Tyme Lithograph Corp., Tyme Graphics Inc., and Tyme Letter Services Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1982

265 N.L.R.B. 437 (N.L.R.B. 1982)

TYME LITHOGRAPH CORP.
Tyme Lithograph Corp., Tyme Graphics Inc., and
Tyme Letter Services Corp. and Anthony Tesor-
iero and William Cruz. Case 2-CA-17827
November 19, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On April 23, 1982, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief and the Re-
spondent filed a brief in opposition to the General
Counsel's exceptions.
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 exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I In the second full paragraph of that section of the Administrative
Law Judge's Decision entitled "Concluded [sic] Findings," the Adminis-
trative Law Judge states that certain knowledge obtained by Arneman
with regard to the union activities of Anthony Tesoriero "was not of the
sort which would cause alarm." We do not agree with this characteriza-
tion of the information given to Arneman. However, our disagreement
does not affect our Decision herein.
In the last full paragraph of that same section, the Administrative Law
Judge concluded that Fox did not threaten retaliation against William
Cruz should he seek assistance from the Labor Department. The Admin-
istrative Law Judge included in his discussion his own interpretation of
the comments made by Fox. We find it unnecessary to speculate as to
what Fox may have intended by his comments. In the absence of any
direct evidence of what Fox meant and considering the context in which
the statement was made, we are of the opinion that there was no threat
of retaliation made by Fox to Cruz.
issued by the Regional Director for Region 2 on March
23, 1981. In essence, the complaint alleges:
1. That Respondents unlawfully discharged William
Cruz and Anthony Tesoriero on January 23 and Febru-
ary 3, 1981, respectively, because of their membership
and activities on behalf of District 65, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America.
2. That Respondents, in late January 1981, "warned
and advised its employees to refrain from engaging in ac-
tivities on behalf of the Union and from engaging in con-
certed activity for their mutual aid or protection."
3. That Respondents, on or about January 23, 1981,
"threatened an employee that it would oppose his efforts
to obtain unemployment compensation if he sought as-
sistance from the Department of Labor."'
Based on the entire record herein, including my obser-
vation of the demeanor of the witnesses, and after con-
sideration of the briefs submitted, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondents are New York corporations located at
250 Hudson Street, New York, New York, where they
are collectively engaged in providing commercial print-
ing and direct mailing services. They employ in excess of
200 people. The parties stipulated that Tyme Lithograph
Corp., Tyme Graphics Inc., and Tyme Letter Service
Corp., are affiliated business enterprises having, inter alia,
common ownership, officers, management, supervision,
and common labor policies. It was further agreed that
for purposes of the National Labor Relations Act, the
three companies comprise a single integrated business en-
terprise. 2
It is conceded by Respondents that annually they col-
lectively derive gross revenues in excess of S500,000 and
that they sell and ship products valued in excess of
S50,000 directly to points outside the State of New York.
Accordingly, it is concluded that Respondents are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that District 65, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, herein called District 65, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard before me in New York, New York, on
January 25, 26, 27, and 29, 1982. The initial charge in
this proceeding was filed by Anthony Tesoriero on Feb-
ruary 6, 1981, and the first amended charge was filed by
William Cruz on February 11, 1981. The complaint was
At the opening of the hearing, the General Counsel withdrew an al-
legation of the complaint alleging "surveillance."
2 Eliot Abrams is the president of the three corporations and is the sole
shareholder of Tyme Lithograph Corp. and Tyme Letter Service Corp.
He is a 50-percent shareholder of Tyme Graphics, which is half owned
by one Hy Drucker. It appears from the record that previously Tyme
Graphics had been an independent company which did most of its work
for the other two corporations and that it was later brought into partner-
ship with them as an affiliated business. The immediate managers of
Tyme Graphics are Hy Drucker, Stanley Fox, and Barry Turano.
265 NLRB No. 53
437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11l THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory Status of John Policastri and George
Arneman
The General Counsel alleges, but Respondent denies,
that John Policastri and George Arneman are supervi-
sors within the meaning of Section 2(11) of the Act.
The two individuals involved both have the title of su-
pervisor, which is how they are referred to by employ-
ees and higher management. Policastri is employed by
Tyme Graphics and Arneman is employed by Tyme
Lithograph. They each work with printing presses and
are "in charge" of the respective printing departments. s
Without seeking to summarize in detail all of the evi-
dence relating to the status of these two individuals, the
record indicates quite clearly that each has the responsi-
bility of assigning and directing the work of the employ-
ees in his respective department and that they exercise
independent judgment in so doing. The evidence also
discloses that Arneman and Plicastri participate in the in-
terviewing of job applicants and effectively recommend
the hiring of new employees for their deparments. Addi-
tionally, it was disclosed that both have effectively rec-
ommended the discharge of employees. Accordingly, it
is concluded that both George Arneman and John Poli-
castri are supervisors within the meaning of Section 2(11)
of the Act.
B. The General Counsel's Case
Much prior to the events herein, District 65 had un-
successfully attempted to organize certain employees of
the Company in 1970 and 1976. The person who was re-
sponsible for these past efforts was Ralph Pillegi, an or-
ganizer of that Union. It is noted that, previous to the
instant case, no unfair labor practice charge has ever
been filed against Respondents.
