The Ann Arbor News

THE ANN ARBOR NEWS 423 Booth Newspapers, Inc.' d/b/a The Ann Arbor News and Detroit Mailers Union No. 4, International Mailers Union (Ind.). Case 7-CA-10431 April 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 28, 1973, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief to the excep- tions. 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,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby orders that Booth Newspapers, Inc. d/b/a The Ann Arbor News, Ann Arbor, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i The Administrative Law Judge inadvertently captioned the Respon- dent as "The Ann Arbor Press" instead of "The Ann Arbor News." 2 We hereby correct the following inadvertent errors in the Administra- tive Law Judge's Decision: In the first sentence of fn. 47, change "Harper" to "Burch." Under sec. 1II,B,3, in the first sentence of par. 8, change "Respondent" to "General Counsel." 8 We do not adopt, however, the Administrative Law Judge's comments that the General Counsel has a greater burden of proof in establishing a discriminatory motivation for an employer's failure to promote an employee, than the General Counsel does in establishing a discriminatory motivation for an employer's discharge or demotion of an employee. In either event, the preponderance of the evidence governs, and in this case the preponderance of the evidence does not show that Zill was denied full-time employment in violation of Sec. 8(aX3) of the Act. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on October 3-5, 1973, 1 at Detroit, Michigan. The charge was filed by Detroit Mailers Union No. 4, International Mailers Union (Ind.), herein called the Union, on June 18 and served upon Respondent by registered mail the same day. The primary issues are whether Respondent violated Section 8(ax 1) of the National Labor Relations Act, as amended (29 U.S.C., Sec. ,151 et seq. ), herein called the Act, by interrogating its employees concerning their union activities and by threats and promises of benefit in connection therewith; and violated Section 8(a)(3) of the Act by refusing full-time employment to its part-time employee Ricky2 Zill because of his activities on behalf of the Union. I Upon the entire record,3 including my observation of the witnesses, and after due consideration of the briefs filed on behalf of all parties, I make the following: FINDINGS AND CONCLUSIONS 1. RESPONDENT'S BUSINESS The complaint alleges, the answer admits, and I find that Respondent is a Michigan corporation engaged in the publication and distribution of newspapers at various places of business in Michigan, including Ann Arbor where it publishes The Ann Arbor News, the only facility involved herein; that during calendar 1972, a representa- tive period, Respondent had a gross volume of business in excess of $1 million and held membership in or subscribed to interstate news services, published nationally syndicated features, and advertised nationally sold products, the gross revenue from which advertisements exceeded $ 100,000; that during the same period Respondent received at its Ann Arbor place of business, directly from points outside Michigan, goods and materials valued in excess of $100,000 of which $50,000 worth were delivered to its other installations in Michigan; and that Respondent is an 'employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. i All dates are in 1973 except as otherwise stated. 2 His erroneous designation as Richard in the complaint was amended at the hearing. 8 The following corrections of errors in the transcript of testimony are hereby ordered for the purpose of clarification . p 67, 1. 2, "and other witnesses" should be "and no other witnesses" ; p. 70,1.21 , "Harper" should be "Burch"; p. 70, I. 22, "Burch" should be "Schweitzer"; p. 220, I. 4, "reduced" should be "increased"; and p. 220, I. 7, "reduce" should be "increase." 210 NLRB No. 63 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Facts 1. The Union's selection as bargaining representative In the latter part of 1972, the mailroom employees of The Ann Arbor News started talking about unions, and, after contacting other unions, employee Harper contacted the instant one in December 1972 or January 1973. He and Zill then engaged in organizing work, including signing up the employees. This activity occurred in the Company's mailroom and parking lot as well as in Harper's home and various restaurants. Following rejection of the Union's demand for recognition in February, the Union filed a representation petition on February 9 for a unit of all full- time (two) and regular part-time (five) mailroom employ- ees, a total of seven.4 An election was held April 6, pursuant to stipulation of February 27, and the Union was certified on April 16. 2. The Company's preelection campaign The day the Company received the Union's letter requesting recognition, Burch asked employee Harper, according to the latter, if he was dissatisfied with his job. Harper responded in the negative, and Burch told him about the recognition request. Between that date and the election, Mailroom Foreman Burch and Plant Manager Schweitzer admittedly took each unit employee separately into a private room on company time for the purpose of persuading him to vote against the Union. They were all asked why they were dissatisfied and what Respondent could do to cure their unhappiness, and from a list held by Schweitzer they were told how good their working conditions were but if they had problems to see their foreman rather than union representatives; that the Union would not be able to get them any more than what the Company was willing to give, and that the Union could not even guarantee that existing benefits would be continued if it represented the employees; that part-time employees were excluded from the IMU contract at the Company's plants in Grand Rapids and Bay City; and that the Company's organized units "don't have as good a benefit package as the mailing room employees enjoy without the union." During the same period Burch himself admittedly talked to each of the employees, asking why they were dissatis- fied, urging a "no" vote, and stating that "there was a 4 As of the date of the hearing the distribution had changed to three full- timers and four part-timers. Harper, however, was no longer among them, having voluntarily left in May because of a personality clash with the other full-timer then employed. He remained on the Union's bargaining committee 5 Burch testified this occurred in the course of comparing existing mailroom conditions with those prevailing under the ITU contract then in effect for the typographers 6 Although Zill did not advert to anyone else's presence in his direct examination, he stated on cross that Harper was there at the time. r General Counsel, recognizing the absence of any reference to Grand definite possibility of having more rigid rules if the union was voted in," 5 including docking employees for coming in late or leaving early. Zill, a part-time mailroom assistant, testified on his examination-in-chief that in February or March, Burch called him to the paper storage room and asked him "what it would take to satisfy [him] not to have the union come in," Zill answered that he did not really know, and Burch offered him $3.50 an hour "if the union was voted down."6 Zill's hourly rate at the time was $2. Near the conclusion of the hearing, General Counsel introduced a piece of paper torn off a newspaper bundle wrapper containing two rows of figures which Zill testified were written by Burch on that occasion, as follows: 2.50 2.50 3.00 2.75 3.50 3.00 His testimony at this time, however, when asked what the second column indicated, was, "that's what he thought he could get for me. $2.50 is what he thought he could get and he was going to try to get either $2.75 or $3.00." About 2 weeks later, Zill testified, Burch approached him and asked if he could speak with him. They went to the paper storage room. Schweitzer was present. Schweitzer asked Zill why he wanted the Union, and Zill replied that he would thereby improve his position, specifically noting that he had been trying to get full-time work. Schweitzer pulled a piece of paper from his pocket and told Zill that the Union's initiation fee was high, somewhere around $100, and the dues were at least $10.75 a month. Zill further testified that late in February Burch told him that when the Union was voted in at the Company's Grand Rapids installation it got rid of all the part-time employ- ees.7 Harper testified to a similar statement by Burch in March during one of several conversations he had with Burch in which Grand Rapids was discussed .8 Harper also testified that sometime in March, in the mailroom, Burch told him that Respondent's Saginaw plant had voted to decertify the Union and were enjoying better working conditions since then than they had been before, and that ,.we have a better deal now, and our deals were going to get better." 