The Ann Arbor Press

In the Matter of ARTHUR J. WILTSE, DOING BUSINESS AS THE ANN ARBOR PRESS and BINDERY WORKERS UNION LOCAL 20, INTERNA- TIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L. Case No. 7-CA-39.-Decided July 8,1949 DECISION AND ORDER On February 4, 1949, Trial Examiner Myers D. Campbell, Jr., issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that he cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the complaint be dismissed insofar as it alleged that the Respondent had engaged in certain other unfair labor prac- tices. Thereafter, the Respondent and the General Counsel filed excep- tions to the Intermediate Report, and the Respondent filed a brief in support of his exceptions. 0 Pursuant to the provisions of Section 3 (b) of the Act, as amended; the National Labor Relations Board has delegated its powers in con- nection with this proceeding to a three-member panel Chairman Her- zog and Members Houston and Murdock]. The Respondent's request for oral argument is hereby denied, as the 'record, exceptions, and briefs, in our opinion, adequately present the issues and the positions of the parties. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except insofar as they are inconsistent with the additions, exceptions, and modifications hereinafter set forth. 1. The Respondent contended, at the hearing and in his brief, that the complaint herein should be dismissed. on the following grounds : 85 N. L. R. B. No. 12. 58 ANN ARBOR PRESS' 59 (a) The character of Respondent's business is essentially local, and it would therefore not effectuate the policies of the Act to assert juris- diction over the Respondent. (b) The record does not affirmatively indicate the compliance of the charging Union with Section 9 (f), (g), and (h) of the amended Act. (c) Service of the charge did not conform to the requirements of Section 10 (b) of the amended Act. We find no merit in any of these contentions, and the motions to dismiss are hereby denied for the following reasons : On commerce facts similar to those set out in the Intermediate Re- port, it was held, in a prior proceeding before the Board, that the business now operated by the Respondent affected commerce within the meaning of the original Act.:' No reason appears for altering that position now. Accordingly, for the reasons stated by the Board and the court in that case, as well as those stated by the Trial Examiner herein, we find that the Respondent is engaged in commerce within the meaning of the amended Act. With respect to the Respondent's contention based upon Section 9 (f), (g), and (h), we have recently decided that in complaint cases, as well as in representation cases, compliance with this section is a matter for administrative determination and is not litigable by the parties? Inasmuch as we are administratively advised that the Union has fully complied with the filing requirements, we shall reject this contention. With respect to his further ground that service of the charge did not conform to the requirements of Section 10 (b), Respondent argues that the charge was not served by the charging party, that service was not personal, and that service was not made upon him within the period specified by Section 10 (b); because his son accepted the regis- tered mail containing the charge and he himself did not learn of the charge until more than 6 months after the occurrence of the alleged violations. However, we have recently held that service of the charge by the Regional Director, as was the case here, is proper.3 And while it is true that Section 10 (b) speaks of service upon the person, we do not agree with the Respondent that the phrase is used in the strict sense or as a word of art so as to exclude service other than personal. The com- prehensive usage of this phrase is shown by Section 11 (4), which 1 Matter of Horace G. Prettyman et at., 12 N. L. R. B. 640, rev. on other grounds, 117 F. 2d 786 (C. A. 6). 2 Matter of Paul's Valley Milling Company, 82 N. L. R. B. 1266. 3 Matter of Erving Paper Mills, 82 N . L. R. B. 434. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD states that service shall be "either personally or by registered mail or by telegraph or by leaving a copy thereof at the principal office or place of business of the person required to be served." The respondent argues that Section 11 (4) does not apply to service of the charge, because that Section refers to "complaints, orders, and other process and papers of the Board," and the charge is none of these. We do not agree with the Respondent that Section 11 (4) does not apply to the charge. But, even granting that Section 11 (4) is not applicable, con- sistency requires that, if service upon the person is used in the first part of Section 10 (b) to mean both personal and substituted service, the same meaning should attach to the same words in the proviso to the same section. We therefore find no merit in this contention, and con- clude that service of the charge by registered mail satisfies the require- ments of the amended Act.' Nor do we find that service was not properly made within the statu- tory period. Well within this period, on February 9, 1948, a copy of the, charge was sent to the Respondent by registered mail, and accepted for the Respondent on February 10, 1948, by his son, who was also an employee. The record indicates that mail was in fact regularly accepted by persons other than the Respondent, despite Wiltse's denial that any one was authorized to do so. Moreover, we note that the com- plaint herein, which the Respondent admits he has received, and as to the service of which no question is raised, was, similarly to the charge, served by registered mail and received by one of the Respondent's employees. We therefore conclude, as apparently did the Trial Examiner, that the Respondent's son was authorized to act in behalf of the Respondent, and that the Respondent was served with the charge well within the statutory period.5 In the light of the foregoing, we conclude that the service require- ments of Section 10 (b) have been met. 2. The Trial Examiner found, as set forth in the Intermediate Report, that the Respondent violated Section 8 (a) (1) of the amended Act. We agree with this conclusion. However, in so finding, we rely only upon the following conduct of the Respondent: 6 (1) Wiltses interrogation of employees Heman Miller and Eva Berry' as to their ' Contrary to the Respondent's contention , our Rules and Regulations do not impel a different conclusion . Section 203 .14 refers to service upon the person . But reading it, as we must, with Section 203.84, we find that service by registered mail is expressly permitted. 6 Matter of Quarles Manufacturing Company, 83 N. L. R. B. 697. 6In this connection , we place no reliance upon N. L. R. B. v. Prettyman, supra, as establishing an anti-union animus in the Respondent . Nor do we rely upon Wiltse's state- ments at the hearing herein , cited by the Trial Examiner at footnote 18 of the Intermediate Report. ' The Respondent contends that testimony relative to wiltse's conversation with Berry should be stricken , since Berry testified that there was no threat of reprisal or promise of ANN ARBOR PRESS 61. union membership; his further interrogation of Miller as to who were the leaders of the Union; and his threat to Miller to close the bindery should the organizational campaign succeed; (2) Superintendent Covert's affirmation to Miller that Wiltse was serious in his threat to close the bindery if the Union should organize it; (3) Forelady Schneider's 8 interrogation of Berry as to why she had denied attend- ing the union meeting; (4) Laverne Rose's 9 interrogation of Donald Kalmbach. 3. We agree with the Trial Examiner's apparent refusal to find that the Respondent acted discriminatorily in ordering employees Reed and Lolmaugh, and the other girls in the bindery, to "go home" and in telling them that "if he wanted them, he would call them back." 10 We are, however, unable to agree with his specific finding that the refusal to reinstate Reed and Lolmaugh upon application on the following day was likewise not violative of the Act. Although the Respondent contended that all employees quit on December 29, 1947, and the General Counsel argued that they had not quit but were, as the result of the Respondent's orders, discharged, we are of the opinion, as was the Trial Examiner, that neither position is tenable. Rather do we find, as the Trial Examiner impliedly did, that, by leaving their work at the time and in the manner described in the Intermediate Report, the bindery girls went on strike, and that, as strikers, they retained their status as employees of the Respondent for the purposes of the Act, and were protected against the unfair labor practices prohibited by it 11 As appears from the Intermediate Report, all the bindery girls, except Reed and Lolmaugh, were offered, on the very day of the benefit. We do not agree . Interrogation as to union membership is per se violative of the Act. Matter of Ames Spot Welder Co., Inc., 75 N. L. R. B. 352. That the employee involved did not consider the statement coercive or feel intimidated is not relevant . Matter of The Red Rock Company, 84 N. L. It. B. 521. 