D.V. Copying and Printing, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1979

240 N.L.R.B. 1276 (N.L.R.B. 1979)

1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. V. Copying and Printing, Inc. and Local 1, Amalga-
mated Lithographers of America, ITU, AFLCIO.
Case 2-CA-15177
March 8, 1979
By MEMBERS PENELLO. MURPHY. AND TRUESDALE
On July 3, 1978, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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
conclusions 2 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 Respondent, D. V. Copying and
Printing, Inc., New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondent has excepted to certain credibility findings made b the
Administrative Law Judge. It is the Board's established policy not to over-
rule 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 Drs 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.
2 Respondent offered five reasons why alleged discriminatee Hector
Adorno should not be entitled to reinstatement, two of which were that
Adorno suborned perjury by employee witness Limato and that he also
suborned perjury by employee Limato under the threat that "heads would
be rolling." While the Administrative Law Judge concluded in that portion
of his Decision entitled "The Remedy" that subornation of perjury in itself
is insufficient to deprive a discriminatee of the remedial rights afforded by
the Act, he further concluded that suborning perjury under the threat of
violence was sufficiently egregious to warrant the tolling of a discriminatee's
make-whole rights as of the time of the threat. Accordingly. he ordered that
Adorno be compensated for any loss of wages he might have suffered but
limited to the period of the date of his discharge to the date of the threat;
the Administrative Law Judge further found that Adorno had thereby for-
feited his right to reinstatement. While we agree with the Administrative
Law Judge's conclusion that Adorno by his conduct forfeited a portion of
his remedial rights, we find that the act of subornation of perjury alone
constitutes deliberate and malicious conduct so calculated to abuse and
undermine Board processes that the presence of an accompanying threat is
unnecessary to toll the discriminatee's right as of the time of such conduct.
Cf. Iowa Beef Packers. In(., 144 NLRB 615, 622 (1963). where the Board
discussed this standard as it applied to perjure itself. As the dates relevant to
the Administrative Law Judge's finding and our own are identical, we shall
adopt his recommended remedy n its entirety.
240 NLRB No. 177
DECISION
BERNARD RIES, Administrative Law Judge: This matter
was heard in New York, New York, on 6 days in March
and April 1978. At issue is whether Respondent D. V.
Copying and Printing, Inc., violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended,
and the appropriate remedial relief for the violations al-
leged. Briefs from the parties were received on or about
May 23.
On the basis of the record,' my observation of the de-
meanor of the witnesses, and the briefs, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, engages in the
business of providing printing services at its principal place
of business in New York City. The complaint alleges, and
the answer admits, that Respondent generates business of a
kind and in amounts which satisfy the Board's jurisdic-
tional standards and that Respondent is an employer en-
gaged in commerce within the meaning of the Act. I so
find.
II. STATUS OF THE LABOR ORGANIZATION
The answer to the complaint concedes, and I conclude,
that Local 1, Amalgamated Lithographers of America,
ITU, AFL-CIO, herein called the Union, is a labor organi-
zation within the meaning of the Act.
Ill. THE ALLEGED 8(aX3) VIOLATIONS IN SEPTEMBER 1977
The original complaint charged that Respondent termi-
nated four employees on September 27 and 28 because
they "joined and assisted Local I." Counsel for General
Counsel learned only at the hearing that two other employ-
ees had also been terminated at the same time, and
promptly amended the complaint to allege that the release
of these employees was also violative of the Act in that it
was designed to camouflage the ulterior motive behind the
termination of the first four employees.
Respondent's printing shop has been in business for
some 3-1/2 years. It is owned and operated by the O'Con-
nor family. Kevin O'Connor, "manager" of Respondent,
owns one-third of the stock and devotes himself primarily
to general administration and sales; James ("Jimmy")
O'Connor, Kevin's brother, is also a one-third owner and
tends to production; their father, John, owns the final third
and "takes care of the salesmen." The shop is organized
along traditional lines, having, it would appear, an art de-
partment, a bindery, a typesetting department (all of
which, together with the general offices, are located on the
Errors In the transcript have been noted and corrected.
D. V. COPYING AND PRINTING, INC. 1277
12th floor of the building in which Respondent is located).
a stripping area, and black and white and color press de-
partments. (In February 1977, the black and white depart-
ment was relocated from the 12th floor to a room nearby
the color department on the 11th floor.)
Altogether, Respondent employs roughly 25 workers, a
figure which fluctuates with the needs of the business. We
are particularly concerned here with the black and white
and color lithography employees on the 11 th floor. In June
1977, Richard DeMonico, a color pressman, became inter-
ested in representation by the Union and spoke to other
lithographic employees on the subject. He asked Hector
Adorno, who is claimed by Respondent to be a statutory
supervisor, if he would be interested in joining the Union
and also asked him to sound out the workers in the black
and white room, where Adorno worked with five other em-
ployees.
After these conversations, DeMonico made contact with
Sal Diglio, a union representative and, with Adorno and
four other employees, met with Diglio at the union hall in
July. Diglio handed out literature and authorization cards,
which were later signed and mailed back to him by the
employees. In August, DeMonico and Adorno took three
more employees to the hall, where they signed cards.
By September, Diglio had accumulated 10 cards from
Respondent's lithographic employees. On Monday morn-
ing, September 26, Diglio sent a Western Union mailgram
to Respondent, demanding recognition in a unit of "litho-
graphic production employees." At the close of business on
September 27, Respondent laid off DeMonico and card
signers Christopher Carson and Alan Cooper and, in the
early morning of September 28, terminated Adorno, who
had been absent from work on the preceding day. In addi-
tion, as General Counsel learned at the hearing, a typeset-
ting employee and a bindery employee, neither of whom
had been involved in the organizational drive, were also
terminated on or about September 27.2 I conclude that the
terminations were violative of the Act for the reasons given
below.
The record contains no indisputable objective evidence
(other than alleged admissions by Kevin O'Connor, hereaf-
ter discussed) that Respondent was aware, on September
27, of the organizing campaign. Still, the posting of the
mailgram on September 26, which, Diglio had been told,
was guaranteed to be delivered the following day, obvious-
ly led General Counsel, with good cause, to suspect a con-
nection between that act and the precipitate and unprece-
dented personnel actions of September 27 and 28. Kevin
O'Connor, called by General Counsel as an adverse wit-
ness, testified, however, that he did not receive the mail-
gram until the morning of September 28, after the employ-
ees had been terminated.
Obviously anticipating that stance, General Counsel im-
mediately presented testimony by a Western Union repre-
sentative attesting to the strong probability that a mail-
gram sent in the morning of September 26 would reach its
2 Kevin O'Connor also gave some sketchy testimony that he further n-
tended to lay off another binder) employee on September 27. but refrained
from doing so upon discovering that day that one of the hinder) emplo)ees
intended to resign.
destination by September 27. On cross-examination of that
witness, however, Respondent's counsel uncorked a sur-
prise-that the mailgram was addressed to Respondent
with an improper Manhattan ZIP code number 10010 in-
stead of the correct 10017.
Subsequently, General Counsel regained much circum-
stantial ground by presenting testimony of three responsi-
ble and impressive postal service employees. They de-
scribed the checks made on mailgrams received in the
Grand Central Station Post Office for such mistakes as
erroneous ZIP codes and the processing which would be
done in the highly unlikely event that the mailgram in
question had managed to leave that station uncorrected
and inadvertently been distributed to the Madison Square
station, which handles ZIP code 10010. Their testimony
points to a conclusion, although obviously not a certainty,
that despite the ZIP code error, the mailgram in all likeli-
hood arrived at Respondent's offices, at the very latest, on
the morning of September 27.
This evidence makes dubious the position taken by Kev-
in O'Connor that he did not learn of the union effort until
September 28, after he had terminated the employees. An
aspect of this issue which seems even more telling, how-
ever, and which occurs in another crucial portion of the
case as well, is the failure of Respondent to produce appar-
ently available corroboration for Kevin O'Connor's claim.
Kevin testified in some detail about having received the
mailgram on his birthday, September 28, and about a con-
versation with his father upon its receipt. There can be
little doubt that he also discussed the demand with brother
John and also with Charles Girardin, the only other clear-
cut supervisor in the shop. Yet neither father nor brother
nor Girardin was called in an attempt to confirm Kevin's
testimony that the mailgram was received only after the
terminations were effected. In a case where Respondent
went to some lengths-calling two nonemployee witness-
es-to corroborate Kevin on a relatively minor explanation
about having failed to recall one of the discriminatees be-
cause he had heard that the employee had taken another
job, the contrasting failure to summon additional, presum-
ably available, witnesses about the hotly contested and ba-
sic matter of the time of receipt of the mailgram speaks
volumes.
Thus, the evidentiary context here does more, in my
view, than simply indicate the probability that Respondent
received the mailgram by September 27; it also gives rise to
a sound inference that Kevin O'Connor was not being
truthful, and from this attempt at fabrication flows a ra-
tional belief that he was acting from illicit motives in termi-
nating the employees.
In general, I might add, Kevin did not appear to be a
reliable witness, although there was one burst of damning
candor in his testimony. An example of his untrustworthi-
ness, apart from several clear instances of inconsistency,
was his persistent effort to disguise his source of the term
"effectively recommend," which he used in describing the
duties of a supervisor. This stubbornness became progres-
sively sillier as he noted that he was not a stranger to the
law, having, inter alia, been involved in a divorce proceed-
ing.
There was, however, a rather dramatic moment in which
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel for the General Counsel wheedled Kevin into con-
ceding that he had stated to some employees, around
Thanksgiving, that he would not rehire DeMonico, and
into admitting the reason he would not do so:
Q. And you really would not have hired him back
because he was the one who brought that thing that
shocked you on your birthday into your life. Isn't that
correct, in part, just in part. Wouldn't that be fair to
say?
