The Miller Press

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Miller Press and Jacksonville Printing Pressmen & Assistants' Union, Local 97, subordinated to International Printing Pressmen & Assistants' Union of North America, AFL-CIO. Case 12-CA-4960 reasons has not been established by a fair preponder- ance of the evidence. Accordingly, we shall dismiss the alleged 8(a)(3) portions of the complaint. AMENDED CONCLUSIONS OF LAW June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On November 19, 1971, Trial Examiner Harold X. Summers issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions to the extent consistent herewith.' We agree with the Trial Examiner that by engaging an industrial psychologist to interview employees concerning their opinions of working conditions, together with surrounding circumstances implying a promise of benefit, Respondent violated Section 8(a)(1). However, we do not agree with the Trial Examiner that the refusal to recall employee Carter in December 1970 violated Section 8(a)(3). When Carter was originally hired, he advised Respondent that he did have a criminal record. However, the full extent of Carter's criminal record was not known at that time. Carter thereafter worked for Respondent about 7 months until Respondent discharged him in September 1970 in order to rehire a more senior employee. Subsequent to Carter's discharge, the full and complete extent of Carter's criminal record came to Respondent's attention, and when a job became available in December 1970, Respondent failed to recall him. The Trial Examiner concluded that Carter was not recalled in December because of his prior union sympathies and activities in violation of Section 8(a)(3). We do not agree. In view of Carter's extensive criminal record which became known to Respondent only subsequent to Carter's discharge, we find that the failure to recall for discriminatory I The Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and positions of the parties Respondent also filed a Motion to Reopen the Record and a Supplement Motion to Reopen the Record As our Decision dismisses the allegations to which those motions are directed, we hereby deny those motions We adopt the Trial Examiner's Conclusions of Law in the following manner: Strike the present Conclusion of Law 3, renumber the subsequent Conclusions of Law accordingly, and amend the new Conclusion of Law 3 to read: 3. By causing employees to be interrogated as to the sources of dissatisfaction which may have motivated them to seek representation by a labor organization, in a manner and under circumstances tending to assure them of amelioration without such representation, Respondent interfered with, re- strained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Miller Press, Jacksonville, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing any employee to be interrogated as to the sources of dissatisfaction which may have motivated him to seek representation by a labor organization in a manner and under circumstances tending to assure him of amelioration without such representation. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its place of business at Jacksonville, Florida, copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's authorized representative, shall be posted by it immediately 2 In the event that the Board's 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 " 197 NLRB No. 85 THE MILLER PRESS 575 upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that Respondent violated Section 8(a)(3) and (1) in the failure and refusal to recall Jarrell Lee Carter, Sr. CHAIRMAN MILLER, concurring: While I agree with my colleagues that Respondent violated Section 8(a)(1) and did not violate the Act in the refusal to recall Carter on December 13, 1970, I would also dismiss the 8(a)(3) allegations for the following reasons: The Trial Examiner concluded that Carter was not recalled on December 13, 1970, because of his union sympathies and, as a remedy, recommended that Respondent be ordered to "reinstate" Carter to his former job. However, the General Counsel had alleged that Carter was discriminatorily discharged on September 11, 1970, and was thereafter discrimi- natorily denied reinstatement, the theory of his case being based on the original alleged unlawful dis- charge. But the Trial Examiner found, and we have adopted that finding, that the discharge was not unlawful and there is, therefore, no statutory obliga- tion to reinstate. To find a violation of the Act in the failure to reca. 1, in view of our finding of no unlawful discharge, the General Counsel must have alleged and proven a separate violation in the failure to rehire Carter because of his union sympathies and activities. I am of the opinion that the complaint does not allege such a theory and the record will not support such a conclusion. First, the allegations of the complaint are stated in terms of reinstatement and recall. There are no allegations regarding a failure to rehire. Secondly, the General Counsel's theory throughout is based on an obligation to reinstate because of a discriminatory discharge. Thirdly, Respondent was precluded by the Trial Examiner from introducing any defense it may have had as to a discriminatory refusal to rehire-see footnote 67, Trial Examiner's Decision-because the Trial Examiner viewed such as a matter for compli- ance, again demonstrating that all participants in this proceeding believed that this case was being tried on a theory of discriminatory discharge and a continu- ing refusal to reinstate. Finally, the General Counsel has not produced enough evidence to sustain even an inference that Respondent discriminated against Carter in the matter of rehire. Indeed, the evidence actually suggests otherwise. For example, Carter was original- ly hired through an ad in a newspaper, which would indicate that was Respondent's regular method of finding employees. The extent of Carter's union activities during his employment remains somewhat of a mystery. Whether he was active in the organiza- tion campaign or one of the leading union activists is not a matter of record. However, the evidence does show that Respondent made the decision to termi- nate Carter prior to any inkling of his or any other employees' union activities. Respondent only there- after became aware of the union demands, and consequently delayed terminating Carter until it sought legal advice, hardly an indication that Respondent was predisposed to violate the Act. Furthermore, since Carter's termination, the Union has been certified and the record indicates that Respondent is bargaining. Respondent claims it did not recall Carter because of a temporary slump in the economic picture, a defense the Trial Examiner credited when he found no violation in the refusal to rehire on October 15,3 and because it had learned, in the meantime, of the full extent of Carter's criminal record.4 Respondent's claims are supported by the record and by the Trial Examiner's findings. Therefore, the only intervening circumstance between Carter's lawful discharge and Respondent's refusal to rehire him, at least up until December 13, was Respondent's becoming aware of the full and complete details of Carter's criminal record, which is, if as stated, enough to astound any employer. When, on December 13, Carter again saw an ad in the newspaper for his former job, he did not even bother to apply, which application becomes a necessity in order to find a discriminatory failure to rehire.5 Accordingly, for these reasons, in addition to the grounds for dismissal stated by my colleagues, I would dismiss the 8(a)(3) allegations of the com- plaint. 3 The Trial Examiner states that Respondent did not rely on the defense that it had learned the full details of Carter 's criminal record when it failed to rehire him on October 15 However, Respondent's president, Miller, testified that Carter's criminal record and the business slump were the reasons he was not rehired at that time 4 Although the Trial Examiner found that Respondent did not have a policy against hiring anyone with a criminal record and that Respondent was aware that Carter had a criminal record when he was hired, he inferentially concluded at fn 62 that the full extent of the criminal record was uncovered later 5 The filing of the charge does not amount to such an application here, since the charge and complaint are based on the failure to reinstate, an entirely different concept from an application for employment Cf N L R B v Pennwoven Inc, 194 F.2d 521 (C A 3) 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, by survey or otherwise, ask our employees about complaints or grievances caus- ing. them to seek a union, under circumstances tending to assure them that such complaints and grievances will be cured without them going to a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. THE MILLER PRESS (Employer) Dated By (Representative) (Title) 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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, 400 West Bay Street, Jacksonville, Florida 32202, Telephone 904-791-2168. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Examiner: In this proceed- ing, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively) issued a complaint I alleging that The Miller Press (herein called Respondent) had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The answer to the complaint admitted some of its allegations and denied others; in effect, it denied the ' The complaint was issued on March 25, 1971 The unfair labor practice charge initia ting the proceeding was filed on September 17, 1970 2 Although the transcript contains oral arguments presented by counsel at one or another point during the hearing, there was no summary argument at its conclusion The first day of hearing ran from 10 a in to 6 40 p in , and the second (and final) day from 9 a in to 1135 p in , without a supper break All parties, including the reporter, fully cooperated in working these hours-the 2-day transcript covered 644 pages-because of the fact, early known, that, if the hearing was not concluded on the second day, prior commitments dictated that there would be an extended recess Toward the commission of any unfair labor practices Pursuant to notice, a hearing was held before me at Jacksonville, Florida, on May 4 and 5, 1971; all parties were afforded full opportunity to call and examine, and to cross-examine witnesses, and thereafter to submit briefs.2 The case involved issues of whether, as a result of certain acts of its agents, Respondent had independently inter- fered with, restrained, or coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, in violation of Section 8(a)(l) thereof; whether Respon- dent, by discharging employee Jarrell Lee Carter, Sr., on or about September 11, 1970, had discriminated in regard to the term of employment of an employee, thereby discour- aging membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act; and whether Respon- dent, by thereafter failing and refusing to recall Carter, had engaged in an independent act of discrimination in violation of 8(a)(3) and (1). Upon the entire record 3 in the case, including my evaluation of the witnesses based upon my observation of their demeanor, I make the following- FINDINGS OF FACT I JURISDICTION Respondent is a Florida corporation with an office and place of business at Jacksonville, Florida, where it is engaged in the retail commercial printing business. During the 12 months preceding the issuance of the complaint herein, Respondent's gross revenue for its finished prod- ucts exceeded $500,000 in value' and, during the same period, it purchased goods, supplies, and materials valued at in excess of $50,000 from suppliers in Jacksonville, Florida, who themselves purchased and received said goods and supplies directly from points outside the State of Florida. