Viewlex Packaging, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1973

207 N.L.R.B. 773 (N.L.R.B. 1973)

VIEWLEX PACKAGING, INC.
Viewlex Packaging, Inc. and George F. Kurtz. Case
29-CA-3310
December 10, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On July 31, 1973, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief in support of the Administrative Law
Judge's decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The complaint herein alleges, inter alia, and the
Administrative Law Judge concluded, that Respon-
dent violated Section 8(a)(1) of the Act by warning
its employees to refrain from engaging in concerted
activity and by discharging employee Kurtz, the
Charging Party, because he engaged in protected
concerted activity. We find merit in the Respon-
dent's exceptions to those findings.
The facts are fully set forth in the attached
Decision. Briefly, Kurtz was employed by Respon-
dent for several years in several jobs. During the year
preceding his discharge on March 8, 1973, he worked
in the paper cutting department under the supervi-
sion of James Doherty. Kurtz and Doherty had
become social friends, and Doherty had arranged
with Plant Manager Rothberg for Kurtz to transfer
into that department. Rothberg at that time told
Doherty that Kurtz had not given a full performance
as an employee in a previous position.
Several months after Kurtz' transfer to the paper
cutting department Doherty admonished him about
his low production and failure to perform up to his
capability. Thereafter Kurtz' performance improved
but subsequently deteriorated. Around November or
December 1972, Doherty delivered a stern warning
to Kurtz concerning his high absenteeism and low
production. It is clear that Doherty told him his job
was in jeopardy and that Kurtz understood this.
Although Kurtz' production improved and appears
to have remained at an acceptable level after this
I Unless otherwise noted , all dates hereinafter refer to 1973.
773
warning, Doherty continued to believe that Kurtz
was not working up to his level of ability. During
early February 1973 Doherty permitted Kurtz to
absent himself from work for a trip out of the local
area that Kurtz said would require that he miss 2
workdays. Kurtz returned to work after missing 4
workdays without further contact with Doherty.
Because of a • decline in business, it became
necessary for an employee to take a 1-week vacation,
and Doherty, on February 27, 1973,1 asked employee
Kaiser to decide with employees Gallelli and Kurtz
which one of them would volunteer. The three
employees discussed this during lunch that day and
decided to see Plant Manager Rothberg because they
did not like the way Doherty had handled the matter
and did not understand why the fourth employee in
the department had not been included. Kaiser told
Doherty they wanted to see Rothberg, and Doherty
told him to go ahead. They met with Rothberg, who
explained the situation to them, and as a result
Gallelli volunteered to take the week off starting the
next day.
On March 2 Kurtz did not report to work on time.
About 30 minutes after the 8 a.m. reporting time,
Doherty told Kaiser that he understood that he and
Kurtz had gone out drinking the night before and
that if Kaiser could come to work, Kurtz should be
able to do so. Doherty advised Kaiser to call Kurtz
and tell him to come to work. Kaiser made the call,
and Kurtz reported about an hour later.
On Sunday evening, March 4, Kurtz telephoned
Doherty to tell him that he was going to the hospital
with an illness, would not be at work the next day,
and was worried about his job. Doherty told him to
take care of his health first and asked to be kept
informed as to his condition.
On the morning of March 7 Kurtz was released
from the hospital and he tried to telephone Doherty
at the plant. Because Doherty was not there, Kurtz
spoke to Gallelli and asked the latter to tell Doherty
that Kurtz had called and would try to reach him
later but in any event would be at work the next day.
Kurtz then met Gallelli and Kaiser for lunch at a
place located about I mile from the plant. Gallelli
delivered Kurtz' message to Doherty after lunch and
also told him about having had lunch with Kurtz.
The following morning Doherty called the employ-
ees of his department together, with the exception of
Kurtz who had not reported, and informed them of
his decision to discharge Kurtz and his reasons
therefor. These reasons included poor production,
absenteeism, and being a troublemaker. Doherty did
not elaborate on the latter reason but did say that he
hoped Kurtz' termination would bring harmony to
207 NLRB No. 134
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the department. At the hearing in the instant
proceeding, Doherty testified without contradiction
that another employee in the department had
complained to him that he let Kurtz get away with
too much. In addition, Doherty testified that a
significant factor in his decision to discharge Kurtz
was his belief that Kurtz had taken advantage of
their friendship and thereby made Doherty look bad
to his superiors. Only Gallelli, who said that Kurtz
would go to the Labor Board, voiced disagreement
with Doherty's decision. The latter replied that his
decision had nothing to do with any union and that
he thought it was justified. Later that morning Kurtz
came to the plant and Doherty informed him of his
decision to terminate him.
