Stozer, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1977

232 N.L.R.B. 937 (N.L.R.B. 1977)

STROZER, INC.
Strozer, Inc. and Los Angeles Typographical Union,
Local No. 174, International Typographical Union,
AFL-CIO. Case 31-CA-6752
October 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 20, 1977, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief in which he
requested an increase in the interest rate applied to
the monetary award in favor of the alleged discrimi-
natee.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Strozer, Inc., Los
Angeles, California, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case held June 1, 1977, is based upon unfair
labor practice charges filed by Los Angeles Typographical
Union, Local No. 174, International Typographical Union,
AFL-CIO, herein called the Union, on January 17, 1977,
and a first amended charge filed February 23, 1977, and a
complaint issued on March 14, 1977, on behalf of the
General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director for
Region 31, alleging that Strozer, Inc., herein Respondent,
has engaged in unfair labor practices within the meaning of
I Albert Strozer was formerly president but prior to the events involved
herein apparently resigned this office.
232 NLRB No. 154
Section 8(a)(l), (3), and (5) of the National Labor
Relations Act, herein called the Act. Respondent filed an
answer denying the commission of the alleged unfair labor
practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs submitted by the parties, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, Strozer, Inc., is a California corporation
with its office and place of business located in Los Angeles,
California, where it is engaged in the business of typeset-
ting. Respondent annually sells goods and services valued
over $50,000 to business enterprises within the State of
California which enterprises themselves meet one of the
Board's jurisdictional standards other than the indirect
inflow or indirect outflow standards. It is admitted, and I
find, that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Los Angeles Typographical Union, Local
No. 174, International Typographical Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
The ultimate issues for decision are whether Respondent
discharged employee Roger Rios because of his union
activities, dealt directly with employees represented by the
Union, interrogated an employee about employees' union
activities and engaged in other verbal conduct which
tended to restrain or coerce employees in the exercise of
their statutory right to join and support the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
I. The events predating Rios' discharge
Respondent is a small printing shop employing less than
20 persons. It is operated by its president, Robert Strozer,
and his father, Albert Strozer,l both of whom have a
proprietary interest in the business. During the time
material to this case approximately four or five of the
employees worked at night and were supervised by Night
Foreman Jess Biglay, admittedly a statutory supervisor
who was Respondent's representative on the night shift.
In August 1976, Respondent changed the work schedule
of the night shift from 4 p.m.-12:30 a.m. to 5 p.m.-1:30
a.m. The night-shift employees were unhappy about the
change and met with Albert Strozer to discuss the matter.
The meeting was initiated by Rios who, at the start of the
shift, informed Strozer that the employees desired to talk
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with him. Rios served as the employees' spokesperson and
informed Strozer that they were unhappy with the new
work schedule and explained to him the reasons for the
dissatisfaction. Michael O'Daniel reiterated Rios' remarks.
The meeting ended with the employees agreeing to try the
new work schedule for a couple of weeks. 2
The night shift worked the new work schedule for several
weeks, but their unanimous opinion was that the old
schedule should be reinstated. On or about October 14,
1975, the five night-shift workers - Berberian, Escalante,
O'Daniel, Rios, and Zamorano -- affixed their signatures
to a letter addressed to Albert Strozer which was given to
him the same day which, in substance, stated that the
employees had complied with Strozer's previous request to
give the new schedule a trial, but were still unhappy with it,
explained the reasons for their dissatisfaction, and conclud-
ed by asking that the old schedule be reinstated. Immedi-
ately after the receipt of this letter, Strozer told the night-
shift workers Respondent did not intend to reinstate the
old work schedule and, in effect, indicated if they were
dissatisfied they were free to work elsewhere. Also, Albert
Strozer and Night-Shift Foreman Biglay, during the same
period of time, discussed the dissatisfaction of the night-
shift employees with the new work schedule and Strozer
told Biglay that in his opinion Rios was "the troublemak-
er" among the workers and that Respondent could
eventually discharge Rios if it could train someone to take
his place.3
Rios, after Strozer in October 1976 rejected the employ-
ees' request that the old work schedule be reinstated,
contacted the Union and solicited his fellow employees to
designate the Union as their collective-bargaining repre-
sentative. During the period from on or about October 15
to 18, Rios went to the Union and secured union literature
and authorization cards which he distributed in the shop
during working hours to seven employees employed on the
day and night shifts. He also gave some of the literature
and cards to O'Daniel, who solicited about three or four
employees.
On October 19, 1976, the Union wrote Respondent that a
majority of its employees had authorized the Union to
represent them for purposes of collective bargaining,
offered to prove its majority status, and asked Respondent
to recognize it as the employees' representative and sit
down and negotiate a contract covering the employees.
There was apparently no answer to this letter and the
Union shortly thereafter filed a petition with the Board
seeking a representation election among Respondent's
employees.
During the first part of November 1976, it is undisputed
that Robert Strozer, while interviewing a job applicant,
Sarkis Nazarian, who was eventually hired, told Nazarian
that there might be a union election in the shop and
warned him that "if you vote for the union, you're out
automatically."
In October 1976, after Rios had contacted the Union and
commenced his organizational activity, Escalante was
2 The description of what occurred at this meeting is based upon a
synthesis of the testimony of Rios, Berberian, and E.scalante.
a Based upon Biglay's credible testimony which Strozer did not deny.