1 We find that Schneider is a supervisor within the meaning of the amended Act. It is clear that she was the employees' first contact with management in the bindery; and that the bindery girls considered her a representative of management is shown by their presenting their wage demand to her on December 29. Under these circumstances , Schneider's remarks herein may be attributed to the Respondent. Matter of J. S. Abercrombie Company, 83 N. L. It. B. 524; Matter of Taylor Manufacturing Company, Inc., 83 N. L. It. B. 142. e The Respondent contends that Rose is not a supervisor within the meaning of the amended Act. However, we note that Rose had been superintendent of Respondent's plant, and, although no longer in this position , he still indicated to production employees the manner in which work was to be done. His status as an employee considered to represent management is further established by Superintendent Covert's consulting him at the time of the December 29 wage demand . For these reasons, we find the Respondent chargeable with Rose's statement. See cases cited at footnote 8, supra. 10 The complaint in effect, contained such an allegation . Although the Trial Examiner did not specifically dismiss that allegation , It is apparent from his other findings, discussed herein, that he concluded that the General Counsel had failed to sustain that portion of the complaint. 'I N. L. B. B. v. Mackay Radio cf Telegraph Co., 304 U. S. 333. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stoppage, reinstatement- to their former jobs; and all accepted. Reed and Lolmaugh, however, were not so favored. And upon their ap- plication the following day for reinstatement to the jobs which they had held, they were refused on the asserted ground that they were at the bottom of the seniority list, and replacements for them had already been obtained. At the hearing, the Respondent gave as a further reason for such replacement that the work of Reed and Lolmaugh was unsatisfactory. We are, however, unable to accept either reason as the ground for the refusal to reinstate. Insofar as the quality of their work is concerned, the record is devoid of any proof that any complaint was ever made concerning their work, or the performance of their duties. And had the Respondent truly been motivated by considerations of efficiency, he would not have included among the three hired as replacements, two girls who were totally inexperienced in this work. As to their being replaced on seniority grounds, we note that the Respondent contends in his brief that he never had a seniority policy in the bindery and that his criteria were an employee's usefulness and efficiency. While it is true that, when Reed and Lolmaugh applied for rein- statement, they had already been replaced, we cannot accept the Re- spondent's position, in effect, that it was fortuitous that Reed and Lol- maugh were the only employees who were not reinstated. The prof- fered explanation for the replacement of only Reed and Lolmaugh is that, while job applicants were reporting pursuant to Covert's request to the State Unemployment Bureau, Covert decided that he might check with the strikers to see whether they would be willing to return the next day at the prestrike terms of employment; and that he called all the strikers except Reed and Lolmaugh because, by the time he reached them, all the other bindery girls had accepted and he had already engaged three applicants. However, the record clearly shows that the Respondent, at no time, asked the State Unemployment Bureau to furnish more than two or three employees; that three em- ployees did apply pursuant to this request; and that the three were hired with the admitted intention of retaining two of them 12 There is also uncontroverted testimony that the Respondent be- lieved that Reed and Lolmaugh were the leaders in the work stop- page, having been so informed by Covert and Witting, on the day of ' Covert's testimony as to how many girls he asked for was contradictory. At one point he said that he did not specify any number , at another he said that if he did specify a number, it was 10 or 12. Our finding herein is based upon the testimony of witting, a generally credible witness, whose testimony in this matter is supported by the fact that only 3 girls did in fact appear as applicants for employment. ANNT ARBOR PRESS 63 the stoppage 13 In these circumstances, the unreliability of the prof- fered explanation, and the failure of the Respondent's other reasons for the replacement of Reed and Lolmaugh convince us that the Re- spondent selected Reed and Lolmaugh for replacement during the strike in order to bar their reinstatement upon termination of the strike and thus to rid himself of the two employees who were regarded as the leaders of the stoppage. That the belief as to the leadership of Reed and Lolmaugh in the stoppage strongly motivated the Re- spondent is strikingly demonstrated by the Respondent's actions about 5 weeks later. Then, as appears herein, the Respondent sum- marily discharged employees Maluske and Kalmbach in violation of the Act, because of their presumed leadership in the Union which was formed in the interim. While an employer has the right to replace economic strikers in order to carry on his business, that right is not unlimited, and an em- ployer may not use the device of replacement to rid himself of em- ployees objectionable because of union or concerted activity 14 When Reed and Lolmaugh applied for reinstatement, their applications were refused on the ground that they had been replaced during the strike. As found above, their selection for replacement was discriminatory in nature, and but for such discrimination, Reed mid Lohnaugh's jobs would not have been filled during the short period of the strike, and Reed and Lolmaugh would have been reinstated together with the other strikers. Accordingly, since Reed and Lolmaugh were acting in concert with the other bindery employees for their mutual aid and protection with respect to the matter of wages, the Respondent's discrimination against Reed and Lolmaugh for their activity with the group and for their presumed leadership thereof, discouraged membership therein in violation of Section 8 (a) (3) of the Act. Furthermore, as the work stoppage and the presentation of the demand for a wage increase were concerted activities for the purpose of mutual aid or protection, the Respondent, by discriminating against Reed and Lolmaugh, inter- fered with, restrained, and coerced his employees in the exercise of their rights under Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. '$ Because they were not in fact the leaders, the Trial Examiner concluded that the Respondent's belief was immaterial . This was clearly erroneous . If such belief was the motive for replacement, it is of so consequence that it was not founded in fact or may have amounted to no more than a suspicion . Matter of Boreva Sportswear, Inc., 73 N. L. It. B. 1048. 14 N. L. R. B. V. Mackay Radio 4 Telegraph Co., supra.; cf. Matter of Republic Steen Corporation (98" Strip Mill ), 62 N. L. R. B. 1008. - 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find further that, whether the discharges be regarded as a viola- tion of Section 8 (a) (1) or of Section 8 (a) (3), it is necessary to order reinstatement and back pay in order to effectuate the policies of the Act 15 4. We find, as did the Trial Examiner, that the discharges of Donald R. Kalmbach, Harry G. Maluske, Eva Berry, and Robert Hanselmann, on February 4, 1948, were violative of the Act. We reject, as did the Trial Examiner, the Respondent's contentions that he did not know of the union membership of these bindery em- ployees, and that the discharges were due to a retrenchment policy dictated by economic necessity. The record conclusively establishes that the Respondent considered Kalmbach and Maluske to be union members and leaders, in advance of their discharge; that he sought to ascertain Berry's activity in the Union shortly before her discharge, and that Hanselmann was a union member who was discharged at the same time. Under these circum- stances, and on the entire record, we find that the Respondent had 'knowledge of the union membership and activities of these four dis- tchargees. . With respect to the Respondent's contention that the discharges were made because of retrenchment, the record fails to establish that the Respondent found it necessary to discharge any employees for this reason after February 4, and, contrary to Respondent's argument, it appears that the number of bindery employees has remained substan- tially unchanged between December 31, 1947, and September 29, 1948, the date of the hearing herein. We therefore find, for the above reasons as well as those stated by the Trial Examiner, that these four discharges were discriminatory."' ORDER . Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 16 In accordance with our practice the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amounts of back pay to which Mary A. Reed and Marjorie A. Lolmaugh are entitled, since the Trial Examiner did not recommend their reinstatement or an award of back pay to them. Matter of Quarles Manufacturing Company, 83 N. L. R. B. 697. 'Bin affirming the findings as to Hanselmann and Berry , we do not rely upon Hofmann's questioning of Hanselmann as to whether the latter , was bringing the Union into the shop, or upon Witting's statement that he thought Berry's discharge was because of the Union. The Respondent contends that Berry was discharged for the reason, among others, that she asserted an intention to engage in another work stoppage like the one on December 29. we, like the Trial Examiner, find that no such remark was ever made by Berry. However, assuming the remark was made, it is clear that a discharge for so speaking is violative of the Act because it is directed at precluding employees from engaging in concerted activity in support of wages, hours, and other conditions of employment. ANN ARBOR PRESS 65 Relations Board hereby orders that the Respondent, Arthur J. Wiltse, doing business as The Ann Arbor Press, Ann Arbor, Michigan, his agents, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Bindery Workers Union Local 20, International Brotherhood of Bookbinders, AFL, or any other labor organization of his employees, by discharging, refusing to rein- state or in any manner discriminating in regard to their hire and tenure of employment or any term or condition of employment; (b) Interrogating employees in any manner as to their union activi- ties, views, sympathies, or membership; (c) Threatening closing of his plant in the event his employees form or join a union ; (d) In any other manner interfering with, restraining, or coercing his employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Bindery Workers Union Local 20, International Brotherhood of Bookbinders, AFL, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, and to refrain from any and all of 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 employement as authorized in-Section 8 (a) (3) of the Act. . 