Paradise Post

National Labor Relations Board - Board Decisions

Mar 9, 1990

297 N.L.R.B. 876 (N.L.R.B. 1990)

876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Paradise Post and Graphic Communications Interna- tional Union District Council 2, Local 388M, AFL-CIO. Cases 20-CA-19837 and 20-CA- 20027 March 9, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On February 24, 1987, Administrative Law Judge James M Kennedy issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief and the General Counsel filed an an- swering bnef 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order Contrary to our dissenting colleague, we find, in agreement with the judge, that the Respondent's discharge of employee Mernll Brown violated Sec- tion 8(a)(3) of the Act The judge found, and our colleague does not dispute, that the General Coun- sel presented a prima facie case warranting an in- ference that Brown was discharged for his union activities Regarding the Respondent's rebuttal case, the judge further found that the Respondent provoked Brown by deliberately allowing Brown's pay dispute with the Respondent to fester without 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu. 1951) We have carefully examined the record and find no basis for reversing the findings We further find no merit in the Respondent's suggestions that the judge may have been biased against the Respondent's former counsel Having carefully and fully considered the record and the judge's deci- sion, we find no evidence that he prejudged the case, made prejudicial rulings, or demonstrated a bias against the Respondent in his analysis or discussion of the evidence In its brief, the Respondent states that It filed the brief "in support of its accompanying exceptions to the findings that the five discharges in issue violated Section 8(a)(3) ' The Respondent also states "Respond ent is here excepting only to the findings concerning the discharges be- cause such findings are [contrary to the weight of evidence or are based on faulty legal analysis)" The Respondent concludes its brief, "[T]he record amply demonstrates that Respondent did not discharge employees for any union or protected activates and that therefore the Judge s findings that these discharges were violative of the Act should be re- versed in their entirety The Respondent has therefore presented no ar- guments to the Board for overturning the law judge's findings that the Respondent violated Sec 8(a)(3) and (1) of the Act by reducing Merrill Brown s pay and benefits pnor to this discharge, violated Sec 8(a)(5) and (1) of the Act during its collective-bargaining negotiations with the Union, and committed Independent violations of Sec 8(a)(I) of the Act both before and after the representation election resolution It was the Respondent who originally created the pay dispute by unjustifiably deducting a day's salary from Brown on days when Brown was attending collective-bargaining negotiations, even though he was not missing work Indeed, the judge found, and our dissenting colleague does not dis- pute, that these unjustified deductions were them- selves unfair labor practices in violation of Section 8(a)(3) of the Act As the judge found, the Respondent failed to make a specific appointment or accommodation so that the bookkeeper might resolve Brown's prob- lems Contrary to our dissenting colleague, we be- lieve that Printing Division Manager Jackson's 11th hour offer of a future meeting when the book- keeper was available is entitled to little weight, as it is a classic instance of too little, too late Brown's schedule did not coincide with the bookkeeper's, and we find that Brown was justified in essentially taking the position that he should not be required to report to work during his own free time in an attempt to remedy the Respondent's unfair labor practice of reducing his pay As stated above, it was the Respondent's unlawful conduct that cre- ated the pay dispute and therefore the burden should properly be placed on the Respondent to accommodate Brown, not vice versa Thus, when Brown, after failing to resolve the pay dispute with Respondent, left work complaining of a headache, he was reacting to the Respondent's provocation As the judge correctly found, the Respondent seized on this incident, which it created, to dis- charge the only remaining union activist See Spar- tan Equipment Go, 297 NLRB 19 (1989) ("[T]he Board has long held that an employer cannot pro- voke an employee by its unlawful conduct to a point where he commits an indiscretion and then rely on it to discipline the employee ")2 2 We agree with our dissenting colleague that It is appropriate to 'compare the seriousness of the employer s unlawful conduct with the extent of the employee's reaction" Brunswick Food & Drug, 284 NLRB 663 (1987), enfd mem 859 F 2d 927 (11th Cir 1988) Applying this standard, we find that this Respondent s continued refusal to pay Brown his hard earned salary was no trifling matter As compared to the gravity of Respondent's wrongful provocation, Brown s reaction was quite mild and consisted of removing himself from the scene when he understand- ably became angered and frustrated over what the judge properly termed the Respondent s "brittle approach to the problem' The Board and the courts have found employee conduct more extreme than Brown s to be excusable under the provocation doctnne See, e g, Trustees of Boston University v NLRB, 548 F 2d 391, 392 (1st Cu. 1977) (employee bran- dished a pair of scissors), NLRB v M & B Headwear Co, 349 F 2d 170, 174 (4th Cif 1965) (employee threatened to harm a supervisor) We cannot agree with our dissenting colleague's distinction between Brown s conduct, which he finds beyond the pale, and a loud, emotional out burst," which he states might well be immunized Our dissenting col- league s approach appears to protect only employees who give full vent to their emotions and penalizes those whose reactions to provocation are more mature and restrained In this regard, we observe that by exiting the plant when he did, Brown may well have defused a potentially vola Continued 297 NLRB No 147 • PARADISE POST 877 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Paradise Post, Paradise, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order CHAIRMAN STEPHENS, dissenting in part Although I agree with the majority in other re- spects, I would not find that the Respondent's dis- charge of Merrill Brown violated Section 8(a)(3) of the Act I agree that the General Counsel estab- lished a prima facie case sufficient to support an in- ference that protected conduct was a motivating factor in the Respondent's decision to discharge Brown, but I would find that the Respondent dem- onstrated that it would have taken the same action even in the absence of Brown's protected conduct, 1 e, that the Respondent made out a defense under Wright Line 1 The Respondent asserts that it terminated Mernll Brown because, in defiance of a supervisor's in- struction that he finish his shift, he walked off the job on December 8, 1985, after becoming angry at his supervisors' responses to his demands for pay recalculations and claiming that the dispute was giving him a headache The judge concluded that the Respondent's agents must have conspired in ad- vance to provoke Brown into this action to give them grounds for ridding themselves of a union ac- tivist 2 While, as noted, I am willing to find that the General Counsel has established a prima facie case that union animus infected the Respondent's attitude toward Brown, I am satisfied that the Re- spondent would have discharged him for this walk- out regardless of whether he had previously en- gaged in union activities Further, I find insufficient evidence for the judge's conclusion that this entire incident was a setup Because the judge did • not expressly resolve a number of credibility conflicts over small details concerning the December 8 incident and the earlier tile situation Nor can we agree with the implication in the dissent that Brown's statement that the altercation with the Respondent made him ill was insincere The fact that Brown was smiling does not compel the In- ference that Brown was not upset His smile may only have been an ex- pression of nervousness or relief that the incident had ended Although we agree with the First Circuit that 'there are limas to employee insubordination, even when provoked," NLRB v Steinerfilm, 669 F 2d 845, 852 (1st Cir 1982), we conclude, under all the circumstances of this case, that employee Brown did not exceed those limits 1 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cif 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 US 393 (1983) 2 The General Counsel did not argue that Brown's protest on Decem- ber 8 was in itself protected activity, and since Brown claimed the head- ache as his excuse for walking out, there is no contention here that he was striking and that the discharge was therefore an unlawful response to protected stnke activity on that day exchanges between Brown and agents of the Re- spondent over the pay dispute (which concerned the number of paid days off to which Brown was entitled under the Respondent's accrual rules), it is not easy to reconstruct exactly what the judge found to have happened The judge's factual find- ings, however, suggest that he credited much of the testimony of Printing Division Manager Steve Jackson concerning the sequence of events sur- rounding the December 8 discharge In particular, since the judge found that Jackson made some explanation to Brown about seeing the bookkeeper to straighten out Brown's complaints about inaccurate crediting of his paid days off (PDO's), he appears to have credited Jackson's version of their discussions about the bookkeeper over Brown's testimony Brown had flatly denied ever being told by any management official that he could see the bookkeeper, whereas Jackson testi- fied that he had told Brown previously and on De- cember 8 that he should go to see the bookkeeper directly to question the accuracy of her entnes Jackson further testified that on December 8 he told Brown that if Brown would come in during regular hours, when the bookkeeper was available, Jackson, Brown, and the bookkeeper could straighten the matter out Since Jackson also testi- fied that Brown insisted that the bookkeeper must come in at night to see him (and the judge proper- ly does not find that the Respondent was obligated to accede to this demand), I cannot agree with the judge's suggestion that Jackson was at fault for not scheduling a specific appointment for Jackson and Brown to see the bookkeeper Since Brown had ruled out any meetings at times other than his night shift, Jackson could hardly have been expected to suggest a specific daytime appointment Because the judge acknowledges that the problem could probably have been worked out if the three had met, we are left with actual findings indicating to me that Jackson made reasonable suggestions to Brown on December 8, and that Brown responded (as the judge observes) with "an emotional out- burst " The judge's finding that Brown told Jackson that "the December 8 altercation had made him ill and he was going home sick" also reflects a crediting of Jackson's testimony, which linked the claim of illness to the pay dispute Jackson testified that Brown said "All this talk about my-all this trou- ble with my pay is giving me a headache I'm going home " 3 It is not clear whether the judge 3 Brown's testimony did not directly conflict with Jackson s on this point Thus, Brown did not claim that he had told his supervisors he was ill before the discussion of the PDO calculations commenced There is no Continued 878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also credited Jackson's testimony that Brown was smiling when he said this, and that Brown added, just before clocking out "Why should I work? You don't pay me anyway" The fact remains that the General Counsel did not recall Brown or any other witness on rebuttal to deny this As uncon- troverted testimony from a witness who appears to have been generally credited regarding this inci- dent, this is evidence on which I think we can properly rely Finally, I also rely on Jackson's tes- timony that he tried to calm Brown down and urged Brown to stay and finish his shift If the Re- spondent were truly seeking to seize on a pretext to discharge Brown, it is unlikely that Jackson would have tried to talk Brown out of the threat- ened walkout 4 In sum, the credited or uncontroverted evidence is that Brown rebuffed a reasonable offer to straighten out his pay dispute, smilingly claimed that the dispute had given him a headache, and walked off his job in the face of his supervisor's plea that he finish his shift There is no evidence that the Respondent generally tolerated insubordi- nate walkouts Since I see no way that the Re- spondent could have predicted or engineered such a scenano, I would find that the Respondent would have discharged Brown for this action even if he had not been a union activist 5 record support for the judge's statement that Brown had told Fisher ear- lier that day that he did not feel well 4 See Moody Chip Corp, 243 NLRB 265, 273 (1979) (discharge of em- ployees Rushinal, employer's action in asking employee to return to work militates against finding that discharge for an insubordinate walkout was culmination of an unlawful plan to force employee out) 'I agree with my colleagues that when employee misconduct has been provoked by an employer's unfair labor practice, we must consider the nature of the provocation in determining whether the employer may law- fully discharge or discipline the employee for the response But in such cases we compare the seriousness of the employer's conduct with the nature of the employee's response to determine whether the latter ex- ceeded acceptable bounds even in light of the provocation Brunswick Food & Drug, 284 NLRB 663, 664 (1987), enfd mem 859 F 2d 927 (11th Cir 1988) In my view, while a loud emotional outburst might well be immunized under this theory, walking off the job on the basis of a claim of Illness was not As noted above (fn 4, supra), the General Counsel did not allege that Brown's conduct on December 8 was itself activity pro- tected under Sec 7 of the Act Lucile L Rosen and Christine Rails, for the General Counsel Melvin P Anderson of Management Contract Negotia- tors, of Los Altos, California, for the Respondent David Grabhorn, Business Agent, of La Habra, Califor- nia, for the Charging Party DECISION Statement of the Case JAMES M KENNEDY, Administrative Law Judge This case was tried before me in Chico, California, on August 12-15, 1986, pursuant to two separate complaints issued by the Regional Director for Region 20 of the National Labor Relations Board on October 29, 1985, 1 and Janu- ary 30, 1986, respectively, and which were consolidated on the latter date The complaints are based upon charges filed by Graphic Communications International Union, District Council 2, Local 388M (the Union or GCIU) 2 on August 14, 1985 (subsequently amended), and December 5 They allege that Paradise Post (Re- spondent) has engaged in certain violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) The complaint alleges that Respondent committed var- ious acts designed to deter employees from engaging in union activity Those occurring before an NLRB-con- ducted election assert that Respondent attempted to deter its employees from selecting the Union as their rep- resentative by granting wage increases, by stating that it would be futile to select a labor union, by creating the impression the employees' union activities were under surveillance, by threatening an employee with the loss of a promotion opportunity, and by threatening employees with the loss of employment or with reduced hours if they selected the Union as their representative The com- plaint also alleges that after the election Respondent con- tinued to violate Section 8(a)(1) by saying it was futile for the employees to have selected the Union and by de- nying wage increases to certain employees on a discrimi- natory basis In addition, the complaint alleges that Respondent vio- lated Section 8(a)(3) of the Act by denying health bene- fits to employee Lynn Patterson and by subsequently dis- charging him It further alleges that on November 14 Respondent violated that section when it discharged three employees who had engaged in a strike, Ronald Chavarna, Glenn Patterson, and William Penne° The last individual alleged to have been discriminated against under Section 8(a)(3) is Merrill Brown The complaint alleges that Respondent unlawfully reduced Brown's pay in October and subsequently discharged him for his union activity on December 8 Finally, the complaint alleges that Respondent violated Section 8(a)(5) by failing to bargain in good faith with the Union after it had been certified as the exclusive bar- gaining representative under Section 