I recognize that Escalante at one point dated his above-described
called into Albert Strozer's office where Strozer asked him
why, despite the available work, Escalante had not worked
overtime the previous night and asked why he had joined
the other employees and signed the letter of October 14,
1976, supra, asking for a change in work schedule. Also,
Strozer asked if the other employees said anything to
Escalante about the Union. Escalante answered in the
negative. The next day Escalante was called into the office
of Robert Strozer where, in Robert Strozer's presence,
Albert Strozer, as he had done the day before, questioned
him about his reason for failing to work overtime. At the
conclusion of this meeting Robert Strozer asked whether
Escalante had heard "something" about the Union from
the other employees. Escalante answered in the negative.
Robert Strozer told him "that's okay. If you don't want to
tell us or you don't know, we don't care about it." 4
On November 29, 1976, the Board held a hearing in
connection with the Union's petition for a representation
election. After the hearing, on November 29, Albert Strozer
spoke to night-shift employee O'Daniel about the Union.
Strozer stated O'Daniel did not know what he was getting
into by bringing the Union into the shop and pointed out
to O'Daniel the bad experiences that he, Strozer, had
suffered as a member of the Union. Strozer also told him
that the Union's leadership was not highly regarded, that
the Union recently had called a strike in the shops in Los
Angeles that it represented which had caused the striking
employees hardship, that the Union's pension fund had
been depleted, and that the shops on strike "would perhaps
be unwilling to negotiate a contract with the Union or its
leaders." O'Daniel told Strozer that neither himself nor the
other workers were excited about having a union in the
shop but felt they needed the protection of a contract and if
Strozer offered the employees a contract, they would be
willing to listen to anything Strozer offered. Strozer
answered he could not do this since the Union had already
filed an election petition and for him to offer the employees
a contract would be an unfair labor practice. O'Daniel
stated he knew nothing about unfair labor practices but
that if Strozer offered the employees a contract they would
be willing to listen to his proposal. Strozer replied "all right
- then you draw up a contract, you tell me what you
want." O'Daniel stated that he did not think it was his
position to draw up a contract, that it was Strozer's shop
and Strozer knew what he could afford to pay and what
sort of benefits he would be willing to grant and that
Strozer should draw up the contract and offer it and then
the employees would be willing to listen to it. At this point
the conversation ended.
On January 5, 1977, the Board conducted a secret-ballot
election in a bargaining unit composed of Respondent's
composing room employees and truckdrivers. Of the eight
eligible voters, seven voted, and all of them voted for the
Union. Rios was the Union's election observer. No
objections having been filed to the conduct of the election,
the Board on January 13, 1977, certified the Union as the
exclusive bargaining representative of the employees in the
conversations with the Strozers as taking place on October 10 and 11, 1976;
however, it is clear from his later testimony that they took place later, in
October 1976, shortly after Rios had commenced his union activities.
938
STROZER, INC.
voting unit and the Union on the same date wrote
Respondent requesting that the parties begin contract
negotiations at the earliest possible date.
2. Rios' discharge
As described supra, the night shift's work schedule was
from 5 p.m. until 1:30 a.m. On January 12, 1977,
Berberian, Rios, Escalante, and O'Daniel worked on the
night shift under the supervision of Night-Shift Foreman
Biglay. On that particular night Biglay left work early at or
about 10:30 p.m., without punching out, and indicated to
the employees that they could leave early also as soon as
their work was finished. At approximately 11 p.m. Rios,
Escalante, and O'Daniel left work and decided among
themselves that Escalante would return to the shop at 1:30
a.m. and punch out their timecards. Berberian remained in
the shop working.5
On January 12, at or about 11:30 p.m., Albert Strozer
entered the shop unexpectedly and observed Berberian was
the only person there. In response to Strozer's inquiry,
Berberian stated that the others had left early and that they
had done this a few times previously and that Escalante
had stated he would return at the end of the shift. Strozer
observed that Biglay, Rios, Escalante, and O'Daniel had
not punched out their timecards. Thereafter, at approxi-
mately 1:20 a.m. Escalante returned to the shop and
walked over to the timecard rack and was about to punch
out one of the cards when he was confronted by Strozer.
Escalante apologized for his misconduct and told Strozer
that Night Foreman Biglay had told him to return to the
shop and punch out the employees' timecards and that it
had happened once previously. Strozer indicated he
intended to discharge all of the persons who had not
clocked out, including Escalante. Berberian, who was
present, pleaded with Strozer not to fire them and in
particular pleaded with him not to fire Escalante. Strozer
stated that the only way Escalante could keep his job was if
he gave Strozer a written statement of what "he was told to
do" by the others. Escalante did not reply, whereupon
Strozer stated that Escalante was an illegal alien and
because of this would have trouble with the Immigration
Service and that he wanted Escalante to give him a written
statement about what had occurred, by the next day. 6
On January 13, 1977, immediately after Escalante's
encounter with Strozer, Escalante phoned Night Foreman
Biglay and told him Strozer had fired the night shift. Biglay
phoned Strozer and told him he felt responsible for the
employees' conduct and suggested that if anyone was fired
5 There is a conflict between the testimony of Biglay. O'Daniel,
Escalante, and Rios on the one hand and the testimony of Berbernan and
Albert Strozer on the other as to whether there was work for the four
employees who left the shop early. It is not necessary to resolve this conflict
to decide the essential issues involved in this case.
6 The above description of what occurred when Strozer spoke with
Berberian on January 12 and confronted Escalante on January 13 is based
on a synthesis of the testimony of Berbenan, Strozer. and Escalante to the
extent it is consistent. In those instances where Escalante's testimony differs
from that of Berbenan's and Strozer's. I have rejected it because in testifying
about the events which took place in the shop on the night of January 12
and the early morning of January 13. Escalante did not impress me as
credible as Berberian and Strozer.
