Munro Enterprises, Inc.

MUNRO ENTERPRISES, INC. 403 Munro Enterprises, Inc.' and Boston Mailers' Union No. 1, _ International Typographical Union, AFL.- CIO. Case 1-CA-8935 April 30, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On December 19, 1973, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief and Respondent filed exceptions, a supporting brief, and an answering brief to General Counsel's exceptions. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge subject to the modifications set forth below: 1. We find merit in the General Counsel's exception to the Administrative Law Judge's dismiss- al of the alleged violation of Section 8(a)(1) of the Act entitled "Incident of December 1, 1972" in the attached Decision. The Administrative Law Judge credited the testimony of Twist and Lavertue that during a meeting with the employees on December 1, 1972, Howard James, one of Respondent' s managers, stated that if there was a union in the plant there would be no free time for the employees. The Administrative Law Judge further found that Res- pondent had a then existing practice of permitting employees to leave a few minutes prior to their regular quitting time. In view of these findings, we find and conclude that James' aforementioned remark was clearly a threat of reprisal against the employees if they supported a union, and, conse- quently, a violation of Section 8(a)(1) of the Act. It is equally clear that in determining whether James' statement constitutes a threat in violation of 5 "ction 8(a)(1), it is not significant that employees did not testify that they regarded James' statement as a threat of reprisal; nor is it significant that James may not have intended this remark to convey a threat. "No proof of coercive intent or effect is necessary under Section 8(a)(1) of the Act, the test being I Name as amended at the hearing. s Time-O-Matic, Inc. v. N.LRB., 264 F.2d 96, 99 (C.A. 7, 1959). s In adopting the Administrative Law Judge's findings concerning the discharges of January 3, 1973 (sec. III,D of his Decision), we do not agree with or adopt his rationale that the small plant doctrine is "even more applicable to a small plant in a small town ... of only about 15,000" 210 NLRB No. 62 `v hether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.' "2 2. With respect to the alleged violation of Section 8(a)(1) of the Act entitled "Incident of December 28, 1972" in the attached Decision, the record herein does not support the Administrative Law Judge's statement that employee Twist admitted that when James offered him the job of pressman, James discussed finding a replacement for departing press- man Gauvin; hence the record does not support his credibility resolution based thereon, that for that reason the conversation must have occurred on January 15, 1973. However, we agree with his alternative finding that General Counsel has not met his burden of proving that Respondent in that conversation threatened economic reprisals in viola- tion of Section 8(a)(1) of the Act. 3. While we agree with the Administrative Law Judge that Respondent did not by the statement to Nolin, discussed under the heading of "Incident of December 15, 1972," threaten withdrawal of a benefit, we so find only because the claimed benefit had not been granted to her, and we do not adopt the Administrative Law Judge's alternative grounds for so finding. 4. In view of our determination that the discharg- es that took place on January 3 and March 9, 1973, were not motivated by unlawful considerations in violation of the Act,3 we need not pass upon General Counsel's exceptions to the Administrative Law Judge's findings that Maurice Lavertue and Eleanor Theberge were supervisors within the meaning of the Act. 5. We find, in agreement with the Administrative Law Judge, that a bargaining order is not warranted in the instant case. In addition to the single discriminatory discharge of employee Twist on February 20, 1973, in violation of Section 8(a)(3) and (1) of the Act, we have found that Respondent violated Section 8(a)(1) of the Act by a single threat on December 1, 1972, long before the Union's demand for recognition dated February 9, 1973. In our view Respondent's unfair labor practices were not of so pervasive a character as to warrant a judgment, under Gissel4 standards, that use of the Board's traditional remedies could not insure a fair election and that the Board should, accordingly, accept the prepetition authorization cards as a more reliable index of employee choice. Thus, the single unlawful discharge herein involved an employee who population and because a supervisor signed a union card and attended union meetings. However, the supervisor's knowledge of union activities is, of course, chargeable to Respondent. Cf. Montgomery Ward & Company, Incorporated 115 NLRB 645,647. 4 N.LR. B. v. Gissel Packing Co., Inc., 395 U.S. 575. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was neither the leading union adherent nor in any particular leadership position among the employees with respect to the Union and occurred in the context of lawful economic layoffs. Furthermore, the single independent violation of Section 8(a)(1) which we have found was not of an aggravated nature and occurred more than 2 months before the Union's demand for recognition. No. 1, International Typographical Union, AFL-CIO, or any other labor organization. MUNRO ENTERPRISES, INC. (Employer) Dated By (Representative) (Title) ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Munro Enterprises, Inc., Berlin, New Hamp- shire, its officers, agents, successors , and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order as herein modi- fied: 1. Insert the following paragraph and reletter paragraph 1(a) as 1(b): "(a) Threatening to take reprisals against its employees by stating it will terminate its practice of permitting employees to leave a few minutes prior to their regular quitting time because they support the Boston Mailers' Union No. 1, International Typo- graphical Union, AFL-CIO, or any other labor organization." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer John Twist full reinstatement to his old job or, if that job no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of his discriminato- ry discharge. WE WILL NOT discharge any employees for supporting the Boston Mailers' Union No. 1, International Typographical Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten to take reprisals against any employees by stating we will terminate our practice of permitting employees to leave a few minutes prior to their regular quitting time because they support the Boston Mailers' Union 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, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Administrative Law Judge : Respon- dent Munro Enterprises, Inc., is engaged in the publication of The Berlin Reporter,' a weekly newspaper established in 1890, together with two other recently established smaller newspapers, out of its office and news plant at Berlin, New Hampshire. Judith James is the president and sole stockholder of the Respondent and the publisher of its papers. Formerly the widow of Steve Munro, Mrs. James became the wife of Howard James, a Pulitzer Prize winner,2 on January 1, 1972. Even pnor to his marriage to Judith , Howard James became one of Respondent's managers on November 1, 1972, and he continued in this capacity until January 1, 1973, when he became general manager and thereafter continued in that capacity at least through March 9, 1973. All important management decisions here pertinent were made jointly by Judith and Howard James, but the day-to- day management of the news plant was largely in the hands of Howard James as Mrs . James to a great extent was preoccupied with the care of their combined six children.3 Although Howard James is here involved as a principal figure in the operation of Respondent's business, his primary personal interest is that of a freelance writer of nonfiction books and in the preliminary research that such books require. During the period here involved, there were brief intermittent times when he was absent from the news plant to research and write a new book , still unfinished, 1 By oral amendment at the trial , Respondent's name shown in the complaint as "Berlin Reporter - Munro Enterprises , Inc ," was corrected to read as "Munro Enterprises, Inc " 2 Received for his book, "Crisis in the Courts " 3 At the time of her marriage to Mr James , Judith James was the mother of four children by her prior mamage; Mr James at the time of the marriage had a child by a pnor marriage ; toward the end of 1972, Mrs. James gave birth to a child out of her marriage to Mr James MUNRO ENTERPRISES, INC. 405 dealing with the problems of juvenile children as a sequel to an earlier published book on the subject of children. On November 7, 1972, practically all of the 34 or so employees of Respondent's news plant walked off their jobs in protest over what they deemed the unfair treatment of one of their coworkers. Shortly thereafter several of the employees sought the assistance of Local 75 of the Pulp and Paper Workers in organizing Respondent's news plant and a number of the employees signed cards authorizing Local 75 to represent them. However, the differences that caused the walkout and other grievances were settled in large part within 2 days without the intervention of Local 75 and all the employees who had walked out returned to work on November 9. Thereafter the employees desiring representation switched unions by withdrawing from Local 75 and signing up with the Boston Mailers' Union No. 1, the aforementioned Charging Party as their chosen bargaining representative. By January 3, 1973, the Mailers' Union had union authorization cards from 14 of Respon- dent's employees. On January 3, 1973, the Respondent closed down its job printing shop which had been engaged in printing letterheads, school reports, and such other privately printed matter for customers under the claim that the operation of that part of its business was unprofitable. On March 9, 1973, Respondent terminated the printing of its newspapers in its own news plant at Berlin and thereafter sublet the work to a panting plant at Norway, Maine, under claim that it could not find pressmen to replace the pressmen who were quitting, among other justifications for such action hereafter discussed. Starting early in 1973, the Company began to terminate many of its employees. On January 3, 1973, the Respon- dent discharged seven employees under claim of financial necessity. On February 20, 1973, Respondent discharged its advertising solicitor, John Twist, for alleged incompe- tency. Twist had been a spokesman for the employees who had walked off their jobs on November 7, 1973. On March 9, 1973, the Company discharged three other employees as an outcome of its aforementioned decision to permanently discontinue the mechanical production of its newspapers at its own plant and to subcontract that work to an out-of- town printer. Under the above undisputed but skeletomzed facts, the issues under the pleadings herein are: (1) the appropriate unit of employees in Respondent's office and news plant for the purposes of collective bargaining; (2) interference, restraint, and coercion by Respondent of its employees in the exercise of rights guaranteed employees in violation of Section 7 of the Act as more specifically set fo_ th in subsequent parts of this Decision; (3) the discriminatory discharge of 12 employees between January 3 and March 9, 1973, in violation of Section 8(a)(3) of the Act; (4) the majority status of the employees in the appropriate unit desiring union representation on various dates; (5) and whether Respondent's admitted refusal to bargain with the Union under all the circumstances of the case constitutes a violation of Section 8(a)(5) of the Act. These issues will be taken up in a somewhat different order than shown above. The complaint herein was issued on June 22, 1973, pursuant to a charge filed on March 13, 1973. Respon- dent's answer denies the alleged unfair labor practices. The case was heard over a period of 9 days between July 3i and August 10, 1973, at Berlin, New Hampshire. Briefs filed on October 1, 1973, by counsel for General Counsel and the Respondent, together with a letter from counsel for the Charging Party stating that the Charging Party adopts General Counsel's brief in support of its own position, have been carefully reviewed and considered. For reasons hereinafter indicated, the complaint will be dismissed for failure of proof except for the unlawful discharge of John Twist. Upon the entire record in the case and from my observations of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS Respondent, Munroe Enterprises, Inc., a New Hamp- shire corporation, is engaged in the publication and distribution of newspapers at its principal office and place of business in Berlin, New Hampshire. The newspapers published by the Respondent carries advertisements of nationally sold products. The Company's gross annual revenue is in excess of $200,000. It is admitted that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Boston Mailers' Union No. 1, International Typographical Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Background Judith James' first husband was the late Steve Munro whom she married in 1959. On May 1, 1967, Judith and Steve Munro, jointly, purchased The Berlin Reporter, a weekly newspaper established in 1890 and published at Berlin, New Hampshire, which they acquired under the name of Munro Enterprises, Inc. Mr. Munro was killed in an automobile accident in 1970. Upon his death, Judith Munro, then the mother of four children by her marriage to Mr. Munro, became the sole stockholder and president of Munro Enterprises. On January 1, 1972, Judith Munro became the wife of Howard James, a former reporter for the Christian Science Monitor and chief of its Midwest Bureau from 1965 to September 1970. From September 1970, until his marriage to Judith in January 1972, Howard James had been primarily engaged as a freelance writer, lecturer, and consultant. His books include "Cases in the Courts," published in 1968, for which he received a Pulitzer Prize and "Children in Trouble-A National Scandal," published in 1970.4 Five months after his marriage to Mrs. James, Mr. James, on May 1, 1972, signed a contract with the same 4 Both books are based on a series of articles by Howard James that appeared in The Christian Science Monitor 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD publisher that published his prior books to write a book on problems of child abuse, tentatively entitled "Little Victims." The original deadline for the publication of that book was May 1, 1973, but at the time of the trial herein in August 1973 it had not yet been published because of his preoccupation