Goren Printing Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1987

284 N.L.R.B. 30 (N.L.R.B. 1987)

30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Goren Printing Co., Inc. and John P. Carter, Jr. and Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC. Cases 1-CA-23817, 1-CA-23839, and 1-CA- 23996 29 May 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 20 November 1986 Administrative Law Judge Walter H. Maloney, Jr. issued the attached decision.' The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order3 as modified. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 5. "5. By failing to bargain collectively in good faith with the Graphic Communications Interna- tional Union, Boston Local No. 600, AFL-CIO- CLC, the Respondent violated Section 8(a)(5) of the Act." REMEDY Having found that the Respondent has commit- ted various unfair labor practices, we shall order it to cease and desist therefrom and to take other af- The judge inadvertently stated that "Goren was offered reinstate- ment to his job and was working at the time of the hearing in this case." Carter should be substituted for Goren The judge also inadvertently stated that the Union filed a second amended charge in Case 1-CA-23817 on 10 July 1986 In fact it was Carter who filed this second amended charge 2 In finding that the Respondent's economic defense was a pretext, the judge relied, Inter aim, on the Respondent's hiring of a new employee (Newhall) "Just" before Vacca's discharge The record, however, is not clear as to exactly when Newhall was hired Thus, we rely on the other reasons set forth in the Judge's decision to reach the finding that the Re- spondent's economic defense was a pretext Additionally, we find it un- necessary to decide whether the Respondent's discharge of employee Carter resulted in a repudiation of the collective-bargaining agreement's discharge, disciplinary, and layoff provisions. 3 In his Order the Judge requires the Respondent to offer reinstatement to employees Carter and Vacca It appears, however, that offers of rein- statement were made to both of these employees and that Carter accept- ed the offer and, in fact, was working for the Respondent at the time of the hearing in this case. Consequently, we have deleted from the Order the requirement that the Respondent offer Carter and Vacca reinstate- ment We have also deleted the visitatorial clause from the Order as we see no need for such a clause under the circumstances of this case Final- ly, we have corrected the Order to reflect that the Respondent should cease and desist from discharging or disciplining employees because they have given testimony under the National Labor Relations Act 284 NLRB No. 4 firmative action to effectuate the policies of the Act. Since the violations of the Act found herein repeat violations found in an earlier case and are pervasive, demonstrating a tendency on the part of the Respondent to behave in total disregard for the rights of its employees and its obligations under the law, we shall order a broad 8(a)(1) remedy to enjoin any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). We shall also order that the Respondent make whole employees John Carter and James Vacca for any loss of pay or benefits they suffered by reason of the discrimination found herein as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with in- terest as prescribed to be computed in the manner prescribed in New Horizons for the Retarded.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent, Goren Printing Co., Inc., Boston, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively in good faith with Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC, as the ex- clusive collective-bargaining representative of the pressmen, cutters, and other associated employees employed by the Respondent at its Boston, Massa- chusetts shop. (b) Discharging or disciplining employees be- cause they have given testimony under the Nation- al Labor Relations Act. (c) Discouraging membership in or activities on behalf of Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC, or any other labor organization, by discharging em- ployees or otherwise discriminating against them in their hire or tenure. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Make John Carter and James Vacca whole for any loss of pay or other benefits which they have suffered by reason of the discrimination found herein, in the manner described above in the remedy section. 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.0 § 6621. GOREN PRINTING CO. 31 (b) On request bargain collectively in good faith with Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC, as the ex- clusive collective-bargaining representative of the pressmen, cutters, and other associated employees employed by the Respondent at its Boston, Massa- chusetts shop. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at the Respondent's Boston, Massachu- setts shop copies of the attached notice marked "Appendix." 