7 The description of Rios' exit interview is based upon his credible
testimony which is corroborated in part by the testimony of O'Daniel, who
that it should be himself and that Strozer should continue
to employ the night-shift crew as it was a good crew.
Strozer in substance replied that Biglay had no right to
defraud the Company by misusing the timeclock. In less
than an hour Strozer phoned Biglay that he was dis-
charged.
On January 13, Rios arrived for work at his usual time, 5
p.m., and was called into the office by Albert Strozer who
told him he was discharged. Rios asked for the reason.
Strozer stated it was none of his business. Rios asked for
his tools and other personal belongings and the money for
the days he had worked that week. Strozer said his personal
belongings were in the office. Rios looked through them
and discovered that several union membership applications
filled out by employees were missing. Rios asked Strozer
about the membership applications. Strozer denied having
any knowledge about them. Rios went into the shop and
unsuccessfully searched for the applications. He returned
to the office and informed Albert Strozer that he would not
leave until Respondent paid him the money it owed him for
the days he had worked that week and had returned the
union membership applications. Strozer stated the money
would be forwarded to him when the bookkeeper made out
the payroll in the normal course of business. Strozer's son,
Robert Strozer, who was in the office, upon hearing Rios
refuse to leave the premises, approached him with a ruler in
hand and the two of them exchanged words. Albert Strozer
told his son to phone the police, whereupon Rios left the
premises. On his way out, Albert Strozer told Rios the
reason he was discharged was for defrauding the Company
and that the union membership applications had been
turned over to the Company's attorney.7
On January 13, when Albert Strozer called Rios into the
office for his exit interview, Strozer told O'Daniel to get to
work and told Escalante he would speak to him later.
O'Daniel did not go to his work station, instead he waited
outside the office to see what happened to Rios. When Rios
came out of the office to search for the union membership
applications, O'Daniel asked what had happened. Rios
stated he had been discharged. O'Daniel then confronted
Albert Strozer and asked why Rios had been discharged.
Strozer answered "because he defrauded the company
flagrantly." O'Daniel replied that if Rios was guilty of
defrauding the Company, then all of the night-shift
workers were guilty. Strozer stated he was giving O'Daniel
and Escalante another chance because he did not think
O'Daniel had the same motivation as Rios and thought
Escalante was "acting under the influence of other people
who had persuaded him to act this way."
overheard a part of the conversation. Robert Strozer did not testify. I reject
Albert Strozer's testimony insofar as it differs from Rios'. Strozer did not
impress me as a trustworthy witness when testifying about this interview. In
addition, his testimony on the subject of union membership applications.
which was one of the significant matters discussed. is internally inconsistent
as well as vague and evasive and contradicted by the testimony of employee
Berberian. Strozer initially testified that when Rios asked about the
applications Strozer told him "I don't have them here" but then, when asked
"where were they [referring to the applications]," testified "I had put them
away in my drawer." When asked how he came into possession of the
applications, Strozer testified he had absolutely no recollection and testified
employee Berbenan was the person who told him where the applications
were located. Berbenan credibly testified he did not inform Strozer about
the union membership applications.
939
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on January 13, as soon as Rios left the premises,
Albert Strozer spoke to Escalante, who asked Strozer why
Rios had been discharged. Strozer, in substance, answered
that Rios was discharged because he was "the one that was
spoiling everyone." Strozer then showed Escalante a
typewritten statement which Strozer previously had pre-
pared for Escalante's signature. The statement in pertinent
part stated: On January 12, Night Foreman Biglay left
work at 10:30 p.m. and asked Escalante to punch him out
at 12:30 a.m. and that at 11 p.m. Escalante, Rios, and
O'Daniel left work early knowing the night's work was not
completed; Rios and O'Daniel asked Escalante to punch
their timecards at 1:30 a.m.; Escalante returned to the shop
at approximately 1:30 a.m. to punch his own and the
timecards of Rios, Biglay, and O'Daniel when Strozer
confronted him; Escalante confessed to Strozer. In effect
he told Strozer that he had engaged in this misconduct
because he felt he had to cooperate with the more
experienced employees and that in the past, with Biglay's
knowledge, had punched out the other workers at the end
of the shift, though they had left work early, and other
employees had done the same. Escalante read the state-
ment. He did not subscribe to certain portions which he
crossed out and in two instances made substitutions. He
told Strozer and Strozer's son that he did not want to sign
the document. Albert Strozer mentioned that Escalante
was an illegal alien which, Strozer said, did not matter to
the Company and if Escalante was ever deported they
would hold his job open until he returned, but Escalante
had to sign the statement. Robert Strozer explained they
needed the signed statement to protect the business.
Escalante asked for more time to think about the matter.
The Strozers agreed that Escalante could take more time to
consider the matter. Thereafter, approximately 15 minutes
later, Escalante signed the statement as modified.
3. The events antedating Rios' discharge
The next evening, January 14, shortly after the start of
the work shift, Escalante was called into the office by
Albert Strozer who, in the presence of Robert Strozer, told
him to "stop doing stupid things." Escalante asked what
this meant. Albert Strozer told him he was referring to the
fact that Escalante had told the Union's president, Bernie
Hughes, that he was an illegal aliens and that Hughes had
told Robert Strozer that Hughes intended to tell the
Immigration Department about Escalante's illegal alien
status. Strozer assured Escalante that if the Immigration
Department took action against him, Hughes, not Strozer,
would be responsible.
