Universal Paper Goods Co.

National Labor Relations Board - Board Decisions

Jul 2, 1979

243 N.L.R.B. 254 (N.L.R.B. 1979)

DECISIONS OF NATIIONAL. I.ABOR RELATIONS BOARI)
Universal Paper Goods Company and Miscellaneous
Warehousemen, Drivers & Helpers, Local 986, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases 21
CA- 16353, 21 -CA 16359, 21-CA- 16544, and 21
CA 16763
July 2, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENI.I.)
AND TRUESI)AILE
On March 20, 1979, Administrative Law Judge
Martin S. Bennett issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a limited exception and supporting 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 exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
I Respondent has excepted to certain credibilit) findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dr, 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. In adopting the Adminis-
trative Law Judge's finding crediting the testimony of employee Steven
Sharer, we do not rely on his statement that Sharer did not wear a union
button during the campaign. Although the record reveals that Sharer testi-
fied that he had worn a union button for several weeks during the election
campaign, this fact alone is insufficient to reverse the Administrative Law
Judge's findings crediting Sharer's testimony.
I In his Decision the Administrative Law Judge at one point inadvertently
referred to employee Leonard Orrante as a "roll grabber." when in fact he
was employed as a machine operator at the time of his discharge. In addi-
tion, in the Administrative Law Judge's discussion of the testimony concern-
ing Orrante's work record, he inadvertently referred to March rather than
January as the time that Powell told him he was one of the two top incentive
makers in the folder department. Neither of these corrections affects our
decision herein.
Finally, Respondent has excepted to the Administrative Law Judge's find-
ing that, at the time of Orrante's discharge, Supervisor Wier showed him a
copy of Respondent's regulations. Although the record is unclear as to which
of Respondent's supervisors showed the regulations to Orrante, he testified
without contradiction that these regulations were shown to him and we so
find.
We find merit in the General Counsel's limited exception that the Ad-
ministrative Law Judge, in his recommended notice. inadvertently failed to
provide that Respondent cease and desist from discouraging union activity
by discriminating against its employees. We shall correct the notice accord-
ingly.
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, Universal Paper Goods
Company, Los Angeles, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted fior that of the Adminis-
trative l.aw Judge.
APPENDIIX
NorI'I(' To EPI.oYItIS
PosIII) BY OR)iR OF 11II
NAI()NAI. LABOR RIL.A'I()NS BOARI)
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor Re-
lations Board has found that we violated the law and
has ordered us to post this notice and carry out its
terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from anyv or all of these things.
Accordingly, we give you these assurances:
WE wVIE.l. NOl discourage membership in, or
activity on behalf of, Miscellaneous Warehouse-
men, Drivers & Helpers, Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization of our employees, by
discriminating in regard to hire or tenure of em-
ployment, or any term or condition of employ-
ment.
WE WII.I. NOI threaten employees with eco-
nomic reprisals in the event of union success in
an election.
WE WIll. NOT force our employees to reveal
their support of a labor organization.
WE WII. NOT issue warnings to employees un-
der subpena who attend and testify on behalf of
a discharged coworker before another tribunal.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights.
WE WILL offer Leonard J. Orrante immediate
and full reinstatement to his former position or,
243 NLRB No. 34
254
UNIVERSAL PAPER GOODS COMPANY
if that position no longer exists, to a substantially
equivalent position without prejudice to seniority
and other rights and privileges previously en-
joyed, and WE Wll.l. make him whole for any loss
of wages suffered as a result of our discrimina-
tion against him, with interest.
WE WIl.l physically delete from our records
warnings given to David Matutte and Ysidro
Baca for attending and testifying under subpena
in behalf of a discharged coworker before an-
other tribunal.
UNIVERSAL PAPER GOODS COMPANY
DECISION
SIATEMENT OF IHli CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard in Los Angeles, California on August 23,
24, and 25, 1978. The second amended complaint. issued
July 20 and based upon charges filed January 30 and 31,
April 3, and June 9, 1978, by Miscellaneous Warehouse-
men, Drivers & Helpers, Local 986, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein the Union, alleges that Respondent,
Universal Paper Goods Company, has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(I) of the National Labor Relations Act, as amended. Briefs
have been submitted by the General Counsel and Respon-
dent. '
Upon the entire record in the case, and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Universal Paper Goods Company is a California corpo-
ration maintaining its principal office and place of business
at Los Angeles, California, where it is engaged in the manu-
facture of office filing supplies. It annually sells and ships
goods and materials valued in excess of $50,000 directly to
customers located outside the State of California. I find that
the operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOI.VED
Miscellaneous Warehousemen, Drivers & Helpers. Local
986, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organi-
zation within the meaning of Section 2(5) of the Act.