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE UNION The charging party, Jacksonville Printing Pressmen & Assistants' Union, Local 97, subordinated to International Printing Pressmen & Assistants' Union of North America, AFL-CIO (herein called Local 97) is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Chronology of Events On September 1, 1970,4 Local 97, through its counsel, close of the second day, after all parties had rested, counsel for the General Counsel expressed a desire to argue orally I announced that, under the circumstances , I would not hear oral argument at that hour, instead, I suggested, any such argument ought take the form of a brief Thereupon, no party having requested that a resumed date be set for the receipt of oral argument, the hearing was closed 3 (1) By a ruling issued by me on September 20, 1971, the transcript of this hearing was corrected in certain respects (2) Upon unopposed motion , Resp Exh 3A is received in evidence 4 Unless otherwise indicated, all dates referred to herein fall within the year 1970 THE MILLER PRESS 577 wrote to Respondent, advising that the Local represented a majority of Respondent's production and maintenance employees and requesting recognition as their bargaining agent. Should there be no affirmative reply within 3 days of the receipt of the letter, the writer said, he would assume that Respondent had chosen not to recognize the Local, which would thereupon take the matter to the Board. This letter was received by Respondent on September 2 Insofar as is revealed by the evidence in this record, the contents of the letter caught Respondent by surprise; up to this point (I find) its agents had been unaware of any union campaign Immediately, Alfred Miller, Jr., president and general manager of Respondent,5 consulted with counsel. Being opposed (I find) to the unionization of Respondent's employees, he sought appropriate legal advice. Counsel gave him advice, including information as to what he could and could not say to employees about unions and unionization. Within the 2 days following the receipt of the letter from Local 97, Respondent asked employees who had not yet filed job application blanks to do so at this time On or about September 3, Miller telephoned Byron, Harless, Schaffer, Reid & Associates, Inc., a psychological consulting firm providing clinical, industrial, and educa- tional counseling, and spoke to Dr. Ernest Larsen, a psychologist employed by that firm. The available evidence does not reveal whether Miller told Larsen that the occasion for the contact was his receipt of the letter from Local 97; but (I find, on his own credited testimony) the actual basis for the action was the fact that, because of the Union's letter, Miller had become aware of employees' "unhappiness and dissatisfaction" and was now seeking a means of finding out the reasons therefor. After some discussion, he retained that firm to make a survey of the attitudes and opinions of Respondent's employees, and it was arranged that he would meet with Dr. Larsen on September 9. On Friday, September 4, the employees working that day were called to the conference room on the second floor at approximately 3:30 p.m Nineteen in number, they included all day-shift production workers and their supervisors. Because what took place at this meeting looms important in the resolution of at least one issue in this case, I here set it forth in extended detail 6 The session lasted about an hour. The first half consisted of a formal talk by Miller,7 and the rest was devoted to employees' comments and questions. Miller opened by noting that no work was scheduled for the upcoming Labor Day weekend, and he expressed the hope that everyone would enjoy the 3 days. He then told them of the letter he had received from Local 97-he called it "the IPP & AU"-and he read it to them He said that the demand for recognition came as a complete surprise to him and that he did not believe the Union represented a majority of Respondent's employees. Respondent's intention, he told them, was to request the NLRB to hold an election. Continuing, he expressed the opinion that Respondent's past success had been "to everyone's benefit." Respondent preferred, he said, to operate the business without a union's representing its employees and to run an "open shop" rather than to deal with a union. In short, he stated, he wanted to run the plant as he pleased.8 Some of the employees who had not been approached by union representatives-Miller continued-would undoubt- edly be contacted in the future. In considering any request to sign a union card, he cautioned them to think the matter over carefully "because it would lead to trouble, trouble, and more trouble " He said that they should not believe all of the union promises, for example, those about "sky-high" wages, the company could only pay the wages it was financially able to produce, and the union could not increase this ability to produce He pointed out that Respondent had given most of the employees several raises in the past 12 months and he saw no reason why, this practice could not continue. Some of them, he added, had been taking home some pretty big paychecks, but, if a union came in, there would be a tendency to cut overtime because the Union would cause the Company to hire more employees in order to widen the base for dues payments. And he said that Respondent was increasing benefits as fast as if possibly could-wages were equal to or higher than some wages set by this Union in the Miami area and were on a par with the Union's wages in Atlanta. At or about this point-having completed the formal speech he had written out-Miller told the employees that he would like them to see a moving picture which was on its way from the airport. Discerning a certain lack of enthusiasm to stay for a showing-after all, this was toward the close of the work day-he said he would tell them something about the film- It concerned a strike at Kingsport, Tennessee, a strike accompanied by violence. He pointed out, parenthetically, that the rough treatment seen in the movie would probably not occur "in this section of the country" because Florida was a "right-to- work" State and Tennessee was not. And he noted, in passing, the movie had been "approved as being true" by the Fifth Circuit Court of Appeals. Miller then said that, for the benefit of the new employees, he would like to give a brief history of the Company: His father had founded it in 1912; he himself had joined up in 1937, and the two had worked hard 5 I find that Miller at all times pertinent was an agent of Respondent 6 My findings as to what occurred at the meeting are based primarily on Miller's credited testimony, as substantially corroborated , in relevant part, by other witnesses , but I deem it necessary, at several points herein , to make specific reference to related testimony which is being credited or discredited r The talk had been prepared and reduced to writing by Miller, then reviewed by counsel 8 A witness for the General Counsel (Glenn Wright) testified that Miller had said he wanted to have the "say " about anything that went on in the plant and to be able to hire anyone he wanted without the help of a middleman I have credited Miller's testimony as to the words he used in this respect 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter to build up the business; in 1955, Respondent had moved to its present location; and his father had retired in 1966 at the age of 77 Prior to the retirement, he noted, the Company had been floundering because its management was divided, but since that time it had been moving forward rapidly. Now,* Miller asked if there were any comments or questions. A number of employees spoke up. The gist of what was said, if not the exact order, appears below. Employee Trent Rogers, a camera shop employee, said that he thought that Ed Minnick, then production manager, had been "badgering" him; although, he said, he knew more about photography than Minnick would ever know, Minnick looked over his shoulder and generally treated him as a child. Moreover, he continued, he was aware that the company had been advertising for a cameraman, and he felt his job was in danger; he resented this, and that was why he had joined the Union. "I don't care who knows it. I joined and signed a card." At this point, Miller interjected, "Remember, I did not ask you that " Ray Therrell, a lithographic stripper, said that he had been working in the litho-stripping department by himself and that, because of the pressure, he was making mistakes. Miller said that he was aware of the situation and that he "understood." Cora Raiford, artist, questioned whether she could be pressured into joining the Union. Also, she said she was afraid of strikes-she had no husband or anyone to take care of her. Ed Waters, a pressman, asked why, after people had been employed by Respondent for some time, thfy were suddenly asked to fill out job application blanks covering their past history. Miller explained that Respondent had set up a personnel file for each employee and that this form was needed for the file.9 Charles Lake, linotype operator, made a comment. The only reason he was retaining his membership in the ITU (International Typographical Union, not involved herein), he said, was that he did not want to lose his pension rights. Continuing, he said he felt that the Company had "pretty poor markup for copy" but that, otherwise, he was very satisfied that Miller Press was a good place at which to work. Miller agreed that there should be better markup Trent Rogers said something about being a "master of the trade" and about his having left Respondent several times before. In apparently jocular rejoinder, a fellow employee (James Smith) said he thought Rogers had quit and come back five or six times Margaret Naylor, proofreader (and wife of a foreman), said that she thought that this was the best place in town to work and that she liked working there. 9 He explained , at the hearing, that the purpose of the file was "to appraise employees," and that applications had nothing to do with union activities 10 This finding is based upon Carter's credited testimony, as substantial- ly corroborated and amplified by witnesses Smith and Miller himself Respondent's brief characterized Carter's comments as being "against the Union " 11 A number of witnesses-among them , Carter, Waters, and Edward Cheney-testified that Miller raised the subject (of a company union) Charles Lake made another contribution. He com- plained about the fact that many changes and alterations were required and that the molds on the second linotype were not suitable for the type of work being done. Miller's answer was that Respondent was more particular about its typesetting than most shops, as for the molds, he explained, new molds had been ordered 3 or 4 months earlier. A number of others-unidentified herein-voiced com- plaints: Someone said there were too many rush jobs; another, that there were too many customer alterations; another, that supervisors were not doing an acceptable job; another, that employees "were not handled properly" and were not given full instructions; another, that there was a lack of cooperation among the employees; and still another, that there had been a great deal of special handling on the photopress picture on a certain annual report, all of which was disregarded when the report went to press. J. L Carter, a compositor, spoke up. He said that he had dropped his membership in ITU because "they" had given him no help in finding work and because their dues were so high. He did point out, though, that before unions entered the printing industry there were sweat shops, and that the unions had done much for management as well as for employees.10 Thereupon, an (unidentified) employee said that the best thing for the Company was "no union." Before the meeting ended, the subject of an unaffiliated union came up It was raised by Trent Rogers-and this was at least his third contribution. In effect-the state of this record does not lend itself to findings as to the exact words used-he asked whether it was not possible for the employees to have a "company union." Miller's rejoinder was, "That is possible, yes." 11 The meeting ended at or about the employees' normal quitting time Although the moving picture film had now arrived, no one wished to stay to see it and it was not shown. On September 8, a petition for certification was filed by Local 97 with the appropriate Regional Office of the Board; and, next day, a copy of the petition was sent by the Regional Office to Respondent. On September 9, pursuant to arrangements previously made, Miller met with Dr. Larsen, agent of the psychologi- cal firm engaged to survey the attitudes and opinions of Respondent's employees. Larsen briefly outlined the procedure which would be followed and it was arranged that the survey would take place 2 days later. On September 10, Respondent posted a notice informing its employees that it had engaged an outside firm, of consulting psychologists to survey their attitudes toward, and their opinions of, Respondent. The purpose of the himself, but, in each such case , the witness' testimony was tempered by statements such as " to the best of my recollection " or "I believe Miller testified unequivocally that he responded to the question of an employee of whose identity he was not positive, and other witnesses identified Trent Rogers, either by name or by description , as being the one who raised the subject Trent Rogers-having ended his employment with Respondent by voluntarily quitting, living elsewhere, and unavailable to any of the parties-did not testify I have resolved any credibility questions in accordance with the findings recited above THE MILLER PRESS move, as explained in the notice, was to determine how the employees felt about theirjobs and working conditions and to determine how Respondent could become a more effective organization. "The survey," the notice continued, "is for the benefit of each employee as well as that of Miller Press." It was explained that all employees would be asked to fill out a questionnaire requiring approximately 30 minutes and that some employees, selected at random, would be briefly interviewed by psychologists. Soliciting frank answers, the notice guaranteed confidentiality; the identities of those giving responses, either in the question- naire or in an interview, would be known only to the psychologists. The program would begin-the notice concluded-next day, at a time and place of which each employee would be advised. On the morning of September 11, Respondent posted a schedule to be followed in connection with the survey. The notice set forth the times at which each group of employees-all -of them, including members of manage- ment-were to go to the conference room on the second floor that afternoon. Shortly after lunchtime, Larsen and an assistant arrived at the plant and set up a base of operations at the second floor conference room and an adjoining office.12 As each group of employees, following the posted schedule, came to the conference room, Larsen spoke to them collectively. He explained what was going to be done-all employees were to receive several forms to fill out, and a number of employees would be selected at random for an interview-and he assured them that, in any report to the Company, the information given would not be attributed to its source. Thereupon, each employee was given two forms, and Larsen's assistant gave the instructions for filling them out. One of them contained six questions, each calling for a short written response. The other contained 65 statements with which each employee could express, by pencil mark, agreement or disagreement. Both documents dealt, gener- ally, with the employees' opinions of working conditions. In the completion of the forms, no names were called for; only the department of the employee was to appear thereon. These "tests", administered under the