5 Copies of the notice, on forms pro- vided by the Regional Director for Region 1, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively in good faith with Graphic Communications Interna- tional Union, Boston Local No. 600, AFL-CIO- CLC, as the exclusive collective-bargaining repre- sentative of our shop employees. WE WILL NOT discharge or discipline employees because they have given testimony under the Na- tional Labor Relations Act. WE WILL NOT discourage membership in or ac- tivities on behalf of the above-mentioned Union, or any other labor organization, by discharging em- ployees or otherwise discriminating against them in their hire and tenure. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively in good faith with Graphic Communications Interna- tional Union, Boston Local No. 600, AFL-CIO- CLC, as the collective-bargaining representative of the pressmen, cutters, and other associated employ- ees employed by us at our Boston, Massachusetts shop. WE WILL make John Carter and James Vacca whole for any loss of pay or benefit which they have suffered by reason of the discrimination found in this case, plus interest. WE WILL notify John Carter and James Vacca that we have removed from our files any reference to their discharges and that their discharges will not be used against them in any way. GOREN PRINTING CO., INC. Ronald S. Cohen, Esq., for the General Counsel. Russell Goren, of Boston, Massachusetts, for the Re- spondent. George 1. Carlsen, of Revere, Massachusetts, for the Charging Party. DECISION STATEMENT OF THE CASE The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Boston, Mas- sachusetts, on a consolidated unfair labot practice com- plaint,' issued by the Regional Director for Region 1 The principal docket entries in this case are as follows Charge filed against Respondent by John Carter, an individual, in Case 1-CA-23817, on May 6, 1986, and amended charge filed on June 12, 1986, charge filed against Respondent by Boston Local No. 600, Graphic Communications International Union, Boston Local No 600, AFL-CIO- Continued 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and amended at the hearing, which alleges that Respond- ent Goren Printing Co., Inc., 2 violated Section 8(a)(1), (3), (4), and (5) of the Act. More particularly, the amend- ed consolidated complaint alleges that the Respondent discharged John Carter and James Vacca because of their membership in and activities on behalf of the Union. In the case of Carter, the complaint further al- leges that the discharge was prompted, in part, by the fact that Carter testified against the Respondent in an earlier unfair labor practice case. The complaint also al- leges specific acts and omissions on the part of the Re- spondent evidencing a refusal to bargain with the Union in good faith and that the Respondent unilaterally changed the disciplinary, discharge, and layoff proce- dures set forth in a contract with the Union without bar- gaining with the Union over those changes. The Re- spondent denies these allegations, claiming in the alterna- tive that Carter was discharged because of economic conditions and because of various acts of misconduct, and that Vacca was laid off because of adverse economic conditions. On these contentions, the issues were joined.3 I. THE UNFAIR LABOR PRACTICE CHARGES ALLEGED Goren Printing Co. is a small commercial printing company owned by its president, Russell Goren, and his father and brother. Russell Goren is the sole operating principal. On March 20, 1984, the Union was certified as bargaining agent for its approximately seven pressmen, strippers, layout artists, and cutters. In the 2-1/2 years that have elapsed since the Union was certified, the Re- spondent has been in almost continuous litigation before the Board. The instant case is the third that has gone to hearing. In Goren Printing I, the Respondent was charged with certain violations of Section 8(a)(1) and (5) of the Act. After a hearing on July 25, 1985, before Administrative Law Judge Martin Linsky, the Respondent was found guilty of refusing to sign a collective-bargaining agree- ment that it had orally agreed to with the Union, bypass- ing the Union, and changing the terms and conditions of employment of employees with respect to extra time al- lowed for lunch on paydays, failing to pay performance CLC, in Case 1-CA-23839, on May 12, 1986, consolidated complaint issued by Regional Director for Region 1, against the Respondent on June 20, 1986; Respondent's answer filed on June 30, 1986; second amended charge filed by Union against Respondent in Case 1-CA-23817, on July 10, 1986; amended consolidated complaint issued by Regional Di- rector for Region 1, against the Respondent on July 16, 1986, charge filed against the Respondent by Union in Case 1-CA-23996, on June 30, 1986, and amended charge filed on August 15, 1986; amended consolidat- ed complaint issued by Regional Director for Region 1, against Respond- ent in all three cases on August 27, 1986, Respondent's answer filed on September 8, 1986; hearing held in Boston, Massachusetts, on September 22 and 23, 1986. 