The two employees who were allegedly discharged
because of their union activities, William Cruz and An-
thony Tesoriero, were hired as pressmen, respectively,
on January 19 and on May 12, 1980. 4
According to Tesoriero, at the time of his employment
interview with Dominick Rubino, 5 he asked Rubino if
the Company was a union shop. He states that Rubino
said it was not, and asked why Tesoriero posed that
question. Tesoriero states that he told Rubino that he
had previously been employed in a union shop, was a
member of District 65, and asked if this would make any
difference as to whether a job would be offered. Accord-
ing to Tesoriero, Rubino said it would not make a differ-
ence, "not so long as you don't tell anybody." Rubino,
although not recalling the details of this particular job in-
terview, testified that he never asked any job applicant
whether he was a union member and would never take
that into account in deciding whether to make a job
offer. In this respect he testified that a large segment of
the industry is unionized and that, if he refused to hire
a Apart from the historical fact that Tyme Graphics became an affli-
ated company at a somewhat later date, it appears that the preases of
Tyme Lithographic are smaller than those of Tyme Graphics.
Cruz was on the payroll of Tyme Graphics and Tesoriero was on the
payroll of Tyme Lithograph.
· Rubino is a vice president of the three corportions.
people because they worked in union shops, he would be
foreclosing the Company from getting qualified press-
men.
Cruz testified that sometime during the summer of
1980 he and a group of other employees were talking
with John Policastri about the discharge of another em-
ployee. Cruz states that during this conversation he
asked Policastri why the Company did not have a union.
According to Cruz, Policastri told the employees to not
"even mess with it," and that the Company would rather
fire everybody than have a union. Policastri denied this
assertion, and, although Cruz testified that employees
Harvey Bennett, Albert Robles, and Mike Rios were
present, none of these employees were produced by the
General Counsel to corroborate Cruz' allegation. Based
on the General Counsel's failure to produce corroborat-
ing witnesses, and also on demeanor grounds, I shall
credit Policastri's denial.
According to Tesoriero, he began talking with a few
other employees about a union sometime in December
1980 and that he also talked to some more employees, in-
cluding William Cruz, about obtaining union representa-
tion in January 1981. In this respect, Tesoriero testified
that, since he was a member of District 65, he volun-
teered to contact that union. Although not precisely
clear when he did so, it appears that, at some point in
January 1981, Tesoriero called Pillegi and arranged for
the latter to meet with several employees on January 23,
1981, at a nearby restaurant called Nino's.7
On Friday, January 23, Anthony Tesoriero, William
Cruz, and another employee, Jose Cruz, s met with Pil-
legi at Nino's restaurant at or about 12:30 p.m. Accord-
ing to their testimony, while they stood outside the res-
taurant exchanging greetings, John Policastri and em-
ployee Miguel Rios walked by them.9 There is, howev-
er, no evidence in this record to suggest that either Poli-
castri or Rios knew who Pilegi was or that they were
aware of the meeting. Although there was evidence that
Pillegi carried an attache case with the name District 65
written on it, the lettering was small or not immediately
noticeable. It therefore would, in my opinion, be ex-
tremely unlikely that a person walking by, as described
by Pillegi and the others, would have noticed the in-
scription on Pillegi's attache case. '°
* The General Counsel concede that this incident occurred outside
the 10(b) staute of limitations It is noted that this conversation allegedly
took place when there was no union activity occurring and more than 6
months prior to the dischares of Cruz and Tesonero.
'According to Tesoriefi, he first contacted Pillegi about 2 weeks after
he had received a second written warning concerning his latenes. This
warning was iuned on or about December 18. 1980.
* Jose Cruz. whom William Cruz described a · life-long friend. was
not caled as a witness.
* On Friday the employees are paid. According to Policstri he. Rios.
and Robles normally walk past Nino's Restaurant on the way to a bank
where they cash their chcks.
o At the hearing. Pillegi's attache cae was exhibited to me. The Dis-
trict 65 inscription is in relatively small lettering and in the same, but
lighter, shade of color as the attache ce itself. At 8 to 10 fet, which
according to Pillegi is the closest that Policastri and Rik passed, the in-
scription is not readily noticeable and would be seen only if someone was
looking for it.
438
TYME LITHOGRAPH CORP.
With respect to the above incident, neither Policastri
nor Rios recalled any occasion when they passed by the
restaurant and observed a group including Tesoriero and
William Cruz.
At the restaurant, Pillegi talked to the three employees
about the Union. According to William Cruz, when he
saw Policastri pass by the window on his way back to
the Company, he got nervous and left. Upon the return
of the others, Tesoriero went to William Cruz' depart-
ment where he gave Cruz a union card to sign and then
went downstairs to give the card to Pillegi who was
waiting outside the building. "
At or about 4 p.m., on January 23, 1981, Cruz was
called to a meeting with Policastri and the two produc-
tion managers of Tyme Graphics, Stanley Fox and Barry
Turano. At this meeting, Cruz was told that he was
being let go. According to Cruz, Fox first said that he
was being let go because his production was no good.
Cruz states that, when he said that he had received no
warnings about his production, Fox said that a warning
had been issued 2 months before, which Cruz denied re-
ceiving. Cruz states that Fox then shifted the reason and
said that he was being laid off because he was talking
about the company with other employees. He states that
he told Fox that what he said about the Company to
other employees was not their business as long as he did
his work. Cruz testified that at this point Fox said that
he was really being laid off because of lateness and ab-
sences. According to Cruz, when he rebutted this asser-
tion, Fox said he was being laid off because he could not
get along with the other employees and that he was talk-
ing about things against company policy. Cruz asserts
that, after being given all those varying reasons for his
discharge, he told them that what they were doing was
unjustified and that he was going to go to the Labor De-
partment "about what they're doing to me." He states
that Fox replied that "it would only make matters worse
for your unemployment insurance."