The Administrative Law Judge concluded, as the
General Counsel contended, that Respondent,
through Doherty, discharged Kurtz because of his
participation in protected concerted activity in
February, i.e., the group protest of the way Doherty
handled the forced 1-week vacation, and that a threat
of reprisal for engaging in protected concerted
activity was conveyed by Doherty to the employees
in his department by reason of his discussion with
them concerning his decision to terminate Kurtz. We
do not agree.
The record herein is devoid of any evidence or
indication that the February group protest by
employees Gallelli, Kaiser, and Kurtz was ever
mentioned again by anyone after the day on which it
occurred. When Kaiser told Doherty that the
employees wanted to see Rothberg, he offered no
protest of any sort, and there is no credited evidence
that Doherty gave any appearance of being annoyed
or disturbed by this at any time. There was no
reference to this matter in Doherty's discussion with
the employees of his department concerning his
decision to terminate Kurtz, in his conversation with
Kurtz about the discharge, or in Kurtz' subsequent
conversations with Rothberg. Similarly, there is no
evidence that either of the other two employees
involved in this protest received any indication from
Doherty that he resented their conduct or, indeed,
that he attached any particular significance to it. We
also note that only Kaiser informed Doherty of the
decision to take this matter to Rothberg and there is
no evidence that Kurtz either initiated this decision
or that Doherty was led to believe that he had.
The Administrative Law Judge concluded that
Doherty's testimony concerning Kurtz' having made
him look bad to his superiors had reference to Kurtz'
participation in the protest of the manner in which
Doherty had handled the 1-week forced vacation.
However, Doherty's explanation of his decision to
discharge Kurtz is not inherently implausible or
unsupported by credible evidence, and his testimony
is equally susceptible of interpretation as referring to
Kurtz' taking advantage of his friendship in other
respects. It is quite clear that Kurtz was far from a
model employee in either performance or attendance
and that Doherty had done much to befriend him.
Clearly, too, Doherty had given Kurtz a strong
warning concerning his production and attendance
in November or December 1972, subsequent absenc-
es occurred, and Doherty did not believe Kurtz was
working up to his level of capability. In addition, it is
undisputed that another employee under Doherty's
supervision had complained to him that he let Kurtz
get away with too much. That Kurtz knew his job
was in jeopardy is demonstrated by his calling
Doherty before going to the hospital to inform him
of his illness and express concern about his job. We
also note the absence of any evidence of unfavorable,
disparate treatment to Kurtz. Under these circum-
stances, assuming, arguendo, that Doherty's remark
about Kurtz making him look bad is subject to the
interpretation that the Administrative Law Judge
attached to it, we are unwilling so to interpret it in
the absence of any evidence supporting such an
interpretation or any indication that Doherty was at
all disturbed by either the group protest or Kurtz'
participation in it. In short, there is no evidence of a
nexus between this instance of protected concerted
activity and Kurtz' discharge. Consequently, General
Counsel has not met his burden of proof to show that
the reason Kurtz was discharged was an unlawful
one.
The Administrative Law Judge also concluded that
Doherty conveyed a threat of reprisal for engaging in
protected concerted activity to the employees in his
department by reason of his discussion with them of
his decision to terminate Kurtz. Doherty testified
that the purpose of his discussing this matter with the
employees was to explain his decision so there would
be no misunderstanding about the reasons for it.
None of the participants in this conversation made
any reference to the group protest. We can find no
basis for reasonably concluding that Doherty con-
veyed a threat of reprisal for engaging in protected
concerted activity to these employees either by his
explicit remarks or by reason of his discussion of
Kurtz' termination with them. Accordingly, we find
that Respondent did not violate Section 8(a)(1) of the
Act, and we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
VIEWLEX PACKAGING, INC.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
775
JERRY B. STONE, Administrative Law Judge: This Supervisory Status2
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was tried pursuant to due Sani Rothberg, director of fabrication, and James
notice on June 11 , 1973 , at Brooklyn, New York.
The charge was filed on March 13 , 1973 . The complaint
in this matter was issued on April. 25, 1973. The issues
concern whether Respondent violated ( 1) Section 8(a)(1) of
the Act by warning and directing employees to refrain
from becoming or remaining members of the Union and to
refrain from engaging in protected concerted activity-and
(2) Section 8(a)(3) and (1) of the Act by discharging Kurtz
because of his union or protected concerted activity.
All parties were afforded full opportunity to participate
in the proceeding. A brief has been filed by the General
Counsel and has been considered.' '
Upon the entire record in the case and from my
observation of witnesses , I- hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TIC EMPLOYER
Viewlex Packaging, Inc., the Respondent, is, and has
been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the
State of New York. At all times material herein, Respon-
dent has maintained its principal office and place of
business at Gilpin Avenue, Cardinal Industrial Park, in the
City of Hauppauge, and State of New York, where it is,
and has been at all times material herein, engaged in the
manufacture, sale, and distribution of phonograph album
covers and related products.
