Maritz, Inc.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maritz Communications Company , a wholly owned subsidiary of Maritz, Inc. and William J. Ferry. Case 7-CA-19413 22 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS -HUNTER AND DENNIS On 14 July 1983 Administrative Law Judge Stanley N. Ohlbaum issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order.2 The judge concluded that the Respondent dis- charged William Ferry because he was a member of Local 666 of the International Photographers of the Motion Picture Industry Union and to avoid any legal obligation to recognize and bargain with the Union. Because we find that the decision not to hire Ferry3 was part of the Respondent's overall response to a general business downturn and the loss or reassignment of some of the work done by Ferry, we reverse. The Respondent purchased Bell and Howell's Wilding division effective 3 January 1981. Before and after the takeover, the Wilding division provid- ed commercial photographic, audiovisual, and vid- eotape services for its customers' advertising and employee training needs. Ferry was a conventional still photographer in the slidefilm department in the Wilding division's Southfield office. The Wilding division's principal customer was the Ford Motor Co.'s Ford and Lincoln-Mercury divisions. Because of the general business downturn in the auto industry in the late 1970s and early 1980s, the Wilding division incurred significant op- ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties The Respondent has also moved for a new trial, claiming that the judge's findings and conclusions were affected by bias against the Com- pany Given our disposition of the case, we find it unnecessary to address the Respondent's contentions and deny the motion for a new trial 3 The Respondent's action is more accurately characterized as a refusal to hire rather than a discharge erating losses4 in 1979 and 1980. Because of Lin- coln-Mercury's decision to produce still slides in- house and Ford's decision to use satellite transmis- sions and videotapes instead of slidefilm (thus dra- matically reducing the need for slides), the Re- spondent anticipated an additional and significant loss of work in 1981. In 1980, during negotiations for the purchase of the Wilding division, the Respondent and Bell and Howell agreed that, in light of the business down- turn, the Wilding division's full-time staff should be reduced.5 The purchase agreement required the Respondent to retain only 80 percent of the Wild- ing division's employees. Bell and Howell reduced the Wilding division staff by attrition from 190 to 140 employees in 1980. Further, in the fall of 1980, William Kraft, then a Wilding division vice presi- dent, directed Charles Stewart, a production super- visor in the Southfield office, to assess the staffing needs, evaluate each employee under his supervi- sion, and recommend an order of layoff.6 Because of the significant loss of conventional slide photog- raphy work and the industry's growing reliance on sophisticated laboratory equipment to produce pho- tographic images, Stewart concluded that the slide- film department needed only one full-time conven- tional still photographer. Of the two main photog- raphers in the slidefilm department, Ferry and Walter Dieterle, Stewart decided to retain Dieterle because Ferry had less familiarity with the sophisti- cated photo-processing equipment than Dieterle who was also a competent conventional photogra- pher. 7 Based on the amount of work in 1980, the amount anticipated in 1981, and taking into account the Wilding division management's staffing recom- mendations, the Respondent decided which em- ployees to retain. In mid-December 1980 the Re- spondent informed Bell and Howell of its hiring decisions. Bell and Howell was to inform the indi- viduals to whom the Respondent would not offer employment. Bell and Howell notified six full-time Wilding division employees before the takeover that the Respondent would not offer them employ- ment, but did not notify Ferry because he went on 4 The judge found that when automobile sales decline as a result of a recession, the Respondent's work increases The judge neglected to find, however, that the increase in business during a recession is short-lived and business significantly and precipitously declines if the recession con- tinues 5 Bell and Howell had traditionally employed enough full-time em- ployees in the slidefilm department to meet the department's typically heavy summer and winter workloads and retained that full-time staff during the slack months s As a result of these evaluations, in October 1980 Stewart terminated two assemblers and a layout artist in the slidefilm department ' Stewart also considered Dieterle managerial material In fact, Die- terle was promoted to supervisor at the time of the takeover 274 NLRB No. 16 MARITZ COMMUNICATIONS CO 201 vacation before the Respondent advised Bell and Howell who would be retained. The Respondent told Ferry when he returned from vacation on 5 January that he had been terminated. The Re- spondent did not hire full-time replacements for any of the terminated employees. Instead, the Re- spondent used freelance employees, including a number of union members, to work on an hourly basis during the seasonal rush periods. In response to Ferry's unfair labor practice charge, the Respondent's vice president and gener- al counsel wrote a letter to the Board, one sentence of which stated, "Ferry was not discharged for lack of work." The judge found this sentence to be an admission that Ferry's termination was not based on the Respondent's assessment that there was insufficient still photography work to support two full-time photographers. In the context of the letter, however, the sentence conveys a much dif- ferent meaning. The letter expressed the Respond- ent's position that it had never hired Ferry and therefore could not have discharged him for any reason, including lack of work. The letter further explained that Ferry was not hired because "the full-time staff needs of the slide-film department . . . could be handled by one photographer," and Walt Dieterle was selected for that position. The judge found that Kraft's January 1981 offer of a $25-per-week raise was in exchange for Die- terle's withdrawal from Local 666 and was evi- dence of union animus. The preponderance of the record evidence shows, however, that Dieterle re- ceived the raise as compensation for the loss of contributions to the Local 666 pension fund that Bell and Howell had made on Dieterle's behalf.8 After filing the unfair labor practice charge, Ferry instituted a civil suit in Federal district court against the Respondent and Bell and Howell alleg- ing, among other things, his discharge violated Michigan's age discrimination statute. The Re- spondent deposed Ferry in connection with the lawsuit. At the deposition, the Respondent's attor- ney questioned Ferry on a wide range of subjects, including his relationship with Local 666 and the charge he filed with the Board. The judge conclud- ed that the Respondent's interrogation of Ferry violated Section 8(a)(1) because it was coercive 8 The judge also found that in January 1981 Kraft told Dieterle he could stay in the Union or resign, but that the Respondent "probably would prefer that you relinquish your union association," and that Kraft told Dieterle the Respondent was "non-union," "did not want a union," and would not assume the Local 666 contract The statements to Die- terle, a statutory supervisor, do not support the inference that the refusal to hire Ferry was unlawfully motivated In the spring of 1981 Supervisor Stewart apparently cautioned employ- ee David Weiner about a prounion remark because the Respondent did "not like unions " The remarks are too attenuated to support the finding that Ferry was not hired for unlawful reasons and concerned issues irrelevant to the civil suit.9 The judge also found the interrogation violated Section 8(a)(1) because the Respondent did not comply with the Johnnie's Poultry safeguards. John- nie's Poultry Co., 146 NLRB 770 (1964). Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, the right to inquire into matters relevant to the subject matter of the pending action has been broadly construed "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case . . . . [D]iscovery is not lim- ited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues." 1 ° Oppenheimer Fund v. Sanders, 437 U.S. 340, 351 (1977). We have carefully reviewed the deposition and pleadings in the civil action and find the Respondent's examination of Ferry to be within the scope of arguably relevant questioning permit- ted by the Federal Rules of Civil Procedure.11 Be- cause the issues in the civil suit and the Board pro- ceeding arose from the same or similar operative facts, the Respondent's inquiry into Ferry's work history and the circumstances surrounding his ter- mination was likely to touch on a number of areas also related to the unfair labor practice proceeding. Further, Ferry's claim in the Board charge that he was fired because of his union membership may be inconsistent with his claim in the civil action that he was terminated because of his age. Thus, the questioning concerning Ferry's union activity was relevant in establishing that age was not the reason for the Respondent's refusal to hire Ferry. We do not agree that the Respondent's interro- gation of Ferry violated Section 8(a)(1) because it was not conducted in compliance with the John- nie's Poultry requirements. 12 Because Ferry filed 9 We note that Bell and Howell's attorney asked some of the questions the judge discusses Bell and Howell was a separate defendant in Ferry's civil suit, and we find insufficient record evidence that its attorney acted on behalf of the Respondent in examining Ferry We therefore do not consider the legality of Bell and Howell 's conduct during the deposition 10 Discovery in Federal actions cannot be used merely as a device to obtain evidence in another proceeding in which discovery is more cir- cumscribed, however, and a protective order preventing such an abuse of the discovery process may be obtained See 4 Moore, Federal Practice, § 26 69 (2d ed 1984) 11 The judge concluded that some of the questioning was irrelevant because the answers elicited would not have been admissible at trial Rule 26(b)(1) of the Federal Rules of Civil Procedure, however, states that "[flit is not ground for objection that the information sought will be inad- missible at the trial if the information sought appears reasonably calculat- ed to lead to the discovery of admissible evidence " rz Member Hunter agrees with his colleagues that the deposition of Charging Party Ferry did not violate Sec 8(a)(l) of the Act He would find no unlawful interrogation of Ferry in view of the particular circum- stances presented by this case Here, the deposition was taken under the Federal Rules of Civil Procedure in response to a lawsuit filed by the Charging Party himself, the Charging Party was protected by the pres- ence of an attorney, and the Charging Party had a right to object to Continued 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the lawsuit in which he was deposed, he must or should have been aware that the defendant could examine him concerning any matter relevant to the preparation of a defense to the civil Suit. 13 ORDER The complaint is dismissed. questions not relevant to the lawsuit or appeal to the Federal trial court for a protective order with respect to certain questions he deemed imper- missible 11 Member Hunter would find the Board's decision in Bill Johnson's Restaurants, 249 NLRB 155 (1980), does not apply here because the civil lawsuit which prompted the deposition of the employee was filed by the employer whereas, here, the Charging Party himself has instituted the lawsuit DECISION PRELIMINARY STATEMENT, ISSUES STANLEY N. OHLBAUM, Administrative Law Judge This proceeding under the National Labor Relations Act, 29 U.S.C § 151 et seq., was litigated before me in Detroit, Michigan, on 7 days between July 8, 1982, and January 21, 1983.1 All parties participated throughout by counsel2 and were afforded full opportunity to present evidence and contentions, as well as to file briefs subse- quent to the trial. Briefs were received by April 1, 1983. Record and briefs have been carefully reviewed. The principal issues presented are (1) whether Re- spondent Employer violated Section 8(a)(3) and (1) of the Act on and since January 5, 1981, through discharg- ing or refusing to hire Charging Party William J. Ferry because of his union membership and to avoid bargaining with his Union, and (2) whether Respondent further vio- lated Section 8(a)(1) of the Act through coercively inter- rogating Ferry concerning his exercise of his rights under Section 7 of the Act On the entire record and my observation of the testi- monial demeanor of the witnesses, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION At all material times, Respondent Maritz Communica- tions Company, a wholly owned subsidiary of Maritz, Inc , has been and is a Missouri corporation, engaged in production of training and educational programs, slide films, still photography, and related products, with busi- ness places in Michigan, Missouri, Illinois, Georgia, Cali- fornia, Wisconsin, and elsewhere, including that here in- volved at 18000 W Eight Mile Road, Southfield, Michi- gan. In the representative fiscal year ending March 30, 1981, in its business there, it had gross revenues exceed- 1 Testimony commenced on January 20, 1983 2 The Charging Party, William J Ferry, was represented by counsel for the General Counsel of the Board, who, through the Board's Acting Regional Director for Region 7 (Detroit, Michigan), issued the complaint herein dated July 30, 1981, based on a charge filed by the Charging Party on June 10, 1981 The complaint was amended on October 5, 1981, and further amended at the trial mg $500,000 and caused to be transported to and deliv- ered there film, photo supplies, and other goods and ma- terials valued at over $50,000 directly in interstate'com- merce from places outside of Michigan During that period in its business at said Southfield, Michigan loca- tion Respondent also performed services valued at over $50,000, in and for enterprises located outside of Michi- gan I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that, at all of those times, Local 666, International Photogra- phers of the Motion Picture Industries (Union) has been and is a labor organization as defined in Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Respondent's Discharge of and Failure to Hire William J. Ferry It is undisputed that Charging Party William J. Ferry, at age 56 a highly experienced and competent photogra- pher with auxiliary related skills and a union member, was summarily discharged on about an hour's notice on January 5, 1981, after around 30 years of steady employ- ment in his job, in conjunction with Respondent's take- over of the photographic studios of its predecessor, Wilding Division of Bell & Howell Company in South- field (near Detroit), Michigan, and that Respondent has for practical purposes" refused to retain or return him to that job or hire him for any other job since then. The issue is why Ferry claims, with the support of the Gen- eral Counsel of the Board, that it was because of Ferry's union membership and to avoid the necessity of explana- tion, discussion, or bargaining with the Union under a subsisting collective-bargaining agreement covering Ferry Respondent now claims it was for valid business reasons involving neither of those factors Resolution of this issue, necessitating determination of the true reason or reasons for Ferry's discharge and Re- spondent's refusal to continue him in his job or to reem- ploy him, requires careful review and analysis of the sur- rounding circumstances, including those before as well as after Ferry's discharge. 