According to Cruz, he called Barney Turano on Janu-
ary 26 to ask permission to pick up some of his personal
property which he left at the Company. Cruz states that
during this conversation he asked why he had really
been fired. He asserts that Turano said, "Willy, off the
record, you know why you were fired. You were fired
because of what was happening, things you were saying.
You know you wasn't fired because of your production,
or your-the things that was said." Cruz states that he
then asked Turano what he was supposed to say to the
Unemployment Insurance Agency, whereupon Turano
told him to say he was laid off for lack of work. In fact,
Cruz collected unemployment benefits and the Company
did not contest his claim to such benefits.
Subsequent to Cruz' discharge on January 23, Tesor-
iero was discharged on February 3. A few days before
his discharge there was an incident involving the em-
ployees in his department. It appears that on one after-
noon three of the employees in the department (exclud-
ing Tesoriero) were asked to work overtime by George
Arneman. The employees, led by Bill Tucker, insisted,
II Respondents occupy several floors of a 15-story building. Cruz' tes-
timony indicates that no one from management was present when he
signed the union card.
however, that they should get meal money if they were
being asked to work overtime. They also told Arneman
that if they did not get such money they would not work
the overtime. Arneman then spoke to his superior, Dave
Shaloff, about the situation and was told that the Compa-
ny does not provide supper money. At that point, Arne-
man told the employees that the Company would not
accede to the demand and that they should therefore go
home for the night. It is noted that, according to Tesor-
iero, he was not really involved in the incident, except as
a witness, as he had not been asked to work overtime
that night.
On the following morning, Rubino called a meeting of
the department to discuss the events of the preceding
day. According to Tesoriero, Rubino told the group that
he could not have incidents like what had occurred last
night because things like that build a wall between the
workers and management. Tesoriero states that Rubino
also said that "we are one big happy family" and that
"we all have to work together." According to Tesoriero,
Rubino then asked each employee to confirm that "we
are all one big happy family," but that when he turned
to him (Tesoriero), Rubino said, "we don't need any inci-
dents around here do we Tony?" Tesoriero also testified
that he did not pay too much attention to what was said
at the meeting, and that he was gazing out the window
because it did not involve him.
As to the meeting described above, Rubino and Arne-
man testified that the former merely told the employees
and Arneman that they should have tried to talk out the
problem the preceding night. They state that Rubino
criticized Arneman for being too abrupt with the em-
ployeees and that he criticized the employees for refus-
ing to work the scheduled overtime. They both deny
that Rubino said anything about building walls or that
he, in any way, threatened the employees.
On February 3, 1981, Tesoriero was told by Rubino
that he was being let go. He states that Rubino told him
that the reason for his termination was due to his late-
nesses. He testified that, in response, he told Rubino that
he had recently made an effort to get in on time, to
which Rubino said that he had made his mind up about 3
weeks before.
In support of the General Counsel's claim that the
union activities of Cruz and Tesoriero were known to
the Respondents, he relies, in addition to the Nino res-
taurant incident noted above, on a statement by George
Arneman. In an affidavit dated February 26, 1981, Arne-
man stated:
In late January 1981, about 2 weeks before Anthony
was fired, one of the pressman he worked with, I
don't remember his name approached me and told
me Anthony had mentioned the Union to him. To
the best of my recollection the employee said that
Anthony wasn't speaking to any of them, that is the
pressmen he worked with, because he tried to speak
to them about the Union and none of them were in-
terested. I don't remember whether I mentioned this
to any one else.
439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In relation to the above, Arneman testified that, to the
best of his recollection, it was Bill Tucker who reported
this to him after he asked Tucker what was troubling Te-
soriero. He states that Tucker told him that Tesoriero
was mad and not speaking to anyone because when Te-
soriero started'talking about a union, none of the em-
ployees wanted to listen.12 Arneman states that, because
of the way this was reported to him, he did not think it
was important and therefore he did not mention this con-
versation to anyone until after Tesoriero had been dis-
charged.
C Respondents' Defense
Barney Turano, one of the production managers of
Tyme Graphics, testified that the reasons for Cruz' dis-
charge were that he was hard to work with, that he was
argumentative, that he was uncooperative, and that he
would accept overtime only at his own convenience.
The principal assertion by Respondents as to Cruz was
essentially that, although he was a capable pressman, his
relationship to his coworkers, as manifested by his be-
havior, was unstable and temperamental. In this respect
Miguel Rios, one of the pressmen who worked with
Cruz, testified that Cruz exhibited different types of be-
havior; at times being friendly but at other times being
mad at the world. Cruz asserts that he got along well
with his coworkers and that he never received any warn-
ings.
John Policastri, Cruz' immediate supervisor, testified
that when Cruz began his employment with the Compa-
ny in January 1980, he was a good worker who appeared
to be happy with his job. He states that, after a period of
time, he observed that Cruz and his helper, Fred Es-
trada, began to argue a lot, to the point where on one
occasion they almost had a fist fight. Soon thereafter, ac-
cording to Policastri, Estrada quit and told him that he
was doing so because he could not work with Cruz. Rios
also testified that he observed Cruz and Estrada arguing
a good deal and that he too witnessed an incident where
the two almost came to blows. Rios, although not cer-
tain, thought that Estrada quit. He testified that Cruz
yelled at Estrada on many occasions, although from
Rios' testimony this may have been justified inasmuch as
he acknowledges that Estrada used to loaf a good deal.