During a 1-year period representative of its annual
operations generally, Respondent, in the course and
conduct of its business operations, manufactured, sold, and
distributed at its Hauppauge place of business products
valued in excess of $50,000, of which products valued in
excess of $50,000 were shipped from said place,of business
in interstate commerce directly to States of the United
States other than the State in which it is located.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Graphic Arts International Union, Local 119B, New
York, AFL-CIO, formerly known as New York Paper
Cutters and Bookbinders Union No. 119, International
Brotherhood of Bookbinders & Lithographers & Engrav-
ers, AFL-CIO, is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.'
1 Referred to in this proceeding at times simply as Local 119B or Local
119.
2 The facts are based upon the pleadings and admissions therein. -
Doherty, supervisor, are, and have been at all times
material herein, agents of Respondent, acting on its behalf,
and supervisors thereof within the meaning of Section
2(11) of the Act.
B. The Unfair Labor Practice Issues
The facts relating to the unfair labor practice issues may
be summarized as follows: 3
1. George F. Kurtz was initially employed by the
Respondent in 1968 and worked in the shipping depart-
ment until around September 1971. Thereafter and until
around March 1972, Kurtz worked in the poster depart-
ment; and from around March 1972 until March 8, 1973,
Kurtz worked in the cutting department.
2. The facts relative to' Kurtz' work in the shipping
department and the poster department are not particularly
significant `with respect to the issues in this case. Kurtz had
some type of a personal conflict with another employee or
supervisor in the shipping department, but this had no
bearing upon his transfer from the shipping department to
the poster department. Plant Manager Rothberg's credited
testimony clearly reveals that the Respondent did not
attribute blame to Kurtz for such difficulty. The facts are
clear that Kurtz' transfers out of the shipping department
and poster departments were because business slowed up
in such departments.
3. Kurtz, as indicated, was transferred into the cutting
department around March 1972. Prior to this time, Kurtz
and Doherty, supervisor of the cutting department, and
their families had become social friends. When it was
noticeable that the work was getting slow in the poster
department, Kurtz and Doherty had discussed Kurtz'
transfer into the cutting department and his learning the
cutting trade.
Rothberg, plant manager, testified credibly to the effect
that Respondent's management-employee relations had
been good and on a basically sound, close, and personal
interest basis. Rothberg testified credibly to the effect that
he basically gave great discretion to his supervisors in their
handling of their men and work. Rothberg credibly
testified to the effect that prior to Kurtz' transfer to the
cutting,department that he had discussed with Doherty the
latter's desire to transfer Kurtz into the cutting department
and had told Doherty that Kurtz had not been giving a
100-percent performance as an employee.
4. Kurtz commenced working in the cutting depart-
ment around March 1972. Doherty, trained Kurtz for his
work as a cutter. There is a dispute between the testimony
of Doherty and Kurtz as to the number of discussions that
occurred between Kurtz and Doherty as to Kurtz'
performance.
3 The facts are based upon a composite of the credited aspects of the
testimony of Kurtz, Gallelli, Kaiser, Rothberg, and Doherty, and upon
stipulations.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the totality of the evidence, the logical
consistency thereof, and the demeanor of the witnesses, I
am persuaded that the true picture of the events and
significance of the facts lies between the two versions.
Thus, I am convinced from all the facts that Doherty did
speak to Kurtz on several occasions about production and
absenteeism. The clearly friendly relationship between
Doherty and Kurtz and Doherty's treatment of Kurtz
revealed a tolerant attitude by Doherty toward Kurtz.
Kurtz' demeanor and manner of answering questions
persuade me that his testimony underplayed the incidents.
On the other hand, Doherty's overall testimony and the
inconsistent reasons advanced for Kurtz' discharge per-
suade me that his remarks about Kurtz' performance were
a pretextuous rationalization for such discharge. I find the
facts as set forth following:
Around June or July 1972, Doherty spoke to Kurtz and
told him in effect that he was not performing up to his
capabilities. Kurtz' performance appeared to improve for a
while. In Doherty's opinion, however, Kurtz performance
slipped back later. Around November or December 1972,
Doherty again talked to Kurtz, told him in effect that he
was letting him down, that his absenteeism was bad, and
that he had low production. Doherty told Kurtz in effect
that it was not a question of Kurtz' inability to do the
work, that Kurtz was not putting out, that he didn't want
to have to drop a bomb on a guy (fire him), that the job
was his, that if he wanted it, to just get to work.
Kurtz' job performance picked up, but a month or two
later went down again. Kurtz had an absenteeism problem.
