The Denver Post

National Labor Relations Board - Board Decisions

Sep 20, 1979

245 N.L.R.B. 69 (N.L.R.B. 1979)

The Denver Post, Inc. and Bennie Maestas. Case 27-
CA -5982
September 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On July 6, 1979, Administrative Law Judge Russell
L. Stevens issued the attached Decision wherein he
found one violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, and recommended
the dismissal of all other allegations of unlawful con-
duct. Thereafter, Respondent excepted to the 8(a)(1)
finding and filed a supporting brief. The General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exception and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act in mid-Sep-
tember 1978 when Gary Baker, the supervisor of the
second-shift janitors,' told employee Bennie Maestas,
a union steward, that Norman Allan, Respondent's
director of janitorial services, did not like Maestas
because he was a union steward. In this connection,
the Administrative Law Judge referred to the uncon-
tradicted testimony of Maestas and fellow employee
Edward Urias that Baker made the foregoing state-
ment. In addition, Baker testified that he made that
statement to Maestas in Urias' presence with the ex-
planation that it was based on his conversation with
Allan. The latter denied having such a conversation
with Baker.
The Administrative Law Judge did not credit Ba-
ker's testimony as to his conversation with Allan as
he deemed it to be "contrived and unlikely." How-
ever, as indicated above, the Administrative Law
Judge nevertheless found in reliance on the testimony
of Maestas, Urias, and Baker that the latter did tell
Maestas that Allan did not like him because he was a
union steward.
Respondent argues that Baker, Maestas, and Urias
were all "equally unbelievable" and that, in any
I The Administrative Law Judge held without exception that Baker was a
supervisor within the meaning of the Act.
THE DENVER POST
event, the statement in question was "pure hearsay"
and did not in fact have a coercive effect on Maestas
because he admitted that his relationship with Allan
was "basically good."
Although Baker's testimony as to the basis for his
statement to Maestas was not given credence by the
Administrative Law Judge, the issue herein is not its
accuracy, its possible hearsay character, or the sub-
jective test for determining its coercive effect on
Maestas, but rather whether Baker in fact made the
statement to Maestas and whether it had a tendency
to coerce employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.2 In view of the
uncontradicted and mutually corroborative testimony
of Maestas, Urias, and Baker3 that the latter made the
statement which was properly held by the Adminis-
trative Law Judge to be coercive, we find no merit in
Respondent's exception and accordingly adopt the
Administrative Law Judge's conclusion that said
statement was made and violated Section 8(a)(1) of
the Act because it expressed management's hostility
toward Maestas for serving as a key representative of
the Union and thus tended to interfere with his duties
in that capacity.4 Moreover, Baker's statement would
also tend to discourage other employees-in this case
employee Urias-from engaging in protected activi-
ties guaranteed them in Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, The Denver Post, Inc.,
Denver, Colorado, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
2 See Perko's Inc., 236 NLRB 884 (1978), wherein the Board held in ac-
cord with established precedent that no proof of coercive intent or effect is
necessary. as the objective test to be applied is whether a respondent's state-
ment may reasonably be said to tend to interfere with the free exercise of
employee nrights under Sec. 7.
3 It is the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponderance
of all of the relevant evidence convinces us that the resolutions are incorrect.
Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
With respect to the partial crediting of Baker, see N.LR.B. v. Universal
Camera Corporation, 179 F.2d 750, 754 (2d Cir. 1950), wherein the court held
as follows: "It is no reason for refusing to accept everything that a witness
says because you do not believe all of it; nothing is more common in all
kinds of judicial decisions than to believe some and not all."
I As the Board pointed out in The Berry Schools, 239 NLRB 1160 (1979),
"it is well settled that statements ... implying that the employer does not
look with favor upon employees engaging in protected activities are coercive
because they discourage employees .. " from doing so.
245 NLRB No. 14
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Denver, Colorado, on March 14 and 15,
1979.' The complaint, issued November 21, is based upon a
charge filed October 4 by Benny Maestas,2 an individual.
The complaint alleges that The Denver Post, Inc. (Respon-
dent), violated Section 8(a)(1) and (3) of the National Labor
Relations Act (Act).
