News Herald

National Labor Relations Board - Board Decisions

Feb 7, 1980

247 N.L.R.B. 979 (N.L.R.B. 1980)

NEWS HERALD
Sonoma Community Press d/b/a News Herald and
Maureen Grafeld. Case 20-CA-13888
February 7; 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On July 20, 1979, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering 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 briefs
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
Relations Board adopts as its hereby orders that the
complaint be, and it hereby is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance ofall of the relevant evidence convinces us that
the resolutions are incorrect Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings
The General Counsel has also excepted, inter alia, to the Administrative
Law Judge's finding that "down routes" were routes in which no newspapers
were delivered. He contends that down routes were in fact routes serviced by
independent delivery people. Our review of the record herein reveals that the
term "down routes" was used to describe both a route for which Respondent
had no carrier of its own to deliver its newspapers, and one for which
independent delivery people were sometimes hired on a piece rate basis to
deliver Respondent's newspapers. The ambiguity involved in the term "down
routes," as used by the Administrative Law Judge, is not material to and has
no bearing on our adoption of his Decision.
In his Decision, the Administrative Law Judge inadvertently erred when he
stated that the revised tally of ballots showed seven undetermined challenged
ballots. In fact, the revised tally of ballots showed no undertermined
challenged ballots.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard by me in Santa Rosa, California, on March
12, 13, and 26, 1979. The charge was filed on June 13, 1978,
by Maureen Grafeld, as individual. The complaint, which
issued on November 3, 1978, and was amended at the
hearing, alleges that Sonoma Community Press d/b/a News
Herald, herein called Respondent, violated Section 8(a)(4)
and (I) of the National Labor Relations Act, as amended.
Issues
The primary issues are whether Respondent violated the
Act by giving Maureen Grafeld an unfavorable work
evaluation on June 7, 1978, because she gave testimony at a
Board representation case hearing, and by discharging her
on June 19, 1978, because of that testimony and because she
filed a charge under the Act.
All parties were given full oportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, thich
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record' of the case and from my
observation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with a place of
business in Santa Rosa, California, publishes and distributes
a weekly newspaper and a quarterly magazine. During the
calendar year preceding issuance of the complaint Respon-
dent had gross revenues in excess of $200,000 and, during
the same period, it purchased and received supplies directly
from suppliers located outside of California valued in excess
of $10,000. The complaint alleges, the answer admits, and I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent publishes a weekly newspaper known as the
News Herald.' The News Herald is distributed without
charge to recipients, and Respondent obtains its revenues
The unopposed motion of the General Counsel to correct the transcript is
hereby granted.
Respondent also publishes a quarterly magazine known as the Sonoma
Business Magazine.
247 NLRB No. 148
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from advertising. The bulk of the newspapers are distributed
by carriers who are assigned various routes. Most of the
carriers are children who are compensated through contri-
butions made by the recipients for the delivery of the papers.
The carriers are supervised by area advisors. A circulation
manager is in overall charge of the distribution of the
newspaper. From July 1, 1977, until mid-November 1977
Maureen grafeld and Caroline Stokes were co-circulation
managers. In mid-November 1977 Stokes left Respondent's
employ and Grafeld became sole circulation manager. She
remained in that position until June 19, 1978, when she was
discharged. The parties stipulated and I find that Grafeld
was a supervisor within the meaning of the Act.
On September 15, 1977, Bay Area Typographical Union
No. 21, herein called the Union, filed a petition for an
election in Case 20-RC-14470.' Respondent filed a cross-
petition for an election in Case 20-RM-2192. A hearing was
held on the petitions on November 16, 1977.' Pursuant to a
Direction of Election dated December 9, 1977, an election
was conducted on January 12, 1978. The tally of ballots
showed that of approximately 30 eligible voters there were
12 votes for the Union, 11 votes against the Union, and 7
challenged ballots. On January 19, 1978, the Union filed
timely objections to the election. Objection 5 reads:
Pursuant to direction of management, a supervisory
employee conducted meeting among employees and
otherwise encouraged employees to establish " a Com-
pany Union" for the purpose of defeating the Union in
the election. One or more supervisory employees
actively participated in the attempt to formulate a
Company Union.