2. Situation before Ferry's discharge William Joseph Ferry, born in December 1924, has been employed in the photography industry since 1943 or 1944 and for some 30 years from 1951 or early in 1952 until January 1981 by Respondent's predecesor, Wilding Division of Bell & Howell (and, in turn, by the latter's predecessor Wilding, acquired by Bell & Howell in or around 1967). Ferry's service in or near Detroit has for practical purposes been uninterrupted since around 1955-over 25 years (when he was transferred to De- troit) There he was the "number one" or "lead" photog- rapher at Wilding and then at Wilding Division at its Ca- dieux Road (Detroit) location until relocated to South- field (a suburb of Detroit), Ferry being the last photogra- 3 With insignificant exception alluded to below MARITZ COMMUNICATIONS CO pher (before him, Walter Dieterle, a much later addition as an employee-of whom, more later) to be transferred to Southfield Wilding Division of Bell & Howell (Wild- ing Division) handled all still photography in or out of that (Southfield) location, including photography for large commercial clients such as Ford Motors,' Coca- Cola, and various banks, for promotional or training pur- poses. Ferry's job included not only still photography but the development and processing of films, as well as, to the extent required, video or motion photography Ferry utilized not only conventional but also copying cameras and miscellaneous auxiliary equipment, ma- chines, and devices Although the bulk of his photogra- phy was at the Southfield location, Ferry was also re- quired to travel, at times extensively, with much "loca- tion" (i e., travel) photography throughout the United States, as well as in Canada and Central and South America There was no equipment in the photographic, or slide films department which Ferry could not and did not operate, a very substantial and sometimes most of his worktime being devoted to "lab" work including the making of photographs of other photographs, as well as of sketches and artwork, photo reductions, and enlarg- ments; operation of a "Four-O-X" (Forox or Forax) pho- tographic reducer/slidemaker and other copying cameras and equipment; darkroom development of negatives and making of prints of varying size; and operation of color film processing equipment. Ferry also, from time to time, designed equipment, and made purchases of photograph- ic materials and supplies for his employer. He participat- ed in production consultations. He also trained new or less experienced personnel in skills familiar to him On a location assignment , Ferry would typically be ac- companied by others constituting a team, consisting (for example), in addition to himself, on the occasion of his 3- week trip to Venezuela in 1977, of seven others, includ- ing a production coordinator, a film director, a writer, a motion picture cameraman, and an electrician Although, on that occasion, Ferry recommended his friend or ac- quaintance Walter Dieterle-who figures prominently in events to be described, including Ferry's discharge in January 1981-for inclusion in that assignment, his rec- ommendation was not adopted because of Delterle's in- adequate experience. Dieterle started work with Wilding, also as a still photographer, around the beginning of 1964, perhaps as many as 10-13 years or so after Ferry. As of 1980, with Ferry and Dieterle the only still pho- tographers, overflow photographic work was handled by slide or still photographic technicians David Weiner or Ron Slaght, the only two others in the small photo- graphic unit or group under the supervision of Lanny Lentzer and subsequently, since around 1975, Charles Stewart, who also supervised layout and assembly em- ployees Of the location or off-premises photography, Ferry continued to do more than Dieterle It was Charles Stewart who responsibly directed the four members (i e, Ferry, Dieterle, Weiner, and Slaght) 4 The Ford photographic, account alone generated around $8 million per year, accounting for only about half of the photographic unit's work- time 5 The terms "photographic" and "slide film" are used interchangeably 203 of this small photographic group, Stewart who usually assigned or parceled out work (although to an extent the men themselves decided or worked out among them- selves, informally depending on other tasks on hand, who was or were specifically to do what), and Stewart alone who authorized overtime or time off for members of this small group, Stewart having been announced by the Company as "in charge of the photographic depart- ment" to succeed Lentzer, and Stewart remaining such until the time of Ferry's discharge on January 5, 1981 Stewart was thus the supervisor, within the meaning of the Act, of the small photographic unit or group (as well as of layout and assembly employees) including Ferry.6 6 Early in the course of the trial counsel stipulated that Walter Die- terle as well as Charles Stewart are and have been supervisors of Re- spondent (i e, Maritz) within the meaning of the Act It is to be noted that this stipulation, as it expressly states, is limited to Dieterle's supervi- sory status under Respondent Maritz here It does not, of course, touch Dieterle's earlier status under Maritz' predecessor, Wilding Division of Bell & Howell As to the latter, although Respondent additionally con- tends that Dieterle also had that capacity prior to Respondent's takeover of Wilding, it has not met its burden of proof of establishing that by a preponderance of substantial credible evidence The credible evidence shows, rather, that during that earlier period (i e , prior to the Maritz Jan- uary 1981 takeover) Dieterle functioned at best at times perhaps as a group leader of the small group-although even that seems doubtful (As to the later period, i e , after the Maritz takeover and Ferry's discharge, as will be shown, Dieterle's raise and promotion to supervisor were tied to his resignation from the Union of which he and Ferry had been mem- bers for many years, covered by a subsisting collective-bargaining agree- ment, and that promotion and union resignation of Dieterle were de- signed and timed by Respondent to support its plan to bring about the discharge of Ferry and to claim then as well as here that it was under no obligation to discuss or bargain with him or the Union, even under the collective-bargaining agreement, since with the promotion and union res- ignation of Dieterle the bargaining unit (consisting of Ferry and Dieterle) was reduced to only Ferry, and that Respondent was thereby freed of any obligation to bargain since it thereby became a unit of only one person (Ferry) While such actions partake of the character of a transpar- ently slick maneuver to attempt to evade the Act's requirements, they also ignore the status of these two employees (Ferry and Dieterle) at the critical times here involved, i e , January 3, 1981, the date of Respondent Maritz' acquisition of Wilding Division, and January 5, 1981, the date of Ferry's discharge, since as of those dates Dieterle had neither resigned from the Union nor been promoted to supervisory status Dieterle himself testified that, under Respondent's predecessor Wilding Division, Ferry as well as Dieterle had the job title of " cameraman/- director"-the collective-bargaining agreement classification of both of them Dieterle further testified that although his business cards under Re- spondent's predecessor read cameraman/director, his cards under Re- spondent for the first time eventually identified him as "Supervisor of the Photographic Department " I credit Ferry's unconiradicted testimony that nobody ever told him that Dieterle was his supervisor or was au- thorized to give him orders he was required to obey A 20-year old "confidential" intraoffice memorandum, dated in 1963- here singularly dredged up, referring to Dieterle under a caption "super- visor" (without vesting or denomination of any powers to support such a possible characterization, whether or not authorized or eventually carried out-which has not been established) of the Cadieux darkroom operation, describing Dieterle as nonunion-is hardly persuasive evidence to the contrary Among other things, there is nothing to indicate Dieterle had any real authority over Ferry, and Dieterle later became "union" and other organizational shifts and changes came about in the miniscule 4- man photographic unit Furthermore, Respondent's own witnesses conceded that Ferry-who was Dieterle's senior by at least 10 years-had the same job