with the management of Munro Enterprises. At the time of James' marriage to Mrs. James, he brought to the marriage a child by a prior marriage. On November 14, 1972, Mrs. James gave birth to a child out of her marriage to Mr. James. At the times here directly involved, the Jameses had a combined family of six children in their household. Shortly after his marriage to Mrs. James, Howard James became acting and later general manager of the Respon- dent while his wife remained its sole stockholder and president. For the period here involved from January through March 9, 1973, the exigencies of Respondent's business absorbed virtually all of his time and many hours of overtime. However, there was an understanding between Mr. and Mrs. James from the date of their marriage that as soon as Respondent's business would permit, Mr. James would withdraw from the active day-to-day management of the business to devote his full time to his primary literary interest of completing the research and writing of his new book, "The Little Victims," dealing with "children who are emotionally disturbed, children who are battered and abused, children who are mistreated in other ways who have problems at school and children that are retarded." Mr. James has a researcher who is aiding him on the preliminary research required for the book. For 2 months between July 15 and September 15, 1972, Judith and Howard James left the management of Respondent's business in other hands while they and their six children drove westward as far as Colorado in their pickup truck and camper. The primary purpose of the travel was to give Mr. James the opportunity to gather research data for his new book by visitations to various institutions such as mental hospitals and schools for the retarded. The other purpose of the travel was to help him establish a stronger relationship to his four stepchildren by his marriage to Judith. On the trip, James would from time to time leave Mrs. James and the children at a trailer camp while he took off by himself to various locations in search of data for his book. The employees at Respondent's news plant at Berlin knew before the Jameses departed on their westward trip across the country that the purpose of the trip was to give Mr. James the opportunity to research his new book. Just prior to their departure, Mr. and Mrs. James held a meeting of Respondent's employees on July ! 1972, at which Mr. James read to them a written statement received in evidence as Respondent's Exhibit 6. The opening paragraph of that statement reads: As you already know, I have a book contract and must keep my committment to my publisher. So must go out and research. The balance of Mr. James' statement to Respondent's 5 Sua sponte, the record is corrected to show the circulation of the Berlin Reporter and the Northland News to be as shown above as against the employees addressed itself primarily to the financial conditions facing the Company over which Mr. James expressed much concern. Respondent's financial condition of that time, July 13, 1972, has a bearing on the discharges that thereafter took place in the early part of 1973. In that connection the key portions of the statement read as follows: We now have the largest payroll in the history of The Reporter. . . . With this big payroll, and with the improvements we have been trying to make, profits are now at an all time low .... One of our major problems has been the job shop. On most weekly papers the job shop accounts for anywhere from 40 to 60 percent of the income. Our job shop doesn't even account for 10 percent of the income ... . If we don't bring in more business for the web press; if we don't find other ways to build the [Berlin] Reporter and Northland News; and if we don't make substantial increases in the job shop, we are going to have to cut several jobs off the payroll. The above warning of possible discharges for financial reasons was made many months before there was any union activity among Respondent's employees and months before the Respondent was charged with unfair labor practices stemming out of alleged interferences of the rights guaranteed employees by the Act to self-organiza- tion and to join unions. It appears that when the news plant here involved was taken over in 1967 by Mr. and Mrs. Munro, the plant was engaged in the publication only of the Berlin Reporter and in the operation of a job shop for the printing of letterheads, school reports, and other printed matter wholly unrelated to the publishing end of the business. At a later date the Respondent also began the publica- tion of another newspaper called the Northland News out of its plant in Berlin. At first the Northland News was published semimonthly but in early November 1972 it was changed to a weekly publication. Simultaneously with this change, the Respondent also commenced the publication of a new weekly newspaper out of its Berlin plant called the Groveton News which was identical with the North- land News except that the front page of the Groveton News was different. Each of the three newspapers has its own separate geographical circulation, the circulation of the Berlin Reporter being 9,500; the Northland News, 7,600; and the Groveton News, 600.5 B. Alleged Interference, Restraint, and Coercion The complaint as amended alleges three instances of unfair labor practices as independent violations of Section 8(a)(1) of the Act. These will be discussed in chronological order below. inverted figures of 7,600 for the Berlin Reporter and 9,500 for the Northland News shown in the transcript. MUNRO ENTERPRISES, INC. 1. Incident of December 1, 1972 The complaint alleges that on December 1, 1972, Howard James "threatened employees with reprisals if they supported a union by stating at a meeting of employees that if the employees became represented by a union, they would have to work the hours for which they are paid, and there would be no free time available." The record is undisputed that a staff meeting of virtually all of Respondent's 34 employees was held at the news plant on December 1, 1972, pursuant to the request of the employees for the purpose of discussing with Mr. and Mrs. James certain of their demands as set forth in a document presented in advance of the meeting to Mr. James and in evidence as General Counsel's Exhibit 11. At the meeting Mr. James was the spokesman for management and John Twist, an alleged discriminatee, was one of the spokesmen for employees present at the meeting. Twist testified that Howard James said to the employees at the meeting that "if the union came into the paper" the employees would be required to punch a clock, and that, "There would be no free time." Maurice Lavertue, another alleged discriminatee and spokesman for the employees at the meeting, also testified that James at the meeting stated that "if you had a union in here there would be no more free time around here." From other testimony by James this reference to free time appears to be a reference to the Respondent's then existing practice of "tolerating" em- ployees to leave the news plant sometimes a few minutes before their regular quitting times. Howard James in his testimony flatly denied that he had made that statement to his employees. Discussion and Conclusions From a careful reading of the statement attributed by Twist and Lavertue to Howard James , I find that even if that attributed statement is credited, it did not constitute a threat of reprisals against the employees if they supported the Union but was merely an expression of opinion of what might occur un r a tightly worded collective-bargaining agreement. Suc an expression of opinion in the light of the entire context of that staff meeting was in my view merely a protected expression of the Employer's "views, argument, or opinion" under Section 8(c) of the Act. It is significant that neither Twist or Lavertue testified that they regarded James' statement as a threat of reprisal if the Union came in. A careful reading of the testimony elating to that staff meeting shows that there was a mutual and frank discussion of the pros and cons of having a union at Respondent's news plant. It is significant that out of the 34 or so employees at the indicated staff meeting and the 10 employees who testified in this proceeding only Twist and Lavertue attributed the statement in question to James. As noted James denies the statement attributed to him. While I credit Twist's and Lavertue's testimony that James made such a statement to the employees at the staff meeting, I credit James' denial of the attributed statement insofar as it implies any threat of reprisal against the employees if they decided to be represented by the Union. 2. Incident of December 28, 1972 407 The complaint, as amended, alleges that on or about December 28, 1972, Howard James "threatened employees with economic reprisals if they supported the Union by stating to John Twist that if the Union got in, the printing of the newspaper could be done in Norway [Maine] and that the production shop could be closed." The composite testimony of Twist and Howard James leaves no doubt that James in a private conversation he had with Twist told Twist that the printing of Respondent's newspapers "could" be done in Norway, Maine, but the similarity ends there as their testimony is in conflict both as to the date of the conversation and the context out of which the above statement was made. The complaint originally alleged that the incident under discussion took place on or about January 15, 1973, but at the opening of the trial before any testimony was taken the complaint was orally amended to show that incident took place on or about December 28, 1972. In his testimony Twist was uncertain as to the precise date of the incident but placed it within 1 to 3 days prior to January 3, 1973, the latter being the date on which the Respondent discharged seven of its employees. Twist testified that James at that time after engaging him in a private conversation about the serious shortcomings of some of Respondent's employees who he said could not hold jobs elsewhere, told him that if a union came in, it would be "good" for himself and his wife because the operation of the plant would then be "a hard nose operation" and "if the people did go union, that he could do his printing in Norway-Norway, Maine." James, on the other hand, gave an entirely different version of the background of his remark to Twist that the printing of Respondent's newspapers "could be done in Norway, Maine." His version is inextricably tied in with a very serious and undisputed problem he was facing in finding a pressman to replace the pressman who had served notice on January 15, 1973, of his desire to resign his job so that he could rejoin his wife and small daughter in Connecticut. That pressman was Robert Gauvin who had started his job as a pressman for Respondent in late October 1972. Gauvin's testimony corroborates James' that he notified James on January 15, 1973, that he would be terminating his employment as of May 1, 1973, later advanced to mid-March 1973. James testified that shortly after Gauvin notified him of his impending resignation that he offered the pressman's job to Twist but that Twist would not commit himself and later declined the offer. In that connection as is here more directly pertinent, James testified that Twist at that same conversation asked him what he would do if he could not find a replacement pressman and that he (James) replied, "I could probably print in Norway." James expressly denied making that remark as a threat to print elsewhere if the Union succeeded in coming in. Twist admits that James had offered him the pressman's job, but his testimony flatly contradicts James' testimony that the offer was made in the middle of January 1973. Instead he testified that James made the offer to him in November 1972 before Gauvin became the pressman and 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while Tom Yoder was still the pressman and James was still looking for a replacement for Yoder. Discussion and Conclusions Summarized, the parties are agreed that at a disputed time James told Twist that the printing of Respondent's newspapers which were being printed at Berlin "could be done in Norway." The time and context of that statement is in dispute. Twist testified that the remark was made on December 28, 1972, as part of the larger declaration, "If the people [employees] did go union, that he [James] could do his printing in Norway." James, on the other hand, testified that his remark that the printing "could be done in Norway" was made on January 15, 1973, in response to Twist's question as to what he would do if he could not get a replacement for his pressman Gauvin who had given notice that he was quitting. From a careful study of the record as a whole, I credit James' version of what he said to Twist both as to time and as to context against Twist's version. I make that credibility resolution because Twist admits that James, at the time he offered him the chief pressman's job, did tell him that if he could not find a replacement for the departing pressman, Gauvin, that he could punt in Norway and because that offer must have been made to Twist on January 15, 1973, as testified to by James, and not in November 1972 as claimed by Twist because in November 1972 the Respondent did not then have a pressman vacancy as Gauvin's undisputed testimony shows that he became pressman for Respondent in October 1972. These circumstances compel a finding that James' remark to Twist that the Respondent "could print in Norway" was made in mid-January 1973 when Twist asked what James would do if he was unable to find a pressman to replace his departing pressman. Coordinately, I credit James' denial that in his private talk with Twist he threatened to print at Norway if the Respondent's plant became unionized. The only argument advanced by General Counsel in his brief for not crediting James' version of the incident is based on an inaccurate interpretation of his testimony under cross-examination. The argument goes that James' offer of the pressman's job to Twist could not have been made on January 15, 1973, as claimed by James because his testimony under cross-examination shows that he made the offer to Twist, who had mechanical ability, as a result of advice received from "people at the New England Press Association and other publishers" for the solution of the problem small newspapers were having getting pressmen was "to train somebody locally and to look for someone with mechanical ability," and that this advice could not have been made on January 15 or within the month thereafter because the annual conference of the New England Press Association did not start until January 15 and because James testified that he was away from Berlin for 30 days thereafter. Based on this interpretation of