On March 30, 1978, the Regional Director for Region 20
issued a Supplemental Decision and notice of hearing
directing that a hearing be held with respect to that objection
and whether Respondent told employees it would go out of
business if the Union were selected. A hearing was also
directed with regard to some of the challenged ballots. That
hearing was conducted on June 5 and 6, 1978. As is set forth
in detail below, Garfeld testified at that hearing pursuant to
a subpena from the Union. Based largely on the testimony
of Grafeld, the hearing officer held:
There is undisputed evidence that Supervisor Mau-
reen Grafeld [fn. omitted] encouraged other employees
to create a company union to defeat Petitioner Union in
an election. It is further undisputed that Grafeld stated
to employees on more than one occasion that the
Employer would go out of business if it had to deal with
the I.T.U.
The hearing officer recommended that some of the chal-
lenged ballots be opened and counted and that, if the Union
did not receive a majority of the votes, the election be set
aside because of Grafeld's conduct.
On September 8, 1978, the Regional Director issued a
Second Supplemental Decision and Order affirming the
'The unit petitioned for was:
All full-time and regular part-time employees, including employees in the
advertising, editorial. business orfice. circulation and production depart-
ment; excluding all other employees, guards and supervisors as defined in
the Act.
rulings, findings, and conclusions of the hearing officer and
adopting his recommended Order. After some of the
challenged ballots were opened, a revised tally of ballots
issued, showing 12 votes for the Union, 13 against the
Union, and 7 undetermined challenged ballots. A new
election was scheduled for February 6, 1979, but before the
vote could take place the Union disclaimed any interest in
representing the employees and requested to withdraw its
petition. The Regional Director approved the Union's
request to withdraw the petition and the election was
canceled.
On June 7, 1978, the day after Grafeld testified in the
representation case, she was given a written unfavorable
work evaluation. On June 13 she filed the charge in the
instant case, and on June 19 she was discharged.
B. Grafeld's Testimony in the Representation Case
Respondent filed its objections to the election on January
19, 1978. Objection 5 alleged that supervisors participated in
an attempt to formulate's a company union. Upon receiving
the objections, John Brill, one of Respondent's owners,'
asked Grafeld to submit a written report concerning her
knowledge of the matters relating to that objection. On
January 20, 1978, Grafeld submitted a report which is
summarized as follows:
In mid-September, Brill suggested that Grafeld and Co-
Circulation Manager Stokes talk to Alan Howells of the
Independent Journal about problems that that newspa-
per had with the Union. Howells told her about violent
incidents in the Independent Journal strike. Grafeld
decided to try to stop the Union. She came up with the
idea of an alternative to the Union, and she started to
organize an inside union. Brill knew about her activi-
ties, but it was not Brill's idea. Grafeld discussed the
matter with a number of employees and held meetings
on the matter. Grafeld and others discussed the matter
with an attorney and found that it would be quite
costly. They did not feel that the employees wanted to
share lawyers' fees so the matter was dropped. Shortly
thereafter it was determined that Grafeld was a supervi-
sor, and all her activities concerning the Union ceased.
On June 2, 1978, both Brill and Grafeld received subpenas
to testify at the representation case hearing which was
scheduled to begin June 5. They discussed the subpenas, and
Brill asked Grafeld whether she was nervous. Grafeld
replied that she was, and Brill said she should be. There was
no further discussion about the subpenas or about Grafeld's
prospective testimony.
Grafeld testified at the representation case hearing on
June 5 and 6, 1978. She averred in substance to the
following:
Howells of the Independent Journal suggested an in-
house union. Shortly thereafter Grafeld spoke to Brill
and told him that she was organizing a meeting for
At that hearing it was stipulated that Grafeld was a supervisor within the
meaning of the Act.
' Brill is general manager, William Bryon is president, David Bolling is
editor, and Dale Tock is advertising manager of Respondent. All are co-
owners. The complaint alleges, the answer admits, and I find that all are
supervisors within the meaning of the Act.
980
NEWS HERALD
employees who were interested in an in-house union.
Brill said he didn't want to get involved, but he
encouraged her and told her to seek legal counsel. In
late September or early October 1977, Grafeld had a
formal meeting with employees. At that meeting she
told the employees that Brill and the owners would be
more willing to deal an in-house union than with the
ITU. Grafeld also had about six smaller meetings with
employees in which the in-house union was discussed.