Cruz concedes that he got angry at Estrada because of
the latter's laziness, and asserts that Estrada was dis-
charged by Policastri with Cruz' approval. Estrada was
not called as a witness in this proceeding.
In any event, the incidents involving Estrada were
over by the summer of 1980 and when he left, Edward
Alicea was hired in August to be Cruz' helper.13 At the
time Alicea was hired, he knew nothing about presses
and Policastri instructed Cruz to teach him the oper-
" At the time of the hearing Bill Tucker no longer was employed by
the Company, having been discharged on July 23, 1981. His discharge is
not alleged as being unlawful.
1' The department employed three pressmen and two helpers. Cruz
and Rioa each was assigned a helper, whereas Harvey Bennett, who op-
erated a smaller press, did not have one. Alicea was known to Cruz as he
had worked with him at another Company.
ation. 14 According to Policastri and Rios, there soon
began to arise substantial friction between Cruz and
Alicea wherein Cruz was continually yelling at Alicea
and was refusing to answer his questions. Cruz, for his
part, concedes that he yelled at Alicea because he made
the same mistakes and that he at times refused to answer
Alicea's questions because he felt that Alicea was not
ready to understand the answers. According to Rios, but
denied by Cruz, when Alicea asked Rios questions about
the presses, Cruz would call him away.'1 Alicea, who is
currently working as Rios' helper, was not called as a
witness.
Policastri and Rios also testified that there were occa-
sions when Rios' helper was out (Albert Robles), and
where Policastri assigned Alicea to work with Rios. 16
On those occasions, they testified that Cruz became very
angry and, according to Policastri and Turano, this led
Cruz to accuse Policastri of favoring Rios. Cruz ac-
knowledges that he did become angry when Alicea was
assigned to work with Rios until it was explained to him
that a helper was needed more at Rios' press.
In addition to the above, Policastri and Rios testified
that Cruz would often refuse overtime assignments. In
this respect, it is asserted that, on various occasions when
Cruz arrived in the morning, he would announce in a
loud and often profane manner that he would not accept
overtime that night. It is noted, however, that overtime
was not mandatory and that Rios also has refused over-
time because he moonlighted.
According to Turano, Policastri came to him in Octo-
ber and complained about Cruz. He states that Policastri
told him that Cruz was refusing overtime, that he was
argumentative, and that Cruz was accusing Policastri of
favoring Rios. Turano testified that as he had only been
employed by the Company for a couple of weeks, he
told Policastri to see if he could work out the problem
himself and if he could not, to see Hy Drucker. Turano
states that in November Policastri again came to him and
said that Cruz was worse than ever. He testified that Po-
licastri told him that Cruz was telling Robles that he did
not have to listen to Rios and that he was telling emq-
loyees they did not have to listen to the supervisors.
Turano also asserts that at this time he received a com-
plaint from Alicea to the effect that Cruz was not an-
swering his questions and that Cruz would yell at him
when he sought answers from Policastri. According to
Policastri, in November, he told Turano that Cruz was
on Alicea's back and that it would be a good idea to get
another pressman because he was not going to put up
14 The operation of of these presses is quite complex and it would take
at least a year for a person to become moderately proficient in their oper-
ation.
1" Rios testified that his own relationship with Cruz deteriorated after
awhile. He states that when Cru started he helped and advised Cruz as
to the operation of the presses, but that later Cruz pointedly resisted and
rejected his help. Cruz acknowledges that he had words with Rios be-
cause Rios interfered with his jobs. He states that Rios used to come over
and check his work and that one day he told Rios that this was none of
his business. Cruz states that Rios apologized when he told Rios that he
did not like Rios looking over his shoulder.
16 The press operated by Rios was bigger than the one operated by
Cruz and, therefore, when there was only one helper available, he was
assigned to assist Rios.
44o
FYME LITHOGRAPH CORP.
with Cruz' "garbage" anymore. He states that, although
Turano agreed, Stanley Fox and Hy Drucker told him
that it was the Company's policy not to discharge em-
ployees shortly before the Christmas season,'7 that Cruz
should be given a chance, and that he might calm down.
According to Turano, he spoke with Cruz sometime in
mid-November (a week or two before Thanksgiving),
and asked Cruz if there was a problem between him and
the other people. He states that Cruz said that Policastri
was favoring Rios, asserting that it was unfair that
Alicea was assigned to Rios whenever Robles was
absent. Turano asserts that Cruz said that he could not
get along with Policastri and could not work with him.
He states that he told Cruz that he should talk it out
with Policastri and that after this discussion it was re-
ported to him that Cruz was calmer. Cruz denies having
such a conversation with Turano.
Policastri testified that on one occasion Turano told
him that he had spoken to Cruz and that Cruz had as-
serted that Policastri was showing favoritism toward
Rios. He says he told Turano that this was not true. Poli-
castri states that, on the following day, Cruz told him
that he had told Turano that Policastri favored Rios, and
asked what Policastri was going to do about it. Accord-
ing to Policastri, he told Cruz that he was not favoring
anyone and explained the reason why he assigned Alicea
to work with Rios when Robles was absent. He states
that he asked Cruz why he did not come to him if he
had a "beef" with him and that he told Cruz that he was
crazy. Cruz denies having this conversation with Policas-
tri.