During the third week in January 1977, a few weeks after
Rios' discharge, employee Berberian asked Albert Strozer
about medical coverage and vacation benefits for the
employees.9 Strozer stated he could not do anything for the
employees along those lines as his "hands were tied," but
H On January 13. after Albert Strozer mentioned Escalante was an illegal
alien subject to trouble from the Immigration Department, Escalante told
Hughes that he was an illegal alien and had been threatened by Strozer with
deportation. Hughes told Escalante not to worry because the Union would
help him.
' Berberian places this conversation as taking place in January, after
Rios' discharge, or the start of February. It is clear, however, from the
asked Berberian to write what he wanted on a paper and to
submit it to Strozer which Berberian did. Strozer also asked
if the other employees were unhappy about employment
conditions and, if so, what changes they desired. Berberian
said he would speak to the other employees. Berberian
spoke to Escalante and O'Daniel and arranged for the
three of them to meet with Strozer in the third week in
January 1977 to discuss the employees' terms and condi-
tions of employment. During this meeting Strozer told
them that the shop was a small one, it was a family business
and he did not feel a union had a place in such an
organization. Strozer explained it was not a case of his not
being able to afford the Union, but said he did not want
anyone telling him how to operate his shop or treat the
employees, and that he did not personally like Bernie
Hughes, the Union's president. He also told the three
employees that the other employees had decided they did
not want the Union. Escalante questioned this statement,
stating that the employees had unanimously voted for the
Union. Strozer answered that he knew the employees
wanted the benefits and the protection of a collective-
bargaining contract and that he was willing to offer a
contract to the employees. Strozer told Escalante,
O'Daniel, and Berberian to write the employment benefits
they wanted on a piece of paper and give it to employee
Marshall who, Strozer said, would draw up a list of
contract demands and present them to Strozer, on the
employees' behalf, and that Strozer would decide what to
offer the employees in the way of a contract. The
employees told him they would consider his proposal.to
Later the same day Strozer spoke to O'Daniel alone.
Strozer told him that he was very surprised the Union won
the election but it did not mean "the union is going to come
in here." Strozer told O'Daniel, in substance, he was
opposed to union representation in his shop and that he,
Strozer, wanted to offer a contract to the employees but
that thus far O'Daniel was the only employee who had not
revealed what he desired in the way of a contract. O'Daniel
stated he wanted the same benefits contained in the
recently terminated contract between the Union and the
other print shops in the city and that when the Union
negotiated a new contract covering these shops he wanted
Respondent's contract to reflect the terms contained in the
new union contract. Strozer told him "I'm going to give
you a better contract" and stated he intended to grant the
employees a 40-hour workweek instead of the 35-hour
workweek provided for in the Union's contract. O'Daniel
stated this was not a better contract because the employees
wanted the 35-hour workweek. The conversation ended
with Strozer repeating "you're the only person who has not
told us what they want, so tell me what you want, and let us
incorporate what you want into the contract we're going to
draw up." O'Daniel answered that the Union was his
collective-bargaining representative.
testimony of Escalante and O'Daniel about the meeting between Escalante.
O'Daniel. Berbenan, and Strozer. which took place immediately after
Berberian's above-described talk with Strozer. that Berberian's talk with
Strozer took place in the third week of January 1977.
lI The description of what took place when Strozer met with Escalante.
O'Daniel. and Berbenan is based upon a composite of the employees'
testimony. Strozer did not testify.
940
STROZER, INC.
B. Discussion and Ultimate Conclusions
I. The interference, restraint, and coercion"
a. The complaint alleges that "on or about" November
10 and 11, 1976, on two separate occasions Albert Strozer
"interrogated an employee about the Union activities of
[Respondent's] employees." The complaint places the
second act of interrogation as having occurred in Robert
Strozer's office in his presence.
The record, as described in detail, supra, establishes that
during the latter part of October 1976 Albert Strozer called
employee Luis Escalante into his office and asked whether
the other employees had said anything to Escalante about
the Union. The next day Robert Strozer, in his office and
in Albert Strozer's presence, asked whether Escalante had
heard something about the Union from the other employ-
ees. On both occasions Escalante, whom Rios had already
spoken to about the Union, falsely answered the questions
in the negative.
I am of the opinion that the aforesaid interrogation by
the Strozers, father and son, tended to interfere with,
restrain, and coerce Escalante in the exercise of his Section
7 rights to support the Union. The interrogation was not
made for a permissible purpose and was not accompanied
by assurances against reprisal. Further, it called for an
answer which encompassed the union activities of Esca-
lante and his fellow employees. Accordingly, I find that by
interrogating Escalante, as described above, Respondent
violated Section 8(a)(l) of the Act. Publishers' Offset, Inc.,
225 NLRB 1045, 1046 (1976), and cases cited herein.
I recognize the complaint dates the alleged unlawful
interrogation as occurring "on or about" November 10 and
I1, not specifically in the latter part of October. Nor does
the complaint specifically charge Robert Strozer with the
second act of interrogation, rather it attributes this conduct
to his father, Albert Strozer, in Robert Strozer's office and
in his presence. Nevertheless, I am persuaded that the
illegal acts of interrogation found herein were "fairly
comprehended in the language of the complaint" so as to
afford Respondent an ample opportunity to defend.