9(a) of the Act Specifically, the complaint alleges that Respondent en- gaged in dilatory bargaining tactics culminating on No- vember 13 when it withdrew from various tentative agreements which it had reached with the Union Based on the entire record of the case, as well as my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent admits it is a California corporation having an office and place of business in Paradise, Cali- fornia, where it is engaged as a commercial printer of 1 All dates are 1985, unless otherwise noted 2 Amended to accurately reflect the Union's name PARADISE POST 879 various publications, including the printing and publica- tion of its own biweekly newspaper It further admits that during the 12-month period ending April 30, its gross revenues exceeded $200,000 and that it purchased and received at its Paradise facility products, goods, and materials valued in excess of $50,000 which originated from points outside California Accordingly, it admits, and I find, that it is and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Ii THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background and Participants Respondent is a commercial printer located in Para- dise, California, a rural community some 90 miles north of Sacramento Its publisher is Jim Fallbeck, its printing division manager is Steve Jackson, and its assistant print- ing division manager is John Fisher Jackson works prin- cipally during the day, while Fisher handles the swing and certain weekend shifts In June 1985, Respondent hired Tom O'Leary to be the night-shift foreman He later became the pressroom foreman Bob Cook is the mailroom supervisor In March 1985 a number of employees, mostly those employed in the press and mail rooms became dissatisfied with wages and working conditions Their dissatisfaction led to two meetings with management During the first meeting, conducted by Jackson, employees complained of several matters including the lack of a first aid kit, pits in the concrete floor which hindered the carts, the unsafe platform on the Urbanite press, lack of a shower facility, and inadequate wages Jackson said he would see what he could do about the complaints, but advised that he did not have the authority to grant wage increases, he would have to discuss that with publisher Fallbeck At the second meeting, Jackson and Fallbeck reported to those employees who were present that the first aid kit had been installed and the Company was working on correcting the press platform However, the floor repairs and the shower room were either too expensive or im- practical Jackson and Fallbeck conceded that there may have been a problem with wages One or both of them stated that they intended to conduct a wage survey to determine the appropriate competitive wage for the area Jackson told them It was the Company's intention to pay competitive wages to its employees In the meantime, in late March, pressman Glenn Pat- terson had contacted David Grabhorn, a business repre- sentative for the Union Grabhorn's offices are located in Los Angeles County On Apnl 2 and 3, Grabhorn trav- eled to Paradise where he met with several employees in the press department including Glenn Patterson, his fellow pressman Ronald "Chevy" Chavarna, assistant pressman Lynn Patterson, and a few others B Organizing Matters Shortly before Grabhorn arrived in Paradise, Glenn Patterson told Jackson that he and some of the employ- ees were thinking of joining a union He said Jackson, upon hearing that, became "unglued" saying a union wouldn't get the employees any more than they were al- ready getting Upset, Jackson suggested that the employ- ees seek an in-house contract instead A little later, in mid-April, according to Patterson, Jackson repeated the suggestion that employees should try an in-house union During that conversation, Jackson told Patterson that he specifically did not like the GCIU In the meantime, the Union circulated authorization cards Later, approximately 70 employees signed a peti- tion stating they wanted it publicly known that they had designated the GCIU as their collective-bargaining agency Furthermore, the Union circulated a flyer de- scribing who its "committee" members were, containing photographs of most of them as well as a short quote from each stating why the employees needed a union Listed as committee members were Kathy Mickus and Lois Settles, who worked in the mailroom These two were later approached by Cook, infra Also listed were Glenn Patterson, Lynn Patterson, Chevy Chavarna, and Bill Pentico, all of whom were later discharged and whose discharges are the subject of this complaint On about April 15, two union officials went to Re- spondent's facility in Paradise and delivered a demand for recognition Shortly thereafter Jackson asked Cha- varna if the employees intended to strike He again sug- gested that it would be better to have an "in-house con- tract" rather than choosing a third party Respondent did not agree to recognize the Union and a strike began which lasted approximately 2 days On the second day of the strike, Glenn Patterson sug- gested to Jackson that he meet with some of the employ- ees at the Red Lion Pizza Parlor that evening to try to end it As a result of that suggestion, Jackson and Fisher went to the restaurant where they met with Glenn Pat- terson, Chavarna, and Ray Sworde, no union officials were present During the meeting, Jackson told the em- ployees that he didn't like the strike, it was hurting both the Company and the employees It had apparently slowed the production of a newspaper for a newly ac- quired client, the Bay Guardian 3 On April 21 Mailroom Supervisor Bob Cook had a conversation with his employees, Kathy Mickus, Lois Settles, and Norma Morns According to Mickus and Settles, Cook told them if the Union got in, the school- age employees would lose their jobs He also said that Respondent would lose the "Kaplan" job, 4 the rest of the work force would be reduced to a 1-day workweek, and employees would be laid off permanently by seniori- ty Cook did not testify and their testimony stands un- contradicted It appears that Respondent employs a large number of part-time employees, including high school students who 3 The Bay Guardian is a San Francisco weekly 4 The Kaplan' job was the Monterey area TV Shopper, at that time Respondent's largest customer in terms of the size of the press run 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD assisted in the mailroom at the minimum wage Even Mickus and Settles, adults who had worked for the Com- pany for several years, were paid only the minimum wage C Preelection Wage Increases On May 22 the Regional Director approved stipula- tions for consent election in three separate bargaining units The elections were not held until June 21 In late May, shortly after the Company's agreement to the con- sent elections, the wage survey appeared A meeting of all the pressmen and camera crew was called by Jackson It was also attended by Fallbeck and Fisher At that time Fallbeck handed out the survey and Jackson described in general terms the wage rates which they deemed to be appropriate to Respondent's press and camera crews Some of the employees believed that the wage survey was based on inappropriate information in the sense that it called for a comparison of small town daily newspa- pers which ran only one shift, while Respondent was a three shift operation publishing a wide variety of news- paper publications After the meeting was over, Jackson called each of the pressmen to his office individually to tell him his new wage rate effective June 1 It should be observed here that 7 weeks earlier, on Apnl 1, six of the employees had been given raises of be- tween 40 and 90 cents per hour The raises effective June 1 ranged between 75 cents and $1 per hour The follow- ing chart shows both rates April I, 1985 June 1, 1985 Amt of Raise New Rate Amt of Raise New Rate Sean Bagby $ 50 $5 00 $ 75 $5 75 Ronald Chavarna 90 7 25 75 800 David Dnckey 65 8 00 1 00 900 Glenn Patterson 40 7 75 75 8 50 Kim Smith 50 500 75 5 75 Ray Sworde 50 5 25 None D Election Night 1 The complaint alleges that on June 21, the day the election was in progress, pressroom flyer Bill Penne° was subjected to an unlawful inducement to vote against the Union He testified that at approximately 2 a m, while on his way to vote, Assistant Manager Fisher walked with him As they walked through the camera room, Fisher told him that the Company would be better off without a union and suggested it would be much better to have an in-house contract Pentico went on to say that Fisher told him that without the Union he could excel faster and move up to assistant pressman without having to go through the time period he said the Union required Fisher testified he remembered releasing Pentico to permit him to vote, but says he "doesn't believe" he spoke to Pent= about advancement opportunities with the Company The only thing ne could recall about the conversation was that Pentico asked him why he was "so interested" in Pentico voting Apparently Fisher had been tounng the pressroom making certain everyone had the opportunity to vote However, it is clear that Fisher is unable specifically to deny Pentico's testimony Based on a comparison of the two recollections, Penti- co's version must be credited He had good recall of the incident, Fisher did not 2 According to Assistant Pressman Lynn Patterson, on the day after the election, apparently June 22, he had a conversation with Steve Jackson Lynn said to Jack- son, "Now that the Union has been recognized, it's time to get down to negotiating a contract" He remembers Jackson replied, "It could take several years for a con- tract In another year [we] could have another vote The Union should not have gotten in in the first place" Jack- son did not deny, or even address the testimony E Glenn Patterson's Reduced Work Hours Lead Pressman Glenn Patterson was hired sometime in 1984 A little after he was hired, Patterson was asked to assist the Company in selecting an Urbanite press for purchase and installation Later his main job after the purchase was to run the Urbanite, one of two large web presses which Respondent then operated Between 1984 and sometime in 1985, a date not shown clearly in the record, Patterson and another pressman named Adams were the only two Urbanite operators At some point in early 1985 Adams ceased to be an employee, leaving Pat- terson as the only experienced Urbanite operator From the period ending January 31, until the period ending June 30, Patterson averaged 35 straight time hours and 10 overtime hours per week Beginning with the payroll period ending July 15 through the period ending Octo- ber 31, 1985, his average dropped to 32 straight time hours and only 2 6 overtime hours per week The election results were known immediately after the June 21 election was over According to Patterson, he had a conversation a few minutes later with Steve Jack- son, who told him "Well, Glenn, you and [a union orga- nizer] did a good job of persuading the employees to vote for the Union If you want to leave, I will give you a good recommendation" Approximately a week later, Glenn Patterson was re- moved from the Urbanite and put on a different shift with a different crew Instead, he operated the Commu- nfty press with an assistant whom he regarded as not particularly competent This coincides with his reduction in hours It should be observed here that 2 or 3 days before the election, a new night foreman, Tom O'Leary, had re- ported for duty He had previously worked in the Chica- go area and, unknown to the rest of the staff, was the object of a relatively long search by Jackson for another Urbanite operator Immediately upon his arrival, Jackson asked him to operate the Urbanite and to perform night time supervisory duties in the pressroom As a direct result of O'Leary's hire, most of the hours previously worked by Patterson were worked instead by O'Leary PARADISE POST 881 Patterson, it should be observed, tended to exaggerate his preelection hours, asserting at first that he worked an average of 60 to 70 hours a week Later he reduced that figure to 50 hours per week, saying that included 10 to 15 hours worth of overtime The payroll figures quoted above, however, further reduce his claim Those are the figures quoted above Thus, it appears O'Leary's hire re- sulted in a loss to Patterson of approximately 3 hours of straight time per week and a loss of about 7-1/2 hours of overtime per week F Collective Bargaining The Union was certified as the exclusive collective- bargaining representative in two of the bargaining units on June 28 and July 1 Almost immediately thereafter, Union Business Manager David Grabhorn sent a letter to publisher Jim Fallbeck requesting negotiations As there was no immediate response, he called Fallbeck twice in early July Fallbeck told Grabhorn that the Company was "unavailable" during July After some discussion, they set a half-day "get to know you" meeting for August 2 On that date, accompanied by the union negotiating committee, Grabhorn met with Fallbeck and Jackson Also representing the Employer for the first time was Melvin P Anderson, a professional negotiator from Los Altos The union committee consisted of Glenn Patter- son, Chavarna, Norma Morns, Kathy Mickus, Chuck Taylor, Les Corso, and an individual named Mannie, whose last name is not shown on the record Also elect- ed to the committee but on vacation during the first meeting was Merrill Brown The meeting had been scheduled in a company confer- ence room adjacent to the front office Grabhorn says the conference room was small and uncomfortable, moreover, it contained no facility for the union group to engage in private caucusing He suggested to Respondent that they meet at a neutral site and offered ,to pay for half the rental expense Anderson refused to meet at any other location and said the Company would not share any expenses During the meeting, the Union gave Re- spondent its initial proposal consisting of so-called "non- cost" items, i e, omitting a wage demand At the end of this brief meeting, Grabhorn attempted to schedule other meetings Anderson told him that the company officers were very busy and could not devote more than 1 day per week to negotiations Grabhorn quotes Anderson as saying "Not even Jesus Christ could get this company to meet more than one day at a time" Anderson also stated that the Company could never meet on any given day prior to 10 a m or after 5 p m Grabhorn replied that he wasn't interested in disrupt- ing their operation but still insisted on reasonable meet- ings Anderson told him that Fridays were the best days for the Company Grabhorn immediately asked for the following Friday, August 9, but Anderson told him the Company was "unavailable" He said the Union's pro- posal needed 'to be carefully considered Grabhorn also told Anderson he was concerned that the employees might be penalized for attending negotia- tions and he didn't want employees to lose wages, paid days off (PDO's) or other benefits He proposed that em- ployees be scheduled as usual and if an employee lost a shift, the Company' could deduct for that, but the Union would reimburse him or her, except that the Company should permit the employee to continue to earn PDO's and credit toward overtime According to Grabhorn, Fallbeck made a face The Company then caucused, re- turning to say that no one would lose any "accrued" benefits Anderson declined to count time spent in nego- tiations towards overtime and said Respondent would at- tempt to schedule people off on negotiation days The Union was forced to acquiesce Finally, Anderson and Grabhorn settled on August 16 for a full day as the next negotiation session Grabhorn told Anderson that he was also available August 14, 15, and 17 The Company, however, was unwilling to meet on those days On August 16, instead of a contract, the first topic of discussion was the recent discharge of Assistant Press- man Lynn Patterson According to Grabhorn, most of August 16 was spent discussing matters unrelated to bar- gaining He recalled that even part of the August 2 meet- ing had been spent discussing Lynn Patterson's eligibility for health insurance . In any event, on August 16 little was accomplished with respect to a contract Anderson told Grabhorn that the Company could not meet for the next two Fridays, August 23 or 30, due to a combination of both vacation and pressing business Grabhorn insisted on a meeting and finally Anderson agreed to a 1-1/2 dayy, session be- ginning on Thursday, September 5, at 1 p m On September 5, according to Grabhorn, the compa- ny, despite the 1 q3 m start time, was late The record does not describe what else happened on that date On September 6, 'the company team was approximate- ly half an hour late for the 10 a m start Grabhorn asked the Company to make some proposals as it had not yet done so Except for that request, Grabhorn