I An unopposed motion by Respondent to correct the transcript in a num-
ber of minor respects is hereby granted. It may be noted that the issuance of
this Decision has been delayed due to my illness.
I1. Illt UNFAIR IABH()R PRA( II( ES
A. Introduction, the Issues
By was of background. pursuant to a petition filed by the
Union on December 6. 1977, in Case 21 RC 15367. an
election was conducted on February 2, 1978, in a unit of the
production and maintenance employees of Respondent. in-
cluding shipping and receiving employees, production
clerks, warehousemen. and truckdrivers, but excluding all
other employees, department heads, part-time employees,
office clericals, guards, professionals, and supervisors. The
ballots were impounded due to the filing of an unfair labor
practice charge by the Union which thereafter executed a
request to proceed, and said ballots were counted on Febru-
ary 7. A report recommending certification was issued by
the Regional Director on March 10, and a decision and
certification of representatives was duly issued by the Board
on May 26, 1978. Thereafter. a complaint issued in Case
21-CA 16850 and a motion for summary judgment in that
matter alleging a refusal to bargain is pending before the
Board.
The instant complaint alleges that in the foregoing con-
text, commencing in January 1978. Respondent threatened
employees with economic and other reprisals to discourage
them from joining or assisting the Union. placed employees
il the position of declaring their union preference, and con-
veyed to employees the view that it would be futile to join
or support the Union. It also alleges that on or about
March 29, 1978, Respondent discharged employee Leonard
J. Orrante because of his activities in behalf of the Union.
Finally, it is alleged that thereafter on or about June 6.
1978, Respondent issued written warnings to employees
David Matutte and Ysidro Baca because of their union and
concerted activities and because they attended an unem-
ployment compensation hearing involving a claim by
Orrante seeking benefits from the California Unemploy-
ment Insurance Appeals Board.
B. Intrerference. Restraint, and Coercion
Orrante entered the employ of Respondent on approxi-
mately October 14. 1975, as a roll grab operator and was
promoted to machine operator about 2 years prior to his
discharge on March 29, 1978. He initially was under the
supervision of Assistant Foreman Alfred Gunthner of the
folder department who was promoted to production super-
intendent in approximately January or February 1978. At
or about that time, George Wier, also spelled herein as
Weir, was promoted from assistant supervisor to supervisor
of the folding department which had 12 or 13 employees.
As Orrante testified, and I so find, he commenced his
activities on behalf of the Union in October 1977, after
being solicited to do so by coworker David Matutte of the
same department who held an identical position. Orrante
attended union meetings, spoke with coworkers about the
Union, and for some months openly wore on his shirt a
union button some 2 inches in diameter. Matutte also wore
this button in similar fashion and, according to Orrante.
they were the two most active in behalf of the Union.
Orrante was also an observer on behalf of the Union at the
above-described election.
255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that Respondent held about three meet-
ings with employees during working hours on a depart-
mental basis in the period directly before the election, two
of which were chaired by Operations Manager Jeff Powell.
These were general in nature and apparently of a noncoer-
cive tenor although at one of them Powell compared work-
ing conditions with those of another organized company
which was a competitor. It appears that at another he also
commented on the union button worn by Orrante.
Orrante testified and I find that on or about the after-
noon of January 26, 1978, Powell spoke to him at his work
station as he did individually that day with other operators
in the department. Powell referred to Orrante's impending
two weeks' vacation pay and added that "the Union is not
getting in here, Leonard, and if you don't like it, you had
better find another job that has a Union." Orrante further
testified that Seven Sharer, who operated the adjoining ma-
chine, was several feet distant and close enough to hear this
conversation.'
Sharer, still in the employ of Respondent, entered its em-
ploy in 1975, almost 3 years prior to the instant hearing. He
recalled that Orrante and Matutte wore union buttons as
well as Ysidro Baca who, together with Matutte, received
warnings for attending unemployment compensation hear-
ings, as discussed below. Sharer placed the talk between
Powell and Orrante some 3 weeks or I month before the
election and recalled that he was some 3 or 4 feet distant,
although his adjoining machine is more remote.' It appears
that the duties of Sharer require him to move about the
area, and he was returning from the glue machine. He testi-
fied that he had heard the reference by Powell to vacations.