James' testimony under cross-examination, counsel for General Counsel contends that, "James obviously lied when he claimed that he was prompted to ask Twist about running the press because of what he had been told by the people at the Press Association, since the Press Association conference had not even taken place"6 That argument is without merit for at least two reasons. First, James did not state in his testimony that he secured the advice to train a local man with mechanical skill to become a pressman at the conference of the New England Press Association which commenced on January 15, 1973; he merely testified that he received this advice from "people at the New England Press Association and other publishers." Secondly, James' testimony does not show as claimed by Government Counsel that he was continuously away from Berlin for approximately a month from and after January 15. On the contrary his testimony shows that he came back to Berlin every Friday afternoon to hold a staff meeting of Respondent's employees and on other occasions to pick up his wife "if she didn't have the car." Moreover, James' testimony shows that his intermittent absences from Berlin for the period January 15 to February 15 was primarily to work on his book. His attendance at the conference at Boston of the New England Press Association obviously could not have lasted a full month as it is common knowledge that association conferences generally run only a week. Thus , even if credence is given to General Counsel's contention that Janes did not make his offer of the pressman's job to Twist until after the conference of the Association took place as the result of advice from people in attendance at the conference, it is clear that he could have made his offer to Twist of the pressman's job as early as the Friday following the opening of the conference on Monday, January 15, 1973. It is significant that James did not testify that he made the offer to Twist prior to his leaving Berlin to attend the association meeting in Boston; his verbatim testimony is that he made the offer, "In the middle of January dust prior to my leaving the paper to go to work on the book. " (Emphasis supplied.) However, even if the above rationale did not exist for crediting James' version of the incident against Twist's, I would still credit James' version because both James and Twist seemed by the conviction of their testimony and by their demeanor to be equally sincere and truthful in their testimony. Under such circumstances, I find and conclude that the General Counsel has failed to meet the burden of proof on the allegation in the complaint that James "threatened employees with economic reprisals if they supported the Union by stating to John Twist that if the Union got in, the punting of the newspaper could be done in Norway and that the production shop could be closed." Accordingly I find that General Counsel has not sustained the allegation by a preponderance of testimony and will dismiss the allegation for failure of proof. Blue Flash Express, Inc., 109 NLRB 592, 601-602; Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1852; Editorial "El Impartial"; Inc., 131 NLRB 223 at fn. 1. 3. Incident of December 15, 1973 Finally with respect to the Section 8(a)(l) allegations, the 6 G C bnef, p 7, fn 12 MUNRO ENTERPRISES, INC. 409 complaint alleges that on or about February 10, 1973, Howard James at the office "threatened employees with reprisals if they supported the Union by stating to Louise Nolin, `I do not know what your feelings are about unions, but if the Union gets in, you will have to work to seven.' " Louise Nolin commenced her employment with the Respondent on January 2, 1972, as a typesetter in the Company's compugraphic department where its makeup newspapers are proofread and set to type. She was discharged on January 3, 1973, reinstated on February 5, 1973, and discharged again on March 9, 1973. The question of whether her discharges were discnmmatonly motivated are also issues in the case; they will be dealt with in later sections of this Decision. The present section deals only with the alleged independent Section 8(a)(1) violation described above. Up to the time of first discharge on January 3, 1973, Nolm, a young married woman and mother of a 2-year old daughter, worked only part time, putting in an average of about 12 hours per week. She was recalled on February 5 to work full time to take the place of another typesetter who had quit. Prior to February 5, she had declined to work full time because of her young child. Nolm participated in the brief walk-out of Respondent's employees of November 7, 1972, over what they consid- ered Howard James' unfair treatment of a fellow employee as heretofore mentioned. On December 12, 1972, she signed a union authorization card. At unremembered times she attended one or more union meetings. Nolin worked with a senior typesetter, Eleanor Theberg, who began her employment with the Respondent in 1943. Both were discharged on March 9, 1973, when the Respondent shut down its production department and contracted to have its newspapers printed in Norway, Maine, by another printer. Notwithstanding her relatively recent experience as a typesetter, Howard James regarded Nolin as "our best operator on the compugraphic" because she "made the fewest mistakes . . . and was the most able person we had." However, the composite testimony of Nolin and Howard James shows that they did not always get along well because r ' ,er trait of independence and tendency to be argume. ...ive. In November of 1972 when she was a part- time employee she became argumentative and difficult to deal with because of James' discharge of the then acting general manager, Tom Yoder. At another time because of an unpleasantness that developed between James and Nolin over the malfunction of a piece of equipment, Nolin told James that she "wouldn't be able to work with him" if 9 The transcript of Nolin's testimony reads Q. (to Noun) And you apparently had a disagreement or a misunderstanding between you as to what the arrangement [i e , with respect to working until 7 p in on Tuesdays] was to be Is that correct? You apparently didn't understand him and he apparently didn't understand your interpretation of how the schedule could work Would that be a fair way to say that? A It could 8 James admits that he did mention the Union to Nolin at the time he queued her over her failure to work until 7 p in on Tuesdays in accordance with her scheduled worktime, but testified that he did this only in connection with telling her, pursuant to advice received from his counsel after he had received notice that the Union had filed a petition for an the relationship between them continued to remain strained. Moments later, feeling that he had perhaps been unjust to her, James apologized to Nolin for the incident and asked for her understanding. She replied that she loved her work and would do all she could to see the paper grow. On February 5, 1973, when Mrs. Nolin was rehired for full-time employment, an agreed schedule of the hours she was to work was posted on the employees' bulletin board and from all the evidence of record it appears and is found that Mrs. Nolin herself posted the schedule. It is undisput- ed that the schedule showed that she was to work until 7 p.m. on Tuesdays. Nolin admits that at the time of her rehiring the "prime" subject of her conversation with Howard James was that she was "to work until 7 o'clock on Tuesday nights." However, she testified that notwithstanding that agreement she simultaneously told James that she "preferred a change" in her scheduled worktime so that she would not have to work on Tuesdays until 7 p.m. because of her small child and that James in response told her that "if I could arrange with my co-workers a schedule and still meet the deadlines and still get my work out, that it would be all right with him." Although Nolin believes that she had such an arrange- ment with Mr. James, she admitted under cross-examina- tion that it was possible that James "didn't understand .. . [her] interpretation of how the schedule could work."7 On February 15, some 10 days after she had been rehired, James asked Nolin why she was not working until 7 p.m. on Tuesdays in accordance with the posted work schedule. She replied that she thought there was an "arrangement ... when he hired me, that if my co- workers agreed that I could have another schedule, that it would be all right with him." As James insisted that she work until 7 p.m. on Tuesdays in accordance with her posted work-hour schedule, she told him that she "found it unnecessary" because she "hardly had any work to keep me going until 6 o'clock." At that juncture I credit Nolin's testimony that James said to her, "Listen here lady, I don't know what your feelings are about unions, but if the union gets in here, if Judy [his wife] or I tell you to work until 7, you will have to work until 7."8 The record leaves no doubt that Nolin understood this to mean that if the union came in, she would be required to work her full posted scheduled hours on Tuesdays. Her reply to James on this was, "I'll see about that-we'll see about that " At the trial counsel did not question James on whether upon rehiring Nolin he had agreed to allow her to leave the news plant earlier than 7 p.m. on Tuesdays if she could arrange to get her work out before 7 p.m. As a result there election, "that we could make no deals or special arrangements with any employee " I do not credit this highly sophisticated explanation by James as to how he happened to mention the Union to Nolin As James was obviously angry with Nolin for not living up to her scheduled Tuesday night work hours, I find that his more natural response to her telling him that she "found it unnecessary' 'o work to 7 p in "because I hardly had any work to keep me going until 6 c'ciock" was the remark attributed to him by Nolin as quoted above I also credit the quoted remark because Noun' s superior demeanor carried more conviction than James' However, the creditation of the remark does not dispose of the ultimate question whether it constitutes a violation of Section 8(a)(l) of the Act That is a determination that must be made in the light of all the circumstances surrounding the remark 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is no testimony by James in the record on this . However, from the fact that James some 10 days after he hired her jumped Nolin for not working until 7 o'clock on Tuesdays and from Nolin's admission that it was possible that James did not understand from the conversation she had with him on the day of her hiring that he had agreed to let her off before 7 p.m. on Tuesdays if her work was finished, I find that James had not entered into such an arrangement with Nolin and that she was mistaken in believing that they had such an agreed arrangement contrary to her posted scheduled worktime. Discussion and Conclusions As the above findings show that James upon rehiring Nolin did not give her permission to end her work day earlier than her posted Tuesday 7 p.m. quitting time if she finished her day's work before that time, I find and conclude that his assertion to her, after he discovered she was not working until 7 p.m., that in the event the Union came in she would be required to stay at the news plant until her regular 7 p.m. quitting time , was not a threat of a withdrawal of a preunion work benefit to leave before her scheduled quitting time because he had never given her that right. Accordingly, I find James' assertion to Nolin that if the Union came in she would have to put in her full posted Tuesday work hours does not constitute an unfair labor practice in violation of Section 8(a)(l) of the Act. But even if it is assumed that the record would support a finding that James upon rehiring Noun had given her permission to leave the news plant earlier than her scheduled Tuesday 7 p.m. quitting time provided she got her work out of the way ahead of time, I find and conclude that James' assertion to Nolin that if, the plant were unionized she would have to work her full scheduled work hours, was not a threat but merely an angry retort to Noun's impertinent rejoinder that she found it "unneces- sary" to work until 7 p.m. because she hardly had enough work to keep her going until 6 p.m. I further find that James' retort under the circumstances of Nolin's provoca- tive rejoinder constitutes privileged speech under the provisions of Section 8(c) of the Act. The retort was more than a mere protected opinion ; it was an assertion of the truth that under a collective-bargaining agreement, em- ployees are required to work the full hours they are paid for. It is also clear that whether or not the Employer provides work to keep his employees occupied, he is entitled to have his employees present on their jobs during the hours he pays them to be present. Under the full circumstances here present the allegations of the complaint under consideration will be dismissed for failure of proof. C. Appropriateness of the Alleged Unit The complaint alleges that all of Respondent's full-time and regular part-time editors, writers, reporters, advertising solicitors, clerks, receptionists, bookkeepers, artists, pho- tographers, circulation and office personnel, all printing production employees excluding executives, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Although the Respondent in its answer denies the above allegation, it offered no evidence to the contrary at the trial and does not list that allegation as an issue or advance any argument thereon in its brief. The record shows that at the times here pertinent all of Respondent's employees worked under the same working conditions and rules, shared common supervision, had contact with each other, and shared the same fringe benefits. These facts are manifest from Respondent's own handbook entitled "Employee Benefits and Work Rules." In addition the employees in each of Respondent's departments were expected to and did perform functions in other departments and were required to attend general staff meetings as called by management. Discussion and Conclusion On the basis of the above undisputed facts, I find that Respondent has an appropriate unit of employees as alleged in the complaint and set forth above. D. Alleged Discriml zatory Discharges of January 3, 1973, and Background The Company on January 3, 1973, discharged 7 of its then approximately 34 employees which included supervi- sors and temporary part-time employees . Six of the seven dischargees were discharged as a group by Mrs. James and told that they were being terminated for financial reasons. At the trial Mrs. James testified that some of these six dischargees were also discharged because of dissatisfaction with their work although they were not told so at the time of termination. The six