All parties were given full opportunity to participate, to
introduce relevant evidence, examine and cross-examine
witnesses, argue orally, and file briefs. Briefs, which have
been carefully considered, were filed on behalf of the Gen-
eral Counsel and Respondent.
Upon the entire record of the case, and from observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and at all times material herein has been,
a corporation duly organized under and existing by virtue
of the laws of the State of Colorado. Respondent maintains
its principal office and place of business in Denver, Colo-
rado, where it publishes a daily newspaper, The Denver
Post. In the course and conduct of its business operations,
Respondent annually derives revenue in excess of $200,000.
Respondent holds membership in, and subscribes to, inter-
state news services and carries advertisements in its newspa-
per for nationally sold products, deriving in excess of $5,000
per year from said advertisements.
I find that Respondent is, and at all times material herein
has been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Denver Newspaper Guild, Local No. 74 (Union) is,
and at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background'
This controversy involves janitorial employees and the
services they perform in Respondent's facilities in Denver.
Those facilities are comprised of a three-floor plant where
Respondent's newspapers are published, and five floors of
offices, both areas of which are located in a building occu-
pying most of a city block; and a two-floor portion of a
separate building shared with tenants not involved herein.
Respondent publishes morning and evening newspapers, as
well as weekend newspapers which include rotogravure sec-
tions. Janitorial services differ between the plant and the
I All dates herein after are within 1978, unless otherwise stated.
2 Individuals are referred to herein by their last name.
3This background summary is based upon credited evidence and testi-
mony that is not in dispute.
offices. The plant area creates much dirt and grime, and
portions of it are almost constantly soiled with ink. A prin-
cipal janitorial effort is required in confining the dirt and
ink to the plant, in order to prevent tracking material into
the offices. The plant is in operation 24 hours each day, 7
days each week, and janitorial services are scheduled to be
performed when the minimum number of office and pro-
duction employees are working.
Norman Allan' has been Respondent's director of janito-
rial services since May 23, 1978. In the exercise of his au-
thority as director, Allan frequently confers, and works in
coordination, with James Banman, Respondent's director
of personnel, and Roger Bordenkircher, Respondent's labor
relations manager. Allan has had approximately 20 years'
experience in janitorial work, much of it in administration
of janitorial services. Allan has had much exposure to labor
matters, and never has worked with a janitorial force that
was not organized. Allan was hired to reorganize and im-
prove Respondent's janitorial force, which prior to that
time had been poorly organized and inefficiently run. One
of the problems of the past had been excessive absenteeism
of employees, and Allan was asked to bring that problem
under control.
When Allan came to work in May, Respondent em-
ployed approximately 35 janitors who worked two shifts; 7
a.m. to 3:30 p.m. and 4 p.m. to 1:30 a.m. One of the first
changes Allan made was to institute a new, third shift to
work from II p.m. until 7:30 a.m. Starting time for the
second shift was changed from 4 to 5 p.m., in order to avoid
conflict on the floor with nonjanitorial employees who quit
work at 4:30 p.m. Each shift has a supervisor, who directs
the work of employees and who does not do janitorial work
except on an emergency basis. Supervisors oversee the
work, and have authority to give verbal warnings. Gary
Baker was supervisor of the second shift from August 27,
1978, until his discharge October 2, 1978.' Total comple-
ment of janitorial employees has remained, during times
relevant herein, at approximately 35. The purpose of insti-
tuting the third shift was to permit janitorial work when the
fewest number of production employees were working. Al-
lan changed job assignments of some employees who were
doing particular work, and allowed employees to request
particular shifts, with such requests being granted on the
basis of seniority., Other changes were made, as discussed
infra.
Allan scheduled a meeting for employees to be held at
5:30 p.m. on October 2. Maestas, a union steward on the
second shift (5 p.m. until 1:30 a.m.), was among the em-
ployees scheduled to attend the meeting. The purpose of the
meeting, which was one of a series held by. Allan on a fairly
regular schedule, was to discuss matters of general em-
ployee interest, issue instructions, and disseminate informa-
' Counsel stipulated that Allan was a supervisor at times relevant herein.