Powell then stated to Orrante that if "you think that you
are going to get the Union in here you might as well go look
for a different job because you are not going to get it here."
Powell, the son of President Roe Powell who did not tes-
tify, has been operations manager in charge of all manufac-
turing and distribution since June 1977, after prior experi-
ence as an operator in the plant. He was well aware of the
union campaign, that Orrante wore a union button, and
that he later served as a union observer at the election on
February 2. Powell recalled an individual meeting with
Orrante at his work station on or about January 26 and
about I week before the election for the purpose of explain-
ing a 2 weeks' vacation scheduled for July. Orrante then
expressed displeasure, as he had previously, with the work-
ings of the plant.
Powell contended that he told Orrante that Orrante had
been with Respondent for some time and that he would
probably be there "whether the Union got here or not." As
Powell left the scene, he allegedly further stated "I don't
think the Union is going to make it or get in" to which
Orrante pointed his finger at Powell and stated, "Do you
want to bet?" He did not see Sharer at the time and in effect
2 Orrante was questioned herein as to a subsequent affidavit wherein he
deposed that no one else was present, but testified that his recollection was
later refreshed by testimony at an unemployment compensation hearing at
which he sought benefits. According to Sharer, he told Orrante that he had
overheard this talk with Powell about vacation pay and so informed Orrante
on the day it took place.
3In demonstrating the distance at the hearing, Sharer apparently placed
the distance several feet farther.
denied the versions attributed to him by Orrante and
Sharer.
Initially, Powell's alleged version as to Orrante's secure
tenure with Respondent is in effect refuted by the discharge
of Orrante in March. After the incident, photographs made
by Respondent to depict the scene as it then existed do not
do so according to Orrante and Sharer because of changes
in the sizes of goods stationed there.
In view of all the foregoing. I credit the corroborative
testimony of Orrante and Sharer herein. Of significance is
the fact that Sharer is still in the employ of Respondent,
was not the wearer of a union button so far as the record
discloses and there is no evidence of union activities by him
during this period, and Powell's version concedes both the
date and the introduction of the topics by him. Moreover,
the fact that Powell did not see Sharer is explained by Pow-
ell's stance when speaking with Orrante as well as by the
position of the machinery and supplies in the area.
The placing of Sharer by Powell at a greater distance
from Orrante at Sharer's normal basic work station is not
consistent with Sharer performing duties at a closer spot
such as the glue machine. I find that Respondent, in effect,
warned an employee of the likelihood of economic reprisal
against him in the event of union success in the impending
election, this constituting unlawful conduct within the
meaning of Section 8(a)(1) of the Act. See John Dory Boat
Works, Inc., 229 NLRB 844, 848 849 (1977).
Machine operator David Matutte regularly wore a union
button on his shirt for 3 weeks or more prior to the election
held on February 2. He testified that Powell came to his
machine and commenced a discussion about the button,
asking why Matutte was wearing it. Matutte replied that he
did so "Because I like the Union, I want the Union. We
want the Union." Powell then responded that Matutte "had
better take it off' and that Powell would give him another
button. Matutte in turn said that he did not wish to wear
"your button" and that he liked the Union. Powell alleg-
edly said that he would give Matutte a "Universal" button.
There was evidence, and I find, that no such button existed.
Powell denied that he ever told Matutte to take off his
union button or that he would supply a button captioned
with the name of Respondent.
I credit the testimony of Matutte whose union activities
were prominent and who is still in the employ of Respon-
dent. I find that during the organizational campaign and
shortly before the election, Powell asked Matutte why he
was wearing a union button, extracted a response that this
was due to his union support and sympathies, and offered
to provide him with a different proemployer button. That
another button did not exist does not detract from the fore-
going which constituted interrogation concerning his union
activities and in effect forced Matutte to further reveal his
support for the Union, this within the meaning of Section
8(a)(l) of the Act. I so find.