persons so discharged as a group were Joseph Rivard, Maurice Lavertue, Natalie Caron, Thomas Ramsey, Lilo Eder, and Gregory Melville. The seventh person discharged on the same date was Louise Nolin who was discharged by telephone by Mr. James as she was home sick that day. At first he told Nolin that he thought he would have to discharge her because of lack of funds but as she pressed him for a definite answer he told her it was best to call it "quits" over the telephone as her "attitude hadn't been good at work." As heretofore noted, Nolin is a person of independent disposition who became argumentative and difficult to deal with over Mr. James' discharge of the news plant's Acting General Manager Yoder. Except for Melville, who was not employed at the time, all of the above-mentioned dischargees of January 3, 1973, had participated in the November 7, 1972 , walkout described in earlier sections of this Decision. Dischargee Twist had been the spokesman for the employees during the course of their brief walkout. Dischargee Lavertue and another employee had caused the walkout. All of the seven dischargees here under consideration except Melville and Ramsey had signed union cards in December 1972, about some 15 days prior to their discharge of January 3, 1973. In addition 12 other nondischarged employees, including Robert Gauvin, a stipulated supervisor, had also signed union cards prior to January 3, 1973. Moreover, Supervisor Gauvin attended MUNRO ENTERPRISES, INC. union meetings and accordingly was in the position to advise management as to the employees at the plant involved in union activity. Excluding from the 34 employ- ees that the Company had on January 3, 1973, all admitted or claimed supervisors and all temporary part -time help (such as high school students), the Respondent on January 3, 1973, had 20 admitted bona fide employees and of that number 14 had signed union cards prior to January 3, 1973. From these facts, I infer and find under the small plant doctrine that the Respondent at the time of the discharge of the seven employees here under consideration had knowledge that all of them except Melville were union activists or supporters or believed them to be such. Malone Knitting Co., 152 NLRB 643, 647, and cases cited. The small plant doctrine is obviously even more applicable to a small plant in a small town such as Berlin which has a population of only about 15,000. In addition the small plant doctrine has special relevance in a situation such as here present where one of the card signers (Gauvin) is a stipulated supervisor who not only signed a union card but also attended union meetings. It is inferred and found that his knowledge of the union activity of the employees in the news plant became that of the Respondent. Rust Sales Co., 157 NLRB 1681, fn. 7; J. J. Gambery & Pennley Pack South, Inc., 189 NLRB 889, 890. The record further shows that the Respondent at all times here pertinent was opposed to having a union or an association of employees at its news plant. Following their walkout of November 7, 1972, the employees presented 14 written demands upon Mr. James as Respondent's general manager. The 14th demand was in effect a demand that the Respondent recognize the Berlin Reporter Employees Association which had been formed as of November 7, 1972. Mr. James declined to meet with Respondent's employees unless they withdrew that demand. It was only after the employees agreed to withdraw that demand that James met with them on their other 13 demands .9 The intensity of Mr. James' opposition to having a union at the plant is further evidenced by a conversation he had with one of Respondent's admitted supervisors, Earl Burton, on February 16, 1973, who at the time was The Berlin Reporter's Valley editor. James told Burton that one of his employees "had come to him with evidence of sabotage on the press" and for that reason on the advice of counsel he was thinking of changing the locks to the news plant. When Burton countered with the remark that, "Life was too short not to trust people," James grabbed Burton by his necktie and said, ". . . They have me by the neck; they want to unionize everybody but Judy [Mrs. James] and me." 10 The above incident took place several days after the Union had filed a petition for an election and made a demand upon Respondent for recognition . About a month after the above incident Burton resigned from his post as Valley editor of the Respondent and at the time he 9 The findings of the above paragraph are based upon the credited testimony of employees Twist and Lavertue. James' ultimatum that he would not meet with the employees on their 14-pomt demand , unless they dropped their 14th demand for recognition as a group, is not alleged as an unfair labor practice in the complaint and counsel for General Counsel at the trial did not seek to raise the matter as an issue by litigation . As it is evident from the record that General Counsel had knowledge of Mr. James' ultimatum prior to the issuance of the complaint but chose to use it solely to 411 testified herein he was employed by another newspaper in a different city. The following is the evidence adduced by Respondent in its effort to establish that its collective discharge of the seven aforementioned employees on January 3 , 1973, was brought about primarily by financial necessity. The record shows that long before the employees' walkout of November 7, 1972, or any union activity at the news plant, the Company was finding that its job shop department was a losing venture despite recurrent efforts to put it on a paying or profitable basis. Thus at a staff meeting held on July 13, 1972, Mr. James, reading from prepared memorandum which was later posted , told the employees that, One of our major problems has been the job shop. On most weekly papers the job shop accounts for anywhere from 40 to 60 percent of the income. Our job shop doesn't even account for 10 percent of the income -and that must change. Our goal is to increase the job shop business to at least one-third of our total business. Mr. James further warned the employees that, If we don't bring in more business for the web press; if we don't find other ways to build the Reporter and Northland News ; and if we don't make substantial increases in the job shop, we are going to have to cut severaljobs offthe payroll. i i (Emphasis supplied.) At another staff meeting held on October 24, 1972, still before any union activity had manifested itself at the plant, Mr. James, again reading from a prepared and later memorandum, had this to say to the assembled employees about the job shop department, Number one problem area is the job shop. We've long suspected that it has been dragging us down . But not until we improve our bookkeeping methods did we know how much ! And it is clear that it has been going on for years. Our choice is clear: either close the shop down, and sell the equipment NOW or make it pay NOW. There is no question about the leak, and we've got to plug it quickly. Closing the shop would mean cutting one or more persons from the staff-people who do not have a variety of skills. 11 The job shop has been losing for three reasons: (1) We have done a very poor job of selling job printing since show union animus, General Counsel's request in his brief (fn 26, p. 12) that the ultimatum be considered as an additional violation of Section 8(a)(1) as part of his motion to conform pleadings to proof is denied (See beef of General Counsel , p. 12, In. 26.) io The above findings are based upon the credited testimony of Burton. 11 The above paragraph is a repetition of an earlier quotation above but in another connection. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steve [Munro, the deceased husband of the present Mrs. James], and Steve was only starting to make the shop break even. (2) Too often we've done a poor job with our regular customers, until now we have very few regular customers left. (3) We don't have the talent on our present staff to do more than the most simple, cheap jobs, and the shop is a big money-loser because of this. Along with its money losing job shop department, the Respondent has also had an overall financially deteriorat- ing situation which began months before any union activity started at the news plant. In part, this was due to an over expansion of Respondent's payroll. The aforemen- tioned memorandum of July 13, 1972, which Mr. James read at a staff meeting of all of Respondent's employees, speaks of the financial problems facing the Company in part as follows: We now have the largest payroll in the history of The Reporter. With this big payroll, and with the improvements we have been trying to make, profits are now at an all time low, since Munro Enterprises has taken over the paper. Part of the reason for this is that each year raises have been given to most or all employees, and yet business has not been that much better. At the same time, costs have climbed. Part of the problem has been the switch from hot type to cold type. At other papers, this reduces costs-but here it has increased costs. Part of the reason is that we have had to have more people on the staff-and other papers have not had to do this. If we don't bring in more business for the web press; if we don't find other ways to build the Reporter and Northland News; and if we don't make substantial increases in the job shop, we are going to have to cut severaljobs off the payroll (Emphasis supplied.) The aforementioned later memorandum of October 24, 1972, which Mr. James read to the staff, shows that financial position of the Company had not improved, that costs had risen, that economies were required, and that employees could not look forward to pay raises in the then current year of 1972 or in 1973. Pertinent parts of the memorandum read: Taxes have gone out of sight on our building; all costs are up; telephone bills are far too high, so we must tighten our belts where we can, and the big money- loser, the job shop, is the key target. (At the same time, we must find more work for the web press.) There will be no general wage increases this year: Do not expect a raise in 1972 or 1973 .... We have no other choice except put a freeze on wages, except for people who are clearly growing. (Emphasis as in memorandum.) 12 The operating expenses shown above for the months of November and December do not include officers' salaries However, the above profit figures for the same 2 months reflect profits after officers' salaries (The profit figures for all months showing profit are before taxes ) Although the above shows for December an operating profit of $1,021, the profit-and-loss We are going to go further in the hole-for a brief period of time - to save some jobs and the job shop. (Emphasis supplied.) It is again noted that the above remarks by Mr. James to Respondent's employees at staff meetings were made prior to any employees' self-organization or union activity at the news plant. Respondent's profit-and-loss statements for the months of August through December 1972, except for the month of October for which there is no data of record, reflect the following: i2 1972 Total Profit Operating Operating Before Month Income Expenses Taxes Loss Aug. $27,692 $24,530 $2,954 Sept. 21,722 25,312 None $3,692 Oct. No data Nov. 30,007 25,187 2,529 Dec. 31,110 27,235 1,021 Respondent's Federal income tax returns for the years 1969, 1970, 1971, and 1972, based on a fiscal year ending April 30, show taxable income or loss as follows: Taxable Year Income Loss 1969 $21,677 1970 24,365 1971 12,345 1972 $11,042 Thus even with the reduction of seven employees from its payroll as of January 3, 1973, the Respondent still showed a loss of $11,042 some 3 months later on April 30, 1973, the end of its fiscal year. Part of this loss is reflected by Respondent's loss as of December 28, 1972, of its only outside regular printing customer for whom it had been printing The Coos County Democrat, a newspaper. In the latter part of November 1972 Respondent lost a promising prospect of a contract to print the newspaper of another firm, the Walker Press, because that firm began to question Respondent's reliability to print as a result of the walkout of Respondent's employees on November 7, 1972. If that prospect had materialized, the Respondent would have had an additional source of income in the amount of $47,000 per year. From May until November 1972, Respondent had nearly doubled the number of employees on its payroll from 18 to 35, with a resultant increase in its weekly payroll from 1$2,000 to $3,500 per week.13 For a number of months prior to the January 3, 1973, discharges, Respondent's accountant had advised Mr. and Mrs. James to cut the payroll as a means of controlling costs and curbing losses. The two Jameses came to the decision to discharge six or seven of its employees in December of 1972 but decided to defer action thereon until after the Christmas and New Year holidays. As heretofore shown, the seven discharges took place on January 3, 1973. statement for that month shows an alternate "loss" in the amount of $1,978 by reason of a "Provision for taxes, estimated" in the amount of $3,000 13 The above finding is based upon combined testimony of Howard James and the aforementioned dischargee , Maurice Lavertue. MUNRO ENTERPRISES, INC. 413 Of the seven discharges, only two, Joseph Rivard and Maurice Lavertue, were full-time regular employees. The remaining five employees were strictly part-time employ- ees. While Respondent contends that all seven of the dischargees were discharged primarily for economic reasons, the two Jameses testified that they were also selected for termination for other reasons unrelated to any union activity on their part. Their testimony shows that the 7 dischargees here under consideration were the most dispensable of the 34 or so employees the Company had on its payroll at that time. The two full-time employees discharged on January 3, 1973, were Maurice Lavertue and Joseph Rivard. Lavertue began his employment with Respondent in its pasteup department in February 1972 as a part-time employee. In the latter part of November 1972 he was promoted to the full-time position of back shop supervisor 14 with a salary increase to $160 per 40 hour week over the $100 per week he had been making as a part-time employee. The wage increase was given Lavertue on the express condition that he take charge of the compugraphic department in the back shop which employed four other employees in addition to Lavertue. Lavertue admits that he accepted the wage increase subject to his agreement that he take charge of the compugraphic department. Notwithstanding that agreement, there is an issue in the case as to whether Lavertue became in fact a supervisor within the meaning of the Act after his status changed from a part-time employee to a full-time employee