2 The Respondent admits, and I find, that it is a corporation that main- tains an office and place of business in Boston, Massachusetts, where it is engaged in the commercial printing business. During the preceding 12 months, it derived gross revenues at the aforementioned place of business in excess of $500,000, and purchased goods and materials valued in excess of $50,000 from firms and individuals in Massachusetts that, in turn, pur- chased them from points and places located outside the Commonwealth of Massachusetts. Accordingly, the Respondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 Errors in the transcript have been noted and corrected bonuses, issuing verbal and written warnings in violation of the collective-bargaining agreement, threatening to de- prive employees of certain benefits, and threatening uni- lateral changes in the terms and conditions of employ- ment at or near the termination date of the agreement. Part of the remedy adopted by the Board in its order, dated June 26, 1986, was to remove from the personnel records of Charging Party John Carter and other em- ployees certain unlawful warnings that had been given to them. (280 NLRB 1120 (1986).) While Goren Printing I was pending before the Board on exceptions, Respondent was the subject of a second unfair labor practice complaint that was heard on March 6, 1986, by Administrative Law Judge Harold Bernard. This case is still pending. In Goren Printing II, the Re- spondent was charged with further violations of Section 8(a)(1) and (5) of the Act. (Case 1-CA-23359.) The com- plaint therein alleged that in the late summer and fall of 1985, the Respondent unilaterally terminated insurance benefits, unilaterally granted wage increases to unit em- ployees, unilaterally ceased granting performance bo- nuses, and unilaterally changed its policy on pay rate progressions, all in violation of its duty to bargain collec- tively with the Union. The complaint also alleges that the Respondent violated its duty to bargain by refusing to furnish the Union with relevant information and by stalling negotiations. The events in this case began to unfold shortly after the close of the hearing in Goren Printing II. On August 15, 1984, the parties orally agreed to a contract covering the pressmen bargaining unit. The Board's Order, dated June 26, 1986, directed the Respondent to execute that contract and to give it retroactive effect to August 9, 1984. 4 The contract in question expired on August 8, 1985. Sometime thereafter, negotiations began for a second contract. No contract has been agreed to and no bargain- ing sessions have taken place since the hearing in Goren Printing II in early March 1986. On March 31 Goren and George J. Carlsen, the Union's acting president and ne- gotiator, spoke briefly over the telephone. One of the subjects of the conversation was arranging a meeting date for negotiations. Goren said he would call Carlsen to fix a meeting date. On April 7 Carlsen wrote Goren, stating that he had been waiting for a call from Goren but, not surprisingly, no call had come. He sent Goren a union counterproposal to a written proposal that Goren had given Carlsen a month earlier. On April 16 Goren phoned Carlsen to say that the Union's April 7 counter- proposal was ridiculous, that he was tired of negotiating, and that "Carlsen's people" should get ready to go on strike. Carlsen's reply was that he was aware that the Company was in fact owned by three individuals, not just Russell Goren, and that before calling a strike he would first contact Russell Goren's father and brother, 4 As more fully set forth in Judge Lmsky's decision, the contract in question was executed on January 22, 1985, as a part of a settlement agreement in Goren Printing I However, because that settlement agree- ment was not honored by the Respondent, it was set aside, and a require- ment to execute that agreement was incorporated in the Order that the Board eventually Issued GOREN PRINTING CO 33 and notify the Company's customers. Russell Goren de- manded that Carlsen refrain from speaking with his brother. He stated that he was involved in an eviction proceeding, apparently in landlord and tenant court, and asked Carlse,n to hold off until after a hearing in that case that was scheduled for May 3. He promised to for- ward Carlsen a counterproposal at that time and Carlsen agreed. On May 6 Carlsen called Goren and asked about the promised counterproposal. Goren told him that the eviction hearing had been postponed until May 15 and that he would send a proposal to him at that time "if he ever got back to him at all." Carlsen's reply was that he would speak to Shop Steward Dan Smith concerning the feelings of the members of the bargaining