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Mary A. Reed, Marjorie A. Lolmaugh, Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges ; . (b) Make whole Mary A. Reed, Marjorie A. Lolmaugh, Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Mal- uske for any loss of pay each may have suffered by reason of the discrimination against him or her by payment to him or her of a sum of money equal to the amount each would normally have earned as wages from the date of the discrimination against him or her to the date of the Respondent's offer of reinstatement to a former or sub- stantially equivalent position, less his or her net nearnings during such period; 17 17 As noted above , the period from the date of the Intermediate Report to the date of this order will be excluded in computing the amounts of back pay to which Mary A. Reed and Marjorie A. Lolmaugh are entitled , since the Trial Examiner did not recommend their reinstatement or an award or back pay to them. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Ann Arbor, Michigan, copies of the notice attached hereto, marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent or his representative, be posted by the Respondent immediately upon receipt thereof and main- tained for a period of sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Seventh Region (Detroit, Michigan) in writing within ten (10) days from the date of this order what steps Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily laid off all the bindery girls on December 29, 1947, be, and it hereby is, dismissed. 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, we hereby notify our employees that : WE WILL NOT discharge or refuse to reinstate any employee be- cause of his membership in or activity on behalf of BINDERY WORKERS UNION LOCAL 20, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L., or any other labor organization. WE WILL NOT interrogate our employees in any manner as to their union activities, views, sympathies, or membership. WE WILL NOT threaten to close our plant if our employees join or form a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, to join or assist the above- named union or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- gage in concerted activities for the purposes of collective bargain- as In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words: "A DECISION AND ORDER" the words: "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." ANN ARBOR PRESS 67 ing or other mutual aid or protection, or to refrain from any and- all of such activities except to the extent that such right may be- affected by an agreement requiring membership in a labor organ- ization as a condition of employment as authorized in Section 8 (a) (3) of the Act. AVE WILL oFFER to Mary A. Reed, Marjorie A. Lolmaugh, Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske immediate and full reinstatement to their former or- substantially equivalent positions without prejudice to any sen- iority or other rights and privileges previously enjoyed, and make- them whole for any loss of pay suffered as a result of the dis- crimination against them. All our employees are free to become or remain members of the. above-named union or any other labor organization. We will not, discriminate in regard to the hire or tenure of employment or any term. or condition of employment against any employee because of mem- bership in or activity on behalf of BINDERY WORKERS UNION LOCAL 20,. INTERNATIONAL BROTHERHOOD OF BOOKBINDERS , A. F. L., or any other- labor organization. ARTHUR J. WILTSE, DOING BUSINESS AS THE ANN ARBOR PRESS, Employer. By ---------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for sixty (60) days from the date- hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Cecil Pearl, Esq., of Detroit , Mich., for the General Counsel. George Meader, Esq., and John S . Dobson, Esq., of Ann Arbor, Mich., for the- Respondent. Mrs. Jane Dailey Seving , of Dearborn , Mich., for the Union. STATEMENT OF THE CASE Upon a charge duly filed by Bindery Workers Union Local 20, International Brotherhood of Bookbinders , A. F. L., herein called the Union, the General CounseL of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director of the Seventh Region (Detroit, Michigan ), issued a complaint against Arthur J. Wiltse, doing business as The Ann 857823-50-vol. 85-6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arbor Press, herein called the Respondent. The complaint alleged that the Re- spondent had engaged in, and is engaging in, unfair labor practices affecting com- merce, within the meaning of Section 8 (a), subsections (1) and (3), and Section 2, subsections (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. Supp. I, Secs. 141, et seq., herein called the Act. Copies of the charges; the complaint, and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that the Respondent has engaged in and is now engaging in certain unfair labor practices affecting commerce as set forth and defined in the Act; (2) that, on or about December 29, 1947, the Respondent discharged and thereafter refused to reinstate Mary A. Reed and Marjorie A. Lolmaugh for the reason that said employees had engaged in concerted activities for the purpose of collective bar- gaining and other mutual aid and protection; (3) that, on or about February 4, 1948, the Respondent discharged and thereafter refused to reinstate Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske for the reason that each of them had joined and assisted the Union and had engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection ; (4) that, by such acts and conduct, the Respondent discriminated against the named employees and discouraged them from acting in concert for the purpose of collective bargaining and discouraged membership of his employees in a labor organization, in the exercise of the rights guaranteed in Section 7 of the Act and violated Section 8 (a) (1) and (3) of the Act; and (5) that, such acts and conduct of the Respondent constituted unfair labor practices affecting com- merce within the meaning of Section 8, subsections (a) (1) and (3) and Section 2, subsections (6) and (7) of the Act. The Respondent's answer dated September 21, 1948, denied the jurisdiction of the Board and in the answer moved to dismiss the complaint because of want of jurisdiction ; denied generally that he committed the unfair labor practices alleged in the complaint ; made certain affirmative allegations concerning the discharges ; and denied knowledge of any attempt to organize his bindery employees, and of any union representation. Pursuant to notice, a hearing was held in Ann Arbor, Michigan, on September 28, 29, and 30, and October 1, 5, and 6, 1948, before the undersigned Trial Exami- ner, duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the 'Union participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. The Respondent was permitted to express his personal views on some of the issues. At the close of the General Counsel's case the undersigned sustained a motion to conform the pleadings to the proof with respect to immaterial variances. The undersigned denied Respondent's motion to dismiss the complaint in whole and 1 There was no dispute that the Respondent was served with a copy of the charge and the complaint on September 14, 1948. Although Respondent in his testimony at the hearing denied that he had been previously served with the charge , he failed to raise the point in his answer and, according to an affidavit admitted as an exhibit , the original charge was served by the mailing of a copy thereof, by registered mail to the Respondent on February 9, 1948. Furthermore, a return receipt of the post office was signed by John W. Wiltse on behalf of the Respondent on February 10, 1948, showing receipt of the charge at Respondent's address on that date. The undersigned therefor finds that the charge was duly served upon the Respondent on February 10, 1948, in accordance with the terms of the Act. ANN ARBOR PRESS 69 in part on specific grounds numbered 3 2 and 4, and reserved ruling on the 1st, 2nd, and 5th, grounds,' to wit : 1st, that the evidence failed to'sustain the charge of unfair labor practices, 2nd, that the evidence failed to sustain the jurisdiction of the Board, 3rd, that there was no evidence of compliance (by the Union) with section 9 (f), (g), and (h) of the Act, 4th, that there was no admissable evidence of service of a copy of the charge upon respondent, and 5th, that there was no evidence to establish the Union as a labor organiza- tion within the meaning of the Act, Section 2 (5) and admitting to member- ship employees of Respondent. The undersigned reserved rulings on Respondent's motion to dismiss para- graph 6 of the complaint and that part of paragraph 7 of the complaint relating to Robert W. Hanselmann