She told Brill which employees attended the meetings
and who was receptive to the in-house union. On
various occasions she heard Brill say that the Company
might have to go out of business if the employees
selected the ITU. She told employees that it was
possible that the Company would go out of business and
that the employees would lose their jobs if the Union
came in. Later, after discussing the matter with an
attorney, she decided to abandon the project and she
told Brill of her decision.
Bryon and Brill also testified at the representation case
hearing, both denied that they said anything about the plant
closing if the Union came in and both, in substance, testified
that they had nothing to do with promoting an in-house
union.
C. Grafeld's Employment History
On August 1, 1976, Respondent hired Grafeld as an area
adviser at $2.50 an hour. Though she took on additional
duties thereafter, she retained her position as area adviser
throughout her employment. On September 1, 1976, she was
given an additional position as circulation assistant for
which she was paid $2.50 an hour on top of what she made
as area adviser. On October 1 she was given a raise to $3 an
hour and was given additional working hours. On July 1,
1977, Circulation Manager Stan Whitty left Respondent's
employ and Grafeld was made cocirculation manager
together with Caroline Stokes. At that time the pay of
Grafeld and Stokes was raised to $650 a month each. In
September 1977 each was given a raise to $675 a month. In
mid-November, Stokes left Respondent's employ and Graf-
eld was made sole circulation manager. Thereafter she was
given a $100-a-month raise on December 1, 1977; another on
March 1, 1978, and a third on June 1, 1978. By June I she
was earning $975 a month, plus her pay as area adviser. At
that point she was the highest paid salaried individual at the
newspaper except for the owners.
During the course of her employment she was often
praised for her work by the owners, and she was rarely
criticized.' She came up with some innovative ideas relating
to her work. In 1977 she received an award from an
insurance company for outstanding promotion of Interna-
tional Newspaper Carriers Day 1977. Also in 1977, the
newspaper received the Best Carrier Advertisements Award
from Cal Western Circulation Managers Association and a
Best Carrier Publicity Award from the California Controlled
Circulation Association. Several other newspapers sent
representatives to Respondent to see how the circulation
department was being run.
I In her testimony in the representation case she averred that she had never
been reprimanded about her work. In her testimony at the trial herein she
D. The Date on Which the Decision Was Made To
Discharge Grafeld
The complaint alleges that Grafeld was given an unfavor-
able work evaluation on June 7, 1978, because she gave
testimony at the representation case hearing on June 5 and 6,
1978. It further alleges that she was discharged on June 19,
1978, because she gave that testimony and/or because she
filed an unfair labor practice charge on June 13, 1978.
Respondent contends that the decision to discharge Grafeld,
as well as the drafting of the unfavorable evaluation,
occurred before June 5, 1978, and therefore could not have
been caused by Grafeld's testimony or charge.
Grafeld became sole circulation manager in mid-Novem-
ber 1977. By January 1978 the co-owners were discussing
among themselves their dissatisfaction with her work. Co-
owner William Bryon took notes at weekly owners' meetings
and he credibly testified concerning the owners' gradual
disillusionment with Grafeld. At a meeting on January 24,
1978, the owners discussed their dissatisfaction with the
work of several employees, including Grafeld. Problems
relating to circulation were discussed, and later Grafeld was
talked to about those matters. On March 15 and April 5.
1978, the owners discussed the possibility that Mike
McGuire, who was considering purchasing an ownership
interest, might replace Grafeld as circulation manager. At
the April 5 meeting it was decided that Grafeld would be
evaluated. On April 18 the owners tentatively decided to
discharge Grafeld on May 3. The owners reached a
consensus that Grafeld should be terminated and that she
was not a useful employee. On May 2, 1978, the owners
decided to withhold the termination until May 5, which was
a Friday. The notes for that meeting read "Maureen
terminate." As is set forth in detail below, the decision to
implement the discharge was delayed on a number of
occasions.