does not de- scribe in any detail what transpired during , the morning He does say that Anderson and Fallbeck asserted that they could not respond before lunch and needed an ex- tended lunch hour The Union agreed When they re- turned, again late, all the company officials arrived car- rying takeout lunches' They then asked for additional time to eat them Thereafter, Anderson began to read the Union's August 2 proposal silently to himself According to Grabhorn, Anderson read the proposal until approxi- mately 4 p m At that point, Anderson. finally responded to Grabhorn's request that the Company make at least some proposal He made three written proposals to the Union a recognition clause, a bulletin board clause, and a union visitation rights clause However, Respondent did not address any of the proposals which the Union had previously made At the end of the day, Grabhorn attempted to sched- ule a meeting for the following Friday, September 13, but Anderson would not do it, again citing company unavail- ability and vacations Grabhorn accused him of engaging in dilatory tactics, saying he would be in Paradise the next Friday, and if he didn't have anything better to do, he would take a strike vote among the employees At that point, the Company caucused Anderson returned with three dates, the first being Monday, September 23 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Grabhorn refused to wait that long, so they finally agreed on a half-day session for Saturday, September 14, and a full day for either Friday, September 20 or Sunday, September 22 During the adjournment, Anderson telephoned Grab- horn to say that the Company could be available on Friday, September 13, asserting that the September 14 meeting would therefore not be necessary He also can- celled the September 20 meeting Grabhorn said that September 13 was okay and he could go on September 14 and 15 Anderson replied, "That wouldn't do" They did, however, meet on September 13 for a full day Another meeting was scheduled for the afternoon of Thursday, September 26, at the Company's request, and another was held on Friday, September 27 According to Grabhorn there was finally some progress that Friday, but in the afternoon Anderson asked for a pay raise for a recent hire, Richard Perez This upset the union commit- tee since Respondent was asking to give Perez a rate higher than that of individuals doing the same job but who had more seniority Simultaneously, according to Grabhorn, Resriondent was telling the committee that across-the-board raises could not be granted It should be noted Respondent had earlier asked for and received per- mission to grant pay raises to a few individuals before the Perez matter As a result of the Perez request, Glenn Patterson became quite offended During a heated con- versation, Fallbeck told Patterson he wasn't going to let a "punk" tell him how to run his business He also ac- cused Patterson of being a poor pressman Patterson re- torted that Fallbeck was not a good reporter 5 As a result of the heated exchange, according to Grab- horn, the parties took a break by calling a caucus Later, he said at approximately 2 30 p m, after everything had calmed down, Anderson suddenly jumped up without any additional provocation saying, "We're not having any more of this" The Company began to walk out As they were leaving, Anderson told Grabhorn they were leaving to prepare their response to charges which the Union had filed with the NLRB and that future meetings would be futile Grabhorn told him that the parties were scheduled to go until 5 p m and threatened to file addi- tional unfair labor practice charges if the Company left Frustrated, Grabhorn repeated his earlier threat to strike Nonetheless, Anderson and Respondent's officials left The union committee waited until 5 p m and then went home Subsequently, Anderson called the Federal Mediation and Conciliation Service (FMCS) which attempted to ar- range the next meeting After some discussion through the mediator, Grabhorn offered to withhold striking if the parties would meet on October 18 A meeting was scheduled to begin at 10 a m that day and the union committee and the FMCS representative arrived at that time However, Anderson and the company officials did not arrive until 2 30 that afternoon Anderson claimed he was having "airplane trouble" Another meeting was held. on October 31, but the mediator left saying he thought it was premature for him to be present A meet- ing was also conducted on November 11 At that point, 5 Jackson asserts that this incident did not occur until October 7 according to Grabhorn, approximately 30 issues re- mained for resolution The bargaining committee was most upset with what it perceived as Respondent's bad- faith bargaining G The Tentative Agreements are Withdrawn As a result of the lack of progress, the union commit- tee decided a short strike should be called to protest what it deemed to be the Company's unfair labor prac- tices, specificially bad-faith bargaining 6 It began on No- vember 13 about 2 am In the early afternoon of that first day, Anderson, from Los Altos, sent Grabhorn a telegram stating As a result of the changed circumstances resulting from your Union's most recent strike please be ad- vised that any and all proposals made on behalf of the Paradise Post are hereby withdrawn We stand ready to meet to reconvene negotiations for a new collective bargaining agreement Please contact the undersigned if you wish to reconvene negotiations The changed circumstances referred to by Anderson in his telegram are not explained in the record Accord- ing to Grabhorn's uncontradicted testimony, the parties had reached a modus operandi early in bargaining with respect to so-called tentative agreements He said that the arrangement was that once tentative agreements were reached, they were to be set aside and not dis- cussed further, but that they were not to be considered "final" until the entire contract was settled Thus, he re- garded Anderson's November 13 withdrawal from the tentative agreements to be a breach of their negotiation rules The strike ended after approximately 48 hours On No- vember 14, Grabhorn telephoned Anderson to ask for clarification of his telegram and asked if the parties still had a meeting scheduled for November 22 Anderson re- sponded, "Do we'?" Grabhorn replied that the Union in- tended to be there and Anderson replied, "Okay, good enough" Grabhorn also attempted to discuss items which Anderson had said he had withdrawn, asserting that Anderson could not do that Anderson replied that he had Anderson also said that he had not known about the length of the strike, but Grabhorn argued that the Company had indeed known that it was intended to be 2 days They decided to discuss that topic further at the table 7 On November 22 negotiations took place for a full day At this point, union committee members Glenn Pat- terson and Chevy Chavarria had been discharged Their discharges will be discussed in more detail below An- derson told Grabhorn that they had withdrawn every- ° Grabhorn testified that he was concerned with Respondent's dilatory tactics and its general bad faith In addition, he cited what he deemed to be the unlawful discharge of several employees I note however that only Lynn Patterson is alleged to have been unlawfully discharged at this stage 7 Grabhorn says the Union had Issued press releases and interviews to the media which had said that the strike was only going to be for 2 days In fact, the Paradise Post itself contained newspaper articles referring to the 2-day strike PARADISE POST 883 thing from the table and there were now no agreements He said Respondent might be willing to "reagree" to some items According to Grabhorn, a discussion ensued regarding whether it was an unfair labor practice to withdraw agreed-upon items During that discussion, Anderson told Grabhorn that the only reason the Company had withdrawn from the tentative agreements was because of the strike, pausing, Anderson said he did not know what, if anything, they could ' reagree to However, he did present a written proposal to Grabhorn Grabhorn ob- served that the preamble appeared to be the same as one of the tentative agreements He asked Anderson if the document contained all the tentative agreements Ander- son responded he "didn't know," saying "maybe, maybe not" - As a result, the union committee had to caucus to compare the proposal with its own records They no- ticed some omissions and asked Anderson if the omis- sions were intentional or accidental With respect to the preference for overtime provision, Grabhorn says Ander- son responded that he "didn't know" whether it was in- tentional or accidental Finally, Anderson said, "Well, if it's not there, it's withdrawn" In addition, the grievance procedures had been changed Anderson explained that because the Union had struck, he was not as willing to compromise as he had been before As the meeting ended, Grabhorn requested back-to- back negotiation days, but Anderson told him the best the Company could do was to meet again on Tuesday, December 3 At that meeting, the only remaining committee mem- bers who were still employed were Mickus, Morns, Brown, and Manme No pressroom employees were left At the meeting, some additional tentative agreements were reached and another meeting was scheduled for December 9 However, before the December 9 meeting, Anderson called Grabhorn to tell him the meeting was unnecessary saying, "Just mail me the Union's proposed changes" Grabhorn insisted that a meeting was neces- sary, but Anderson said that there was nothing to be gained by negotiating By December 9, committee member Merrill Brown had also been fired, leaving only three of the original seven employee committee members who had not been terminated 8 The- remaining members were all part-time mailroom employees As a result, Grabhorn concluded that intelligent bargaining could not occur No further meetings have been scheduled H The Discharges , 1 Lynn Patterson Lynn Patterson had been hired as an assistant press- man on March 10 at the rate of $5 50 per hour Three weeks after he had been hired, he was given a $1-per- hour raise He was subsequently discharged on August 13 He is the younger brother of pressman Glenn Patter- son, whom Printing Division Manager Steve Jackson re- garded as the union leader Lynn testified that he, like 8 Corso and Taylor had also been fired, but are not subjects of the complaint his brother, was involved early with the Union, attend- ing a dinner with Grabhorn when he first came to Para- dise Lynn testified that he also handed out union mem- bership cards and went to union meetings His name and picture, together with a quotation, appeared on the union organizing committee's flyer When Lynn was hired, like other new hires, he was placed on a 90-day probation period He testified that during his hiring interview, Jackson told him that after 90 days of full-time employment he would be eligible for health insurance, dental insurance, and PDO's However, says Patterson, Jackson did not describe what was meant by "full-time" On cross-examination, however, he admit- ted Jackson told him a regular full-time employee was one who worked over 35 hours per week On June 10, 90 days after being hired, Lynn suffered an industnal acci- dent While he was off work recovering, he asked Jack- son for the health insurance forms, but Jackson did not give them to him On June 28, about a week after the Board election, Lynn had an automobile accident He was out for 21 days, not returning until July 20 During that period he again asked Jackson about his health insurance forms Jackson replied that Lynn did not have enough hours to be eligible Lynn said Jackson did not explain what he meant by not having enough hours At that point Patter- son said he would go to the Union about it He did so, and as noted above, Grabhorn did discuss Lynn's insur- ance situation at the bargaining table On July 23, Jackson gave Lynn an employee evalua- tion and told him his 90-day probation period was being extended Jackson said the reason for the extension was that Patterson had a bad attitude toward other operators Patterson thought that ndiculous and asked Jackson to investigate further According to Lynn, Jackson also told him that his skills and abilities were "outstanding" Jackson says that when he hired Lynn Patterson, he told him only about health benefits and PDO's, not dental benefits, because the Company does not provide such a plan He also says he does not have any specific memory of the conversation, only that he has a "stand- ard rap" which he gives to each classification of employ- ee He knows that in his standard "assistant pressman rap" he tells them health benefits are available only after having become a regular full-time employee and passing the 90-day probationary period If the probationary period is successfully completed, the health benefits are supposed to start on the first day of the month following the 90-day period He also said that his standard rap in- cludes a statement that if the employee does not work full-time, but averages 32 hours, he is eligible for partial vacation benefits (partial PDO's) Finally, he asserts that he did not guarantee the number of hours which Lynn would work Jackson says that on July 23, when he extended Lynn's probationary period, he gave Lynn a letter point- ing out that the 90-day probation did not seem to be ap- propriate because while Lynn's technical skills were good, at the same time his attendance had been poor, as were his relationships with fellow workers and supervi- sors Indeed, according to Jackson, Lynn's relationship e 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with management had been "absolutely unacceptable" The letter listed four points for improvement (1) be on time, (2) don't miss shifts without a doctor's notice and without notification to the Company, (3) improve rela- tionships, specifically with the lead pressmen, and (4) behave in a businesslike manner, i e, avoid pranks In support of its contention that Lynn Patterson had a serious attendance problem, Respondent points to its records They show that prior to his industrial injury in June, Lynn was tardy 20 out of 37 workdays Thus, the records bear Jackson out Moreover, with respect to Lynn's "full-time" status, a review of his schedule, without regard to tardiness, shows that he was scheduled to work during the 12- week probationary period, a total of 345-1/2 hours That averages to a little less than 29 hours per week 9 Thus, even under Lynn's view of things he could not have been considered a regular full-time employee, for he had not averaged 35 hours per week Indeed, his av- erage did not even reach the 32-hour level permitting him to be eligible for partial PDO's 10 The complaint alleges that Respondent discriminatori- ly denied Patterson health insurance benefits However, even if he had successfully completed his 90-day proba- tionary period, or even if the probationary period had been improperly extended, at best he was only a regular part-time employee Thus, the health insurance benefit simply was not available to him The complaint also alleges that Respondent unlawfully discharged Lynn Patterson on August 12 or 13 As noted above, Jackson extended Lynn's probationary penod July Patterson was clearly having some difficulty with attendance even without regard to the extended absences for the industrial injury and the auto accident His at- tendance record does not demonstrate a proclivity toward punctuality Nonetheless, his June 28 auto acci- dent was severe add he was off work for 21 days He says even on the day of his discharge, August 12, that he still had 50 stitches in his face He was, of course, ambulatory and performing some work despite the injury That morning, according to Lynn, he had been to the plant to take his brother Glenn to work He also spent some time that morning attempt- ing to obtain a loan to cover his medical bills About 6 p m, shortly before his reporting time, he called Jackson to say that he was not feeling well and could not come in Jackson had seen Lynn at the plant that day and doubted his explanation, particularly as it had come so late He told Lynn to go to the doctor or come in Lynn told him he would come in However, 10 minutes later, Jackson called Lynn back saying he had found a replace- ment and that it was okay Jackson says he had not yet made any decision to discharge Lynn Jackson adds that on Lynn's previous shift he had been late and they had had a discussion about Lynn not having a ride to work During that discussion, Jackson says Lynn had told him, "If I can't get a ride, I will just call in sick" 9 These figures have been extrapolated from R Exh 2 10 He did receive partial PDO's during pay periods where his work ac- tually exceeded 32 hours per week On the following day, August 13, Lynn telephoned Fisher to say that he felt better and would be in that