I Baker's discharge is not in issue. It is clear from the record, and found,
that Baker was a supervisor within the meaning of the Act from August 27
until October 2.
6 Respondent's contract with the Union (Resp. Ex. 4) provides for applica-
tion of seniority in selection of shifts. Prior to Allan's employment by Re-
spondent, that provision of the contract was not followed. Allan instituted
the practice soon after his arrival. Earlier practice was to apply seniority to
job assignments. rather than to shifts. Allan discontinued the former prac-
tice.
70
THE DENVER POST
tion. Maestas was not present when the October 2 meeting,
which started a few minutes late, was convened. Allan sent
Baker out to find Maestas and Willie Salone, a shift em-
ployee, who also was not present. Baker came back after a
search, and reported to Allan that he found Salone, but that
Salone said he did not want to come to the meeting. Allan
told Baker to go out again in search of Maestas, and to tell
Salone and Maestas that if they did not come to the meet-
ing, they were to go home. Baker did as instructed, and
reported to Allan that Salone was going home. Baker said
he could not find Maestas.7
As part of his reorganization efforts, and pursuant to his
instructions when he was hired, Allan reviewed absentee
records of employees and discussed employee performance
with Banman, Bordenkircher. and the supervisors. After re-
viewing Maestas' absentee record, Allan prepared a memo-
randum to Maestas, dated August 9.5 The memorandum
states, in part, "It is suggested that you do whatever is nec-
essary to improve your attendance." The record shows that
Maestas has been absent from work on many occasions, as
discussed infra. Maestas' frequent absenteeism continued,
and on October 2 Allan prepared a letter to Maestas, dated
October 3.9 The letter placed Maestas on suspension from
October 4 to 5.
Because of Maestas' refusal to attend the meeting of Oc-
tober 2, Allan wrote him a letter of reprimand, dated Octo-
ber 3.'10 Allan stated in the letter, inter alia, "I feel this is
rank insubordination and would warrant a suspension ....
Since you have already been given a suspension for exces-
sive absenteeism, I will not compound disciplinary action."
Issues
The principal issue is whether or not Maestas was repri-
manded, given less desirable work duties, and suspended
because he was a union steward, as alleged by the General
Counsel. Respondent contends that Maestas was treated as
any other employee, without regard to his position as union
steward. Minor issues involve 8(a)(1) allegations.
A. Union Stewards
Two of Respondent's employees were union stewards at
times relevant herein-Maestas, on the second shift, and a
Mr. Vigil on the first shift. Maestas had been a steward
approximately 6 years. Nearly all janitorial employees were
union members, and frequently were in touch with the two
stewards concerning grievances and working conditions.
The two stewards report problems to the executive secre-
tary of the Union, a Mr. Wanek. Maestas was appointed to
the plant grievance committee in July 1978. Also on the
committee were Wanek, Bordenkircher, Banman, and Al-
lan. The committee hears disciplinary and other grievances
'Baker testified that he talked with Maestas on the second search, but
there is discrepancy on this point between the testimony of Baker and Mae-
atas. Allan's testimony that Baker reported on both occasions that he could
not find Maestas, is credited.
' G.C. Exh. 9.
' G.C. Exh. 4.
,o G.C. Exh. 3.
made by janitorial employees. Maestas testified that he at-
tended approximately six meetings of the grievance com-
mittee between July and November. Allan credibly testified
that he often met with Vigil, as well as with Maestas, con-
cerning grievances and other matters involving employees
and Respondent.