title as Die- terle under Wilding Division Respondent's own "Prior to 1981" organi- zational chart (R Erh 17) does not identify Dieterle as a supervisor, but lists him in the same manner as Ferry Even Respondent's witness Charles Stewart, its (as well as its predecessor Wilding Division's) photo- graphic slide department manager, characterizes Dieterle , under Wilding Continued 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "1980 was a very unsual year in the sense that there seemed to be no let up [in work and overtime]. It [over- time] was continuous . heavy and continuous . . [1979] was another very busy year . [1978] was a good year also " (Credited testimony of Ferry, substanti- ated by Respondent's own witnesses and exhibits, as shown infra, including fn. 27 ) During those years-1978 through 1980-Ferry earned substantial sums in overtime pay 7 Through 1980 and to the time of Ferry's discharge (January 5, 1981)-as well as thereafter, as will be shown-there was no falling off of photographic work. The entire year [1980] was extremely busy- summer, fall It just seemed to be never ending. There was no time to finish my vacation which I was told I must complete [Credited testimony of Ferry.] Respondent concedes, by its letter of June 23, 1981, to the Board's Regional Office that, at the time of Ferry's discharge. Ferry was not laid off for lack of work on January 5, 1981. [G.C Exh. 7, p. 3.] The credited proof shows this statement by Respondent to be true, and I agree and find that it is true. Nor was Ferry laid off for lack of work prior to January 5, 1981 (with one possibly brief occasion, through error recti- fied), and I so find. Nor was he not hired, reemployed, or recalled to work after January 5, 1981 (as shown below) for any lack of work, and I so find. In that year (1980), Ferry spent 25 to 40 percent of his working time in photolab work, including operation of a color processor and "ReproMaster" machine, "for days at a time" Ferry more than amply had and has the knowledge, experience, and versatility to do any kind of work, photolab or other, in the photography unit. No serious question is raised concerning the quality of Ferry's work performance during his 30-year work tenure with Respondent's predecessors, and I find that during all of that time he was at least a highly competent and satisfactory employee. Ferry has been a member of Chicago Local 666 of the Union since around 1953. That Union encompasses, in its membership, motion picture cameramen, video camera- men, still photographers, and slide film photographers At employee meetings convoked in December 1980, presided over by Wilding Division (and subsequently Re- spondent Maritz' Southfield) Executive Vice President and General Manager Wallace W Kraft, to "dispel all Division, as merely what he calls an unofficial supervisor, never officially designated or identified as a real supervisor because he was union person- nel Stewart also concedes that Ferry, under Wilding Division, had the same job title, as well as the same pay, as Dieterle, that Dieterle had no power to hire or fire, and that there was nothing in writing, even in Wilding Division's own records, identifying Dieterle as any kind of su- pervisor Under all of these circumstances, while accepting the fact that Dieterle was elevated to at least nominal supervisory status under Respondent Maritz, there is hardly persuasive basis for finding he also had that status under Respondent's predecessor, Wilding Division I e, on top of his $25,000 base pay, Ferry earned around $11,000 in overtime in 1980, and around $8,500 in each of 1979 and 1978 rumors" which had been circulating since around the previous June concerning acquisition of Wilding Division by Maritz (Respondent here), reassured the employees that takeover by Maritz would be in the employees' in- terest because of Maritz' know-how and financial stand- ing, perhaps close to a half billion dollars from the wholesale jewelry and later the "promotional" business; and that Maritz would "keep [this Southfield facility] intact," in contrast to other potential successors who would have cannibalized it.8 At one point, however, Kraft, after introducing a spokesman from Maritz' St. Louis home office, directed all employees who were union members to leave. Respondent's witness and vice president of Human Resources Goring explained at the trial that this was because the ensuing discussion was about subsequent increased benefits for nonunion em- ployees. Accordingly, Ferry and Dieterle-the only members of Local 666 (photographers)-left, together with perhaps 8 or 10 others Dieterle's request for a copy of a brochure about to be distributed was declined by Personnel Director Bosse on the basis that Dieterle would be given one later Wally Kraft made the announcement that all 300 or better employees would be transferred over to the new company of Maritz when they bought it 9 On November 10, 1980 (by letter dated that day, as modified by letters of November 2, and December 2 and 22, 1980), Respondent had agreed to purchase and to assume "certain .. . liabilities" of Wilding Division of Bell & Howell Company consisting of or including its Southfield facility, effective January 3, 1981. Purported to be excluded was "the labor contract with the Camera- man's Local No. 666," Charging Party here and cover- ing Ferry There is no evidence that the Union was a party to that transaction or the negotiations preceding it. At the time' Respondent succeeded to the Southfield assets of its predecessor, Wilding Division, including the photographic studio and facilities there, it also succeeded to its personnel including its managerial and supervisory hiearchy, 10 and its entire photographic group. i t 8 None of the foregoing is in any way controverted by Kraft, who, without satisfactory explanation, did not testify at the trial 9 This likewise is wholly undisputed by Kraft, who, as indicated above, did not testify , and who, after the Maritz acquisition, continued on with the latter in his same capacity 1° Thus, Wallace W Kraft, executive vice president of Wilding Divi- sion and general manager of the Southfield facility, as well as his next in command , John Redmond Farley , and Charles Douglas Stewart , its slide department manager , and its personnel director Joan Bosse were retained in their former jobs and capacities 11 As will be shown, on January 5, 1981, 2 days after the formally ef- fective January 3, 1981 date of the takeover, Ferry, senior and one of the only two photographers, was summarily discharged for "lack of work"- totally untrue , as has been shown and found , as well as contrary to Re- spondent's own later letter to the Board's Regional Office, quoted above The resignation from the Union of the only other union photographer, Walter Dieterle, as will be shown, had meanwhile been solicited and sug- gested by Kraft, and Dieterle complied, receiving not only a "promo- tion" but a raise, and his wife Lorraine Dieterle received substantial pho- tographic assignments for work previously done by Ferry MARITZ COMMUNICATIONS CO 205 Respondent Maritz, a privately and closely held enter- prise, maintains around 30-35 locations from coast to coast throughout the United States, as well as in Mexico, the United Kingdom, and Europe Its vice president of human resources and witness Terry Goring describes its business as the "incentive business . . the communica- tions business which the Southfield business is a portion of the marketing research business . [and] the travel business," the "largest portion . probably 80 percent of our total volume" of which is "the incentive business . the development of incentive or motivation programs for major companies . . . . These are sales, contests or incentive program[s] to motivate salespeople to sell more product . [Maritz' Southfield operation] is basically the old Wilding organization " Of Respond- ent's annual worldwide sales of $280 million, $12 to $13 million is derived from its Southfield operations 12 In late December 1980-after the Maritz takeover of Wilding Division was set and signed-Walter Dieterle was called to the office of Wilding (and Maritz) Execu- tive