unit. No coun- terproposal was sent to Carlsen by Goren. During the summer, Carlsen phoned Goren several times without success for the purpose of setting a date for negotiations. Sometimes these conversations took place in conjunction with discussions about the Vacca and Carter terminations. When pressed for contract pro- posals, Goren's reply was always that he did not have time to formulate any proposals. On August 19, about a month in advance of the hearing in this case, Goren sent Carlsen a note stating that he would be glad to meet with Carlsen any time at the latter's convenience. On August 25 Carlsen responded in writing, suggesting that they meet at the Union's office in Revere at 11 a.m., on either September 4 or 5. On September 3 Carlsen phoned Goren to remind him that he was holding those dates open for negotiations. Goren said that he could not meet on September 4 but agreed to do so at 11 a.m., on Sep- tember 5. Late in the afternoon of September 4, Goren called Carlsen and canceled the meeting that had been set for the following morning. Carlsen complained that he had held these two dates open for Goren and could not meet with him for the next 2 weeks because of other negotiations in which he was involved. As of the time of the hearing in this case on September 22 and 23, no date had been set for further negotiations. While Goren and Carlsen were having their difficulties on the bargaining front, events were taking place at the shop and elsewhere that exacerbated relations between the parties. As indicated above, Carter testified in sup- port of the complaint at the unfair labor practice hearing in Goren Printing II, which took place on March 6. At that hearing, Goren represented the Company, as he did in this proceeding, without the assistance of an attorney. The confrontation between Carter, the witness, and Goren, the advocate, was a nasty, contentious one. Under the guise of cross-examining Carter, Goren stated for the record that a portion of Carter's testimony con- cerning the date when Carter became a cutter and Solna operator was "a lie." Goren argued with Carter concern- ing certain written entries on Carter's timecard, asked Carter questions in which he accused Carter of altering his timecard by filling it out in ink, and argued with Carter about erasures on Carter's timecard, and whether Carter had left the shop on various occasions before completing an 8-hour shift. For his part, Carter gave no quarter and strongly disputed Goren's statements and im- plications from the witness stand. On Friday, May 2, just before he was scheduled to take a week's vacation, Carter was told by Goren that the latter wanted to speak to him before he left. At the end of the shift, Goren called off the meeting, stating that he was busy at the time. On the following morning, a Saturday, Goren phoned Carter and asked him to come to the shop. At this meeting Goren fired Carter. He told Carter that he was terminating him for economic rea- sons, stating that he was experiencing cash flow prob- lems. Carter replied that Goren's statements did not make sense inasmuch as he was the lowest paid employ- ee in the shop. Goren then added other reasons. On the following Monday morning, the parties met again at Carter's request. On this occasion, Shop Steward Smith was present. In Smith's presence, Carter asked Goren why he had fired him. Goren replied that he was trying to expand his sales force and that he had to reduce the complement of shop employees in order to do so. He added that if the salesmen were able to bring in more work Carter could return to the shop at a later date. Goren stated that money was tight so he was going to get rid of the employee who was guilty of the most con- tract violations. As Goren put it to Carter, "I have plenty against you to fire you and somebody has to go. You're the one who is going." Carter argued that if eco- nomic reasons were what prompted the layoff, he was not the one who should have been selected because he had more seniority than anyone else in the shop except Joe Estella and Dan Smith. Smith argued that if Goren was basing the discharge on Carter's violations of the contract Goren still could not prevail because the NLRB had ruled that some of his citations against Carter had been given in violation of the law. Goren's reply was that the NLRB judge could not do anything about it be- cause the case in question (Goren Printing I) was on appeal. In a letter to the Union, dated May 6, Goren told Carlsen that Carter's employment had been terminated "due to repeated and numerous violations of the union contract." Goren was offered reinstatement to his job about July 23 and was working at the time of the hear- ing in this case. In mid-May Pressman James Vacca had a brief con- versation with Goren at the shop just before Vacca was scheduled to go on vacation. Goren asked Vacca if he liked his job. Vacca replied that he did not like the way Goren was going