The General Counsel contends that Respondent gener-
ally, and Allan particularly, engaged in harassment and
other activity against Maestas because of the latter's posi-
tion as union steward. The General Counsel alleges that on
September 18, Baker told Maestas that Allan did not like
him because he was a union steward. Maestas testified in
support of that allegation, and Edward Urias. Maestas' fel-
low employee, corroborated Maestas. Baker testified that,
when he became a supervisor August 29, Allan talked with
him about the duties of a supervisor. Baker testified that
Allan told him, among other things, that he did not like
Maestas "as a union steward and he didn't like him butting
into the company's business ... telling the activities to the
other guys," and that he would like to get rid of Maestas,
among other "dead weight." Baker said he related that con-
versation to Maestas in September, with Urias present. On
cross-examination, Baker testified that Allan told him that
he did not like Maestas because Maestas was a union stew-
ard, and that he told Maestas and Urias about Allan not
liking Maestas as a union steward, in order to get them to
improve their work performance. Allan testified that he told
Baker to work with Maestas on all union-related matters,
and he denied telling Baker that he did not like Maestas
because he was a union steward.
Baker was fired by Allan following an angry, threatening,
and insubordinate outburst by Baker, and it was apparent
throughout Baker's testimony that he is antagonistic toward
Allan. Baker's testimony that Allan said he did not like
Maestas because of the latter's being a union steward, ap-
peared contrived and unlikely; it is given no credence.
However, that is not the issue. Regardless of what Allan
may or may not have told Baker, the question involves
what Baker, who was a supervisor, told Maestas. It is found
that Baker told Maestas that Allan did not like him because
he was a union steward, and that statement clearly is coer-
cive: on its face, it creates a situation that constitutes inter-
ference with union activities. The allegation of paragraph
V(a) of the complaint is supported by the record.
B. Alleged Change of Work Duties
The fact that Allan made substantial changes in shifts
and work assignments is not in dispute. He created a new,
third shift; changed the worksites and assignments of Mae-
stas and many other employees: altered the way in which
work was done; instituted a record-keeping procedure; and
began following the contract procedure of assignments to
shifts on the basis of seniority.
The General Counsel contends that Maestas was singled
out for harassment by assigning him less desirable work
duties. Baker and Allan agreed in their testimony that, after
Baker became supervisor, they discussed the employees and
concluded that several of them, including Maestas, should
be given special attention because of their poor work per-
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance." Employees were moved among jobs, partially
upon the basis of their preference, but principally in order
to improve overall work performance of the department.
There was not, nor had there been in the past, assignment
to particular jobs on the basis of seniority. Baker testified
that Allan once said he would make work assignments on
the basis of seniority, but Allan's denial of that testimony is
credited. Allan credibly testified that he told employees
they had a choice of starting times (i.e., shift preference)
based upon seniority.
There is no evidence that Maestas was treated any differ-
ently from other employees. He worked the shift he wanted
and asked for; he was given that shift based upon seniority.
His work was changed on one occasion, upon his request, to
relieve him from having to use a ladder to wash walls. His
work essentially remained the same, i.e., ordinary janitorial
work. He presently works in an area of the building that is
less dirty and demanding than where he formerly worked.
There is no evidence that his present assignment is more
onerous, dangerous, or heavier than it has been in the past.
Baker testified that Allan instructed him to make it rough
on employees that they both agreed were unsatisfactory,
and both Baker and Allan testified that Maestas was not a
good employee. Baker was not a credible witness, as dis-
cussed supra, but assuming arguendo that Allan told Baker
to make it rough for unsatisfactory employees, (a) there is
no indication that Maestas was treated any differently from
any other employee, (b) there is no indication that Maestas'
union activities were considered, wholly or partially, when
job assignments of nearly all employees, including that of
Maestas, were changed, (c) Vigil's job assignment was
changed, yet he, too, was a union steward, (d) Maestas was
not assigned to the heaviest, or the dirtiest jobs, (e) Maestas'
former job assignments were in dirtier areas than those to
which he later was changed, and (f) Mendoza testified that
he had worked the same job assignment for 7 years, but his
assignment was changed by Allan.
Paragraph Vl(a) of the complaint is not supported by the
record.
C. Sspension of Maestas
One of Allan's responsibilities, from the outset of his em-
ployment, was to reduce the high absenteeism rate of the
janitorial employees. Respondent's practice prior to Allan's
employment was to issue warning letters to employees, and
to discipline them, for what the company referred to as
"excessive absenteeism."" Banman credibly testified rela-
tive to Respondent's policy concerning, and views toward,
absenteeism. He distinguished work-related injury, surgery,
and hospitalization from absenteeism allegedly occasioned
by illness, but for which there was little or no verification.