Vice President and General Manager Kraft, who confirmed to him (as had been commonly bruited around before) that Maritz was "nonunion," did "not want a Union," had "no functions in the past with unions," and would not honor the subsisting collective-bargaining agreement with the Union to which Dieterle and Ferry belonged Again in early January 1981, when Dieterle asked Kraft about his situation, Kraft "told me [Dieterle] that they [Maritz] . . . didn't believe in unions" and "were not going to honor the [Union] contract," adding that Maritz "probably would prefer that you [Dieterle] relinquish your union association," and that although Dieterle's salary "hadn't been established yet," since Maritz "would not pay into any [Union] pension funds," Kraft would "talk to the [Maritz] people in St. Louis and see if he could get an increase for me [Dieterle], for roughly around $25.00 [per week]."13 And Dieterle's salary was in fact "retroactive to when the company was taken over by Maritz." And Dieterle also did in fact "cease[d] paying [Union] dues sometime in January 1981" and withdrew from union membership, Maritz having ceased, in contradistinction to its predecessor 12 Testimony of Respondent's vice president of human resources and witness Terry Goring 13 1 do not credit the testimonial denial of Dieterle, a self-contradicto- ry, evasive, interested, and unprepossessing witness, plainly bent on trying to save his own skin and to curry favor with his employer, that he told Ferry that Kraft had asked him to withdraw from the Union-unless his trial interlocutor or Dieterle was attempting to draw an overly sharp distinction between "asked" and "suggested," in the described context, while at the same time acknowledging that Kraft did indeed tell him that he would get "a raise," which Dieterle did in fact receive (retroactive to the date of the Maritz takeover) at or about the time he dropped out of the Union Construing Respondent's Point "III,A" in its posttrial brief as a re- newed application on its part to suppress the impeaching statement signed by Dieterle (at a meeting held with the blessing of Respondent's South- field Vice President and General Manager Kraft, Tr p 357), the applica- tion is denied for reasons explored and explained at length in the trial transcript As at the trial, I reject Respondent's view that the Miranda rule should apply in Board proceedings Furthermore, the results here would be the same regardless of Dieterle's written statement Wilding Division, to make pension payments under the subsisting collective-bargaining agreement 14 Former business representative, under Respondent's predecessor, of Stagehands Local 38 as well as of Studio Mechanics Local 812-both affiliated with IATSE and operating a hiring hall, but neither of them the Union to which Ferry belonged and belongs-Warren Richard Wilson testified without contradiction that Maritz has never entered into a contract with his unions Maritz' predecessor, Wilding Division, however, had had a col- lective-bargaining relationship with these unions for some 20 years, with the subsisting collective-bargaining agreement expiring in April 1981 When Wilson was in- formed by Kraft (Wilding Division's and also Maritz' Southfield general manager) on December 24, 1980- after the deal between Maritz and Wilding Division had been concluded-that Maritz was taking over Wilding Division and the Southfield facility and operation, Kraft added that Maritz "did not want to continue the relation- ship [with the Unions] " Wilson was unsuccessful in at- tempting to persuade Respondent's higher officials other- wise Those officials confirmed what Respondent, through Kraft, had already told Wilson After the Maritz takeover, it also did not retain in its employ the only union "freelance" permanently assigned stagehand (Allen, a member of Local 38) that its prede- cessor had been utilizing i 5 3. Circumstances of Ferry's discharge Ferry returned from his accustomed 2-week vacation in the latter half of December 1980-the only time his employer could spare him "because they were always busy"-on January 5, 1981 At no time had he been noti- fied not to report then, nor intimidation been given him that his job was to be terminated or was in jeopardy Upon reporting back for work at 7:30 a.m on that day, he heard from fellow employees (whom he identified by name at trial, and none of whom was called to contro- vert his testimony) that the company had been taken over by Maritz, and that his fellow union photographer Dieterle's continued employment was hinged on his "dropping out of the Union " When Ferry thereupon asked Dieterle whether he was dropping out, Dieterle re- sponded in the negative while also indicating to Ferry that both of them were to meet later with General Man- ager Kraft, who continued to be in command under the successor, Respondent here Since, however, they had not been called in by early afternoon, Ferry asked Die- terle why and again whether Dieterle was withdrawing from the Union Dieterle again replied negatively Later in the afternoon, Dieterle told Ferry that he was not withdrawing from the Union even though Kraft had asked him to do so. Around 3 45 p m, less than an hour and a half before quitting time, Ferry was called to the office of Supervi- 14 It is again emphasized that in no way is any of the foregoing con- troverted by Kraft, whose testimony Respondent elected not to adduce in this proceeding 15 Respondent did, however, retain Carraway, the only union "film di- rector," since there were no nonunion personnel available in that catego- ry See infra fns 38 and 42 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sor Stewart, who (also carrying on in that capacity under Maritz, as he had under its predecessor Wilding Division) bluntly announced to him, "I have some bad news for you. I have to lay you off." Ferry asked him why. Stewart answered, "Lack of work." Ferry replied, "Charlie [Stewart], you know and I know that is not the truth. There is more to it than that " Stewart responded, "Yes . . . it's out of my hands. It's a decision from up- stairs." Stewart reassured Ferry, however, that he "would be the first one back . . . . I don't care what they upstairs think about you. You would be one of the first people to come back and work for us . . . . 16 Bill, I don't like to do this, and it's out of my hands. It's a deci- sion from upstairs." Stewart indicated that he had been directed to break the news to Ferry because Vice Presi- dent and Manager Kraft did not want to be the one and had directed his next in command, Farley, to do it, but that Farley, likewise demurring, had in turn pushed it to Stewart, who accordingly added, "Here I am. Here we are." 17 Neither then nor at any time since then has Ferry received anything in writing indicating any reason for his termination; nor has Respondent elected to produce any records concerning his termination. Ferry was the only Southfield employee terminated, except for an unidentified data processing employee. About a week later, Ferry received by mail a pay- check for January 518 And, for practical purposes, i 9 he has not been recalled or rehired. Thus, after about 30 years in his job, Ferry was, at age 56, summarily terminated, during the pendency of a col- lective-bargaining agreement, on about 1 hour's "notice." Although Respondent now contends that it was its pred- ecessor-who did not here testify to that effect or that it would have terminated Ferry-and not Respondent who terminated Ferry, it is crytsal clear from the record and Respondent's own proof, and I find that-notwithstand- ing its transparent devices to mask this truth-it was Re- spondent and Respondent alone who made, was responsi- ble for, and carried out the decision to discharge Ferry and not to hire or reemploy him.20 Notwithstanding the reason (alleged lack of work) for Ferry's termination advanced by Stewart to Ferry- which Stewart acknowledged he had been told from higher up to make, when Respondent was called upon by the Board's Regional Office to explain why Ferry had been terminated, Respondent stated, by letter of June 23, 1981 (G.C Exh. 7, p. 3): Ferry was not laid off for