about negotiating a contract, and stated further that he thought that he was being treated unfair- ly, arguing that Goren had asked him to work harder when salesmen began to bring in more work when, in Vacca's estimation, Goren should have asked Carter to come back to work. Vacca also asked Goren for more money because he felt he was falling behind financially. Goren replied that if Vacca would work harder he would discuss a raise with him after the latter got back from vacation, and they could then call in Carlsen or Smith to ratify any agreement they might make. Vacca said that this was not the way to give raises and told Goren he should be negotiating with the Union for the entire shop. On June 5, shortly after Vacca returned from vacation, Goren called Vacca into the office and told him that he 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was letting him go. He offered Vacca the option of leav- ing immediately or of staying on until he found another job. Vacca asked Goren if he was being fired. Goren re- plied, "No, I'm laying you off at this time." Vacca opted for an immediate layoff in preference to resigning at some future point in time, whereupon Goren pulled three checks out of his desk drawer and handed them to Vacca. One check was for a week's pay that was due and owing, a second check was for a day's pay, and the third was for accrued vacation pay. Vacca took them and left. Later in the day, Smith asked Goren if he had fired Vacca. Goren replied that he had done so. On July 17 Vacca received a letter from Goren offering him rein- statement. Vacca declined to return. II. ANALYSIS AND CONCLUSIONS Any evaluation of Goren's behavior, as it has unfolded in this record, must begin with an assessment of Goren's basic attitude toward the unionization of his shop. This event took place in the spring of 1984 by a unanimous vote of the seven individuals who were then employed. Only two of those employees are still left on his payroll. One of them is John Carter, who returned after having been discharged on May 2. It is obvious that Goren has never reconciled himself to the results of that election. Goren admitted on the record in this case that he "pan- icked" when first hearing about the union organizing campaign when he fired former employee Dan Smith for discriminatory reasons, excusing himself by the fact that he remstated Smith a day or two after firing him. Goren Printing I is replete with evidence of hostility on the part of Goren to the whole notion of collective bargaining. That case also demonstrated that Goren's word is not his bond, even when it is incorporated into a settlement agreement. Goren fired John Carter within 2 months after he and Carter had engaged in an acrimonious exchange which occurred in the course of the litigation of an unfair labor practice complaint. The basis asserted for Carter's dis- charge was a shifting basis. This fact, in and of itself, renders this action suspect. First Goren told Carter that he was being discharged because the Company was ex- periencing economic difficulties. Then he told Carter that he was being discharged because of previous mis- conduct, which he referred to in the record as "contract violations." This meant that cash flow problems did not prompt Carter's discharge but merely provided the set- ting in which it took place. Respondent was under a con- tinuing obligation to the employees to follow seniority in making economic layoffs. Although the contract that em- bodied this obligation had expired, the Respondent had not negotiated any alternative practice or procedure to replace seniority and was still held to this standard in taking personnel actions. Its failure to observe seniority in making an economic layoff is a further mdicia of dis- criminatory intent. However, the Board need not look merely to inferences in evaluating Goren's motivation. Goren stated quite emphatically that he had disregarded seniority in selecting Carter for removal in order to get rid of Carter. Having admitted that seniority was not fol- lowed in taking this action, Goren necessarily acknowl- edged that his economic excuse was a pretext. In his view, it was the pretext for a disciplinary discharge. To use Goren's expression, it stood to reason that, as long as you were going to discharge someone, it should be the individual who had the worst record. This was a flat re- pudiation of Goren's obligation to his employees, who were protected by seniority in the event of economic troubles, because it was a repudiation of a collectively bargained obligation, it was a violation of Sections 8(a)(1) and (5) of the Act. Goren's alternative ground for removing Carter was the second prong of a two-part pretext. Reliance on ele- ments of Carter's misconduct that were remote in time from the actual discharge brings this case into line with a long series of stale complaint cases, in which the Board has found a violation of the Act because an employee's misconduct was used as the excuse for, rather than the motivating cause for, a discriminatory discharge. Fisher Stove Works, 235 NLRB 1032, 1038 (1978); Markle Mfg. Co., 239 NLRB 1142 (1979); Buffalo Concrete, 276 NLRB 839 (1985). At least one of the violations asserted in support of the action taken-a warning to Carter given on May 24, 1985, for taking too long a lunch hour on Friday to cash a paycheck-was found by the Board in Goren Printing I to be a violation of the Act and hence not a valid basis for discharge. 