A. Yes.
O'Connor's concession appears to contradict his statement
in an earlier appearance that he would take DeMonico
back "[ilf I had an opening, yes." I am not qualified to
evaluate the forces which led O'Connor to make the quot-
ed admission, although I suspect it had something to do
with the chemistry between him and counsel for the Gener-
al Counsel, operating on a defiant attitude proceeding
from what O'Connor's accountant referred to at the hear-
ing as "a bit of an ego thing."
I cannot view this one frank admission as a guarantee
that Kevin was being otherwise truthful. and, in fact, it
seems to establish a point which he generally attempted to
deny--knowledge of the identity of those involved in the
union effort. While General Counsel did not specifically so
assert at the hearing, the logic of the presentation made by
the government subsumes a theory that the layoffs were
not simply a blind retaliation against the employees
spawned by receipt of the mailgram, but rather a discrimi-
nating selection of certain employees who had participated
in the unionization.' The uniform testimony of General
Counsel's witness was that they believed that, prior to Sep-
tember 27, they had successfully concealed their activities
from Respondent. Yet Kevin's admission that, as of
Thanksgiving, he would not have rehired DeMonico "be-
cause he was the one who brought that thing that shocked
you on your birthday into your life" plainly suggests that.
at least by then, Kevin was aware of the instigators, and
there is no evidence as to how that knowledge was gained
or which indicates that it was only gained after September
27. 4 There is, moreover, direct testimonial evidence of both
knowledge and motive.
Christopher Carson, an alleged victim of discrimination,
testified that he was recalled to work by Respondent on
November 7. On the next day, Carson testified, he spoke to
Kevin:
Q. Do you recall the following day having a con-
versation with Mr. O'Connor concerning your BC/BS
insurance?
A. Yes, because I went up there to ask Kevin about
roughly how to get off unemployment. And I asked
him if he would take over my BC/BS again. And he
said, there would be no problem. So Kevin was just
Ihus. there was much testimony to the fact that D>eMonico. Adorno.
(arson. and Cooper normally lunched together
4 The Board has often held that emploer knowledge of organiza;linal
activities can be established b resort to circumstantial eidence," such as
timing. shifting explanations, etc.. and in the abhsence of an3 direct proof ,of
such knowledge. U.S XSi/ (;ol(itilni, ( pilnl. 235 NRB 762. 74
( 1978).
talking to me about business again and he said he'd let
me know about the whole situation. I was just listen-
ing to what he was saying to me. And he was saying to
me, the only reason I laid you off is because you hung
out with those guys and I knew they were the trouble-
makers and I know you're a nice guy, and it's just that
you hung around with a bad crew. I just stood there
and we were going on-and he said it was because of
union business, I laid you off. I don't know if that
slipped out, but he just let me know that. And he said
Richie DeMonico is a troublemaker. And he figured
that Richie DeMonico was in charge of organizing the
union. And also he said that Hector-he doesn't really
know too much, he's just in to getting money and ev-
erything. And he told me that basically the worst thing
about the whole situation is the fact that you guys
didn't come up to me and let me know-he said, I
treat you guys like a family. All you had to do was just
mention it to me. And he was trying to figure out who
was on whose side. And basically it had to stem from
the black and white department. Figuring that the
color department was all on his side.
Q. Did he mention anything about taking back
Richard DeMonico or Hector Adorno?
A. No, sir. He said there was no way he was going
to take these two guys back. Basically, the NLRB or
any government agency wasn't going to tell him what
to do, who to hire, and who to fire in his shop-be-
cause it was nobody's business but himself.
Q. What else did he say about the union?
A. He was saying that if the union did come in-he
was telling me that you guys would have your vote
and everything and if there was some chance that he
loses and the workers win, that he'd have to go along
with it. If they won, he'd move to New Jersey or Conn.
where everything was cheaper but he basically said
that if it did come down to that, that he'd just keep
Nick Villanueva who was my supervisor and lead
pressman, keep him-and that he'd let all of us loose
and keep on going to Xerox 9200's, which were like
quick copy ....
Q. Did he mention how much a union would cost
him?
A. Yes, he roughly told me that basically one man's
salary would seat [sic] up all his profits, due to the fact
that it's a small shop.
This sort of testimony should, of course, be viewed with
some skepticism. In the present case, however, there is rea-
son to credit it. First, although the general tenor of Kevin's
testimony was to the contrary, he never denied Carson's
testimony about this conversation; while such admissions
might seem improbable in other settings, they are not so
unlikely here, given the concession made by O'Connor at
the hearing itself, as discussed above. Second, Carson was
a brash, poised witness, who gave the quoted testimony
quite spontaneously. Third, Nick Villanueva, a witness
who was proffered by Respondent as a supervisor, admit-
ted on cross-examination that at an employee meeting held
shortly before Thanksgiving, Kevin had said he would not
recall DeMonico and Adorno and referred to them as
D. V. COPYING AND PRINTING. INC. 1279
"troublemakers." Given these circumstances, I do not see
how I can disregard the credibly uttered and uncontroverted
testimony of Carson.
Other factors support the claim of knowledge and un-
lawful motivation, not the least of which are defects in
Respondent's account of why and how it was decided that
six employees should be let go on September 27.
Kevin testified that the need to lower operating costs,
due to a persistent shortage of working capital. led Respon-
dent to conclude, over the weekend of September 24-25.
that there should be a reduction in force. The decision was
made, he said, in conjunction with his father and brother,
in weekend conferences at the father's home, and it was
agreed that the layoffs should be effected at the end of the
day on September 27, the final day of Respondent's pay
week.5 The significance of this testimony is evident, since it
puts the decision at a time predating the likely receipt of
the demand for recognition. As with the case of the issue
over when the mailgram was received, Respondent's failure
to call for the obviously important testimony of John and
James O'Connor to support that given by Kevin about the
weekend conference necessarily leaves the impression that
they would not have been helpful or that Respondent did
not wish to run the risk of ensnaring them in the tangled
web often woven when deceit is practiced. Their very no-
ticeable absence can scarcely be overlooked.
The economic defense advanced by Kevin and Arnold
Kaufman, Respondent's accountant, was nebulous and
suspect. Kaufman, probably a basically honest individual,
who was, however, plainly sympathetic to Respondent. tes-
tified that since at least the spring of 1977, he had been
urging Kevin, in their monthly meetings, to reduce the
working force in order to increase working capital; that in
the summer months he had "ranted and raved" on the sub-
ject; and that when he turned to the matter again in their
September 6 meeting. Kevin at first offered resistance to
the idea, but finally agreed that he would have to "bite the
bullet" and discharge enough employees to reduce over-
head by $2,000 a week.
But whether or not Kevin expressed that kind of com-
mitment to Kaufman on September 6, the record shows
that he had steadily ignored any such efforts by Kaufman
toward this end in the past. Thus, even though Kaufman
assertedly had been exhorting some reduction in comple-
ment since at least May 6,6 Respondent, between July 7
and August 29, had hired a net four additional bindery
workers and, on August 18 and 25, had hired two new
pressmen, apparently to handle an upsurge in business
caused by Respondent's decision to attempt to increase
This ohective fact that the terminatlons coincided with the end of the
pay period is supportive of Respondent's claim that the layoffs were the
product of a normal economic decision. The weight of the contrar e-
dence. however. convinces me that it was simpls coincidental Moreover.
O'Connor's testimony that a decision was made not to notif? the employees
until just before the layoffs so that hen would not slack off conflicts with
Carson's uncontradicted assertion that. on a previous laxyoff. he had been
given 2 days' notice.
Kaufman testified that he began urging a personnel cut amounting to
S1,000 a week no later than Max. and then. probah, starting in Jul. had
been pressing for layoff of enough emploxees to account for S2.(K)0 or more.
But O'('onnor only said that. prior to September, Kaufman "at other trnies
had said well masbe s.ou should las off one or two people'"
sales b enlarging its wholesale trade business.
Further, although Kaufman apparently gave credence to
Kevin's September 6 commitment to "bite the bullet." the
fact is that on that very day. Respondent hired a typeset-
ting employee: 2 days later, on September 8, hired still
another binders worker: and on September 14. took on a
new pasteup employee. The evidence thus indicates no in-
clination on Kevin's part to "bite the bullet" after Septem-
ber 6-indeed, it shows a contrary tendency which persist-
ed until September 27, when Respondent. concurrently
with receipt of the union demand, eliminated six employ-
ees, perhaps one-quarter of its work force, a layoff of pro-
portions unprecedented in its history.
In this same area, the evidence further shows a quick
resurgence of employment, running against the claim that
Respondent had. on September 27, effected a basic deci-
sion to cut back on its growth by trimming its operation.
According to O'Connor, one Frank Reilly, who had alleg-
edly been working part time in the lithographic department
since early September (a claim I reject below). was made a
full-time black and white department employee within a
"few days" after September 27. Less than I month later, on
October 25, Cooper was returned to work, and 2 weeks
thereafter, so was Carson. Kevin conceded that perhaps
around October 20, he placed a newspaper advertisement
seeking pressmen for the black and white area.
Moreover, quite by accident, Respondent's witness Vil-
lanueva revealed on cross-examination that, beginning as
early as September and continuing thereafter, employees
from another company were working in the black and
white department at night and on Saturdays. While Villan-
ueva was hazy on the subject, it appears that two or more
employees of Conde Nast Company would work "[e]very
other day, I guess" and also on Saturdays. performing
presswork, and they apparently were not recorded on Re-
spondent's books as employees. Respondent made no ef-
fort to deny or explain this embarrassing revelation, and it
can only be sensibly understood to mean that this fully
anticipated workload was not in fact diminished substan-
tially after September 27.8
[)elnicoll ei t stified cred hl aid bl d thout contradictlrln that. on the
moniirig of September 27, (lharle (irardirn told him tha i"all hell was going
to bre;k loo,e in Nosember' because Respondent hd just signed 3
$4(X).tX) contract. and also had a lot of jobs out on blueprints.