guidance of Larsen's assistant, consumed anywhere from 5 to 30 minutes of each employee's time. Meanwhile, Larsen interviewed employees in the adjoin- ing office. He selected those to be interviewed by pointing to someone selected at random from among those working on the written forms and asking him if he would come in for an interview. The questions asked at the interview were of a nature similar to those in the written forms, with emphasis, however, upon encouraging the interviewee to unburden himself of concerns or problems not touched upon by the written material. Larsen took notes of what was said. Neither the forms nor the interviews concerned them- 12 My findings as to the procedures followed in questioning and interviewing employees are based upon Larsen's credited testimony As he testified, it became obvious that he was describing the procedures generally followed by him in administering this type of survey and that he had no independent recollection of details relating to the instant survey To the t xtent that I have made findings going beyond Larsen's testimony, I append 579 selves, as such, with unions or unionization. Nor, insofar as is revealed by this record, was the subject raised by any of the employees, with the following exception: When Larsen selected J. L. Carter for interview, Carter said that he had been advised by "the union" not to allow himself to be interviewed privately but to insist on having someone along with him.13 Those that were interviewed were interviewed one at a time, except in two instances. Carter, as he requested, was interviewed along with fellow-employee Edward Cheney, and (without explanation in this record) Glenn Wright and Louis Rukab, employees in Carter's department, were also jointly interviewed. Forty employees were involved in the written portions of the survey. (These included members of management, sales people, and office clericals, as well as 31 "nonsupervisory" employees-all who were present and working that day.) And, of these, approximately one-half were interviewed by Larsen. This stage of the survey ended at approximately 5 p.m. that day. Near quitting time the same day (September 11), Carter was discharged (details infra). Six days later, the instant unfair labor practice charge, alleging that Carter's dis- charge violated the Act, was filed; notice of the filing of the charge, sent to Respondent by the Board's Regional Office, was received on September 18. On September 18, Respondent, over Miller's signature, sent a three-page letter to each employee about the "union drive to represent our employees." The letter informed the addressee that the resolution of the matter would involve a serious decision eventually to be made by the employees themselves in a Board-conducted election, a decision which could affect the future of each employee and his family. If a union were brought in, the letter continued, the direct contact between them and management would no longer prevail-Respondent would have to deal with outsiders rather than with the employees as individuals. Averring that the Union's only interest in the employees was in the income which could be derived from them, it urged them to talk to those who had belonged to unions and had resigned because the unions did not measure up to their promises. The letter pointed to the cooperative relationship which had been built up over the years and asked for a consideration of the consequences of terminat- ing that relationship; it labeled as a catastrophe the fact that the progress gained by the employees over their period of employment would surely be slowed considerably if not stopped altogether by the installation of "union out-of- towners"; and, saying that "all of us are in the same boat," it urged the pulling of oars together, in order to move forward. Continuing, it conceded that the growth of the Company during the past 2 years had caused transitional problems which had affected both management and employees, but it gave assurances that every effort was being made to alleviate the situation. "You will see the appropriate explanations 13 This is based on the credited testimony of Carter, as corroborated, in substance, by other witnesses Larsen did not remember details, but he did recall that "two people" had indicated a strong preference that they be interviewed together rather than separately; he recalled it "because it was very unusual " 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD results very soon, I promise you this." The writer further pointed out that the Company recognized individual accomplishments because it could deal directly with employees, but that, with a union in the plant, it could do no such thing; and that the Company's pay scale was as high as or higher than any other printing company in the area and was higher than that in the latest contract of IPP & AU for Miami and was equal to that in Atlanta. The Union's reputation for strikes was alluded to and an example was cited, reference was made to the financial loss and suffering accompanying strikes. "On the other hand [the letter continued], we do not lay off employees when business is down-instead, we have sustained losses rather than reduce the payroll. We have always taken care of our people. Do you think the union can do this for you? The answer is a definite `no.' Then who is your real friend-the union or the company?" The letter concluded by saying that the signing of a union card did not mean that the signer must vote for the Union; that only the Company, not the Union, created jobs; and that no Union could get for them more than the Company was able to give. It urged a vote against union representation when an election should be held. On a date indeterminate, but occurring subsequent to September 11 and prior to September 30, the psychological consulting firm transmitted to Respondent a written report of its survey as to the employee attitudes. A multipaged document, it contained a description of the procedures followed, details as to the information received, the firm's analysis of this information, and its recommendations for followup treatment. This report serves as a basis for a number of findings herein, including the following: Paraphrased or actual information given by employees, both on the written forms and in interviews, was set forth in the report, including both criticisms and compliments of management. In this connection, the pledge of confidentiality was strictly adhered to. The report set forth a number of conclusions reached in the course of the survey. For example, it stated that, while departmental morale among the office, sales and management groups were "above average" the nonsu- pervisory employees, as a group, displayed a "below- average" state of morale. These employees were concerned, the report said, with a number of things, but mostly with their "security"; and, in comparison with the office, sales, and management groups, the pro- duction and maintenance departments appeared dissat- isfied with the fairness of the pay scale, promotions, work load, work equipment, recognition and status, supervision, and the psychological climate prevailing at Respondent's plant. Among its recommendations was one to the effect that personnel guidelines, with special emphasis upon wages, salaries, and promotions, be developed and be put in writing for the information of everyone; and it also recommended that information from this survey be fed back to the employees. Further recommendations concerned themselves with upper management. Saying that top management showed little concern for rank-and-file employees and questioning that Miller projected himself as being warm, concerned, interested, or understanding, the report recommended that he have a psychological appraisal with a feedback interpretive counseling session as soon as possible; stating that current supervisory personnel were not functioning adequately, it recommended an evaluation of the top supervisors for developmental purposes; and it recommended that a job analysis be made of the duties and responsibilities of middle and top management positions. Finally, it stated that, in the composing room, a very unfortunate leadership situation existed; and it recom- mended that the supervisor there, Earl Naylor, be reassigned or be evaluated to determine his potential for improvement in human relations and man-to-man dealing. At no point in the report was there any mention of unions or unionization, either as a part of employees' comments being transmitted therein or as a part of the reporting firm's analysis or recommendations. On September 30-the date set for a hearing on the representation case initiated by Local 97's petition to the Board-the parties entered into a Stipulation for Certifica- tion Upon Consent Election, calling for an election to be held on October 22. Also on September 30, Respondent sent a letter to each employee bearing upon the attitude survey conducted by the industrial psychologists. First reassuring them that the identities of the employees' giving information to the psychologists had been carefully concealed from manage- ment, it stated that it had now received the psychologists' report and that the trend of the employees' feelings about the Company as brought out in the survey would be the subject of discussions with the employees during the ensuing 10 days. Continuing, the letter pointed out that the Company had been working hard to develop a new sales program and had been exerting efforts to make up for the losses incurred earlier that year; in exerting these efforts, "we have obviously overlooked other problems." What was needed, the letter concluded, was a better understanding of .,each other's problems." On or about October 15 or 16, approximately a week before the Board's representation election was to be held, Miller met with Respondent's employees once again, at which meeting he spoke to them about the coming election. Using a chart, he discussed, among other things, some of the benefits presently enjoyed by the employees, such as hospitalization and workmen's compensation. This record contains no further details as to what he said on this occasion, but, as conceded by counsel, I find that the presentation by Miller constituted an attempt to "talk the employees out of joining the union." On October 16, Miller sent Respondent's employees a third letter. Assuming personal responsibility for "supervi- sion difficulties" because his attention had been otherwise absorbed, he assured them that the problem would be corrected. He emphasized that he anticipated no lack-of- work problem if things continued along their present way; and this was true, he said, whether or not Local 97 should win the election set for October 22. But he reiterated that management and the employees could work together "in the direction of steady growth" more effectively without a THE MILLER PRESS union. He alluded to work benefits enjoyed by them without a union and without the need to pay dues, and he pointed to the fact that, if the Union should win, the Company would be required to deal only with the Union and not with the individual workers. "Even if the union wins and you do not join the union, you will still be under the union jurisdiction." As he had earlier, he alluded to the possibility of a loss of overtime because of union pressures in that direction. "So-with all the problems that the union can bring to all of us-and for no good cause . . . the simple and very easy way you can prevent it, is to vote against the union by putting nothing more than an `X' in the `No' box on the ballot. You don't sign your name, you just vote-'No'." Within the several days immediately preceding the election, Miller had an individual discussion in the conference room with each employee. As characterized by Miller in his testimony, he considered each such session a "campaign talk." The main thrust of the sessions-he testified-was to find out what each individual thought that a union could do for him that the Company could not do without a union; and his primary object was to find out what each employee thought about the Company and what improvements could be made.14 Although Miller, in his testimony, did not recall details as to each such conversation, he did testify as to the gist of the meetings: He wanted to acquaint the employees with the fact that, because a union had requested recognition, the Company had become aware that it must have a problem and he was seeking to identify that problem; in each case, he said that he was not interested in whether the employee with whom he was talking had signed a union card or had joined the Union and he did not ask any employee about his union activities, but he did say that he did not believe that the Company needed a union and that he thought that this was a good place to work without a union; and, finally, he would ask for any comments. Several employees, in the course of the conversation, said that they favored a union or were union members, but, in each such case, Miller said, "Remember, I'did not ask you that question," and he was careful thereupon to express no objection or antagonism. At the hearing, Miller conceded that any of the employees with whom he spoke could fairly assume that, in these conversations, Miller was seeking out the reasons why each of them wanted a union, and I so find. As indicated, the above findings apply to this series of conversations, generally. As to one of them, however, there was more detailed testimony, on the basis of which I make more detailed findings. In that conversation, Miller asked Edward Cheney, compositor, if he was interested in a union. Cheney said that he did favor representation by 14 In this respect, Miller testified that he was not satisfied with the results of the psychologists' survey 15 Cheney had been a member of the ITU, a fact of which Respondent was aware 16 The findings with respect to this conversation are based upon