Empire State Weeklies, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 13, 2009

03-CA-026884 (N.L.R.B. May. 13, 2009)

JD–18–09
Webster, New York
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
EMPIRE STATE WEEKLIES, INC.
and Case 3–CA–26884
GRAPHIC COMMUNICATIONS CONFERENCE/
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 503
Linda M. Leslie, Esq., for the General Counsel.
James Holahan, Esq. (Bond, Schoeneck & King,
PLLC), of Rochester, New York, for the Respondent.
Daniel Kornfeld, Esq. (Blitman & King LLP),
of Syracuse, New York, for the Charging Party.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. The complaint, issued on December 31,
2008,1 stems from unfair labor practice (ULP) charges that Graphic Communications
Conference/International Brotherhood of Teamsters, Local 503 (the Union) filed against Empire
State Weeklies, Inc. (Respondent or ESW), and alleges violations of Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act).
Pursuant to notice, I conducted a trial in Buffalo, New York, on March 11–12, 2009, at
which the parties had full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. All parties filed helpful posthearing briefs that I have duly
considered.
Issues
Was Ronald Foglia’s discharge on September 22 because of his protected activities on
behalf of the Union?
Did Respondent’s president, David Young, on September 22, unlawfully interrogate
Foglia and convey an impression that Foglia’s union activities were under surveillance?
Did Young, on about September 24, make coercive statements to James Foglia
(hereinafter J. Foglia), Foglia’s son? 2

1 All dates are in 2008, unless otherwise indicated.
2 Relating to this allegation, the General Counsel made a posthearing motion to amend the
complaint. I will address this further in the Facts section.
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Witnesses
The General Counsel called Foglia; J. Foglia; Michael Stafford, the Union’s president;
and Tom Trapp, the Union’s secretary/treasurer.
Respondent called Young and employees Lynn Tabak and William Pawluckie. The
General Counsel has not alleged that Tabak or Pawluckie were supervisors under Section 2(11)
of the Act at any time relevant to this proceeding. Whether they possessed supervisory
authority during the week of September 15 – 19 is not a pivotal issue in this case.
On many matters, the testimony of the General Counsel’s and Respondent’s witnesses
was not necessarily contradictory, taking into account natural variations in recall and
perspective. In the Facts section, I will address areas in which testimony conflicted, and explain
the reasons for my credibility resolutions. I note here the well-established precept that
witnesses may be found partially credible: “‘[N]othing is more common in all kinds of judicial
decisions than to believe some and not all’ of a witness’ testimony.” Jerry Ryce Builders, Inc.,
352 NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754
(2d Cir. 1950), revd. on other grounds, 340 U.S. 474 (1951). Rather, in evaluating its
plausibility, a witness’ testimony is appropriately weighed with the evidence as a whole. Golden
Hours Convalescent Hospitals, 182 NLRB 796, 798–799 (1970).
Facts
Based on the entire record, including testimony, my observations of witness’ demeanor,
documents, and stipulations, I find the following.
Respondent, a corporation with an office and place of business in Webster, New York, is
engaged in the business of commercial printing. Board jurisdiction has been admitted, and I so
find.
Young is Respondent’s president and sole owner. He regularly participates in
operations at the facility, which employs approximately 10 employees.
ESW is comprised of three departments: art/office, press, and bindery. Tabak and two
others work in the art/office department. At times relevant, the press department had about four
employees, including Foglia and J. Foglia; and the bindery department had two to three,
including Pawlucki and Joseph Foglia, another son of Foglia.
ESW leases space in its facility to Max Printing (MP), which occupies an area in the
center of the building that is essentially surrounded by ESW workspace.3 A wide, open
doorway separates the MP work area from the ESW print shop.4
Wayne McCrossen, MP’s owner, employs Glen McCrossen (G. McCrossen), his
nephew, at the premises. For many years, ESW and MP regularly contracted with one another
to do respective customers’ print jobs, depending on the type of printing equipment required.
MP has represented about 7–8 percent of ESW’s gross annual revenues. Most of ESW’s work
for MP consisted of printing campaign literature in the fall season.

3 See Jt. Exh. 2, a diagram.
4 See R. Exh. 4, a photograph.
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MP has been signatory to a labor agreement with the Union and, by virtue of that
relationship, has had union authorization to put the union “bug” or logo on the materials it prints.
Customers may require the logo because it shows that a union shop did the job. ESW used
MP’s union logo on work it performed for MP for MP’s customers.
At all times pertinent, Respondent had four presses in operation, three located in the
main pressroom, and the fourth situated in a larger room that served as a combination bindery
area/pressroom.