evening Fisher told him there would be no problem Later in the day, Lynn heard from some other employ- ees that Fisher and Jackson had accused him, in their presence, of falsifying a signature on a timecard Wor- ried, Lynn went to the plant at 3 p m to find out what the problem was When he arrived, Jackson beckoned him to his office There, Jackson told Lynn he was dis- charged On the way into Jackson's office, Lynn had asked Dominic Nastn to be a witness Nastn had not yet arrived when Jackson told Patterson that he had been fired Patterson asked Jackson to wait for Nastn, but Jackson said that he had nothing more to say According to Patterson, Jackson did not tell him why he was being terminated Jackson says sometime after telling Lynn he didn't have to come in, apparently the next day, Jackson says he was shown Patterson's current timecard, specifically an entry for July 28-29 Instead of being stamped in at 17 45, i e, 5 25 p m, the entry showing that time is hand- written It also contains two letters to the left of the entry The letters may be read either as JF or SF Jack- son said he regarded the entry as a forgery of John Fish- er's initials Fisher agrees that the writing is not his, but also says it looks like the letters SF When Patterson was shown the timecard he did not know about the letters but acknowledges that he wrote "July 28" and the time The "J" in the initials is significantly different from the "J" in Lynn's "July," although the color of the pen ap- pears to be the same Moreover, when Lynn was asked to write a handwriting exemplar, the "J" in the exemplar is identical to that on the timecard for "July," but quite different from the initials 11 Jackson now says he regarded the timecard entry as an "unexcused absence" and decided to terminate Patter- son He agrees, however, that he did not show Patterson the timecard and did not ask for any explanation about it He simply told Patterson that he had not passed his extended probationary period In addition to these reasons for discharging Patterson, Jackson cites some others, including an earlier admonish- ment for pranks and two incidents where Lynn had used foul language, first in front of a customer and then in front of a tour group of school children These had been mentioned during the earlier evaluation Jackson acknowledges, however, that other individuals have been treated somewhat differently For example, Ray Sworde has been fired and rehired at least five times Sworde, however, had no connection to the Union 2 The November 13 strike, alleged sabotage As noted above, the union committee, dismayed by the lack of progress at the bargaining table and by conduct it deemed to be unfair labor practices, decided to avail " Chevy Chavarna, a lead pressman, testified that on earlier occasions he and other lead pressmen had initialed timecards when individuals had neglected to punch in He says, however, that in early 1985 they had been ordered to cease the practice Had someone resumed the practice here') PARADISE POST 885 itself of the authority to strike which had been granted by the employees somewhat earlier The committee de- cided that the best tactic would be a 48-hour strike be- ginning early Wednesday morning, November 13, know- ing that the timing would have an impact upon the pro- duction of the Bay Guardian It also knew that fewer employees would be inside the plant at that hour and it would be easier to persuade a small number of employ- ees to leave at night rather than a large number to leave during the day The shift was scheduled to change at midnight The graveyard shift was to consist of one crew to operate the Community press Tom O'Leary was the night shift fore- man, Glenn Patterson was the pressman, Bill Pentico was to be the flier and, although it is not totally clear, it appears that Kim Smith was to be the second flier Chevy Chavarna was not scheduled to work that night but had decided to come in shortly before the swing shift ended to speak to departing pressman Dave Drickey and possibly O'Leary His purpose was to per- suade Drickey to honor the picket line when it was es- tablished Printing Division Manager Jackson testified that he had earlier learned from Dnckey that Chavarna intended to come to the plant that evening to "hold a union meeting" At one point he and Fisher considered barring Chavarna from the plant that night, but eventu- ally decided not to do so Shortly after 11 30 p m Patterson, Pentico, and Cha- varna reported for duty, each arriving separately When they arrived, Dnckey was working on the main control panel for the Community press He had taken it apart to search for the cause of a small electrical shock which he had experienced during the previous shift While he worked on the control panel Chavarna began his con- versation In the meantime Patterson and Pentico changed their clothes in the locker room and began to get ready to work on the press It is undisputed that the flats for the Bay Guardian had not yet arrived and were not expected to arrive for an hour or so Thereafter, the flats had to be photographed in the camera room and converted to plates It was apparent to everyone that the press run would not begin for at least 2 hours O'Leary knew that even before he arrived about midnight Nor- mally he would not have come in until approximately 2 a m because he had already been alerted to the fact that the Bay Guardian was late He came in, however, be- cause Jackson had directed him to oversee Chavarna When O'Leary arrived he observed Dnckey working on the control box and talking to Chavarna He and Pat- terson joined them Penne°, however, testified that once dressed he began to "look busy" He could see that the press, except for the plates, was nearly ready to go All he needed to do was add additional paper rolls to each of the units Accordingly, he proceeded to move new newsprint rolls into place and to strip them for use During Chavarna's discussion he accused the Compa- ny of not bargaining in good faith and of making little progress in the wage area O'Leary did not regard him- self as familiar with the bargaining and asked Chavarna if he had copies of the various contract proposals Cha- varna did not have them on his person, but did have them in his car He went outside to get the material When he brought it back, O'Leary suggested that they all retire to the ground floor office usually occupied during the day by Bob Cook The testimony of O'Leary, Dnckey, and Chavarna es- tablishes that at least those three individuals stayed in the office for the better part of an hour thereafter Glenn Patterson asserts that he, too, was in the office during that time Dnckey says Patterson entered the meeting on two or three occasions and stayed for only about 5 or 10 minutes Chavarna said that Patterson came into the meeting for about 10 minutes Chavarna says he left the building about 12 30 Dnckey testified that the meeting lasted about an hour and a half, ending about 1 30 a m In any event, at approximately 1 30 a m Patterson ad- vised Pentico the strike was to begin They both dressed and began to leave Dnckey, too, changed his clothes and as everyone began to leave O'Leary noticed that the press' so-called "safe-lite" was illuminated He asked Pat- terson and Pentico if they had "done anything to the press" They both replied that they had not and contin- ued on their way out the door O'Leary was upset at their departure and asked Dnckey if he was leaving too When he directed Dnckey's attention to the illuminated safe-hte Dnckey opted to remain in the plant to see what was the matter The safe-hte is a series of small lights which, when lit, tells the operators that the power has been interrupted to permit crewmembers to work safely on the press Dnckey testified he had closed the control panel after his repair attempt and had then "inched" the press That meant it was operable and ready to run However, after the meeting was over neither he nor O'Leary was able to turn the safe-hte off so that the press would operate After some preliminary checking they found them- selves unable to turn the power on and telephoned Jack- son at home Shortly thereafter, Jackson arrived and so did Fisher The four of them began what Jackson de- scribed as a "treasure hunt" looking for problems with the press which could be resolved Jackson immediately assumed that the strikers had sabotaged the press and called the police Sergeant William Hartley of the Paradise Police De- partment responded to the call at 2 48 a m He says he spoke with Jackson who told him that the employees had struck at 2 a m and that he believed the presses had been sabotaged Jackson showed Hartley a control box with the panel off and said that the press was in a "safe position" and could not be operated Hartley testified that he did not see anything which he could characterize as definite sabotage He says he told Jackson that if he found anything definite Jackson should call him back He told Jackson that he would either need an eyewitness or some type of physical evidence to convince him of the sabotage allegation Hartley then left the premises At no time thereafter did any official of Respondent call the police back even though, as they testified, they later dis- covered damage to the equipment Dnckey, curiously, testified that he and Jackson both took Hartley all around the plant and showed him all the damage Jackson, however, would not corroborate 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Drickey, saying he could not explain Drickey's testimo- ny In any event, Dnckey testified, and Jackson agreed, that the following items were eventually discovered to be wrong with the Community press (1) a unit control panel had been opened and wires disconnected, shorting out the framework, (2) wires were switched on the unit 5 dampener control, (3) a thermocouple overload device in the main electric motor would not operate, (4) the pH of the water in the dampener units had been altered causing the plates to smear, (5) some of the rollers were badly out of adjustment, (6) the Count-O-Veyor "blew up" be- cause a bolt had become jammed in its chain drive In addition, an oil pump chain on the Urbanite press had been pried off its sprockets with some kind of lever and permanently damaged It would appear that the most serious of these was the failure of the thermocouple in the main motor The others were readily discoverable and easily correctible with the possible exception of the damage to the Count- O-Veyor The Count-O-Veyor, however, could be oper- ated manually and once the bolts were removed was not a serious hinderance to the operation of the press None- theless, it took a great deal of time, together with the as- sistance of an electrician by long-distance telephone, to determine that the thermocouple in the main power motor was the problem and that the problem could be bypassed Cunously, with respect to the thermocouple, there is no testimony that the motor itself had in any way been tampered with It appears from the testimony of Dnckey and others that the thermocouple is deep inside this par- ticular electrical motor Moreover, even an elementary knowledge of electncal motors suggests that for the ther- mocouple to have been permanently damaged it would take more than a simple electrical overload A thermo- couple is a safety device designed to protect the wiring in the motor in the event of an electrical overload Ther- mocouples operate on the basis of heat and when the device gets too hot it trips, much as an ordinary circuit breaker in a house Some thermocouples will reset them- selves after cooling, others require a manual reset There was no testimony that this thermocouple had been per- manently damaged by an electrical overload, although the electrician did testify and may have been able to tes- tify on ways, if any, in which that might have happened Respondent asked no questions on the point The other way which the thermocouple could have been damaged is physical Someone could have removed the cover to the motor and broken the device There was no testimo- ny, however, that the cover had been removed, although it is dirty and evidence of both its opening and physical damage no doubt could have been seen or found There is no testimony whatsoever regarding why the thermo- couple would not operate Both Dnckey and Jackson concede, however, that the Company has suffered failures to press motors in the past Indeed, the Urbanite motor had failed on an earlier occasion Moreover, Jackson testified that somewhat later, Respondent replaced the Community press motor in question with a new one Frankly, I am not con- vinced, in this circumstance, that the Community press motor suffered any sabotage Respondent's evidence on the point is simply insufficient The same cannot be said for the other instances of al- leged sabotage Sudden pollution of the water in the dampener units is not likely to be a natural event Nor, of course, is the bolt found in the Count-O-Veyor 12 The rollers being out of adjustment appear to be of no conse- quence whatsoever as they are matters normally handled by the pressman and his assistant Even so, there is a sig- nificant absence of direct evidence demonstrating how the wires became disconnected or switched, how the dampener units became polluted or how the bolt got into the Count-O-Veyor Given the earlier electric shocks which Drickey was experiencing, it seems likely that the switched or disconnected wiring may have occurred well before anyone had an opportunity to sabotage the equipment Both Patterson and Pentico deny any responsibility for any sabotage They claim they are totally unaware that any sabotage had actually occurred, doubting Dnckey and Jackson's description of what they say they found Assistant Pressman Robert Gonzales testified that during the course of the stnke he learned of Respond- ent's claim that sabotage had occurred He says he asked Glenn Patterson if he had done it After hesitating, Gon- zales reports, Patterson admitted it and told him to say nothing about it, that the whole thing could be blamed on Dnckey The strike lasted only 2 days Shortly before midnight on November 15, Glenn Patterson, Chavarna, and Sean Bagby reported for work on the midnight shift They were greeted at the door by Fallbeck who told Patterson and Chavarna to wait while he spoke to Bagby After a few minutes, Jackson and Fisher came to the door and took the other two to Cook's office Patterson says the conversation which ensued went as follows Jackson asked if there was anything they wanted to tell him They both replied, "No" Jackson asked "Are you sure?" They answered, "Yes" Jackson asked, "Did you sabo- tage the press?" Both answered, "No, we did not" Jack- son said, "I'm going to ask you one more time" Again, both answered, "No" Patterson reports Jackson then told him "You are a good actor, Glenn We no longer need your services We can't trust you" He then let Chavarna and Patterson obtain their personal belongings from their lockers As they left he told them that it was going to be difficult for the two of them to get jobs else- where Jackson's version is not significantly different He says he had determined to fire Glenn Patterson and Chavarna on Thursday before the strike ended On that day he had gone to Fisher's house to attend a meeting with some employees He says that while he was there employee Perez reminded Jackson that he had warned him earlier that Chevy had told him the presses "wouldn't run" Perez did not testify and thus his report is hearsay with respect to whether Chavarna ever told him any such 12 Jackson also testified that he found an obscenity written on the side of one of the newsprint rolls as well as a paper pasted to the Count-0- Veyor which said, "Till hell freezes over" Pentico readily acknowledged responsibility for the latter of the two PARADISE POST 887 thing Respondent offer,s it, however, for the purpose of explaining Jackson's state of mind As a result of Perez' information Jackson says he made the decision to fire them Jackson says when Patterson and Chavarna arrived at work late in the evening of November 15, he spoke to them in Cook's office He says he asked them if they had sabotaged the press When they denied it, he says he told them they "had either done it or had seen it done" He said he offered each the chance to give his side of It but they refused Accordingly, he discharged them both Pentico says he went to the plant to pick up his pay- check, he believes, on November 15 Jackson says Pen- ne° came to the plant the day after he had tired Patter- son and Chavarna, 1 e, November 16 Penne° testified that Jackson and Fallbeck asked to speak to him in Cook's office At that point Pentico asked for a steward to be present They agreed and Pentico called union committeeman Mernll Brown to the meeting During their discussion Jackson told Penne° there had been sab- otage to the press and that he had either done it or had seen something while he was on