The sum effect of Kurtz' job performance did not reveal
the basis for serious complaint but did reveal, in Doherty's
opinion, that Kurtz was performing below par for his
ability.
I have considered the facts of Kurtz' and other
employees' union activities involving Local 119B and the
timing of such events as compared to Doherty's discussions
with Kurtz in November and December 1972 as regards his
job performance. The union activity, discussed later herein,
occurred in October 1972. The facts clearly reveal that,
excepting for the disputed issues of what occurred in
March 1973, there is only slight evidence of union animus
by Respondent.4 The facts reveal that Supervisor Doherty
indicated to employees that he was not opposed to Local
119B. I am persuaded from all of the facts that the union
activity of Kurtz and others had no bearing upon
Doherty's motivation in speaking to Kurtz about his job
performance in November and December 1972. In
addition to the facts set forth above revealing lack of
significant union animus, Doherty's conduct toward Kurtz
in February 1973 and thereafter reveals that he was not
acting with hostility. Thus, in February 1973, as set forth
later herein, Doherty exhibited an understanding attitude
as to Kurtz' Cleveland trip. And on March 2, 1973, as
regards one instance of Kurtz' lateness or potential
absence from work, Doherty certainly did not reveal
himself as opposed to Kurtz.
5. Around October 1972, Kurtz learned of a union
meeting to be held by Local 119B, told five or six
employees about such meeting , attended one or two union
meetings, and signed a union card.
6. The Employer and Teamsters Local 875 had a
collective-bargaining agreement which expired on January
9, 1973.
7. In late January or early February 1973, Kurtz found
it necessary to move some equipment from Brooklyn, New
York, to Cleveland, Ohio. This movement of equipment
apparently resulted from the previous death of Kurtz'
father and Kurtz' involvement in disposing of his father's
business.
Kurtz spoke to Supervisor Doherty about his planned
trip and the need to take time off. Doherty suggested that it
might be better to have the equipment moved by a
commercial van. Kurtz indicated that it would be substan-
tially cheaper for him to do the moving himself. Kurtz' and
Doherty's discussion envisioned that Doherty would be
away from work only 2 or 3 days. Doherty told Kurtz to
tell anyone, if asked, that he was out with the flu. Kurtz
was away from work for a day or two longer than had been
anticipated in the discussion with Doherty. Kurtz received
sick pay for such days that he was away from work. When
Kurtz returned to work, Doherty did not say anything to
Kurtz about the Cleveland trip. Later, at some unspecified
time , Doherty told Kurtz that he was aware that there was
something "wrong" about the Cleveland trip.
8. Kurtz, Kaiser, Gallelli, and McCort were employed
at Respondent as papercutters. These four employees used
machines in their papercutting described as "guillotine"
cutting machines. These four employees were under the
supervision of Doherty. Respondent also had an old-type
guillotine machine in another area of the plant. The old
guillotine machine was used by an employee named
Aparicio for jacket-cutting . In early February 1973,
Aparicio quit his job. Aparicio was not under the
supervision of Doherty.
Since business was slow, Doherty persuaded other
supervisors and management to let him have Kurtz do the
jacket-cutting on Kurtz' machine. From February 1973 to
the date of his discharge on March 8, 1973, when Kurtz
worked, Kurtz spent approximately 30 of his 40-hour week
on jacket-cutting and approximately 10 hours a week on
paper-cutting.
The slowness of the business was to such a degree that
around the last of February 1973, Respondent decided to
utilize volunteer vacations of I week in duration by some
of the papercutters under Doherty.
Supervisor Doherty spoke to employee Kaiser on
February 27, 1973, and told him that business was slow
and that he was going to have an employee to take a 1-
week vacation, that one of the three, Kaiser, Gallelli, or
Kurtz, would have to take a 1-week vacation, that McCort
was not included among the ones for the "vacation"
because he did layout work, that he thought it fairest if
Kaiser, Gallelli, and Kurtz decided which one of them
would take the 1-week vacation. Doherty told Kaiser that
4 Doherty in his testimony, as to why he spoke to Gallelli and others as ringleader. This reveals that Respondent considered Kurtz as one of the
to why he was discharging Kurtz, alluded to the fact that he was concerned Union's ringleaders. In my opinion, such thought process reveals animus,
as to whether the employees would think he was discharging a union whether acted on or not.