Foglia’s Discharge
Young hired Foglia in approximately December 1992, and the latter worked continuously
for him as a press operator for almost 16 years prior to his discharge. At all times relevant, he
worked on the four-color press located in the main printing area.
Respondent has not contended, in its December 15 position statement to the Region,
answer to the complaint, or posthearing brief, that Foglia’s work performance or other conduct
on the job preceding September 18 played any role in Young’s decision to discharge him.
A. Foglia’s Union Activities
In approximately June, Foglia obtained the Union’s phone number from G. McCrossen,
called, and spoke with Trapp. The two met about 2 weeks later at a food court, on Foglia’s
lunch hour. Trapp discussed the benefits to Respondent’s employees of having union
representation, including more work as a result of ESW receiving the right to use the union logo.
Foglia replied that he already printed with it. Trapp responded that ESW, as a nonunion shop,
should not be using the logo, and he asked Foglia to notify him the next time this occurred.
Subsequently, Foglia had numerous phone conversations with Trapp, on the former’s
breaks or lunch hours.5 In them, Foglia provided Trapp with contact information for other
employees.
During this time period, Foglia frequently spoke to his two sons, and he also talked to
press operators Karl Leippe and Shawn Pink, about the benefits the Union offered and whether
they were interested in representation.
In approximately August, McCrossen came up to Young in the facility’s parking lot and
stated that G. McCrossen had said Foglia was “talking with the Union.”6
B. Events of September 17–18
Young went on a scheduled vacation from September 11–22. Before he left, Tabak
requested that he remind Foglia that in his absence, she was in charge of scheduling print jobs.
Young did so.
During the week of September 15, Foglia was scheduled to print the Pontiac Club of
America book (Pontiac job), which ESW prints on a monthly basis. It was at least a 40-hour job.

5 See Jt. Exh. 1, a stipulated listing of phone calls that Foglia made or received from Trapp,
from June 26 on.
6 Tr. 462.
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On September 15, McCrossen told Tabak that he needed ESW to print a job as soon as
possible (the MP job). Tabak assigned it to Foglia, stating that it should take priority over his
Pontiac job.
Foglia first ran the MP job on Tuesday, September 16, as reflected in Respondent’s
Exhibit 2, a press sheet consisting of four pages (two fronts and two back). It was a “political
postcard” or campaign literature for a Democratic candidate for a county position and contained
MP’s union logo.
On the morning of September 17, Foglia called Trapp and told him that Respondent was
about to run the union label again that afternoon. Trapp responded that he had other
commitments and could not come then. Foglia said that he could put it on the following
morning, and Trapp replied that he would be there. After this conversation, Foglia told Tabak
that he would put the job on the first thing the next morning.
The following morning, Stafford and Trapp arrived at the facility. In light of the above, I
find disingenuous Stafford’s testimony that he did not know whom Foglia was at the time. The
same holds true for his testimony that the purpose of their visit related to speaking with
McCrossen about contract revisions and that he happened to come upon an employee running
a job with the union logo. In this regard, neither Trapp nor Stafford called to make an
appointment with McCrossen, who was not even there that morning.

Stafford and Trapp first spoke with G. McCrossen. Afterward, they approached the four-
color press on which Foglia was running the MP job. Stafford told Foglia that ESW was not a
union shop, that he was not supposed to be running the job, and to stop. He asked who was in
charge. Foglia pointed to Pawluckie and continued with the job.
Stafford and Trapp went over to Pawluckie. Stafford asked if he was in charge and said
that Respondent could not print the job. Pawluckie responded that Young was in charge but
was on vacation.
Pawluckie went over to Foglia, who was still running the MP job. Pawluckie either
“suggested” (Pawluckie) or “insisted” (Foglia) that Foglia stop the job until Tabak was aware of
what was going on. Foglia did so. The difference in their characterization is immaterial
because Respondent does not contend that Foglia acted improperly at that point.
In finding facts in the events that follow, I give the greatest weight to Tabak’s testimony
and credit it where it differed from that of other witnesses. Tabak testified in detail and with a
seemingly good recall, and she did not appear to make deliberate efforts to skew her testimony
in Respondent’s favor. In this regard, I note that her testimony did not fully corroborate Young’s.
After speaking with Foglia, Pawluckie proceeded to Tabak’s office, where he told her
what had occurred. She followed him out to the pressroom. Foglia’s press was not running.
She asked what had happened. He replied that two union men had come up and told him that
he could not run the job because of the union label.
Tabak next went to the MP shop, where Stafford and Trapp were talking to G.