C. Other Alleged Intrerference, Restraint, and Coercion
Prior to the Election
I base no finding adverse to Respondent on vague testi-
mony by Matutte concerning remarks by Powell to the em-
ployees of the folder department I to 3 weeks before the
256
UNIVERSAL PAPER GOODS COMPANY
election. Powell spoke about a contract between Smead, a
competitor, and the Union. Powell made reference to supe-
rior benefits at Respondent and allegedly stated that the
Union was "bad" because the Smead employees "never
have anything when the Union went there because they had
no money, and they fired people, and they had no benefits
at all." Matutte asked to see a copy of the Smead contract
and this was done although Powell refused to give him his
only copy. Powell in turn denied stating that the employees
of Smead had been discharged due to the Union.
The General Counsel also relied upon the testimony of
Robert Rowe, who has driven a tow motor for Respondent
for 4-1/2 years. He recalled attending one meeting con-
ducted by Powell which was attended by employees of the
binder department, although none of the "folder depart-
ment employees were present." Powell, according to Rowe,
adverted to the Smead contract and pointed to the lower
wages paid thereunder. Rowe took particular note of those
paid to the tow motor operators which apparently were also
lower than those paid by Respondent. Powell pointed out
that Respondent could not stay competitive if it granted
raises to its own employees who enjoyed wage rates supe-
rior to those of Smead.
Powell recalled a meeting which Rowe attended when
Powell explained that Respondent had to remain competi-
tive with Smead. its chief competitor. He had the Smead
contract with him and pointed out the latter's wage scales
which were less than those enjoyed by the employees of
Respondent. I see nothing herein violative of Section 8(a)( )
of the Act, base no adverse finding thereon. and recom-
mend dismissal of this allegation.
D. The Discharge of Leonard J. Orrante
There is considerable evidence concerning the work rec-
ord of Orrante. much of which need not be set forth be-
cause Respondent concedes that Orrante was terminated
"for deliberate waste of material" in a particular incident
and that "his, Orrante's, motive became apparent through
his entire course of conduct during the . . . Union cam-
paign." The simple fact is that Orrante would not have
been discharged, on Respondent's case, but for the March
27, 1978 incident.
As found, Orrante, a clear and forthright witness. entered
the employ of Respondent in October 1975, although Re-
spondent's records disclose an earlier hire in the previous
month, and he was discharged March 29, 1978, almost 2-
1/2 years later. He had been a roll grab operator in the
folder department for about 2 years at the time of his dis-
charge, the last 6 months under Wier, and his union activi-
ties have already been set forth.
On March 27, he performed his customary duties. That
afternoon, Wier asked several operators as to the identity of
the employee who had cut some material from a roll of
manila paper and finally ascertained that Orrante had done
so. He pressed Orrante for a reason and the latter re-
sponded that the roll was damaged and as a result the paper
had to be cut and removed.' This particular roll had been
' There is a central hollow core some 8 inches in diameter in each roll with
the paper wrapped around i the roll can weigh as much as 1200 pounds. As
the paper is used. there is a tendency for the roll to zig zag and jam the
machine.
processed by Sharer on the adjacent machine and he in-
formed Orrante of the damage. The latter, with some spare
time on his hands, proceeded to cut the damaged paper
from this roll, known as a butt roll, with the intent of plac-
ing it in a bin of paper to be recycled, as is customary. As
Orrante put it. Wier became incensed and told him not to
repeat this action. Assistant Foreman Mike Cobos then
came on the scene and placed the cut paper in the recycling
bin from which it was subsequently removed and sold.
Orrante worked on March 28 without incident.
At the close of business on March 29. Wier handed him a
form captioned "NOTICE TO EMPLOYEES-CHANGE
IN RELATIONSHIP"; it was signed by Wier and showed
as a reason for discharge "DELIBERATE WASTE OF
MATERIAL." Orrante protested this, stating that he had
merely handled the butt roll in normal fashion when the
exterior portion of the remaining paper around the core has
been damaged. Wier responded that Respondent had held a
management meeting and arrived at this decision. Orrante
received permission to speak with Gunthner and did so.
The latter admitted that he and Powell had attended the
meeting but made no reply to Orrante's query for a reason
why he had not been called in and provided an opportunity
to give his side of the story.
Wier did show Orrante a copy of Respondent's Regula-
tions wherein certain rules were set forth, and providing
that an infraction was grounds for dismissal. One type of
conduct forbidden was "Deliberate waste of material or de-
struction of Universal's property." These rules had been
handed to Orrante at Christmas 1977. this shortly after the
filing of the election petition.