O'( nnor gave sone curious testlmons about what he said to Adorno
when the latter asked, on September 28 wh (Carsotn and Cooper had been
released "I explained to hir that Chris [('arson] run the job with the ow
,pot in the blanket. that e haid lst our ork from the Goxernment Print-
inc Office ind hat bec.ause of this. there was no longer a need dow nstairs.
we were in financial shape bad straits, we couldn't take hese bounces hack
and forth." I he thrust of this tetimomu runs counter to the claim thaii the
laoffs were simrpl .a1 oluntlar atenript to reduce perating costs. I is
further it odds with O'('onnor's other estimons that he and his father had
been told hb a representlaiie of the (Goerinmell Prinming Office on Septem-
her 21 that to jobs Respondent had performed for that agenct were being
"hounced" for defects, and "e would no longer get an calls from the
(ilosernment Priniing ()ffice until Ihese tii jobs had either been corrected
or we could prove that sonieh,w we were IrIlls it) ltlit out better v.,ork
Suhbsequenll. he said Respondent wais iold that "Iuntl the to joh,l were
fixed, he would gisve us no bidding rights, no work ai all." 1 he parties later
stipulated. ho, eser. that olni a arning of loss of work Wa., given that
representa;ise of (;P() vould testifs that he had aid snpl> that "if here
was ore w,rk lihke that. hes ould he taken off the bidders' list." his
tondllcllal Ihrtl to- ()'('olnor i a far cr'. fryo fi his a>erntll to Adorno that
( 'lntllnued
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other indications of unlawful intent abound. Although
DeMonico had been employed only since March 1976, he
ranked second in seniority in the color department. 9 Even
giving Respondent the benefit of the doubt that, of the two
Miehle 29 press operators, Ernie Girardin would be a bet-
ter choice to retain than DeMonico, on the assumption
that 29 presswork would be reduced or was not available,
there appears to be no good reason to select out DeMoni-
co, a pressman for 16 years, over employees with less se-
niority, where there is every indication that DeMonico
could perform the other work. According to Kevin's initial
testimony, Carson and Cooper, while acceptable employ-
ees, were relatively the worst producers.' ° Carson was sec-
ond in seniority to Adorno in the black and white area,
having been employed since September 1975, but, at the
time of layoff, had only worked as a pressman (having first
been a messenger) for 10 months or a year. But he and
Cooper (hired in November 1976) were substantially senior
to Jose Lopez and Farrell Dolan, black and white press-
men who had been hired only on, respectively, August 18
and 25.
In this regard, worth reviewing is the dizzily shifting tes-
timony of O'Connor as to his selection process. He first
said that DeMonico was chosen because the amount of
color work on the 29 press had decreased and one 29 oper-
ator had to be dispensed with, and Carson and Cooper
because they were the worst of the black and white press
operators. He then agreed that marital status of the em-
ployees played a part; Carson was single, but O'Connor
knew that Cooper had a dependent. Asked, however,
whether the seniority of Carson and Cooper were "taken
into consideration," he replied that it was not. But a few
minutes later, asked whether "their relative length of stay
with you [was] one of the things that you might have
looked at," O'Connor said, "Yes, to a certain extent." Two
weeks later, recalled to the witness stand, O'Connor was
asked if "to some extent, you took their seniority into con-
sideration," and responded, "No, not really." The General
Counsel then read to O'Connor his prior testimony to the
contrary effect, after which O'Connor stated, "Yes, I would
say it was a consideration." His remarkable flexibility in
this area, as in others, added to the conviction that the
explanations being offered were insubstantial. In addition,
his testimony that DeMonico was laid off because there
was not "enough work" for even one 29 press operator
contrasts with the whole thrust of his other testimony, and
that of Kaufman, that the layoffs were a deliberate curtail-
ment of business and employees.
There is more. Angie Gerena, a card signer who works in
the stripping room, testified that on September 28, while
speaking with Cush and Loccicero outside the stripping
room, she was told by Supervisor Charles Girardin to go to
work. She did, but then left the room. She was again called
in by Girardin, who said:
"we had lost our work from the Government Printing Office and that be-
cause of this, there was no longer a need downstairs."
9The order of seniority was Supervisor Charles Girardin, DeMonico. Er-
nie Girardin, Sr.. Ernie Girardin, Jr.. Eddie Cush. and Tony Loccicero
10 Carson and Cooper had both been laid off in the past and then re-
called.
I don't know what the fuck is going on around here,
but I know there is something .... If you don't want
the same thing to happen to you what happened to
Rich and Hector, then stop.
Gerena often drove to work with Girardin, a good "friend"
of her family. Subsequent to September 28, Girardin asked
Gerena questions while commuting: "Has Richie [DeMon-
icol-have you heard anything from Rich?" "Had he told
you anything about the union?" Once when she replied
that there was to be a meeting, he asked when it would be.
At another time, speaking of Adorno and DeMonico, Gir-
ardin said, "These guys think they're going to come back to
work. But they're not. And if they are, they'll get back
out." Still later, at a lunch conversation, Girardin said he
knew Gerena and certain others had signed cards, asking
her at the same time to confirm that she had done so; said
that "Richie and the guys probably don't really know what
they're getting into"; and, on this and other occasions, said
that "Richie and these guys" were "troublemakers." Girar-
din did not testify. Gerena was an obviously apprehensive
witness,' but I felt that she was telling the truth.
Respondent's brief attempts to turn Gerena's testimony
to its advantage, arguing that Girardin's protestation that
"I don't know what the fuck is going on around here,"
indicates a lack of knowledge of union activity on Respon-
dent's part. That is a possible reading. But it seems to me
that Girardin was in fact being coy, while at the same time
attempting to intimate further reprisals for further collec-
tive activity. Since the statement was made on September
28, after Respondent admits it received the mailgram, Gir-
ardin was obviously disingenuous in saying that he did not
know what was "going on around here"; but by making it
clear that he knew "there is something," and by threaten-
ing that persisting in that "something" would lead to the
same fate that "happened to Rich and Hector" (the first of
whom, according to Respondent, was simply laid off, and
the second of whom, as Respondent argues, see infra, quit),
it seems to me that Girardin was in fact disclosing the
motive for the termination of the two employees.
The evidence further shows a strongly entrenched fear of
unions on the part of O'Connor, revealed not only in the
conversations here discussed which fell within the jurisdic-
tional period, but in comments predating it. DeMonico tes-
tified without controversion that around 1975, while em-
ployed by another firm located in Respondent's office
building, Ernie Girardin (then a fellow employee of De-
Monico's with the other employer) said to O'Connor that
he understood that O'Connor's shop "wanted to go union."
O'Connor replied that "that's something that will never
happen, they'll close it up or move to Connecticut." Carson
also gave uncontradicted testimony that, around the spring
of 1976, in a conversation about the business, O'Connor
stated that "there was no way that the union could come
into this shop" because it was "too expensive." Other simi-
lar remarks, discussed below, provide a reasonable basis
for inferring that the imminence of organization might well
have impelled O'Connor to precipitate action.
1l Gerena testified that. on the morning of her appearance at the hearing,
Girardin told her that "if the) ask you something about me, don't say
nothing."
D. V. COPYING AND PRINTING, INC. 1281
The case of Hector Adorno requires special treatment,
since Respondent asserts not only that Adorno voluntarily
quit on September 28, but also that he was a "supervisor"
within the meaning of the Act and therefore exempt from
the statute's protection. In addition, the status of Adorno is
claimed to reflect on the validity of cards signed by certain
employees encouraged by him to join the Union, and the
manner of his discharge is relevant to the basic question as
to Respondent's underlying motives for the personnel ac-
tions of September 27 and 28, both as to Adorno and the
other laid-off employees.
Adorno began to work full time for Respondent in the
black and white department about 2 years prior to Septem-
ber 1977. Around February 1977, just about the time that
department moved to the 11th floor, Adorno received a
$30 raise, from $195 per week to $225. It seems likely that
this raise was intended to compensate for an increase in
Adorno's responsibilities in the department. Whether such
augmented authority rendered him a statutory supervisor
was the subject of much litigations2
The question is not a simple one, because none of the
primary witnesses on the subject was reliable. I refer here
to Adorno himself, an evidently untrustworthy witness;
O'Connor, whose drawbacks have been discussed; Suzan-
ne Limato, an employee whose essential credibility, as a
witness for Respondent, was far superior to Adorno's, but
who appeared to exaggerate, probably the result of justified
hostility to Adorno for a reason hereafter discussed: and
Nicasio Villanueva, who succeeded to Adorno's position,
who appeared for Respondent, and who admittedly had
not wanted to testify for General Counsel because he felt it
would '"jeopardize [his] job." The burden, however, of es-
tablishing that Adorno was a supervisor rests on Respon-
dent, and my impression of the evidence, looking especially
to concessions made by Limato and Villanueva, is that it
does not preponderate in favor of a finding of supervisory
status.
The black and white department consisted, in September
1977, of six employees, including Adorno. Across a hall-
way was the color department, where Charles Girardin, a
conceded supervisor (and the only other possible supervis-
or aside from the O'Connors), worked. Unlike Girardin,
Adorno punched a timeclock, as did the rank-and-file em-
ployees, four times a day. Adorno was paid for overtime
work; Girardin received a straight salary. It seems likely
that the wage increase given Adorno in February 1977 was
intended to acknowledge an increase in his stature, placing
him, in effect, "in charge" of the black and white depart-
ment, but it would also appear that no real authority was
vested in him."