McCrossen. Stafford had the press sheet in his hand, waved it in front of her face, and said that
ESW could not print it because it had the union logo. She responded that neither Young nor
McCrossen were there and that ESW was printing the job it was hired to do. Stafford inquired if
she would print counterfeit money if asked. G. McCrossen suggested that everyone calm down,
saying that he had called McCrossen. He further suggested that Stafford and Trapp leave and
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that McCrossen would call them when he came in. Before they left, Tabak asked them for some
kind of identification, and Stafford gave her his business card.7
After that, Tabak spoke with McCrossen about the MP job and then returned to the four-
color press. The MP job was still loaded, but Foglia was standing there. She asked if he had
pulled the MP job from the press yet. He said no, and she told him to go ahead and finish it.
Tabak left and came back about 10–15 minutes later. Foglia was talking to Pink, and
the press was not running. She heard Foglia mention McCrossen’s name and asked him if he
wanted to speak with McCrossen, who was on his way. Foglia said no, “I’m just questioning
your authority.”8 She asked, her authority for what. He replied, “To tell me to print this job.”9
Tabak stated that she had talked to McCrossen by phone, and he wanted his job finished.
Foglia responded that he did not care what McCrossen said because McCrossen was not his
boss. She again asked him to finish the job.
About 10–15 minutes later, Tabak was at a computer with a direct view of the four-color
press. She went over and saw that it was still not running. Foglia was still standing by the
press but was not engaged in any work activity. She made the decision at that point that
the press should be operating rather than idle, and she told him that if he was not comfortable
doing the MP job, to go ahead and put the Pontiac job back on. He did so. There is no
evidence that any other employees’ work was disrupted that morning.
At the facility on Sunday afternoon, September 21, Tabak and Young discussed the
events of September 18. She also related that on September 17, Foglia had come to her and
said he was going to print the MP job the following morning. By his own testimony, Young
construed as union activity what he heard about Foglia’s conduct. Thus, in response to the
Charging Party’s counsel’s question of when he knew of Foglia’s union activity, Young
mentioned that his summer conversation with McCrossen was the “only information that I knew
until I met with Lynn Tabak on [September 21].”10
Young testified that he discussed with Tabak the impact on ESW of not being able to
continue to print for MP. However, she mentioned nothing about this, testifying that in response
to her recitation of what had taken place, he simply stated that he would think about it.
Young further testified that before he made a final decision to terminate Foglia, he
wanted to speak with McCrossen “to get more information on what had transpired on
[September 18].”11 Yet, McCrossen was not even present at the facility during the events in
question, so he had no first-hand knowledge thereof.
The following day, Young spoke with McCrossen, who stated that Respondent had lost
four printing jobs from MP on September 19 because the Union was watching over him. He
added that Respondent would probably not be able to do any political work for MP that year.
Young testified that he decided to discharge Foglia after speaking with McCrossen.

7 See CP Exh. 1.
8 Tr. 384.
9 Ibid.
10 Tr. 462.
11 Tr. 447.
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Respondent did not complete the MP job and was not able to invoice McCrossen for any
of the work done. The approximate invoice value was $1500, and the cost of materials and
other items used was about $800. Although Young testified that the reason the MP job was not
finished was Foglia's refusal to print it, he also testified, inconsistently, that another person
could have operated the necessary press and that there was time to print the job after the
refusal.
C. Events of September 22
When Foglia came in to work that morning, he saw that his work notes and Stafford’s
business card that had been on his desk since September 18 were missing. At about 9:30 a.m.,
Young approached and asked to see him in his office.
Their respective versions of the discharge interview that took place differed greatly,
especially on what Young said about the Union. In resolving this credibility matter in Foglia’s
favor, I find it significant that Young admittedly asked each of the other four shop employees,
one-by-one, almost immediately after he discharged Foglia, “if they had an interest in having a
union.”12 Revealing, too, was Young’s testimony that at the time he discharged Foglia, he had
derogatory feelings about him because he had refused to do the job for Tabak after having been
specifically told to follow her instructions, and also “the fact . . . that he had instigated the whole
scenario with the union people coming in.”13 I find as follows.
When they arrived in Young’s office, Foglia asked about his notes and the business
card. Young responded, “What’s going on with this union?”14 Foglia replied that Stafford had
left his business card and that he (Foglia) had wanted a better education on why he should not
print the union logo and had gotten it. Young then stated that Foglia had been working with the
union for months. Foglia asked where he had heard that, and Young answered, “I have my
sources.”15 Foglia asked who, and Young replied that he could not tell him. Foglia denied it.
Young went on to say that he had just lost an $180,000 contract because of it, MP was
in “deep shit,” and in no way, shape, or form would the Union be formed in ESW. Young next
stated that he needed Foglia’s letter of resignation by the end of the day. Foglia said he
(Young) could not do that, Young asked why not, and Foglia responded, “Fuck you. I’m out of
here now.”16 He left at that point.