Grafeld averred in substance that prior to the time that
she testified in the representation case she liked her job, her
employees liked her, and that she did a good job. Respon-
dent's witnesses in substance testified that the owners were
not satisfied with her work performance and that she had
difficulty in getting along with both the owners and
employees under her. Grafeld's own statements at the trial
somewhat undermined her position. In an affidavit she gave
to the Board she averred that the owners' attitude toward
her changed somewhat after January 20, 1978, when she
wrote the statement relating to her involvement in orga-
nizing a company union. She averred that by the owner she
meant owner Brill. In a self-evaluation that Grafeld wrote on
March 31, 1978, she stated:
My dislikes: Since I started working for the News-
Herald, I year and 8 months ago, I have witnessed a
series of unhappy events. I personally know a little over
20 employees that have terminated their employment at
the News-Herald, not with positive, harmonious, and
meaningful reflections, but rather with personal con-
flicts and differences towards the owners. All of the
employees expressed to me their feelings of pressure,
underpay, and/or personality clashes. These employees
acknowledged that she was criticized for her treatment of Gertrude Buroker,
an employee under her supervision.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked in all areas of the newspaper-Production,
Editorial, Sales and Circulation. I feel the serious
turnover rate is abnormal and the cause has never
seriously been investigated. I feel that the reason people
are leaving is trying to be suppressed and those
employees that are concerned about it are being
pressured to leave the newspaper. This is of extreme
importance to me because I am one of those employees,
still left, that is concerned about the employ-
ee/employer problems at the News-Herald and I feel
that I am being excessively pressured.
Grafeld testified that when she used the word pressure she
did not mean that she was being pressured to leave, but just
meant that she had a lot of things to do and that she did not
have the proper staff. That explanation sheds some doubt on
Grafeld's candor. Her self-evaluation clearly states that
people concerned with the matters mentioned are being
pressured to leave the newspaper, that she is concerned with
those matters, and that she is being excessively pressured. It
is apparent that by March 31, 1978, Grafeld was worried
about being fired. That was more than 2 months before she
testified at the representation case hearing. Grafeld said as
much to co-owner Bolling during the first week of April
1978. At that time Grafeld told Bolling that 30 people had
left the newspaper under less than favorable circumstances
and that it was a trend caused by the attitude of the owners.
She asked whether she was going to be next.
A number of other witnesses credibly testified to facts
which indicated that the decision to discharge Grafeld was
made much earlier than the date she gave testimony in the
representation case hearing. On about March 31, 1978,
Grafeld tried to have employee Gertrude (Geets) Buroker
discharged. Buroker is an old friend of some of the owners
and she spoke to co-owner Bolling. She told Bolling that
Grafeld was so patronizing and condescending toward her
that she (Buroker) made stupid mistakes. Bolling told her:
"It is not you. Don't worry, Geets. We are going to be
getting rid of Maureen. Just stick it out for a while."
William Hewitt is the owner of a concern that places
advertising in the newspaper. He credibly testified that
during the third week in May 1978 co-owner Bill Bryon told
him that they were going to terminate the circulation
manager. He also credibly testified that he recommended
Phillip Brown, who is a friend of his, for the job, and that
later he called Brown about the matter. Phillip Brown, who
is now circulation manager, credibly testified that Hewitt
called him on June 2 1978, and told him that a job would be
opening for circulation manager at the newspaper. Brown
called Bryon and ultimately got the job.
Respondent did give Grafeld a raise on June 1, 1978. It
does seem unlikely that an employer would give a raise to an
employee that he intends to discharge. However, Respon-
dent's explanation of the raise was convincing. Co-owner
Brill credibly testified that, in mid-November 1977 when
Grafeld became sole circulation manager, he agreed that the
position of circulation manager should be paid more than
' Grafeld testified that she was told that she would get the raises if she did a
good job. Brill denied that any conditions were attached to the raise. I credit
Brill.
I Where the testimony of Grafeld differs from that of Brill, Bryon, and
Bolling, I do not credit Grafeld.
Grafeld was then getting and that they would raise the pay
for the position by $100 on December 1, $100 on March 1,
and $100 on June 1. Brill credibly averred that he felt that
if he did not give the raises he would be in trouble with the
state labor commissioner because he had promised them.
Co-owner Bryon also credibly testified that Garfeld's prede-
cessor, who was a male, had been making $1,000 a month at
the time of his discharge and that Grafeld, a female, was
taking over the same job at only $675 a month. He averred
that Respondent was losing money at the time and did not
want to give one large increase, so they decided to bring the
salary level up in stages.