and denied Respondent's motion to strike that portion of the testimony of Eva Berry relating to the conversation with the Respondent .,on February 4, 1948. The undersigned reserved ruling on Respondent's motion to strike all testimony of witnesses for General Counsel as to the seniority policy of the management of the Respondent. The same rulings were made on Respondent's motions when renewed at the close of all of the evidence,* and the undersigned reserved ruling on Respondent's motion to strike all of the evidence in the record purporting to consist of statements by the Respondent, his agents, and supervisory employees, which contain no threat of reprisal or force or promise of benefit. The motions on which ruling was reserved are now disposed of in ac- cordance with the considerations, findings, and conclusions, herein. The parties presented oral argument at the close of the hearing. All parties were granted time for filing briefs and proposed findings and conclusions. A brief was filed by the General Counsel and a brief and proposed findings and .conclusions have been filed by Respondent.' The briefs and proposals have been carefully considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Prior to March 1945, the Respondent, Arthur J. Wiltse and Horace G. Pretty- man as co-partners d/b/a The Ann Arbor Press, were engaged in the commercial letterpress printing business in Ann Arbor, Michigan.' Since the dissolution of the partnership in March 1945, the Respondent, Arthur J. Wiltse d/b/a The Ann Arbor Press, has continued the business of the partnership under the same name, with his plant and offices in Ann Arbor, Michigan, engaging in letterpress 7 The contention of Respondent involving the question of the Union 's compliance with Section 9 (f), (g), and (h) of the Act are foreclosed by such Board decisions as Baldwin Locomotive Works, 7.6 N. L. R. B. 922, and Lion Oil Company, 76 N. L. R. B. 565, to the effect that compliance is an administrative , and not a litigable, issue. ' The other contentions are disposed of herein. ' Respondent 's proposed findings and conclusions are ruled upon as follows, to wit : Proposed Findings C and D are granted; and A, B, E, F, G, & H are denied in the form stated. Proposed conclusions A, B, and C , are denied. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .priting, typesetting, presswork, binding, and shipping of printed material, in- cluding periodicals, school annuals, trade magazines, and journals.' During the calendar year of 1947, the Ann Arbor Press, purchased raw materials, consisting principally of paper, ink, and metal ; amounting to approxi- mately $20,000 worth was shipped from points outside of the State of Michigan to Ann Arbor. During the same period, Respondent purchased $2,000 worth of repair parts from outside the State of Michigan. In addition, the Respondent had a substantial amount of his printed material bound by the firm of Brock and Rankin, in Chicago, Illinois, at a cost of $15,000, and for that purpose, first shipped the printed material to Chicago, and then had the bound product re- shipped to Ann Arbor, Michigan. During the same year, the Respondent's sales of printed material amounted to $850,000. Of this amount, $190,000 by value consisted of periodicals printed by the Respondent and mailed by him to numerous points outside, as well as within, the State of Michigan ; $6,000 by value consisted of printed material shipped by rail to the Government Printing Office in Washington, D^. C.; and $59,000, by value consisted of advertising material such as folders, catalogues, broadsides, and parts books, which were printed for and shipped to various automobile and other industrial companies whose sales are Nation-wide but whose plants are within the State of Michigan.' Upon the foregoing facts, contrary to the contention of the Respondent, the undersigned finds that the Respondent is and was engaged in commerce within the meaning of the Act, Section 2, subsections (6) and (7).7 The undersigned reserved ruling on motion of the General Counsel to take judicial notice of a Federal Court decision involving this Respondent and the Board. The motion is sustained and the undersigned has reviewed the opinion in the case of N. L. R. B. v. The Ann Arbor Press, 117 F. 2d 786, and finds that the Circuit Court of Appeals of the Sixth Circuit on February 13, 1941, found that the Board had jurisdiction over the Respondent. That settled the question, and the undersigned finds there has been no material change in character of Re- spondent's business to the time of this hearing." 11. THE ORGANIZATION INVOLVED Bindery Workers Union Local 20, International Brotherhood of Bookbinders, A. F. L., is a labor organization admitting to membership employees of Respondent. 5 Among the publications printed by the Respondent are : The American Foundryman, a monthly with a circulation of 11,000; Michigan Law Review, published 9 times a year, with a circulation of 3,500; American Journal of Pathology, a monthly with a circulation of 3,300; Cancer Research, a monthly with a circulation of 1,200; and the National Dixis Distributor, a monthly with a circulation of 1,200, for oil stations. 'General Motors Truck, Kaiser-Frazier Corporation, Ford Motor Company, Buick Motor Car Division , Bulldog Electric Company, and Argus, Inc. T In the Matter '. f Phoenix Mutual Life Insurance Company, 73 N. L. R. B. 1463; Clover Fork Coal Comj'Y y v. N. L. R. B., 97 F. 2d 331. 8 Upon similar evidence as to the interstate character of the business of the preceding partnership of which the Respondent Wiltse was a member, the Court of Appeals, Sixth Circuit, found that the Act applied to the conduct of the partnership business and sustained the Board's jurisdiction. N. L. R. B. v. The Ann Arbor Press, 117 F. 2d 78G_ See also N. L. R. B. v. Fainblatt, 306 U. S. 601. ANN ARBOR PRESS III. THE UNFAIR LABOR PRACTICES A. Introduction 71 Arthur J. Wiltse d/b/a The Ann Arbor Press is engaged in letterpress printing, including setting type, presswork, and bindery work. He had departments for the various functions of the business, consisting of an office, a composing room, a pressroom, a bindery, and a shipping department. Mr. Arthur J. Wiltse has been sole owner and sole manager since March of 1945, and had practically the entire management thereof for the 18 years he had been connected with The Ann Arbor Press. The composing and pressroom employees have been union members and have operated under union contracts at various periods for several years.9 The supervisory staff under Mr. Wiltse, the owner and manager, consisted of 'William Covert, superintendent of the plant, Clair Witting, working foreman of the bindery and in charge of shipping department, and Rose Schneider, working forelady in charge of the bindery girls. On December 29, 1947, there were fifteen (15) female employees, including Rose Schneider, in the bindery, and on December 31, 1947 (2 days later) there were sixteen (16) females, including Rose Schneider, and seven (7) male em- ployees, including Clair Witting. On September 29, 1948 (during the hearing) there were fourteen (14) female and eight (8) male employees in the bindery including the 2 supervisors. On December 29, 1947, all of the girls working in the bindery department engaged in a concerted work stoppage. There is no evidence that any union or union activity had any connection therewith. The first evidence of any union activity in the bindery department is that of the organizational meeting on January 31, 1948, as set forth later. On February 4, 1948, four of the bindery and shipping department employees were discharged. They had joined the Union, but there was no contract between the Union and the Respondent, and there had been no attempt at recognition .and no attempt to enter negotiations for collective bargaining. B. The work stoppage on December 29, 1917 As stated above there is no evidence that any union activity had any connection -with the work stoppage on December 29, 1947. During the morning of that -day several of the 15 girls in Respondent's bindery began a discussion about a raise in wages and it continued until all of them reached an agreement among themselves that they would all ask for the raise at the same time. Then, all .at one time, they stopped their machines, or quit the work they were doing, and gathered around the forelady, Rose Schneider's machine, and asked her to request the Respondent to give them all a 10-cent an hour wage increase. Schneider told them she would have to call the foreman, Clair Witting. Foreman Witting was in the bindery at the time and came over to the group of girls. Several of them in unison told him they would have to have a 10-cent an hour raise in pay or they would not work. The foreman said he would see what he could do and left 9 The unionization of the composing and pressroom employees is shown by the undis- puted testimony of William Kitchen, foreman of the composing room, and of Wilfred Hanson, foreman of the pressroom . It is also shown in case of Horace 0. Prettyman at al., 12 N. L. R. B. 640. 