Even if Young’s account is credited over Foglia’s, Young indicated that the discharge
went beyond Foglia’s conduct in refusing to finish the MP printing job. Thus, according to
Young, when Foglia came into his office, Foglia said that he bet this had something to do with
the two union guys, and Young gave the rather contradictory response, “No, it really doesn’t, but
in a way, it does,” and then went on to explain the cost of losing the particular MP job and other
MP jobs.17 Respondent’s position statement relates that Young told Foglia that his services
were terminated “because of the substantial loss of printing business in the first half of 2007 [sic]

12 Tr. 448. For reasons stated infra, I find that he interrogated them between about 9:30 and
11 a.m. that day.
13 Tr. 465—466.
14 Tr. 268.
15 Ibid.
16 Ibid.
17 Tr. 424.
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and the anticipation of a reduction of printing work from Max Printing.”18 These were the same
reasons advanced for Foglia’s termination in the September 22 letter that Young prepared at
Foglia’s request.19
Between about 9:30 and 11 a.m., Young spoke to each of the four shop employees on
an individual basis and asked whether they were interested in having a union. They all said
no.20 Although Young testified that he spoke to the employees probably in the midafternoon,
about 4—5 hours after he discharged Foglia, I credit the testimony of Stafford and Trapp that
Young mentioned his questioning of employees at their meeting with him at about 11 a.m. In
this regard, the chronology set out in Respondent’s position statement also has Young’s
questioning of employees preceding his meeting with Stafford and Trapp “[l]ater that morning.”21

After hearing of Foglia’s discharge, Stafford and Trapp came to the facility at about 11
a.m. and asked McCrossen to set up a meeting between them and Young. McCrossen did so.
After introductions in Young’s office, McCrossen left.
The versions of Young vis-à-vis Stafford, and Trapp of what was said at their meeting
were consistent in many respects. To the extent they differed, I credit Stafford and Trapp,
whose accounts were quite similar but not identical (for example, on how the meeting ended),
and find the following facts.
Stafford and/or Trapp stated that reinstatement of Foglia was necessary before any
other arrangements could be made between ESW and the Union. Young replied that he would
not reinstate Foglia because he had brought employees back in the past, and they had not
worked out. He also alluded to Foglia’s “mood” problems and said that he should have fired him
earlier. They explained the advantages that Young would receive if ESW became a union shop,
including health care and retirement benefits, and the ability to use the union logo. He asked if
he could be an affiliate or associate member and have his employees pay an association fee
but not be union members, in order to be able to use the union logo. In this regard, he said that
he had gone around and asked everybody if they wanted to join a union, and nobody did; they
were happy with the status quo. Stafford stated that he did not believe such an arrangement
was possible but would look into it.
Young’s Statements to James Foglia
J. Foglia (hereinafter Foglia in this section) was employed from September 2002 until his
discharge in approximately February 2009. ULP charges regarding the discharge were pending
at the time of the trial. I draw no inferences on his credibility from those facts. I have taken into
account that he would have a natural tendency to testify favorably to his father. Nevertheless,
he appeared to be forthright, albeit somewhat nervous, during his testimony, which was detailed
as far as the pertinent conversation he had with Young.

18 GC Exh. 4 at 1.
19 See GC Exh. 5. I accept as reasonable Young’s testimony that he avoided putting
anything derogatory in the letter because Foglia would be using it to seek other employment.
20 The General Counsel does not allege any such questioning as a violation of the Act.
Paragraph VI(a)(1) of the complaint speaks of interrogation of “an employee about the
employee’s union membership . . . ;” referring to Foglia. As to Paragraph VI(a)(2), which refers
to creating an impression of surveillance “among its employees,” no evidence of such is in the
record pertaining to employees other than Foglia.
21 GC Exh. 4 at 2.
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As noted earlier, the General Counsel made a posthearing motion, dated April 9, 2009
(all dates in this paragraph are in 2009), to amend paragraph VI(b) of the complaint, the
allegation pertaining to Young’s statements to Foglia, to conform to Foglia’s testimony,22 and a
memorandum of the same date in support of said motion. Respondent then filed a request to
extend the time for filing briefs for at least 2 weeks “to review and respond to this motion.” The
General Counsel next filed a motion in opposition to Respondent’s request to extend time to file
briefs. By order dated April 15, Chief Administrative Law Judge Robert A. Giannasi referred
both motions to me, and by order of the same date, I deferred a ruling on the General Counsel’s
motion to amend, and denied Respondent’s motion to postpone the filing of briefs. As I noted
therein, this matter is also the subject of a 10(j) proceeding in Federal District Court, making
time of the essence in the issuance of my decision.