9 From time to time, according to Harper, Burch would read him passages from the Union's bylaws calculated to discourage interest in the Union, like the high initiation fees. Harper testified on direct examination that on one occasion, when he came in late, Burch told him "that it was good to do that now, that when the union comes in it will Rapids in the complaint, agreed he would seek no specific remedy in this respect and relies on such evidence only as supporting a finding of Respondent's union animus which Respondent concedes. On cross-exanu- nation Zill admitted stating to the Board's investigator that apart from a statement by Burch that if the Union came in he would not "beat [Zell ] up or anything," no one threatened me regarding the union, or indicated anything would happen to me because of my being active for the union." 8 Harper and Burch lunched together two or three times a week and discussed the Union constantly while the election was pending. 9 It was stipulated at the hearing that there have been "no elections in the mailroom in Saginaw " THE ANN ARBOR NEWS cost me twenty-five minutes off my time card." And once, when Fleming to asked Burch if he could leave 15 or 20 minutes early, Burch said he could and added that he had "better . . . take advantage of it now because if the union gets in you won't be able to do it." Harper's cross- examination in this respect was as follows: Q. (By Mr. Brooks) Mr. Harper, I believe you made mention of a conversation you had with Mr. Burch in between February and April of 1973 in which you were late for work for a few minutes . I would like to establish the context in which that discussion took place. Now when you held the discussion with Mr. Burch, pertaining to what the situation might be after the union came in, weren't you talking about the conditions of the contract with the union in the press room? A. You say was I talking about that? Q. You and Mr. Burch. Weren't you at the time talking about the union contracts that do exist? A. We discussed that. I don't know if that was discussed previous. Q. Didn't Mr. Burch indicate to you in connection with this particular subject matter that union contracts elsewhere provided for employees being paid on an hourly basis and they were paid starting with when they showed up for work and until they left work? A. You are saying did he say that to me? Q. Yes, do you recall that. A. I don't recall that. We had perhaps similar but I wouldn't say he said those exact words. Q. But in effect didn't he discuss the subject with you? A. Yes, I don't know if it was relevant to that particular being late discussion or not. Q. You don't know that it is irrelevant either, do you? A. No, I don't. Q. Is your testimony the same with respect to your conversation with Mr. Fleming, when he indicated he wanted to leave early? A. Are you asking me if I think those conversations were relevant to Mr. Fleming leaving early? Q. Were those conversations with respect to those contracts and their requirements at that time? MR. FILLENWARTH: I object until we find out what is in the contracts, and what contracts he is talking about. MR. BROOKS: Any union contract. JUDGE HERMAN: His question is broad enough to embrace any union contract. Q. (By Mr. Brooks) I am asking you whether or not there was some discussion at that time pertaining to the union contracts requirements? A. At the time Mr. Fleming requested to leave early? Q. Yes. A. I don't believe there was a discussion. Q. You don't believe so? 10 Although Flermng held the title of assistant foreman and was contended by General Counsel to be a statutory supervisor , he was included on the stipulated eligibility list for the election A. I don't recall. 425 Burch told Harper on another occasion , Harper testified, that Respondent knew the men were underpaid, that this was partly because of the Government wage controls, but that he felt that "if the union was voted down [they] would be brought up to standards." At various times during the pendency of the election, according to Harper, Burch interrogated him concerning the Union, including the identity of the card signers. Harper replied that he "really [could]n't say." After Harper later disclosed to Burch that he was chapel chairman, Burch would ask questions about the Union including why the Union had lost out at other employers. In late March," Harper testified, Burch asked him if he would speak with him, Schweitzer, and Fleming. They went into the "flat room" of the mailroom. Schweitzer said he had been shocked, that he had not realized the men were unhappy and that he would have taken care of the situation if he had known and if there had not been any Government restrictions . He said his hands were tied now because of the pending election, but that if the Company were given a chance it would rectify the errors, and the employees did not need people from Detroit to take care of their problems. Around the same period, Harper testified, he saw Burch and Schweitzer call other employees aside and talk to them. Shortly after this, apparently, according to Harper, he told Burch that he thought Burch had really tried to get pay increases for the men and his lack of success indicated that the men would not be better off without the Union, so he asked Burch to arrange for him to see Schweitzer who he felt had held up the raises. Burch made the appointment for him and Harper went to Schweitzer's office to get the facts "from the horse's mouth." Schweitzer explained again that the Government had restricted Respondent 's freedom of action, asked him "about [his] participation in the union," and asked him to realize that Respondent was working for the employees just as much as the Union was, and to vote no. Finally, Harper testified to a discussion in the drivers' room among himself, Burch, and Zill, in which Burch asked Zill what he thought was a fair wage, Zill mentioned $2.25 an hour, or $2.50 an hour, somewhere in range," and Burch said he would see what he could do and talk to him later; that Burch left for a few minutes and returned, saying he could do better than that. Foreman Burch recalled asking Zill in Harper's presence what he felt "he should be making as far as monetary consideration," but denied asking what it would take to satisfy Zill not to have the Union in, or offering Zill $3.50 an hour if the Union was voted down, or telling Zill that he could do better than a raise to $2.25 or $2.50 an hour. Burch admitted on cross-examination that when Zill answered his question as to the source of Zill's dissatisfac- tion, they discussed the possibility of a raise and "the full benefit package that the fulltime employees get," and Burch said, "I will see what I can do." While denying ' I Harper placed this conversation in late March or early April. But he then testified to an apparently subsequent conversation "about a week before the election." The election was held on April 6. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD telling Zill that Respondent got rid of its part-timers when the Union was voted in at Grand Rapids, Burch did testify to having told Harper that he believed that part-timers were not covered by the union contract at Grand Rapids.12 Burch denied any conversation with Harper about the Saginaw plant and, in particular, that he ever told Harper that working conditions had improved at Saginaw after decertification of the Union.13 He also denied asking Harper who belonged to the Union or had signed cards. And although conceding that his recollection of the meeting among himself, Zill, and Schweitzer was poor because the latter had done most of the talking, Burch testified that Schweitzer did not ask Zill at that time why he wanted the Union. On direct examination Schweitzer testified as follows: Q. Now in your conversation with Mr. Harper, what extent, if any, did you promise him there would be more pay and better working conditions if the union was voted out? A. There were no promises made whatsoever. Q. To what extent was such a promise made to any other employee? A. There were no promises made. Subsequently, but still on direct , in response to the general question as to the contents of their conversation, Schweit- zer testified, "I told him that I could make no promises, there would be no changes in working conditions while this-before the election ...." Schweitzer also testified that he assured the employees in their conversations that Respondent had no intention of getting rid of the part-timers. And he responded, "I don't believe that I did," in answer to the question whether he asked Harper to describe his union activity. During the preelection period Respondent sent three letters to the employees, two dated March 27 and 28, respectively, over Schweitzer's signature, and the third dated April 2 and signed by Burch, in substance soliciting "No" votes on the basis that the Union's selection as bargaining representative would not be in the employees' "best interests" yet would lead to the incurrence of heavy financial obligations-"an impossible burden." 