0 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bindery room and went to the office of Superintendent Covert. Covert asked him if he was sure they would not work unless they got more money , and sent him back to the group of girls to find out, also , to get them to write their names and hourly wage rates on a piece of paper . On securing the paper , on which each one wrote her name and rate, the foreman again went to the superintendent's office. The girls waited a while and discussed whether to continue to wait there or go out to lunch and return atfer the lunch period for the answer . Just at the lunch period time 11: 45 a. in. and as the girls were preparing to leave the- bindery, the foreman and superintendent came out of the office and the foreman said to them that they could go home and if he wanted them he would call them, back. The girls then left the plant. The superintendent then called the State unemployment bureau for replace- ments, and then decided to try to persuade the girls to return to work. He telephoned and asked each one if she would reconsider and return to work the next day at the same rate of pay . Each one called said she would if the rest of the girls agreed. The last two on the seniority list, Mary A. Reed and Marjorie A. Lolmaugh , were not called because three girls from the unemploy- ment bureau had been engaged during the afternoon to report for work the next morning. The next day, December 30, 1947, Mary A. Reed and Marjorie A. Lolmaugh, called at the office of the superintendent , and in answer to their inquiry as to why they had not been called, were told that they had lost their seniority when they went out ; that their positions had been filled ; that he did not need them at that time, but would call them if he needed them. 1. The alleged discriminatory discharges The General Counsel contended that Reed and Lolmaugh were discharged,. for engaging in concerted action for the purposes of mutual aid or pro- tection. The Respondent contended that they had voluntarily terminated their- employment and he was under no obligation to reinstate them, as replace- ments had been employed before they applied for reinstatement. Reed and Lol- maugh and two others of the bindery girls testified at the hearing and recited,. what impressed the undersigned as, a well rehearsed account of the events of the morning of December 29, 1947. It was not disputed that it was customary for the bindery workers to shut down the machines a few minutes early to prepare for the lunch period which. began at 11: 45 a. in. The foreman, Clair Witting, testified as to the events ; his being called over to the group of girls about 11: 30 a. in.; 10 upon being advised that they demanded a 10 cent an hour raise or would not work he said he would see what he could do about it ; his going from the bindery room to the office of the plant superin- tendent and relaying the demand ; his being sent back to the bindery to be sure if the girls had said they would not work unless they got the raise, and obtaining the paper on which he had had each one of the 15 girls write her name and rate of pay; his return to the superintendent's office and the discussion of the demand 10 The undersigned accepts Foreman Witting's version as substantially reflecting the events, the time consumed. and the demand. His version is strengthened by the testimony of the girls themselves as well as the male bindery workers, Kalmbach and Maluske. It was not disputed that the girls were told to go home and they would be called if wanted. ANN ARBOR PRESS 73 with the superintendent ; and then he and the superintendent coming out of the office and telling the girls to go home just at 11: 45 a. in. as the male bindery workers were leaving the bindery for the lunch period. Marjorie A. Lolmaugh testified that after Witting obtained the paper, with the names and rates of pay, it was "around ten minutes or fifteen minutes" before he came out and told the girls to go home. It was undisputed that some of the group "punched out," after leaving the bindery-going to the rest room for wash- ing up and for wraps-going down the stairs to the time clock, at 11: 51 a. in. Harry G. Maluske, a male bindery worker, testified that he continued working after the girls had congregated around Rose Schneider and said very positively at was 11: 42 a. in., as he was going to the washroom to prepare for lunch period, when he heard Witting tell the girls to go home. This was after the girls shut down their machines ;-called Witting over to the group ; the two conversations with him ;-his two trips to the superintendent's office ; the writing of the 15 names and rates ; the undisputed wait, by the girls, for an answer ; and the instructions to the girls to go home. Donald R. Kalmbach, another male bindery worker, testified that he was still working after he noticed that the girls were congregated around Rose Schneider and they were still talking when he left to go to lunch at approximately 11: 45 a. in. He also said the occurrence was near lunch time, within a three-quarter of an hour period.11 The bindery girls testified they did not say that they would not work if they did not get the 10-cent raise. However, Foreman Witting testified they told him, in unison, on each of the two discussions he had with them, that they would not work. Mary A. Reed testified she "didn't hear" anyone say that they would not work. (Emphasis supplied.) In considering this dispute of facts, together with the undisputed testimony as to the question and answer, when the superin- tendent 12 telephoned some of the bindery girls during the afternoon of December 29, 1947, and asked each one if she would return to work at the same rate of pay and was advised that she would do what the rest of the girls did,1° the under- signed finds these issues in favor of the Respondent and against the complainants." 2. Conclusions The undersigned finds that all of the bindery girls had concertedly shut down their machines and stopped work approximately 15 minutes before the authorized lunch period of 11: 45 a. in. and had jointly communicated their demand for a 11It appears from the consideration of the admitted events, that the only reasonable inference that can be drawn therefrom is, that the time consumed was considerably more than just a few minutes . The undersigned finds that the work stoppage occurred at or just before 11 : 30 a. in. 12 Covert , the superintendent , testified on cross-examination that he considered the girls discharged. On redirect he explained his meaning , which the undersigned accepts ; that all of the girls quit on that day and he did not discharge them, as he told them he would call them back if he wanted them back. 1s Violet Bachman, one of these employees, testified, "He [Covert] asked me if I wanted to return to work and I told him I would do what the rest of the girls did. He said, so far, the ones he had called was going to return." 14 This finding, upon the contested issue of refusal to work unless the raise was granted, is based upon the credited testimony of Foreman Witting, together with the reasonable inference drawn from all the evidence as to the conduct and attitude of the girls when they quit their work and demanded the raise , and from their statements on being called to reconsider. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increase to Foreman Witting. Thereafter, they concertedly refused to perform any further work, did not work, and awaited an answer to their demand. The foreman answered by sending them home and saying he would call them if he needed them. By their concerted refusal to work on Respondent's time, and their leaving the plant together, they manifested an intent to continue with their -concerted demand. The Respondent's superintendent engaged three new employees as. replacements and asked each of the bindery girls, except Mary A. Reed and Marjorie A. Lolmaugh, if they would reconsider and return to work at the same rate of pay. The calls were made in order of seniority and the replacements had been effected before the two named had been reached, as they were the last two on the seniority list. The Respondent was not required to call them and the undersigned finds that they would not have been called in any event for the above reasons. The undersigned attaches no importance to the Respondent's statement that the two girls may have been ringleaders in the work stoppage, for it clearly appears from all of the evidence, that the ringleaders were, in fact, other and different persons. Therefore, it is found that there was no discrimination in regard to the hire and tenure of employment of Mary A. Reed and Marjorie A. Lolmaugh. It will accordingly recommend that so much of the complaint as alleges that Mary A. .Reed and Marjorie A. Lolmaugh were discriminatorily discharged, be dismissed.16 C. The discriminators/ discharges on February 4, 1918 1. Background and organizational activities As stated before, Arthur J. Wiltse had practically the entire management of The Ann Arbor Press for about 18 years. His experience with unions and organi- :zational activities appears to have begun about 1932 and the activities in 1937 and early part of 1938 among his composing room employees led to charges of unfair labor practices 19 The record does not disclose the time or circumstances of other activities, but is clear that both the composing room and pressroom were organized and operating under union contracts or under negotiations for renewal thereof, at the time of this hearing. At the time in issue there were about 21 rank and file employees in the bindery -and about 4 in the shipping department. All were under the supervision of Foreman Witting. Janudry 31, 1948, was the date of the first union organizational meeting of Respondent's bindery department employees. The Union held the meeting at the Allenel Hotel in Ann Arbor, Michigan, and it lasted about 2 hours. There is no evidence of any prior union activities in the bindery. That meeting was attended by several of the bindery employees including the four employees that were discharged on February 4, 1948.17 2. Interference, restraint, and coercion The Respondent Arthur J. Wiltse had previously demonstrated his antipathy toward unions and union activity. The pattern of his aversion began, as 11 N. L. R. B. v. Mackay Radio & Tel. Co., 304 U. S. 333. 