In addressing this issue, I am compelled to analogize it to the proverbial tempest in a
teapot. Suffice to say, the amendment is merely a partial rephrasing of an existing allegation to
reflect Foglia’s testimony, Respondent had a full opportunity to rebut that testimony during its
case in chief, and I see absolutely no prejudice to Respondent in allowing it. Accordingly, I
grant the General’s Counsel’s motion to amend. See Payless Drug Stores, 313 NLRB 1220,
1220–1221 (1994); Pincus Elevator & Electric Co., 308 NLRB 684, 684–685 (1992), enfd. mem
998 F.2d 1004 (3d Cir. 1993).
Foglia testified about a conversation he had with Young on about September 25 (a
Thursday), upon his return to work after being off for 1 week due to a back injury. He
specifically testified that he was out the week that his father was terminated (September 22–26),
inconsistent with a September 25 conversation and with his timecard for the week ending
September 28, showing that he worked on September 23–24.23 He never offered an
explanation for these inconsistencies. On the other hand, Respondent provided a physician’s
note dated October 7, excusing J. Foglia from work until “at least 10/15/08.”24 Possibly, he may
have been out more than once for a week-period during the relevant timeframe, but speculation
cannot substitute for evidence.
J. Foglia testified that he was at his press at about 8–8:15 a.m. on the day of the
conversation, when Young asked him to come to his office. There, Young discussed Foglia’s
back injury, limitations he might have, and accommodations Respondent was making for him.
Young went on to state that the company was legally performing the jobs it was doing and
would continue to do so. He told Foglia to “get this union thing out of your head.”25 Foglia
asked how that pertained to him, and Young replied, because he was a Foglia. He went on to
say that ESW was not doing well and that everyone needed to pull together to get out of the
slump.
Young did not specifically address the statements attributed to him by Foglia at a
September 25 meeting. According to Young, they had a conversation after Foglia returned to
work on October 15, following leave due to his back injury. They discussed his back condition
and his ability to perform his duties. He mentioned Foglia’s absenteeism and that with today’s
economy, everyone had to pull together.

22 To change “Told an employee not to talk about unions“ to “Made an implied threat of
unspecified reprisals by telling an employee to ‘get this union thing out of your head.’”
23 GC Exh. 6.
24 R. Exh. 6.
25 Tr. 203.
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I do not believe that Foglia fabricated his account of what Young said in the
conversation, and I find it consistent with other evidence of record, including Young’s own
testimony. I therefore credit it as far as content only because, for the reasons stated earlier,
there is a foundational problem in establishing the date.
Analysis
The framework for analyzing alleged violations of Section 8(a)(3) is Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). This
analysis also applies to alleged discrimination for protected concerted activity under Section
8(a)(1) when employer motivation is at issue. Benjamin Franklin Plumbing, 352 NLRB 525
(2008); General Motors Corp., 347 NLRB No. 67 slip op. 3 at fn. 3 (2006) (Not published in the
bound volume).
Under Wright Line, the General Counsel must make a prima facie showing sufficient to
support an inference that the employee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or circumstantial evidence, that the
employee engaged in protected conduct, the employer knew or suspected the employee
engaged in such conduct, the employer harbored animus, and the employer took action
because of this animus.
Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. The burden
of persuasion then shifts to the employer to show that it would have taken the same adverse
action even in absence of such activity. NLRB v. Transportation Corp., 462 U.S. 393, 399–403
(1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002); Serrano Painting, 332 NLRB
1363, 1366 (2000); Best Plumbing Supply, 310 NLRB 143 (1993). To meet this burden, “an
employer cannot simply present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have taken place even in the
absence of the protected conduct.” Serrano Painting, supra at 1366, citing Roure Bertrand
Dupont, Inc., 271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pretext, i.e., the reasons given for
the employer’s actions are either false or not in fact relied on, the employer fails by definition to
show that it would have taken the same action for those reasons, and there is no need to
perform the second part of the Wright Line analysis. SPO Good-Nite Inn, LLC, 352 NLRB 268,
269 (2008). On the other hand, further analysis is required if the defense is one of “dual
motivation,” that is, the employer defends that, even if an invalid reason might have played
some part in the employer’s motivation, the employer would have taken the same action against
the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d
323, 223 (D.C. Cir. 2006).
Conceptually, Foglia’s conduct can be bifurcated: seeking union representation starting
in about June, and arranging the Union’s arrival on September 18 to confirm what it considered
Respondent’s improper use of the union logo.