the credited testimony of Cheney Miller did not recall whether he had asked Cheney why he wanted a union, as earlier indicated, he testified that he did not remember the details of any one of this series of conversations 17 At one point, he said that he made the remark during his talk with the employees on September 4, at another , that it took place at his second meeting with employees , at another, that it took place at or before 581 Local 97. Miller asked Cheney for his reasons. Cheney explained to Miller that he felt that his foreman, Earl Naylor, was trying to get him fired. He had had trouble with Naylor, he said, in connection with one of his duties, "making up the cage"; also, on one occasion, Naylor had complained to the front office because he (Cheney) had complied with an order given him by the plant manager and not by Naylor. In the same conversation, Cheney expressed an awareness that a compositor would not normally be interested in membership in the International with which Local 97 was affiliated 15 because that organiza- tion did not "particularly understand" compositors' prob- lems, but Cheney felt that he had to have the protection of a union.16 On the morning of the election-October 22-Fred Miller, son of Alfred Miller-then working as a salesman -was walking through the plant. He stopped alongside Ed Cheney and asked how he felt about the Union and how he was going to vote. Cheney confined his answer to saying that he thought that Fred's father had "missed the boat" when, having suggested that the employees have their own union, he failed to pursue the subject further. The Board-conducted representation election was held on October 22. Of the approximately 21 eligible voters, 12 voted for, and 8 voted against representation by Local 97. Included in Miller's testimony at this hearing was a statement to the effect that, on one occasion, he had told employee James Smith, who, at the time of this hearing, was Local 97's chapel chairman, that he had absolutely no objection to dealing with Smith about employee griev- ances. His testimony, insofar as it related to the date of this conversation, was very confused.i7 I find, in context-to the extent that it has any relevance-that Miller made the statement after the representation election was held B. Independent Interference, Restraint, and Coercion The complaint alleged that Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, in that (1) Miller, in his speech to employees made on September 4, (a) stated that he preferred to deal with the employees directly rather than through a union, (b) suggested that the employees form their own union, and (c) told them they wouldn't have to pay dues to some outside union; and (2) Respondent, on or about September 11, 1970, engaged an industrial psycholo- gist for the purpose of interviewing employees concerning their opinions of supervisors and of their working condi-, tions, and who thereafter interviewed employees during working hours, away from their work stations, concerning their supervisors and working conditions.18 My findings underlying these allegations have been set September 2; and , at still another, that it took place after some kind of word-"nothing official"-was out to the effect that Smith was going to be chapel chairman. Smith, although he testified at the hearing , made no mention of the incident 18 On a number of occasions during the hearing, upon objections by Respondent's counsel to the introduction of certain testimony on the ground that it was unrelated to the incidents hereinabove alleged, the General Counsel explained that his purpose in seeking to introduce such evidence was to demonstrate "background" material which would shed light on the issues , he specifically disclaimed any intention to inject any allegations of unlawful conduct not specifically appearing in the complaint (Continued) 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in the preceding subsection and details will not be repeated here. Suffice it to say that, spurred by the knowledge dust received that a union had been and was organizing Respondent's employees and in an atmosphere marked by Respondent's hostility to the unionization of its employees, Miller did tell the employees, in a speech delivered on September 4, that he preferred to deal with them directly rather than through a union; and Respon- dent did engage an industrial psychologist to make a survey of employees' attitudes toward Respondent, which survey was conducted on September 11, for the purpose of ascertaining what sources of dissatisfaction, if any, might have caused employees to find the need for a bargaining representative. But, in his speech, Miller did not suggest that the employees form their own union-he did, in response to an employee's query as to whether such a union could be formed, concede that this was a possible approach, despite the fact (which I here find) that he preferred dealing with no union over dealing with any union, "outside" or "inside"; and the only context in which he may be said to have suggested that employees would not have to pay dues to an outside union lies in his statements (oft repeated, in many ways) that the continuation of existing working conditions and their betterment in the future was not dependent upon the employees' being represented by a union. Furthermore, with respect to the survey, (1) there was no reference by personnel of the industrial psychologist, in their contacts with employees, to unions or unionization, and (2) promises of confidentiality as to the identity of any employee giving information were made and were adhered to The short answer to the complaint's allegations respect- ing Miller's speech is that nothing he said was accompa- nied by threat of reprisal or promise of benefit, either expressly or by implication. Specifically, it is not violative of the Act for an employer (absen` threat or promise) to express to employees a preference for dealing with them directly rather than through a union; or to tell them, directly or indirectly, that they do not need union representation in order to maintain or better working conditions.19 As for the allegation that Miller suggested the formation of their own union, I have found that this did not occur I find no interference, restraint, or coercion of employees Therefore-whatever else such evidence might tend to demonstrate-i have not considered as potential unfair labor practices any conduct other than those specified in the complaint 19 See Sec 8(c) of the Act 20 Respondent made no claim , and presented no evidence , that it had ever made any efforts to unearth employee "gripes" prior to its receipt of Local 97's letter On the contrary, in one piece of literature given employees during the period immediately preceding the representation election of October 22, Miller, speaking of the information brought out by the survey, said that , "in our concentration on the problems [of improving our position through more and better selling and trying to make up for past losses I we have obviously overlooked other problems", in another, he conceded that he was at fault for supervisory difficulties because his attention had been absorbed in other areas 21 In his preelection letter of September 30, in which he referred to the report given him by the psychologists' firm , Miller, having conceded that Respondent, in its concentration on building up sales , had failed to recognize "other problems" revealed by the survey, continued by saying, "Now, I'm sure you will see a more balanced operation in the near in the exercise of their self-organizational rights, in any aspect of Miller's speech of September 4. But the matter of Respondent's engaging the industrial psychologist's firm, and the survey conducted by that firm pursuant to the terms of its engagement , is a- different story. Respondent (I find) acted only because it was made aware of union activity in the plant and only because it opposed the unionization of its employees.20 This move, linked, as it was, with a subsequent speech constituting an attempt to "talk the employees out of joining the union", with subsequent, intensified "campaign talks" in which each employee was questioned individually as to his reasons for dissatisfaction, and with other subsequent conduct indicating that the passage of time would bring about an amelioration of complaints uncovered by the survey,21 could only have been interpreted by Respon- dent's employees (in the absence of any other cogent explanation) as a means of assuring them that the grievances which caused them to seek representation by a union would be remedied without such representation-in short, as a promise of benefit to discourage unionization. Under the circumstances, I find and conclude on the basis of what I deem to be a fair preponderance of the evidence, that the survey-i.e., Respondent's contracting for it and the psychological firm's engaging in it22-was calculated to and tended to inhibit Respondent's employees in the exercise of self-organizational rights guaranteed them by Section 7 of the Act. It is not unlawful for an employer to solicit employee grievances during a union's organizational campaign, "so long as `the discussions [about grievances] avoided any attempt by the company to imply promises of benefit if the union was defeated,' "23 nor does the use of opinion surveys per se violate Section 8(a)(1); 24 but the solicitation is unlawful if it is "accompanied by an express or implied promise of benefits specifically aimed at interfering with, restraining, and coercing employees in their organizational effort".25 And this is true even though the "survey questions [constituting the solicitation] are perhaps pro- tected under Section 8(c) of the Act if viewed in isolation."26 In Tom Wood Pontiac, Inc.,27 the Board found that asking employees to answer a written questionnaire as to their grievances, in a preelection context, constituted a future " in another such communication-that of October 16-after accepting the responsibility for Respondent's supervisory difficulties pinpointed by the survey-he gave assurances that You should be seeing a marked change right now This will rapidly get better the way it should be, and it will stay that way It is now and always has been company policy to have good supervision and it will be that way from now on 22 I find the firm and its personnel, in this respect, were acting as' agents for Respondent 23 N L R B v Tom Wood Pontiac, Inc, 447 F 2d 383, 384 (C A 7), quoting from and citing cases 24 Ibid 25 ITT Telecommunications, etc, 183 NLRB No 115 Here, the employees were asked to respond to a written questionnaire , the answers were analyzed by a psychologist , and, at a followup meeting, the survey results were explained and employees were asked to voice any particular complaints 26 N L. R B v Tom Wood Pontiac, Inc, supra 27 179 NLRB No 98, enfd N L R B v Tom Wood Pontiac, Inc, supra THE MILLER PRESS solicitation carrying with it an implied promise that the grievances would be remedied.28 A fortiori, where there are additional circumstances which establish, expressly or by implication, that the purpose of the solicitation is to convey to employees that their complaints will be remedied without union representation, there is a violation of the Act.29 In its brief, Respondent cites a number of precedents in support of its argument that the taking of the instant survey, and its surrounding circumstances, did not violate the Act-Orenduff & Kappel, Inc., 118 NLRB 859, 864, 874-875; Montgomery Ward, 150 NLRB 1374, Murray Ohio Manufacturing Co., 156 NLRB 840, 847-848; and Superx Drugs, Inc., 170 NLRB 911. I find these to be inapposite. In the first case, wherein representatives of the employer met with selected employee representatives to discuss grievances, it was found, as a fact, that these meetings were the result of an employee suggestion; the Board, "in the context of [Respondent's] other actions and the surrounding circumstances at the time" could find no coercion. In the Montgomery Ward case, it was found that the employer took the survey'in question prior to its having any knowledge of organizational activities. In the Murray Ohio case, the Trial Examiner (with subsequent Board approval) specifically discredited an employee's testimony that he was interrogated concerning his grievances against the company, finding instead that he was the one who broached the subject and volunteered the information in question. As for Superx, the allegedly unlawful solicitation consisted of an incident in which several members of management had asked an employee if she liked her job, how she got along with her store manager, and if she had any complaints, in the context of a case involving numerous allegations of serious violations of Section 8(a)(1), (3), and (5)-all of which were dismissed; the Trial Examiner, in a lengthy decision, made short shrift of the incident in question by saying, summarily, that he found nothing there establishing interference, restraint, or coer- cion, and the Board, in a "short-form" affirmance, made no mention of the incident whatsoever. In addition, Respondent's brief places emphasis on the fact that the survey, and its aftermath, concerned itself with problems of supervision or management, and that the assurances later given in Miller's letters concerned them- selves with improving management. Without citation, it argues, in effect, that an employer may interrogate as to such matters and may make related promises of benefit with impunity. In my opinion, the argument is misplaced. (1) For one thing, an examination of the matters with which the survey was concerned reveals that the area of investigation dealt not only with management and supervi- sion; it covered wages, raises, promotions, workload, equipment, psychological climate, recognition and job 28 An employer's "willingness to receive and consider employee requests at a time which coincided with