5 All the other shortcom- ings asserted by Goren as the basis for the May 2, 1986 disciplinary discharge of Carter were also remote in time. All of them antedated the March unfair labor prac- tice hearing at which Carter testified, and all were at least 4 months old. Carter's discharge presents a case in which a known union adherent was terminated by a Respondent who harbored deep and abiding animus, who attempted to justify its action by vacillating between two pretexts, nei- ther of which were valid, and who took the action in question not long after an acrimonious exchange that oc- curred in the course of a Board hearing in which the dis- charged employee was giving testimony in support of an unfair labor practice complaint. Moreover, the evidence relied on by the Respondent in defending its action was, in large measure, provided by the testimony of its presi- dent, whose testimony I flatly discredit on the basis of demeanor. Accordingly, I conclude that by discharging John Carter the Respondent violated Section 8(a)(1), (3), and (4) of the Act. In the case of James Vacca, the Respondent's action was taken not long after Vacca and Goren had a dis- agreement concerning the progress of contract negotia- tions and Goren's individual approach to labor relations. Vacca was critical of Goren's attitude and was not bash- ful about telling him so. Within 2 weeks, he was gone. Respondent would have us believe that this discharge was also a product 'of economic circumstances and a de- teriorating cash flow position. However, the data on Re- 5 The fact that Goren Printing I was pending on May 2, 1986, before the Board on exceptions to a decision by Judge Lmsky is an irrelevancy Because the warning itself was a violation of the Act from its inception, the stage that litigation had reached at any given point in time in provid- ing a remedy for that violation has no bearing on the nature of an act that the Respondent asserted here for the 'second time as the basis for a disciplinary action GOREN PRINTING CO. 35 spondent's monthly gross sales that was placed in evi- dence shows that in May, just before Vacca's discharge, Respondent had experienced a considerable increase in business, due perhaps to the increased size of its sales force. Although gross sales may not be a complete deter- minant of economic health, they are a reliable measure of how much work was available in the shop. This fact, coupled with the further fact that Respondent had just hired a new employee whom it dubbed a working fore- man, demonstrates that lack of work was not a motivat- ing factor in Vacca's discharge. Moreover, a brief 2 weeks before this event, Goren was willing to discuss with Vacca the terms of an individual pay increase as soon as Vacca returned from vacation, without any sug- gestion at that time that his services would not be needed in the future. This further fact convincingly es- tablishes that the excuse offered to Vacca on June 5 by Goren, when he handed Vacca his final checks, was a pretext and that the real reason for the discharge was Vacca's recent and emphatic support of collective bar- gaining and his criticism of Goren for failing to bargain in good faith. For these reasons I conclude that by dis- charging James 'Vacca the Respondent violated Section 8(a)(1) and (3) of the Act. Respondent's bargaining with the Union for a second contract is as replete with illegal conduct as was its bar- gaining for the first contract, as set forth in Goren Print- ing I. Round two was not materially different than round one and was simply a continuation thereof. The single most important feature of bargaining over a second con- tract in the spring and summer of 1986 is that no bar- gaining took place because Goren failed to meet at all with the Union to discuss contract terms. No excuse for this dereliction appears in the record. To the contrary, the record is replete with evidence that demonstrates that Goren continued to act with complete bad faith in meeting his obligation to bargain collectively. In the spring of 1986 he reneged on his promise to furnish any counterproposals to an outstanding union proposal that he had denounced as ridiculous. He told Carlsen that he was tired of bargaining and that employees should get ready to go on strike. He also told the Union during the period of time that he was assertedly too preoccupied with a landlord and tenant dispute to meet with them and