According to the Company, the above constitutes the
background against which, when the final incident oc-
curred, it was decided to discharge Cruz.' 8 According
to Policastri, about 2 weeks before Cruz was discharged,
Albert Robles reported that Cruz had told him that he
did not have to listen to Rios. Policastri states that
Robles further said that he (Robles) then told Cruz to
"go fuck himself." (Robles did not testify.) Policastri
states that a day or two later he reported this incident to
Turano and Fox and informed them that the situation
with Cruz was getting out of hand. He says that he told
the two production managers, at that time, that Cruz
should be let go. Policastri testified that they agreed and
said they would take care of it. He places this conversa-
tion as taking place about a week or a week and a half
before Cruz was terminated.
Turano testified that on a Wednesday (2 days before
Cruz was fired), Policastri came into the office and told
them that Cruz was becoming disruptive and should be
discharged. He states that it was then agreed to dis-
charge Cruz, but because it was not a normal termination
17 Rubino testified that, as a matter of policy, the Company does not
discharge employees during the Christmas-New Year's season. He states
that this policy is not merely altruistic but results from the experience
that it is difficult to obtain qualified people at that time of year because
they are not likely to leave other companies before bonuses are given.
The Company's records tend to support this assertion. Thus, in 1979
there were no discharges from November 2, 1979, until February 15,
1980. In the next year, there were no discharges from December 2, 1980,
to January 23, 1981.
18 In addition to the above, Respondents asserts that Crux also got into
arguments with Harvey Bennett, a pressman, and George Arneman.
(because not for lateness, absenteeism, or poor work),
they decided to consult with Don Rubino. Turano states
that Rubino asked if Cruz had been spoken to before and
that when he answered affirmatively, Rubino approved
the discharge. Turano asserts that Rubino said that they
had to make sure that Cruz got paid for all his time, in-
cluding vacation and sick days, and that on the following
morning (Thursday) he went to the bookkeeping depart-
ment where he advised them that Cruz was going to be
terminated.
Rubino testified that, about a week or so before Cruz
was fired, Fox and Turano called him about the proce-
dure for firing Cruz.' 9 He states that they told him that
the situation was a little tricky because the discharge was
not for lateness or because he could not do the job. Ac-
cording to Rubino, Fox and Turano reported that the
employee in question20 was disruptive and argumenta-
tive and that he had problems with his helper and every-
one in general. He states that he told them that before
discharging the man they had to be certain that he had
been spoken to and warned. Rubino states that they told
him that they had spoken to Cruz, whereupon he said
they could affect the discharge.2' According to Rubino,
he had nothing further to do with the discharge of Cruz
and except to the extent that he set forth the procedure
for Turano and Fox, he did not make the discharge deci-
sion. At the hearing, Rubino testified that his conversa-
tion with Fox and Turano took place at least a week
before Cruz was discharged, on or about January 14, 15,
or 16.
As to the decision to discharge Cruz, it is clear from
the record that, unlike the situation with Tesoriero, dis-
cussed below, no effort was made to find a replacement
for Cruz prior to his termination. In this respect, Rios
testified that it was only after Cruz was discharged that
Policastri asked him if he knew of someone to replace
Cruz and that he told Policastri that a replacement was
not needed. It appears that no replacement was in fact
hired, and that the production was effectuated with the
remaining pressmen.
Respondents presented two witnesses, Policastri and
Turano, who testified about the termination interview
with Cruz which occurred on Friday, January 23, 1981.
In substance, they denied Cruz' assertion that he was
given a variety of shifting reasons for his discharge.
Thus, according to Policastri, Fox told Cruz that the
reason he was being let go was because of his attitude
and because he had given a lot of trouble. Policastri
states that Cruz then started yelling that the Company
would not get away with this, that he had spoken to his
lawyer, that the Company was prejudiced, and that one
of the reasons he was being let go was because of Rios
whom the Company favored. Turano testified that Fox
told Cruz that he was being let go because Cruz was not
happy with the Company, because of his disruptive be-
is In a pretrial affidavit, Rubino sid that in early January Policastri,
Turano, and Fox approached him about letting Cruz go because of his
attitude. Policastri testified, however, that he did not speak with Rubino
about Cruz.
'0 Rubino testified that he was not sure if Cruz' name was mentioned.
Sa It appears that Tyme Graphics, unlike the other companies, does
not have a system of issuing written warnings.
441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
havior, and because he was not getting along with his
coworkers. He states that Cruz became upset and began
to yell that the Company was not going to get away
with this. He also asserts that Cruz accused the Compa-
ny of being prejudiced and that he was being fired be-
cause he did not get along with Rios who was favored
over him.
Respondents' position regarding Tesoriero is simply
that he was habitually late for work, that this lateness
impeded the scheduling of work for the employees in his
department, and that he was given many warnings about
this problem.
There is in fact no dispute as to the fact that Tesor-
iero, who lives in Staten Island, had difficulty in arriving
at work on time and that this problem began soon after
he commenced his employment with Tyme Lithographic
in May 1980. Also undisputed is the fact that Tesoriero
received numerous warnings about this problem during
the course of his employment and was specifically noti-
fied that, if he did not improve, his employment would
be terminated.2 2 Indeed on August 20, 1980, a written
warning was issued to Tesoriero which stated:
For the period of 5/14/80 to 8/20/80, three months
only, you have been late 38 times and absent 3
times. This note is to advise you that unless your
lateness/absentee performance improves consider-
ably, we may be forced to make a decision to termi-
nate your employment. Your record will be very
closely watched in the future. We regret having to
take these steps, but you leave us no choice.