16 Horace G. Prettyman et al., supra. 17 The organizational meeting was conducted on behalf of the Union by Jane Dailey Seving, business representative, secretary and bookkeeper of Bookbinders Local 20. The Union's recognition of Respondent's bindery has been withheld pending this proceeding. ANN ARBOR PRESS 75 recited in the Prettyman et al., case, cited above, wherein his statements, con- duct, and publications clearly show such views, and continues through his own testimony, statements, and attitude in the instant case." There is no direct evidence that the organizational activities of January 31, 1948, came to the attention of the Respondent before February 4, 1948, the day on which he made inquiries of bindery employees about the Union and about organizing the bindery. The bindery room area was small. It is reasonable to infer from all the evidence that information as to union activity would, and, the undersigned finds, did, come to the attention of the Respondent within the time elapsed after the organizational meeting and before the discharge of some of the employees involved in the union activity on February 4, 194819 This finding is based upon the admitted investigation of union activity by Respondent A. J. Wiltse, his supervisors, and officials. He testified that on February 4, 1948, he "might" have discussed with Miller some of the problems of running the bindery economically if it was organized, and pointed out to him [Miller] many difficulties of operating The Ann Arbor Press economically at the present time and dis- cussed the possibility of its being even more difficult if it was organized. In reply to questions concerning any specific conversations with other bindery employees, Mr. Wiltse testified "And if I did have any conversation with them about whether there was going to be a union or not, I had a right to, I don't know how they would ever get a collective bargaining agreement if they wanted to be represented by a union without my knowing it sometime." 20 Generally denying the commission of unfair labor practices, the Respondent asserted that after the work stoppage on December 29, 1947, and for some time before, he "had been concerned with the production of The Ann Arbor Press generally throughout the plant and was watching the operation of the business. to see what was causing trouble and disturbance, what the slow-downs were for, and this insurrection that occurred on the 29th of December aroused me [Wiltse] to believe that the plant wasn't operating well." And "determined that I was going to thin out the bindery somewhat because of the pay roll and the excessive number of people working there. .. ." He did not advise his superintendent or the bindery foreman of his plan "to thin out the bindery somewhat." n The additional reasons alleged for the discharge of the four named above, will be discussed later. February 4, 1948, was indeed a day of action on the part of Mr. Wiltse, the Respondent. He telephoned from his home before working hours and ordered his 19 This finding is based upon a careful consideration of the case cited , and of the evidence, in the light of Mr. Wiltse's entire course of conduct, his voluntary statements during the hearing, and the record herein, as a whole. He said "The labor policies of The Ann Arbor Press are entirely within me." In reply to a question about one of the dischargees, "That is right. I had a complete right to, my business, I don't have to employ anybody if I don't want to." 19 Brenner Tanning Company, Inc., 50 N. L. It. B. 894; Matter of Firestone Tire of Rubber Company, 62 N. L. R. B. 1325. 20 Heman "Bus " Miller was a production employee . His testimony and that of other witnesses, as to the pertinent conversations and inquiries, are discussed later. 21 There was no supporting evidence or clarification of the alleged trouble and disturbance, and slow-downs, or of the belief that the plant was not operating well The thinning out of the bindery because of the pay roll and the excessive number of people is refuted by undisputed evidence and by exhibits of record. It is clear that 3 new bindery girls were engaged for trial on December 30, 1947, with the intention of retaining 2 of them as perma- nent employees. The exhibits show 23 bindery employees on December 31, 1947, and 22 on September 29, 1948. ( Time of hearing.) 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD superintendent, Covert, to discharge Harry G. Maluske, saying "get that man out of here before I come in." The superintendent carried out the order and ef- fected the discharge of Maluske about 8: 30 a. m. Mr. Wiltse came into the plant and personally discharged Hanselmann about 8: 45 a. in. Then in the after- noon he personally discharged Kalmbach and ordered Eva Berry discharged at .about 3: 30 p. in. The summary and precipitate manner in which the discharge of the three -bindery employees and the one truck driver 2 was effected during the day, which was contrary to Respondent's policy and normal procedure, is significant in con- sidering motivation of the Respondent therefor 2 Clair Witting, the working foreman of the bindery, testified there had never been a time during his 5 years at Respondent's plant, that four employees were discharged in 1 day. He further testified that on the morning of the day of the four discharges, he talked to Mr. Wiltse, the Respondent, and that Mr. Wiltse "`wanted to know if I thought `Buz' 24 [Miller] had anything to do with the union," and "I said I didn't know." "He asked me if I would find out." Witting then went over and told "Buz" Miller that Mr. Wiltse wanted to see him about the Union, to go to the office and talk with him. Heman Miller, a production employee, had worked in the Respondent's bindery for about 5 years. He testified that shortly after 9 a. in. on the day involved, ?Foreman Witting asked him what he knew of any union activities around the bindery, that Mr. Wiltse had asked him to find that out. Miller then went in the <office and had the following conversation with Mr. Wiltse. Q. State the conversation with Mr. Wiltse. A. Mr. Wiltse asked me if I belonged to the union that was being organized in the bindery and he asked me that he had heard I was the head of it. He asked me if I was, and I denied that. I denied being at the meeting at the Allenel Hotel. At the time he told me then that if there was a Union went in he would close the bindery entirely, that he couldn't afford to pay union wages. Then he talked considerably about the cost of operating the plant. That was about all. Q. Did he threaten you? * a a a * a e A. Mr. Wiltse told me that if I was the head of the union that he would fire me then. Covert, the superintendent, testified he was present part of the time when the above conversation took place on the morning of the discharges, and that he heard Mr. Wiltse ask Miller if he was a member of the Union and if he liked them ['unions], and when Miller said no to both questions, Wiltse said, "Well, you have always been a good employee of ours, always done your work well. I am very pleased with your views, they coincide with mine."' Heman Miller further testified that during the conversation Wiltse also asked if he knew who was helping to organize the Union in there [bindery] besides Harry, and "he didn't know Harry's name, and he turned and got that from Covert." Covert supplied Harry's name with the statement, "The fellow I fired out of here this morning." Miller testified that Mr. Wiltse was under the im- re All four were considered as bindery workers, and were under the supervision of Foreman Witting. The evidence shows that when heavy work was required of truck drivers, bindery workers would assist them, and when not busy, the truck drivers would assist in the bindery. 28 Stewart Warner Corporation, 55 N. L. R. B. 593. 11 Heman Miller is referred to in the record by nicknames of "Bus" and "Buz." ANN ARBOR PRESS 77 pression there was two people organizing the men, and he only knew who one was and wanted to find out who the other one was. Miller further said that Mr. 'Wiltse said he would close the bindery if the Union was organizing. Then on leaving the office, Covert told Miller that A. J. [Wiltse] meant it when he was referring to laying off the entire shop if the Union was formed. Miller returned to his work and later in the afternoon Mr. Wiltse came out to the bindery and told Miller he had found who that other fellow was and that 3t would take him about 2 minutes to get rid of him. He was referring to Donald R. Kalmbach." 