duty Pentico denied seeing anything or doing anything to the press He re- members one of them asked him why he would damage the press because it was "his bread and butter" Penne° agreed that it was his bread and butter and responded, "Yes, why would I9" At that point Jackson discharged Pentico saying Penne° would be hearing from the Para- dise Police Department Jackson's version is much more clipped He said only that when Penne° arrived he told Pentico, "There's no question that you did it [sabotage] or saw it done" He said when Pentico replied that nothing had happened, he fired Pentico 3 The discharge of Merrill Brown Merrill Brown had originally been hired in 1983 as an inserter at the minimum wage Subsequently he became a machine operator and labeler and was promoted to $4 an hour In January 1985, to counter an outside job offer made to Brown, Jackson converted Brown to salaried status According to Brown he was to receive $1080 per month, medical insurance, life insurance, and one-and-a- half PDOs per month Jackson told him he no longer needed to punch the timeclock and that Brown could depend on the same pay each payday Like other employees, however, Brown joined the Union in April He participated in the April strike and later served on the Union's negotiating committee He often wore a union hat and was seen as a picket on tele- vision and in photographs which appeared in the Para- dise Post itself On November 15 or 16, Pentico asked Brown to attend the meeting at which Pentico was discharged At that point, Brown says, he was about the only union leader left in the plant When he attended the November 22 negotiation session he says "out of the blue" Publisher Fallbeck told him that if he wanted a recommendation for another job he would be happy to give one to him Brown says it was not said in a friendly way On Sunday, December 8, Brown was _at work Al- though his immediate supervisor was supposedly Cook, he was more often supervised by either Fisher or Jack- son For part of the past year, Brown had been experi- encing difficulty in PDO calculations Jackson admits that errors may have occurred and blames the bookkeep- er There is some reason to think that the bookkeeper was not properly crediting Brown's PDO account as a salaried employee This is particularly likely for at one point, because of the loss of a customer, Brown dropped from five to four shifts a week 13 On August 15 he was again called for a fifth day, this time Fridays, the day Respondent had insisted was the best day for bargaining sessions Earlier, Respondent's negotiator, Anderson, had advised that Respondent would not pay any employee for time spent in negotiations but would attempt to schedule the employee so negotiations did not conflict with the employee's duties This resulted in an additional problem for the salaried Brown because his paycheck, which had previously been the same, became erratic He could not find anybody who seemed to be willing to give him an explanation for the lost pay or for the lost PDOs The PDO situation had become critical in late November for he had become ill with pneumonia and had found that Respondent was not giving him any credit for PDOs He asked Fisher to look into it Fisher checked, apparently by communicat- ing with the bookkeeper, but without asking the book- keeper to audit the account The bookkeeper told Fisher that Brown was out of PDOs Indeed, when Fisher testi- fied before me, he was overly assertive about the fact that Brown was out of PD0s, despite having performed no investigation himself At one point in late November Jackson told Brown he would not receive Thanksgiving pay because he was out of PDOs Brown also points out that at one stretch he was not called to work for 4 days, November 14, 15, 16, and 29 and was not paid for them, nor was there any ex- planation of what was happening to his salary Predictably, this unsettled situation began to cause Brown great concern On Sunday, December 8, he com- plained to Fisher that his schedule was "too messed up" and that he wasn't getting PDOs Fisher's testimony was somewhat harsh about the incident He testified that about 1 p m that day he was busy attempting to repair a bundling machine He says Brown interrupted him to talk about his wages and time off He remembers Brown asserting that he was working more than 40 hours but that his salary was not covering it He said he did not know specifically what problem Brown was trying to discuss and became quite annoyed because he was very busy He says Brown often came to him about wage problems, even weekly Frankly, that seems quite unlike- ly given the fact that Brown's salary had been static since the beginning of the year In any event Fisher was quite short with Brown According to Brown, Fisher did tell him that the reason he hadn't gotten paid was because he was on strike on November 14, at least Brown says Jackson ar- rived at that point so he approached him instead of " Despite the loss of a day's work Brown's salary remained un- changed He was expected, however, to be on call for repair or mainte- nance work on the mailroom machinery 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fisher Jackson told him they weren't going to pay him when he was on strike and also said, "We don't pay for negotiation days" Brown then asked Jackson about the lost Saturday, Thanksgiving, and the Friday after Thanksgiving He says Jackson replied that the Company wasn't going to pay him for days he hadn't worked Jackson says he had come in on his day off and ob- served Brown in a "heated debate" with Fisher regard- ing insufficient PDOs and asking why he hadn't been paid He says the subject had come up before and he ended the conversation saying, "Merrill, I told you before, we're not trying to screw you out of money if you would just come in, you and I and the bookkeeper could look it over If we find a discrepancy I'll pay you on the spot But how can I do it on a Sunday after- noon?" Jackson went on to say that the previous conver- sations with Brown had occurred in similar situations, such as in late evenings or after office hours, where the bookkeeper could not be consulted He also says that he had written notes to the bookkeeper but she would re- spond only with a note saying that Brown's PDO ac- count was "okay" Jackson says he attempted to explain to Brown that the payroll situation was different with salaried employ- ees and he didn't have access to the bookkeeper's office to check her work He told Brown, "If we all don't agree, we will have to see her" He claims Brown re- plied that he should not have to make a special trip to come in and the Company should provide him with the information on his regular shift Jackson told him that the bookkeeper would not come in on Sundays Brown testified no one suggested that he see the bookkeeper In fact, he says, rank-and-file employees had earlier been told not to do so Thereafter, the testimony is in general agreement that Brown said he was not feeling well and the talk was giving him a headache It should be observed here that Brown had recently just gotten over a bout of pneumo- nia Indeed, he says that when he had reported to work earlier that day he had told Fisher that he didn't feel very well Fisher does not recall Brown making that as- sertion, but does not deny it either Jackson didn't believe Brown was ill and told him to take some aspirin Brown declined, saying he was sick and was going home Jackson claims Brown was "smil- ing" as he made the statement He concluded that Brown was not sick but was "trying to get me" He reports Brown as asking why he should work anyway as the Company wouldn't pay him Jackson says he attempted to get Brown to calm down, explaining that Brown did not seem sick and had not appeared sick until after they had had the altercation Jackson testified that since he did not believe Brown was ill, he told Brown that if he went home the Company "could not use him anymore" Nonetheless, Brown checked out and started to leave At that point Jackson told him he was discharged Jackson claims Brown then began walking around the building announcing to people that he had been fired because he was sick Curiously, Fisher, who was present the enure time, was not asked any questions regarding the circum- stances of Brown's discharge He does say that Brown at one point was quite loud A review of Jackson's testimony discloses that Jackson does not know what Brown's schedule was insofar as it may or may not have conflicted with negotiations He therefore does not specifically deny Brown's testimony that the deductions from his paychecks do not match the days spent in negotiations Yet quite clearly after Brown joined the negotiating committee, his pay and PDO ac- count were reduced This is in sharp contrast to a similar situation in March when his 5-day shift was reduced to 4 due to the loss of a customer At that time his salary re- mained the same Later, in August the fifth shift was re- instated only to be undercut by the alleged negotiation conflict 4 Statements to a newly hired employee In addition, the General Counsel adduced the testimo- ny of Glenn Sanchez Sanchez had been hired as a second pressman on either December 7 or 15, 1985 He was interviewed by both O'Leary and Jackson He learned of the opening from Glenn Patterson who had recently been fired During his prehire interview O'Leary told him that there had been trouble in the past with a union In a separate interview Jackson told him that the Union was present in the shop and was trying to negotiate a contract Sanchez says that on the first Friday night after being hired he went to a local bar, the Optimo, after work where he met O'Leary O'Leary told him that if he got involved with the Union or if O'Leary heard anything about Sanchez and the Union, he would be dismissed O'Leary said, in response to a leading ques- tion that he did not recall speaking with Sanchez regard- ing the Union and says he "doesn't think" that he would have threatened Sanchez with dismissal if he got in- volved with the Union IV ANALYSIS AND CONCLUSIONS A Credibility Considerations A determination of the factual matters presented by this case has been somewhat hindered by Respondent's failure to present competent evidence dealing with many of the General Counsel's allegations For example, Re- spondent wishes to rely on the hearsay statement alleg- edly made to Jackson by Perez to the effect that Chavar- na had threatened to commit sabotage In addition, Re- spondent failed to present the testimony of Publisher Jim Fallbeck with respect to what transpired at the negotia- tions and with respect to why Merrill Brown's pay and PDO accounts became less than understandable Further- more, its representative persisted in asking Jackson to testify in areas beyond his knowledge, specifically Brown's pay matter As it became apparent that Jackson had no firsthand knowledge in that area I declined to hear his speculations Finally, there are numerous in- stances throughout the record where Respondent's wit- nesses were unable specifically to deny the recollections of the General Counsel's witnesses This is not to say that the General Counsel's witnesses are to be believed simply because their versions are undenied, it is to ob- serve that Respondent has taken an unusual risk with re- spect to the acceptability of its own evidence PARADISE POST 889 Indeed, other unusual risks were taken during the hearing by Respondent's representative, Melvin P An- derson Anderson is the same individual who represented Respondent during collective bargaining During the hearing, renewed on several occasions, Anderson moved for a continuance, refusing to say for how long or to offer any explanation or reason for the granting of such a continuance Furthermore, the evening before the last day of the heanng, Anderson stated that Respondent would not be present on the following day, despite his assertion that he had not completed presenting all of Re- spondent's evidence He claimed to have a conflict which he would not explain He urged me not to bother to resume the hearing on Friday When I declined and told /um that I intended to be present on Fnday to run the hearing, Anderson told me it would be of no use Nonetheless, the following morning when I reconvened, Anderson was present and offered one short witness At that point he declined to present any further witnesses, again asking for a continuance without any explanation Respondent's approach to the presentation of this case, being less than complete, necessarily limits me as the finder of fact to view only part of the evidence which might have been adduced and forces me to rely in at least some degree upon adverse inferences This is so be- cause I must presume that if Respondent had evidence favoring its contentions, it would have presented it in- stead of hiding behind a cryptic request for a continu- ance Where it did not present evidence, I am forced to rely on the Gene' al Counsel's evidence which stands un- rebutted, even if it sometimes suffers from shortcomings or is somewhat flawed With these considerations in mind, I now proceed to resolve the issues raised in the complaint B The 8(a)(1) Allegations 1 The preelection matters Section 8(a)(1) of the Act declares it to be an unfair labor practice for an employer to threaten, restrain, or coerce its employees in the exercise of rights guaranteed by Section 7 of the Act to permit employees to form or assist labor unions Early upon discovering that its em- ployees were interested in a labor union, Respondent began to undercut the employees in the exercise of those rights It clearly did not want an outsider involved in its relationship with its personnel When Glenn Patterson first mentioned that employees were thinking about get- ting a union to represent them, Jackson immediately sug- gested that they seek an "in-house contract" Shortly thereafter he repeated the same remark to Chavarna and asked him if he intended to strike On April 15, during the meeting at the pizza parlor, Jackson suggested that the Company follow a contract with the International Typographical Union A week or so later he presented that very contract to Chavarna saying that it was the best way to go On June 21 while escorting Pentico to the NLRB polling place, Fisher told Pentico that it would be much better to have an mhouse contract None of this evidence is seriously denied Further- more, it is all mutually corroborative Accordingly, I conclude that Respondent violated Section 8(a)(1) of the Act on these occasions by telling employees they would be better off by dropping their interest in the Union in favor of some sort of "in-house contract" and by interro- gating Chavarna about his willingness to strike The question could only have been intended to determine the extent of Chavarna's commitment to the Union On April 21, according to mailroom employees Kathy Mickus and Lois Settles, Supervisor Cook told them that if the employees selected the GCIU to represent them, a series of unfortunate circumstances would befall them First he said the school age employees would lose their jobs Second, he said the Kaplan job would be lost, re- sulting in a reduction of work to a 1-day-per-week shift Furthermore, he said employees would be laid off Given the fact that Cook did not testify and that Re- spondent in no way challenges the testimony of these two individuals, I find their testimony to be unrebutted Simply stated, Cook's statements constitute a straightfor- ward threat of job loss as a direct consequence of select- ing the Union It may be that the loss of the Kaplan job, which actually did occur at some point, though perhaps not clear in the record, would have resulted in a reduc- tion of available work Nonetheless, Cook improperly connected that loss of business to the employees' deci- sion to select a union to represent them The import of his threat was clear if the employees chose a union, they would lose work opportunities The threat violated Sec- tion 8(a)(1) The last incident in this category occurred on June 21 as the election was actually in progress During the same conversation between Fisher and Pentico alluded to above, Fisher told Pentico that he could expect to ad- vance to assistant pressman and pressman more readily without the presence of the Union and the rules it might impose Pentico's version of Fisher's statement constitutes a direct threat that if Pentico or the other employees chose the Union, Pentico's advancement opportunities would be reduced Considering that the two were on their way to the polling place, it is clear that Fisher was attempting to coerce Pentico into voting against union representa- tion Such a threat is a clear violation of Section 8(a)(1) 2 Postelection matters Within minutes after the results of the election were known, Jackson told Glenn Patterson, in an obvious dis- play of sarcasm and bitterness, that he had done a "good job of persuading the employees to vote for