He testified that Respondent tends to be lenient in the for-
mer instances, but that in any case, the Company must be
alert to the loss of time and money occasioned by absence
1 Both Baker and Allan testified to specific instances in which Maestas'
work performance and attitude were not satisfactory. However, that testi-
mony is only marginally relevant. Maestas don not contend that he was
disciplined because of poor work performance.
12 R. E.h. I I(a)-(e).
from work, for whatever cause. Banman stated that an em-
ployee who compiles a record of frequent days off, one or
two at a time, whether for alleged illness or for any other
cause, becomes a marginal employee: the Company still
must get its work accomplished. Banman testified that Re-
spondent does not agree that an employee is entitled under
the contract with the Union to 12 days of sick time each
year, regardless of whether or not the employee is ill or that
sick time is an employee's to take as paid leave, in the
manner of vacation leave.
Allan's review of Maestas' sick leave and absenteeism
was routine, and a part of his general review of sick leave
and absenteeism of all janitorial employees; it is clear, and
found, that Maestas was not singled out for review. Allan's
review showed that Maestas often has been off work since
1970 for a number of illnesses and reasons including pulmo-
nary infections, an automobile accident, diabetes, back
trouble, three operations, gall bladder problems, and ulcers.
He has been paid for his sick time off, either pursuant to
company policy or to workmen's compensation provisions.
In addition, Maestas has taken vacation time and sick
leaves of 1 or 2 days at a time. Respondent's records' show
that Maestas was absent from work a total of 212 hours in
1978; 178-1/2 hours were compensated, and 33-1/2 hours
were not compensated. Maestas testified that he does not
remember ever having been warned about his absenteeism,
but Allan testified that he orally warned Maestas, alone or
with a supervisor, on two occasions. Allan is credited.' On
August 9, Allan wrote a memorandum" addressed to Mae-
stas, reading as follows:
This memo is to advise you that since the week of
May 21. 1978, you have taken 5-1/2 Sick days from
work. It is suggested that you do whatever is necessary
to improve your attendance.
Norman C. Allan
As a result of his continuing review of absenteeism, Allan
disciplined several employees. Kathy Jarman was sus-
pended sometime after July 1978 because of her absentee-
ism. She grieved her suspension, and Maestas heard her
grievance as a member of the grievance committee. The
suspension was upheld. Urias was discharged for excessive
absenteeism, but after he brought in a doctor's statement,
the discharge was changed to a 2-day suspension. He finally
was discharged in February 1979 because of excessive ab-
senteeism. In addition to Jarman and Urias, other employ-
ees were disciplined because of excessive absenteeism." In-
cluded were employees Ring, who was given an oral
reprimand; Lewis, who was discharged; Anderson, who
was warned; Garcia, who was suspended and later dis-
charged; Jones, who was suspended and later discharged;
Reeves, who was discharged; and Taylor, who was dis-
charged. W. Salone was given a letter of warning on Octo-
ber 3."'
" Resp. Exhs. 12, 13, and 14. Exh. 13 shows that Maestas took more than
100 hours of sick leave from January through September 1978.
'4 In March 1970 Maestas was discharged for excessive absenteeism, but
the discipline later was changed to a 3-day suspension.
5 G.C. Exh. 9.
" Resp. Exh. IO(a)-(i).
i Resp. Exh. 7.
72
THE DENVER POST
On each occasion of discipline, including that of Maestas,
Allan first conferred with Bordenkircher, and sometimes
also with Banman. Bordenkircher and Banman agreed
upon a 2-day suspension for Maestas, and Allan prepared
the letter of suspension, reading as follows:
On August 9, 1978 1 issued a memo to you regarding
your excessive absence from work. Since that memo
was issued you have missed part of two days and re-
ported ill one full day. Since June 13th of this year, you
have been absent from work a total of eight full days
and three partial days.
I feel that his is rather excessive, especially from
January 1, 1978 to September 23, 1978 you have used
over one hundred hours sick time.