14 3. Denial of full-time status to Zill a. Operation of the mailroom Zill has been a part-time employee in Respondent's mailroom at Ann Arbor since June 9, 1971. Full-timers normally work 7 1/2 hours a day for 5 days a week while the part-timers' normal workweek consists of 6 4-hour days from 1 to 5 p.m. The plant operates from Monday through Saturday from 9 a.m. to 5 p.m. and also publishes a Sunday paper requiring work from 11:30 p.m. Saturday to 2:30 or 3 a.m. Sunday, as a result of which there are seven shifts. 12 On cross, Burch admitted to the making of a similar statement by either himself or Schweitzer in their meetings with each of the employees. 13 He testified that he knew "nothing at all" about the mailroom at Saginaw. 14 General Counsel does not contend the letters themselves are unlawful. 15 Burch added, however, that while "spelling is important ... the thing that overrides this would be overall clerical ability, filing properly , typing Foreman Burch covers five of these , and the other two are covered by the full-timers in rotation. In Burch's absence, either as part of the routine shift changes , or because of illness, vacation, or other reasons, a full-timer is acting supervisor over the part-timers and the approximately 20 women working as stuffers. Full-timers enjoy certain benefits not shared by the part-timers, including, inter alia, paid holidays and vacations and sick pay. Full-timers normally spend their mornings making changes in addressograph plates and in a miscellany of duties requiring the operation of four machines kept in Burch's office as well as the performance of certain maintenance work on the machines. Most of the preventive maintenance on the machines in the mailroom proper, including greasing, oiling, cleaning, and adjusting, is also done in the morning, as is any corrective maintenance remaining from the previous night. The press run starts at 1:30 p.m. Odd counting, i.e., adding to or subtracting from the predetermined size bundles coming from the counter-stacker machine , is done by the part-time employees although some counting is done by the full-timers. Normally, however, one of the full- timers monitors the stacker, unjamming it or correcting other mechanical problems that may arise, while the others "rove," correcting any malfunctioning of the other ma- chines and directing the part-timers in getting the bundles out and loading the vehicles. According to Burch, "the three major things" Respon- dent seeks in its full-time employees are mechanical aptitude, electrical aptitude, and clerical ability, including spelling.15 One's appearance "is not a big thing but is taken into account," and the ability to get along with other employees "is very definitely a factor." The ability to supervise "is a necessity" because of the full-timers' responsibility for the operation of the mailroom in Burch's absence. Although part-timers occasionally monitor the equipment when the presses are running and sometimes clean and oil the machines, they do not do any necessary repair work or make adjustments. They normally do simple manual work such as laying out the wrappers and rolling the papers in them for mailing, stacking loads on the docks, loading the mailbags on the trucks, and general cleanup work. They make the daily trip to the post office16 and make deliveries of any skips or shortages. Their work requires no mechanical or electrical ability and the only clerical requirement is their ability to count.17 In sum, Burch testified, the part-timer's job "where he would become useful to us" can be learned in 2 or 3 days, and part-time help "is very easily obtained" at Ann Arbor. Full-timers, like part-timers who are straight hourly employees, punch the timeclock. And they receive premi- um pay for hours worked in excess of 37-1/2 and for Sunday work as such. They are paid for the 37-1/2 hours, however, even when they work less.'s what you see and typing what you read ... 16 In May and June a full-timer made the trip Tuesday mornings. 17 Their handling of the bottom wrapper and the typing machine merely requires the operation of a switch. 18 Harper was docked for time spent bargaining with Respondent as a member of the Union's negotiating committee. General Counsel disclaimed reliance on this to establish an independent unfair labor practice. THE ANN ARBOR NEWS 427 b. Zill's union activities As indicated above, Zill and Harper got the employees to sign union cards. They also conducted organizing meet- ings, and Harper became chapel chairman and Zill secretary-treasurer. Zill has also been on the Union's bargaining committee since the beginning of contract negotiations in May. Zill succeeded Harper as chapel chairman when the latter quit Respondent's employment about May 19, and management was so informed at a bargaining session later that month. c. The filling of full-time vacancies (1) Policy or practice prior to Harper's departure Zill testified it was company policy to fill a full-time vacancy with the senior part-timer desiring the job.19 To "the best of [Harper's] recollection," only "some" of the full-timers hired during his tenure "came through the ranks and some were hired off the street." By "through the ranks," he meant merely that they had had "some connection with the Company previously." Thomas Wicks'20 "recollection" was that "the majority" of full- timers hired during his tenure had "at one time" been employed "some place in the [Booth] chain," and that "approximately five" had come up "from the mailing room as parttime employees." Wicks testified, however, that a part-tuner "automatically" became full-time, i.e., entitled to such fringe benefits as "vacation pay, paid holidays, double time on Sunday, hospitalization, jury call, et cetera," when he worked 27 or 28 hours a week for 6 months, and that Burch had told him this when he conferred such status on him .21 He qualified this on cross- examination by acknowledging that he was "an excep- tion"; that he thought the Company had given him the fringe benefits "partially because they were pleased with the work that [he] had been doing," which covered "a wide variety of jobs" extending "not only in the mailroom but also in the circulation department"; and that he had "observe[d] that those who did not do outstanding jobs didn't receive quite as many advantages in this respect." He also conceded that unlike the employees working 37 1 /2 hours he was strictly on an hourly basis .22 And while he thought that the "approximately five" who came from the part-time ranks actually got 37 1/2-hour jobs, he could name only two who could fit this category, Harper and Terry Littlejohn. The latter, however, did not become a full-timer directly from a part-time job but only after an intervening 3-year tour of Navy duty in which he had 19 At the time of Harper's resignation the senior part-tuner was Bob Malcolm. The record does not indicate whether Malcolm was interested in the job. 29 A mailroom employee for 6 years prior to his resignation in 1971. 