Great Eastern Color Lithographic Corp., 911 (1961)

Docket Number:03-CA-01503
 
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DECISION AND ORDER • On March 28, 1961, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 'had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other,unfair labor practices alleged in the complaint ,and recommended dismissal of those allegations. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and supporting briefs, and the Respondent also filed a request for oral argument.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers-in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown].

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications 2

We do not agree with the Trial Examiner's finding that the discharge of employee Pace by Frank Perretta violated Section 8(a) (3).

Pace had a bad record of absences during his approximately 6 months of employment and was, discharged almost immediately upon his ' As the record , including the exceptions and briefs , adequately sets forth the issues and positions of the parties, the request is hereby denied.

a In his Intermediate Report the Trial Examiner , in referring to a statement by Louis Perretta, the Respondent's president, to an employee that he could find work elsewhere because he had joined the Union , inadvertently stated that such statement was made to employee Case, when he obviously meant employee Cross. However, this error does not affect the correctness of the Trial Examiner's conclusion that such statement constituted a violation of Section 8(a) (1) of the Act.

133 NLRB No. 89. .

return to work after 21/2 days' absence about which he had given the Respondent no notice.' At the time, it was made clear to Pace that he was being let go because of his absences and because of his repeated failure to notify the Company when he would be away. Neither shortly before, at the time of, nor after the event did Respondent engage in any conduct indicating that the discharge of Pace had been caused by other than the reasons stated. To be sure, as we have found in agreement with the Trial Examiner, the Respondent had engaged in various unlawful conduct demonstrating hostility toward union activities and towards Pace for engaging in such activities.

But the exhibition of resentment toward Pace occurred some 2 weeks before his discharge 4 and there is nothing in the record suggesting that Respondent during that intervening period was seeking a pretext to rid itself of Pace because of his union activities. Consequently, in view of the valid grounds for discharge, we find that the General Counsel has failed to show that antiunion motivation was responsible in whole or in part for Pace's discharge and that Pace's improper conduct occurring immediately before the event was not in fact the sole cause of his discharge. Accordingly, we find that Respondent did not violate Section 8(a) (3) and (1) of the Act in discharging employee Pace on September 28, 1960.

ORDER

Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Great Eastern Color Lithographic Corp., its officers, agents, successors, and assigns, shall :

1. Cease and desist from :

(a) Discouraging membership in Local 52, Amalgamated Lithographers of America, or any other labor organization of its employees, by discharging or refusing to reinstate them or by discriminating against them in any other manner in regard to hire or tenure of employment or any other term or condition of employment, except to the extent permitted under Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.

(b) Interrogating employees concerning their union activities, in a manner constituting interference, restraint, or coercion, in violation of Section 8 (a) (1) of the Act.

s Pace testified that he attempted to give Respondent notice of his absence through another employee , but the fact remains that Respondent did not in fact receive such notice * Thus, the , situation involving Pace is distinguishable from those involving Cross,

Pellizzari„ and Case, whose discharges ,, we find in agreement with the Trial Examiner, violated Section 8 ( a)(3), for the record shows with respect to these three employees that the Respondent engaged in conduct shortly before or at the time of their 'discharge demonstrating antiunion motivation in discharging them. ^ , I GREAT EASTERN COLOR LITHOGRAPHIC CORP. 913 (c) Telling employees that union membership may cause loss of employment, or that nonmembership gives promise of improved terms of employment.

(d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local 52, Amalgamated Lithographers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the LaborManagement Reporting and Disclosure Act of 1959.

2. Take the following affirmative action which the Board finds will effectuate the policies of the Act :

(a) Offer Patrick Case, Benjamin Cross, and Joseph Pellizzari immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy.' (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, socialsecurity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of reemployment under the terms of this Order.

(c) Post at its plant at Poughkeepsie, New York, copies of the notice attached hereto marked 'Appendix.' 5 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's authorized representative, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material.

(d) Notify the Regional Director for the Third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith.

5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words 'Pursuant to a Decision and Order' the words 'Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order ' 624067-62-vol. 133-59

IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unlawful discrimination in employment against Charles Brown, Joseph Colliere, Robert Olivet, Arthur Smith, and Salvatore Pace.

APPENDIX

NOTICE TO ALL EMPLOYEES

Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that :

WE WILL NOT discourage membership in Local 52, Amalgamated Lithographers of America, or in any other labor organization of our employees, by discharging or refusing to reinstate them, or by discriminating against them in any other manner in regard to hire or tenure of employment or any other term or condition of employment, except to the extent permitted under Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.

WE WILL NOT interrogate employees concerning their union activities in a manner constituting interference, restraint, or coercion, in violation of Section 8 (a) (1) of the Act.

WE WILL NOT tell employees that union membership may cause loss of employment, or that nonmembership gives promise of improved terms of employment.

WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to selforganization, to form labor organizations, to join or assist Local 52, Amalgamated Lithographers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor...

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