with a weekly wage increase of $60. The record shows that after his promotion Lavertue did not have the power to hire or fire or discipline other employees and that he spent about 50 percent of his tune doing solo work. On the other hand, the record shows that he attended supervisor meetings called by management relating to the mechanical process of putting out newspapers, that he had the responsibility for ordering up supplies for the compugraphic department, that he initiated a new and improved filing system for advertising pasteup copy, and that he recommended the hiring to Mr. James of additional employees to fill back shop positions. The record further shows that the women employees in the back shop came to Lavertue with questions relating to their work. From this I infer and find that he had the authority to responsibly direct the employees in his department. Based upon the above findings of fact, I find and conclude without further discussion that Lavertue was a statutory supervisor at the time of his discharge. Aside from the primary financial reason given by Mrs. James to the employees for their discharge of January 3, 1973, both Mr. and Mrs. James testified that they had additional private and at that time undisclosed reasons for selecting Lavertue as well as the other dischargees for termination. They testified that they selected Lavertue for termination because they had found him slow in his work and unimaginative in his pasteups. From the record as a whole, I find that the Jameses had reasonable cause for being dissatisfied with the work Lavertue had been doing for the Company. Joseph Rivard was the other regular full-time employee discharged on January 3, 1973. Rivard, about 62 years of age at the time of his discharge, had worked for The Berlin Reporter since 1928. He was selected for termination on January 3 because Respondent had decided to close its job shop department where he had worked for many years and because he had become so accustomed to work the hot type print used in the job shop that he could not make the transition to the newer cold type equipment the Respon- dent had recently adopted in its back shop. It was evident from his testimony and demeanor that he would have difficulty learning any new skills. The remaining five employees who were discharged on January 3, 1973, were part-time employees. Natalie Caron, who had worked as a proofreader for the Company for some 11 months, was selected for termination because the Jameses, according to their combined credited testimony, felt that her work could be absorbed by an old-time employee, Eleanor Theberge, and because Theberge had been noncommittal to Mr. James about whether Caron should be terminated or retained. Thomas Ramsey was selected for termination because he was a high school student and it was felt that his discharge would have only a minimal disruptive influence on him. Ramsey was not called as a witness. There is no evidence of record that he had signed a union authorization card, but he did participate in the November 7, 1972, walkout. Gregory Melville was selected for termination because he had been hired only the week before to temporarily take the place of a pasteup employee who was ill. Mrs. James felt that other pasteup employees could handle the work of the sick employee for a short period as she was expected back shortly. There is no evidence of record that Melville had signed or been asked to sign a union authorization card in the short time he had worked as an hourly employee for the Company and like Ramsey, he was not called as a witness. The Company rehired Melville almost simultaneously with his discharge to sell advertising on a strictly commission basis. Melville was not in the Compa- ny's employment at the time of the November 7, 1972, walkout. The Jameses advanced no reason for selecting Lilo Eder for termination other than cutting expenses. Prior to her termination on January 3, 1973, Eder had worked for some 3 years primarily as a writer of social news for the Berlin Reporter, covering such news for both Berlin and nearby Gorham, New Hampshire, which entailed 3 days' work at the news plant for which she received $24 per week. At the time of her discharge, Mr. James told her he would like to rehire her as a social news correspondent for Gorham where she resides with her husband. As of January 5, 1973, or 2 days after her discharge, she was reemployed by Respondent as a social news correspondent for Gorham at $15 per week, writing her column at home and mailing it in to the Berlin Reporter. The final employee selected for termination on January 3, 1973, was Louise Nolin who was the subject of an alleged Section 8(a)(1) violation dealt with in a previous section of this Decision. Mr. James considered Nolin as the 14 In his new position as back shop supervisor, Lavertue was given charge of the compugraphic pasteup and advertising makeup departments of the Respondent's news plant 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD best typesetter in the plant's compugraphic department. For this reason he was reluctant to terminate her but finally came to the decision to do so because she would not work the scheduled hours he wanted her to work due to the fact that she had a 2-year old daughter to look after and also because he found her difficult to get along with. In summary, the Jameses testified that their January 3, 1973, discharge of the seven employees, was primarily for economic reasons but that they also had subsidiary business reasons as set forth above for selecting these seven employees for termination. To further recapitulate, the record shows that for the fiscal year ending April 30, 1973, the Respondent suffered an operating loss of $11,042 and that warning of a possible reduction in force if profits did not improve was made to its employees several months before any self-organization or unionization efforts took place among the employees. Discussion and Conclusions As the above findings show that the Respondent has not committed any unfair labor practices in violation of Section 8(a)(1) of the Act, the only remaining possible basis for finding that it discriminatorily discharged the involved seven employees on January 3, 1973, are the facts as found above that Respondent is opposed to having to deal with the Union and that it had knowledge or believed that virtually all of the seven discharged employees were active supporters of the Union. As to Respondent's opposition to having the Union at its news plant, it is now well established that an Employer's mere opposition to a union in the absence of any interference with the rights guaranteed employees under Section 7 of the Act does not per se convert the discharge of a union-favoring employee during the course of an organizational campaign into a discriminatory discharge in violation of Section 8(aX3) of the Act. As stated by a Court of Appeals in 1962, "Certainly the Act does not require that the Company favor the Union or that it refrain from opposing the Union, nor does it prohibit the Company from expressing its opposition to the Union." (Emphasis supplied.) N.L.R.B. v. Threads, Incorporated, 308 F.2d 1 (C.A. 4, 1962). Accordingly, I find and conclude that Respondent's mere opposition to having the Union at its news plant does not establish a discriminatory motive for the termination of the seven employees here under consideration. There thus remains for consideration only the question of whether the seven employees were terminated because of Respondent's knowledge or belief that they favored the Union as contended by General Counsel. This contention is at least partially faulted ab initio because the above findings show that the Respondent rehired Melville as an advertisement salesman on a commission basis immediate- ly upon his discharge as an hourly employee in its compugraphic department and virtually immediately rehired Eder to work from her home as a social corre- spondent for the town of Gorham to take the place of her former services as a writer of general social news in the plant itself. Such rehirings of employees suspected of union activity almost immediately after their discharge is not consonant with the contention that they were discharged because of their union support. Furthermore, the record fails to show that Respondent had any knowledge or belief that Melville had anything to do with the Union at the time of his discharge as his discharge took place only a week after he was hired. As against the contention that the seven employees were terminated because of their union interest or support, the record is overwhelming in support of Respondent's defense that they were discharged because of financial necessity. That financial necessity is reflected in the fact that the Company had a net operating loss of $11,042 for its fiscal year 1972 (ending April 30) as against a taxable income of $12,345 in fiscal 1971 and of $24,365 in fiscal 1970. The basic reason for Respondent's loss in 1972 was that it had nearly doubled the number of employees on its payroll from 18 to 35 in that year, with a resultant increase in its weekly payroll from $2,000 to $3,500 per week without a corresponding increase in its operating revenue. General Manager Howard James sensed the financial difficulties the Company was getting into in mid-July of 1972 long before any union activity at the plant got started when he warned the employees at a staff meeting that unless revenues from all departments increases , ". . . we were going to have to cut several jobs off the payroll. " (Emphasis supplied.) Again on October 24, 1972, James passed on the alarm he was feeling over the Company's continuing financial troubles by telling the employees that, ". . . we must tighten our belts where we can, and the big money- loser, the job shop, is the key target ... there will be no general wage increases this year ... do not expect a raise in 1972 or 1973. " (First emphasis supplied; latter emphasis supplied as in memorandum as read and posted.) It is significant that the above remarks and warnings of possible discharges because operating income was not keeping up with rising expenses were made to Respon- dent's employees before any self-organization or union activity had started at Respondent's news plant. From these undisputed facts and the record as a whole, I find and conclude that the seven employees discharged on January 3, 1973, were terminated for economic reasons and in addition I find that these seven employees were also selected from Respondent's staff of employees for termina- tion for personnel reasons unrelated to their union activities. I also find and conclude that the discharge of Lavertue could not in any event have been a discriminato- ry termination as he was not an "employee" but on the contrary a "supervisor" within the meaning of the Act at the date of his discharge. Gibbs Automatic Division, Pierce Industries, Inc., 129 NLRB 1%, 197-198. E. Alleged Discriminatory Withdrawal of Commissions from Employee Godbout The complaint was amended prior to trial to show a further alleged violation of Section 8(aX3) of the Act (albeit not a discriminatory discharge) as follows: 9(b) Respondent did on or about December 28, 1972, decrease the wages of Roger Godbout by no longer paying Godbout any commissions. At the trial the above alleged date was by oral amendment MUNRO ENTERPRISES, INC. 415 changed from "on or about December 28, 1972," to "on or about February 1, 1973." Roger Godbout, a professional photographer, was hired by Respondent in October 1971 to work principally in its darkroom, developing film, making prints and negatives and plates for Respondent's newspapers, at an hourly wage of $2.50 per hour which in the fall of 1972 was increased to $3.25 per hour. It was also part of his job to take pictures for Respondent during his regular work hours at the same hourly wage. In addition Godbout had an arrangement with the Respondent for picturetaking in his off-duty hours for which he was to be paid $3 per picture for every picture he made in his off-duty hours per assignment for use in Respondent's newspapers. In early 1972, his pay for pictures taken after his regular 40-hour week, was changed by mutual agreement to $4 for the first picture, $2 for the second picture, and $1 for every additional picture. Thus under the original arrangement Godbout would be paid a total of $9 if he took three pictures of three different views of a burning building, but under the new arrangement he would receive a total of only $7 for the same three pictures. In addition Godbout did freelance photography in and around the Berlin community during his spare time. In January 1973, Godbout was awarded the title of " Photog- rapher of the Year" by the New England Press Association for pictures he had made for the Berlin Reporter. Starting in March 1972 and running until about the first week in December 1972, Godbout received from about $70 to $90 a month in supplemental income for pictures he had taken for the Respondent per assignment in his off-duty hours. But for the 3-week period between December 7 and 28, 1972, Godbout's bill for pictures taken per assignment on his off-duty hours came to $178 plus $10.70 for travel which was paid to him on January 18, 1973. For the period January 4 to February 8, 1973, Godbout's bill for pictures taken per assignment on his off-duty hours came to $200.70 plus $71 .30 for mileage which was duly paid to him. Although these last two bills were incurred as per assignment or directive, the credited testimony of Mr. James shows that in reviewing the bills he became alarmed over their size due to the financial difficulties the Company was then having and because of his desire to curtail expenses so that no further discharges would have to be made. A further factor that caused him alarm was that the Company had just recently lost its contract to print the Coos County Democrat, a weekly newspaper, with the attendant loss of regular monthly operating income from that source. On February 15, 1973, Mr. James conferred with Godbout on the subject of his picturetaking for the Company in his off-duty hours and issued to him certain directives in that connection. There is a sharp conflict of testimony over what those directives were. Godbout testified that James told him that "as of now" the Company would discontinue giving him any assign- ments to take pictures in his off-duty hours and that James directed him to take all assigned photographs during his regular 40-hour workweek insofar as his primary duties in the darkroom permitted him to be away from the news plant for such picturetaking. This had the effect of cutting Godbout off from $70 to $90 per month in the supplemen- tal earnings he had been receiving for taking pictures for Respondent's newspapers in his off-duty hours. Godbout's testimony further shows that James