As to the first, Foglia contacted the Union about organizing Respondent’s employees,
and he spoke to several of them regarding the benefits of becoming unionized and whether
they would be interested in supporting the Union. This conduct was clearly protected activity
under Section 8(a)(3).
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Regarding the second, Foglia on September 17–18 notified the Union that he was
running a job with the union logo and offered to postpone the job until the following morning so
that the Union could be present. The case most on point, cited in all counsels’ briefs, is Circle
Bindery, 218 NLRB 861, 861–862 (1975), enfd. 536 F.2d 447, 452 (1st Cir. 1976). Therein, the
Board held protected under Section 8(a)(3) an employee’s efforts to bring to a labor
organization’s attention a nonunion company’s use of the union logo licensed to a unionized
employer. As the Board stated, “To the extent a licensee [here, MP] . . . violates its agreement
with a union . . . union members are deprived of work contractually reserved to them.” 218
NLRB at 862.
Respondent points out in its brief (at 14) that the employee in Circle Bindery was a union
member, unlike Foglia, and avers that his conduct was therefore not concerted. I do not
consider this distinction significant. Nor does the fact that Foglia’s conduct may have inured
directly to the benefit of employees of other companies make it any less protected. As the
Supreme Court has held, Section 2(3)’s provision that the term “employee . . . shall not be
limited to the employees of a particular employer unless the Act explicitly states otherwise” was
“intended to protect employees when they engage in otherwise protected activities in support of
employees of employers other than their own.” Eastex, Inc. v. NLRB, 437 U.S. 563, 564–565
(1978). See also Coca Cola Bottling Co. of Buffalo v. NLRB, 811 F.2d 82, 87 (2d Cir. 1988);
Misericordia Hospital Medical Center v. NLRB, 623 F.2d 808, 812, 815 fn. 8 (2d Cir. 1980).
Based on the above, I conclude that this conduct of Foglia also constituted union activity
within the meaning of Section 8(a)(3).
Since the General Counsel alternatively alleges that Foglia’s conduct regarding the logo
came under Section 8(a)(1) protected concerted activity, I will address that matter, in particular,
the necessary element of “concerted.” The Supreme Court has also held that “[T]he language
of §7 does not confine itself to situations where two or more employees are working together at
the same time and the same place toward a common goal, or to situations where a lone
employee intends to induce group activity or acts as a representative of at least one other
employee.” NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 822–823 (1984). In that case,
the Court held that a lone employee’s refusal to drive what he deemed an unsafe vehicle, based
on his invocation of a right under the collective-bargaining agreement, constituted concerted
activity because it affected the rights of all employees under the agreement. I therefore
conclude that the General Counsel has established the necessary element of “concerted” and
that Foglia’s actions constituted protected concerted activity.
Respondent argues that Foglia was “disloyal” and his conduct removed from protection
because he arranged to meet with Trapp so that he would be “caught” printing the MP job, and
because he precipitated the “workplace disruption” on September 18.26 Regardless of whether
one agrees or disagrees with the course of action the Union took, the fact remains that Foglia’s
efforts to assist the Union in determining if a nonunionized company was improperly using the
union logo was protected activity, as the cases above establish. Nor does the record show a
“workplace disruption,” there being no evidence that any other employees ceased work.
I will address Foglia’s conduct with Tabak when discussing Respondent’s defenses.
Turning to knowledge of Foglia’s protected activity, Young admittedly heard from
McClendon in August that Foglia was “talking with the union.” His testimony reflected that he
considered the events of September 18 also to be union activity on Foglia’s part. In the

26 R. Br. at 16.
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discharge interview on September 22, Young brought up Foglia’s union activities, including what
had occurred on September 18. Accordingly, I conclude that the element of knowledge has
been established by direct evidence.
As to the element of animus, Young admitted that when he discharged Foglia, he had
derogatory feelings about him because “he had instigated the whole scenario with the union
people coming in.” Animus also can be inferred from the following. First, Young stated at the
beginning of the termination interview that Foglia had been working for the Union for months,
and, later in the meeting, that ESW would never have a union. Second, almost immediately
after the interview, Young went around and questioned employees about their union
sympathies. Third, in Young’s September or October conversation with J. Foglia, Young stated
that the company was legally performing the jobs it was doing and would continue to do so, told
J. Foglia to “get this union thing out of your head” and, when J. Foglia asked how that pertained
to him, replied because he was a Foglia. These statements obviously referred to Foglia and his
union activities. Thus, animus has been shown.
Foglia’s discharge, at which Young cited his union activities, satisfies the final necessary
element (action), and I therefore conclude that the General Counsel has established a prima
facie case of unlawful termination.