I find that Respondent made the decision to discharge
Grafeld in April 1978, well before she testified at the
representation case hearing and well before she filed the
instant charge. It remains for consideration whether Re-
spondent accelerated the implementation of the discharge
decision because of Grafeld's protected activity and whether
Respondent decided to discharge her because of her antici-
pated testimony.
E. The Effectuation of the Decision To Discharge
Grafeld
Brill, Bryon, and Bolling credibly testified about the
sequence of events leading to the discharge.' At a meeting on
April 18, 1978, the owners tentatively decided to discharge
Grafeld on May 3. At an owners' meeting on May 2 they
decided to delay the discharge to May 5, so that it would be
effective on a Friday and would disrupt the operation less.
They also decided to give Grafeld I-week's severance pay,
and that decision was written on the notes for that meeting.
On May 5, 1978, Grafeld came to work late because she was
involved in an automobile accident while driving her child to
school. When she came to work she appeared very upset,
and Brill decided not to notify her of the discharge. At an
owners' meeting on May 9 Brill reported that he had reason
to believe that Grafeld was looking for work elsewhere.' The
owners decided to delay the discharge until June I in the
hope that she would find another job and leave with
amicable relations. The owners knew that there were Board
proceedings pending and they had been advised by counsel
to be as cautious as possible in discharging anyone.
At an owners' meeting on May 16 Bolling suggested that
they reconsider the June date because he was going on
vacation on June 2 and they expected to bring in Guy
Kovner, a former news editor, to do the paper's layout.
Bolling knew that Kovner was a close friend of Grafeld, and
he was concerned that Kovner might not come in if Grafeld
were fired the day before. The matter was discussed again at
the owners' meeting on May 23, and the notes for that
meeting show "dismiss Maureen-I week's severance."
They decided to discharge Grafeld on May 26 rather than
June I so that there would be time to make arrangements
concerning Kovner. Grafeld was out sick on May 25, and
she was not told of the discharge on May 26."' On May 26
Respondent received notification from the Board that a
' Grafeld acknowledged in her testimony that between November and June
1978 she had interviews for jobs with other employers.
"' Bolling and Bryon testified that Grafeld was not discharged on May 26
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NEWS HERALD
hearing would be held on the objections on June 5 and 6.
The owners decided that it would be unwise to terminate
Grafeld just 2 or 3 days before the hearing, and they decided
to go ahead with an evaluation instead. Their attorney had
told them to try to live with Grafeld at least through the
summer, and the owners decided to wait at least a month
before terminating her. Their attorney also had told them
that whenever they terminated anyone they should have
specific documentation on the things that they were dissatis-
fied with relating to performance and evaluation. The
owners decided to document their dissatisfaction even
though Grafeld was a supervisor.
Brill had made several drafts of an evaluation in April or
May. He typed a final evaluation on May 31, 1978. That
evaluation was given to Grafeld the day after the end of the
representation case hearing. Bryon credibly testified that
even though they intended to fire her, they were not going to
have a lameduck circulation manager, that they were going
to get things done that they wanted done, and that she was
going to have to improve her performance and her attitude.
In the late afternoon of June 7, 1978, Brill and Bryon had
a meeting with Grafeld. They handed her the evaluation and
told her to read it. The evaluation stated:
May 31, 1978
Maureen has demonstrated the technical competence
to run the circulation department in a more than
satisfactory manner. She has shown initiative in setting
up and overseeing the operation of several systems and
procedures. She has been particularly adept in her work
with advisors and carrier personnel. Her initiative in
setting up carrier promotions (Marriot's Great America
and Carrier Day at the Sonoma County Fair) is
commendable. Her insistence on in-house promotion of
carriers demonstrates a deep and admirable concern for
carriers.
Maureen however has failed to give necessary atten-
tion to the number of down routes in various circulation
areas. The expansion in down routes has added unac-
ceptable costs for the company. Although some suggest-
ings have been made to her and she has made some
suggestions herself, she has failed to recommend or
impliment [sic] and remedial action.
She has also failed to perform or have performed
seemingly less significant but nevertheless important
tasks, such as the maintenance of current newspaper
backlog in the morgue.
Perhaps most significantly, she has had a great deal
of difficulty working with other managers, co-workers
and even her own employees. She has frequently
undermined efforts by management to deal construc-
tively and responsibly with employees.