3. The discharges Eva Berry first worked in Respondent's bindery from 1938 into 1942, then ,returned in 1945 and worked until her discharge in 1948. She worked at various .Jobs in the bindery, had been given two raises, and her work had been praised by her foreman. She took part in the shut-down on December 29, 1947, but returned to work the next day. She attended the organization meeting of the .Union on January 31, 1948. On the morning of February 4, 1948, the forelady, Rose Schneider, asked Berry if she had attended that meeting. That afternoon, Respondent Wiltse came and talked to her. Wiltse testified, "Eva Berry was given her check, I think, on that same day in this same process of trying to correct what I thought was a bad condition in the :bindery. I went over to Eva Berry, I saw her running a machine and smoking over there, and she smokes incessantly,' and I went over and talked with her and I said, "Now, are you going to take part in any more shutdowns of the type 'we bad the other day?" And she said she would if it would benefit her any, and It .turned and walked away. I said nothing. I went in the office and I didn't say .anything to her at all further, I went in the office and had a check made out for .her, sometime that afternoon, not immediately." Berry testified, "Mr. Wiltse came in and he come over to me and asked me if I joined the Union, and I said, 'No.' He said, 'Do you swear that you didn't .join the Union,' and I wouldn't answer him and he asked me if I thought the Union would give me a job, and I said, 'Yes.' He asked by if I would join the Union and I told him, 'Yes, if I get more money,' and he told me that the Union wouldn't give me a job, that he was the one that gave me a job and then he walked away." The undersigned believes and finds that Berry's version of the conversation with Respondent is more acurate." Just after the conversation Mr. Wiltse went over to Rose Schneider, talked to her and left. Then Schneider, again went over to Berry and asked her why 26 The findings as to the statements , questions of organizational activities , and threats by the Respondent, are based principally upon Miller's testimony, supported by that of Foreman Witting. Both impressed the undersigned favorably as honest and reliable wit- -nesses, even though Witting was vague and indefinite on dates and surrounding details. 'Covert's testimony is credited herein where it appears against Respondent's interest. The interrogations were denied by Mr. Wiltse only as to intent and circumstance. He said he "might" have asked such questions, and as stated before, said he "had a right to." 20 Smoking was permitted. 24 This finding is based on the testimony of Berry, who impressed the undersigned favorably in this aspect of her testimony and is supported by careful consideration of all the testimony regarding the Respondent's statements and conduct on that day and at the hearing, together with his own testimony wherein he admitted his Investigation of organizational activity and also said, "and if I did have any conversation with them [bindery employees] about whether there was going to a union or not, I had a right to," etc.. . . 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the girls had lied, and said the girls were all admitting that they ha.d been to, the union meeting." It was undisputed that Eva Berry was discharged about 3: 30 p. m. on Feb- ruary 4, 1948. Both Superintendent Covert and Foreman Witting said they had nothing to do with it. The foreman was asked if he knew why she was discharged and he testified "well, I think it was because of the Union." Donald R. Kalmbach first worked in Respondent's bindery from June 1937 until October 1941 when he went into the Army, where he served until Decem- ber 1945. He then returned to the bindery. He had been discharged on one occasion for refusing to obey Mrs. Wiltse's order to clean ashes out of the base- ment of her home. He had received several increases in pay and at the time of his discharge his wage was highest of the production employees and he ranked second in seniority. He attended and joined the Union at the organizational meeting on January 31, 1948. The Respondent testified he had decided to discharge Kalmbach several days before February 4, 1948; that "in the thinning out process I selected him as one we didn't need any longer because I had known him to be disgruntled and an agitating type of individual from the time we first hired him. My wife fired him once a good many years ago for refusal and insubordination. He was grum- bling around the bindery all the time, kicking about certain things, whatever the. foreman would want him to do, he wasn't a satisfactory employee." 29 Kalmbach testified he was ordered to see Laverne Rose about 3: 30 p. m. that day. On reporting to the office Rose said "Don, I have known you for a long time and I feel rather responsible for you. What is this stuff about the Union?" and "if there is any condition here that you don't like, why, you should come to us• and tell us about it." Mr. Wiltse came to the door, and among other things told Kalmbach, if he liked the Union so much, he could let the Union get him a job, and discharged him. Laverne Rose, a salesman for Respondent, had been plant superintendent be- fore the time involved. While it was not contended that he was a supervisor, the bindery employees considered him as a representative of the management, and the undersigned so finds." As stated before, Miller testified Wiltse told him he had found out that Kalm- bach was one of the organizers and it would take about 2 minutes to get rid of him .31 It was undisputed that Kalmbach was discharged about 3: 30 p. m. on February 4, 1948. Robert TV. Hanselmann was employed as a truck driver by the bindery fore- man in February 1947. The Respondent had two trucks and maintained three over-the-road truck drivers. On long trips a helper accompanied the driver.. " Rose Schneider did not testify. "Foreman Witting testified be did not know why Kalmbach was discharged. There was no credible testimony offered by Respondent to support the claim that Kalmbach was not a satisfactory employee. ao Assuming that [Rose ] was not a supervisory employee , but was in a position which would justify other employees in believing he spoke for management-held responsible- for activities. Julius Resnick, Inc., 74 N. L. R. B. 184. 2i The findings herein are based upon the credited testimony of witness Miller (see foot- note 25, supra) and upon the undersigned's determination of the credibility of witness Kalmbach as it is reflected by the reasonableness of his testimony, his attitude and demeanor while on the witness stand, and upon all the evidence affecting the conflicting points. ANN ARBOR PRESS 79 Hanselmann drove a truck in Michigan and into and through other States on Respondent's business. When not driving he assisted in the bindery at various jobs. He received three raises in wages and had been praised for his work. Otto Koch, a shipping clerk, occasionally drove a truck, but was not considered an over-tbe-road truck driver. Hanselmann attended the organizational meet- ing of the Union on January 31, 1948. He joined at that time and was the only truck driver present. Hanselmann was discharged about 8: 45 a. in. on February 4, 1948, by Mr. Wiltse. He testified Wiltse came up to him in the shipping room and told him to go into the office, turn in his time, and get his check ; that he had to let 75 per- cent of the shop go ; there was not enough work there to keep them. As Hansel- mann was walking to the office with Hoffman, treasurer, he was asked what was wrong and if he did anything wrong. He replied that there was nothing he knew of. Then Hoffman asked him if he had intentions of bringing any union affairs into the shop, and Hanselmann replied, "No." 22 Mr. Wiltse testified that in his same operation of thinning out the bindery he examined the shipping department and found four truck drivers out there instead of three, the number that had always been maintained. Koch, a part-time truck driver, made a fifth. So he decided that Robert Hanselmann would have to be laid off. He was unable to name the four truck drivers and the evidence clearly shows that there was only three, including Hanselmann and that Robert Domke, a new truck driver, was hired after Hanselmann was discharged. (Emphasis supplied.) Respondent's superintendent knew nothing about this discharge and his fore- man did not know why Hanselmann was discharged or anything about it until later that day. Harry G. Maluske was hired as an apprentice in Respondent's bindery in June 1947. In November and December 1947 he worked at Mr. Wiltse's farm for 3 or 4 weeks and then returned to work in the bindery where he continued until his discharge. He attended the union organizational meeting and joined on January 31, 1948. On February 3, 1948, Foreman Witting told Maluske he would be terminated in 1 week. However, he was discharged about 8: 30 a. in. on February 4, 1948, and at that time, Witting told him Mr. Wiltse had phoned and said to give him his check. Air. Wiltse testified, "I studied over the bindery and for some time I had known that Harry Maluske wasn't the best type of employee to get production from. I had him out to the farm, he had worked out there sanding some floors and they had been very unsatisfactory. And I determined from talking with the foreman that he wasn't a very good production man at all," and that to thin out the bindery pay roll Maluske was chosen as one to be dropped. The foreman testified that the quality of Malusek's work was all right, and that he did everything he was asked to do; that he did not miss any time and there were no complaints. The foreman also testified that he had never dis- cussed or reported Maluske to Wiltse before February 3, 1948, and never tried to find out why he was discharged. E2 It was not contended that Hoffman , treasurer for Respondent, was a supervisor or spoke for management. However, the statement attributed to him, which was not denied, and he did not testify, infers that management did have knowledge of the union activity, which the undersigned has found. 22 There was no evidence offered to show any change in the number of over -the-road truck drivers maintained. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller testified, as set out before, that about an hour after Maluske was dis- charged Wiltse asked him who was helping to organize the Union in there- besides Harry [Maluske].84 4. Conclusions The Respondent alleged and endeavored to prove that the discharges of Berry,. Kalmbach, Hanselinann, and Maluske, on February 4, 1948, were motivated by legal causes. To some extent-perhaps, he may have been motivated by. legal considerations, but, in view of his entire course of conduct, his investigation of union activity, and upon the preponderance of the credible evidence, having con- sidered all the evidence carefully, the undersigned is unable to conclude that any of these complainants were discharged for cause." No satisfactory proof was presented to show reduction of pay roll, or replacement by better production, workers, in the bindery department. January 31, 1948, was the day of the union organizational meeting. It came to Respondent's attention and he went into action, to counteract its purposes, in the early morning of February 4, 1948. He discharged two of the bindery workers before 9 a. in. when he began his investigation among his bindery employees. . Wiltse interrogated employees himself, and directed others of management status to do the same. He also threatened to close the bindery if it was organized. Looking at it in the light most favorable to the Respondent, the undersigned finds that such interrogations, conduct, and statements, constituted an unwar- ranted intrusion into the organizational affairs of his employees. Such investi- gation continued into the afternoon and he discharged the other two union adherents about 3: 30 p. in. Such investigation and the reasonable implications flowing therefrom are violations of the Act and are found to constitute interfer- ence, restraint, and coercion. The Respondent's contention, that proof of actual coercion is essential, is resolved against him " The undersigned further finds that the fact that Respondent was operating other departments of his plant under union contracts, or renewals thereof, is not controlling as to motivation for the discharges.87 The undersigned is convinced, and upon the entire record finds, that Berry, Kalmbach, Hanselmann, and Maluske were discharged on February 4, 1948, because of their union membership and activities, and that by their discharges, the Respondent has discriminated in regard to their hire and tenure of employ- ment, thereby discouraging membership in. a labor organization. The under- signed finds further that by such discharges, and by such investigation, conduct, and statements, the Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing his employees in the exercise of rights guaranteed in Section 7 of the Act. 94 The only evidence tending to show that Maluske was incompetent was Wiltse's vague and general assertion that he had had very little or no previous experience in that type of work and "seemed to be" inefficient. He related no facts in support of his conclusions. 36 Where anti-union considerations precipate discharge. Such discharge is discriminatory and prohibited by the Act, even though valid reasons exists which might warrant this action. Spencer Auto Electric, Inc., 73 N. L. R. B. 1416. 86 Interrogation of employees concerning union membership is per se violative of Act, since such conduct tends to interfere with free exercise of employee rights under Act ; actual coercion of employee is immaterial to finding of conduct proscribed by Section 8 (1) of Act. Sewell Manufacturing Company, 72 N. L. It. B. 85. 87 Servel, Inc., 57 N. L. It. B. 1383. ANN ARBOR PRESS IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 81 The activities of the Respondent set forth in Section III, above, occurring in, connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce- among the several States, and have led and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the Trial Examiner will recommend that he cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act.. It has been found that the Respondent discriminatorily discharged Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske. It will, therefore be recommended that the Respondent offer to said employees imme- diate and full reinstatement to their former or substantially equivalent posi- tions,39 without prejudice to their seniority or other rights and privileges, and that he make the four named employees whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by pay- ment to each of them a sum of money equal to that which he or she normally would have earned as wages from the date of the discharges to the date when, pursuant to the recommendations herein, the Respondent shall offer them rein statement, less the net earnings of each during said period.". It will also be recommended that the complaint, so far as it alleges discrimina- tion by the Respondent against Mary A. Reed and Marjorie A. Lolmaugh, be dis- missed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Arthur J. Wiltse, doing business as The Ann Arbor Press, is engaged in, commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Bindery Workers Union Local 20, International Brotherhood of Bookbinders,- A. F. L. is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Eva. Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske, and thereby discouraging membership in Bindery Workers Union Local 20, International Brotherhood of Bookbinders, A. F. L., the Respondent has engaged, in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing his employees in the exercise- of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is 33 The term "former or substantially equivalent positions " is intended to mean "former positions wherever possible, but if such positions are no longer in existence , then to sub- stantially equivalent positions." See Matter of The Chase National Bank of the City of- New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 39 See Matter of Crossett Lumber Company, 8 N. L. R. B. 440, 497-498; Republic Steel. Corporation V. N. L. R. B., 311 U. S. 7. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondent has not discriminated against Mary A. Reed and Marjorie A. Lolmaugh, as alleged in the complaint. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein, the undersigned recommends that the Respondent, Arthur J. Wiltse, doing business as The Ann Arbor Press, his officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Bindery Workers Union Local 20, Interna- tional Brotherhood of Bookbinders, A. F. L., or any other labor organization of its employees, by in any manner discriminating in regard to their hire and ten- ure of employment or any term or condition of employment; (b) Interrogating employees in any manner as to their union activities, views, sympathies or membership; (c) Threatening closing of his plant in the event his employees form or join a union ; (d) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Bindery Workers Union Local 20, International Brother- hood of Bookbinders, A. F. L., or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and all of 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 guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Trial Examiner finds will effectuate the policies of the Act : (a) Offer to Eva Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole Eva Berry, Donald R. Kalmbach, Robert W. Honselmann, and Harry G. Maluske for any loss of pay each may have suffered by reason of the discrimination against him or her by payment to him or her of a sum of money equal to the amount each would normally have earned as wages from the date of the discrimination against him or her to the date of the Respondent's offer of rein- statement to a former or substantially equivalent position, less his or her net earnings during such period ; (c) Post at his plant in Ann Arbor, Michigan, copies of the notice attached hereto, marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by him and maintained by him for a period of sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to his employees are customarily posted. Reason- ANN ARBOR PRESS 83 able steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material ; (d) Notify the Regional Director for the Seventh Region in writing within twenty (20) days from the date of the receipt of Intermediate Report and Recommended Order what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that he will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is also recommended that the complaint, so far as it alleges that the Re- spondent discriminated in regard to the hire and tenure of employment of Mary A. Reed and Majorie A. Lolmaugh, be dismissed. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C:, an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mime- ographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order trans- ferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the afore- said Rules and Regulations, the findings, conclusions, recommendations, and recommended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 4th day of February 1949. MYERS D. CAMPBELL, Trial Examiner. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 857829-50-vol. 85-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge any employee because of his membership in or activity on behalf of BINDERY WORKERS UNION LOCAL 20, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L., or any other labor organization. WE WILL NOT interrogate our employees in any manner as to their union activities, views, sympathies, or membership. WE WILL NOT threaten to close our plant if our employees join or form a. labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all of 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. WE WILL OFFER to Eva Berry, Donald R. Kalmbach, Robert W. IIansel- mann, and Harry G. Alaluske immediate and full reinstatement to their former or substantially equivalent positions without prejudice. to any sen- iority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of BINDERY WORKERS UNION LOCAL 20, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L., or any other labor organization. ARTHUR .I. WILTSE, doing business as THE ANN ARBOR PRESS, Employer. By ------------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material.