VIEWLEX PACKAGING, INC.
he (Doherty) did not want to make the decision, that it
would be fairer if the three made the decision.5
Kaiser spoke to fellow employees Kurtz and Gallelli at
lunch and told them that Supervisor Doherty had asked
him to tell them about the need for one of them to go on a
vacation. Kaiser's relation to his fellow employees was
substantially in accord with the thrust of what Doherty had
told him. It was not, however, a totally accurate relation of
what Doherty had told him. As in many instances of such
type of communications, Kaiser's relation of what was said
changed slightly. Kaiser told his fellow employees what
Doherty had said about the slowness of business and the
need to have one of the three to take a vacation. Kaiser's
relation of the events or his fellow employees' interpreta-
tion thereof was to the effect that there would be
consecutive 1-week vacations with the employees deciding
who would take the 1-week vacation first and who would
take the vacations on the week following. Kaiser either did
not recall the reason why McCort was not being included
in the vacation plans, did not understand the reasons given
him by Doherty, or, if he related the reasons given him by
Doherty, such was not understood or accepted by Gallelli
and Kurtz.
In the discussion between Kaiser, Kurtz, and Gallelli, the
three indicated to each other that they were not happy with
the way that the "vacation" was being handled. Gallelli
expressed dissatisfaction with the fact that Kurtz, who had
the lowest seniority, had not been selected for the first 1-
week vacation. Gallelli and the other two employees also
did not like the fact that McCort was not being included in
the "vacation" layoff plans. The three employees also
expressed dissatisfaction with the fact that Doherty was
putting the responsibility upon them to make a decision as
to who took the "vacation" layoffs. The three employees
decided that they would see Plant Manager Rothberg
about the problem.
Kaiser saw Supervisor Doherty and told him that the
three employees were going to see Production Manager
Rothberg. Doherty told Kaiser to go ahead to see
Rothberg.6
Kaiser, Gallelli, and Kurtz went to see Plant Manager
Rothberg and discussed the "voluntary" 1-week layoff
problem. The employees asked Rothberg to tell them why
McCort was not included in the plans for a 1-week
vacation layoff and why Doherty had not decided who was
to be laid off. Rothberg's overall testimony and the
testimony of all the witnesses revealed Rothberg to be a
man of tact and diplomacy. Rothberg told the employees
in effect that he did not know why Doherty had handled
the matter as he had but that he left such matters up to his
supervisors, that business was slow and that there had to be
a vacation-type layoff, and that McCort was not included
in such plans because of the type of work that McCort was
doing.
Kurtz volunteered to be the first one to take the week
vacation layoff. However, Gallelli volunteered to take a
5 Doherty's and Kaiser's testimony was substantially similar As to any
difference in their testimonial version of the event, I credit Doherty. Kaiser
as a witness revealed that he had difficulty in understanding some of the
questions. I am persuaded that Doherty's recall is more accurate than that
of Kaiser.
6 Kaiser, Gallelli, Kurtz, and Doherty testified as to the conversation
777
week layoff if he could go the next day. As a result, Gallelli
took a week "vacation" layoff.
9. On March 2, 1973, Kurtz did not report to work on
time. Around 8:30 a.m., Doherty spoke to employee
Kaiser. Doherty told Kaiser that he knew that Kaiser and
Kurtz had gone out drinking the night before, that if
Kaiser could come to work, Kurtz should be able to do so,
that if Kaiser were a friend of Kurtz, he should call him
and tell him to come to work. Kurtz reported to work
about an hour later. Supervisor Doherty did not speak to
Kurtz about his failure to report to work on time.
10. On Sunday, March 4, 1973, Kurtz became ill and
had to go to a hospital. Around 9:30 or 10 p.m., Kurtz and
his wife spoke to Doherty. What occurred is revealed by
the following credited excerpts from Doherty's testimony.
Q. Did you have a phone conversation with the
Kurtz' on Sunday, the 4th?
A. Yes.
Q. What was the nature?
A. I don't know whether it was Buzz or Adrienne
had called me, one of them did, and I believe it was
Adrienne, Mrs. Kurtz, and Mrs. Kurtz called me and
I-she told me that Buzz was very ill, they didn't know
what was wrong with him. They would probably be
going to the hospital.
I told Mrs. Kurtz that can I help, is it necessary, you
know, if you have nobody there, I'll come down. It's
twenty miles between the houses. And help take him to
the hospital.
At this period Buzz got on the phone himself, and I
could tell the man was, you know, in some sort of pain.
He told me that he was very ill, that he didn't need the
help, two friends were coming to take him to the
hospital, but he just wanted to tell me that-what the
circumstances were . He would not be at work in the
morning, and he just didn't know any further at that
point.
I informed him-He told me he was worried about
his fob.
I told him listen, you don't worry about your job at
this point here, you worry about your health, and get to
the hospital as soon as you can.
And that was about it with that conversation.
Doherty later called the hospital to ascertain whether or
not Kurtz was there.
On March 5, 1973, Doherty spoke to Mrs. Kurtz and
inquired about Kurtz. What occurred is revealed by the
following credited excerpts from Doherty's testimony.
Q. Did you next have a-When did you next talk
to one of the Kurtz'?