Also, Tesoriero concedes that around December 18,
1980, before he contacted District 65, he received an-
other written warning with his paycheck.2 3 As to this
warning, he testified that other employees told him that
this last warning was a serious matter.
According to Rubino, he initially decided to discharge
Tesoriero in October. He states that at that time he
placed advertisements in the Daily News for a replace-
ment, but was unable to find a qualified person to replace
Tesoriero.2 4 Rubino states that he again decided to dis-
charge Tesoriero in or about mid-December, but did not
do anything about it until after January 1, 1981, because
of the Company's policy not to discharge employees
during the holiday season. 25 According to Rubino, he
again placed advertisements in the Daily News to run on
January 11, 22, 25, and 27, as a result of which he hired
Carlos Miranda. He states that, when Miranda accepted
the job, he discharged Tesoriero even though Miranda
could not start until March 2, 1981. Rubino denies that
his decision to discharge Tesoriero was motivated be-
cause of his union activities and asserts that he was un-
22 Tesoriero was hired to replace Vince Edwards who had been dis-
charged on April 28, 1980, due to excessive absences and lateness.
23 The contents of the December warning are not known to me as the
document was not available at the hearing.
"4 Respondents offered into evidence some bills from the Daily News
showing that it placed advertisements for a printing employee in October
1980 and on January 11, 22, 25, and 27, 1981.
'2 Although Tesoriero asserted that after the December 18 warning he
made an effort to arrive on time, his timecards show a continued and ex-
cessive problem with latenesses.
aware of any such activities before Tesoriero was termi-
nated.
In relation to Tesoriero's discharge, Respondents of-
fered ample evidence establishing that other employees
have not only received warnings but have been dis-
charged for excessive lateness and/or absenteeism. Thus,
in support of its contention that Tesoriero was treated in
a consistent manner as other employees, Respondents'
records disclosed that the following employees were dis-
charged for lateness or absenteeism; Eric Weber on July
25, 1980, Gregory Washington, August 15, 1980, Ray
Boone, August 22, 1980, Juan Sandoz, September 5,
1980, Millicent Peters, October 3, 1980, Adele Gallo,
January 23, 1980,26 Nestor de Jesus, on January 30,
1981, Anthony Tesoriero, February 23, 1981, Manuel
Rivera, June 3, 1981, Gladys Webb, June 19, 1981, John
Auchinful, August 21, 1981, Milton Meadows, Septem-
ber 1, 1981, Robert Wilson, September 11, 1981, and
John Torres, September 29, 1981.
IV. CONCLUDED FINDINGS
It is my opinion that Anthony Tesoriero was not dis-
charged because of his efforts to obtain representation
from District 65. Rather, it is concluded that the sole
motivating reason for his discharge was due to his re-
peated latenesses about which he had been warned.
While it was established that Tesoriero was the em-
ployee who contacted the Union and that Foreman Ar-
neman learned, about 2 weeks prior to the discharge,
that Tesoriero had been talking to other employees about
a union, the undisputed testimony on this point indicates
that the knowledge he gained was not of the sort which
would cause alarm. Thus, Arneman's testimony was that
employee Bill Tucker told him that Tesoriero was angry
at the employees because they did not heed his solicita-
tions to join the Union.
On the other hand, it was established beyond doubt
that Tesoriero had chronic difficulty in arriving at work
on time. Moreover, the General Counsel's assertion that
Respondents tolerated and condoned Tesoriero's laten-
esses is, in my opinion, wholly untenable in view of the
verbal and written warnings given to him and the fact
that he admittedly was told on various occasions that,
unless he improved, he would be discharged. Indeed the
final written warning was given to him on December 18,
1980, and it seems probable that it was this last warning
which led Tesoriero to seek the protection of union rep-
resentation.
It was established to my satisfaction that in October
1980, Rubino, having decided that Tesoriero was a liabil-
ity to the Company's business, attempted unsuccessfully
to find a replacement for him by placing want ads in the
Daily News. It also was established that in January, prior
to the meeting at Nino's restaurant, additional want ads
were placed in that newspaper on January 11, 22, 25, and
27. Thus, it is obvious to me that Respondents sought to
replace Tesoriero prior to the time he engaged in any
union activity. As noted above, Tesoriero's latenesses
were excessive and, despite his assertion that he made an
'6 Adele Gallo was discharged on the same day as William Cruz.
442
TYME LITHOGRAPH CORP.
attempt to improve after December 18, this assertion was
not borne out by his timecards. In view of the above,
and also the fact that Respondents have demonstrated
that numerous other employees have been discharged for
excessive lateness and/or absenteeim, it is my opinion
that their decision to discharge Tesoriero was justified
and was not related to his union activities Accordingly,
I shall recommend that the complaint be dismissed inso-
far as it alleges Tesoriero's discharge to be violative of
the Act.
It also is recommended that the allegation concerning
the alleged threat by Rubino on February I, 1981, be dis-
missed. In this respect, the evidence in support of this al-
legation was elicited through the testimony of Tesoriero,
who stated that he did not pay much attention to what
was said at this meeting as the subject matter did not in-
volve him and that he gazed out the window. Based on
the entire record, the evidence discloses that after certain
employees in Tesoriero's department refused to work
overtime, unless they received supper money, Rubino
spoke to them and their supervisor the following morn-
ing. In substance, the testimony reveals that Rubino
merely sought to iron out the problem which had oc-
curred the previous evening, and urged both the employ-
ees and the supervisor to try to talk out these kinds of
problems and be more patient with each other. It is my
opinion that Rubino did not, at any time, threaten the
employees in any manner, and I shall recommend that
this allegation be dismissed as well.