N.L.R.B. v. Scenic Sportswear, 475 F.2d 1226 (C.A. 6,
1973). The dates on which the acts of interrogation took
place are not substantially different from the approximate
dates alleged in the complaint and the complaint placed
Respondent on notice that Robert Strozer, as well as
Albert Strozer. was involved in the second instance of
interrogation.
b. The complaint alleges that on November 29, 1976,
Albert Strozer told an employee that Respondent and
other employees would not negotiate with the Union and
offered to negotiate an agreement with its employees
" Respondent moved that the complaint's allegations covering events
pnor to January 5. 1977. the date of the representation election. he
dismissed for several reasons: ( I) aches: (2) the election mooted the alleged
conduct: and (3) the language of the unfair labor practice charges does not
cover the alleged conduct. I denied this request because laches is an
insufficient defense. E.g., United States v. Sumnerlin. 310 U.S. 414. 416
(1940): Board of Coun(r Commissioners v. U.S., 308 U.S. 343, 351 (1939):
Guaranrv Trust Co v. ULS., 304 U.S. 126, 132 133 (1937). Nor does the
election moot the need (or a cease-and-desist remedial order for unfair labor
practices predating it. .4meriuan Sheer MAI/erl Work,. 106 NI.RB 154, 155
(1953). Lastly. the charges which contain the language "lb Iy the above and
directly if they abandoned the Union. This allegation refers
to the November 29 conversation described in detail, supra,
between Albert Strozer and employee Michael O'Daniel.
There is no evidence Strozer told O'Daniel that Respon-
dent would not negotiate a contract with the Union. In
informing O'Daniel about the undesirable aspects of union
representation, Strozer pointed out, among other things,
that the employees employed in the shops represented by
the Union were currently striking, thus, suffering economic
hardship and that the strike and its accompanying hardship
was likely to continue because the struck shops "would
perhaps be unwilling to negotiate a contract with the
Union or its leaders." I do not regard this as a threat of
action by Respondent, hence, I shall recommend that this
part of the allegation be dismissed.
The remainder of the allegation charging Strozer with
offering to negotiate directly with O'Daniel is substantiated
by the evidence. In reply to O'Daniel's statement that the
employees were not excited about the prospects of union
representation and if Strozer offered them a satisfactory
contract they would forget the Union, Strozer told
O'Daniel to draw up a contract for Strozer's consideration
which would include the employment benefits O'Daniel
wanted. This request that O'Daniel discuss and negotiate
improved terms and conditions of employment directly
with Strozer, made in the context of Strozer's request that
O'Daniel not support the Union, constitutes an effort to
undermine the Union and discourage union organization
in violation of Section 8(a)(1) of the Act. I cannot excuse
this as an isolated bit of conduct prompted by O'Daniel's
insistence, for, in January 1977, as found infra, Strozer in a
further effort to undermine the Union similarly violated
the Act by dealing directly with O'Daniel and other
employees.
c. The complaint alleges that on or about January 13.
1977, Albert Strozer (1) "told an employee [Respondent]
had the Union membership applications of its employees"
and (2) "engaged in surveillance or created the impression
that [Respondent] had engaged in surveillance of the
Union activities of its employees." The General Counsel in
response to Respondent's prehearing motion for a bill of
particulars informed Respondent that the evidence would
demonstrate that Albert Strozer, on or about January 12.
1977, "removed union membership applications which had
been filled out by some of his employees from the
possession of an employee, without said employee's
permission, and took the applications to his residence."
Rios had several union membership applications at his
work station which had been filled out by employees.
Albert Strozer stole these applications,i2 and on January
13, 1977, as described in detail supra, Rios discovered the
theft and asked Strozer if he knew what had happened to
other acts" Respondent infnnged upon employees' Sec. 7 nghts is sufficient
to encompass the pre-Januar) 5. 1977. allegations of the complaint Pet
Incorporated. Dairn roup. 229 NLRB 1241. 1242( 1977).
T2 This is not merely a situation where an employer, after deciding to
discharge an employee, removes the employee's personal belongings and
incidentally discovers union membership applications. II this was such a
situation. Strozer would have so testified. Instead. his testimony habout the
membership applications was vague, evasive. inconsistent, and contradicted
by the credible testimony of employee Berbenan. When asked hiov the
applications came into his possession Strozer testified "I was told where
they were, and they were handed to me." and testified further that emplotsce
f (AniofA/
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the applications. Strozer at first claimed ignorance, but
later admitted to Rios that he had taken and turned the
membership applications over to Respondent's attorney.
Employee O'Daniel, who had filled out one of the
applications, overheard this part of Strozer's conversation
with Rios.
I find by stealing the union membership applications and
then telling Rios he had taken and turned them over to
Respondent's lawyer that Strozer violated Section 8(a)(1)
of the Act by creating the impression that the employees'
union activities had been placed under surveillance.
Considering the illicit manner in which Strozer acquired
possession of the applications, the employees - Rios and
O'Daniel - would have readily assumed from the
statement in question that their union activities had been
placed under surveillance. In any event, Strozer's statement
that he had taken and turned over the union membership
applications to his attorney was calculated to, and had the
effect of, disrupting and interfering with the employees'
Section 7 right to join or otherwise support the Union and
violated Section 8(a)(l) of the Act, whether or not properly
characterized as surveillance or the impression of surveil-
lance.
d. The complaint alleges that "on or about January 13,
1977," Albert Strozer "told an employee that the Union
would cause the employee to be deported." In this regard
the record, as described in detail supra, establishes that on
January 14, 1977, Albert Strozer, in his son's presence, told
employee Escalante, who was an illegal alien, that if the
United States Immigration Service took action against
Escalante on account of his status as an illegal alien, the
Union, not Respondent, would be responsible, explaining
to Escalante that the Union's president had told Strozer's
son that the Union intended to notify the Immigration
Service about Escalante's status as an illegal alien. There is
no evidence that Strozer was truthfully conveying to
Escalante what the Union's president stated to Strozer's
son. By informing employee Escalante, an illegal alien, that
the Union had threatened to cause his deportation, I find,
Respondent interfered with Escalante's statutory right to
join or support the Union free from restraint or coercion,
thus violating Section 8(a)(l) of the Act.