A. The following morning, Monday, before I went
to work. About eight o'clock. I stopped in at Buzz'
house, he was not home. I saw his wife and I asked her,
between Kaiser and Rothberg. It is not clear whether Gallelh was present
when Kaiser spoke to Doherty There is a slight difference between Kurtz'
version of what Doherty said to Kaiser . I discredit Kurtz' version to the
extent it is inconsistent with the testimony of other witnesses I found Kurtz
to appear to be prone to present his case in the light he considered favorable
to himself.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you know, what was the news, how was he doing. And
she said at that point she had no information, she had
nothing to say.
She hadn't seen him since the previous night and
that was about the end of it, other than my saying, well,
Adrienne, please keep me informed as to what his
condition is, as to when he'd be able to return to work.
She said she certainly would. That was that.
11. Kurtz was discharged from the hospital on the
morning of March 7, 1973. On the morning of March 7,
1973, Kurtz telephoned the plant in an attempt to speak to
Supervisor Doherty. Unable to get Doherty, Kurtz spoke
to Gallelli and asked Gallelli to tell Doherty that he had
called and would try to reach him later but in any event
would be in the next day.
Kurtz met Gallelli and Kaiser at lunchtime at a place
about a mile away from the plant.?
After lunch, Gallelli saw Supervisor Doherty and told
him about having had lunch with Kurtz and about Kurtz'
morning telephone call.
Kurtz did not see or speak to Supervisor Doherty on
March 7, 1973.
12. During the evening of March 7, 1973, Supervisor
Doherty determined that he was going to discharge Kurtz.
The Threat of Reprisal
13. On the morning of March 8, 1973, Kurtz did not
report to work at the normal starting time. Around 8:30
a.m., Supervisor Doherty met with employees Gallelli,
Kaiser, and McCort. Doherty told such employees of his
decision to fire Kurtz. Doherty told the employees that
Kurtz was a troublemaker and that he was firing him so
that there would be harmony. Doherty told the employees
that he was firing Kurtz because of his absenteeism and
low production .8
Gallelli argued with Doherty about the proposed
discharge of Kurtz. Gallelli told Doherty that Kurtz would
go to the Labor Board. Doherty told Gallelli and the others
in effect that he didn't care about the Labor Board or
Union, that he considered that he was justified.
Doherty's testimony as to why he told the employees of
his decision to discharge Kurtz is revealing of the
atmosphere surrounding his remarks. Thus, Doherty
testified that he was concerned as to the employees'
thinking that he was discharging a union ringleader.
Considering all of the foregoing, I am persuaded that
Doherty and the employees knew that his actions toward
Kurtz reflected a changed attitude and that they would
consider that he was engaging in an unjust act. Because of
the close relationship of Doherty and all of the employees,
I am not persuaded that he actually meant to be
threatening the employees with reprisal. Rather, I am
persuaded that he was trying to justify his actions. The
question of whether his remarks constitute an illegal threat
of reprisal depends, however, upon the remarks conveyed.
All of the employees were aware of Doherty's friendly
attitude toward Kurtz prior to the events of the forced
layoff and group protest that had happened several weeks
earlier. Such employees were also aware that the immediate
circumstances of Kurtz' hospitalization did not warrant a
discharge . Accordingly, it is clear that the message to the
employees was clear that Doherty's change of attitude
toward Kurtz was caused by Kurtz' participation in the
group's protest to Manager Rothberg about the way
Doherty had handled the manner of selection of an
employee for the forced 1-week vacation. The message was
clear that Doherty was engaging in a reprisal against Kurtz
because of Kurtz' engaging in protected concerted activity.
This message similarly conveyed that similar reprisals
would come to others who persisted in such protected
concerted activity. Such conduct is violative of Section
8(axl) of the Act. I so conclude and find.
14. On March 8, 1973, as indicated beforehand,
Doherty told employees Gallelli, McCort, and Kaiser that
he was going to discharge Kurtz. Doherty also told Gallelli
that he wished that they would not tell Kurtz until he had
told Kurtz.
Gallelli telephoned Ruggerio of Local 119B and told him
of Doherty's conversation about his plans to discharge
Kurtz. Ruggerio thereafter telephoned Kurtz and told him
what Gallelli had related to him. Kurtz then left home to
go to see Doherty at the plant.
Mrs. Kurtz, who knew of Ruggerio's telephone call,
telephoned Supervisor Doherty at the plant. What tran-
spired during this conversation is revealed by the following
credited excerpts from Mrs. Kurtz's testimony.
Q. Directing your attention to Thursday morning,
March 8th, did you speak with Mr. Doherty on that
morning?
A. No. The eighth, yes. Later in the morning I
called him.