' Sec. 2(1 I) of the Act states:
The term "supervisor" means any individual having aulhority. In the
interest of the employer, to hire, transfer, suspend. lay off, recall, pro-
mote, discharge. assign, reward. or discipline other employees. or re-
sponsiblv to direct them, or to adjust their grievances. or effectively to
recommend such action, if in connection with the foregoing the exer-
cise of such authority s not of a merely routine or clerical nature. but
requires the use of independent judgment
t What title he held, if an,. is questiinahle e ndicated on his authori-
zation card that he was a "working superslsor.' A personnel record com-
pleted bh Respondent after the complaint issued classified him as "BW
How Adorno spent an average day between February
and September 1977 is in serious dispute. He operated a
press part of the time; the estimates range from
Villanueva's 20 percent to O'Connor's 35-40 percent to
Carson's 50 percent to Cooper's 75 percent. He performed
other production functions as well, such as occasionally
operating the Itek camera, assembling completed jobs, as-
sisting less experienced employees with problems, checking
the quality of completed plates before they were used for
printing, and the like. Limato testified that, beginning
around April, Adorno began to disregard his duties entire-
ly. "He was playing poker. He was shooting dice. He was
drinking. He was carousing around. He was going off the
premises. He was sitting down on his behind." Carson
conceded that there was some gambling but only when
business was slow, and I tend to think his version is more
accurate, not only because it was supported by Respon-
dent's witness Villanueva, but also for the reason given
below.
The testimony of several witnesses was that James
O'Connor, the "coordinator," came into the department
frequently. Even Limato conceded that O'Connor was in
and out on "very short visits" "quite a few times" during
the day, saying on cross-examination that he spent a total
of "like an hour a day" there. It would seem that an hour a
day, in "very short" visits, implies close and continuing
control by O'Connor over the department, of which he had
been in charge, according to Limato, when it was on the
12th floor. 5
There are differing versions of Adorno's authority to as-
sign work to employees, but the testimony of Villanueva,
who was offered by Respondent as the successor to Ador-
no, is persuasive that such assignment authority as he has
(and, he says, Adorno had) is of a "merely routine . . .
nature," in the sense of Section 2(11)16 Thus, Villanueva
conceded that James O'Connor sometimes tells him whom
a particularly demanding job should be given to, and as to
the other "routine" jobs:
I don't choose a pressman. I just give it to them. I just
don't say, he's going to run this job and he's going to
run that job. I just give it to them at random. You
know, like-I don't have a better pressman.
Villanueva testified that, before a job is run, a pressman
will show him a printed copy, which he checks for suitabili-
ty, but that there is no "checking it before it leaves the job
and saying that it is bad." Villanueva, like Adorno, assem-
bles the jobs after they are completed, but that is "just a
routine thing," really bindery work.
Villanueva heard Adorno criticize people for their work,
but he himself has no "function of criticizing people for
their work." He becomes involved in criticism only when
Production Mgr." Cooper said Adorno "had the title" of supervisor. but
(Cooper was "never really told" that. Limato said Adorno called himself
"the master. the bhss, the best. A log of egotistic names," hut that he was
"definitely" overvaluing himself.
4 The poker and dice playing was not for money.
Here again. we were not permitted the benefit of testimony by James
O'Connor. who might have been useful.
1e That an employee is skilled and gives instruction to or makes daily
assignments to other employees does not require a finding of supervisors
status. Don The Beachcomber. 163 NLRB 275. 276 (1967).
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kevin or James complains about a finished product, and
then he reports to them, as requested, the name of the
pressman. When there is a had job, James "very often" will
go to the pressman and tell him to do the job again.
This business of criticizing or warning employees about
their work is, in my view, more suggestive of supervisory
status than anything else in the record. Cooper, testifying
for General Counsel, said on cross-examination that Ador-
no told the black and white employees that he had "caught
hell because jobs were bouncing" and that the employees
"had to put out more work or he [Adorno] was going to be
in trouble." LIimato said that Adorno would yell at employ-
ees who were not doing the job that "Kevin doesn't like it,
and if you don't straighten up, you're out": this, at the
same time that he was carousing. Adorno himself testified
that James O'Connor would instruct him to "tell those guys
to get on the ball." Villanueva, as noted, stated that Ador-
no criticized employees, but that such criticism was not
part of Villanueva's duties.
The fact is, however, as Limato conceded, that Adorno
disciplined no one, and, as Villanueva implied, that he had
no authority to do so. The record does not show that he
ever recommended discipline or even considered the possi-
bility. Discipline was handled, as were other personnel
matters, by the O'Connors. Limato said that she was
warned many' times by Kevin about her lateness and ab-
senteeism. James. as Villanueva testified, "very often" will
communicate directly with an employee who botches up a
job. I think as Limato indicated, that Adorno attempted to
overvalue his position by occasionally criticizing employ-
ees, without any teeth in the criticism; it is difficult to take
seriously as supervisory material an employee who yells at
other employees and at the same time is, in Limato's
words, "playing around" with them at dice and poker.
It appears to me that Adorno was detailed to monitor
the quality of the work being done, although not exclusive-
ly, and with no enforcement authority. The Board holds,
however, that the mere responsibility "to make sure that all
steps required to fill customer orders were accomplished
and performed properly" does not ipso facto result in su-
pervisory status. Graphics Tpography, Inc., 217 NLRB
1047, 1053 (1975).
Other alleged supervisory attributes do not amount to
much. Applicants would be tested by Adorno to see if they
were familiar with a press; the test, as Villanueva said.
takes 5 minutes, and the record shows that rank-and-file
employees have administered the test in Adorno's absence.
Based on such a short exposure to the applicants, it is diffi-
cult to say that Adorno's advice on whom to select 7 was
regarded as anything more than a comment on which ones
could operate a press.
O'Connor testified that, when Respondent wanted to lay
off one employee in June 1977, he asked Adorno whom he
would choose, and Adorno selected Cooper. Adorno said
he knew nothing of Cooper's layoff until it happened.
While I hesitate to choose between two unreliable witness-
es, I note that this was purportedly the only occasion on
which O'Connor sought out any such advice from Adorno,
| Adorno testified that he would be asked between three gus, hio is
heller. and I say this gu, and his gu."
and if it happened, it was an isolated occurrence.
Adorno at one time collected production sheets from the
other pressmen and put them in a binder. The significance
of this procedure is attested to by Limato's testimony that,
after a few months, Adorno simply stopped performing the
function, apparently without any recriminations. The only
conduct amounting to a "transfer" occurred when Joe
Gannon, a mechanic, had been put on a press as a substi-
tute: when Adorno told the O'Connors that Gannon was
no pressman, James told Adorno to put Gannon to work
on the camera, which Adorno had been operating, and to
take over the press himself. For perhaps a month, Adorno
had a desk. While he had a key to the Ith floor, so did
DeMonico.
Other evidence suggests retention of direct control by
the O'Connors, such as Limato's testimony that if she were
out sick, she would tell Kevin, not Adorno. s' O'Connor
testified that if employees wanted a day off, "[u]sually they
would have to come to myself." Adorno regularly ate
lunch, often on a stoop nearby. with other employees, and
not with the O'Connors and Charles Girardin. He attended
no meetings of Respondent's officials, although Charles
Girardin did. He earned $225 per week, compared to $325
for Girardin. It is notable that, in fact, DeMonico earned
$40 a week more than Adorno. He was considered, by Vil-
lanueva, "just one of the guys"and by Carson as his "best
friend."
In sum, it does not appear to me that Adorno was ever
vested with the sort of authority contemplated by Section
2(11 ). Rather, as counsel for General Counsel argues in his
helpful brief, Adorno belonged to that group of "straw
bosses, leadmen, setup men, and other minor supervisory
employees" which Congress did not intend to deprive of
Section 7 rights. N.L.R.B. v. Security Guard Service, Inc.,
384 F.2d 143, 147 (5th Cir. 1967), quoting from S. Rept.
105, 80th Cong., st SesS.. 4 (1947). There is no sense here of
the requisite "empathic relationship between the employer
and the employee" referred to in that case: the "feeling of
control, power, or superiority that one finds in supervisors"
did not exist between Adorno and the employees with
whom he furtively played poker. Id. at 149, 150. In view of
the conclusion reached by the Board on substantially simi-
lar facts in Graphics 7pographly, Inc., supra, I find that
Adorno was not a statutory supervisor.
The evidence shows that when Kevin spoke to Adorno
on September 28, he told him, in Adorno's words, that
Adorno "hadn't been doing nothing in the last couple of
months," and said he would no longer use Adorno in his
lead position, but would be willing to retain him at
pressman's wages. Adorno, according to O'Connor, said he
"couldn't make it at the wages black and white pressmen
were making," and, with that, O'Connor. as he conceded,
handed Adorno a check already drawn and dismissed him.
O'Connor testified that he had considered demoting
Adorno for several weeks. Evidence was adduced that a
longtime customer, the American Institute of Chemical
Engineers, had been "complaining more and more," for the
"last five or six months," about the quality of the black and
s O'( on nor al so testified hat if an emlplo% ee "'is gong to he out or sick.''
"[lhe\ usualk call into the front office'"
D. V. COPYING AND PRINTING. INC 1283
white printing. On September 7, O'Connor had a meeting
with a representative of the Institute, and a confirmatory
letter from him of that date states that the relationship
would have to be terminated if the quality of the work did
not improve "to where it was a year ago." As discussed, on
September 21, a conference was held with a manager of the
GPO, with whom Respondent had been doing business for
three months, and two jobs valued at above $9,000 were
rejected. These occurrences allegedly led Respondent's
owners to decide in their weekend conference of Septem-
ber 24-25 that Adorno should be removed from his posi-
tion.
These incidents might or might not have seemed signifi-
cant. Considering that the AICE account ran to $30.000
$35,000 a year," or about 6 percent of Respondent's busi-
ness (gross sales for fiscal year ending June 20, 1977, hav-
ing been $570,000), Respondent did not seem especially
anxious about the prospect of loss of the account or about
Adorno's undermining of its business, since it allowed
nearly 3 weeks to pass after the complaint before deciding
to remove Adorno. While the requirement of redoing the
$9,000 jobs may have been distasteful, the record is full of
testimony about jobs "bouncing." 20
It is certainly arguable, however, that the cumulative ef-
fect of these two incidents in September could have served
as a basis for deciding to relieve Adorno of his responsibili-
ties with respect to the quality of the black and white work.