2. The refusal to bargain
The complaint alleges that "on or about January 17,
1977, Albert Strozer (1) "Attempted to negotiate directly
with [Respondent's] employees, thus bypassing the Union"
and (2) "offered to enter into an agreement directly with
[Respondent's] employees, the terms of which were more
favorable than the Union's standard agreement."
The record reveals, as described in detail supra, that
during the third week of January 1977, after the Union's
certification as the employees' exclusive collective-bargain-
ing representative, Albert Strozer asked employee Berberi-
an to submit in writing his demands for improved terms
Berberian was the one who told him where they were located. Strozer.
however. so he testified, was not able to remember how the applications
actually came into his possession. Berberian denied revealing to Strozer the
whereabouts of the membership applications. In short, the record does not
establish that the applications came into Strozer's possession legitimately,
rather his inability to explain their acquisition indicates that Strozer took
them without permission for an illegitimate purpose.
and conditions of employment. Immediately thereafter,
Strozer met with employees Berberian, Escalante, and
O'Daniel and after stating his opposition to union
representation told them he was willing to offer a contract
to his employees, that they should write down the benefits
they wanted and give the list to employee Jim Marshall,
who would draft a list of contract demands and present
them on the employees' behalf to Strozer, who would
decide what to offer to the employees in the way of a
contract. Later the same day, Strozer met with O'Daniel
alone. Strozer, after expressing his opposition to the Union,
pressed O'Daniel to tell him what he desired in the way of
employment benefits so that Strozer could offer a contract
to the employees which Strozer stated would be "a better
contract than the union shops."
The employer's obligation to bargain collectively with
the employees' chosen representative, "being exclusive ...
exacts the negative duty to treat with no other." Medo
Photo Corporation v. N.LR.B., 321 U.S. 678, 683-684
(1944). An employer violates the Act when he "go[es] over
the head of the [Union] to deal individually with the
employees," for such actions "tend inevitably to weaken
the authority of the [Union] and its ability to represent the
employees in dealing with the Company." Utica Observer-
Dispatch, Inc. v. N.L.R.B., 299 F.2d 575, 577 (C.A. 2, 1956).
Respondent's actions in bargaining with Berberian,
O'Daniel, and Escalante at the same time it was obligated
to negotiate with the Union tended to weaken the authority
of the Union as the employees' exclusive bargaining
representative and its ability to function in that role.
Respondent's conduct directly interfered with the negotia-
tions between the Union and Respondent and undermined
the position of the Union as the exclusive collective-
bargaining representative. I therefore conclude that during
the third week of January 1977, Respondent engaged in
individual bargaining with employees O'Daniel, Escalante,
and Berberian in derogation of its obligation to bargain
with the Union, thus violating Section 8(a)(5) and (1) of the
Act.
3. Rios' discharge
The record establishes that when it discharged Rios,
Respondent believed that Biglay, O'Daniel, Rios, and
Escalante had defrauded Respondent more than once by
leaving work early and falsifying their timecards.13 Night
Foreman Biglay, who was the Company's representative
responsible for the operation of the night shift, admitted his
responsibility for the misconduct and was promptly
discharged. Of the three employees involved, only one,
Rios, was discharged.
Rios was the leading union adherent among the employ-
ees. Rios initiated the Union's organizational campaign
and openly supported the Union. Respondent knew he was
the employee responsible for the Union's successful
13 Based upon Albert Strozer's and Zareh Berberian's testimony, supra,
about what Strozer discovered from talking with Berberian and Escalante
pnor to discharging Rios, and the written statement. supra. prepared by
Strozer for Escalante's signature.
942
STROZER, INC.
organizational campaign and was its leading union advo-
cate. '4 Respondent was opposed to union representation
and in expressing its opposition went so far as to threaten a
job applicant with discharge if he voted for the Union. Nor
did Respondent accept the Union's election victory, rather
it continued to voice its opposition to union representation,
stole the employees' union membership applications from
Rios, and, hard on the heels of Rios' discharge, bargained
individually with its employees and promised them a better
contract than the one negotiated by the "union shops."
Under the circumstances, I believe it is safe to say that at
the time of Rios' discharge Respondent was antagonistic
toward him on account of his union activities. Any doubt
of this is removed by Foreman Biglay's undisputed
testimony that in an analogous situation where Rios had
been the catalyst in an employees' protest involving a
change in the night shift's work schedule, Albert Strozer
told Biglay that Rios was "the troublemaker" among the
employees and would eventually be discharged if Respon-
dent could train someone to replace him. In short, the
record establishes Respondent knew that Rios was the
leading union adherent among its employees and viewed
his union activities with extreme distaste. However,
Respondent could lawfully discharge him for leaving work
early and falsifying his timecard even though it welcomed
the opportunity to get rid of its leading union adherent. On
the other hand, Respondent could not seize upon Rios'
misconduct as a pretext to discharge him on account of his
union activities. As stated by the court in N.L.R.B. v. Ayer
Lar Sanitarium, 436 F.2d 45, 50 (C.A. 9, 1970):
. . . the cases are legion that the existence of a
justifiable ground for discharge will not prevent such
discharge from being an unfair labor practice if
partially motivated by the employee's protected activi-
ty; a business reason cannot be used as a pretext for a
discriminatory firing .... The test is whether the
business reason or the protected union activity is the
moving cause behind the discharge . . . . In other
words, would this employee have been discharged but
for his union activity? [Citations omitted.]