Respondent has made much of the cutting of the dam-
aged roll of manila paper. Orrante testified that he had nev-
er been told by Wier to seek permission to do so. that he
had previously cut such rolls in the presence of Gunthner
and Wier. and that he had never been told he was doing his
job improperly. Indeed, during his training. Gunthner had
shown him how to cut paper and to separate it from the
core which was then placed in the trash. Sharer basically
confirmed Orrante's testimony. He testified, and I find, that
he never received a warning about cutting or wasting paper
from a damaged roll until after Orrante was discharged and
that Gunthner. during his training commencing in August
1975. told him to use his own judgment in cutting a dam-
aged roll of manila paper. Also, he never had known any-
one else to be discharged for waste of materials.
Ysidro Baca, a machine operator since 1974. likewise cor-
roborated the testimony of Orrante, confirming that the
machine operated by the latter was delicate and jammed
easily. Gunthner never told him to seek permission to cut a
roll although he personally had chosen to do so. Since the
discharge of Orrante. he is required to seek such permission.
He had never been warned for cutting paper or to stop
wasting it.
Matutte, with long tenure dating back to 1969, and who
worked on a machine similar to that of Orrante. testified
that he was never warned against cutting damaged paper
from a roll or to seek permission to do so. On his own
initiative, he has ceased this practice after the discharge of
Orrante, although prior thereto he would make such cuts in
the presence of supervisors without reprimand or discipline.
257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He observed a similar work history on the part of Sharer.
Matutte, as well, cut damaged rolls from the machine of
another operator. He did hear Wier berate Orrante on
March 27 for cutting a roll without permission, this again
contrary to past practice. Nothing was said about the possi-
bility of discharge.
Wier, Cobos, Gunthner, and Powell presented volumi-
nous testimony concerning this incident which allegedly led
to the discharge of Orrante, but it does not withstand evalu-
ation. This testimony, all of which has been carefully con-
sidered, basically boils down to a contention that Orrante
was discharged for improperly cutting paper from a butt
roll on March 27, 1978, and much of this has been treated
above.
Respondent has adduced evidence of an increase in work
errors, this resulting in more scrap in March 1978. The sim-
ple answer to this is that there had been a simultaneous
increase in production during this identical period. This in-
crease in scrap is not directly attributed to Orrante rather
than his coworkers. That Respondent exaggerated the os-
tensible loss caused by Orrante's work on this occasion is
refuted by Powell's concession that this loss was "over
$100"; had it been much more, a larger figure would obvi-
ously have been forthcoming. Again, this was allegedly
caused by an employee of over 2-1/2 years' tenure.
The foregoing is highlighted by the fact that all opera-
tors, including Orrante, regularly enjoyed 100 percent in-
centive pay or better. And in .March, a crucial period,
Orrante uncontrovertedly testified that his incentive pay
amounted to 130 percent. This is supported by his further
testimony, again uncontradicted, that in March Powell had
told him that he was one of the two top incentive makers in
the folder department.
As for the alleged impropriety in the cutting of damaged
rolls, roll grabber Rudy Abedoy, still in the employ of Re-
spondent, whose job was to insert and remove the rolls of
paper from the machines, testified how he regularly saw
double top machine operators in the presence of manage-
ment cut these rolls when damaged. This was also the testi-
mony of Matutte, as indicated. As noted, Orrante was not
given and in effect was denied an opportunity to present his
side of the story.
One may appreciate how Respondent, as it stressed, took
several days to reach its decision in view of Orrante's
prominent and known union activities. But this record war-
rants the conclusion that the reason assigned by Respon-
dent for the discharge of Orrante was pretextual. Had his
purported transgression been so serious, it would seem that
quick action would have been taken. And the record well
supports the view that his conduct was but a regular prac-
tice by all company employees similarly engaged.
To sum up, Orrante was the first employee ever dis-
charged because of waste and carrying out a practice en-
gaged in by his coworkers without reprimand. And, as
noted, Respondent's records of waste do not support its
position as to Orrante; indeed, the record demonstrates that
these figures were not prepared until after the discharge of
Orrante. And the discharge followed an expression of ani-
mosity to him by management because of his union adher-
ence shortly prior to the election which was won by the
Union.
Indeed, the Court of Appeals of the Ninth Circuit has
recently upheld a finding of a discriminatory discharge in
related circumstances where, unlike here, there was no di-
rect evidence of knowledge of union activities. N.L.R.B. v.