the Union If you want to leave, I will give you a good recommenda- tion" Jackson did not deny Patterson's testimony Clear- ly the statement amounts to a demonstration that Jackson was quite displeased with Patterson and the Union's suc- cess It is also Jackson's statement that he wanted Glenn Patterson out of the plant, hopefully short of discharging him Nonetheless, it constitutes an implied threat of either discharge or some other retaliation, as yet unsaid, for the Union's success It, too, violates Section 8(a)(1) On the following day Lynn Patterson, Glenn's broth- er, spoke to Jackson saying it was now time to negotiate a contract Jackson, however, replied that it could take several years to negotiate a contract and that in a year 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they could have another election Jackson's remark here violates the Act in two ways First, it asserts that collec- tive bargaining was going to be a long and futile process and would be dragged out long enough to permit the certification year to expire Second, it constitutes a state- ment that Respondent did not intend to bargain in good faith Again, Jackson does not deny this version It con- stitutes a violation of Section 8(a)(1) Finally, though not specifically alleged in the com- plaint, there is the remark which Publisher Fallbeck made to Merrill Brown dunng the November 22 negotia- tion session A week before, Brown had been asked to attend the Pent= discharge interview According to Brown, during the November 22 meeting Fallbeck had told him, without any predicate for doing so, that if Brown wanted a recommendation for another job he would be happy to give him one Clearly, Fallbeck was transmitting the message that he did not want Brown on his staff any more The only reason visible in the record for such remark is Brown's conduct as a union commit- teeman, i e, being Pentico's representative and sitting in at negotiations In view of the fact that Respondent did not choose to rebut Brown's testimony, I find it to be fully credible as well as fully litigated Accordingly, I conclude that the threat violates Section 8(a)(1) of the Act C The 8(a)(3) Matters 1 The discharge of Lynn Patterson First, I should observe that I am of the view that Lynn Patterson, during his short tenure with Respond- ent, displayed some employment characteristics which Respondent could reasonably view as misconduct None- theless, the General Counsel has made a prima facie case that Respondent discharged Patterson because of his union activities Furthermore, Respondent has failed to demonstrate that he would have been discharged even in the absence of those union activities Patterson was involved with the union organizing campaign early He attended a dinner with Grabhorn when he first came to Paradise and he solicited authori- zation cards, attended union meetings, and his name and photograph, along with a campaign statement, appeared on the Union's original flyer Jackson considered Lynn's brother, Glenn, to be the principal union leader Moreover, shortly after the election Lynn had a con- versation with Jackson in which he urged the Company to sit down and negotiate a contract Jackson responded with a statement which I have previously found to have violated Section 8(a)(1), in essence saying that the Com- pany intended to engage in long and ultimately futile bargaining with the Union and enough time would pass so another election could take place in which the Union could be ousted Within 3 weeks of this conversation, Patterson had been fired A prima facie case has been proven Respondent's proffered reasons for discharging Patter- son are shifting, make-weight, and somewhat inconsist- ent At the time of the discharge Jackson at best told Patterson only that he had failed the probation period The probation period, however, had been extended in a rather peculiar fashion He survived the first 90 days, de- spite tardiness and attitude problems Another 6 weeks passed before Jackson told him on July 23 that his proba- tionary period was being extended Assuming Jackson's analysis of Patterson's attitude was correct, why did he not extend the probationary period in June" The fact that Patterson had suffered an industrial accident on June 10, as his first probationary period expired, is really irrele- vant to the extension Indeed, the delayed extension which is seen here suggests that Respondent was seeking a way to keep Lynn's employment status tenuous and thus more vulnerable to discharge While that purpose may have been legitimate, it also permitted Respondent to raise the status as a more credible defense to mask a discriminatory discharge Slightly more than 2 weeks after the extension, Jack- son actually discharged Lynn The trigger incident in- volved a combination of things First was the continuing concern about Patterson's failure to report on time and the connected failures to give Respondent adequate notice of an absence so a replacement could be found Second was the concern that Patterson was malingering and, third, was the discovery of the so-called false time- card In addition, Jackson claims that two nights before his discharge Lynn had failed to report for duty at all The timecard, however, belies that Despite his belief that Patterson had been malingering on the day before his discharge, and had failed to give adequate notice for his absence, Jackson admitted the in- cident did not affect production in any way because he was able to get a replacement He concedes he gave Pat- terson permission to be absent At that point Jackson had not yet made up his mind to discharge Patterson Later that night, or possibly the next morning, the so-called forgery was shown to him Jackson says it was that inci- dent which caused him to discharge Patterson However, in addition, Jackson reached back several months and said that other reasons for his decision included some pranks which Lynn had played, the two abusive lan- guage incidents and Lynn's asserted inability to get along with the pressmen These were all matters which had been raised earlier when he decided to extend Lynn's probationary period Moreover, the allegedly forged initials on Lynn's time- card have not been shown to be a forgery Patterson readily admitted to writing in the time, but denied any knowledge of what appear to be initials Those initials do not appear to be written in his hand and indeed might not even be intended as a forgery of Fisher's initials Fisher testified, and I agree, that the first letter appears to be an S, rather than a J Whatever purpose the letter- ing may have served, Jackson never showed the time- card to Patterson to ask him for an explanation Instead, Jackson concluded that because the time shown was a tardy, that Patterson had simply engaged in another act of unauthorized absence That analysis is a clear over- reach on Jackson's part Considering that the probationary period had been ex- tended in a peculiar way, that Jackson didn't give Lynn an opportunity to explain the lettering on the timecard (and the fact that the lettering was not consistent with PARADISE POST 891 Patterson's own handwriting), the shifting explanations, the make-weight earlier incidents, and taking into ac- count Respondent's union animus generally, it is clear to me that the Respondent fired Lynn Patterson in violation of Section 8(a)(3) of the Act Under the Wright Line doctnne," once a prima facie case has been made, the burden shifts to Respondent to demonstrate by a preponderance of evidence that it would have discharged the individual even in the ab- sence of his union activity In analyzing Respondent's evidence, I cannot conclude that it has done so It has shown that Lynn Patterson did have some problems, par- ticularly his absenteeism Moreover, I think it is fair to say that it has proven Lynn possesses a brash, somewhat immature personality But considering that •Respondent failed to give him an opportunity to explain the so-called forgery, and its proof of forgery failed utterly, that it has offered shifting and over-reaching reasons for its deci- sion, and considering the fact that it has treated at least one other individual, Ray Sworde, less severely, I cannot conclude that it has carried the day here Sworde, it will be recalled, had been discharged five times and recalled at least on four occasions after short periods of dis- charge One might characterize Sworde's discharges as simply suspensions If so, Respondent did not treat Pat- terson as well Perhaps this is due to the fact that Patter- son was a probationary employee, but that observation does not particularly assist Respondent since Lynn's pro- bationary period had been extended in a suspicious manner Moreover, the record is silent regarding wheth- er Sworde was ever fired during a probation period Ac- cordingly, I conclude that Respondent discharged Lynn Patterson in violation of Section 8(a)(3) and (1) of the Act 2 The wage increases As a result of the employee meeting in late March, Re- spondent, through Jackson and Fallbeck, told the em- ployees that they intended to conduct a wage survey to determine whether the Company was paying the appro- priate wage for the area Jackson told them that it was the Company's intention to pay competitive wages to its employees The wage survey, never presented in evi- dence, was dated "May 1985" The Union had made its demand for recognition on April 15 prompting the re- cognitional strike followed by the filing of the election petitions The wage survey although dated "May" was not actually discussed with the employees until a meeting during the last week of that month In fact it was even after May 22 when the Regional Director approved the stipulations for the consent election In that meeting, Jackson told the employees that the Company had com- pleted the wage survey and had decided that some of the employees were entitled to raises The amount of each raise was transmitted to each affected employee during a private conference shortly after the meeting Each of those increases was effective June I Thus, it is apparent that the June 1 wage increase is not neutral in terms of Respondent's motive First, all of 14 Wright Line, 251 NLRB 1083, 1089 (1980), NLRB v Transportation Management Corp, 462 US 393 (1983) the June 1 wage increases were given to employees who had received a wage increase only 3 months before Second, it was timed to go into effect 3 weeks before the election, thus permitting Respondent, a week before the election, to issue a paycheck in the increased amount, maximizing its electoral impact Third, it was aimed at the pressmen, the individuals whom Jackson knew to be the leaders of the organizing drive I find, therefore, that the General Counsel has made out a prima facie case that the wage increases announced at the end of May were intended to influence the outcome of the election A wage increase having that purpose is unlawful NLRB v Exchange Parts Co, 375 U S 405 (1964) Re- spondent defends, arguing that the wage increases were simply the product of the "promise" which Fallbeck had made in March to pay each employee a competitive wage, a rate to be determined by the wage survey Yet, the promise itself is vague No specific increases could even have been under consideration Moreover, the "promiie" language itself is less than a promise Fallbeck only stated he "intended" to pay a competitive wage Indeed, the April raise could easily be considered the ful- fillment of the intent to be competitive Certainly the June raise was not a routine,' periodic event, nor was it one which had been previously scheduled A defense to the Exchange Pails rule may be made out if the employer can show that the wage increase was routine, periodic or that it had been previously sched- uled 15 It must act as it would have had the Union not been on the scene Respondent has made no effort to show that this wage increase was any of these Consider- ing that the wage survey was not offered in evidence, indeed it has not even shown that the increases were the result of actual reliance upon the wage survey, I con- clude that the defense fails and that the June 1 wage in- creases violated Section 8(a)(1) of the Act as an effort to influence the outcome of the election then scheduled for June 22 16 3 Glenn Patterson's reduced hours Shortly before the election on June 21 Respondent hired Tom O'Leary as its night foreman O'Leary had had extensive experience with the Urbanite press in his previous employment At the time he was hired, Glenn Patterson was the only other experienced Urbanite oper- ator Moreover, Patterson had been working an average of 35 straight-time hours per week and 10 overtime hours per week Beginning in July those averages dropped to 32 straight-time hours and only 2 6 overtime hours His hours changed because he had been trans- ferred from the Urbanite press to the Community press 15 McCormick Longmeadow Stone Co, 158 NLRB 1237, 1242 (1966) 16 The General Counsel also argues that the April 1 wage increases to Bagby, Glenn Patterson, Chavarria, Drickey, Smith, and Sworde were also unlawful Her representatives argue that these were direct responses to persons active in the initial organizing drive and a direct attempt to buy them off I am unconvinced, for at that stage the union organizing was quite nascent and wage increases were offered to individuals who were not particularly active in the organizing campaign such as Bagby, Dnckey, Smith, and Sworde In any event finding that those increases were unlawful would add nothing to the remedy in view of the fact that the June 1 grants clearly were for an unlawful purpose 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when O'Leary took over the operation of the Urbanite Jackson testified, in essence, that the number of overtime hours which Patterson was working was too much Moreover, I note that Respondent had earlier employed a second Urbanite operator, Adams who was no longer employed His departure had left a manpower gap which needed to be filled, as it was, by O'Leary Jackson and Fallbeck later denigrated Glenn Patter- son's ability as an Urbanite operator It may well be that it became immediately apparent to Jackson that O'Leary was a better operator of that equipment than Patterson Nonetheless, I am unable to perceive a discriminatory reason for Glenn's reduced hours as alleged in this com- plaint Clearly Respondent was attempting to replace a lost employee by hinng O'Leary That O'Leary had both management skills and good operator skills only emphasizes the nondiscriminatory purpose behind his hire Respondent had no obligation to continue to pay Glenn Patterson the overtime which had fallen to him when the previous Urbanite operator had left Moreover, Glenn's straight-time fell only by an av- erage of 3 hours per week Had Respondent been dm- cnminating against Glenn here, it seems likely to me that the loss would have been more severe The only reason Patterson was at the high level of overtime hours was because of Adams' departure When that slot was filled, Glenn's hours necessarily fell back On this evidence I cannot say that the General Counsel has proven that Pat- terson lost hours as a result of discrimination by Re- spondent This allegation should be dismissed 4 The August denial of a wage increase for Chavarna The General Counsel has asserted that the denial of a wage increase to Chavarna in August was a violation of Section 8(a)(3) After Chavarna received his June in- crease raising him from $7 25 per hour to $8 per hour, and because other pressmen had been given $9 per hour, Chavarna complained of the disparity He says Jackson told him he would get the additional dollar in 3 months In August Chavarna went to Jackson with Sean Bagby, to assist Bagby in his quest for a raise Jackson denied both requests on two grounds (1) Respondent had cash- flow problems due to customers who were not paying their bills and (2) the employees would have to wait for the union contract, then being negotiated, to be finalized Jackson denies making a specific promise of an additional dollar, and denies setting any date He says he let Cha- varna believe that he would get the $9 rate in due course It is clear that Jackson made no reference to Chavar- na's union conduct as a motive Moreover, it does not seem probable that Jackson would promise Chavarna the additional raise so soon after the April and June in- creases I do not credit Chavarna here, at least insofar as the promise is alleged to have been specific Thus it ap- pears that no raise had been set for Chavarna and that Jackson was acting lawfully in observing that future raises for Chavarna depended on negotiations This alle- gation should be dismissed D Dilatory Bargaining, Withdrawing from Tentative Agreements Preceding the Union's certification had been numerous statements, recited supra, in which Respondent's officials in effect stated that collective bargaining would be a fu- tility Indeed, at least one of those