Q. Why did you call Mr. Doherty?
A. Because-I called him because my husband had
received a phone call from Mr. Ruggerio, informing
him that he had been fired. My husband left the house
to go up to see Mr. Doherty, and I called him to find
out what was happening.
Q. Now, I want you to tell us as best you can recall,
exactly what the substance of that conversation was
with Mr. Doherty?
What did you say and what did he say?
A. I asked him what was happening, and why-I
told him-
Let me backtrack a little bit.
That my husband was going up to see him to find
out what was happening.
He asked me why was he coming to see him.
I said, I don't know, that's what I'm trying to find
out. And I asked him how could a Company fire my
husband while he was in the hospital.
And Mr. Doherty said to me, you failed to keep me
informed.
As indicated, after receiving the telephone call from
Ruggerio , Kurtz went to the plant and saw Doherty. What
r The three employees often met at this place for lunch. and Kaiser were more frank, truthful , and forthright witnesses as to this
8 Gallelli and Kaiser credibly testified to the facts as found . Doherty's incident and credit their testimony where in conflict with Doherty's.
testimony was generalized as to what was said. I am persuaded that Gallelli
VIEWLEX PACKAGING, INC.
occurred then is revealed by the following credited excerpts
from Doherty's testimony.
A. He just come over to me and said, hi, what's up.
And I took hire on the side and I told him that, Buzz, I
felt that I have to fire you. I don't mean that the
company told me that I have to fire you, I have to fire
you.
I told him why.
He said to me, he thinks I'm full of whatever, and
I'm just looking for an excuse.
I tried to explain to him, he was a little upset, he
wouldn't hear anything I had to say, after I told him I
fired him.
I says, I'm sure that I can arrange for you to pick up
your money right now in the office, if you want.
He went into the office to see Sani, I presume.
Q. After Kurtz left, was there a layoff in the plant?
A. Well, there was a layoff after, and there was a
layoff before. None of it was surprising to anybody.
Kurtz then went to see Plant Manager Rothberg. What
occurred is revealed by the following credited excerpts
from Kurtz' testimony.
A. I went up to see Mr. Rothberg, and I asked him
why, what the story was, and he said that he would
not-he chose not to go over his supervisor's head. But
that after some time, he said, take a week's pay now,
and see if things cool down, or something like that, and
to call him in a day or so.
*
Q. Did you call Mr. Rothberg the next day?
A. I did.
Q. What did Mr. Rothberg say?
A. He said that he hadn't had a chance to talk with
Jim, but that, I believe he said come in Monday. Or see
me on Monday, excuse me.
Q. Did you go in on Monday?
A. I did.
Q. What happened then? Who did you see?
A. I saw Jim Doherty first. And I said is anything
new? And he said everything's as it was.
Q. What did you do next?
A. I went up to the office and again saw Mr.
Rothberg, who asked me if I'd talked to Jim over the
weekend.
Q. What did you say?
A. I said, no, I hadn't. He said it might have been a
good idea, and I said, well, I didn't want to appear that
I was begging for my job.
On or about March 19, 1973, Kurtz had another
conversation with Rothberg. What occurred is revealed by
the following credited excerpts from Kurtz' testimony.
A. There was a problem with unemployment. They
didn't like the, or the grounds for my leaving the
Company, they said it might be a hang up, or-In other
words, they didn't like-I really I don't know what to
say.
779
Q. What did Mr. Rothberg say to you, and what
did you say to Mr. Rothberg?
A. I said to him there was a question about my
eligibility to get unemployment, seeing that I was fired
or-fired, in that way. He said he would get in touch
with the unemployment and explain the situation to
them. In other words, to release my eligibility for
unemployment.
On March 29, 1973, Mrs. Kurtz spoke to Plant Manager
Rothberg about her husband. What occurred is revealed by
the following credited excerpts from her testimony.
Q. Why did you call Mr. Rothberg?
A. I called him because my husband had come
home the day before and told me that he was not
eligible for unemployment insurance because the
Company had said that he had failed to notify when he
was in the hospital.
So I called Mr. Rothberg to try and straighten this
out, to tell him that I had called, and I had told him
that Buzz was in the hospital.
Q. Now, what did-Did you describe what you
described to me, to Mr. Rothberg?
A. Yes, the events that I just told you.
Q. What did Mr. Rothberg say?
A. He told me he was taking it all down, and that
he would take it from there.
On April 3, 1973, Kurtz received a letter from the
Respondent. Such letter is as follows:
April 3, 1973
Mr. George Kurtz
12 Chestnut Street
Central Islip, N.Y.