21 By that time he had had some college courses eventually leading to a degree in industrial technology. as He did not take the "intelligence" test which, as noted infra, is given to all full-time applicants. ss Harper quit in August 1969 because of a personality clash with Littlejohn who had been hired full-time in January of that year. When Littlejohn quit 3 months later, Harper was rehired after Respondent advertised the job In February 1971, however, he requested to revert to part-time work so that he could return to school . A year later he reapplied for a full-time opening, and because of his previous experience and the attained an electrician's rating, and an additional 6 months in private industry in electrical and furnace repair work. According to Burch, Respondent's policy is to consider interested part-timers along with other applicants, but apart from Harper other part-timers who have asked for full-time jobs have been rejected as not qualified although performing their part-time work satisfactorily; Harper was the only full-timer ever hired directly from part-time work in the mailroom, and this occurred in 1968 in a tight labor market with only three or four responses to the advertise- ment and because Burch knew him to be personable, congenial, and possessing good work habits and, he thought, mechanical aptitude.23 Burch also testified that on all but one of the approximately dozen occasions on which full-time vacancies have been filled since he became foreman in 1967 newspaper ads were placed in a search for applicants, and the single time this procedure was not followed was with the most recent hire (Dorow) because such hire occurred only 4 to 5 weeks after the appearance of the last ad.24 Harper testified he did not "believe" he had been required to file a new application when he became a full- timer in 1968 after 2 years as a part-timer, but his written application is in the record. Harper admitted taking an "intelligence" test. This test, designated "Personnel Classi- fication Test," is administered to all full-time applicants. (2) Filling of vacancies upon Harper's departure Zill was hired in June 1971 at $1.75 an hour, and raised in November 1971 to $2, in June 1972 to $2.10, and in June 1973 to $2.25.25 Zill, who admittedly could not operate a typewriter when he came to Respondent in 1971 , according to his application, first inquired about a full-time job in the mailroom sometime in 197228 when he made known his interest to Assistant Foreman Fleming .27 He talked to Fleming about it "probably half a dozen times" in 1972 and possibly 1973. About February or March 1973, he testified, he mentioned his desire for the first time to Burch and renewed his request "at least three times," between then and April, Burch being noncommittal . He testified later that he "[did not] believe" any of these requests occurred subsequent to the Union's appearance other than the occasion when Harper quit. According to Zill, Burch approached him about a week after Harper quit and "offered me the job, said would you like the job?" Zill answered affirmatively and Burch said he would "see if it was all right with Mr. Schweitzer." The next day Burch called Zill into his office and told him he did Company's satisfaction with his work he was selected over the other applicants who had responded to the ad. 24 Dorow, who had had II years' experience in the mailroom of a punting fine, was hired to replace Mayne, one of the two whose hire over Zill in June precipitated the instant charge . Mayne had soon been found wanting and was fired. 25 Burch testified that such raises were automatic, merely indicating satisfactory performance as a part-timer, the alternative being disnussal. 26 His recollection of dates was hazy. He thought it was "close to a year now, if not more . . . [p]ossibly in March of '72." The hearing, as noted, was in October 1973. 27 Around June 1972 Zill also applied for a full -time apprenticeship in the pressroom but was turned down. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not get the job but that if he wanted to he could apply for it with the other applicants.28 Zill filed by mail a resume of his work experience. 29 Some time thereafter, Zill was called to the office of Bruce Moore who handles personnel matters for Respondent 30 Moore asked him if he knew how to operate and repair the machines in the mailroom. Zill replied that he could operate and repair those in the mailroom proper but that although he knew how to operate the machines in Burch's office, he could not repair those. Moore gave Zill an application which Zill completed at home and left on Moore's secretary's desk in her absence 31 His testimony on direct examination in this connection was as follows: Q. A. Q. A. Q. tion? (By Mr. Fischer) Who gave you the application? Bruce Moore did. Where was that? That was in his office. Did you ever fill out or make out the applica- A. Yes, I did. Q. Where was that? A. I made it out at home. Q. What did you do with it when you made it out at home? A. Returned it to the secretary's desk. Q. What secretary? A. Bruce Moore's secretary. Q. When? A. June 10th. Q. June what? A. June 10th, I think. Q. Did you keep a copy of it? A. I did not have a copy. Q. Now subsequent to your handing in your application- JUDGE HERMAN: Did you say you handed in this application on June 10th? THE WITNESS: It may not have been the 10th but it was in June. Q. (By Mr. Fischer) Now subsequent to your handing in the application and mailing in the resume did anyone from management discuss your employ- ment as a full time mailing room employee? A. No. Q. Did you ever hear anything from management? A. Yes, I did. Q. When was the first time after you turned in the application and mailed in the resume? A. It was on my way to work. 28 Respondent ran the following advertisement from May 16 to June 5: MAIL ROOM ASSISTANT Needed ... person with mechanical ability, for machine and conveyor operation and maintenance in our modern mall room . The person selected will also have some clerical duties, including addressograph operation. Excellent working conditions and the latest in fringe benefits. Interviews by appointment only Send work resume including address and phone number to Box 113, The Ann Arbor News. 29 The resume reflects poor spelling and typing. 30 Again Zill's recollection of dates was extremely vague He placed this as occurring in late June or early July but testified to a subsequent conversation, infra, with Moore early in June; and on cross-examination he fixed the date of his visit to Moore's office as June 2 or 3. Q. About when? A. In June of '73. Q. Who said anything to you about it? A. Bruce Moore did. Q. Where was this? A. He was sitting by the driveway coming into the Ann Arbor News. Q. In his car? A. No, there is a planter area and he was sitting on the edge of that. Q. Was anyone else present? A. No. Q. And will you tell the court what Mr. Moore said and what, if anything, you responded to what he said? A. He said I didn't get the job, and since I hadn't been there for the last few days, that's why they hadn't contacted me before. Q. And would you tell the court what happened, why you weren't there the three days previously? A. I received a speeding ticket and spent the time in jail 32 He later testified, still on direct examination, that his conversation with Moore in the driveway occurred "about two weeks [after]" his return to work the Monday following his incarceration33 (which, as he testified on cross, was June 11), and that his initial information from "management" about the filling of the vacancy was supplied by Burch on the day of his return. In fact two full-time jobs were filled by the hire of outsiders Mayne and Gahagan on June 5 and 6, respective- ly.34 They were chosen from a group of 25 applicants most of whom were screened out by Moore. Six or seven of the applications were passed on to Burch who ultimately interviewed the two he later decided to hire.35 Mayne's application indicated filing and typing experi- ence, and he was highly recommended by two supervisors in Respondent's circulation department. He was also thought to have mechanical aptitude based on prior work in a hardware store and his interest in motorcycles and cars. Gahagan had experience and training (including Navy service) in typing and electronics and had taken a college course in electrical engineering. Burch denied ever offering Zill the job. He testified that after placing the ad in the regular way he remarked to Zill that he supposed Zill was interested and that when Zill affirmed that he was, he replied, "Okay, I will see what happens." When Moore thereafter showed Burch Zill's resume and asked his opinion, Burch said he would not consider Zill. One basis for this conclusion, according to 31 This application was not offered in evidence. 32 His speed exceeded 100 miles an hour. 33 He spent June 6, 7, and 8 in jail 34 The increase in the full-time complement entailed by the hiring of two men was ordered by Schweitzer because of Respondent's increasing workload. 