But I cannot ignore here Carson's uncontradicted testi-
mony attributing to O'Connor a statement that the em-
ployees were let go "because of union business." and
Villanueva's unchallenged admission that O'Connor later
called Adorno and DeMonico "troublemakers." Addition-
ally, O'Connor seemed to have been caught short when
asked when it was that a replacement supervisor for Ador-
no was decided upon; he speculated that it was not until
September 28 that he even discussed the matter with his
brother. But if a specific decision had been made the prior
weekend to remove Adorno because of real concern that
he was not providing proper leadership and was jeopardiz-
ing accounts, most assuredly there would have been discus-
sion at the time about his successor. The absence of any
such consideration clearly indicates that the precipitating
cause of the decision to demote Adorno was not the com-
plaints but rather the union demand.
Even though O'Connor offered to let Adorno stay on at
a lower wage, it seems apparent from the prepared pay-
check that he fully expected him not to do so.2 Why
O'Connor thought that, I am not sure, but it is obvious that
he viewed the demotion as tantamount to termination. In
contesting O'Connor's claim that he expected Adorno to
stay, General Counsel pointed out at the hearing that, giv-
en such a premise, Respondent would suddenly have been
O '( onnor's estimon'. As in other important areas of the case. no lp-
porting records were produced. of which General (Counsel rightl o-ni-
plains.
2" See, e.g. Villanueva's testimonm about hw, even under his regimlce.
James O()'Connor -"ery often" has to tell a pressman to do a ob oser
Kevin's teslimony indicates that a had job need not neces.arils he Itedlone in
its entirel .
'I should point ut th:lt. although September 27. a I esdals wlas tIhe end
o)f the pas period. he regular padai wi 1 hirsdas
"overdischarged" when Adorno left, and yet it made no
effort to then call back Carson or Cooper. I found lame
O'Connor's explanation that he decided, when Adorno did
not stay on as expected, to see how things would work out
in this "extremely slow" period,2 2 and I draw General
Counsel's proposed inference that O'Connor confidently
expected Adorno to depart.
The question of whether Adorno and DeMonico were
illegally discharged in September really is little more than a
quibble over the length of their backpay period, since it is
plain that, at least beginning in November, there was a
discriminator), refusal to recall them. Knowing. from the
charge filed on their behalf, that they desired reemploy-
ment, Respondent refused to rehire them, while taking on
new employees and at the same time broadcasting to the
other employees that the two were "troublemakers" and
that "there was no way he was going to take these two guys
back." The flimsy excuse offered by O'Connor for not re-
calling DeMonico-that he had heard from a paper sales-
man that the salesman had heard from another printing
company that it had offered DeMonico a job. which he
refused because he was already employed-is belied by his
defiant admission at the hearing as to why he would not
rehire DeMonico. His explanation that he would not recall
Adorno because he had demonstrated that he would be
unhappy at a pressman's wages seemed to be fabricated on
the spot; at one point O'Connor testified that he would
take Adorno back "[als a pressman, yes," but at another
point he said he would "not at this point" take Adorno
back as a pressman.
After consideration of all the relevant evidence, I con-
clude that the termination of DeMonico. Adorno, Carson,
and Cooper on September 27 and 28 was violative of Sec-
tion 8(a)(3) and (1) of the Act.23 Furthermore, I believe that
the simultaneous layoff of Joanne Buttacavole 24 and La-
verne Vanderhorst was an effort to cover Respondent's
tracks. If O'Connor had not testified that he terminated
both on September 27, I would have guessed that Buttaca-
vole left the day before, since her timecard contains the
word "Terminated" in the space for September 27 where
her hours worked on that day would normally appear. 25 In
view of O'Connor's testimony, however, it is appropriate to
find that the two were laid off on September 27.
The layoff of these two, of course, tends to show an
absence of illicit motive. However, in view of the other
countervailing evidence discussed above, the conclusion is
inescapable that the termination of these two employees
Lpeciall\ n iew of Ihe elesation of Reills to the pressroom almost
immedlatel)
a dorno' demnotion. prtompted bE his union acitsis. with a certain anti
clpatlon that the demotion would cause his resignation. constituted a con-
siructlse discharge S f Mh,ds Manrct (orp., 229 NlRB 75 (1977) John
Drl a ,, irA. Ir.. 229 N LR.B 844 (1977).
Ihls i nare is generally pelled as Duttacasole ill the ranscrlpt. hut
ALJ Ish shows It with an initial B
- O'( lnunor testified that he delhberatelv failed to give advance notice of
the ntention to las off at the end of the day on September 2'7 so that
elmlphlees would nt lick off until the last moment of ofrk Repondenl'
hblle Iherefore ill effect qlesriolln O'(C'onnor's er.l ts when it claims that
"one eploee was nformed of it on Monday the 26th and left at that
ti"le I here is. furtherllure, I1no direct evidence to support such a conten-
lion t a left-field theor, hb Respondent. based on an at tempted nfer-
ence ft ill he linlecard. uhlich i is onlr.alcled b'h O'( onnor's Itesilllon
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was either designed "to conceal the illegal purpose motivat-
ing the discharge of the [four] union adherents," or was an
afterthought prompted by the decision to engage in unlaw-
ful conduct and therefore "causally related to the discrimi-
nation practiced against the [four] union adherents." either
of which motivation makes out an unfair labor practice.
Howard Johnson Company, 209 NLRB 1122, 1123 (1974).
IV. OTHER ALLEGED 8(aH3) AND (I) VIOLATIONS
The amended complaint charges a variety of other
8(a)(1) and (3) violations.
The Wage Increases
On October 4, a week after the layoffs, Respondent
granted wage increases to nine employees, in the amount
of $10-$15 a week.26 While O'Connor testified that "the
only people that got raises, okay, were the people that were
working in the black and white and the color departments
that were left after September 28," Respondent's Exhibit 3
shows a $15 raise on October 4 to Miriam Valentin, who
appears on Administrative Law Judge's Exhibit 3 as having
been hired into the bindery only a month before, on Sep-
tember 8, and a $15 raise to Carde, hired as a pasteup
employee (and located in the typesetting department) only
3 weeks before, on September 14.
Most of the raises, however, were given in the litho-
graphic department. O'Connor testified that the reason for
the raises was that the remaining employees were "gunshy"
and the raises would provide "a calming effect . . . don't
keep looking over your shoulders, we're going to work tight
this way and we're going to try and make it go." Accoun-
tant Kaufman testified that on September 6, in discussing
the concept of layoffs with O'Connor, they had talked of
the possibility of putting some "icing on the cake" for the
retained employees, so that they would not react to a de-
creased work force doing the same work by saying, "It's
just not fair." This notion of mollifying an indignant staff
obviously differs from O'Connor's idea of calming a fright-
ened one.
The record indicates, and O'Connor admitted, that em-
ployees had received raises erratically in the past.2 Some
of those who received the October 4 increases had likely
been given previous raises not long before October 4;
Frank Reilly, who received $10, was hired on July 18; Jose
Lopez, who got $10, started on August 18; and Farrell Do-
lan, who received $10, began on August 25. There was,
however, none of the discrimination among employees
which, one would assume, an economy-minded employer
would apply; to give $10 raises to Lopez and Dolan, who
had been on the payroll 6 and 5 weeks respectively, and
$15 raises to Valentin and Carde, employed for only 4 and
3 weeks, really strains the "calming effect" theory. The
concentration of the raises in the requested unit, to the
virtual exclusion of the typesetters and bindery workers,
26 I exclude here Villanueva, who received a $25 raise as part of his pro-
motion to Adorno's job.
27 "Some people had gotten raises previousls and some didn't get one.
okay."
who presumably also needed "calming" with the departure
of Buttacavole and Vanderhorst, raises a serious doubt as
to the bona fides of the increases here.28
Granting of such unprecedented increases so soon after
the union demand is a circumstance which raises a pre-
sumption of impropriety, shifting the burden to the em-
ployer to show that the grant was governed by benign fac-
tors, Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223
NLRB 394, 406 (1976). I find that Respondent has failed to
shoulder that burden, and conclude that, by the grant of
increases, Respondent violated Section 8(a)(1).
The Alleged Coercive Statements
The amended complaint alleges that, in several conver-
sations, Respondent's agents coerced employees in viola-
tion of Section 8(a)(1).
As discussed, the uncontradicted testimony of Angie
Gerena shows that, on September 28, Supervisor Girardin
threatened her with a fate similar to that of Adorno and
DeMonico, thereafter improperly interrogated her about
her union activities and gave the impression that the pro-
tected activities of the employees were under surveillance.
Gerena also gave undenied testimony that, in March 1978,
O'Connor told her, "If the Union comes in, we'll probably
just have about two or three guys working there, or I'll just
close it down." The latter reference was to the black and
white department. This conduct violated Section 8(a)(1).
Similarly, on the uncontradicted testimony of Anthony
Loccicero, I find that, around the middle of October, in the
presence of Charles Girardin, O'Connor asked the employ-
ee if he knew anything about the Union (which Loccicero
denied) and then said that, if necessary, O'Connor would
"make this place as a family shop." By so doing, Respon-
dent engaged in coercive interrogation and a threat of dis-
charge.
The November 8 conversation between Kevin O'Connor
and Christopher Carson, set out above, is shot through
with bald statements that union activity results in reprisals
and, as well, contains a threat that selection of the Union
would cause Respondent to move its operation.
Carson further testified, again without contradiction, to
a meeting called by O'Connor with four employees on the
day before Thanksgiving:
And he said he had money for Thanksgiving bonus-
es so that we could all go out and buy a turkey and he
was really upset that he had just got this letter from
the NLRB stating a bunch of charges or whatever was
going on here and he was mad at us and said it was
none of their business what goes on. Whatever hap-
pened, keep it within the confines of working. It's no
one else's business. And his lawyer advised him to give
the bonuses to the guys up in the bindery upstairs on
the 12th floor. Kevin said, if I give it to one I give it to
them all. He said a few people are good enough, if
they keep their mouth shut, he had some money put
aside, meaning Thanksgiving and other money for like
8 ' O'(Cnnor testified that "the rest of m people . . not only the litho-
graphic department, but also the typesetting and the bindery, everyhbody
was walking around gun shy .