Had Respondent timely raised Foglia’s insubordination to Tabak on September 18 as a
reason for the discharge, I would treat this case as one as one of dual motivation since “It is
axiomatic that an employer may lawfully take appropriate action, including discipline and
discharge, to address an employee’s insubordination.” Amerisino Markets Group, LLC, 351
NLRB 1055, 1056 (2007). See Oaktree Capital Management , LLC, 353 NLRB No. 127 Slip op.
at 1 (2009) (cursing at a coworker a legitimate ground for discipline that raised need for dual-
motivation analysis).
However, Young did not cite “insubordination” as a basis for Foglia’s discharge either at
the time he discharged Foglia or in his meeting with Stafford and Trapp when they sought his
reinstatement. Neither was insubordination mentioned in Respondents position statement to
the Region, or even in Respondent’s answer to the complaint. Respondent’s 11th-hour
interjection of “insubordination” as a new reason leads to the inference that it is a mere pretext
and to the applicability of the doctrine holding that shifting reasons advanced by an employer
undermine their credence. See Abbey’s Transportation Services v. NLRB, 837 F.2d 575, 581
(2d Cir. 1988); Tracer Protection Services, 328 NLRB 734, 734 (1999); Scientific Ecology
Group, Inc., 317 NLRB 329, 329 (1995).
I note that even had insubordination been timely raised as a defense, I would have to
conclude that the punishment of discharge for this one instance of insubordination by a 16-year
employee raises a red flag that the discharge was based on unarticulated unlawful reasons
rather than the one cited. See Detroit Paneling Systems, Inc., 330 NLRB 1170 (2000); Neptune
Water Meter Co. v. NLRB, 551 F.2d 568, 570 (4th Cir. 1977).
Regardless of whether a pretext or dual-motive standard is applied, Respondent faces a
fundamental problem: Young’s statements and actions, as well as his testimony about his state
of mind at the time he discharged Foglia, show that Foglia’s protected activities were the major
motivating reason for Foglia’s discharge. At the termination interview, Young interrogated
Foglia about his union activities and stated that Foglia had been working for the Union for
months. Almost immediately after the interview, he went around and questioned employees
about their union sympathies, and in a later conversation with J. Foglia, he implicitly referenced
the union logo matter and essentially told him that he should not be prounion like his father.
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Moreover, Young testified that at the time he discharged Foglia, he harbored animosity toward
him for having instigated the Union coming into the facility.
Even Young’s statements that Foglia was terminated because of a reduction of printing
work from MP indirectly related to Foglia’s protected activity regarding the logo, since the loss of
that work resulted directly from the Union’s pressure on McClendon not to continue to allow
ESW to use MP’s union logo.
In this regard, Respondent could not lawfully discipline Foglia because of its loss of MP
business due to MP’s obligations to the Union with respect to the union logo. See Circle
Bindery, supra at 862. In affirming the Board in that case, the First Circuit Court of Appeals held
(535 F.2d at 452) that “[c]oncerted activity that is otherwise proper does not lose its protected
status simply because it is prejudicial to the employer.” In Misericordia Hospital Medical Center,
supra at 815, the Second Circuit Court of Appeals cited this language with approval and added,
“To hold otherwise would be to render meaningless the rights guaranteed to employees by
Section 7.” The Court in Circle Bindery noted that any economic loss the nonunion employer
suffered was a result of losing union-label work that it was not entitled to perform in the first
place. Ibid at 453 fn. 7. Such was the situation here.
In sum, I conclude that Respondent’s defenses were either legally invalid or pretexts and
that Foglia was discharged on September 22 because of his protected activity on behalf of the
Union. The discharge therefore violated Section 8(a)(3) and (1) of the Act.
Independent Violations of Section 8(a)(1)
I start with Young’s statements to Foglia at the September 22 discharge meeting in
Young’s office. In response to Foglia’s question about the union business card that was missing
from his desk, Young asked, “What’s going on with this union?” After Foglia responded that he
had wanted a better education on why ESW should not use the union log, Young replied that he
(Foglia) had been working with the Union for months. When Foglia asked where he heard that,
Young replied, “I have my sources” and refused to provide further information. Young
proceeded to tell Foglia that he was being terminated.
The above statements were clearly coercive, and I conclude that Young violated Section
8(a)(1) by (1) interrogating Foglia about his union membership, activities, and sympathies and,
(2) creating an impression that Foglia’s union activities were under surveillance.
I turn to J. Foglia’s account of a conversation he had with Young in which the latter made
certain statements pertaining to the Union. I do credit him that at some point the conversation
occurred and am mindful that I found Young’s statements therein to reflect animus toward
Foglia because of his union activity. However, for such purpose, the date of the conversation is
not critical; whether it occurred on about September 25 (J. Foglia), October 15 (Young), or even
months after Foglia’s discharge would make no difference.