I am of the opinion that the record preponderates in
favor of a finding that Respondent seized upon Rios'
misconduct as a pretext to discharge him on account of his
union activities. Respondent thought three of its employees
had engaged in the identical act of misconduct - each left
work early intending to falsify their timecards - yet only
one, Rios, was discharged. t5 The other two, Escalante and
O'Daniel, were not discharged or even disciplined. Albert
Strozer, the person who decided to discharge Rios,
explained Respondent's failure to discharge O'Daniel and
Escalante as follows. Generally. he testified that the nature
of the Company's business and the fact that it uses a
comparatively new printing process makes it "very very
" The small size of the shop, Rios' open union activity engaged in at the
shop during working hours, his acting as the Union's election observer, and
Respondent's theft of the employees' union membership applications from
his possession establish that Respondent knew Rios was the employee
responsible for the lUnion's successful organizational campaign and was its
leading advocate.
'" During the hearing Albert Strozer admitted Escalante and O'Daniel
difficult" to find competent employees. Specifically, Stroz-
er explained the reason Escalante and O'Daniel were not
discharged in these terms:
I was with the feeling that Escalante was used as a
tool by others, and I felt that since he was a good
worker, important in what he was doing, that I would
give him another opportunity. In the case of O'Daniel.
O'Daniel is a very competent operator. I cannot
function - I cannot operate the night shift without a
competent operator. My hands were tied. I should have
fired him. I regret perhaps now that I didn't fire all of
them. But I had to retain O'Daniel. It's a very serious
situation trying to get a competent operator in this field
that we're in.
In testifying about his reason for not discharging O'Daniel
and Escalante, even though they engaged in the identical
misconduct for which Rios was fired, Strozer's demeanor
was not that of a trustworthy witness. It is also significant
that Strozer did not testify why he treated Rios differently
than O'Daniel and Escalante, though Rios was regarded by
Respondent as not only a very competent worker but as the
best one in his line. Moreover, considering the extreme
difficulty Respondent has in securing skilled employees, it
is hard to believe that Strozer, during the normal course of
business, would have condoned timecard falsification by
Escalante, an inexperienced trainee 16 whose job tenure was
clouded by his status as an illegal alien, but discharge Rios,
who was a highly skilled worker whom Respondent
regarded as virtually irreplaceable, "the best one in his
line." Likewise, Strozer's testimony that he did not
discharge O'Daniel because the night shift could not
operate without him, is suspect. On cross-examination
Strozer admitted that after O'Daniel voluntarily left his
employment, in February 1977, the night shift successfully
operated for 3 weeks before a new operator was hired. The
record also reveals that when O'Daniel asked Strozer why
only Rios was discharged, when O'Daniel and Escalante
were just as guilty, Strozer did not mention O'Daniel's
indispensability as the reason for his continued employ-
ment, rather Strozer stated he thought O'Daniel did not
have the same "motivation" as Rios.'7 Finally, on January
13, 1977, in answer to Escalante's inquiry about why only
Rios had been discharged, Strozer told him in substance
that Rios was "the one that was spoiling everyone." Viewed
in the context of Rios' leading role in the Union's
organizational campaign and Respondent's opposition, this
remark can only be construed as an indirect reference to
Rios' union activities and constitutes an admission that
Rios was discharged because of his union activities. For all
of these reasons, I find that during the normal course of
business, due to Respondent's difficulty in finding experi-
enced employees, that Rios, like O'Daniel and Escalante,
despite his misconduct, would not have been discharged.
were just as guilty as Rios in leaving early with the intention of falsifying
their timecards and volunteered "I'm sorry I did not fire them all."
16 Escalante began work as a messenger for Respondent on June 30.
1976. Early in 1977, Respondent started to train him to perform several of
the lesser skilled jobs in the shop.
7 There is no evidence which indicates that Strozer had anm reason to
think that O'Daniel was less guilty than Rios.
943
DEFCISIONS OF NATIONAL LABOR RELATIONS BOARD
The entire record of this case which shows Rios as the
leading union adherent, Respondent's extreme hostility
toward the Union, its knowledge of Rios' leading role in
the Union's successful organizational campaign, its theft of
Rios' union membership applications shortly before his
discharge, its unlawful effort shortly after his discharge to
dissuade the employees from continuing to support the
Union, its failure to give Rios a chance to explain what had
occurred prior to deciding to discharge him, its high regard
for Rios as an employee and the extreme difficulty in
replacing him, and the disparate treatment accorded Rios
compared to other employees identically situated who were
not discharged or disciplined, establish that Rios was not
discharged for the reasons advanced by Respondent, but
that his discharge would not have occurred absent his
union activities and, thus, violated Section 8(a)(3) and (1)
of the Act. 18
In brief, Rios' offense was grave. Respondent could
lawfully have fired him for it. But on this record, without
condoning Rios' misconduct, I am constrained to find that
Respondent would not have discharged him but for his
union activities.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, Strozer, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Los Angeles Typographical Union,
Local No. 174, International Typographical Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All composing room employees and drivers em-
ployed by Respondent at its Los Angeles, California,
facility; excluding all office clerical employees, supervisors
and guards as defined in the Act constitute an appropriate
bargaining unit within the meaning of Section 9(b) of the
Act.