D. V. COPYING AND PRINTING, INC. 1285
maybe a Christmas bonus if we were good enough for
it.
Q. Do you recall if he said anything at that time
about the employees in the black and white depart-
ment as opposed to the color department?
A. Yes, he stated that out of a process of elimina-
tion, he figured the guys in the color shop were on his
side and that all the problems and all the troubles
usually stemmed from the black and white shop.
Q. Do you recall anything being said about other
union shops in the building?
A. He said that before you vote for the union, he'd
take us on a tour of the building and show us the few
union shops and show us how there's only a couple of
men in them and a couple of presses and how basical-
ly, like total automatic and stuff like that-that there's
not too many workers. And he said you have a good
thing going here. I've got all these presses and stuff
like that.
Alan Cooper was present at this meeting. His recollec-
tion was that O'Connor stated, inter alia., that "he was not
going to give out any Thanksgiving bonuses" and that he
had been told by his attorney not to give Christmas bonus-
es either. I preferred Carson as more likely to recollect the
details. But Cooper also testified that O'Connor said "he
would do everything in his power to keep the Union out
and he also mentioned that he was going to try to do ev-
erything in his power to keep . .. [fIrom rehiring [Adorno
and DeMonico] or letting them come back into the shop to
work." While Carson did not mention such statements, Vil-
lanueva conceded that O'Connor gave, as "the reason that
[Adorno and DeMonico] were discharged," that "[o]ne of
the things was that Hector wasn't doing his work right . . .
And I believe he called them troublemakers." As stated
above, furthermore, O'Connor himself clearly indicated at
the hearing that he had so informed the employees.
By telling the employees that he was "mad" at them; by
promising bonuses to them if they "kept their mouths
shut"; by implying that unionization would result in loss of
jobs; by stating that the "troublemakers" would not be
reinstated; and by saying that Respondent would do ev-
erything possible to "keep the Union out," Respondent
violated Section 8(a)( 1).29
The Christmas Bonuses
Contrary to its prior practice of distributing bottles of
liquor or perfume at Christmastime, in December 1977,
Respondent gave a total of $2,600 to 26 employees.
While the bonuses were shopwide, in the absence of any
explanation whatever at the hearing for this largess, I must
conclude that the only distinctive feature of this particular
yuletide which impelled generosity was the advent of the
Union. A gift so motivated is unlawful under the Act.
! I disagree howeser. sith (;eneral (ounsel's contention thai
O'(Connor's guess. based on a "process of eliminatioln. a, io the source of
unrest, coneNed an impression of surveillance of union activilies
The 1978 Changes in Working Conditions
The complaint was amended at hearing to charge that
three modifications of working conditions in March 1978
were coercive in intent and effect.
The lithographic employees had access to a telephone in
the color shop, which they used primarily to order food for
breakfast. About the middle of March, the dial on the
phone was removed, and now the employees must, after
obtaining permission, use the telephone in Charles
Girardin's office for any such personal calls. In view of the
absence from the record of any explanation for this un-
usual change, such as abuse of the telephone privilege, I
infer that Respondent was interested either in harassing the
lithographic employees or in stifling their contact with out-
siders; no reason appears why Respondent would wish to
do either, aside from the existence of the union campaign
and the circumstances which led to this hearing.
The complaint was amended to allege that Respondent
violated the Act by "changing the system of time cards for
all lithographic employees." Anthony Loccicero testified
that there had been a recent change in the time card system
on the 11 th floor which, he was told by O'Connor, was to
prevent employees from punching each other's cards. Loc-
cicero testified that, under the old system, employees had
to sign their names, whereas under the new system, they
did not. The only difference, said Loccicero, was that the
new way "was faster."
I do not clearly understand the testimony on this point,
since it makes no sense to say that having the employees
omit signing their names will somehow better police the
reciprocal punching of timecards. Furthermore, it seems an
item of scant significance, and no added burden on the
employees. Still, the record shows that the same change
was not made on the 12th floor; that the change occurred
closely proximate in time to the removal of the telephone
dial and the development of a written warning system, dis-
cussed below: and there was no testimony by Respondent
as to the reason for the change, which apparently occurred
just before or after this hearing began. I am inclined to
agree with General Counsel that this change, part of a sud-
den spurt of tightening up on working conditions, affecting
only the employees engaged in union activity, was incited
by a desire to retaliate against that activity.
The complaint was also amended to allege that the insti-
tution of a "new format of written warnings" was unlaw-
fully motivated. On March 13, after the hearing began,
Kevin O'Connor issued letters to six lithographic employ-
ees (in his words, "five people that signed union cards plus
Robert Feliciano"; he later explained that General Coun-
sel had previously shown him the cards) in the following
format:
To:
After reviewing your attendance records since January
1, 1978, and after having been given oral reprimands,
both individually and a group, on tardiness and ab-
senteeism, you have been late times and absent
times in a period of 45 working days.
We will not and cannot tolerate this kind of atten-
dance record. If after this written notice, your atten-
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dance and tardiness do not improve, we will be forced
to take disciplinary action up to and including dis-
charge.
O'Connor testified that when he brought subpenaed rec-
ords to the first day of hearing, March 6, counsel for Gen-
eral Counsel had pointed out to him that there was a pauci-
ty of personnel entries. Taking heed from this, and facing
what he saw as a prospect of being "dragged into these
things coming and going, from now on," O'Connor decid-
ed to protect himself by giving written warnings, rather
than the undocumented oral admonitions of the past, to all
employees who had been late or absent more than one-
quarter of the time in the first 9 weeks of 1978.
Then his testimony became confusing. He stated that his
past practice had been to "only reprimand as it became a
problem or I became aware of it being a problem," but
shortly thereafter said that "periodically, in times previous,
okay, we would go through and do that . . . It might have
been every 3 months, every 3-1/2 months." He also first
said that "the problem became increasingly difficult to try
and run a business with people out in my lithographic sec-
tion coming in constantly late," that an oral warning in
February "seemed to have no effect one way or the other,"
and he therefore issued the written warnings. But then,
asked to confirm that there had been "an increase in the
tardiness problem" O'Connor stated, "I don't-to be very
honest with you--I don't know how much more if there
was a tardiness problem. We had always had one and I had
done it verbally beforehand." He then reverted to the ex-
planation about the enhanced need for documentation as
the reason for the decision to give written warnings.
The institution of such a system after this hearing had
begun, and after only one employee had testified, is, in the
absence of any upsurge in lateness (which O'Connor said
he did not believe to be the case), suspicious. Adding to the
suspicion is O'Connor's admission that "the kind of verbal
admonition" he gave employees in the past was to the ef-
fect of "Come on, Al, get up 20 minutes earlier, roll out of
bed, and let's try to get here on time." which may be com-
pared to the new form's threat of "disciplinary action up to
and including discharge." When I further consider that the
newly adopted "one-quarter of the time" standard for is-
suance of these documents ensnared only the lithographic
employees and further note that this system was intro-
duced within days of the disappearance of the telephone
dial and the change in the punch-in procedure, both also
affecting only the unit in question here, I feel compelled to
conclude that the new warning system was also the product
of pique against the employees for engaging in protected
activities, or harassment for such involvement, and there-
fore violative of the Act.
V. TIlE REQUESTED BARGAINING ORDER
The complaint alleges that by refusing to bargain with
the Union on and after September 27, 1977, Respondent
violated Section 8(a)(5) of the Act, and that, by the unlaw-
ful conduct discussed above, it has rendered impossible the
holding of a fair election, thus justifying the entry of a
bargaining order based on authorization cards signed by a
majority of the employees in the requested unit.
The General Counsel claims that a unit of "lithographic
production employees." as described in the Union's mail-
gram. is appropriate. Respondent holds that the only ap-
propriate unit is a larger one, large enough to reduce the
status of the Union's 10 signed cards from majority to mi-
nority representation.
The parties agreed that 13 employees ('arson, Cooper,
Cush, DeMonico, Limato, Gerena, Gannon, Loccicero,
Villanueva, Ernie Girardin. Sr., Ernie Girardin, Jr., Lopez,
and Dolan were properly in the unit. The first nine signed
cards. General Counsel would include, as well, Adorno, a
card signer. On the above findings, I agree. Respondent
argues that George Carde, a pasteup employee, belongs in
the unit, and General Counsel states on brief that "nJo
argument is made herein for the exclusion of George
Carde." However, it appears that Carde works on the 12th
floor with the typesetters. Since I shall exclude the typeset-
ters, as set out below, I see no persuasive reason for includ-
ing Carde. At this point, then, the Union has a 10-card
majority in a 14-person unit. Respondent would expand
the unit to add three typesetters and Frank Reilly, but.
were I to agree, which I do not, the unit would comprise 18
employees, leaving the Union's majority unscathed.
The typesetters were Richard Behrens, Joanna Buttaca-
vole, and Barbara O'Connor. They worked on the 12th
floor, near the bindery and the general offices, a floor away
from the lithographic employees. Barbara O'Connor, who
supervises the other typesetters, is Kevin's wife: she has
regular employment as a TWA flight attendant, but none-
theless does substantial work for Respondent; she does not
punch a clock, and she is unsalaried.
The record does not establish any direct community of
interests, contact, or interchange between the typesetters
and the lithographic employees. The requested unit, ex-
cluding typesetters, is appropriate. Meyer Label Co., 232
NLRB 933 (1977); R. W. Nowels. d/bha Nowels Publica-
tions, 219 NLRB 222 (1975) J Miller Printing Companv,
Gem Offset Plate Compan'. 122 NLRB 1256 (1959): Ad-
Press Corporation, 119 NLRB 564 (1958). The contention
as to Barbara O'Connor is, furthermore, frivolous. She is
not only the wife, daughter-in-law, and sister-in-law of the
three owners 30 but, being unpaid and a volunteer, she is
not even an employee. Curt Gowdy Broadcasting Inc., d/b/a
KOWB Radio, 222 NLRB 530, fn I (1976).