You will be on suspension from October 4 to Octo-
ber 5. You will be expected to return to work on Octo-
ber 6, 1978.
/s/ Norman C. Allan
Director, Janitorial Services
Maestas filed a grievance because of the letter of suspen-
sion. He testified relative to his reason for filing the griev-
ance:
I knew I still had plenty of sick time, so I just didn't
feel that I should get suspended because I was off be-
cause that's what the sick time is for, to use it whenever
you need it.
The grievance committee held a meeting in October, at
which union representatives contended that the suspension
was not justified because Maestas had accumulated sick
time. Allan and Bordenkircher credibly testified that, at no
time during the grievance hearing, was the fact discussed
that Maestas was a union steward, nor did Maestas men-
tion that argument. That testimony was not challenged by
the General Counsel. The grievance letter was withdrawn
because Maestas personally filed an unfair labor practice
charge with the National Labor Relations Board.
Discussion
It is clear that Maestas was treated the same as all other
employees. Allan was cracking down on absenteeism, and
he took action against all employees, including Maestas,
that he felt were taking excessive sick leave. So far as the
record shows, all employees who took excessive leave were
disciplined. The General Counsel argues that employees
Jackson and Weston were on sick leave for long periods
without being disciplined, but Allan credibly testified that
both employees were on sick leave because of work related
injuries. Salone was given a letter of reprimand for exces-
sive absences, but was not suspended. Allan credibly ex-
plained that Salone was not suspended because he was not
suspended because he was not paid for the 7 hours that he
was off the job;' Allan considered that to be equivalent to
a suspension.
Maestas was warned about his absenteeism, both orally
and in writing, but continued to stay off work. Maestas
Salone's absence from work is discussed infra.
contends that he was entitled to absent himself from work
because he had accumulated sick leave, but that argument
is without merit. The company's policy (embodied in a con-
tract with the Union) of granting 12 days paid sick leave
each year does not mean that employees may take that time
without any reference to, or regard for, company work re-
quirements. As Bordenkircher explained, Respondent in
some instances may find it necessary to terminate employ-
ees who are genuinely ill or injured and legitimately off
work, since production must continue. Neither company
policy nor the union contract guarantees to employees the
right to absent themselves from work, whether for illness or
some other reason. A claim for paid sick leave may be
made in reliance upon a doctor's statement as evidence of
illness, and Respondent may pay the claim upon receipt of
that evidence. However, it does not follow that Respondent
cannot assert that an employee is taking excessive sick
leave, even though sick time is accumulated. There is no
evidence that the Union, or any employee other than Mae-
stas, filed a grievance or otherwise contended that Respon-
dent improperly imposed discipline for taking excessive sick
leave.
The principal question thus is whether or not Respondent
took action against Maestas because he was a union stew-
ard. The testimony of Allan and Bordenkircher that Mae-
stas was not disciplined because of his union activities, is
consistent with the record, and is credited. There is no evi-
dence that Respondent disciplined Maestas because of his
union activities, or for any reason other than the fact that
he, as well as many other employees, was off the job more
often than Respondent's production schedule permitted.
The allegation of paragraph Vl(b) of the complaint is not
supported by the record.
A. The Reprimand of Maestas
Allan credibly testified that, soon after he started work-
ing for Respondent, he talked with Vigil and Maestas, told
them he would be having meetings with employees, said
they were an important communication link with employ-
ees, and said he wanted them at the meetings, particularly
for post-meeting "cracker barrel" sessions. Maestas denied
that testimony by Allan, and said Allan never made such
statements to him. Maestas' testimony was self-contradic-
tory, sometimes confusing, and generally unconvincing. He
appeared throughout his recitations to be evasive and unre-
liable. His denial of Allan's testimony is given no credence.
Allan credibly testified that attendance of employees at
meetings during their working shifts was mandatory, unless
they were specifically excused; he also testified that employ-
ees were not required to come to work early in order to
attend meetings, or to come from home to a meeting of
employees on a separate shift.