35 Although Burch was unaware at the time , among those eliminated by Moore was one McKeon, a union man with substantial mailroom experience, but whose application indicated that he was then earning $221 a week after having received $211 on his last previous job, and that the minimum salary he would now consider was $200. Respondent 's rate was $160 THE ANN ARBOR NEWS 429 Burch, was his belief that Zill was not "capable of running the room, or handling the necessary supervisory responsi- bilities that are placed on these fellows in my absence." In this connection, he testified, Zill "seemed to find it easy to sit and do nothing, and be in another part of the building and so forth when there was work to be done."36 This included "at least eight or ten" occasions of visiting the men in the pressroom, wandering off to the lunchroom, talking to the cashier or "merely standing in the mailroom talking to a couple of young gals that we had inserting, stuffers." Some of these would last but a few minutes while others were more protracted. Sometimes he would disap- pear altogether for as long as 15 or 20 minutes at a time. Burch also felt that the quality of Zill's work was not all it should have been, that he was frequently "somewhat sloppy in his work habits and . . . inattentive to details of the work." Nor did Burch feel that Zill had sufficient electrical and mechanical aptitude although he could recall no specific incident preceding his rejection of Zill to justify this appraisal.37 Burch testified he discussed the above shortcomings with Zill on 15 to 20 occasions prior to June but never gave him a written warning or disciplinary slip. After denying that he ever gave any employee a written warning he admitted, when confronted with such a slip, to having given it to Harper in 1970, also recalled having given one to another employee, and added that those were the only two occasions he had done so and they involved "extreme circumstances," Harper's reprimand having been given for reporting late for work 12 days the previous month. Zill testified on direct examination that he had never been disciplined or criticized in respect to his operation or maintenance of the machinery or otherwise regarding his work before filing his application for the full-time job save for being told "once" 38 to cease talking to the girl running the cash register. According to Zill, he spoke to the girl "only [to get] change from her" while paying for certain personal classified ads he placed in the paper. However, on direct examination in rebuttal his testimony was as follows: Q. Was anything said to you on those occasions you were there paying your bill and receiving the receipt from the cashier? A. No. Q. Was anything said to you when you returned to your job site, or your working area, when you returned from the cashier? A. No. And on cross, he testified: Q. (By Mr. Brooks) Have you gone to the cashier's office and talked to Joann Downing? A. She was there. Q. And talked with Joann Downing on occasions when you were not participating in official business? A. Yes. 36 Other part-timers were also guilty of this but to a lesser degree, according to Burch. 37 Zill admitted to using his penknife to hold open the switch of one of the machines, "probably" a dangerous procedure, but this happened after Q. You were friendly with her, weren't you? A. I know her. She is not an enemy. MR. BROOKS : Thank you. Nothing further. MR. FISCHER: Okay. JUDGE HERMAN: Were these occasions that weren't official business something other than your getting the cash receipts? THE WITNESS : I was getting change-I was getting change for a dollar. JUDGE HERMAN: Did you ever have any conversa- tions with her, purely personal in nature, apart from getting change? THE WITNESS: No, sir. JUDGE HERMAN: Any further interrogation? MR. FISCHER: No. Q. (By Mr. Brooks) Are you aware you had so many conversations with her of a personal nature it was necessary for her supervisor to talk to Mr. Burch? A. I am aware that he talked to her. Q. Did Mr. Burch talk to you about the situation? A. Yes, he did. Q. Did you indicate you would improve your conduct? A. Yes, I did. MR. FISCHER: When was that? THE WITNESS: I don't remember. MR. FISCHER: With respect to the date they refused you full time employment? Before or after? THE WITNESS : Before. On his initial cross-examination he admitted having suffered the loss of regular overtime work driving the mail truck as a result of his speeding ticket and his prior involvement in an accident. During his regular hours, according to Zill, i.e., from 1 to 5 p.m., he worked alongside the full-timers, operated the same equipment (including all the equipment in the office), and performed the same functions, although he conceded that he did not do as much typing and that the full-timers spent an hour or an hour and a half more in the office than he did. He also testified that he worked there some mornings, "filling in as a fulltime employee ." And he occasionally received, together with other part-timers, instruction from Harper on the use of the machines. This last, according to Burch , was at the cost of the part-timers' regular work and he ordered it stopped . Burch also testified that the addressograph machine was the only one in his office that Zill ever operated, and that Zill never made changes on addressograph plates for carrier bundles or made up plates for mailing wrappers or set the controls on even that machine for its various operations. In an announced effort to show the confidence Respon- dent reposed in Zill's ability, General Counsel sought to elicit from Zill testimony that he had been assigned some "job with respect to teaching [Mayne and Gahagan] the business." The testimony went as follows: Q. Do you know of your personal knowledge with his rejection for the full-time job 38 He placed this as "probably" in July (which would have been after his rejection) but was uncertain. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to the two new employees were you assigned any job with respect to teaching them the business? A. Not directly. Q. Were you indirectly? Yes, or no? A. Well, yes. Q. But whom? A. By Mr. Burch. Q. What did Mr. Burch tell you and when in connection with that subject? A. I was showing Jack how to count. Q. Who is Jack? A. Jack Gahagan, the second man who was employed, how to count. Q. What do you mean how to count? A. How to count newspapers. Q. Do they count newspapers differently than they count sheep? A. No. JUDGE HERMAN : Is there something special in counting newspapers? The way you describe it, there must be. THE WrrNEss: There is a knack in knowing how to split the bundles, and how to keep a head, and there are some different things that need to be shown. Q. (By Mr. Fischer) Is that what you had in mind you were showing the new employees? A. Yes. Q. What happened on that occasion? A. Everett walked up and said okay. In other words, it seemed to me he didn't want me he didn't want me to do it, or didn't think I was competent and told me not to do it. MR. BROOKS : I move to strike the response where the witness started it seemed to me. JUDGE HERMAN: It may be stricken. Q. (By Mr. Fischer) Tell me this on any other occasion did any one from management indicate to you they wanted you to show or help these new employees, these two full time mail room employees? A. No. B. Concluding Findings 1. General not entirely accepted the fallback contention, the result I have reached somewhat parallels it. 2. The 8(ax 1) allegations Burch's and Schweitzer's own testimony leaves no doubt, in my opinion, that Respondent has violated Section 8(axl) in respect to at least some of the conduct complained of. Their admitted systematic and repeated interrogation of all the unit employees during the pendency of the election,39 their solicitation of information as to the sources of the employees' dissatisfaction and what could be done to remedy them, and their invitation to the employees in this context to see their foreman rather than union representatives because the Union could not even guaran- tee the continuation of existing benefits if it were selected as bargaining representative (which at once establishes an implied promise of benefit and a warning of the futility of choosing the Union in the approaching election), all constitute violations of Section 8(axl) which I view as neither "borderline" nor "technical."40 The implied prom- ise assumed greater explicitness in Schweitzer 's admitted statement to Zill that he "could make no promises, there would be no changes in working conditions while this-be- fore the election ...." Additional violations established by the evidence includ- ed: (1) Burch's statements that current practice would be changed so as to dock employees for reporting late or leaving early if the Union were voted in. It is of course settled that such threats contravene Section 8(axl). Falcon Tank Corp., 194 NLRB 333. And while I agree with Respondent that the evidence indicates that Burch referred to the ITU contract when making the statements it does not follow that the statements merely "constituted non- coercive speculation concerning terms which might flow from the union contract covering the mail room" (br., p. 6). In the first place, the contextual lines may not be narrowly limited to the particular discussions involved but properly embrace all of the surrounding activity including the clearly unlawful conduct above described. Moreover, the Board has found violative an employer's reference to harsher working