The turnover in the circulation department has
exceeded that in any other department. Her manage-
because she was out sick on that day. Grafeld testified that to her recollection
she was present on the 26th. By stipulation, a late filed exhibit was admitted in
evidence which indicated that Grafeld did place orders for photostats for
Respoxndent on May 26. 1 am salisfied that Grafeld did in fact work on May
26. However. I believe that Bryon and Bolling were simply mistaken with
regard to the date. They had nothing to gain by testifying about the 26th. On
May 16 the decision had been made to discharge Grafeld on June I. The
ment relationship with Geets Buroker was totally
unacceptable.
Her current behavior and attitude toward various
members of the management team and many of the
personnel reflects a deep rooted distrust and contempt
which is counterproductive to her own productivity and
the goals of the company.
Maureen is a very talented individual who has a
capacity for outstanding leadership. She has not begun
to fill that potential.
Bryon and Brill went over the items on the evaluation with
Grafeld and told her they wanted improvements or ideas on
a number of specific areas relating to problems in the
circulation department. On each item Grafeld gave them an
argument claiming in effect that she had been doing a good
job." Though Grafeld may have believed that none of the
circulation department problems raised by Bryon and Brill
was her fault, Bryon and Brill were very credible witnesses,
and I find that they did raise those matters to correct what
they believed to be deficiencies in the circulation depart-
ment. Grafeld's responses, at best, indicated a lack of
cooperation in solving those problems.
In the course of this meeting Grafeld was told that she
would be unable to take a vacation that she had scheduled
because it had not been authorized in advance. Later she was
told that there might have been a misunderstanding about
the prior authorization and she could take the vacation.
On the morning of June 8, 1978, Brill went into the
morgue (the place where old newspapers are stored) and
found Sandi McGuire crying. Grafeld was McGuire's
supervisor. McGuire told Brill that Grafeld had turned on
her just the way she had turned on Geets Buroker, that
Grafeld was cold and curt to her, and that Grafeld treated
her like a little child. Brill called Bryon, and McGuire
complained about the way that Grafeld spoke to her and
treated her. Later that morning Brill spoke to Grafeld and
told her that McGuire was crying and was upset over the
way that she was being treated. Grafeld said that she did not
know what he was talking about. He told her that a
supervisor had to deal constructively with the employees
under her and that he did not think she did a good job on
that. Still later that day Brill told Bryon that there was a
problem in the circulation office and asked him to straighten
it out. They went into the circulation office and there was a
discussion concerning a nonvacation day that Grafeld had
given McGurie. During the course of this conversation
Grafeld spoke of the incompetence of Geets Buroker, and
she took out some documents to make her point. Grafeld
was speaking in a very loud voice. Bryon told her that he did
not tolerate shouting in the office, and he took Brill and
Grafeld into the conference room. He told her that she
would have to improve her attitude in the office and that she
could not treat employees and her employers in the way that
she did. Grafeld replied that it was not her attitude but it
was his attitude, and that her attitude was not going to
additional testimony that Respondent changed the date to May 26 and then
canceled that change added nothing to Respondent's defense.
" One of those areas concerned "down routes" which were routes in which
no deliveries were made. Though on June 7. 1978, the number of down routes
was less than it had been in previous weeks. there were always between 33 and
57 down routes and it was a continuing problem.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
change until his did. She again spoke about being under-
staffed and about Geets Buroker's incompetence. Grafeld
started yelling and complaining about how difficult it was
for her to do her work when she did not have enough people.
She came within 6 inches of Bryon while yelling at him. He
said that she did not intimidate him, and she stopped yelling.