statements, Jackson's remark to Lynn Patterson that bargaining would be hard, could take years and another election could be held, is virtually an admission that Respondent did not intend to bargain in good faith The certifications of representative were issued on June 28 Union Business Manager Grabhorn immediately followed up with a letter to Publisher Fallbeck request- ing negotiations Fallbeck did not immediately reply As a result, Grabhorn telephoned him twice but Fallbeck told him Respondent was "unavailable" to meet in July When the August 2 meeting ended Grabhom attempted to schedule more meetings, but Respondent's newly ar- rived professional negotiator, Melvin Anderson, respond- ed that the Company could not do so because its officers were "very busy and could not devote more than one day per week to negotiations not even Jesus Christ could get this company to meet more than one day at a time" Concluding, Anderson told Grabhorn that Re- spondent could not even meet on any given day prior to 10 a m or after 5 p m Frankly, Fallbeck's inadequate explanation and Ander- son's remarks here set the entire tone of negotiation thereafter It is clear to me from these undemed remarks that Respondent had no intention of taking seriously its obligation to meet and bargain in good faith Grudging- ly, Respondent finally agreed upon August 16 for the next meeting Respondent would not agree to meet again until 3 weeks later on September 5 On September 6, Re- spondent was late, and then needed an extended lunch hour to ready itself After the extended lunch hour, they returned and asked for more time to permit them to eat To top off those delays, Anderson then sat and read the Union's proposal silently to himself for the rest of the afternoon This, in the face of his earlier statement a month before, that the Union's proposal needed to be carefully considered, hardly shows a sincere interest in reaching a contract When that meeting ended Grabhorn tried to schedule a meeting for the following week An- derson would not begin to do so until Grabhorn accused him of engaging in dilatory tactics and threatened to strike Only then did Respondent offer September 23 (later canceled in favor of September 13) Two weeks passed until the next meeting, on September 26 and 27 Moreover, on September 27, after a heated dispute had calmed down and things were about to progress, without provocation, Anderson and his group walked out Because the Union again threatened to strike, Ander- son attempted to schedule a meeting with the FMCS who arranged for a meeting on October 18 at 10 a m Cavalierly, however, the Company did not bother to arrive until 2 30 p m Two weeks later the next meeting occurred on October 31, and 2 weeks passed before the next meeting, November 11 During this period of time there had been some minor agreements but, according to Grabhorn, approximately PARADISE POST 893 30 issues remain unresolved Without reciting the minor agreements, suffice it to say that most of them are quite routine and inoffensive As far as the record shows, during this entire period Respondent had made only three proposals of its own Frankly, I am of the opinion that Respondent's ap- proach to bargaining here breached the obligation im- posed by Section 8(d) of the Act to meet and confer at reasonable times and intervals 17 Moreover, the Act re- quires that those meetings be held with the purpose of bargaining in good faith toward a collective-bargaining contract Respondent's dilatory tactics, its feigned out- rage, its disrespectful treatment of the FMCS, and its statements that bargaining was going to be long, hard, and futile while taking several years are strong evidence that' Respondent had no intention of approaching these negotiations with an eye toward actually reaching a col- lective-bargaining contract In that context the Union struck on November 13 In response the Company withdrew from all of the relative- ly unobjectionable "tentative agreements" which the par- ties had reached Considering all the circumstances I conclude that its withdrawal from those tentative agree- ments was an additional act of bad faith It may well be that some new development can justify changes in a party's bargaining stance Usually, however, that follows from a change in economic power or other significant factor arising from a strike of some duration Even as- suming that Respondent did not know that this strike was only scheduled to last 2 days it is clear to me that its principal purpose was to use the strike as an excuse to torpedo what little success there had been There were no new developments at that stage justifying any modifi- cation of the agreements which had been reached Valley Oil Go, 210 NLRB 370, 385 (1974) E The Discharge of Glenn Patterson, "Chevy" Chavarria, and Bill Pentico Respondent asserts that Glenn Patterson and Pentico were the only ones who were present in the pressroom at the time the alleged sabotage supposedly occurred and the circumstantial evidence is overwhelming that these two individuals must have been the ones who did- it It further argues that Chavarna acted to distract O'Leary's attention from the pressroom while the damage was being done There are several problems with Respond- ent's analysis here First of all, given my earlier finding that there is no evidence that the Community press motor was in any way sabotaged, the other evidence is subject to some doubt Furthermore, there are no wit- nesses to any act of sabotage and Jackson failed even to report these incidents to the police despite Sergeant Hartley's request that he do so if physical evidence of sabotage was discovered I am fairly unimpressed with the testimony that the press rollers were out of adjust- ment as being evidence of sabotage at all Likewise, given the electrical problems that pressman Dnckey had been expenencmg earlier in the evening, the switched wires in the control panels may satisfactorily explain that 17 See Insulating Fabricators, 144 NLRB 1325 (1963), Rhodes St Clair Buick, 242 NLRB 1320 (1979) problem However, there are the reports of the fouled water in the dampener controls and the bolt found in the Count-O-Veyor Those are not as readily explainable Even so, there is no evidence demonstrating what actual- ly caused the pH in the water to have changed or how the bolt found its way into the Count-O-Veyor The General Counsel argues that it is most likely that sabotage never occurred and that the incidents have been falsified to create an excuse for discharging two of the Union's principal adherents, Glenn Patterson and Cha- varna, and that Pentico is simply a victim of that effort I have carefully considered the argument, and find it to be reasonably plausible Two of Respondent's witnesses, Drickey and Gonzalez, are particularly vulnerable to a charge that their credibility is impaired Gonzalez' mother and stepfather are also employed by Respondent and it appears that his entire family is economically vul- nerable in the event that his testimony is inconsistent with Respondent's wishes In addition, it should be ob- served that Gonzalez benefited from the discharges be- cause he became an assistant pressman shortly after the strike ended, replacing individuals who had been pro- moted to pressmen because of the discharge of Chavarna and Glenn Patterson Likewise, Dnckey appears to be subject to a great degree of influence by Respondent I have already ob- served that his testimony regarding what was described to Sergeant Hartley greatly exceeded what was factual He also "couldn't recall" whether he told O'Leary or Jackson that Chavarna was planning to come in at mid- night that night, although Jackson freely admitted that was the case He testified that the reason he did not co- operate dunng the Board's investigation of the incident was that he wanted to keep his job He concedes that the Company has threatened to fire him several times but hasn't done so yet Even during the heanng, after admit- ting to an absence for which he had no doctor's excuse, he was so frightened for his position that he asked Jack- son and Company Representative Melvin Anderson if he would be fired because of his testimony He is terribly fnghtened for his job Clearly the testimony of both Gonzalez and Dnckey must be carefully scrutinized, if not discounted altogether Thus, Gonzalez has testified that Glenn Patterson ad- mitted committing sabotage, even going so far as to say that Glenn told him not to say- anything about it and that it should all be blamed on Dnckey Dnckey testified, of course, that he discovered certain instances of sabotage and he joined in O'Leary's testimony that in the 2 hours before the stnke Patterson was somewhere other than in Cook's office for great periods of time Chavarna's testi- mony which facially confirms Dnckey, does not actually do so as Chavarna also testified that he left the premises quite a bit earlier than everyone else He simply did not know whether Glenn went into the office as often as he said With respect to Respondent's argument that only Glenn Patterson and Pentico were in the press room and had access to it, I observe that there is some testimony that Kim Smith was also seen in the plant momentarily that night Furthermore, there were other individuals 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with access to the pressroom, including those who were working in the camera department That evidence, it seems to me, undercuts Respondent's claim that those three were the only ones present who could have dam- aged the equipment There is also one final, very salient, observation to be made here Respondent has asserted that Patterson, Chavarna, and Pentico must have acted in concert They argue that Chavarna had deliberately distracted O'Leary from what was happening in the pressroom However, the evidence shows instead, that it was O'Leary who invited Chavarna Into Cook's office Had they all remained talking near the control panel of the Community press, O'Leary would have been in good position to see what was happening elsewhere in that room Yet, it was O'Leary who moved everyone into the comfort of Cook's office, not Chavarna Connected to this final observation is one last point Respondent does not know which employee actually committed the sabo- tage (if any), yet it discharged everyone it believed con- nected to it It is quite conceivable that only one individ- ual was involved, yet three were discharged Frankly, Respondent's reach here is excessive, risking the dis- charge of persons totally innocent In any event, looking to the actual evidence of sabo- tage, I am not fully convinced that it occurred Given the biases which may be charged against Drickey and Gonzalez, the lack of physical evidence, as well as the failure to act consistently with the discovery of such evi- dence (i e, calling the police again or photographing transitory evidence) it seems to me that Respondent's proof on the point is less than that required to demon- strate misconduct actually occurred That being the case, and observing that it is Respondent's obligation in strike misconduct cases, to prove that employees would have been discharged even in the absence of a strike" it seems to me that Respondent is remarkably short such proof In addition, I note that these discharges encompassed two of the Union's leading adherents and that Respond- ent had embarked upon a long campaign of unlawful conduct designed to undermine the Union's representa- tive status Finally, there is the testimony of Glenn San- chez who testified that he had been hired shortly after the strike ended and that within his first week he was told by O'Leary that if he got involved with the Union or if O'Leary heard anything about Sanchez and the Union that he would be dismissed Only by virtue of a leading question does O'Leary deny Sanchez' testimony and even then says only that he "can't recall" speaking with Sanchez about the Union He bases his denial on the ground that he "wouldn't have said it" Considering O'Leary's equivocal denial and also noting that Sanchez has no reason to fabricate, I credit Sanchez Sanchez' tes- timony amounts to his report of an admission that Re- spondent had every intention of discharging employees who became involved with the Union It follows from that evidence that Respondent Intended to discharge in- 18 See Fleetwood Trailer Co, 389 U S 375, 378 (1967), quoting NLRB y Great Dane Trailers, 388 U S 26, 34 (1967), Lamb-Weston Inc. 170 NLRB 1692 (1968), Restaurant Assn of the State of Washington, 190 NLRB 133, 139 (1971), Markle Mfg Co, 239 NLRB 1142, 1149 (1979), and Mobile Home Estates, 259 NLRB 1384 (1982) dividuals who were union leaders Clearly Chavarna and Glenn Patterson fell into that category The General Counsel's observation that Pentico was swept out with those two, as well as because he joined the strike, is also a prima facie case which Respondent has failed to refute Accordingly, I conclude that Respondent has not met its burden of proof demonstrating that sabotage had actu- ally occurred or that these individuals would have been discharged even in the absence of a protected strike I conclude, therefore, that the General Counsel has proven that 'Respondent discharged Glenn Patterson, Chavarna, and Pentico because of their union activities F Merrill Brown-Pay Reduction and Discharge Shortly after Merrill Brown became a negotiating committee member his paycheck began to become errat- ic Previously, he had received a monthly salary of $1080 regardless of whether he worked 4 or 5 days per week, although when he was working only 4 days per week, he was on call for the purpose of maintaining certain mail- room equipment In late August, Printing Division Man- ager Jackson told Brown that he was to resume a 5-day schedule and added a Friday shift from 4 p m to 1 a m As previously noted, Anderson had insisted that Fridays were the best negotiation day for its management person- nel Anderson had also said Respondent would schedule union negotiation committee members to avoid conflicts This meant Respondent was supposed to try to resched- ule Brown's Friday shifts where they overlapped with negotiation That effort may not have been successful It is impossible to tell because Respondent either did not keep or did not present the records of when Brown was supposed to have worked It is also true that Respondent's bookkeeper had not been computing Brown's PDO's correctly or, at the very least, that Jackson knew there was a dispute between Brown and the bookkeeper over the correct calculation He, nonetheless, made no effort to resolve it, preferring to ignore the problem However, Jackson conceded that Respondent was having trouble with the bookkeeper's PDO calculations insofar as salaried employees were concerned Whether Jackson's initial decision to ignore it was deliberate or whether he simply didn't want to be troubled is not really material It does appear that Brown's calculation of the amount of PDO's which he had in his account is correct, given the fact that in July he had convinced the clerical staff that there were errors, permitting him to take a full 2-week paid vaca- tion However, when he joined the Union's negotiation team, his paychecks were reduced and his PDO account became terribly depleted He said even after his July va- cation there were still PDOs left in the account Since then he had, of course, accumulated additional PDOs for July, August, September, and part of October He be- lieved he should have had six or seven PDOs remaining When he became ill with pneumonia in October Re- spondent would not pay him for those absences saying his PDO account had been depleted In November Re- spondent continued to refuse to pay him for days he did not work and he says the Company would not even PARADISE POST 895 schedule him for work Thus, he lost work on November 14, 15, 16, and 29, plus he was not paid for Thanksgiving due to Respondent's contention that he was out of PDOs In the meantime he worked whenever he was sched- uled, although he says there were occasions where nego- tiations and his work schedule conflicted On those days he attended negotiations instead However, there were also days when negotiations occurred where he was not scheduled, as Respondent was attempting to follow its announced policy of rescheduling work to avoid such conflicts As the record now stands, it appears that Re- spondent deducted a day's salary on days when he was attending negotiations but in circumstances where he was not missing work Therefore, it is apparent that such deductnins occurred simply because Brown was engaging in protected con- duct, i e, participating in union negotiations Since there was no conflict on those days, the deductions were un- justified and are a violation of Section 8(a)(3) of the Act This is so whether one applies a per se analysis or whether one applies traditional discrimination analysis In the midst of all this, Brown was asked in November to attend the Pentico