told him that if he did not like this new arrangement he could leave , but that he chose to stay although he had previously told James that he would quit if the Company discontinued using him for picturetaking in his off-duty hours. James, on the other hand, flatly denied that he told Godbout that he was to be cut off from all picturetaking on his off-duty hours for the extra compensation he had been making. He instead testified that he told Godbout "to take fewer pictures on his own [off duty] time and more pictures on company time," that is, during his regular 40-hour workweek at his hourly wage of $3.25 per hour. Although the record shows that Godbout's memory is not very reliable, I credit his testimony that James on February 15, 1973, cut him off from doing any photo- graphing for supplemental income in his off-duty hours. This follows from the fact that the record shows that Godbout at no time after his conversation with James received any commissions for such off-duty hours picture- taking in the 3 remaining weeks of employment he had with the Company until his discharge of March 9, 1973, with others, when the Company shut down its backroom and contracted to have its newspapers printed elsewhere. Godbout was one of the two employees who organized the November 7, 1972, employees' walkout. On December 12, 1972, he signed a union authorization card. He also solicited and received a number of such cards from other employees in the news plant and attended union meetings. I infer and find that James had knowledge of Godbout's widespread union activity at the time he temporarily cut him off from taking pictures for the Company in his off- duty hours. A similar finding was made above under the small plant doctrine that Respondent had knowledge of the union activities of the employees it discharged on January 3, 1973, who were nevertheless found to have been terminated for economic reasons. Discussion and Conclusions The record compels the conclusion that the Respondent on February 15, 1973, put a temporary stop to Godbout's picturetaking in his off-duty hours for strictly economic reasons and not because of his known or suspected union activities. The stringency of Respondent's financial situa- tion at the time of this action, as fully set forth above, does not require reiteration here. It is sufficient to note that Mr. James discovered that for the months of December 1972 and January 1973 the amount of money the Company was paying Godbout for his off-duty picturetaking greatly exceeded the $70 to $90 per month it had been paying him in preceding months and more than doubled the $130 he earned on his regular 40-hour a week job with the Company. The record further shows that at the time of this discovery James was looking for every possible way to cut expenses so that it would not be necessary to discharge any additional employees beyond the seven employees who had been discharged for economic reasons on January 3, 1973, and that he was especially looking for ways and 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means of cutting expenses because the Company had only receitly lost its contract to publish the Coos County Democrat, a weekly newspaper, which had been a source of regular monthly mcome. It is evident that Godbout himself realized the economic necessity for this temporary halt of his moonlighting picturetaking for the Company because after thinking it over he agreed to stay on with the Company despite his previous declaration to Mr. James that he would quit if the Company discontinued using him for picturetakmg in his off-duty hours and thereby denied him the opportunity to supplement his regular wage income. For the above reasons and from the record as a whole I find that Respondent's temporary suspension of the picturetaking work it had formerly given Godbout to do in his off-duty hours was not discriminatorily motivated and accordingly was and is not a violation of Section 8(a)(3) of the Act as alleged in the complaint. F. Alleged Discriminatory Discharge of John Twist John Twist, a young man heretofore referred to in connection with two of Respondent's alleged Section 8(a)(1) violations, became an employee of the Respondent in February 1972 when he was hired to work as an advertising solicitor in response to a want ad in the Berlin Reporter. In addition to soliciting advertisements, it was also part of his job to lay out such advertisements as he sold in the news plant's pasteup department. Originally hired by Mr. James, he was also discharged by James on February 20, 1973, because of alleged dissatisfaction with his work. Twist started his employment with Respondent at a weekly salary of $70. Some 2 months later after complaints from Twist that he was having trouble supporting his wife and child on the salary he was receiving, Mr. James persuaded Twist, a Vietnam veteran, to apply to the Veterans Administration for job training as an advertising solicitor under its financial assistance job training program for veterans although he had planned to save such assistance for institutional education.15 Sometime in the summer of 1972, the Veterans Administration began paying Twist approximately $155 a month towards his on- the-job training program which enabled him to more adequately meet his family's living expenses. In November 1972 James increased Twist's salary from $70 to $80 per week and at or about the same time gave him a commission of 2 percent on all advertising he personally sold. He received no commissions on estab- lished advertising accounts although he was expected to service some of such accounts. For most of his year with Respondent, Twist worked under the supervision of Tom Yoder, the acting general manager, and later under the supervision of Dick Barlow, sales and business manager, and only briefly directly under Mr. James and Mrs. James. Frequent executive confer- is I credit Twist's testimony, as corroborated by Respondent's former Acting General Manager Yoder, that James' suggestion to and persuasion of Twist to apply to the Veterans Administration took place some weeks after he was hired I discredit James' testimony that Twist was hired with the understanding that he would apply to the Veterans Administration to be put on its job training program as part of his employment with Respondent and ences were held on ways and means of increasing Respondent's revenues from advertising which Twist attended. Around the first of February 1973, shortly before Twist was discharged, the Respondent hired Stuart Newhall as its advertising manager, the first such employee to hold that position and title during Twist's tenure with the Company as an advertising solicitor. Newhall also solicited advertise- ments. Twist became associated in the minds of Mr. and Mrs. James with efforts to organize Respondent's news plant since the employees' walkout of November 7, 1972, in which he participated. They came to think that he was responsible for the walkout and Mr. James referred to the walkout as "John Twist's walkout" and accused Twist of having cost the Company the loss of a potential $47,000 contract from the Walker Press, heretofore mentioned, by reason of "John Twist's walkout." They drew this conclusion from the fact that Twist almost from the beginning of the walkout became the dominant or exclusive spokesman for Respondent's employees. He was their spokesman in connection with the 14-point demand made on the Company, more fully described in an earlier section of this Decision. He also played a key role in attempting to get Local 75 of the Pulp and Paper Workers to organize the plant, later abandoned in favor of the Boston Mailers' Union No. 1, the Charging Party herein. The following quotations from Respondent's brief shows that Mr. James recognized Twist as the employees' spokesman from the time the walkout began on November 7 until long after its short duration, well into December 1972: Mr. James testified that . . . [on November 10, 1972] he asked the employee spokesman, John Twist, what those [union authorization] cards were all about ... . And thereafter [on December 10, 19721 he [Mr. James ] did in fact discuss problems with the designated spokesman, John Twist. Around December 10 Mr. James did recall one occasion where he went to the employees' spokesman, John Twist, to discuss certain problems . . . . Shortly afterwards, when he again went to Mr. Twist with other matters, he was told by Mr. Twist that he was no longer the employees' spokesman and that there was nothing more to the Employees' Association.is (Emphasis supplied.) A prior section of this Decision entitled "Incident of December 28, 1972" shows that Mr. James by complaining to Twist around the first of January 1973 about what he considered the shortcomings of many of Respondent's employees, still considered him a spokesman for Respon- dent's employees despite Twist's disclaimer of that role. Twist signed a union authorization card for Local 75 of thus was merely hired as a trainee advertising solicitor subject to dismissal at any time Yoder, who corroborated Twist, was called as witness by Respondent, not by General Counsel. i6 The above quotations are from unnumbered pages in Appendix "A" of Respondent's brief. MUNRO ENTERPRISES, INC. the Pulp and Paper Workers Union and when Local 75 was supplanted by the Charging Party, he signed a card for it. Twist's discharge on February 20, 1973, came after the Charging Party's written request of February 9 for recognition. From the record as a whole I find that the Respondent had knowledge of Twist's union activities for many weeks prior to his discharge and believed him to be one of the Union's most active and ardent supporters. I credit Twist's testimony that the following events took place on February 16 and 20, 1973, ending with his discharge on the 20th. On February 16, a Friday, Mr. James called Twist into his office where he criticized Twist for an error that had crept into one of the newspaper ads he had picked up on a previous Thursday. The ad was that of Globe Discount Department Store. When Twist submitted a proof of the ad to the store manager prior to publication, the store's manager okayed it, except that he asked that there be added to the ad, as here pertinent, the advertiser's "store hours." When Twist brought the proof back to Cora Birt, Respondent's ad pasteup employee, for the correction, she readily agreed that she had forgotten to put the store hours in the ad and stated that she would put them in. Although not clearly brought out at the trial, this meant that the ad would also show that the store would be open on Sunday. But when the ad appeared it erroneously carried the tag, "Globe Discount Store will be closed on Sunday." The advertiser was angered by that error. To help rectify the error the Respondent ran radio announcements that the Globe store would be open on Sunday. Mr. James was upset by the error because it cost the Respondent $30 in radio announcement fees to rectify. Twist disclaimed personal responsibility for the error because he had given appropriate instructions to Cora Birt for the ad which if followed would have avoided the error. I find that the error was not Twist's fault. Although James appears to have accepted Twist's explanation that the error was not his fault, he nevertheless told Twist somewhere in the conference that he was not chosen to be advertising manager because of errors and that the Globe error was "his last chance" to make an error. But Twist's credited testimony shows that James at no time prior to the Globe incident had ever reprimanded him for prior errors. Because James had not before this ever reprimanded him for any errors, he complained to James that he could not understand what he meant by "last chance." After his explanation to James of how the Globe error came about, Twist's credited testimony shows that James became friendly and most amiable. During the course of the ensuing conversation James expounded on his personal policy of promoting employees from the inside to manage- nal positions and held out the strong possibility of a promotion for Twist to an opening in a managerial position he was planning to fill in about 3 weeks. But James explained that he could not offer him the position of advertising manager because that had only been recently filled from the outside by the appointment of Stuart Newhall to the post (notwithstanding his policy to promote from within). Twist in effect gave assurances to James that 17 The findings in the above paragraph as in the preceding paragraphs are based on the patently honest and credited testimony of Twist I specifically credit Twist's testimony that in the initial conference of that 417 he would work his head off in the next 3 weeks in order to prove that he deserved the promotion to a managerial position and accompanying salary increase. Two hours later James resummoned Twist to his office and there in the presence of Mrs. James, bluntly told him, "I want to make sure you understood what I said before. This is your final warning; we can't have any more mistakes." Twist expressed great surprise at this "final warning" because, as he told James, only 2 hours ago they had "talked about a raise and a promotion" for him in the next 3 weeks. James replied, "No, I agreed to nothing." 