lack of work on January 5, 1981. The author of this letter on Respondent's letterhead, its Vice President and General Counsel William R. McGreevy, unexplainedly did not appear at the trial to testify concerning the above statement, nor to explain, modify, change, correct, or dispute it in any way. There 16 This optimistic assurance was not fulfilled, as will be shown 17 Stewart's testimony at the trial is consistent with much of Ferry's foregoing version of his termination 18 Although, as stipulated , Respondent Maritz had formally succeeded to the business of its predecessor, Wilding Division, on January 3, the paycheck sent to Ferry for January 5 was that of Wilding Division (G C Exh 2) The predecessor Wilding Division could hardly be paying Ferry for work done by Ferry in its successor's (i e , Maritz') business 19 The rare, brief, and sporadic exceptions are described below 20 See further discussion, infra sec III,A,5 is no reason not to take Respondent's vice president and general counsel at his own word. I credit that statement, which is amply corrborated by Respondent's own records 21 Respondent Vice President and General Manager, Southfield Operations, John Redmond Farley (Kraft's second-in-command and at the time of trial his successor) acknowledged in his testimony that Ferry was not termi- nated because of dissatisfaction with the quality of his work; nor is there any persuasive or credible evidence that he was As has been noted, Ferry was terminated on January 5, 1981, 2 days after the stipulated date when Respondent here succeeded to the business of its predecessor, Wild- ing Division of Bell & Howell. Of the four employees in the photographic group, only Ferry and Dieterle were union members Weiner and Slaght were not. With Respondent's "suggestion" to Die- terle, just prior to Respondent's formal physical takeover of and succession to the Southfield plant, that, in connec- tion with that takeover it would be well for Dieterle to resign from the Union, this would have left Ferry as the only union member of the photographic group Ferry was by far the most senior member of that group and fully qualified to do any work required, lab as well as photo, as indeed he had. Yet it was Ferry-for practical purposes the only union member-who was summarily discharged by an avowedly antiunion employer; and also, as will be shown, since Ferry's discharge, only non- union members, rather than Ferry22 have been and con- tinue to be called in for work which Ferry was and is fully qualified to perform. 4. Situation after Ferry's discharge At the time of Respondent's takeover of Wilding Divi- sion, Respondent succeeded to the latter's property, fa- cilities, operations, and personnel at the Southfield (still photography and photolab), Romulus Road (audiovis- ual), and Cadieux Road (where still photos or slides were also shot), Detroit facilities, as well as in Toronto (Canada), Houston, and Chicago. Following Respond- ent's takeover, the Toronto location was transferred and absorbed into the Southfield location operation-thereby adding to its work, and the Houston and Chicago oper- ations were later transferred to Maritz' St Louis head- quarters.23 And, according to Respondent's (also, prior to Respondent's takeover, its predecessor Wilding Divi- sion's) vice president and general manager of Southfield operations, Respondent's witness John Redmond Farley (who succeeded Kraft-to whom Farley had been next in command under Wilding Division as well as under Respondent), after Respondent's takeover. "Wilding Di- vision continue[d] to report as a separate entity under the Maritz Communications Company." 21 Infra fn 27 22 With only a few negligible and brief exceptions , including comple- tion of a job started by Ferry, all in and not since the month following Ferry's discharge, as will be shown 23 According to Respondent 's witness Farley, Houston accounted for no more than 5 percent of Wilding's work at Southfield or Detroit, and Chicago for none MARITZ COMMUNICATIONS CO Shortly after his discharge, Ferry learned from Walter Dieterle that Respondent had offered to make it worth his while, including a pay increase of $25 per week, for Dieterle to withdraw from the Union. Thereafter, Die- terle did indeed withdraw from the Union and ceased to be a member as of April 1, 1981 (G.C. Exh 3) And Ferry also ascertained that Respondent was employing Dieterle's wife Lorraine Dieterle-not a union member- to do location and other photographic work which Ferry had been doing. Ferry was also told by Dieterle that they were busy, with enough for Dieterle to do without the travel jobs that were required. And Re- spondent's nonunion photolab technician David Isaac Weiner-taken over, as were all other photographic unit members except Ferry, by Respondent on its acquisition of its predecessor, Wilding Division of Bell & Howell- and still in Respondent's employ, but at no time a union member, testified carefully that shortly after the Maritz' takeover and Ferry's discharge, Walter Dieterle dis- played to Weiner a Maritz business card identifying Die- terle as "Photographic Supervisor," in place of his former status under Respondent's predecessor without identifying card There was no lull in the quantity of photographic and photolab work at the time of or following Ferry's dis- charge. On a base figure of 100, photolab employee Wemer24 estimates the overall quantity of work in the photographic department (all of which Ferry was quali- fied to do and in fact did) as follows.25 Base Year Comparative Quantity (Base-100) 197725 100 1978 100 1979 115 1980 110 1981 120 1982 140 And, since the succession by Respondent Maritz, the amount of photography work done by Weiner, as well as by photolab technician Slaght, has, in the case of each, "doubled." And new accounts, as well as more equip- ment, have been added at Southfield According to Re- spondent's high-level official and witness Farley, the comparative sales figures of the acquired and continued entity known as "Wilding Division" were, in 1981 and 1982, under Respondent Year Amount 1981 $11,500,000 1982 12,500,000 with about a 42-percent gross profit margin Even ac- cording to Dieterle, although 1980 was a slower year than 1979 for the photographic unit as a whole, photo- 24 We have been instructed that the fact that a currently employed employee-such as Weiner- testifies against the perceived interest of his employer should be weighed in his favor in assessing his credibility See, e g, Georgia Rug Mill, 131 NLRB 1304, 1305 fn 2 (1961), enfd as mod 308 F 2d 89 (5th Cir 1962), Wirtz v B A C Steel Products, 312 F 2d 14, 16 (4th Cir 1963) 25 This is the year Weiner started 207 graphic work picked up in both 1981 and 1982 More- over, according to Respondent's executive Farley (vice president and general manager of Southfield), Respond- ent's introduction of videodisc in 1981 caused no changes in the slide (still photography) department; indeed, to the contrary, it increased the still photography work since still "shots" were made from videodiscs or tapes. Also, since 1981, Respondent acquired the General Motors ac- count,26 some photographic work for which was per- formed at Respondent's Southfield location acquired from its predecessor here On June 23, 1981, Respondent's vice president and general counsel wrote a letter to the Board's Detroit Re- gional Office, in which he stated inter alia (G.C. Exh 7, p. 3, 1st par.), "Ferry was not laid off for lack of work on January 5, 1981 " Notwithstanding this, at the trial Respondent produced a mass of "statistics" which it represented, under oath, were from its records and accurately constituted its com- parative work levels to establish that Ferry was really laid off for lack of work-contrary to what Respondent's own vice president and general counsel had written to the Board's Regional Office on June 23, 1981. After counsel for the General Counsel had succeeded in dem- onstrating the patent mathematical inaccuracy of those figures in numerous significant respects, they were con- ceded by Respondent to be replete with error and were withdrawn from evidence by Respondent, to be replaced with "revised" statistics