the first union organization campaign might well have indicated to the average employee that better conditions would be forthcoming" N L R B v Yokelt, 387 F 2d 751, 755 (C A 2) Cf Fairchild Camera v N L R B, 404 NLRB 581 (C A 8), denying enforcement of 169 NLRB 90 (wherein the Board had held that the employer's calling of a meeting of employees for the airing of grievances was motivated by a desire to defeat a union organizing attempt) on the ground that there was no substantial support for the Board's finding as to the purpose of the meeting 583 status, communications, and employment security. And at least one of the "promises of benefit" noted earlier took the form of an admission, arising out of the survey, that "other problems"-i.e., problems other than those related to sales and to profits-had been overlooked by Respondent, followed by assurances that the employees would see a "more balanced operation in the near future"; the assurance was not confined to the area of management or supervision. (2) If indeed one of the factors impelling employees to seek representation by a labor organization was dissatisfaction with supervision and with management (epitomized, for example, by a real or fancied inadequacy of supervisors' instructions or, for example, by a real or fancied harshness in management's disciplinary program), a promise that corrective action in the area would be taken would, it is quite clear, discourage unionization, and any argument that such promises have a special exemption from proscription by the Act is unconvincing. Having found that the circumstances surrounding the taking of the employee attitude survey herein was calculated to and tended to inhibit Respondent's employ- ees in the exercise of self-organizational rights guaranteed them by Section 7 of the Act, I find that Respondent, by the part it played therein, interfered with, restrained, and coerced said employees in violation of Section 8(a)(1). C. Carter's Discharge At or about mid-December 1969, Ruben Hacker, a compositor employed by Respondent for the past 6 years, became ill and was taken to the hospital. During the first 12 weeks of his confinement (3 in a hospital and the rest at home), he was considered on sick leave and he received one-third of his weekly salary under Respondent's employ- ee illness insurance policy. During this period, however, Respondent was informed that he was suffering from terminal cancer, with about 3 months to live, and undoubtedly would not return to his old job. Thereupon, early in February, Respondent placed an advertisement in a newspaper seeking a replacement. Jarrell Lee Carter, Sr., a compositor then unemployed, saw the advertisement. Determined to be the first to be interviewed for the job, he used the classified telephone book to trace down the telephone number given in the advertisement-Respondent was not there identified by name-and, on Monday, February 9, he presented himself at the plant at 7 a in. He was interviewed by Earl Naylor, foreman of the composition and letterpress department.30 Naylor asked a number of screening questions and had Carter fill out a job application form; later that day, Carter was told that the job was his.31 I find that nothing was said, during these contacts, about Carter's being hired to replace someone else or about this 29 Northwest Engineering Co, 148 NLRB 1136, 1139-40, enfd 376 F 2d 770 (C A DC), Eagle-Picher Industries, Inc, 171 NLRB 293, Texaco, Inc (Evansville Bulk Station), 178 NLRB 434, enfd 436 F 2d 520 (C A 7), Sears, Roebuck and Co, 182 NLRB 777, enforcement denied on the facts, 450 F 2d 56 (C A 6, 1971) 30 1 find Naylor to be a supervisor for, and agent of, Respondent 31 Further details as to the employment interview , to the extent they bear upon the issues herein , appear in the next subsection hereof 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being or not being a permanent job; Naylor said only that Carter would be considered a temporary employee for 30 days. I find, on all the evidence, that (1) he was, in fact, hired as a replacement for Hacker but that (2) it was Respondent's intention, and Carter's understanding, that his would be a regular full-time job at the expiration of a 30-day trial period. Carter reported the next day. During the next 7 months, he worked as a hand compositor in the composition and letterpress department, ajob at which his performance met all company standards. At 4:20 p.m. on September 11 (the day his department had undergone the psychological survey), Carter was approached by Naylor, who said, "We want to see you over here in the office." They went to the office where Dean Andrus, plant manager, and Ed Minnick, plant superintendent and Naylor's immediate supervisor,32 were waiting. Andrus handed Carter three envelopes. "One of them will explain why your services are no longer needed here, one of them is a week's severance pay, and one of them is a week's regular pay." The "explanation" consisted of a memorandum on Respondent's letterhead, bearing that day's date; it was addressed to Carter, the subject was "Termination," and the signer was Dean Andrus. It read: Prior to your being hired here at Miller, one of our regular full time employees became very ill and had to be hospitalized. After some time in the hospital it was indicated that Ruben Hacker possibly was not going to live and obviously would not be able to return to work. With this in mind we hired you feeling confident that Ruben would not be able to return. However, we continue to keep Ruben Hacker on all our insurance and even subsidized his income for some time . . . and recently he had surprised everyone by recovering his health to the degree that he has requested to return to work full time here at Miller. Ruben being of such experience and long standing employee of our Company, we are obligated and rightly so, to put him back to work. Another prime factor of course is that work has slacked off and we just aren't able to substantiate carrying both of you at this time. Therefore, we are . . . regretfully, giving you a week's severance pay and thus terminating your employment as of today at 4:30 PM with Miller Press. I want to wish you well and let you know I will be glad to answer any inquiries for you as to new employment. Carter read the note, then said that he didn't think that the reason given therein for his discharge a "valid" one and that he would let the Union handle it from then on. As Carter left the office, he announced in a loud voice that he had been discharged. Thereupon, he left the plant. The complaint herein alleges that Respondent dis- charged Carter, and thereafter failed and refused to 32 1 find that Andrus and Minnick were supervisors for, and agents of, Respondent at all times pertinent herein 33 Sometime in August, Carter, motivated by "curiosity," had attended a meeting sponsored by Local 97 There, he had signed a card authorizing Local 97 to represent him for the purposes of collective bargaining, along with a number of other employees of Respondent, thereafter, seven or eight additional employees signed such cards and Carter transmitted them to the reinstate him, because he had joined or assisted Local 97 or had engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection. Further explicating at the hearing, the General Counsel, in effect, contends that Respondent's agents entertained an animus against the unionization of its employees, that Carter had been active on behalf of Local 97, that Respondent was aware of his activities, and that, as a consequence, his employment was terminated. As for the reason assigned by Respondent for the discharge-the desire to give Hacker his old job back-the General Counsel argues that this was but a pretext for the action. I have already found that Respondent, through its agents, was indeed hostile toward the idea of the unionization of its employees. Basically, it is the General Counsel's position that the "protected activity" for which Carter was discharged was his making a statement earlier that day to the psychologist conducting the employee attitude survey-a statement made in the presence of Foreman Naylor.33 Although my general findings as to the circumstances surrounding the survey have been enumerated in the subsection entitled "Chronology of Events", it thus becomes necessary to make more detailed findings as to this incident. The men in composition and letterpress department went upstairs to be interviewed, as scheduled, at 1:45 p.m. The group consisted of Earl Naylor, foreman, Carter and Edward Cheney, both compositors, Glenn Wright, cylinder pressman, Charles Lake and Louis Rukab, linotype operators, and Margaret (Mrs. Earl) Naylor, proofreader. The group was commencing to fill in the written forms when Larsen asked for someone to be interviewed. Naylor was the first person selected. When this interview ended, Naylor and Larsen came back to the conference room. Naylor sat down and resumed his work on the written forms, and Larsen asked Carter if he minded being interviewed. It was at this point that Carter said that, upon advice of the union, he wanted someone with him at any such interview. Thereupon, Larsen took Carter and Cheney in for a joint interview. Carter's remark was openly made. Among those who heard it were Earl Naylor and his wife. Their interview ended, Carter and Cheney returned to the conference room and Wright and Rukab went into the conference room, also to bejointly interviewed. At or about this point, Margaret Naylor-who had not been called in for an interview-finished her written forms and went downstairs, back to work. Very shortly, close together in the following order, four others went down; Naylor was in the lead; Lake-who was not interviewed -was a few feet behind him; and Carter and Cheney were next. (Wright and Rukab came down a bit later, after their interview was finished.) The time at which these various individuals went to their work places from the conference room can be gauged in secretary-treasurer of Local 97 But there is no contention, or evidence, that agents of Respondent were aware of these facts , indeed, I find that Respondent's first knowledge of any union activities in the plant on anyone's part came when it received Local 97's letter on September 2 Nor does the General Counsel point, as a contributing factor to the discharge, to Carter's comment (earlier noted) on the occasion of Miller's September 4 speech THE MILLER PRESS terms of the credited testimony of Carter that he went downstairs between 2 and 2:15 p.m. Shortly after Naylor got downstairs, he was called into the proofroom by Mrs. Naylor, who had a work problem; and he spent a period of time there. (Carter, at the hearing, testified that, after they went downstairs, Naylor "avoided" him for a number of hours. I find that, although Naylor did not speak to Carter until he summoned him to the office, there is no warrant for any finding that Naylor "avoided" him.) At 4:20 p.m., as earlier found, Naylor came to Carter and took him to the office to be discharged. Naylor denied that, between his return from the psychologist's survey and the discharge, he told any member of management about what Carter had said in the conference room; he testified further that he had no opportunity to do so. I find, in fact, that he did have the opportunity-after all, he would not have summoned Carter to the office if he had not been in communication with those who were about to discharge him-but I deem it unnecessary at this time to determine if Naylor told management of the conversation during the several hours preceding the discharge. The relevance of a finding in this respect depends, in large measure, upon the facts surround- ing the reason assigned by Respondent for the discharge -the desire to give Ruben Hacker his old job back. I now address myself to this issue. As noted earlier, Carter had been hired as the replace- ment for Hacker, who had not been expected to return to his old job. Just after the turn of the year, following 3 weeks in the hospital, Hacker had gone home to recuperate. At first, he was confined to his bed and, then, for some time, his movement was severely limited. He was-and, at the time of the instant hearing, has continued to be-under a doctor's care and undergoing weekly treatment. While he was in the hospital, and later when he was at home, Hacker had been visited by Earl and Margaret Naylor a number of times. Early in June, he made the first of a series of telephone calls to the Naylors' home, and he made approximately three more calls during that month. On each such occasion, the message he conveyed was that he needed and wanted work; he would become emotional and his voice would break. Naylor's wife was the main recipient of Hacker's pleas, either because she answered or because her husband, unable to "take" a man's crying, turned the call over to her. I find that, in this series of contacts, Hacker's requests for employment were unaccompanied by the words "full time" or "part time"; 34 but, although it was not specified, I find that Hacker was requesting, and that Naylor under- stood him to be requesting, part-time work. 34 This finding is contrary to the testimony of Hacker , who said he was asking for part-time work, and of Margaret Naylor, who said he was asking for fu//-time work Naylor testified that it was his understanding that Hacker was seeking part-time work 31 Also, on one or more occasions, Margaret Naylor took it upon herself to plead on Hacker's behalf with Andrus and with Miller 36 In addition to his supervisory duties, Naylor acted as a compositor. 