conditions at one of its unionized plants even without specifically linking the reference to the plant in dispute. Thus, in The Hertz Corporation, 195 NLRB 96, 104: Conceding it "clearly communicated" to the employees its opposition to the Union (br., p. 3), Respondent urges that its conduct did not violate Section 8(axl), with the fallback contention that "[a ]t best, borderline, technical violations of the Act occurred," providing an insufficient predicate for an 8(aX3) finding (br., p. 12). While I have as Even were I to discredit-which I do not-Harper's testimony concerning his interrogations by Burch and Schweitzer as to his and other employees' union views and activity, the result would be the same. I fail to perceive the legal significance of Respondent's attempted distinction between asking an employee why he is unhappy with his working conditions and asking why he wants a union (br., p. 8). Similarly, asking why he is dissatisfied or why he wants the Union in the midst of an organizing campaign puts the employee in the same position as if he were asked whether he wants the Union. Respondent's reliance on the Board's small plant rule in this connection (br., p. 8) to show Respondent had no need to inquire as to the identity of the union adherents ignores the anticipated Regarding Shafer's statements on November 24 that, with a union at the Dallas station, the employees there were required by management to work harder, includ- ing the requirement of washing cars twice, it is our opinion that the implication was clear that this was effect of such inquiry on the employees who, as far as the record shows, were unaware of the extent of Respondent's knowledge. 40 Cf. Birdsall Construction Company, 198 NLRB No. 20, enfd. 487 F.2d 288 (C.A. 5, 1973); King Chrysler-Plymouth, Inc., 174 NLRB 531; Eagle- Picher Industries, Inc., 171 NLRB 293, 299-300; Reliance Electric Company, 191 NLRB 44, 46, enfd. 457 F.2d 503 (C.A. 6, 1972). "The question is not only what the employer intended to imply but also what the employees could reasonably have inferred ." N.LR.B. v. Kaiser Agricultural Chemicals, 473 F.2d 374 (C.A. 5, 1973). 1 do not read Coverall Rental Service, Inc., 205 NLRB No. 140, cited by Respondent, as detracting from the force of the foregoing authorities. THE ANN ARBOR NEWS 431 management policy in response to unionization. While there was no express statement that the foregoing conditions of work at Dallas under a union would be imposed at San Antonio if the latter went union, it was reasonably clear that the impression was conveyed that such would be the case or, at least, was a good possibility. In view of Shafer's statements as to what conditions of employment company management had imposed in a unionized station, the listeners could reasonably conclude that company management in the same Company would follow a similar policy in San Antonio. Certainly this is true since Shafer did not say that conditions at Dallas did not represent company policy or that such policies were not to be expected at San Antonio in the event of unionization. A fortiori, the employees will reasonably tend to be coerced when their plant is mentioned as the prospective subject of similar treatment. And the possession of a contract right to impose such treatment does not prevent the employer from forbearing to exercise it. (2) Schweitzer's promise to Harper that the employees would get a pay raise if they rejected the Union. Respondent's brief (p. 9) urges an utter failure of evidence to support the allegation. It relies for this purpose upon the precise language of paragraph 9(e) of the complaint, to wit, "promised its employees pay raises if they induced fellow employees to reject the Charging Party as bargaining representative." As I read the evidence, Respondent thus ignores Harper's testimony that Schweitzer told him about a week before the election-by which time Respondent well knew of his strong union views 41-that he had not realized that "we were unhappy with our wages," that if he had known the situation would have been cured, and that if the Company were given a chance it would rectify the matter. The request to be "given a chance" during an election campaign can only be and here admittedly was a request for a negative vote; and conditioning such rectification, i.e., a pay raise, on that vote was an unlawful promise of benefit, a finding quite consistent with the admitted conduct found unlawful above. Paragraph 9(e) of the complaint is sufficiently broad to encompass this conduct even if the promise be deemed simply one made to obtain Harper's vote. In addition, however, the paragraph is literally satisfied by Respondent's awareness of Harper's influence on the other members of the bargaining unit. (3)' Burch's promise to Harper that wages would be raised if the Union lost the election. Again I credit Harper's testimony that Burch said he felt the employees' pay would be brought up to standards if the Union were voted down. Like Schweitzer's promise it was consistent with the other 8(axl) conduct found, and its coercive effect was not lessened by the qualifying word, "felt." A "feeling" on the part of the man who runs the mailroom and does all the hiring therefor, and who reports directly to the front office, constitutes more than the mere "speculation" 41 And probably of his position as chapel chairman which, according to his credited testimony, he disclosed to Burch prior to "several" conversa- tions they had in the course of their frequent discussions about the Union. 44 Similarly with respect to the alleged threat that part-timers would lose their jobs if the Union came in based on the alleged reference to such an occurrence at Grand Rapids , again a matter easily ascertainable from the Respondent argues it to be (br., p. 10). Nor can it be passed off as "speaking as one supervisor to another" (ibid ) because of the supervisory duties that devolved upon Harper in Burch's absence. When Burch was present Harper performed no supervisory duties. He was a rank- and-file member of the bargaining unit and indeed so much so that he sat on the union side of the bargaining table in its negotiations with Respondent. I find no merit to the remaining 8(axl) allegations of the complaint. I do not credit Zill's testimony that Burch asked him what it would take to satisfy him not to have the Union come in and, when he was unable to suggest a figure, offered him $3.50 an hour if the Union was voted down. Apart from the unlikelihood that Burch would have offered him a 75-percent increase without getting any suggestion at all from Zill as to the amount, the other evidence bearing on the issue militates against it. Zill's own subsequent testimony, adverting to the slip of paper (G.C. Exh. 10) bearing two columns of figures written by Burch on that very occasion, was that "$2.50 is what [Burch] thought he could get for me and he was going to try to get either $2.75 or $3.00." Moreover, Burch's testimony, that this occurred in the context of his inquiry as to the source of Zill's dissatisfaction, and that on learning it was partly a matter of wages he only asked Zill what he thought he should be making and then responded to Zill's request by saying he would see what he could do, is confirmed by Harper who testified that it was Zill who mentioned "$2.25 an hour, or $2.50 an hour, somewhere in that range." Harper departed from Burch' s account only in attributing to Burch the statement, after leaving for a few minutes, that he could improve upon Zill's request. Perceiving no reason why Respondent would have wanted to overcom- pensate Zill, and noting the disparity between Zill's and Harper's testimony concerning the event, I credit Burch's denial that he said anything more than that he would see what he could do. I do not believe this adds anything material to the implied promise already found unlawful supra. I do not credit Harper's testimony that Burch told him that Respondent's mailroom employees at Saginaw were enjoying better working conditions since decertifying the Union there. In view of the stipulation that there had been no elections in the mailroom at Saginaw, I am unable to believe that Burch would have exposed himself to entrapment in such an obvious lie. He could hardly have expected that the chapel chairman would not have ascertained the truth so easily available from the Union.42 Finally, paragraphs 9(g) and (h) of the complaint fall not only because of a complete failure of evidence as to the events alleged in May and June but also because the Union had been certified in April and conditioning the alleged threats on the choice of the Union as bargaining represent- ative would have made no sense after the Union had already been chosen. Union. I therefore credit Burch's testimony that all that was said about Grand Rapids was that the part-timers were not covered by the contract there, a statement conforming specifically to the notes Schweitzer used in talking to the employees (G C. Exh. 12) which on their face also disclaim any intention to get rid of part -timers. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The denial of a full-time job to Zill Despite the 8(a)(1) conduct found above, and the Company's knowledge that Zill was one of the two principal union activists, the General Counsel has failed, in my opinion, to sustain his burden of establishing an unlawful motive for Zill's rejection for full-time employ- ment.43 This burden is greater in establishing a right to advancement to a better job than a right merely not to be discharged or demoted. The difficulty appears well illustrated by the fact that the only case cited by the Charging Party (br., p. 9)44 deals not with a true promotion but rather with the loss of a promotion to a job on which the employee had already served "satisfactorily" for over 3 months. The case thus more closely resembled a demotion. Unlike a discharge, demotion, or other discipline which may normally be expected to rest on some failure of performance on the employee's present job, satisfactory performance on one's current job raises no presumption of entitlement to promotion, even to fill a vacancy, unless the work involved is the same or unless it is the employer's practice so to promote in any event. Neither of these inferences may fairly be drawn from the instant record. The attempt to establish the latter on the basis of Zill's and Wicks' testimony foundered on the evidence supplied by Burch, which I credit, that mailroom part-timers get no special consideration, that Harper was the only full-timer during Burch's tenure to come directly from the ranks of the mailroom part-timers, and that even Harper's case was the result of special circumstances. Burch's negation of a policy of promotion from such part-time ranks finds considerable support in the surrounding evidence includ- ing that furnished by the General Counsel's own witnesses. Harper himself testified that only "some" of the full-timers hired while he was there "came through the ranks," and "through the ranks" meant only that they had had "some connection with the company previously." Similarly, Wicks' testimony that most full-timers had "at one time" been employed "some place in the [Booth] chain" falls far short of supporting Zill's position that it was company policy to fill a full-time vacancy with the senior part-timer desiring the job. And although Wicks thought that "approximately five" full-timers had come from among the mailroom part-timers, the only one he could name besides Harper was Littlejohn who actually did not become a full- timer until after he had completed 3 years' Navy service with an electrician's rating, plus 6 months' private employment at electrical and furnace repair work, all following his part-time job with Respondent. Finally, the method employed in filling full-time vacancies-advertis- ing for applicants, reviewing their written applications, and giving them written classification tests-is scarcely consist- ent with the simplistic approach urged by the General Counsel. 43 This is not to imply that the General Counsel failed to make out a prima facie case, as contended by Respondent (br, pp. 15, 19). Noted in this connection was the absence of a motion to dismiss at the close of the General Counsel's case-in-chief. 44 J W. Mortell Company, 168 NLRB 435, 451 45 Charging Party questions Burch's reference to electrical aptitude, pointing to the absence of such a qualification in the ad But the generic term, "mechanical," in connection with operation and maintenance of electrically powered machines, is certainly broad enough to embrace Hence the General Counsel's effort to demonstrate the equivalence of the work or at least Zill's experience at the performance of full-time duties that differed from his normal type of work. In respect to the similarity of the work a short answer might be that the history of filling full- time vacancies would doubtless have more closely approxi- mated Zill's policy of promoting from within had the similarity attained the degree alleged. The evidence recited above shows in fact that the jobs, as suggested by their different methods of compensation, were substantially discrete, differing both in kind and degree. Respondent's "three major" desires in its full-time employees, according to Burch's credited testimony, are mechanical aptitude, electrical aptitude, and clerical ability encompassing filing, typing, and, to a lesser extent, spelling. This is borne out by the need for these employees to operate and maintain machines that are electrically controlled, including addressograph work. As applicants were advised in the advertisement appearing in the record, Respondent required a person with "mechanical ability, for machine and conveyor operation and maintenance .. . will also have some clerical duties, including addresses graph operation." 45 None of these skills is a prerequisite to obtaining a part-time job whose essential functions are primarily manual in nature. Indeed Zill's application for part-time work specifically stated that he could not operate a typewriter. Nor does the record offer any basis for an inference that he thereafter improved his ability in respect to the skills sought by Respondent in its full-time employees. Zill's resume, submitted in connection with his application for the full-time job, is a poor sample both of typing and of spelling. To the extent that full-timers and part-timers performed parallel functions this was more a matter of the former doing the work of the latter rather than vice versa. That Zill, like other part-timers, operated some of the machines, or may even have performed some operations on all of the machines, did not necessarily qualify him for a full-time job with attendant responsibility for the operation and maintenance of the machines. Zill acknowledged having admitted to Moore that he could not repair the machines in Burch's office, the peculiar domain of the full-timers. And although he claimed to have operated those machines the record indicates that the virtual extent of such operation was the instructions he and other part-timers received from Harper contrary to Burch's orders. Another essential area in which Zill was found lacking was that involving supervisory ability.46 I credit Burch's testimony that Zill dallied and strayed from his job on numerous occasions beyond the one he admitted to in his examination-in-chief. On cross-examination of his rebuttal testimony, Zill admitted that his excessive conversations with the cashier led to her supervisor's complaining to electrical skills, which represent but a specific type of mechanical ability. Supervisory ability was also unmentioned in the ad, yet undeniably constituted a significant factor See infra 46 Although such ability is not normally a factor in assessing the qualifications of a statutory employee, the job here in question required it because of the responsibility vested in the full-timers for the functioning of the mailroom in Burch's absence on a regular basis due to the arrangement of the shifts. Cf. Nassau and Suffolk Contractors' Association, Inc, 118 NLRB 174 THE ANN ARBOR NEWS 433 Burch who in turn obtained a promise from Zill that he "would improve [his] conduct." Some of the time thus wasted was spent with the young female stuffers who would have been among those coming under his supervi- sion had he gained a full-time job. The contention that Respondent's failure ever to give Zill a written warning or take other disciplinary action against him belies any asserted misconduct by Zill , or at least Respondent's dissatisfaction with him, overlooks, first, Zill's admission that he agreed to improve his conduct, and second, that the conduct was more tolerable in a part -timer than in a full- timer.47 Finally, two incidents occurring after Zill 's rejection, and thus obviously not relied on as a basis therefor, tend nevertheless to support Respondent's judgment resting on the other evidence noted above that Zill lacked the qualities it wanted in a full-time employee, and hence negate the contention advanced in his behalf that Respon- dent's dissatisfaction with him was a mere pretext manufactured out of the whole cloth . First, he admitted his arrest and imprisonment for speeding over 100 miles an hour and that he had been deprived of regular overtime work driving Respondent's mail truck in consequence of that and his prior involvement in an accident. Second, he admitted the dangerous nature