Here, I address whether findings of independent 8(a)(1) violations can be based on
witness testimony that is not reliable as to the date of their occurrence. Both J. Foglia and
Young testified about one conversation in which they discussed the former’s back condition, so
presumably they were referring to the same conversation, despite their differing accounts of
what was said about the Union. J. Foglia testified that he had the conversation on about
September 25, after being out for a back injury for a week, the week that his father was
terminated. Yet, his father was terminated on September 22, and time records show that J.
Foglia worked on September 23–24. He never offered an explanation for these discrepancies.
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Furthermore, other records implicitly corroborate Young’s testimony that they had this
conversation on October 15.
Section 10(b) of the Act, 29 U.S.C. § 160(b), and Section 102.39 of the Board’s Rules
and Regulations provide that ULP proceedings “shall, so far as practicable, be conducted in
accordance with the rules of evidence applicable in the district courts of the United States.”
This reflects the status of ULP hearings as formal legal proceedings under the Administrative
Procedures Act of 1946 (APA), 5 U.S.C. §§ 511–599. See also Federal Maritime Commission
v. South Carolina, 535 U.S. 743, 756–757 (2002); Butz v. Economou, 438 U.S. 478, 513 (1978).
Section 556(d) of the APA specifically states that except as otherwise provided by statute, the
proponent of a rule or order has the burden of proof, consistent with our general jurisprudence.
Accordingly, since the General Counsel failed to establish a satisfactory foundation for
the allegations relating to J. Foglia, I recommend their dismissal.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act: Discharged Ronald Foglia because he engaged in protected activities on behalf
of the Union.
4. By the following conduct, Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act and violated Section 8(a)(1) of
the Act:
(a) Interrogated Foglia about his union membership, activities, and sympathies.
(b) Created an impression that Foglia’s union activities were under surveillance.
Remedy
Because Respondent has engaged in unfair labor practices, it must be ordered to cease
and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Since Respondent discharged Ronald Foglia in violation of Section 8(a)(3) and 8(a)(1), it
must offer him reinstatement and make him whole for any loss of earnings and other benefits in
accordance with Ogle Protective Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I
deny the General Counsel’s request for compound interest, based on the Board’s decision in
National Fabco Mfg., 352 NLRB No. 37 slip op. at 3 fn. 4 (2008).
ORDER
Empire State Weeklies, Inc., Webster, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise disciplining employees because they engage in activities
on behalf of Graphic Communications Conference/International Brotherhood of Teamsters,
Local 503, or otherwise engage in protected concerted activities.
(b) Interrogating employees about their union membership, activities, or sympathies.
(c) Creating an impression to employees that their union activities are under surveillance.
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(d) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights that Section 7 of the Act guarantees to them.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Ronald Foglia full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make employee Ronald Foglia whole for any loss of earnings and other benefits he
suffered as a result of his unlawful discharge, in the manner set forth in the remedy section of
the decision.
(c) Within 14 days of the Board’s Order, remove from its files any references to the
September 22, 2008 discharge of Ronald Foglia, and within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not be used in any way against him.
(d) Within 14 days after service by the Region, post at its facility in Webster, New York,
copies of the attached notice marked “Appendix.”27 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by Respondent’s authorized
representative, shall be posted by Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respondent at any time since
September 22, 2008.
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. May 13, 2009.
____________________
Ira Sandron
Administrative Law Judge

27 If this Order is enforced by a judgment of a United States court of appeals, the words
in the notice reading “Posted by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT discharge or otherwise discipline you for your activities on behalf of
Graphic Communications Conference/International Brotherhood of Teamsters, Local 503, or
any other labor organization, or otherwise engage in protected concerted activities.
WE WILL NOT interrogate you about your union membership, activities, or sympathies.
WE WILL NOT create an impression that your union activities are under surveillance.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL make Ronald Foglia whole for any loss of pay or other benefits suffered as a
result of our discrimination against him.
WE WILL within 14 days from the date of this Order, offer full reinstatement to Ronald
Foglia to his former position of employment, or if such a position is no longer available, to a
substantially equivalent position, without prejudice to any seniority or other rights and privileges
he previously enjoyed.
WE WILL remove from our files any reference to the unlawful discharge of Ronald
Foglia, and within 3 days thereafter notify him in writing that this has been done and that the
discharge will not be used against him in any way.
EMPIRE STATE WEEKLIES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
111 West Huron Street, Federal Building, Room 901
Buffalo, New York 14202-2387
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.