exit interview to act as a union steward At that point he was the last full-time employee remaining on the Union's negotiating committee And, by December 8, he was the last strong union adherent still on Respondent's staff The dispute which occurred on December 8 relating to his account and to the erratic salary matter was one which could easily have been resolved It could have been resolved days or even weeks beforehand had Jack- son truly wanted to do so Brown's frustration with Fish- er's brittle approach to the problem is therefore quite un- derstandable Fisher had no interest in helping Brown and simply took the bookkeeper's word Jackson, howev- er, well knew that the bookkeeper had made PDO errors with salaried employees in the past and was likely to have been making one here Furthermore, Jackson ap- pears to have known that Brown's salary situation was unsettled as a result of his attending union negotiations He had every reason to believe that it was the result of a discriminatory decision by Fallbeck, at whose direction the payroll office was acting He told Brown, "We don't pay for negotiation days" Such a broad remark could easily include the intent to deprive Brown of pay when he was attending negotiations even absent a conflict or could reflect an overbroad directive to the payroll clerk It may fairly be said that Respondent's management permitted the situation to fester to provoke Brown into some sort of outburst Jackson's explanation to Brown that he see the bookkeeper was of little satisfaction to Brown who had previously been told that he could not see the bookkeeper by himself and whose schedule did not coincide with the bookkeeper's Had a specific ap- pointment or accommodation been made where they could all have sat down with the bookkeeper the inci- dent might never have happened Nonetheless, by De- cember 8 the matter had gone too far for Brown to ignore He believed, with justification, that Respondent was treating him unfairly and discriminatorily Thus, when Brown said the December 8 altercation had made him ill and he was going home sick, he was telling the truth in two different ways He was still unwell from his earlier illness (as demonstrated by the findings of the California Unemployment Insurance Ap- peals Board) and he had been deliberately pushed by Re- spondent to a point where his mental stability had been shaken Singularly, Brown had been at work for some time that day and Respondent, in this record, has pointed to no work which Brown had not completed 19 Respond- ent has not shown that Brown's decision to check out ill in any way impaired Respondent's ability either to per- form his job or to produce whatever publication was being worked on that day Thus, when the newly arrived Jackson assumed Brown was malingering it was an assumption which was totally unnecessary For all Jackson knew, Brown had completed his work and, as frustatmg as Brown's attitude may have been, it was not a sufficient ground to dis- charge him Indeed, considering the fact that the incident said to justify Brown's discharge grew directly from Re- spondent's discriminatory deprivation of salary, it can hardly be said that Respondent was not responsible for Brown's emotional outburst on that day When Jackson seized upon the outburst as the reason to discharge Brown, in a very real sense he took advantage of Re- spondent's own misconduct to find a facially nondiscrim- inatory reason to discharge him I am not persuaded by such a tactic It seems clear to me that Respondent was attempting to get rid of all of the union activists and, by this time, had succeeded in ridding itself of everyone except Brown It was now attempting to oust him as well Before that moment Jackson had no nondiscrimina- tory reason to justify discharging him Thus, it follows that Respondent's discharge of Brown on December 8 was because of his union activity, including his participa- tion on the union negotiating team and his representation of Pentico Such a discharge is unlawful and a violation of Section 8(a)(3) and (1) THE REMEDY Having found that Respondent has engaged in certain violations of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it be ordered to , cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act In this regard Re- spondent shall be ordered immediately to reinstate Lynn Patterson, Glenn Patterson, Ronald Chavarna, William Pentico, and Merrill Brown to their former jobs, dismiss- ing if necessary any replacements, or if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and to make them whole with interest for loss of earnings as described by the Board in F W Wool- worth Go, 90 NLRB 289 (1950), Florida Steel Corp, 231 NLRB 651 (1977) See, generally, Isis Plumbing Co, 138 - " The state agency noted evidence that once turned on, the machines operate without close supervision and that other machine operators were nearby who could have covered Brown s absence if necessary 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD NLRB 716 (1962) Likewise, Brown shall also be made whole for earnings and PDO's discriminatonly denied him before he was discharged In addition, Respondent shall be required to expunge from its personnel and all other records any reference to the unlawful discharges and shall provide each of those individuals with written notice of such expunction and to inform each that the discharge will not be used as a basis for further person- nel actions concerning him With respect to remedying Respondent's bad-faith bar- gaining tactics I shall recommend, in addition to the cease-and-desist order, to obtain a return to the status quo ante, that Respondent be ordered to rescind its with- drawal from the tentative agreements Affirmatively, it shall be ordered to comply with the 8(d) good-faith bar- gaining obligation, including a requirement that it agree to bargaining sessions at reasonable intervals and without arbitrary, artificial restrictions on the length of such meetings Finally, because Respondent has never entered into negotiations in good faith, I shall recommend that the certifications of representative be extended for a full year, to commence on the first day Respondent negoti- ates in good faith with the Union Mar-Jac Poultry Go, 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600 (5th Or 1964), cert denied 379 U S 817 (1964), Rhodes St Clair Buick, supra, Cellar Restaurant, 262 NLRB 796 (1982) Cf G J Aigner Go, 257 NLRB 669 (1981), cf Glomac Plastics, 234 NLRB 1309 fn 4 (1978), enfd in pertinent part 592 F 2d 94 (2d Cif 1979), reaffd 600 F 2d 3 (1979) CONCLUSIONS OF LAW 1 Respondent Paradise Post is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Graphic Communications International Union Dis- trict Council 2, Local 388M, AFL-CIO is a labor orga- nization within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act on the dates and by the participants shown in the decision by telling employees that representation by a labor union would be a futile act, by telling employees that it would be better to have either an "in-house contract" or to follow the terms of a collective-bargaining contract ne- gotiated by a union which the employees had not freely selected, by interrogating employees regarding whether they intended to engage in a lawful strike, by threatening employees with loss of jobs, loss of work or with layoffs in the event they selected a union as their representative, by threatening an employee with loss of employment ad- vancement if the employees selected a union as their bar- gaining representative and by inducing employees to resign by offering to give good recommendations to pro- spective employers in order to rid itself of union adher- ents 4 Respondent violated Section 8(a)(3) and (1) of the Act by discharging the following employees on the dates shown in the Decision Lynn Patterson, Glenn Patterson, Ronald Chavarria, William Pentico, and Merrill Brown, all because of their union activities 5 Respondent violated Section 8(a)(3) and (1) of the Act by reducing the pay of Merrill Brown and depriving him of PDO's because he participated in union negotia- tion meetings 6 The following employees of Respondent constitute units appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act Unit A All regular full-time and part-time press, camera and plate making employees employed by Respondent at its Paradise, California facility, ex- cluding all office clerical employees, guards and su- pervisors as defined in the Act Unit B All regular full-time and part-time mailroom and inserting employees employed by the Respond- ent at its Paradise, California facility, excluding all office clerical employees, guards and supervisors as defined in the Act 7 Since June 28 and July 1, 1985, respectively, the Union has been the certified collective-bargaining repre- sentative in units A and B and by virtue of Section 9(a) of the Act has been since those dates the exclusive repre- sentative of employees in units A and B for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment 8 Since the inception of bargaining on August 2, 1985, Respondent has violated Section 8(a)(5) and (1) of the Act by engaging in the following acts of bad-faith bar- gaining a Refusing to meet at reasonable intervals and times b Withdrawing, without cause, from tentative agree- ments which had been reached c Entering Into negotiations without the sincere pur- pose of agreeing to any collective-bargaining contract 9 Respondent has not otherwise violated the Act as alleged Based on these findings of fact and conclusions of law, I issue the following recommended2° ORDER The Respondent, Paradise Post, Paradise, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Telling employees that representation by a labor union would be a futile act, telling employees that it would be better to have either an "in-house contract" or to follow the terms of a collective-bargaining contract negotiated by a union which they have not freely select- ed, interrogatirg employees regarding whether they intend to engage in a lawful strike, threatening employ- ees with loss of jobs, loss of work, or with layoffs in the event they selected a union as their representative, threatening employees with loss of employment advance- ment if the employees selected a union as their bargain- ing representative or inducing employees to resign by of- 20 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses PARADISE POST 897 fenng to give good recommendations to prospective em- ployees in order to rid itself of union adherents (b) Reducing the pay or discharging employees who engage in activity protected by Section 7 of the Act, in- cluding union organizing, participating on union negotia- tion committees, participating in strikes, or acting as an employee representative during disciplinary proceedings (c) Engaging in bad-faith bargaining tactics such as re- fusing to meet at reasonable intervals and times, with- drawing without good reason from tentative agreements, and entering into negotiations without the sincere inten- tion of reaching a collective-bargaining contract (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act 22 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Immediately offer Lynn Patterson, Glenn Patter- son, Ronald Chavarna, William Pentico, and Merrill Brown reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole, with interest, for lost earnings in the manner set forth in the remedy section of this decision, dismissing, if necessary any employees who replaced them (b) Make whole, with interest, Merrill Brown for lost pay and paid days off denied him because he participated in collective-bargaining meetings (c) Expunge from its personnel records and all other files of the above-named employees any reference to their discharges, notify them in writing that it has done so, and tell them that their discharges will not be used against them in any way (d) Rescind its withdrawal from the tentative agree- ments it had reached with the Union prior to November 13, 1985, and, on request, bargain collectively at reasona- ble times and intervals and in good faith concerning wages, hours, and other terms and conditions of employ- ment with Graphic Communications International Union District Council 2, Local 388M, AFL-CIO as the exclu- sive representative of its employees in the bargaining units described above It shall regard the Union as the exclusive bargaining agent as if the initial certification years have been extended an additional year, beginning with the commencement of bargaining pursuant to this Order If an understanding is reached, it shall embody that understanding in a written, signed agreement (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due or to otherwise monitor compliance with the good-faith bargaining requirement and other terms of this Order 21 Considering the nature and number of the violations of the Act found herein, I must conclude that Respondent has demonstrated a gener- al disregard for its obligations under the Act Accordingly, I find that a broad cease-and-desist order is appropnate See Ifickmort Foods, 242 NLRB 1357 (1979) (f) Post at its Paradise, California facility copies of the attached notice marked "Appendix "22 Copies of such notice on forms provided by the Regional Director for Region 20, after being signed by Respondent's, author- ized representative, shall be posted by Respondent imme- diately on receipt and maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 22 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT tell employees that representation by a labor union is a futile act WE WILL NOT tell employees that it would be better to have either an "in-house" contract or to follow the terms of a contract negotiated by a union which they have not selected WE WILL NOT interrogate our employees regarding their union sympathies and desires or whether they intend to engage in a strike WE WILL NOT threaten employees with loss of jobs, loss of work, or layoffs because they choose to be repre- sented by a union WE WILL NOT attempt to get rid of employees who favor union representation by asking them to resign si- multaneously promising to give them good references to prospective employers WE WILL NOT discharge or otherwise penalize our em- ployees who engage in union activity protected by the Act, including union organizing, participating on union 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD committees, striking, or representing employees during disciplinary discussions WE WILL NOT fail and refuse to bargain in good faith with Graphic Communications International Union Dis- trict Council 2, Local 388M, AFL-CIO by engaging in dilatory conduct such as refusing to meet at reasonable times and intervals, withdrawing from tentative agree- ments without good reason, or by entering into negotia- tions without intending to reach an agreement WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act WE WILL offer the following named employees imme- diate and full reinstatement to their former jobs, dismiss- ing, if necessary any employee who replaced them, or if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for lost earnings plus interest since their discriminatory dis- charges, on various dates in 1985 Lynn Patterson - Merrill Brown William Pentico Ronald Chavarna Glenn Patterson WE WILL make whole with interest Merrill Brown for pay wrongfully deducted for times when he attended collective-bargaining negotiations but did not miss work WE WILL expunge from the personnel records of the five individuals named above and any other files, any ref- erence to their discharges, and WE WILL notify each in writing, that this has been done and that evidence of their unlawful discharges will not be used as a basis for future personnel action against them WE WILL, on request, bargain collectively at reasona- ble times and intervals in good faith concerning wages, hours, and other terms and conditions of employment with Graphic Communications International Union Dis- trict Council 2, Local 388M, AFL-CIO, as the exclusive collective-bargaining representative of our employees in the bargaining units described below, and WE WILL regard that Union as the exclusive collective-bargaining agent of the employees in those units as if the initial year of certification had been extended for an additional year from the commencement of bargaining pursuant to the Board's Order in this case If an understanding is reached, WE WILL embody it in a written, signed agree- ment The bargaining units are Unit A All regular full-time and part-time press, camera and plate making employees employed at our Paradise, California facility, excluding all office clerical employees, guards and supervisors as de- fined in the Act Unit B All regular full-time and part-time mailroom and inserting employees employed at our Paradise, California facility, excluding all office clerical em- ployees, guards and supervisors as defined in the Act PARADISE POST