of his use of his pocket knife to hold down the switch of a machine.48 Respondent contends that hiring people without even Zill's experience and indeed completely lacking in mail- room experience demonstrates an improper motive. But mailroom experience of itself, particularly where the jobs differ in nature, does not necessarily help an applicant. An employer may regard aptitude without specific experience to be preferable to the kind of experience offered by the part-timer And where, as here, the employer relies on related experience and the character of the recommenda- tions accompanying an application, as with Mayne and Gahagan, it cannot be said that asserting such preference amounts to a pretext to cover an unlawful motive . Nor did Burch, as contended, act inconsistently by offering Zill the job only to renege when his superiors shunned the choice because of Zill's union activity . I credit Burch's testimony, contrary to Zill's, that he did not offer Zill the job when Harper quit . Indeed such an offer would have been inconsistent with his reaction to Zill's prior requests49 47 Contrary to General Counsel and Charging Party, Harper's credibility in this connection does not suffer from his contradiction of his initial testimony that he never gave written warnings to anyone When his recollection was refreshed on cross-examination as to the warning slip he gave Harper, he explained the extraordinary circumstances that impelled such unusual action and volunteered the information that he had also given one to another employee in no way related to this proceeding Also noted here is the fact that Harper's work record introduced into evidence by Respondent reflects the warning on its face 48 His later testimony in rebuttal that Fleming had once done something similar without criticism does not help Zill's case since, apart from any other consideration, it does not appear that any superior of Fleming's was aware of it 49 Zill was inconsistent in first testifying that between March and April he had renewed his initial request ( made in March) "at least three times," and later testifying that none of these requests occurred after the Union's appearance 50 Zill's account of filing his application and notification of its rejection provides additional insights into the entire transaction, but tending mainly to confuse He first testified to having filed on June 10, which then became "June 10th, I think " June 10 was a Sunday So it was probably on the 9th which admittedly had never been especially encouraging. Besides, Burch's 8(a)(1) conduct hardly squares with his being Zill's benefactor as distinguished from the villains above him. As for the contention that Respondent never gave Zill a reason for rejecting him, there was no evidence that he ever asked for a reason. His own testimony was that when Burch, speaking for "management," told him of the rejection he simply said, "Well okay."50 In all the circumstances, I find the evidence insufficient to establish that Zill, who had also been rebuffed in his attempt to obtain a full-time pressroom apprenticeship prior to the advent of the Union, was denied a full-time job in the mailroom because of his union activity. To the extent I have credited Burch I have not ignored the embellishments in some of his testimony.51 The facts recited above, however, show numerous inconsistencies between Zill and Harper and internally in the testimony of each. I have accepted neither the General Counsel's claim of Harper's impartiality52 nor Respondent's claim of Burch's total candor, and have found Zill, whose testimony at various points was vague and confusing, less impressive than either as a witness. As far as possible, and as the factual recital indicates, I have resolved each testimonial conflict on the basis of objective considerations. Insofar as I have been unable to do this my determinations have rested on my observation of the witnesses' demeanor in the context. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(l) of the Act by coercively interrogating its employees concerning their union activities and those of their fellows, soliciting grievances from its employees and impliedly promising to rectify them, warning its employees of the futility of choosing the Union to represent them, promising a pay raise if the Union were defeated, and threatening its employees with reprisals for selecting the Union. (immediately following his incarceration) or Monday, the 11th, as he testified on cross, in either event several days after the jobs had been filled. But he had received the application, he testified, on June 2 or 3 (probably June 2). He evidently took his time about filing because he was at work on June 4 and 5 In fact, on the latter date he saw Mayne there without realizing the significance of the event Moreover, he testified, it was on his way into work (presumably the 9th or i Ith) that he was informed of his rejection by Moore who was sitting in the driveway, but he later testified that his conversation with Moore occurred some 2 weeks thereafter, and he also testified that it was Burch who reported the news of his rejection on behalf of "management" 51 I have noted, inter aha, his purported reliance on a threat by Fleming to quit if Zill got the job Burch testified, however, that this alleged threat came when he told Fleming that Respondent had received a resume from Zill But by that time, according to Burch himself , he had already told Moore (immediately upon learning from Moore that the resume had come in) that he did not want Zill 52 General Counsel's argument (br, p 5) that Harper's departure from Respondent's employ shows he "has no possible interest or bias for or against Zill or the Respondent" can only be characterized as disingenuous in view of Harper's retention on the Union's bargaining committee. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices affect commerce 20 days from the date of this Order, what steps Respondent within the meaning of Section 2(6) and (7) of the Act. has taken to comply herewith. 5. Respondent did not violate the Act by telling its IT Is FURTHER ORDERED that the complaint be dismissed employees that its Saginaw employees were enjoying better insofar as it alleges violations of the Act not specifically working conditions after decertifying the Union, by found. threatening that part-timers would lose their jobs if the Union were voted in, by asking Zill what it would take to satisfy him not to have the Union and offering him $3.50 an hour if the Union were voted down, by any alleged conduct in May and June, or by the denial of a full-time job to Zill. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom and from any like or related conduct, and to post the usual notices. Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER53 Respondent, Booth Newspapers, Inc. d/b/a The Ann Arbor News, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees con- cerning their union activities or those of their fellows. (b) Soliciting grievances from any of its employees with a promise, express or implied, to remedy them. (c) Warning any of its employees of the futility of choosing Detroit Mailers Union No. 4, International Mailers Union (Ind.), or any other labor organization to represent them. (d) Promising any of its employees a pay raise or other benefit for the defeat of the Union or any other labor organization. (e) Threatening any of its employees with reprisals for selecting the Union or any other labor organization. (f) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Ann Arbor, Michigan, copies of the attached notice marked "Appendix." 54 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of Respondent, shall be posted by 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 53 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. 54 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate any of our employees concerning their union activities or those of their fellows. WE WILL NOT solicit grievances from any of our employees with a promise, either express or implied, to remedy such grievances. WE WILL NOT warn any of our employees of the futility of choosing Detroit Mailers Union No. 4, International Mailers Union (Ind.), or any other union to represent them. WE WILL NOT promise any of our employees a pay raise or other benefits for the defeat of the Union or any other labor organization. WE WILL NOT threaten any of our employees with reprisals for selecting the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with the right of our employees to engage in organiza- tional activity or collective bargaining or to refrain from such activities. BOOTH NEWSPAPERS, INC. D/B/A THE ANN ARBOR NEWS Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.