37 Naylor testified that he cleared this with Andrus and Miller, Miller testified that he had no knowledge of the matter until he heard that Hacker was at work in place of the vacationing Naylor A resolution of the discrepancy is unnecessary to the disposition of this case 38 Hacker testified that he also substituted for Carter, and Carter 585 Late in June, Naylor told Andrus about Hacker's situation, but it was agreed between them that they had no way of knowing whether Hacker was physically capable of working. Subsequently-during the first or second week in July-Naylor and Andrus put the matter to Miller; there, in effect, Naylor was suggesting that consideration be given to Hacker's pleas for work. Again, the discussions centered around Hacker's physical condition; doubt was expressed about his ability to "pull his weight"; and no decision was made at the time 35 During the early part of July, Hacker visited the plant and spoke to Naylor. He reiterated that he wanted work and, when he found out that Naylor was taking his vacation at the end of the month, asked whether he could fill in.36 Naylor-believing this would be a good test as to Hacker's physical abilities-said that he saw no reason why this could not be done; and he told Hacker to report on July 30.37 Hacker did so,,an4 he worked 8 hours each on July 30 and 31, 8.54 hours on Monday, August 3, and 8 hours each on August 4, 5, 6, and 7. Next, Hacker filled in for Ed Cheney, also a compositor, while the latter was on vacation.38 He worked 14 overtime hours during the weekend of August 15 and 16, and he worked 8 hours each from Monday, August 17, through Friday, August 21. By this time, Naylor, convinced that Hacker could perform his old job, recommended to Andrus that he be recalled. Meanwhile, scheduled to take a second, short vacation, he asked Hacker once again to take his place. Thereupon, Hacker worked on Thursday, Friday, and Monday, August 27, 28, and 31; on each of these days, he put in 8 hours. By the time Naylor returned from this vacation, Miller and Andrus had discussed what to do about Hacker. Now concluding that he was physically able, they agreed between them, in accordance with Naylor's recommenda- tion, that Hacker should be recalled to his old job. While details were not discussed-Miller was willing to leave the implementation of the decision to Andrus-it was tacitly understood that Hacker's return would mean that his replacement, Carter, would have to be let go. When Naylor returned on September 1, Andrus informed him of the decision and told him to notify Hacker. On the same day, Naylor telephoned Hacker and told him to report back to work on September 7.39 The plan also called for the discharge of Carter on Friday, September 4. As recited earlier, Local 97's written request for recognition as bargaining representative for Respondent's employees was received on September 2. This brought about a change; with respect to the contemplated Hack- er/Carter personnel action; members of management were in testified that, while he had no personal knowledge, he understood that this was true (Carter was on an unpaid vacation during the 2 weeks ending July 31.) But the Company' s records indicate, and I find, that he did not fill in for Carter 39 Naylor so testified In effect, Hacker denied receiving this request, although he conceded that, on at least one occasion while he had been substituting for vacationers, Naylor had offered him full-time work and he had temporized because-as he told Naylor-on one day he would feel well and on another he could not get out of bed Because Hacker was a confused and confusing witness with little memory for details , I credit Naylor's testimony in this respect 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doubt as to whether the change could now be effectuated. On or about Thursday, September 3, Andrus instructed Naylor to take no further steps at this time to make the change, pending the receipt of advice from counsel. With respect to this item, counsel subsequently advised Respondent to do what would have been done as if no union were in the picture. However, because the advice came so late in the week and because Respondent's management was concerned with so many other details involving the union-see, for example, an account of their activities during that week, appearing under "Chronology of Events", supra-the plan to recall Hacker, for the time being, remained in suspension. And when Hacker came for his paycheck on Friday evening, September 4-he had worked one day of that pay period-he was told, without explanation, that the date of his return was being postponed for a week.40 On or about Tuesday, September 8, Andrus informed Naylor that Carter's employment should be terminated on Friday, September 11„ and that Hacker should come in to work on Monday, September 14. Naylor attempted to reach Hacker by telephone during the week but was unsuccessful; on Friday morning, he left a message with Mrs. Hacker, a message which was ignored.41 Therefore, after work on the same day-Carter having been dis- charged that afternoon-Naylor stopped at Hacker's house but found no one at home.42 Later that same evening, this time accompanied by Mrs. Naylor, he again went to Hacker's home This time, he was "banging at the door" and she was "yelling." Once again, Hacker did not respond, and they left.43 Next day, Saturday, September 12, attempts to reach Hacker by telephone were again unsuccessful.44 Likewise, a 4 p.m. visit to Hacker's home on Sunday, September 13, was fruitless. But finally, at 9 or 9:30 p.m. that same night, when they made their second visit of the day there, the Naylors were invited in by Hacker.45 They-Mrs. Naylor did almost all of the talking, Earl Naylor merely nodding occasionally-reraised the matter of Hacker's return to work. Hacker said that he thought the employees were on strike, but he was quickly disabused of this notion. Thereupon, his attitude changed and he expressed a willingness-nay, an eagerness-to report on the following morning. He did say that it would be necessary for him to report to a doctor for a shot every Thursday afternoon, a shot which sometimes brought about after effects; and he did refer to the fact that there might be occasions when he would be physically unable to report for work or to finish out the day. He was assured that he could have Thursday 40 Based upon Naylor's credited testimony 41 Hacker, aware that there had been union activities among Respon- dent's employees the last time he worked there-August 27, 28, and 31-made the assumption (according to his testimony) that the employees were now on strike and that the company wanted him to come back and cross a picket line to work Therefore, he was determined to thwart any attempt by Naylor to reach him, he not only ignored the phone message of Friday morning-he also refused to answer other telephone calls coming in that day 42 Actually, Hacker was at home Having decided that he did not want to go back to work at this time-see last prior footnote-he did not answer the knocking (he called it "banging") on the door He testified that he knew who the caller was but that he stayed in a back bedroom until Naylor went afternoons off and that other absences due to physical problems would not be held against him. By now, I find, Earl Naylor was aware that, whether it be called "full-time" or "part-time" work, the job which was to be filled by Hacker would not cover full work weeks. Nonetheless, I find further, he entertained an honest belief that Hacker, replacing Carter, could perform all work which would be available for him.46 Hacker did report for work at the plant-except as a substitute for vacationing employees, this was the first time since December 1969-on the morning of Monday, September 14. On the above facts, I am persuaded that Carter's statement made to Dr. Larsen at or about 1:45 p.m. on September 11,-even if Naylor informed his superiors of the incident within the next several hours-played no part in Carter's discharge later that afternoon. On the contrary, I am convinced, and I conclude, that he was let go because, and only because, Respondent had decided to reinstate the individual who had been replaced by him 7 months earlier. Not only was the decision (to substitute Hacker for Carter) made almost 2 weeks before Carter made the statement in question; objective steps designed to implement the decision-in the form of numerous actual or attempted contacts with Hacker-also preceded the making of the statement. The General Counsel has not made out a case of discharge "because [Carter]joined or assisted [Local 97] or engaged in other concerted activities for the purpose of collective bargaining or mutual aid or protection." D. The Failure/Refusal Subsequently to Recall Carter The General Counsel-if I understand him correctly -contends that, even if the discharge of Carter on September I I was not violative of the Act, Respondent's failure thereafter to recall him constituted an independent violation. The argument is three-pronged: (1) at the time Respondent became aware that Hacker, his replacement, did not want full-time work, (2) at the time Hacker totally terminated his employment with Respondent, or (3) at the time the position vacated by Hacker was filled by yet another compositor-at any or all of these times, the failure to recall Carter was motivated by the knowledge that Carter had been and was active on behalf of the Union. Respondent denies that his union activities had anything to do with its not recalling Carter. On the contrary, it attributes this to other reasons which are noted at appropriate places herein-below. Any analysis of the issue must commence with a away 43 This finding is based on Hacker's credited testimony Neither Earl nor Margaret Naylor mentioned this second visit in their testimony 44 Hacker testified that the phone calls came in "on the hour", but that he turned down the bell and did not answer Mrs Naylor testified that Mrs Hacker did answer one of the calls to say that Hacker was out of town Earl Naylor testified that he did not believe he tried to call Hacker on Saturday 45 Hacker testified that , after avoiding all prior contacts, he finally decided that the annoyances would undoubtedly continue and that, therefore, he might as well get the matter over with 46 The availability of sufficient work to justify employing someone for the opening, whether he be Hacker, Carter, or anyone else, is discussed in the next subsection hereof THE MILLER PRESS reiteration of the finding that Respondent was hostile to the unionization of its employees. On the other hand, no discussion of the failure to recall Carter would be complete without a notation that (as previously found) Local 97 won the representation election held on October 22; and, in the absence of any contention or evidence to the contrary, I must presume, and I find, that Respondent thereafter adhered to the bargaining obligations required by the Act.47 Respondent makes no claim that, subsequent to his discharge on September 11, it was unaware of the union sympathies entertained by Carter. Indeed, I find that, whether or not, prior to the discharge of September 11, Naylor had transmitted to upper management information about the statement Carter had uttered in his presence dunng the employee attitude survey, he did, at any rate, pass it on subsequent to the discharge, 48 also, at the conclusion of his exit interview on September 11, Carter, protesting the reason assigned for the discharge, had announced, in management's presence, that he would let the Union handle the matter from then on; and, 7 days later, Respondent received word from the Board Regional Office that Local 97 had filed the instant unfair labor practice charge claiming that Carter had been discharged because of his interest in the Union. I find that, at all times subsequent to his discharge, Respondent was aware of Carter's sympathies with respect to Local 97. Hacker's second term of employment with Respondent proved to be less than full-time and, overall, of short duration. On Monday, September 14, the first day he reported for work, there was insufficient work to keep him busy He called this to the attention of Naylor, who said he should "hang around until 4:30." He did, and his timecard shows 8 hours worked that day. Thereafter, company records based upon his timecards show that, although he worked dunng each of 3 weeks, he worked full-time-i.e., 8 hours-only 5 out of the 15 days involved and he did not work at all on 3 of them. During his first day back, he was told, by at least two employees, that the Company was "using" him merely to justify Carter's discharge; they said, in effect, that Carter had been fired for his union activities and that Respondent was utilizing Hacker's recall as a cover for the real reason. This disturbed Hacker and, that night, he telephoned Miller. He related what he had heard and said that he resented his being thus used; the record contains no testimony as to Miller's response, but, in the context of the remainder of the conversation. I find that Miller denied that Hacker had been called back for the' purpose indicated. Among other things, Hacker mentioned that he had never asked for his old job back on a full-time basis, and Miller said that he had been unaware of this-that he was under the impression that Hacker had indeed been seeking to come back to his job under its former conditions. Toward the close of the conversation, Hacker asked Miller not to tell anyone about this phone call and 47 Among other things, the record contains evidence upon which I find that Respondent, after the victory of Local 97, kept that organization informed of changes in personnel 48 1 do not believe that a foreman would have failed to reveal such information to his superiors, if only to round out the picture of the 587 not to speak to him at the plant. The two spoke for about 30 minutes; and the only significant result was that (I here find) Miller was now fully aware that Hacker did not desire full-time work. Nonetheless, Hacker reported for work the next day -and put in 4 hours. During the week-his time records show-he put in 8, 4, 4, 3, and 8 hours respectively. On Monday, September 21, he took part of the afternoon off to visit his social security