The meeting of October 2 was held during second shift
work hours,'9 and there is no dispute concerning the fact
that employees were given advance notice of the meeting;
Maestas acknowledged that Baker told him "at least a few
1 Edward Urias testified that a meeting was held for third shift employees
on October 2, and that employees were notified of the meeting during the
preceding week.
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days in advance" of the meeting. Baker testified that all
employees, including Maestas, personally were notified of
the meeting the week prior to October 2, and that a notice
of the meeting was posted on the bulletin board. '2
Maestas acknowledged that he willfully absented himself
from the meeting, and that he knew he was supposed to
attend. Maestas also acknowledged that the meetings in-
volved working conditions, that he had attended such meet-
ings in the past, that he had not objected to attending meet-
ings in the past, and that there was nothing new or unusual
about the scheduling of the meeting of October 2. Baker
testified that he talked with Maestas when Allan sent him
to look for Maestas, and that Maestas stated "that with all
the work that Mr. Allan put on him, he did not have time to
go to the meeting if he was expected to get it done." Baker
testified that he returned to the meeting, and told Allan
what Maestas had said.' Maestas testified that he did not
see, or talk with, Baker just prior to the meeting, and denied
Baker's testimony on this point. That testimony and denial
by Maestas are given no credence.
Allan testified that he saw Maestas later in the evening of
October 2, after the meeting, and asked him why he was not
in attendance:
I said, "Bennie, why didn't you come to the meet-
ing?" Bennie said, "Well, I had been to my doctor and
my doctor said I couldn't upset myself because of my
condition. I know if I went to that meeting that it
would upset me, so didn't go." I then replied to Ben-
nie, I said, "As a union representative, I need you
there, and if your attendance at the meetings is going
to upset you, being there as a union representative, you
should resign the position as union representative."
Allan's testimony was corroborated by Paul Mendoza, a
janitorial employee, who testified that he overheard Allan
talking with Maestas, and that Allan said Maestas "was the
union steward, that he had to be in the meeting. If he
couldn't do it, well just let it go."
Maestas' brief testimony on this point generally corrobo-
rated that of Allan. In explaining why meetings upset him,
Maestas testified that, at an earlier meeting, he had been
"harassed" by Allan. Maestas and Allan testified concern-
ing this matter, and it is clear that the "harassment" con-
sisted of nothing more than Allan orally defending Respon-
dent against Maestas' allegation that Respondent was
parsimonious in its provision of work equipment. Allan's
testimony is credited, and it is found that Maestas was not
harassed at the meeting. It appears that, rather than feeling
"harassed," Maestas merely was reacting to the efforts of a
new boss to whip the janitorial department into shape.
Allan testified that he drafted the reprimand letter to
Maestas, and discussed the matter with Banman and Bor-
denkircher. It was decided that, since a suspension of Mae-
stas because of excessive absenteeism already had been de-
cided upon, only a letter of reprimand would be issued for
failure to attend the meeting. The testimony of Allan, Ban-
2 Allan credibly testified that the time of the meeting was changed from 7
to 5 p.m., to preclude employees from breaking into their work schedule
after starting work at 5 p.m.
21 As noted supra Allan credibly testified that Baker did not report to him.
what Maestas allegedly told Baker.
man, and Bordenkircher that they never discussed or con-
sidered Maestas' union activities when they were faced with
the discipline of Maestas is credited.
The General Counsel argues that employees Mendoza,
Gordon. and Brander were absent from the meeting, but
not disciplined. Maestas testified that he grieved his letter of
reprimand because he felt Mendoza either should have
been required to attend the meeting, or should have been
reprimanded for not attending. Allan credibly explained
that Mendoza worked on the third shift and had not arrived
for work when the meeting started and that he was not
required to come to work early in order to attend. Brander
did attend the meeting. Gordon attended the 11 p.m. meet-
ing, but came in late. Gordon did not have to come to work
early to attend, but he did. Only Maestas and Salone will-
fully absented themselves from the meeting, and both of
them received letters of reprimand.
Discussion
The only substantial question is whether Maestas was
given a letter of reprimand because of his union activities.