These self-serving alleged statis- tical "analyses," culled during the heat of trial for pur- poses of trial, do not, however, negate the force of the earlier signed admission of Respondent's vice president and general counsel, quoted above, that Ferry was not discharged for lack of work27-a fact which is otherwise 26 Prior to 1981, General Motors had been only an extremely occa- sional customer of Respondent's predecessor 27 For example ( 1) R Exh 4, a Wilding Division Sales recapitulation for 1969-1980 is not broken down to show Southfield photographic de- partment operations specifically, it does not show that the photographic department at Southfield had "diminishing " business, sales , or profit as compared to a representative span of previous years, and it indicates sub- stantially greater "total sales" in 1977- 1980 than in previous years (2) R Exh 5 is only for 1979, and it shows a larger net yearend total for Ferry than for Walter Dieterle (3) R Exhs 19 (replacing R Exh 6), 20 (re- placing 7), 21 (replacing 8), 22, 23 (replacing 9), and 24 (replacing 10), show only hours "absorbed" (i e , billed or "billable" as such) and not hours worked (4) R Exh 25, showing total sales for the Southfield oper- ation in 1981 and 1982, shows that they rose by some $3,000,000 from $10,775,359 to $13,982,528 Although this particular formulation purports to indicate a technical "accounting loss," as allegedly "given " to Bou- chard by somebody else and not otherwise substantiated here, Respond- ent's (and its predecessor Wilding Division 's) assistant controller and wit- ness Bouchard freely conceded that "operating profit and operating loss is usually in an organization [of] the size of Manz , an accounting formulation, depending on all sorts of variables and discrete factors and accounting artifacts [and therefore] not too meaningful " Thus, even if there is considered Wilding Division's sales for 1980-i e, $15,395,000 (R Exh 4), and subtracting therefrom its Chicago ($1,305,000) and Houston ($710,000) sales, which were after Maritz ' 1981 acquisition transferred to its St Louis headquarters operation , and even without allowing for Canada sales ($ 1,182,000) which were absorbed into the Southfield oper- ation, Southfield sales for 1981 and 1982 show a very substantial increase over those for the preceding years, as Respondent's Controller Bouchard acknowledged 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amply established by substantial proof of record which I credit, and which I find-particularly in view of Re- spondent's wholly unexplained failure to produce Mac- Greevy to explain or correct his written representation to the Board's Regional Office. Under the circumstances, I take MacGreevy at his word in stating that "Ferry was not laid off for lack of work on January 5, 1981 " Notwithstanding the foregoing, since his January 5, 1981 termination Ferry has not been rehired or to any significant extent at all been recalled to work.28 All have been for off-premises "location" photography-one was for a day to complete a job he had started for Respond- ent's predecessor.29 On these occasions, when he report- ed to Southfield, Ferry observed Dieterle's wife Lorraine engaged in work there which Ferry had previously per- formed, with both Walter Dieterle and Slaght out on "location" (also work which Ferry had previously per- formed). At no time prior to Ferry's termination had Lorraine Dieterle been called in to do work when Ferry was available , she had only occasionally and sporadically been called in as part-time "freelancer" to fill in to handle a work overflow when nobody of the regular staff of four was available. According to credited testi- mony of Respondent's photographic unit employee Weiner" after Ferry's termination the volume of photo- graphic work was so great that, even with Lorraine Die- terle called in, it would still have been necessary to call her (or some other freelancer) in even if Ferry had been retained in his job. 31 It is interesting to note that in Respondent's explanato- ry letter of June 23, 1981 (G.C. Exh. 7, p. 3, second paragraph) to the Board's Regional Office, in connection with the investigation of the charge eventually resulting in the complaint here, Respondent makes no mention whatsoever of its employment, much less the extent of its utilization of, Lorraine Dieterle after Ferry's termination, for work previously performed by Ferry or which Ferry was capable of performing . Such a glaring omission of a known material fact cannot be regarded as devoid of sig- nificance under the circumstances. At the trial, Respondent's (as well as its predecessor's) photographic department manager and witness Stewart conceded during his testimony that, after Respondent's takeover and Ferry's termination, Lorraine Dieterle has not only earned substantial moneys both from freelance photographic work and other work not offered to (and which she therefore did in place of) Ferry, but that she has also performed regular payroll work for Respond- 28 He was recalled on no more than, if any as many as, a half-dozen occasions, all in Januaty and early February 1981, within a month of his termination, each time for I day or less (perhaps once for 2 days) on a freelance basis , and never since then 21 On the assignment which ran into a second day , Ferry did not charge for the second day In the spring of 1982, Ferry was telephoned for advice on a pending work project , but he was not remunerated for his services 30 See supra in 24 31 Lest it be mistakenly supposed otherwise , when automobile sales (promotion of which comprised a large part of the work of Respondent's as well as its predecessor 's photograph department) go down, related ad- vertising activity does not also go down , on the contrary, as explained by Respondent 's executive and Southfield General Manager Farley , it goes up-as attested by Respondent 's own sales figures for the Southfield op- eration ent-t e, work absorbed in Respondent's regular basic payroll and not specifically billed to or directly paid for by any customer (This, of course, is precisely the work that Ferry had been doing.) Stewart further conceded that since Ferry's termination, Walter Dieterle has been performing the location photography previously per- formed by Ferry, as well as a substantial amount of over- time work; and that Respondent has utilized not only Lorraine Dieterle but various others-only nonunion, it would appear 32-for photographic work previously per- formed by Ferry, without offering Ferry that work. Even Lorraine Dieterle's husband, Walter Dieterle, grudgingly conceded that if Ferry had not been termi- nated, he could at least have done all of the work that Lorraine Dieterle was thereupon called in to do in Ferry's place. Respondent's photolab assistant Weiner33 estimates that the Southfield photographic department was 20 per- cent busier in 1982 than even in 1981. In 1982, Weiner was shown an organizational chart of the Southfield fa- cility by his higher supervisor Wentsel (photographic de- partment manager Stewart's superior), indicating that the Southfield photographic group is to be augmented or re- stored to four persons again-i e., what it was, and had been for many years, until the time of Ferry's termina- tion-at any time that Dieterle desired 34 On one occasion when Ferry was called in for a brief freelance day in January 1981, he was asked by Photo- graphic Department Manager Stewart if he would be willing to do lab work, and Ferry indicated he under- stood this would be at less than the going or outside rate of pay. Although Ferry expressed willingness to do so and Stewart responded, "Good, I'm glad to hear that," at no time has Ferry been offered such work, at any rate of pay, by Respondent 35 Respondent states that on each of the few (and long-since discontinued) brief occasions on which it has utilized Ferry's services since his dis- charge, in Respondent's own phrase- "Ferry was used each time without Union involvement" (G.C. Exh. 7, p. 3, third par ). According to Respondent 's witness Stewart, general manager of its as well as its predecessor's photographic department at Southfield, wage