17 Four days later on February 20, James again summoned Twist to his office and summarily discharged him on the ground that this time he had found a genuine error chargeable to Twist and cited the fact that he had neglected to see to it that an insurance ad was printed in one of Respondent's newspapers that week. Twist at once admitted the error but at the same time mentioned to James mitigating circumstances which caused him to forget about getting the ad printed. This was that James had asked him to concentrate at that time getting ads for an advertisement supplement the Respondent was getting out for the Washington's Birthday holiday and that in the many hours he spent beyond his normal hours soliciting ads for the supplement he had overlooked setting up the insurance ad for publication. It is undisputed, however, that the Respondent lost no money from this slip-up by Twist because the ad was inserted in the next issue of the newspaper. Mr. James' version of his February 16 conference with Twist is completely at odds with Twist's as set forth above. James testified that on that date he talked to Twist about "the fact that he had left out ads," that is, multiple ads. I discredit that testimony because there is no specific evidence of ads that were left out other than the specific single ad of an insurance account and also because that single omission occurred not in the week of which Friday, February 16, was a part, but in the following week on Tuesday, February 20, when James fired Twist allegedly for having left out that particular ad from the newspaper in which it was to have been originally published. The rest of Mr. James' version of his February 16 conference is principally a lengthy and rambling account of the criticisms he voiced to Twist about his lack of agressiveness as an advertisement salesman. He testified that it was primarily for this reason that he fired Twist a few days later on February 20. The record, however, shows that he did not fire Twist on his own initiative but did so only on the urgent insistence of Mrs. James as Mr. James himself admits that he "liked John [Twist]" and that he was "aggravated with my wife that day because I had not wanted to discharge John." I find from this admission and from demeanor evidence that Mr. James' version of the conversations that took place on February 16 and 20 between him and Twist are not credible. I accordingly recredit Twist's testimony that the only criticism that James voiced to him on February 16 was on the error that had crept into the Globe Discount Store ad which in any same day, February 16, James definitely told Twist that he would be seriously under consideration for a promotion to a managerial post within 3 weeks 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD event was not Twist's fault. I also again recredit Twist's testimony that the sole reason James gave him for his discharge on February 20 was his admitted failure to see to it that an insurance ad got into one of Respondent's newspapers although this oversight did not cost the Respondent any loss of revenue as the advertiser readily agreed to have the ad run in the next issue of the newspaper. Nevertheless at the trial Respondent's chief defense for the firing of Twist was that he was not an effective salesman of newspaper advertising space in that he did not bring in the amount of new advertisement business it had expected him to bring in. As one means of testing that contention I required counsel for Respondent to submit into evidence a schedule showing volumes of advertise- ment sales for the 12 months prior to Twist's employment with the Company as an advertising solicitor and for the 12 months after he was hired. The requested schedule was never presented into evidence due to the apparent oversight of counsel for both Respondent and General Counsel whom I found most cooperative and responsive to my requests for stipulated documentary evidence where pertinent to the issues. My request for the schedule had the effect of placing on the Respondent the burden of going forward to prove by documentary evidence its contention that Twist was not bringing in new advertisement revenue by a comparison of the business he brought in in the year of his employment with Respondent as compared with the volume of advertisement sales the Respondent had in the year prior to Twist's employment with the Company. As the Respondent has failed to meet this burden of going forward with the requested proof, I find that this failure of proof on the part of Respondent constitutes at least one factor in favor of General Counsel's contention that Twist was not discharged for economic reasons, but because of his union activities. Discussion and Conclusions Unlike the economic justification Respondent had for its discharge of seven employees on January 3, 1973, because of the pressing necessity to reduce operating losses, Respondent does not claim that kind of justification for Twist's discharge. This follows from the fact that Respon- dent replaced his services even before it fired him by hiring Stuart Newhall some 20 days earlier as its advertising manager to do essentially the same solicitation of advertis- ing that Twist had been doing the past year under the simple title of advertising solicitor. With the operating losses the Company was experiencing, it is obvious that the Respondent did not need two ad solicitors at the time it discharged Twist. Although Newhall was given the title of advertising manager, there is no evidence that he had any employees working under him after Twist was fired. He was simply an advance replacement of Twist. Newhall was hired on February 1, 1972, and Twist was fired 20 days later on February 20. It is evident that in that 20 days Mrs. James, as publisher and owner of the Respondent, was looking for pretexts to fire Twist because of his prior deep involvement in the self-organization of the employees in the plant and later his union activities. It is also obvious that both Mr. and Mrs. James held Twist responsible for the November 7, 1972, employees' walkout and felt a rancor against Twist because they believed the walkout which Mr. James called "Twist's walkout" had caused a potential customer to back away for fear of other work disruptive walkouts from a proposed contract for printing which would have brought Respondent some $47,000 in additional revenue per year. The record shows that although Mrs. James wanted to discharge Twist she forced that unpleasant task on Mr. James and that Mr. James found the task very distasteful because he liked and respected Twist and was personally opposed to his discharge despite his familiarity with Twist's prior efforts towards the self-organization of the Compa- ny's employees and his later union activities. It is also evident that Mr. James was finding it difficult to find pretexts for discharging Twist because when he gave him his "last chance" warning on February 16, 1973, he backed off when he learned that the error he had attributed to Twist in the Globe Discount Store ad was not really Twist's fault and instead held forth the strong possibility of a promotion for Twist. It was only on the insistence of Mrs. James 2 hours later that James reasserted his "last chance" warning to Twist, this time in Mrs . James' presence, to Twist's utter mystification . The record further shows that Mrs. James forced Mr. James to discharge Twist 4 days later on February 20 for Twist's admitted oversight in getting an insurance ad in for publication in one of Respondent's newspapers which in any event did not cause the Company any financial loss because the advertiser readily agreed to have the ad put in the next issue of the paper. At the trial as above noted, Respondent's defense for the discharge of Twist shifted from the reasons given to him by Mr. James at his discharge to the contention that he was primarily discharged because he was not an effective solicitor of ads. Although susceptible to documentation, Respondent presented no documentary evidence to show that Twist had not increased the Company's advertising revenue during the year he had been employed by the Respondent over what it had been in the year prior to his hiring. Although there is some evidence that Twist was not as aggressive in getting advertisements as more aggressive personalities, such as Tom Yoder, Respondent's former acting general manager, I find that this deficiency was used as a pretext for Twist's discharge. I also find that the plethora of all the other little faults ascribed by the Jameses to Twist, even if true, were similarly pretextual reasons for his discharge. In summary I find and conclude that the reasons given for Twist's discharge are pretextual and that the real motivation for his discharge was Respondent's desire to get rid of Twist because of his known or strongly suspected union activities. I accordingly find that Respondent discriminatorily discharged Twist in violation of Section 8(a)(3) of the Act. G. Final Alleged Discriminatory Discharges of March 9, 1973 The record contains frequent references to Respondent's back shop, sometimes called backroom. The Company's MUNRO ENTERPRISES, INC. 419 back shop is where its newspapers are composed (typeset) and printed. It embraces the compugraphic department where type is set and proofreading performed, the news pasteup department where the material set by the compu- graphic machine is placed into allotted spaces on sheets, the ad pasteup department where ads are pasted into a newspaper page called a "mechanical," the darkroom department or section where various photographic process- es required for the newspapers are performed, and the press department where Respondent' s main press prints the newspapers. On March 9, 1973, Respondent shut down its back shop, discharged the employees who worked there, and thereaft- er contracted to have its backroom operations performed by an independent outside publisher and printer in Norway, Maine, some 55 miles from Respondent's place of business in Berlin, New Hampshire. The complaint alleges that the Respondent discriminato- rily discharged five employees on March 9, 1973, and the record shows they all worked in Respondent's back shop. They are Eleanor Theberge and Louise Nolin, typesetters; Roger Godbout, darkroom technician and photographer; and Robert Gauvin and Henry Rivard, press operators. Two of these employees, Louise Nolin and Roger God- bout, were principals involved in other issues discussed in prior sections of this Decision. All five of the dischargees had signed union authorization cards in December 1972 and all had participated in the November 7, 1972, walkout. Respondent's defense to the five alleged discriminatory discharges are both economic and personal. On the economic side, Mr. James' testimony shows that his chief pressman, Robert Gauvin, had given notice in early January 1973 that he would be leaving in the spring in order to rejoin his wife and daughter in Connecticut. Gauvin later informed James that he would be definitely quitting on March 14, 1973, but he gladly advanced his voluntary departure to March 9 when the Jameses decided to close the backroom on that date. Mr. James' testimony further shows that Henry Rivard, the assistant pressman, gave notice on March 2, 1973, that he would quit on March 9. As conceded by General Counsel in his brief, "There can, of course, be no denying the fact that the Respon- dent's two pressmen had given notice." The record shows that over the past year the Company had a large turnover of pressmen and great difficulty in recruiting replacements. Efforts of Gauvin to find and train employees from the inside to become pressmen before his departure were unavailing. To fill the breach, Mr. James himself, despite all his other responsibilities, began training under Gauvin's tutelage to run the big press, but never fully became qualified to do so before the departure of pressmen Gauvin and Rivard. As illustrative of other problems Respondent was having in other departments of its back shop, Mr. James' testimony shows that one day just prior to the March 9 shutdown of the backroom, trouble developed on the compugraphic machine which made it necessary for him to personally operate the compugraphic computer from 7 o'clock in the morning of that day until about 2 o'clock of the next morning. Such problems made it a continuous struggle to get the newspapers out on their deadlines. Side-by-side with these economic factors, Mr. James also testified to strong personal considerations that entered into the decision to shut down the back shop and subcontract its operations to an outside printer. One of these considera- tions is that his primary vocational objective in life is to write nonfiction books requiring a great deal of advance research. He found the endless problems and hours required for the management of Respondent's business seriously interfered with this objective and made it impossible to advance his career as a writer in which he had a promising start as a Pulitzer Prize winner and winner of other merit awards. At the time of the shutdown of the back shop, he was under particular tension to meet the May 1, 1973, deadline for the new book he had contracted to write and hoped that with the closing of the back shop he would have time to meet that deadline. The second personal consideration that entered into the decision to close the backroom was that Mrs. James was so preoccupied with looking after the six children in the family, the youngest of which was less than a year old, that she was unable to give her Company the time it required for successful operation. The final personal consideration for giving up the back shop was that Mr. James' double preoccupation with managing the Respondent and researching and writing his book was putting a strain on the family life of both himself and his wife and their children. These personal and economic considerations are best told in Mr. James' own words under testimony: Q. Was there any other considerations that were entered into in your ultimate decision [to close the back shop]? s s s * s THE WrrNEss: My researcher [for his new book] was still there at this time. I had had pressure all along from him. My son, Paul, had been wetting his bed and he became terribly upset during this period because I wasn't around. JUDGE BUSH : How old is you son, Paul? THE WITNESS: He is now eight. He was seven at the time. The other children are terribly upset. I had been concerned about my book. May 1st was the deadline for my book in my contract. * • s s THE WITNESS: I felt that I could not produce the book by that date. I had been talking with my agent, Mr. John Hawkins, of Paul Reynolds in New York. We were having baby-sitter problems during this period. Judy [Mrs. James] and I were exhausted. The compugraphic had been broken down prior to this and had not run properly. I had run the compugraphic, the computer, myself. I ran it, as I recall, from 7:00 o'clock in the morning until 3:00-2:00 or 3:00 o'clock-the next morning straight through. My wife, in fact, brought food to me at the compugraphic machine. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There were other problems there and we simply couldn't seem to get the papers out. We couldn't make deadlines. I felt I had kept my bargain to my wife. I had made a bargain with her at the time prior to our marriage that my career was my writing, my consulting and lecturing. I had given her more than a full year. I could see no end to this. My funds were being used up rapidly. I was in fear of losing my book. Those are many of the factors. Q. Did you discuss this with Mrs. James at the time? A. It is all we could talk about. In fact, it had caused some tension between Mrs. James and myself. Q. And when did you announce your decision? A. I believe it was before noon on the 9th. Q. What was the decision that you announced [to the employees who were being discharged ]? A. Because of the circumstances of Henry Rivard and Bob Gauvin [the assistant and chief pressmen] leaving and because of the problems we faced personal- ly I saw no way of continuing the back shop operation. We had tried our best to do it and had failed. Q. And, therefore, what? A. Therefore, we were discharging three employ- ees. Although the complaint alleges that five employees were discharged on March 9, 1973, actually only three were discharged because the two pressmen, Gauvin and Rivard, quit for personal reasons on their own on March 9, 1973. At the trial counsel for General Counsel amended Henry Rivard out of the Section 8(a)(3) relief demanded for him in the complaint. In his brief, counsel for General Counsel similarly dropped the same relief demanded for Gauvin in the complaint.18 Similarly, counsel for General Counsel in his proposed recommended Order, as set forth in the Appendix to his brief, does not ask for reinstatement and backpay for pressmen, Robert Gauvin and Henry Ri- vard. is The only remaining employees discharged on March 9, 1973, for whom General Counsel seeks relief are Eleanor Theberge, Robert Godbout, and Louise Nolin. In line with the Jameses' decision to close down the back shop, much of the equipment in the back shop, including the large press, has been sold. Some of Respondent's job shop equipment has also been sold. Respondent's compu- graphic equipment has been leased to another printer in Norway, Maine, pending his receipt of his own compu- graphic equipment as per order. Respondent is seeking a buyer for its compugraphic equipment. Discussion and Conclusions In his brief General Counsel in effect concedes the economic and personal factors that induced the Respon- dent to sublet its press work to an outside printer as distinguished from the other work in the backroom.20 These factors involved Respondent's inability to find qualified pressmen to replace departing pressmen Gauvin and Rivard and Mr. James' own vain efforts to fill the breach at the big press on top of all his other duties as manager of the Company, his commitments to his publisher to write a book, and his family responsibilities. But General Counsel contends that Respondent's deci- sion to close its back shop insofar as it relates to farming out its typesetting (called in the trade "composition") was "plainly an economic folly and a poor business decision" because, as asserted, the typesetting of Respondent's newspapers in its own back shop could be done at about half the cost the Respondent incurs by having it done in Norway, Maine. Because of this asserted "econonuc folly" of subletting its typesetting, General Counsel contends that the economic and personal reasons given by the Respon- dent for subletting its typesetting work are pretextual reasons for discharging the three employees here involved because of their union activities. However, even if it is assumed that Respondent's decision to sublet its typesetting was a poor business decision, that does not prove that the Respondent made that decision for the purpose of establishing a pretextual reason for discharging the involved employees because of their union support or activities. Upon the basis of the entire record I find and conclude that the desires of the Jameses for urgent personal reasons to reduce the amount of time they have to give to the business of Respondent overrode in importance to them the fact, if it is a fact, that it would cost more to have their typesetting done in Norway than in Respondent's own back shop. It is not unusual for people to take economic losses for personal reasons. At any event I find that such evidence as there is in the record as to the cost of typesetting in Norway as compared with that in Respondent's own plant is insufficient to establish General Counsel's contention that it is substan- tially more costly to having the typesetting done in Norway than in Respondent's own back shop. Upon the basis of the entire record I find and conclude that General Counsel failed to sustain his burden of proof that any of the employees the Respondent discharged on March 9, 1973, were discriminatorily discharged in violation of Section 8(a)(3) of the Act. H. Alleged Union Majority and Refusal To Bargain The record leaves no doubt and Respondent does not appear to contest the fact that the Union has represented a majority of the employees in the appropriate unit here involved on the following critical dates, to wit, on January 3, 1973, when Respondent discharged seven employees; on February 9, 1973, when the Union requested recognition; and on March 9, when the Respondent upon the closing of its back shop discharged three additional employees and is Reference is here again made to the following statement in General 20 General Counsel in his brief at p 26 states, "In fact , most of Counsel's brief: "There can, of course, be no doubt that Respondent's two Respondent's problems appeared to relate to the operation of its press, and pressmen had given notice [that they were quitting their jobs I." as shown above. it would have been a simple matterjust to eliminate press 19 Henry Rivard is not to be confused with Joseph Rivard who was work " discharged on January 3, 1973 MUNRO ENTERPRISES, INC. accepted the insistent resignations of its two pressmen. The record shows that as of January 3, 1973, the Union had signed authorization cards from 14 of 20 of the employees in the unit of conceded employee status within the meaning of the Act.21 As of or about February 9, 1973, the Union had signed cards from 12 of 13 admitted employees, and as of March 9, it had signed cards from 10 out of then 11 admitted employees, in each case exclusive of the cards of the discharged employees. On February 9, 1973, the Union sent the Company a letter demanding recognition and stating that it was "prepared to show unequivocal proof" of its majority designation at any early mutually convenient time. The Union simultaneously filed a petition for a representation election. The Company on February 12 came into receipt of the Union's letter and a copy of the Union's petition for an election. Under date of February 13, 1973, the Company sent the Union a letter in which it declined recognition of the Union on the ground that ". . . we have doubt that you would represent a majonty of our employees in an appropriate unit." 22 The letter then goes on to say, "For this reason we decline to recognize you until you have been properly certified by the appropriate Labor Relations Board." The Union's petition of February 9 for an election came up for hearing before a Hearing Officer on March 12, 1973. At that hearing the Union lodged with the Hearing Officer for filing the unfair labor charge which lead to the issuance of the complaint herein on June 22, 1973. The Hearing Officer thereupon adjourned the hearing on the election petition "indefinitely until the matter of the unfair labor practice .. can be completely resolved." On June 7, 1973, the Union withdrew its representation petition without prejudice. The alleged unfair labor practices have in the word of the Hearing Officer been resolved in the present unfair labor practice proceeding. As summarized, the above findings show that the Respondent did not, as alleged in the complaint, discharge the 12 employees here involved for discriminatory reasons in violation of Section 8(a)(3) of the Act except for the single isolated discriminatory discharge of John Twist on February 20, 1973. On the contrary the findings show that all of the discharges, except in the case of Twist, were motivated by economic factors or a combination of economic factors and personal factors unrelated to the union activities of the dischargees. As shown above the Union did not make a demand upon the Respondent for recognition based on signed union authorization cards from a majority of the employees in the appropriate unit until February 12, 1973, when its letter 21 The remaining 14 employees in the employment of the Company as of January 3, 1973, consisted mainly of admitted statutory supervisors, two additional employees, Lavertue and Theberge, for whom the Company claimed supervisory status, and a number of temporary employees employed as inserters for whom the Union claimed status as statutory employees The Union as of January 3, 1973, had cards from Lavertue and Theberge, and for a number of the inserters If these were included in the appropriate unit the Union would have had an even greater majonty than it has without them However, I have found above that Lavertue was supervisor within the meaning of the Act on January 3, 1973 1 make a similar finding that Theberge was also a supervisor within the meaning of the Act despite her denial that she was a supervisor because her own 421 of demand was received by the Respondent. Based on that fact and the record as a whole I find that the Respondent had no direct or inferable knowledge that the Union held cards from a majority of the employees in the unit on January 3, 1973, when it discharged seven of the employees in the unit. Even counsel for General Counsel was unable to inform me, as the trier of the facts of this case, at the conclusion of the 9-day trial, with any great certainty the number of admitted employees in the unit and the number thereof who had given the Union signed cards at any of the critical dates here involved. Similarly based on the record as a whole I make the further finding that the Respondent had no direct or inferable knowledge of the majority status of the Union on any of the critical dates herein prior to the trial of this case some months later in July and August 1973. I also find and conclude that the Company had no knowledge that the Union was charging it with any unfair labor practices in connection with its discharges of January 3, February 20, and March 9, 1973, until after these events had taken place, that is, on March 12, 1973, when the Union filed its one and only unfair labor charge in connection with these events at the hearing held before a Hearing Officer on that date by handing to him for filing its charge. Discussion and Conclusions The key issue here is whether an order should be entered requiring the Respondent to bargain with the Union notwithstanding the absence of any pervasive unfair labor practices. In the instant case we have only a single isolated discriminatory discharge. The remaining 11 discharges have been found to have been motivated solely by economic factors or a combination of such factors and personal factors unrelated to the union sympathies or activities of the dischargees and accordingly not in violation of Section 8(a)(3) of the Act. Similarly the findings show that the Respondent has not engaged in the three alleged instances of conduct violative of Section 8(a)(1). However, even if such instances could be deemed to be violations of Section 8(axl), I find that these instances, whether considered singly or collectively, were not of such pervasive character as would affect the results of a Board-conducted representation election. Under the full circumstances of this case, I find that the Respondent is not in violation of Section 8(a)(5) of the Act by its refusal to bargain with the Union and its insistence upon a Board-conducted representation election. Accordingly I find and conclude that the General Counsel is not entitled to an order requiring the Respon- testimony shows that as the senior employee in the compugraphic or typesetting department the junior employees in the department came to her with questions from which I infer that she had authority to direct and did responsibly direct them in their work. I find that the work of the inserters was too temporal in character to make them employees within the meaning of the Act 22 Respondent also declined recognition on the ground that "... there are questions concerning the scope of an appropriate unit ...:' In an earlier section of this Decision it was found that the unit as alleged in the complaint was appropriate . From the record as a whole, I find that this ground for declining recognition was without merit ab inuio. (See also G.C. Exh 7.) 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent to bargain with the Union and that the parties should be relegated to the election processes of the Board. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and Peerless of America, Inc. v. N.LRB., 484 F.2d 1108 (C.A. 7, 1973), enforcing in part and remanding in part 198 NLRB No. 138, and the numerous cases cited in the Court's decision in Peerless. Although the Union has withdrawn its petition for an election, there is nothing to prevent it from filing a second such petition. I further find that of the three critical dates here involved as they relate to Respondent's refusal to bargain with the Union, the pivotal date is February 9, 1973, the date on which the Union mailed a letter to Respondent demanding recognition based on a card check or in the alternative, February 12, 1973, when the Respondent received the letter. Thus I find and conclude that Respondent could not possibly be in violation of the refusal-to-bargain provisions of Section 8(ax5) by reason of its discharges on January 3, 1973, because the Union had made no demand for recognition by Respondent until after January 3, 1973. In summary I find that the Respondent is not in violation of Section 8(a)(5) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. All full-time and regular part-time editors, writers, reporters, advertising solicitors, clerks, receptionists, book- keepers, artists, photographers, circulation and office business personnel, and all printing production employees employed at Respondent's place of business in Berlin, New Hampshire, EXCLUDING executives, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. By discharging John Twist, Respondent engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices within the meaning of Section 8(aX3) and (1) of the Act. 4. The Respondent has not engaged in any unfair labor practices other than that shown in paragraph 3 above. 5. The unfair labor practices shown in paragraph 3 above affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY The Respondent having discriminatorily discharged John Twist, I find it necessary that it be ordered to offer 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. him full reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from date of discharge to date reinstatement is offered. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER23 Respondent, Munro Enterprises, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from Discharging or otherwise discriminating against any employee for supporting Boston Mailers' Union No. 1, International Typographical Union, AFL-CIO, or any other union. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Offer John Twist immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his lost earnings in the manner set forth in the section of the Administrative Law Judge's Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Berlin, New Hampshire, copies of the attached notice marked "Appen- dix." 24 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint, as amended at the trial, be dismissed insofar as it alleges that the Respondent engaged in any unfair labor practices other than the single violation of the Act found herein. 24 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."