that he would get back to the Union after the evic- tion hearing if be ever got back to them at all. He also told the Union on another occasion that he did not have time to respond to its proposals. As noted above, he at- tempted to bypass the Union and deal directly with Vacca concerning the latter's wages. On September 4 he abruptly canceled a scheduled bargaining session on Sep- tember 5 without giving any excuse. Such repeated mis- conduct convincingly establishes that Goren never had any intention of bargaining in good faith with the Union. By adopting such a bargaining posture, the Respondent violated Section 8(a)(1) and (5) of the Act. The General Counsel argues that by violating the terms and condi- tions of an expired contract in discharging Carter and Vacca the Respondent unilaterally changed the discipli- nary, discharge, and layoff procedures contained in that document. It is almost a philosophical rather than a legal question whether a refusal to abide by the terms and conditions of this document amounts to a unilateral change in its terms and conditions on a permanent basis, as, for example, in the case of a unilaterally instituted wage increase, or whether Goren simply ignored these requirements on an ad hoc basis in taking action against these two union adherents. In any event, Goren's action relative to Carter amounts to a repudiation of a collec- tively bargained obligation to his employees and, as noted above, is a violation of Section 8(a)(1) and (5) of the Act. On the foregoing findings of fact and conclusions of law, and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1. Goren Printing Company, Inc. is now and at all times material has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time pressmen, strip- pers, layout artists, shippers, receivers, and cutters em- ployed at the Respondent's Boston, Massachusetts, shop, excluding casual employees, office clerical employees, bookkeepers, managerial employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, Graphic Communications International Union, Boston Local No. 600, AFL-CIO- CLC has been the exclusive collective-bargaining repre- sentative of all of the employees in the unit found appro- priate in Conclusion of Law 3 for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By failing to bargain collectively in good faith with the labor organization referred to above in Conclusion of Law 4, and by repudiating collectively bargained obliga- tions found in the disciplinary, discharge, and layoff pro- visions of a contract that it had concluded with that labor organization, the Respondent violated Section 8(a)(5) of the Act. 6. By discharging John Carter because he gave testi- mony under the Act, the Respondent violated Section 8(a)(4) of the Act. 7. By discharging John Carter and James Vacca be- cause of their sympathies with, and activities on behalf of, Graphic Communications International Union, Boston Local No. 600, AFL-CIO-CLC, the Respondent violat- ed Section 8(a)(3) of the Act. 8. By engaging in the unfair labor practices set forth above in Conclusions of Law 5, 6, and 7, the Respondent violated Section 8(a)(1) of the Act. The unfair labor practices have a close, intimate, and adverse effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other affirmative actions that were designed to effectuate the purposes and policies of the Act. Because the violations of the Act found herein and in previous cases are repeat- ed and pervasive and demonstrate an attitude on the part of this Respondent to behave in total disregard for the rights of its employees and its obligations under the law, I will recommend to the Board a so-called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend that the Respondent be re- quired to offer full and immediate reinstatement to John Carter and to James Vacca, and that they be made whole for any loss of pay or benefits which they may have suffered by reason of the discriminations found herein in accordance with the formula set forth in the Woolworth case, 6 with interest thereon at the adjusted prime rate used by the Internal Revenue Service for the computation of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that the Respondent be re- quired to post the usual notice advising its employees of their rights and of the results in this case. The General Counsel requests a visitatorial clause per- mitting the use of discovery should enforcement be nec- essary in a United States court of appeals. Because of the Respondent's obdurate and intransigent behavior in this and other cases, I readily recommend that such a clause be placed in the Board's Order. I further recommend to the Board that the orders in this and other cases be en- forced and that any additional action against this Re- spondent to enforce the Act be taken in contempt pro- ceedings in an appropriate court of appeals. [Recommended Order omitted from publication.] 6 F. W. Woolworth Co, 90 NLRB 289 (1950).