Warren L. Rose Castings, Inc., d/b/a V & W Castings 587
F.2d 1005 (9th Cir. 1978). 1 find, therefore, in view of all the
foregoing that there is compelling evidence which prepon-
derates that Orrante was discharged because of his union
activities within the meaning of Section 8(a)(3) and (1) of
the Act.5
E. The Warning Notices to Matutte and Baca
At issue herein are warning notices to employees David
Matutte and Ysidro Baca for leaving work to attend and
testify at an unemployment compensation hearing on June
5, 1978, involving Orrante. The General Counsel alleges,
and I find for reasons set forth below, that these were moti-
vated by their engaging in an activity protected by Section
7 of the Act. Baca, an employee since June 1974, had worn
a union button. Organizer John LeFlore of the Union, as
Baca testified and I so find, had previously told Baca that
there would be an unemployment hearing some time in
June in the case of Orrante; no date was specified. On Fri-
day, June 2, Baca returned home from work and found a
subpena in the mail directing him to appear at I p.m. on
Monday, June 5, to testify before the California Unemploy-
ment Insurance Appeals Board in connection with the case
of Orrante. The plant was then closed for the day and was
not operative on June 3.
On June 5, as Baca testified, he reported for work shortly
before his scheduled hour of 7 a.m. He advised Supervisor
Wier that he had to leave at lunch that day. Wier approved
and asked for no reason. Baca duly checked in and worked
until 11:45 when he left to attend the hearing which, in
essence, was attended by all the supervisory employees of
Respondent involved in the Orrante matter. Baca well with-
stood cross-examination as to the events preceding his ap-
pearance at that hearing.
The experience of Matutte who had worn a union button
for some 3 weeks prior to the election was very similar. He
testified, and I find, that he was told by LeFlore that there
would be a hearing in June on the case. Matutte discovered
a subpena in the mail at his home late on the afternoon of
June 2 directing him to appear at the hearing at I p.m. on
Monday, June 5. Indeed, both subpenas stated on their face
that they were picked up on May 30 at a State office, this
consistent with the testimony of LeFlore.
Matutte reported to work at his regular starting time of 7
a.m. on June 5 and 15 or 20 minutes later advised Wier that
he was due to be in court at I p.m. that day. Wier read the
subpena and approved his departure. Later that morning,
as Matutte testified, Wier asked for the subpena so that he
could display it to Personnel Director Sosa. Matutte replied
that, pursuant to instructions by LeFlore, he could show it
to Wier but could not turn it over to him. Wier responded
that this was satisfactory and left the scene. Matutte
worked until he departed from the plant at noon and re-
ported to the State hearing at 1 p.m.
I have not herein given weight to findngs in a (aliifornia Unemployment
Insurance Appeals Board decision involving the discharge of Orrante.
258
UNIVERSAL PAPER GOODS COMPANY
Respondent has contended that the two men violated a
company rule, notwithstanding the fact that Respondent
had granted advance consent to their departure. A com-
pany rule is in evidence providing that anyone unable to
report to work is to notify his supervisor no later than one-
half hour after the start of the scheduled shift, and also
generally provides that one is to give notice "each day you
are or intend to be absent."
Baca admitted that he had been warned previously about
poor attendance and tardiness; these oral warnings obvi-
ously had nothing to do with the instant issue. He also
testified that he had previously given Respondent advance
notice of a traffic court appearance, but, unlike the instant
case, he was aware of the matter prior to the scheduled
date.
Both Baca and Matutte were given written warnings on
June 6 by Wier in the presence of Supervisors Carrillo and
Sosa concerning their absences from work on June 5. These
indicated that this was a first offense. That of Baca stated
that he had been advised on several occasions "including a
documented verbal warning" that Respondent required all
its employees to furnish I-day's advance notice of any nec-
essary absence, except for emergencies, and complained
that the notice had not been given until the morning of
June 5. That of Matutte was quite similar, stating that he
had been notified on several occasions that I-day's advance
notice was to be given in these circumstances; this was news
to Matutte. On June 6, Carrillo also told Matutte, accord-
ing to the latter, that Respondent was giving him a warning
because of his midday departure on June 5.
It may be noted that LeFlore well supported herein the
testimony of the two employees concerning the circum-
stances leading to their appearances at the June 5 hearing,
pointing out that the subpenas were picked up in person on
May 30 at the state office due to the time problem.
Wier placed the request by Baca to leave early at 10 a.m.
on June 5. He admitted that Baca supplied no reason and
that he, Wier, asked for none. Wier also admitted that
Matutte stated on June 5 that he had to attend a hearing.