O'Connor testified that Frank Reilly., hired as a collater,
was put to work in the black and white area "I would say
the early part of September, on a part-time basis," and that
he went full time "within 2 or 3 days of September 27th
and certainly within the week." Respondent's witness Vil-
lanueva conceded, however, that Reilly "wasn't in the de-
partment" at the time of the September layoffs, a fact con-
firmed by Carson. I conclude that Reilly was not in the
unit as of September 27.
The Union thus enjoyed a 10-card majority status in a
14-person unit as of September 27. Following through on
the logic of its Adorno argument, Respondent contends
that Adorno's alleged supervisory status not only requires
'tSec. 2(3) of the Act excludes from the definition of emploee ain?
ndidlul emplocd h his parfent or spouse
D. V. COPYING AND PRINTING, INC. 1287
exclusion of his card, but also compels invalidation of "the
cards of Carson, Limato, and Villanueva because of the
leadership and participation in their solicitation by super-
visor Adorno." Since I have concluded that Adorno was
not a statutory supervisor. I must necessarily reject the
contention.
Were I to find otherwise as to Adorno, however. I would
still not hold that his status infected the cards signed by
employees to whom he spoke about the Union. If Adorno
had been a supervisor, he would have been the most mar-
ginal kind. Villanueva agreed that Adorno, with whom the
employees ate lunch and gambled, was considered "just
one of the guys." Plainly, there was nothing inherently
coercive in Adorno's status. See Orlando Paper Co., Inc.,
197 NLRB 380, 387 (1972).
In addition, Adorno did not directly solicit signatures;
with the exception of Gannon, who signed at DeMonico's
behest, all cards were signed only after employees had gone
to the union hall and been solicited by Diglio, the union
organizer. In N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302,
1315, 1316 (1973), enfg. 190 NLRB 174 (1971), the Court of
Appeals for the Fifth Circuit suggested a test of superviso-
ry involvement in the signing of authorization cards which
makes necessary, in order to invalidate a card, a finding
that the supervisory participation was actually coercive:
We are not prepared to say . . . that authorization
cards are so inherently unreliable that the)' must be
disallowed whenever an employee perceives that a
supervisor openly favors the union. It is actual pres-
sure and coercion we are seeking to avoid by our rule
disallowing cards tainted by supervisory influence. A
mechanical rule that requires a finding of supervisory
solicitation in situations such as we have here, where
there is no hint of intimidation, is too broad.
* * * t *
There must be a more substantial exhibition of pres-
sure than a passing remark or a statement of prounion
conviction. So long as nothing in the words, deeds, or
atmosphere of the alleged "solicitation" contains the
seeds of potential reprisal, punishment, or intimida-
tion, the involvement of the supervisors does not rise
to the level of supervisory "solicitation" that we con-
demned in American Cable 1, [414 F.2d 661 (5th Cir.
1969)]. Here the supervisors attended a few union
meetings and at various times made rather tame state-
ments regarding their approval of the union. There is
not a sufficient showing to throw out any of the cards
Finally, it is rather clear that the employees appreciated
Respondent's opposition to unions, probably flowing from
the remarks made by O'Connor to Carson and DeMonico
in years past, as recounted above. Diglio warned the em-
ployees to keep the campaign sub rosa. and I cannot con-
ceive here that any employee envisioned future reprisal for
a refusal to designate the Union, either from management
1 Villanueva testified that Diglih trold the ernplosees "to keep II quiet nd
notl let management know about it. that people were signing cards. nliess
someone may get in trouble"
or from Adorno. Orlando Paper Co.. Inc., supra at 387-388.
On the above findings, I conclude that the Union repre-
sented a substantial majority of the employees in the ap-
propriate unit in which it requested recognition on Septem-
ber 27, 1977. There can hardly be any doubt that the spate
of serious unfair labor practices committed by Respondent
on and after that date-the explosive termination of six
employees, two of whom were known to the employees to
be the prime union activists, on the very day the union
demand was received; the trumpeted determination by Re-
spondent to do "everything in its power" to avoid rein-
statement of the "troublemakers"; the "fist inside the vel-
vet glove": 32 October wage increases and Christmas
bonuses: the pattern of threats of closure and other coer-
cive activity: the unlawful introduction of stringency into
the employment environment even as this hearing was un-
derway-had a "tendency to undermine majority strength
and impede the election processes" as the Supreme Court,
in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614
(1969). intended that test to apply.
On this record, it seems quite doubtful that any employ-
ee would nsk indicating open (or even secretive) support
for the Union if an election were to be ordered, and I
daresay that not many would chance the further arbitrary
exercise of Respondent's power over their employment by
voting to be represented by a union. In the present context,
it appears that "the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun) by
the use of traditional remedies, though present, is slight,"
Gissell Packing Co., supra at 614.
The requested bargaining order is thus an appropriate
remedy. The refusal to bargain on September 27 and there-
after, in the face of the Union's majority status and its
request for recognition in an appropriate unit, further con-
stituted a violation of Section 8(a)(5). See Beaslev Energy,
Inc., d/b/a Peaker Run Coal CompanY, Ohio Division #1.
228 NLRB 93, 97 (1977).
CONCLUSIONS OF LAW
1. D. V. Copying and Printing, Inc., is an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 1, Amalgamated Lithographers of America,
ITU, AFL-CIO, the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By terminating six employees on September 27 and
28, 1977, and by altering working conditions in March
1978, Respondent has discriminated against employees in
violation of Section 8(a)(3) and () of the Act.
4. By engaging in the following conduct between Sep-
tember 28. 1977, and March 1978, Respondent has inter-
fered with, restrained, and coerced employees in the exer-
cise of their rights under Section 7 of the Act, in violation
of Section 8(a)( 1) of the Act: coercively interrogating em-
ployees, threatening employees with plant removal, threat-
ening employees with loss of jobs, threatening employees
with refusal to reinstate unlawfully terminated employees,
1: I RB v Ekhan, Partr (o, 375 i S 405, 40 ( % 4)
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promising benefits if employees would refrain from union
activity, granting wage increases, granting Christmas bo-
nuses, and creating the impression of surveillance of union
activities.
5. All lithographic employees of the Respondent em-
ployed at its facility located at 228 East 45th Street, New
York, New York, excluding all office clerical employees,
typesetting and bindery employees, salesmen, art depart-
ment employees, guards, and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times material herein, and at least since Sep-
tember 27, 1977, the Union has been the exclusive collec-
tive-bargaining representative of the employees in the
above-described unit within the meaning of Section 9(a) of
the Act.
7. By refusing, since September 27, 1977, and at all
times thereafter, to recognize and bargain with the Union
as the exclusive representative of its employees in the ap-
propriate unit set out above, Respondent has engaged in,
and is engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The unfair labor practices referred to above are of
such a nature as to warrant entry of a remedial order di-
recting and requiring Respondent to recognize and bargain
with the Union as the representative of the employees in
the above-described unit.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action to effectuate the policies of the Act. The only
unusual remedial question here arises from Respondent's
contention that Adorno has, by certain conduct, become
disentitled to reinstatement. Respondent makes five points
in this regard. The final one, I think is persuasive. Respon-
dent's five reasons for disqualifying Adorno will be quoted
verbatim.
I. "The contrast between his original statements and the
testimony of other union card signers about what his actual
status was." This is a nebulous ground for disqualification,
it seems to me.
2. "His behavior as a supervisor, admitted by other card
signers and by General Counsel witnesses, regarding his
card and dice playing episodes during work." Limato's tes-
timony on this subject at first made it appear that Adorno
did little else but gamble and "carouse" on the premises,
but her more extreme testimony was eventually moderated.
I think it unlikely that there was sufficient loafing to seri-
ously detract from the work.
3. "His admittance to working 'off the books' while
claiming unemployment compensation." Limato testified
that Adorno paid a couple of visits to her after he was
discharged and told her that "when he was going to sign
for his unemployment checks that he was off the books on
a printing firm." While I would credit Limato, the state-
ment is not particularly clear, nor is the matter sufficiently
developed so as to warrant serious consideration.
4. "His frenzied subornation of perjury of another pro-
spective witness." Adorno had been asked during his testi-
mony whether he had been working "off the books," and
had vehemently denied it. Limato testified that the night
before her own appearance, Adorno called and said that he
had been asked about working off the books and had said
that he had not done so. "And he says for me to turn
around and-in other words, cover him-if they should
call me-he had an idea that I should not lie about it, but
I should say he was working but he had this job at the same
time that he was employed with the D. V. not when he was
out of D. V. In other words, he was asking me to lie or to
cover up for him." Adorno did not deny this conversation,
and I believe Limato. While not well articulated by Lima-
to, this does appear to be an attempt by Adorno to induce
her to commit perjury.
The Board has often ordered the reinstatement of dis-
criminatees despite findings that they had perjured them-
selves at the hearing. See, e.g., Trustees of Boston University,
224 NLRB 1385, 1041-02, 1410(1976); The Coco-Cola Bot-
tling Company of Memphis, 232 NLRB 794, 809, 816 (1977).
Presumably, the theory is that, however obnoxious lying
under oath may be, some leeway must be extended to an
employee who has been the object of unlawful discrimina-
tion, particularly since the falsity has no predictable effect
on future employment. Furthermore, there is perhaps a
certain weighing of equities in such cases, since the em-
ployers' representatives will necessarily also have been
found to have perjured themselves by declaring that their
motive for discharge was pure. I would assume that the
same generosity extends to subornation of perjury by an
employee who has been wrongfully discharged.
5. "His threats to that same witness that she must per-
jure as he did or 'heads would be rolling.'" Limato testi-
fied, again without rebuttal by Adorno, that, at the end of
the conversation on the evening before her testimony,
Adorno "turned around on the phone and said that heads
would be rolling and he asked me to cover up his back and
if I didn't there would be heads rolling." I credit Limato.
