver mentioned he was dissatisfied with the
performance of MacWilliams . Nevertheless Stepp, on his
own testimony, found MacWilliams cooperative , "had the
capabilities," and in the last 3 months the quality of the
work of MacWilliams was "adequate ." In fact I find that,
crediting MacWilliams, Stepp told MacWilliams on No-
vember 29 , 1974, that Stepp was "puzzled" by the contents
of the written discharge of MacWilliams , and also stated to
MacWilliams, "You do a good job." Patently Weaver was,
in my opinion , withholding something from Stepp.
Stepp also told employee Morasco that Stepp "didn't see
the reason why they fired" MacWilliams because MacWil-
liams "was a good cameraman ." I credit Barrowcliff that
he heard Stepp make this observation to Morasco.
(2) At no time did Weaver mention to President Steele
that the performance of MacWilliams was inadequate or
unsatisfactory.
(3) Bondi , the general manager of Respondent , testified
that MacWilliams did not do good work , so that "we had
some problems with the customers" for whom MacWil-
liams did Respondent's work . But I credit MacWilliams
that Boni told the former that he "did good work " and also
wrote him a note that "you are doing a good job, keep it
up." Further, crediting employee Raymond Henry, I find
that Bondi told Henry that Henry and MacWilliams "were
an outstanding team and . . . did miracles ." And artist
William Thompson testified credibly that he "never re-
ceived any criticism from any of the customers regarding
[work] that Mr. MacWilliams had shot for " Thompson.
(5) Although Weaver testified on direct that MacWil-
liams often played ping pong during working time Weaver
admitted on cross that this occurred but once and Weaver
did not reprimand the employee with whom MacWilliams
played on this one occasion.
(6) Weaver claimed that there was only one instance of
insubordination by MacWilliams, and this occurred on Oc-
tober 1. Yet the termination notice from Weaver to Mac-
Williams specifies that it is based only on "your perfor-
mance on the job . . . . in the past 4 weeks" preceding
November 27, 1974 . Moreover, the termination notice does
not mention "insubordination" as one of the grounds for
terminating MacWilliams.
h. Finally , in order to find that a discriminatory intent
induced the discharge of MacWilliams it is not essential to
find that his union activity to be the only motivation re-
sponsible for his termination . His dismissal will be found
to be discriminatory if his union activity was a substantial
ground therefor notwithstanding that a valid ground may
also have existed for it . Sinclair Glass Co. v. N.L.R .B., 465
F.2d 209 , 210 (C.A. 7, 1972); N. L. R. B. v. Whitin Machine
Works, 204 F.2d 883, 885 (C .A. 1). I expressly find that the
union activity of MacWilliams was a substantial, but not
necessarily the only, ground for releasing him. Cf. N.L.R.B.
v. Lexington Chair Company, 361 F.2d 283 , 295 (C.A. 4,
1966); N.L.R.B. v . West Side Carpet Cleaning Co., 329 F.2d
758, 761 (C.A. 6).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondent set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with the operations of Respondent described
in section I, above , have a close , intimate , and substantial
relation to trade , traffic , and commerce among the several
States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
GATEWAY PRESS, INC.
V. THE REMEDY
As Respondent has been found to have engaged in cer-
tain unfair labor practices , I shall recommend that it cease
and desist therefrom and that it take specific action, as set
forth below , designed to effectuate the policies of the Act.
In view of the finding that Respondent discriminatorily
discharged John MacWilliams , it will be recommended
that it be ordered to offer him immediate and full reinstate-
ment to his former position or, if it no longer exists, to one
which is substantially equivalent thereto, without prejudice
to his seniority and other rights and privileges . It will fur-
ther be recommended that MacWilliams be made whole
for any loss of earnings suffered by reason of the discrimi-
nation against him.
In making MacWilliams whole Respondent shall pay to
him a sum of money equal to that which he would have
earned as wages from the date of his discharge to the date
of his reinstatement or a proper offer of reinstatement, as
the case may be, less his net earnings during such period.
Such backpay , if any, is to be computed on a quarterly
basis in the manner established by F. W. Woolworth Com-
pany, 90 NLRB 289 (1950 ),. with interest thereon at 6 per-
cent calculated by the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). It will also be recom-
mended that Respondent preserve and make available to
the Board or its agents , upon reasonable request, all perti-
nent records and data necessary to aid in analyzing and
determining whatever backpay may be due. Finally, it will
be recommended that Respondent post appropriate no-
tices.
The conduct of Respondent in my opinion does not de-
pict a general hostility to the Act. Accordingly, I find that
an Order is sufficient which is limited to enjoining the un-
fair labor practices found above and similar or like acts.
Since the remedy adopted should be commensurate with
the infractions of law found herein , relief more extensive in
scope is not warranted.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Local 7 is a labor organization within the meaning of
Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act.
3. By discriminating in regard to the tenure of employ-
ment of John MacWilliams, thereby discouraging member-
ship in Local 7, a labor organization, Respondent has en-
gaged in unfair labor practice transgressing Section 8(a)(3)
and (1) of the Act.
4. By instructing employee Raymond Henry to act as an
informer of union activities among Respondent's employ-
ees, Respondent has committed an unfair labor practice
condemned by Section 8(a)(1) of the Act.
5. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
683
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER2
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Local 7, or any other
labor organization, by discharging employees or otherwise
discriminating in any manner in respect to their tenure of
employment or any term or condition of employment.
(b) Instructing employees to act as informers of union
activities among Respondent's employees.
(c) In any like or similar manner interfering with, re-
straining, or coercing employees in exercising rights guar-
anteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer John MacWilliams immediate and full rein-
statement to his former position, or if it no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed
by him, and make him whole for any loss of pay he may
have suffered, by reason of Respondent's discrimination
against him, with interest at the rate of 6 percent, as pro-
vided in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports and all other records necessary to
ascertain the amount, if any, of backpay due under the
terms of this Recommended Order.
(c) Post at its plant at Monroeville, Pennsylvania, copies
of the attached notice marked "Appendix." 3 Copies of
said notice, to be furnished by the Regional Director for
Region 6, after being signed by a duly authorized represen-
tative of Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
2 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 will, as provided in Sec. 102.48
of said Rules and Regulations, be adopted by said Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
3 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT discourage membership in Interna-
tional Typographical Union , Pittsburgh Typographi-
cal Union No . 7, AFL-CIO, or any other labor orga-
nization, by discharging employees or otherwise
discriminating in any manner in respect to their tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT instruct any employee to act as an
informer of union activities among our employees.
WE WILL NOT in any like or similar manner interfere
with , restrain , or coerce our employees in exercising
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL offer John MacWilliams immediate and
full reinstatement to his former position , or if that po-
sition no longer exists , to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed by him, and
make him whole for any loss of pay he may have suf-
fered as a result of his discharge by us, with interest
thereon at 6 percent.
All our employees are free to become , remain , or refuse
to become or remain , members of the above named Local
No. 7, or any other labor organization.
GATEWAY PRESS, INC.