He was unaware of Matutte receiving any prior instruction
as to furnishing advance notice in connection with an ab-
sence, but contended that such a policy had always existed.
The testimony of Personnel Director Sosa does not assist
Respondent. In addition to what is stated above in the
rules, she contended only that employees are aware that
they are to furnish advance notice of absences if they have
knowledge thereof. While not in the rules, she again con-
tended that this was well known, but there is no evidence to
support this.
I find, under all the circumstances, that Respondent
seized upon this incident for discriminatory considerations
based upon their knowledge of the union activities of these
two employees, as well as its animosity towards Orrante. to
issue warning notices to them. I find that this conduct was
manifestly discriminatory within the meaning of Section
8(a)(3) and coercive within the meaning of Section 8(a)(l)
of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CON(CuSIONS O L.AW
I. Ulniversal Paper Goods Company is an employer
within the meaning of Section 2(2) of the Act.
2. Miscellaneous Warehousemen, Drivers & Helpers.
Local 986, International Brotherhood of Teamsters, Chauf-
feurs. Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. By warning an employee of economic reprisal in the
event of union success in an election and by forcing an
employee to reveal his support for a labor organization,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)( 1 ) of the Act.
4. By discharging Leonard J. Orrante for engaging in
union and concerted activities and by issuing warnings to
employees under subpena for attending and testifying at an
unemployment compensation hearing in behalf of a dis-
charged coworker, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (I) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not otherwise engaged in unfair labor
practices.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I have found that Respon-
dent has violated Section 8(a)(3) and (I) of the Act by dis-
charging Leonard J. Orrante because of his union activities.
I shall, therefore, recommend that Respondent offer him
immediate and full reinstatement to his former position
without prejudice to seniority or other rights and privileges.
See The Chase National Bank of the Ciy of New York. San
Juan, Puerto Rico, Branch, 65 NLRB 827 (1946).
I shall further recommend that Respondent make
Orrante whole for any loss of earnings he may have suffered
as a result of this discrimination against him by payment of
a sum of money equal to that he would normally have
earned from the date of discharge to the date of its offer of
reinstatement, less net earnings, with interest thereon to be
computed in the manner prescribed in 'F W. It'oolworrth
Company, 90 N LRB 289 (1950), and Florida Steel (orpora-
tion, 231 NI.RB 651 (1977); see, generally. Isis Plumbing &
Heating Co.. 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER6
The Respondent, Universal Paper Goods Company. Los
In the event no exceptions are filed as provided b) Sec. 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions, and recommended Order herein shall. as pros ided in Sec. 102 48
of the Rules and Regulations. be adopted bh the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Angeles. California. its officers, agents. successors. and as-
signs, shall:
I. Cease and desist from:
(a) Discouraging membership in. or activity on behalf of
Miscellaneous Warehousemen, Drivers & Helpers, Local
986, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor
organization of its employees. by discriminating in regard
to hire or tenure of employment, or any term or condition
thereof.
(b) Warning employees of economic reprisals in the
event of union success in an election: forcing employees to
reveal their support of a labor organization: issuing warn-
ings to employees under subpena who attend and testify in
behalf of a discharged coworker before another tribunal or
in any other manner interfering with, restraining. or coerc-
ing employees in the exercise of the right to self-organiza-
tion, to join or assist the above named or any other labor
organization, to bargain collectively through representa-
tives of their own choosing or to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual
aid or protection.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Offer to Leonard J. Orrante immediate and full rein-
statement to his former job, or if this job no longer exists, to
a substantially equivalent position, without prejudice to se-
niority or other rights and privileges, and make him whole
for any loss of pay suffered by reason of the discrimination
against him in the manner provided above in the section
entitled "The Remedy."
(b) Physically delete from its records warnings given to
David Matutte and Ysidro Baca for attending and testify-
ing under subpena in behalf of a discharged coworker be-
fore another tribunal.
(c) Preserve and, upon request. make available to the
Board or its agents, or examination and copying. all pay-
roll records. social security payment records. timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Post at its premises at Los Angeles. California. copies
of the attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for Re-
gion 21, after being duly signed by an authorized represent-
ative of Respondent, shall be posted by it immediately upon
receipt thereof. and be maintained by it for 60 consecutive
days thereafter. in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 21. in writ-
ing. within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
260