The Board holds that an unlawfully discharged employ-
ee must be afforded traditional remedies of reinstatement
and backpay "except in those instances where the dischar-
gee has engaged in such aggravated and gross misconduct
which renders him unfit for further employment." R.C.
Can Company,, 144 NLRB 210, 211 (1963) enforcement de-
nied in pertinent part 340 F.2d 433 (5th Cir. 1965). On the
theory that "[t]he more extreme an employer's wrongful
provocation the greater would be the employee's justified
sense of indignation and the more likely its excessive ex-
pression," N.L.R.B. v. M. & B. Headwear Co., Inc., 349
F.2d 170, 174 (4th Cir. 1965), it has often been held that a
threat of violence hurled at a management representative
soon after the unlawful discharge was simply a "spontane-
ous utterance under extreme provocation," not warranting
denial of remedial relief. R.C. Can Company, supra; The
Bin-Dicator Company, 143 NLRB 964, 965 (1963), enforce-
ment denied in pertinent part 356 F.2d 210 (6th Cir. 1966);
J. P. Stevens and Co., Inc., 163 NLRB 217, 224, fn. 13
(1967), enfd. as modified 388 F.2d 896 (2d Cir 1967); Blue
D. V. COPYING AND PRINTING, INC. 1289
Jeans Corporation and Whiteville Manufacturing Company.
170 NLRB 1425 (1968): Santa Fe Drilling Company. 171
NLRB 161 (1968), enforced in pertinent part 416 F.2d 725,
733 (9th Cir. 1969).
The issue here, however, presents materially different
facts. Some 6 months after his discharge, Adorno calculat-
edly attempted to manipulate the sworn testimony of a for-
mer fellow employee, not a former supervisor, by uttering a
rather chilling threat. Where two discriminatees made
threats of physical violence against fellow employees who
refused to join a strike protesting their discharge, the Board
held that they had forfeited their right to return to work.
QIC Corporation, 212 NLRB 63, 70-71 (1964). And see
Central Broadcasting Corporation d/b/a WENO, 182
NLRB 866 (1970), involving threatening conduct against a
fellow employee and distinguishing cases of "unpremedi-
tated emotional reaction to the provocation of flagrant un-
fair labor practices."
In the circumstances, I cannot conscientiously recom-
mend that Adorno be restored to employment in the same
firm with Limato. It is reasonable to expect that such a
working environment would be intolerable to her.33 In San-
ta Fe Drilling Company. supra, refusing to disqualify a dis-
criminatee, the Board twice noted that the obscene re-
marks made by a discriminatee to a supervisor did not
amount to threats of "physical harm or bodily violence."
Since that is what we have here, and since it occurred in
the unsavory context of an attempt to cause Limato to
commit perjury, I shall recommend that Adorno be denied
reinstatement. It would seem, however, that he only ren-
dered himself unsuitable for further employment as of
April 4, 1978, when he had his conversation with Limato,
and he is entitled to backpay for the period prior to that
date.34
Having found that Respondent unlawfully terminated
Richard DeMonico, Christopher Carson, Alan Cooper,
Hector Adorno, Joanne Buttacavole, and Laverne Vander-
horst on or about September 27, 1977. I shall recommend
that the Respondent be required to offer to each of them.
other than Adorno, Carson, and Cooper, immediate and
full reinstatement to their former or substantially equiva-
lent positions, 35 without prejudice to their seniority or other
rights and privileges, and that they be made whole for any
loss that they may have suffered by reason of the discrimi-
nation against them. The limitation as to Adorno set out
above shall apply in computing his backpay in the manner
prescribed in F. W. Woolworth CompanIr 90 NLRB 289
(1950), with interest as computed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 6
I shall also recommend that Respondent be required to
expunge from its personnel files the warning letters issued
to six employees in March 1978. Further, I shall recom-
mend that Respondent be required to make operable the
1 I have taken into account here the fact that Limato is presently working
in the collating department on the 12th floor. 'The record indicates that this
would not isolate her from further contact with Adorno.
QIC Co(erpraiion. ura at In. 2
This provision does not appl, to ('ooper and Carson; the complaint
states that Cooper and Carson were reinstated, and General Counsel', brief
does not request further reinstatement relief as to them.
See. generally. isis Plurnhing & Heating (, 138 NlRB 716 19621
telephone in the color department, to rescind the timecard
system installed in March 1978, and to rescind the program
of written warnings for absenteeism and tardiness adopted
in March 1978.
I shall further recommend that Respondent be required
to recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the above-
described appropriate bargaining unit.
Provision will also be made for the posting of an appro-
priate notice to employees.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 37
The Respondent, D. V. Copying and Printing, Inc., New
York, New York, its officers, agents. successors, and as-
signs, shall:
I. Cease and desist from:
(a) Discouraging membership in Local 1, Amalgamated
Lithographers of America, ITU, AFL-CIO, or any other
labor organization, by discriminating against any of its em-
ployees in regard to hire or tenure of employment or any
term and condition of employment.
(b) Giving the impression of surveillance of the union
activities of its employees; threatening reprisals against
employees for supporting or selecting a union; altering
conditions of employment or introducing new conditions
of employment in order to discourage adherence to a
union; coercively interrogating employees concerning their
union sentiments and union activities; and promising, of-
fering, and granting benefits to dissuade employees from
supporting a union.
(c) Refusing to bargain collectively with Local 1, Amal-
gamated Lithographers of America, ITU, AFL CIO, as the
exclusive bargaining representative of the employees in the
following unit:
All lithographic employees employed by Respondent
at its facility at 228 East 45th Street, New York, New
York. excluding all office clerical employees, bindery
and typesetting employees, salesmen, art department
employees, guards, and all supervisors as defined in
Section 2(11) of the Act.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in their right to self-organi-
zation, to bargain collectively through representatives
of their own choosing, and to engage in concerted ac-
tivities for the purpose of mutual aid and protection as
guaranteed in Section 7 of the Act, or to refrain from
any and all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Richard DeMonico, Joanne Buttacavole,
In the event no exceptions are filed as provided bh Sec. 10246 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 h the Board and become
Its findings. conclusions. and Order, and all objections thereto shall he
deemed walsed for all purposes.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Laverne Vanderhorst immediate and full rein-
statement to their former jobs or, if those jobs no lon-
ger exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges, and make Richard DeMonico, Christopher Car-
son, Alan Cooper, Hector Adorno, Joanne Buttaca-
vole, and Laverne Vanderhorst whole for any loss of
earnings they may have suffered by reason of the dis-
crimination against them, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Rescind the written warnings regarding lateness
and absenteeism issued to six lithographic department
employees on or about March 13, 1978.
(c) Install a working telephone in the color depart-
ment, rescind the timecard system adopted in the li-
thographic department in March 1978, and rescind the
program of written warnings regarding lateness and
absenteeism instituted in the lithographic deparment
in March 1978.
(d) Upon request. recognize and bargain with Local .
Amalgamated ithographers of America, ITU, AFL-CIO.
as the exclusive collective-bargaining representative of the
employees in the bargaining unit described above with re-
spect to wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(e) Preserve and, upon request, make available to the
Board or its agents, for 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 recommended Order.
(f) Post at its place of business in New York, New York,
copies of the attached notice marked "Appendix." 3 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 2, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
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 cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered. de-
faced, or covered by any other material.
(g) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from date of this Order, what steps
Respondent has taken to comply herewith.
Im In the event that this Order is enforced by a Judgment of a L Tited
States ('Court of Appeals, the words i the ioice reading "Posted h ()rdel
of the National l.abor Relations Board" shall read "Posted Pursuant to as
Judgment of the UInited States (Court of Appeals [Enfrrcing an Order of the
National I.hbor Relations Board."
APPENDIX
Noriclt lo EiPL.OYEEs
PosIl ) BY ORDIR (ti IHl
NArIIONAI. LABOR RELAIIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post this notice and to keep our word about what we
say in this notice.
Wi WIL.L NOi discharge, lay off, or otherwise discrim-
inate against employees for supporting a union.
WE WLL.t NOt give the impression that we are spying
on the union activities of our employees.
WI' WllL NO] threaten employees with plant closing,
reduction of jobs, discharge. or in any other way, for
supporting or selecting a union.
WE WILL NOT change working conditions or make
new working conditions in order to discourage em-
ployees from supporting a union.
WI: WILL NOT coercively question employees as to
their membership in a union or union activities in gen-
eral.
WE Wl.L NOT promise, offer, or grant benefits to em-
ployees to persuade them not to support a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to form, join, or assist unions, to bargain collec-
tively through representatives of their own choosing,
to engage in other mutual aid or protection, or to re-
frain from such activities.
WE WILL. rescind the written warnings on absentee-
ism and lateness given to six employees in the lithogra-
phy department on.March 13, 1978: WE WILl reinstall
the telephone to working order in the color depart-
ment: WE WILL rescind the timecard system adopted in
the lithography department in March 1978; and WE
WILL rescind the program of written warnings for ab-
senteeism and lateness adopted in March 1978.
WE WILL offer Richard DeMonico, Joanne Buttaca-
vole, and Laverne Vanderhorst immediate and full re-
instatement to their former jobs or substantially equiv-
alent positions, without loss of seniority or other rights
and privileges, and W}2 WILL make Richard DeMonico,
Christopher Carson, Alan Cooper, Hector Adorno,
Joanne Buttacavole. and Laverne Vanderhorst whole
for any loss of earnings they may have suffered by
reason of their terminations in September 1977.
WE WLL.. upon request, bargain collectively with Lo-
cal 1, Amalgamated Lithographers of America, ITU,
AFL CIO, with respect to wages, hours, and other
terms and conditions of employment of the employees
in the following appropriate unit:
All lithographic employees, excluding all office cler-
ical employees, typesetting and bindery employees,
salesmen, art department employees, guards, and
supervisors.
D V. COPYING AND PRINIIN. INC