4. The Union is the exclusive representative of all the
employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By questioning employee Escalante about whether
other employees had spoken to him about the Union,
Respondent violated Section 8(a)( ) of the Act.
6. By asking employee O'Daniel to discuss and negoti-
ate improved terms and conditions of employment for the
purpose of discouraging him from supporting the Union,
Respondent violated Section 8(aX I) of the Act.
18 I have considered O'Daniel was also an active union adherent, yet was
not discharged. However. that Respondent did not discriminate against a
union activist does not detract from the conclusion that it discriminated
against Rios, the leading union adherent, since Respondent could have
concluded that it had sufficiently demonstrated its hostility to the Union by
making an example of Rios alone. Cf. Nachrnan Corporation v. N.LR.B, 337
F.2d 421, 424 (C.A. 7, 1964) ("It is established that a discriminatory motive.
otherwise established, is not disproved by an employer's proof that it did not
weed out all union adherents"); The Rust Engineering Company et at v.
N L.R B. 445 F 2d 172, 174(C.A. 6, 1971)("[TJhe Board need not wait until
7. By informing employee Rios that it had taken and
given its attorney the union membership applications
signed by employees in Rios' possession, Respondent
created the impression that it was keeping its employees'
union activities under surveillance and interfered with the
Union's efforts to have employees sign union membership
applications, in violation of Section 8(a)(1) of the Act.
8. By informing employee Escalante that the Union
had threatened to cause his deportation, Respondent
violated Section 8(a)( 1) of the Act.
9. By bypassing the Union and negotiating directly
with its employees, Respondent violated Section 8(a)(5)
and (1) of the Act.
10. By discharging employee Rios because of his union
activities, Respondent violated Section 8(a)(3) and (1) of
the Act.
11. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that the Respondent is engaged in unfair
labor practices violative of Section 8(aXI), (3), and (5) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
employee Roger Rios, I shall recommend that the Respon-
dent offer him immediate and full reinstatement to his
former job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority and
other rights and privileges and make him whole for any loss
of earnings he may have suffered by reason of such
discharge, by payment of a sum of money equal to that
which he normally would have earned working for
Respondent from the date of his discharge to the date of
said offer of reinstatement, less his net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co.,
136 NLRB 716 (1962).
As the unfair labor practices committed were of a
character which go to the very heart of the Act, I shall
recommend an order requiring Respondent to cease and
desist therefrom and to cease and desist from infringing in
any other manner upon the rights of employees guaranteed
by Section 7 of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
a party commits a gross violation before it may find any violation at all").
Nor does Biglay's discharge detract from the conclusion that Rios' was
illegal. Biglay's situation was not the same as that of the others involved in
the misconduct. He was the Company's night-shift foreman, its sole
representative on the night shift, responsible for the shifi's operation.
944
STROZER, INC.
ORDER 19
The Respondent, Strozer, Inc., Los Angeles, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Los Angeles Typo-
graphical Union, Local No. 174, International Typographi-
cal Union, AFL-CIO, or any other labor organization, by
discharging or otherwise discriminating against any em-
ployee with respect to hire, tenure, or any other terms or
condition of employment.
(b) Interrogating employees concerning their union
activities or the union activities of other employees,
creating the impression of surveillance of the union
activities of employees, interfering with a union's efforts to
have employees sign union membership applications,
telling employees a union has threatened to cause their
deportation, and asking employees to discuss and negotiate
improved terms and conditions of employment with
Respondent in order to discourage the employees from
supporting a union.
(c) Refusing to bargain collectively with the above-
named Union by bypassing the Union and dealing directly
and individually with employees in the bargaining unit
described hereinabove, concerning wages, benefits, and
other conditions of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Roger Rios immediate and full reinstatement to
his former position or, if such position no longer exists, to
substantially equivalent employment, without prejudice to
seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him, in the
manner set forth above in the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(c) Post at its place of business in Los Angeles,
California, copies of the attached notice marked "Appen-
dix." 20 Copies of said notice, on forms provided by the
Regional Director for Region 3 1, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
i9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of App-als, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Roger Rios immediate and full
reinstatement to his former position or, if such position
no longer exists, to substantially equivalent employ-
ment, without prejudice to seniority or other rights and
privileges previously enjoyed, and make him whole for
any loss of earnings he may have suffered as a result of
his discharge, together with interest.
W_ WILL NOT discourage membership in Los
Angeles Typographical Union, Local No. 174, Interna-
tional Typographical Union, AFL-CIO, or any other
labor organization by discharging or otherwise discrim-
inating against any employee with respect to hire.
tenure, or any other term or condition of employment.
WE WILL NOT interrogate employees concerning their
union activities or the union activities of other employ-
ees, create the impression of surveillance of the union
activities of employees, interfere with a union's efforts
to have employees sign union membership applications,
tell employees a union has threatened to cause their
deportation, and ask employees to discuss and negoti-
ate improved terms and conditions of employment in
order to discourage the employees from supporting a
union.
WE WILL NOT refuse to bargain collectively with the
above-named Union by bypassing the Union and
dealing directly and individually with our composing
room employees and drivers concerning wages, bene-
fits, and other conditions of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act.
STROZER, INC.
945