The case insofar as it relates to William Cruz is, in my
opinion, more uncertain as there appears to be certain
elements of Respondent's defense which are problemati-
cal. For one thing, whereas Cruz was an employee who
appears to have had difficulty in getting along with his
helpers, his supervisor, and his coworkers, this condition
was one of extended duration.' 7 Moreover, the precipi-
tating event which, according to Policastri, triggered the
discharge, (i.e., Cruz telling Robles that he did not have
to listen to Rios), was not something new. Thus, accord-
ing to Policastri, Cruz had made similar statements to
Robles on at least one previous occasion. Additionally,
while all of Respondents' witnesses were certain that the
decision to discharge. Cruz was made before January 23,
1981 (the date that Cruz met with union organizer Ralph
Pillegi and signed a union card), they were much less
certain as to when that decision was actually made.
Thus, according to Turano, Policastri recommended that
Cruz be discharged on January 21, after which Turano
and Fox spoke to Rubino about the procedure. Yet
Rubino testified that Fox and Turano approached him
about discharging Cruz, at least 10 days before January
23.28 Policastri, for his part, recalled that the incident
" Bred on the totality of the evidence, including Cru' own testimo-
ny, I am inclined to believe tht Cruz was in ct.n argumentative em-
ployee, whose relationhip to others was marked by eoesmve friction.
as As noted above, Rubino, in ha pretrial affidavit rated tht in early
January 1981, he was approached by Policatri, Turano, and Fox about
discharging Cru. Picatri, however, testified that be did not speak to
Rubino about Cnru. At the hearing, Rubino satified that, although he
said in hia affidavit that Policastri was involved in the conversation he
had no present reolection of Polictri being presant.
with Robles occurred about 2 weeks before Cruz' dis-
charge and that he recommended the discharge to Fox
and Turano about a week and a half before January 23.
I am also disturbed by the fact that whereas Respond-
ents sought and obtained a replacement before they dis-
charged Tesoriero, it did not do so in Cruz' case. In this
regard, although no replacement was ultimately hired,
the testimony of Rios indicates that, immediately after
the discharge, the Company intended to replace Cru.
Thus, Rios testified that, after Cru was fired, Policastri
asked him if he knew of anyone to replace Cruz, where-
upon Rios offered the opinion that a replacement was
not necessary. Additionally, although one of the reasons
given for Cruz' discharge was his refusal to work over-
time on various occasions, it is clear that overtime was
not mandatory and that other employees, including Rios,
refused such overtime work.
In the case of Cruz, who concededly was a competent
pressman, it may be said that a problematical defense has
been offered to rebut a problematical affirmative case. As
to the General Counsel's affirmative evidence, it is noted
at the outset that there simply was no credible independ-
ent evidence to establish union animus on the part of the
Respondent.'" Moreover, if there are problems with cer-
tain aspects of the Company's defense, there are, in my
opinion, even greater problems with the evidence relied
on by the General Counsel to establish that Respondents
had knowledge of Cruz' union activities.
It may be recalled that except for some nonspecific
testimony that Tesoriero talked to Cruz and others about
a union sometime in January 1981, Cruz' only tangible
involvement with the Union occurred on January 23
when he, along with Tesoriero and Jose Cruz, went to
Nino's restaurant to meet with union organizer Ralph
Pillegi, after which he signed a union card. Thus, unless
the Company's agents were aware of the planned meet-
ing beforehand, witnessed this meeting when it occurred,
or witnessed Cruz signing a union card after lunch, there
was very little time within which Respondents could
have obtained knowledge of Cruz' union activity prior to
his discharge. Clearly, there was no evidence to establish
that any of the Respondents' agents or supervisors were
apprised that the meeting was to take place or who was
to attend. Also, there is no evidence to show that any
agents or supervisors witnessed or were made aware of
the fact that Cruz signed a union card on that date. That
leaves the testimony of Cruz, Tesoriero, and Pillegi to
the effect that when they were gathered outside Nino's
restaurant, Policastri and Rios happened to pass by on
their way to the bank. Yet, even assuming that this oc-
curred, there was no evidence to establish that Policastri
or Rios knew who Pillege was, and, based on my obser-
vation of Pillegi's attache case, it is highly unlikely that
they could have noticed the name District 65 printed on
it, as they walked by.' 0
as As noted above, I have not credited Cmu' aorroborated io
that some time in the summa of 190. Poicstri told a group of employ-
en that the Company would dischare the employees before allowing a
unionm to come in.
o The Oeneral Couel asserts that Policastri or Rioa would have
known Pillegi becaue the latter wa involved in org-nizational efforts at
the Respondents in 1970 and 1976. This, however, is sheer speculation in
my view.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also offers George Arneman's
statement to establish company knowledge of Cruz'
union activity. Thus, as Arneman admitted that he
became aware, through Bill Tucker, that Tesoriero was
talking to employees about a union about 2 weeks before
February 3, the General Counsel asserts that it "would
be unrealistic not to infer that the pressman who brought
to Arneman's ear the tale of Tesoriero's union activity
also informed on Cruz."s1 Nevertheless, as the General
Counsel recognizes, this hypothesis is one based on infer-
ence, and I cannot help but wonder why that inference
was not fleshed out through at least an attempt to secure
the testimony of Bill Tucker. After all, Tucker had been
discharged by Respondent before the commencement of
the hearing, and he therefore would hardly be a witness
who could be expected to favor Respondents' cause.