Maestas was not treated differently from Salone, who
also refused to attend the meeting. Vigil, the day shift stew-
ard, was not the subject of alleged harassment. When Mae-
stas attended his grievance hearing, he did not contend that
he was being harassed because of his union activity. There
is no independent support for the General Counsel's con-
tention, and there is not adequate testimony and evidence
upon which to base an inference, that the reprimand letter
was intended to interfere with Maestas' union activities.
The allegation of paragraph Vl(c) is not supported by the
record.
The General Counsel alleges (paragraph V(b) of the com-
plaint) that Allan told Maestas he should resign his position
as union steward. That allegation is not supported by the
record. Allan had made it clear to all employees that the
meetings were important, and working conditions were dis-
cussed at all meetings. It was common practice to hold dis-
cussions at the meetings in which the employees partici-
pated. Allan told Maestas that his attendance was
important, since he was a union steward. It is clear that
Allan was correct; it was important for the steward to at-
tend the meetings since they involved, almost exclusively,
work conditions of the employees, and the employees
worked pursuant to a contract with Respondent. Maestas'
only excuse for refusal to attend on October 2 was that the
meetings upset him, a contention not proved at trial. How-
ever, even assuming, arguendo, that the meetings upset
Maestas, that fact would strengthen Respondent's version
of events. Whether Maestas' contention was a sham, or was
bona fide, reliance upon that contention fully justified Al-
lan's representation to Maestas that, if Maestas physically
or emotionally was unable to attend the meetings in his
capacity as steward, he should reliquish those duties to
someone who could do the task. That representation by
Allan was not threatening, vindicative, or coercive. It was a
statement of the facts of life. In no event can it reasonably
be construed as an unadorned statement to Maestas that he
should quit his job as steward.
74
TIlE DENVER POST
IV, 11f FF-E('I OF1 I le NFAIR LABOR PRA(CICES PON
('O()MMER(CE
Respondent's activities set forth in section III, above, oc-
curring in connection with the operations of Respondent
described in section 1, above, have a close, intimate. and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Triil RliMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( I) of the Act. I
shall recommended that it be ordered to cease and desist
therefrom, and to take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I hereby make the following:
CON(C t SIONS OF LAW
1. The Denver Post, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Denver Newspaper Guild, Local No. 74 is. and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. By one supervisor telling an employee that another
supervisor did not like the employee because he was a
union steward, Respondent violated Section 8(a)( 1) of the
Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the above 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:
ORDER 22
The Respondent. The Denver Post. Inc., its officers.
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Through its supervisor, telling an employee that an-
other supervisor did not like the employee because he was a
union steward.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form, join, or assist labor or-
ganizations, including the above-named organization, to
bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purpose
z7 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 he deemed
waived for all purposes.
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action, which I find will
effectuate the policies of the Act:
(a) Post at its Denver. Colorado operation copies of the
attached notice marked "Appendix.":' Copies o the notice
on tforms provided by the Regional DI)rector or Region 27.
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places. including all places
where notices to employees are customarilN posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced. or covered bv an other
material.
(b) Notify the Regional Director for Region 27. in wrlt-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
(I) It is further recommended that all allegations of the
complaint found not proved, be dismissed in their entirety.
2! In the event that this Order is enftorced b a Judgment ofi a nited
States Court of Appeals. the words in the notice reading "Posted hs Order o
the National Labor Relations Board" shall read Posled Pursuant t,o a Judg-
ment of the United States Court of Appeals Enforcing n Order o, the N.a-
tional Labor Relations Board."
APPENDIX
NoniCE To EMPILOYEES
POSID1: BY ORDER 01 it"L
NAIIONAI. LABOR RE.A1I()NS BOARI)
An Agency of the United States Government
After a hearing in which all sides had an opportuni to
present evidence and state their positions, the National l.a-
bor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any such activities.
WI: WII.. NOT, through our supervisor, tell an em-
ployee that another supervisor does not like the em-
ployee because he is a union steward.
WE WILl. NOT in any like or related manner, inter-
fere with, restrain, or coerce employees in the exercise
of the rights to self-organization. to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection or to refrain
from any or all such activities.
TIit DENVER PSI. IN('.