She said that as long as she was understaffed, they could
expect less quality out of her department than they were
accustomed to. Bryon said that he did not think the
discussion was constructive or useful any longer, and he told
her to go back to work. After Grafeld left, Bryon told Brill
that he did not care about the timing or what they had been
advised to do, and that emotionally and financially they
could not afford to keep her through the summer. Brill said
they should check with the lawyers first. Later Bryon called
his attorney. The lawyer told him that he was surprised that
they had not fired her on the spot, that he thought she was a
supervisor, and that they were perfectly within their rights to
terminate her." That afternoon Grafeld asked for the rest of
the day and the following week off on leave of absence. Brill
told her that she could take the rest of the day off but that he
would have to talk to the other owners about the following
week. Brill spoke to Bryon about the matter, and Bryon
thought that after the events of that day Grafeld was going
to look for a job during the time off. They decided that if she
could find a job the next week that would solve their
problem, but that if she did not they would discharge her the
day she came back. Grafeld returned to work the following
day, June 9, and gave Brill a list of things that would be
needed to be done while she was gone. On the same day, she
signed the charge in the instant case." That evening Brill
called Grafeld and told her that she could have the following
week off as vacation time. She did not report to work the
following week (June 12 through 16). When she next
reported for work on Monday, June 19, 1978, Bryon and
Brill called her into the conference room. Bryon told her
that she was terminated for incompatibility and he handed
her a check. He told her to leave immediately.
As found above, the decision to discharge Grafeld was
made well before she gave testimony in the representation
case and well before she filed the charge in the instant case.
The evidence set forth above establishes that the effectuation
of that decision was not accelerated because of Grafeld's
testimony or her charge. If anything, the Board proceedings
caused Respondent to retain Grafeld in its employ longer
than it otherwise would have. Grafeld's evaluation was
drafted before she gave testimony in the Board proceeding
and therefore could not have been caused by that testimony.
F. The Question Whether Grafeld Was Given a Poor
Evaluation and Discharged Because of Her Anticipated
Testimony in the Board Proceeding
The complaint is narrowly drafted. It alleges that Grafeld
was given the unfavorable work evaluation because she gave
" These findings are based on the credited testimony of Bryon and Brill.
Where the testimony of Grafeld conflicts with that of Bryon and Brill, I credit
Bryon and Brill.
' The charge was actually filed on June 13, 1978.
" In any event, it would not be a protected activity for a supervisor to try to
create a company union.
testimony at a Board proceeding, and that she was terminat-
ed because she gave such testimony and/or filed the charge.
During the course of the trial it became apparent that the
decision to discharge Grafeld was made well before she gave
testimony. In his brief, counsel for the General Counsel for
the first time raises the contention that Respondent took the
action it did against Grafeld because it anticipated that she
would give unfavorable testimony at the representation case
proceeding. Assuming that the complaint is broad enough to
cover that new allegation, the evidence does not support it.
When Respondent received the objections to the election, it
knew that a supervisor was alleged to have supported a
company union. The memorandum dated January 20, 1978,
that Grafeld sent to the owners indicated that Grafeld had
actively supported the company union. Respondent was
actively antiunion. Its officers had spoken to a number of
employees and indicated their opposition to the Union. It is
not likely that Respondent's officials would have been angry
at Grafeld for being actively against the petitioning union."
The content of that January 20, 1978, memorandum is
described in section B, above. It was from one supervisor to
other supervisors. The memorandum states that the idea of
the company union was her own even though Brill knew
about it. There is nothing in that memorandum about the
threats to close that she testified to at the representation case
hearing.
Brill could not have known for certain whether or not
Grafeld would be called at the hearing on objections. He did
not say anything to her that could be interpreted as hostility
toward her because of the memorandum that she had sent
him, and there is no indication that he ever asked her to
testify to anything other than the truth.'
The evidence does not establish that Respondent's owners
were angry at Grafeld because of her antiunion activity or
that they wanted to get rid of her because of a fear that she
would testify about that activity if she were called as a
witness in the objections case. Indeed, Respondent would
have had nothing to gain by discharging her after she gave
the testimony.
In sum, I find that Respondent has established that
Grafeld was discharged for work-related and incompatibility
reasons, and that the General Counsel has not established by
a preponderance of the credible evidence that the poor
evaluation or the discharge of Grafeld was motivated by any
activity of Grafeld's that was protected by the Act. I shall
therefore recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The General Counsel has not established by a prepon-
derance of the credible evidence that Respondent violated
the Act as alleged in the complaint.
" On June 2, 1978, when Brill and Grafeld both received subpenas, Brill
asked Grafeld whether she was nervous and Grafeld said that she was a little.
Brill said, "You should be." I do not believe that that remark was anything
other than an observation that it is normal to be nervous before testifying.
984
NEWS HERALD
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
ORDER'"
The complaint is dismissed in its entirety.
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.
985