Moreover, given Arneman's unrebutted testimony to the
effect that Tucker told him that Tesoriero's efforts to in-
terest the employees in a union had met with consider-
able resistence, this news would hardly give rise to a fear
that unionization was imminent.
It is well settled that an employee may be dismissed
for any reason, or no reason at all, so long as union ac-
tivity is not the basis for the discharge.32 The issue
therefore is one of motive. In this respect, it has been
stated, "determining the actual motive behind the dis-
missal of an employee is of course often an extremely
difficult task, dependent principally upon circumstantial
evidence and conduct.as
In the present case, the balance of the evidence con-
vinces me that the General Counsel has not met his
burden of persuasion. 3 4 As I have previously indicated,
there is simply no credible evidence to establish that em-
ployer harbored union animus. Also, it is my opinion that
the evidence presented by the General Counsel to estab-
lish that Respondents were aware of Cruz' union activi-
ties does not withstand scrutiny. Therefore, in the ab-
sence of evidence showing union animus, and in the ab-
sence of convincing direct or circumstantial evidence as
to company knowledge3 5 of Cruz' activities prior to his
"1 Since Arneman placed his conversation with Tucker as having
taken place about 2 weeks before February 3, it is possible that it could
have occurred either before or after Cruz was discharged. However, as
Cruz' union activity essentially occurred on January 23, it is more prob-
able that the conversation took place after that date and during the
period of time when Tesoriero was soliciting other employees (apparent-
ly with little success) to sign District 65 union cards which he first ob-
tained on January 23.
"s Lawson Milk Company v. N.LR.B., 317 F.2d 756, 760 (6th Cir.
1963), Auto-Truck Federal Credit Union, 232 NLRB 1024, 1027 (1977).
ss N.LR.B. v. Hotel Conquistador, Inc d/b/a Hotel Tropicana, 398
F.2d 430, 435 (9th Cir. 1968).
"4 I do not believe that the Board in Wright Line a Division of Wright
Line. Inc, 251 NLRB 1083 (1980), intended to indicate that if the Oener-
al Counsel presents sufficient evidence to withstand a motion to dismiss
after presenting his direct case, that respondent then has the burden of
proving the nondiscriminatory nature of a discharge. That is, my reading
of the Board's decision is that the Board did not mean to shift the ulti-
mate burden of persuasion from the General Counsel to the respondent.
Wright Line. supra at fn. II. See also Webb-Centric Construction, 254
NLRB 1181 (1981).
3" It is well settled that knowledge of organizational activity may be
established through circumstantial evidence. See Long Island Airport Li-
monsine Service Corp, 191 NLRB 94, fn 3 (1971). In the present case,
however, as Cruz' union activities occurred on January 23 at or about
12:30 to I p.m., and his discharge occurred at or about 4 p.m., there was
discharge, it is my opinion that the General Counsel's
case must fail. Accordingly, based on the record as a
whole, it is concluded that the General Counsel has not
established, by a preponderance of the evidence, that Re-
spondents discharged Cruz because of his union activi-
ties.
The final issue relates to Cruz' testimony that at his
termination interview on January 23, when he stated that
he was going to bring a complaint to the Department of
Labor concerning his discharge, Fox responded that, if
he did, it would only make matters worse for his unem-
ployment insurance benefits. It is the General Counsel's
theory that Cruz' assertion that he would file some type
of complaint regarding his discharge with the Depart-
ment of Labor constituted protected concerted activity
within the meaning of Section 7 of the Act. However,
assuming that Fox did make such a statement, it is noted
that Cruz did not say what type of relief he intended to
seek from that agency and Fox could reasonably have as-
sumed that Cruz was simply talking about filing for un-
employment insurance benefits with the New York State
Department of Labor which handles such matters. Since
Fox felt that the discharge of Cruz was for cause, it
would not be unreasonable for him to tell Cruz that the
Company would oppose a claim for unemployment bene-
fits. In this context, such a statement, if made, cannot be
construed as a threat of retaliation but simply as a state-
ment that the Company believed that Cruz' discharge
was for cause and therefore he would not be entitled to
such benefits. 3 6 In any event, whatever was said by Fox
on January 23, it was, in essence, retracted almost imme-
diately thereafter. Thus, according to Cruz, when he
spoke to Turano on January 25, he asked what he should
say when he filed for unemployment benefits and was
told to say that he was laid off for lack of work, a reason
which would entitle Cruz to receive such benefits.
Indeed, when Cruz did file for unemployment insurance,
his claim was not contested by the Employer.
CONCLUSIONS OF LAW
1. Respondents constitute a single integrated enterprise
which is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. District 65, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. John Policastri and George Arneman are supervi-
sors within the meaning of Section 2(11) of the Act.
4. Respondents have not engaged in any conduct vio-
lative of the Act.
Based on the entire record in this proceeding, I there-
fore make the following recommended:
precious little time within which the Company could have learned of his
union activities unless Policastri did in fact pass by Nino's restaurant and
was aware that the group was talking to a union organizer.
'6 See Inked Ribbon Corp, 241 NLRB 7, 12, 13 (1979).
444
TYME LITHOGRAPH CORP. 445
ORDER 7
It is hereby ordered that the complaint be and it
hereby is dismissed in its entirety.
3s 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.