office. When he came back to the plant, he was visibly upset. Next morning, Naylor asked him why. Hacker said that he had learned that the social security payments he was then receiving could be jeopardized by his earning more than a certain amount; 49 consequently, he continued, he did not desire to work more than part-time. In addition, he went on, he was incapable of putting in a full day's work because of the pressures resulting from the fact that his fellow-employees were "ostracizing" him and "giving him a hard time"; and, as a third factor, he cited the state of his health. It does not appear that, at this time, Naylor gave Hacker formal permission to work less than full-time, but the fact remains that, as of this date at least, Naylor was aware that Hacker wanted only part-time work. Thereafter, Hacker would clock out during any periods when work was not actually available for him, even though he was at the plant ready to work; the record shows that, during the 5 days from September 21 through 25 inclusive, he worked 4.90, 6.62, 7.06, 3, and 8 hours respectively. During the week beginning Monday, September 28, Hacker did not show up at all the first 2 days, he worked 8 hours on Wednesday, the 30th; he did not report on Thursday; and on Friday, according to his time records, he worked 8 hours. On this Fnday-October 2-he became involved in an argument with fellow compositor Ed Cheney over the responsibility for a particular work task. The quarrel was brought before Naylor, who took the two of them to Ed Minnick. In the course of the discussion, Minnick said that, if Hacker didn't want to do a good want to do a good job, [he] might as well go home," upon which Hacker did leave the plant Later the same day-having cleared with his superior, Minnick-Naylor sent word to Hacker that he should feel free thereafter to work 4 hours a day, 4 days a week. Hacker did not report for work on Monday, October 5. Miller, having been informed of the altercation of October 2, called him and was told that, because of personal reasons, Hacker would not be able to return to work until Monday, October 12. But he did not return on either September 12, 13, or 14, and on the latter date, Miller sent him a letter. Reviewing past events, the letter concluded with: As of this date, we are putting you on part-time status. Even on this basis we do not feel it is really satisfactory to us because it is impossible for us to get in touch with you. We do not know the reason for this, but feel that we are due an explanation. It is not our intention to handle this in a harsh manner, discharged person for the personnel file which would be retained by the company Moreover, I note particularly that Miller, in his testimony, said that he received no such information from Naylor on September 11 49 Hacker's understanding was that he was limited to $140 earned each month 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but only to make a definite status so that we at least know how to plan our work. Fortunately we have not really needed your services in the past 8 working days because our composition is low on work. Please let us hear from you at your earliest convenience. On September 15, Hacker called Miller. First, he expressed disagreement with a number of items contained in the letter's recitation of past history.50 Then he said that, at this time, he wanted to terminate his employment with Respondent permanently. Next day, Miller informed supervision of Hacker's resignation; thereafter, Hacker was no longer considered an employee of Miller Press.-51 Thereafter, the job went unfilled for approximately 2 months. On Sunday, December 13, Respondent placed a help-wanted ad in a local newspaper and, on December 18, a new compositor52 was hired. Since that date, the job has been filled at all times. The first of the General Counsel's prongs, then, is that, absent discriminatory motivation, Carter would and should have been recalled in place of Hacker on or about September 15, when Miller became fully aware that Hacker had not requested and did not want full-time work, or at least on or about September 22, after Naylor became fully aware of the same thing. Perhaps it is relevant here to note-a fact which, in reliance on Miller's own testimony, I find to be true-that, had Respondent been aware that Hacker did not want full- time work, he would not have been recalled in September; and, consequently, that Carter's employment would not have been terminated At any rate, the General Counsel urges (as his second prong) that Respondent, again absent discriminatory motivation, would and should have recalled Carter on or about October 15, after Hacker permanently severed his employment relationship. Respondent's defense to this double attack by the General Counsel is that the available work did not justify hiring anyone-Carter or anyone else-as a replacement for Hacker. Miller and Naylor so testified,53 and, as I have found, Hacker's job did remain unfilled for at least 2 months. This record contains abundant evidence on the question of whether, during this period, there was enough work to warrant the hiring of a compositor in addition to Cheney and-to the extent he did compositor work-Naylor. Carter credibly testified that, throughout his 7 months of employment with Respondent, there never had been full- so He disputed that the Company had maintained his medical and life insurance benefits at all times since he became ill, and he also denied that he had ever requested his job back on a full-time basis 51 After the hearing closed, along with its brief herein, Respondent submitted a photocopy of an excerpt from "Age Law Administrator's Interpretations," dealing with the legality of an employer's failure to employ an individual who places a limitation on his working hours so that his social security benefits will not be affected The General Counsel objects to the introduction and use of this material because it was never properly identified or introduced and because its contents have no relevance to the issues herein The objection is sustained on both grounds, the material in question is not admitted into the record, and I place no reliance on it in arriving at my conclusions herein 51 One Robert Lee Warren, originally classified as a trainee Approxi- mately I month later, Warren was replaced by one Mays 53 Naylor further testified that he also had in mind that Carter had a criminal record, a fact about which (he said) he had learned a month before time work for him; that, on many occasions, he worked no more than 4 or 5 hours a day even though he was present and was paid for a full day; and that, during August and early September 1970, work for compositors was at a low ebb. Also, Naylor credibly testified that, in his earlier contacts with Hacker-during the period when Hacker was pleading for work-he told Hacker that men were standing around without enough to do. And, finally, there was testimony, which I credit, that it was not normal company practice for Respondent to cut hours or to effect layoffs when work was slack.54 Respondent explains the practice last described as being due to the peculiarities inherent in its business: there are extended slack periods during the workday and workweek, punctuated by rush jobs calling for overtime hours at day's end or over a weekend; thus, there is a necessity to have employees on hand, even though they may be being paid for "down time." From the foregoing, the General Counsel seems to reason and to argue that-even though Hacker had been putting in less-than-full hours, Respondent, following its past practices, would have replaced him when he left, and would have replaced him with a "full-time" employee- specifically, with Carter.55 The defect in the General Counsel's argument lies in the fact that he is equating the retention of an incumbent of a job with the hire (or the recall) of someone to fill a vacancy which may occur in that job. On the basis of the evidence in this record, I find that, although it would not lay off an individual when his work was slack, it would and did exercise its business judgment to delay calling in a replacement in the event that that individual's employment relationship was terminated for any reason. It is not for me to question an employer's exercise of such business judgment unless the surrounding facts demonstrate that the action is motivated by factors other than the asserted business judgment. I find and conclude that Respondent's failure to recall Carter (or to hire anyone else), either when Hacker turned out to be a less-than-full-time employee or when he quit his employment with Respondent, was for the reason assigned by Respondent; at any rate, it was not bottomed upon Carter's concerted activities. Finally, the General Counsel argues that Carter should have been recalled on or about December 13, when Respondent finally advertised for a replacement for Hacker or, at the latest, on December 18, when a replacement-other than Carter-was hired. Carter wasodischarged But, because Respondent does not rely on this factor as a reason for failing to recall Carter at this time, I here treat solely with the claim that the current workload did not justify Hacker's replacement by anyone 54 The record shows two possible exceptions in the past 30 years Approximately 10 years ago, there may have been a period of 2 or 3 weeks when the plant operated a 6 instead of an 8-hour day, and, in February 1971, three men-none of whom was a compositor-were laid off during a "very severe recession" in the Jacksonville printing industry 55 Implicit in the argument is the thesis that Respondent was well aware that Carter was seeking the Job, that he was well qualified therefor, and that any reasonable employer would have recalled him rather than seek someone else Respondent does not dispute the thesis except insofar as it has advanced reasons (at this time , lack of available work, later, Carter's prison record-see infra) why it chose not to recall Carter I find that Respondent, at all times relevant , knew that Carter was seeking and was available for employment in his former Job THE MILLER PRESS 589 Respondent defends on the asserted ground that (1) it had now learned that Carter had a prison record, and (2) it had a policy against employing anyone with a prison record. Carter does have an "impressive" prison record. On the basis of a stipulation of the parties following extensive testimony, I find that he has been convicted of four, felonies and, in addition, has been convicted of a crime which, because the sentence was less than a year and a day, Carter "has been informed" was a misdemeanor rather than a felony; and that, for the five convictions, he was sentenced to serve a total time of approximately 30 years and did serve approximately 15 years.56 He was first arrested in 1938, and his final release from jail took place on July 11, 1965; since the latter date, insofar as is revealed by the evidence herein, he has not been involved in any criminal proceedings. Miller testified that, not long after Carter's discharge -he placed the date as some time between September 20 and October 24, and probably before the representation election of October 22-he was informed that he was playing with a dangerous situation and that he had better be careful; that Carter had a long pnson record; and that Carter had been spreading the word that he was going to get even with Respondent-first, he was going to get his job back, then, a week later he would quit, and, finally, some months later, through "friends," he would burn down the plant. (Miller refused to reveal the source of his information because, he said, he had committed himself not to reveal it. Miller's testimony in this respect, counsel for Respondent asserted, was being offered solely with respect to the receipt of information as to Carter's criminal record.57) This was the first time-Miller's testimony continued-that he was aware of Carter's record. Miller further testified that Respondent has a policy against the hiring of employees with a criminal record and that he knew of no instance of deviation from this policy; asked whether the policy was communicated to supervi- sion,58 he stated that he thought-correcting himself: he was sure-that there had been "informal" communication but that the occasions on which the policy comes into play are so infrequent that it is not something normally raised at supervisory meetings-in fact, he did not believe it had been alluded to during any such meetings during the year preceding his giving this testimony. But, as an indication of the existence of the policy, he told of an incident occurring approximately 6 months before-i.e., in early November 1970-the only such incident he could remember as having occurred "within recent times": an instructor at the State prison at Raiford, Florida, had called him with a request that Respondent take on a man being given his freedom; Miller had asked why the man had been incarcerated and had been told the charge was murder; whereupon Miller had rejected the request. Naylor testified that, when he hired Carter back in February 1970, he knew of the existence of the policy. Testifying further, he said that, although he was made aware at that time of Carter's having a criminal record of some kind-details appear infra-he deviated from the policy only because he thought Carter's problem was "something minor ... local and a first offense; and you couldn't hold that against him." The General Counsel takes the position that Respondent was well aware of the fact that Carter had a criminal record long before the time indicated; that such awareness did not block his being hired on February 9 and played no part in his being discharged on September 11; and, therefore, that it was now being used as a pretext to justify Respondent's failure to recall Carter when no other (lawful) reason existed. I have earlier alluded to the circumstances surrounding Carter's