Dear Buzz:
As you will remember, the last time I saw you I said
that we would take your case under review. The
pressure of business and having to make some trips
have delayed my responding to you. However we have
made that review and in view of all the factors involved
I have decided to change your discharge to a 2 week
suspension. There is, however another problem, as you
may know we had a lay off in many departments
including the cutting department. As the lowest senior
man in the department, you previously had been
selected for that lay off. But the discharge occurred
before we took action to lay you and the other people
off.
Therefore, while you are now reinstated as an
employee at Viewlex as of the end of the 2 week
suspension, it will have to be in a lay off status for now.
We hope to be recalling you soon. But that of course
depends on our business picking up and the needs of
the cutting department.
I notified the unemployment office about this
situation, telling them that you are now in a lay off
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status, so as to eliminate the problem on that score. If
you want to discuss this with me please call.
Sincerely yours,
/s/ Sani Rothberg
Sani Rothberg
Sometime after April 4, 1973, Kurtz had a telephone
conversation with Rothberg about the letter and when the
suspension started. Kurtz' testimony was to the effect that
he didn't get a definite answer as to when the suspension
started. Rothberg did not testify on this point. Despite this,
I am not persuaded that Kurtz' testimony is reliable to
establish that this conversation has any meaning or bearing
upon the issue. All of the facts would clearly indicate that
the "layoff" would have been from March 8, 1973, and for
2 weeks. I am persuaded that at most there appears to have
been a failure of communication and precise understand-
ing. Perhaps Rothberg did not remember the precise date
of Doherty's discharge of Kurtz on March 8, 1973.
After the discharge of Kurtz on March 8, 1973,
Respondent utilized the services of another employee, who
did not work for Doherty, on Kurtz' machine to do the
jacket-cutting that Kurtz had done. The facts also show
that Respondent had economic reasons for layoffs or
cutbacks.
The General Counsel contends that the Respondent
discharged Kurtz on March 8, 1973, because of his union
or protected concerted activities. The Respondent con-
tends that Doherty became upset because Kurtz did not do
him the courtesy of seeing him (Doherty) on March 8,
1973, but instead saw his fellow employees at a bar, and
that this and Kurtz' poor employment record as to
absenteeism and production constituted the reasons for
Kurtz' discharge. The Respondent argues that Doherty felt
that he had been good to Kurtz and felt betrayed by Kurtz'
failures as indicated.
Doherty asserted a number of reasons for Kurtz'
discharge at the time of his discharge. Doherty also
testified to reasons which were unasserted. It is sufficient to
say that the totality of his asserted reasons do not reveal a
truthful ring or a logical consistency. Thus, Doherty
complained that Kurtz had not kept him advised concern-
ing Kurtz' hospitalization. This is contrary to the facts.
Further, Doherty testified that Kurtz made him look bad
to his superiors because he was taking advantage of
Doherty's friendship. The overall facts convince me that
this had reference to Kurtz' joining in with the group
protest about the I-week vacation layoff and manner
thereof. Further, the overall facts are convincing that
Doherty did not consider Kurtz' production or absentee-
ism a real problem until after said group protest. Thus, I
am persuaded that Kurtz' absenteeism and production
constitute pretextuous reasons .9
Although Doherty's testimony reveals some slight union
animus, the overall facts persuade me that it was Kurtz'
involvement in the group protest and not his union activity
that motivated Doherty in the discharge of Kurtz.
Respondent contends in effect that even if it discrimina-
torily discharged Kurtz on March 8, 1973, it nevertheless
removed the continuing effect of discrimination by
changing the discharge to that of "suspension." The
Respondent asserts that the "suspension" was economical-
ly motivated. I reject these contentions. The overall facts
reveal that Respondent's economic problems preceded the
March 8, 1973, discharge of Kurtz and that, absent such
discriminatory discharge, its economic problem would
have been handled without a "layoff" of Kurtz.
Considering all of the facts and Doherty's asserted
reasons and testimony as to his reasons for the discharge of
Kurtz, I am persuaded that Respondent, by Doherty,
discharged Kurtz because of his participation in protected
concerted activity, a protest of the way Doherty handled
the 1-week vacation layoff in February 1973. Such conduct
is violative of Section 8(a)(1) of the Act. It is so concluded
and found.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent discharged
George F. Kurtz in violation of Section 8(a)(1) of the Act,
the recommended Order will provide that Respondent
offer him reinstatement to his job, and make him whole for
loss of earnings within the meaning and in accord with the
Board's decisions in F. W. Woolworth Company, 90 NLRB
289; Isis Plumbing & Heating Co., 138 NLRB 716, except
as specifically modified by the wording of such recom-
mended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Viewlex Packaging, Inc., the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Graphic Arts International Union, Local 119B,
New York, AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
9 The message that comes through from Doherty and Rothberg, significant problem about Kurtz' job performance.
considering their demeanor and total testimony, is that there was not a