original hire. As noted there, he was interviewed by Earl Naylor and was given a job application form to complete. It now becomes necessary to give further details of the incident. When Carter was given the application form, he filled in the blank spaces until, toward the bottom of the first of its three pages, he came upon the question "Were you ever arrested? If yes, describe in full." At this point, he started to hand the form back to Naylor, saying that he would be wasting his and Naylor's time filling out the application because he had a prison record and he knew that most employers would not hire exconvicts; moreover, he said, the application contained only three lines for information about arrests, whereas he couldn't give all the details in three pages, much less three lines. Naylor told him nevertheless to continue to fill out the application, and he did. (He wrote in "Yes" to the question "Were you ever arrested?" and he left blank the space provided for details.) Among other things, he inserted details concerning his prior employment as a compositor, beginning in January 1966.59 56 The crimes in question involved violations of both Federal and state laws, they consisted of auto theft, possession and sale of marijuana, possession of heroin, safecracking with high explosives, and safe burglary In addition, during the involved period, Carter was convicted of one or more other offenses, all misdemeanors, but this record does not contain details thereof 51 On the basis of this assertion , the Trial Examiner stated at the hearing that he would make no findings as to the "threat" with which the alleged phone call was also involved (in its brief , Respondent does not rely on the "threat" as ajustification for any of its actions ) 58 It was not communicated to the rank-and-file employees 59 My findings as to the exchange concerning Carter's arrest record are based upon Carter's credited testimony I do not credit Naylor, who testified that, when Carter got to the question on the application blank about arrests, he said, "Well, I'm not gonna fill this out I got into a little trouble and through it all I lost my wife", that Carter had said nothing about needing three pages to give details about his arrests , and that he (Naylor) had not explored the matter further because he "took it as something minor" In a pretrial affidavit given to a Board agent on October 14, Naylor, in speaking of the hiring interview , said "Carter told me that he had a criminal record I didn't inquire into his criminal record and he didn't tell me what it was" At the hearing, he explained that, in using the term "criminal record" in the affidavit, he was using the phrase in a "broad" sense, not an "actual" sense "The word 'cnmmal ' used in the affidavit was the wrong word to use " I find the explanation unconvincing. (It should also be noted that, in his testimony, Naylor said that Carter's criminal record was once again reported to him a month before Carter was discharged-i e, in August-a report he passed on to his superior, yet, he made no mention of this in his pretrial affidavit.) In assessing Carter's credibility, I do not hold his prison record against him He testified directly and to the point , even where his answers might have been cohstrued to be against his best interests "It was evident that, having paid his debt to society, he hoped to live down the past and become (Continued) 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He turned the filled-out application over to Naylor, who told him to call back at 1 or 2 p.m. for a decision. The morning passed, during which no other individual applied for the job. Naylor told a superior-otherwise unidentified in this record-about Carter's application; in so doing (I find) he passed on all information which had come to his attention in the course of the fob interview.60 The superior told Naylor to go ahead and hire Carter if he wanted to. Carter called back at 1 or 1:30 p.m. Naylor told him that he had the job. But, before consummating the deal, Carter asked permission to come in and see Naylor. When Carter arrived at the shop, he handed Naylor a business card advertising his own printing service. He explained he had a small shop of his own, more or less a moonlight operation, and that he did not want to take this job without Naylor's knowing about it. Once again, Naylor told Carter to call back for a decision 6i I find that, during the next hour, Naylor informed his superior of the new development. It was decided that, as long as Carter, in his private business operations, did not use Respondent's stock or material, this would be no bar to his being hired. When Carter called back, he was given the new decision, with the caveat about using company materials. Naylor asked if Carter could report for work in the morning and he received an affirmative answer. Next day, as earlier indicated, Carter did begin working for Respondent. Thus, I find that, as early as February 9, agents of Respondent-at least Foreman Naylor and one of his superiors-were aware that Carter had a criminal record; although they were not aware of details, they had been put on notice that the details might require' as many as three pages to recount. Yet, Carter was hired. Carter worked for Respondent approximately 7 months. About I month before his discharge, the attention of Naylor (according to his testimony) was once again called to Carter's prison record; he heard a "rumor" about it, a rumor resulting from some of Carter's "bragging" in the shop. (According to counsel for Respondent, this was the first that Naylor heard about Carter's "real criminal record.") Naylor advised Plant Manager Andrus of the rumor, and the latter took the information "under advisement." Meanwhile, Carter worked on, until he was discharged for reasons in which his criminal record played no part. Now-i.e., late in September or in October-Miller assertedly learned of Carter's criminal record for the first an accepted member of that society So far as the evidence showed, he had worked diligently and was re-establishing himself " (Calera Mining Co, 97 NLRB 950, fn 4 of the Trial Examiner's Decision at p 962, adopted by the Board in its fn 8.) 65 Someone-and Naylor testified that it was not he-inserted in a part of the job application blank reserved "for interviewers use" the comment, "This man was a union member said he had pulled out of the union " (During the interview, Carter had told Naylor that he formerly belonged to the ITU ) 6i Again, -this finding is based on Carter's credited testimony Naylor testified that Carter had mentioned his own printing business during the morning interview, but I find the details given in Carter's version to be the more convincing 62 This should not be taken to mean that full details were known from the beginning As found earlier, only the fact that details would fill three pages was known at that time , eventually-perhaps in the course of time. The testimony in support of this assertion is something less than fully probative in view of Miller's refusal to name the source of his information (in a situation wherein there is no legal privilege), thereby eliminating the possibilities of corroboration or of crosscheck by the adverse parties herein. But assuming, without finding, that Miller did receive information at or about this time from an unidentified source, it does not necessarily follow that he was hearing of the matter for the first time. At any rate, it is clear, and I find, that responsible agents of Respondent were aware of Carter's criminal past from the time he was hired 62 Yet, he was hired. And, 6 months later, they became aware of what they considered to be his "real" criminal record. In addition, it should be noted that neither Miller, Naylor, nor any other witness gave any details of the policy concerning the hiring of exconvicts, such as whether the term "criminal record" includes arrests as well as convic- tions, whether any distinctions are made as between types of criminal offenses,63 and what significance, if any, is given to the passage of time since the last offense. And, finally, I have given full weight to Miller's testimony that, in November 1970, he rejected a prison official's request that he employ a person-occupation unknown-just being released from prison after having served time on a murder charge. Upon a careful consideration of all these facts, I find that Respondent did not have a policy against hiring persons with a criminal record; 64 and that its failure to recall Carter on or about December 13, 1970, was not based upon his criminal record. I have earlier found65 that Respondent, at this time, knew that Carter was seeking and was available for his former job. Moreover, I find, on the available evidence, that, at all relevant times, compositors were in short supply that Carter was the only applicant in response to the advertisement of February 9; that Respondent normally retained compositors even when work was not available for them; 66 and, that having advertised for a compositor on December 13, Respondent hired a compositor-trainee on December 18. Persuaded by what I consider to be a preponderance of the evidence, I find and conclude that Carter was not recalled because of his sympathies with and activities on behalf of Local 97; and that Respondent, in failing to recall Carter on or about December 13, 1970, thereby discriminated in regard to tenure of employment to discourage membership in a labor organization and, preparing for the instant hearing-the full extent of the record was uncovered 63 For example, by what authority did Naylor deviate from the asserted policy in hiring Carter because he considered the matter "minor" and what is "minor"" 64 Except to the extent that, even absent a firm policy, I assume and would expect that any reasonable employer would consider the possession by a job applicant of a criminal record to be a "minus" in arriving at its hiring decision , such details as the nature of the record, the passage of time since the last offense, and the availability of other applicants would be given full consideration. For example, I find that, on February 9, 1970. had any other applicants answered the want ad, Carter's record would have weighed against him 65 See fn 55, supra 66 Significantly , Carter himself had been hired at a time when , according to Miller, Respondent was in a slack period THE MILLER PRESS consequently, interfered with, restrained , and coerced employees in the exercise of self-organizational rights guaranteed them by the Act. Upon the foregoing factual findings and conclusions, I come to the following- CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 97 is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to hire and tenure of employment by failing to recall Jarrell Lee Carter, Sr., on or about December 13, 1970, because of his sympathies with and activities on behalf of Local 97, thereby discouraging membership in a labor organization , Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 4. By the foregoing conduct, and by causing employees to be interrogated as to the sources of dissatisfaction which may have motivated them to seek representation by a labor organization , in a manner and under circumstances tending to assure them of amelioration without such representation-by all this, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed them in Section 7 of the Act, in violation of Section 8(a)(1) thereof. 5. The aforesaid acts are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 6. Except for the foregoing, Respondent has committed no unfair labor practices under the Act The Remedy Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Without admitting any violations of the Act, Respondent 67 At the hearing, Respondent sought to introduce testimony which might tend to show that , at any rate, Carter or one of his successors might have been laid off at one point or another I ruled that any such evidence was appropriate , if at all, to a compliance proceeding rather than this one 591 argues that , even if there be a violation of the Act which otherwise requires reinstatement of Carter, reinstatement should not be ordered, as being "against public policy," in view of Carter's criminal record . I have already found that he was hired by Respondent, and was retained thereafter, despite knowledge as to his criminal record and (I here find) his employment for a 7-month period was unmarked by any stigma arising out of dishonesty or other conduct related to the offenses for which he had been convicted. I also find that Carter has paid his debts to society and has been involved in no criminal conduct for more than 6 years and that he has worked as a compositor, for one or another employer, at various times since January 1966 without any allegation or evidence of dishonesty or other conduct related to the offenses for which he had been convicted. I shall recommend the Board's normal remedy in this respect. I shall recommend that Respondent offer Jarrell Lee Carter, Sr. full and immediate reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by him because of Respondent's acts, by the payment to him of a sum of money equal to the amount he would have earned from December 13, 1970, to the date of Respondent's offer of reinstatement, less his net earnings during said penod.67 Backpay shall be computed on a quarterly basis with interest at the rate of 6 percent per annum in the manner heretofore established by the Board. Since the unfair labor practices committed by Respon- dent are of a character striking at the roots of employees' rights safeguarded by the Act, I shall recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I hereby recommend that the Board issue the following: [Recommended Order omitted from publication.] Therefore, nothing herein should be construed as barring Respondent from introducing such evidence (if otherwise admissible) in any compliance proceeding herein