raises of employees there since Respondent's acquisition have been accompanied by the proviso that for certain employees there is to be no pay for required overtime ("For nothing, Your Honor"), and he agrees that this is in effect "a system for working unlimited hours" at the same pay (inconceivable under union conditions). At a spring 1981 employee's meeting, subsequent to Ferry's termination, Respondent's photolab technician Weiner 36-who had never been a 3 2 Lorraine Dieterle has never been a union member Since Slaght and Weiner , and also Walter Dieterle as of April 1 , 1981, are likewise not union members, since the forced exodus of Ferry 2 days after Respond- ent's takeover there has been no union photographic unit at Southfield Another freelance photographer utilized by Respondent for location pho- tography previously done by Ferry, i e , Hofer, is likewise not (nor has he ever been) a union member 33 See supra fn 24 34 Without explanation , Wentsel was not called to testify to dispute this Nor did Dieterle 3s All undisputed by Stewart in his testimony here 36 See supra fn 24 MARITZ COMMUNICATIONS CO union member and was retained in Respondent's employ-expressed the opinion that, in view of unwel- come changes in work conditions since Respondent's takeover, it might be desirable for the employees to have a union For this remark, Weiner was brought up sharply by his supervisor, Stewart, who cautioned him to "watch those type of conversations . . people from St Louis [i.e , at Respondent Maritz' headquarters] do not take kindly [to] that kind of conversation . . they do not like unions. 1137 Following a strike by union projectionists against Re- spondent in the summer of 1981, Southfield Vice presi- dent and General Manager Farley (who eventually re- placed Kraft there) remarked to Weiner that the Romu- lus (audiovisual) location, at which union projectionists worked and which had been included in Respondent's takeover from its predecessor, was about to be disposed of by Respondent. This testimony is uncontroverted by Farley in his testimony here. It is the General Counsel's contention that this, as well as other described openly and avowedly antiunion sentiments, together with Re- spondent's "savaging" of the Southfield photographic bargaining unit-i e , Ferry's precipitate discharge on about 1 hour's notice after 30 years of steady employ- ment, and Dieterle's related promotion and pay increase accompanying his employer-solicited or suggested resig- nation from the Union (Ferry and Dieterle being the only two union members in the photographic unit)- manifests a picture of an employer intent on winnowing out union adherents to avoid the necessity of bargaining collectively. On the other hand, it is Respondent's posi- tion that such matters are purely "entrepreneurial" deci- sions for Respondent alone, without need for discussion with any union representative and without governmental intrusion or scrutiny 5 Resolution and rationale William J. Ferry, a 56-year-old all-around professional photographer, was, after 30 years of continuous employ- ment as such with Wilding Division of Bell & Howell, Respondent Maritz' predecessor, summarily terminated on about 1 hour's notice, on January 5, 1981, 2 days after Respondent's takeover and succession to its predecessor, by prearrangement of Respondent with its predecessor (whose officials and supervisors have continued to serve Respondent in the same capacity in the same physical fa- cilities at the same location with substantially the same employees) because Respondent did not desire to bargain with Ferry's designated union bargaining representative under a subsisting collective-bargaining agreement For practical purposes, with only a few negligible brief ex- ceptions immediately after his termination and none for over a day or so, Respondent has failed and refused to rehire or recall Ferry to work in any capacity since then, although there has been much-no less than prior to Ferry's termination-such work to do, which Ferry was fully qualified to perform, but which Respondent has in- 37 Although Stewart , in testimonial demeanor a far less prepossessing witness than Weiner, denied or professed inability to recall saying this, I prefer, I believe, and accept Weiner's superior recollection and testimony as set forth above 209 stead assigned to nonunion personnel Thus and thereby Respondent has achieved its purpose of ridding itself of a tried and proven, loyal and excellent employee, for no discernible reason other than that he was a member of a union-a right guaranteed to him by Congress under the Act-and in order not to have to deal with his Union- another right of employees and a requirement imposed on employers by the law of the land, and which Maritz does not agree and has deliberately elected to evade and flout, resulting in the unfortunate necessity for the instant proceeding to ensure compliance by Respondent with a law based on national public policy of Congress', not Re- spondent Maritz', making Respondent contends that it cannot be held to have violated the Act in regard to Ferry, since it was Re- spondent's predecessor (Wilding Division of Bell & Howell) and not Respondent itself (Wilding Division or the selfsame "Wilding" entity) which discharged Ferry. (It will be recalled that Ferry's discharge took place 2 days after Respondent's formal takeover of the predeces- sor's Southfield plant, managerial/supervisory/work force personnel, operations, trade, and custom.) Al- though this contention ignores the conceded fact that, with insignificant exception, Respondent has steadfastly failed and refused (and continues to fail and refuse) to hire or employ Ferry since his discharge, the basic con- tention holds no water even as to the discharge itself. Respondent's own proof overwhelmingly establishes and is replete with admission that it was Respondent-and not its predecessor Wilding Division of Bell & Howell)- that made the determination to discharge Ferry It af- fronts believability for Respondent now to attempt to hide behind the contrivance of Respondent's own per- sonnel whom it had taken over from its predecessor- that the mechanical carrying out of the act of discharge dictated by Respondent was technically perpetrated by "Wilding Division" of Respondent's predecessor 2 days after Respondent's takeover of its predecessor with all of its predecessor's plant, personnel, customers, operations, and other assets as a going concern, and as a clear successorship thereto "The voice is the voice of Jacob, but the hands are the hands of Esau " Genesis 27 22-23. Re- spondent's witness Vice President of Human Resources Goring acknowledged at the trial that although "Wilding Division" was Respondent's designated instrumentality for carrying out Ferry's discharge It was our [Moritz] decision not to employ him." (Emphasis added) It is well rooted in the law of agency as well as in labor law that principals or successors, such as Respondent, cannot through such devices escape responsibility for their ac- tions, or, as here, for violation of the Act While Respondent was not necessarily under obliga- tion to retain Ferry in its employ, it could not lawfully terminate (or later not employ) him because of his union membership And Respondent could not, merely by pri- vate agreement with its predecessor as here claimed, shuck off an existing collective-bargaining agreement and obligation to continue to bargain thereunder, in the ab- sence of union surrender or relinquishment thereof. Cf, e g, Hudson River Aggregates, Inc., 246 NLRB 192, 197 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1979), enfd . 639 F .2d 865 (2d Cir 1981); Maintenance, Inc, 148 NLRB 1299, 1301 -02 (1964) According to Respondent 's own officials who testified here - "[Respondent Maritz' Southfield operation] is basi- cally the old [predecessor] Wilding organization " (testi- mony of Respondent 's Vice President of Human Re- sources and witness Goring ) and "Wilding Division continue [d] to report as a separate entitly under the Maritz Communication Company" (testimony of Re- spondent's Vice President and General Manager of Southfield Operations and witness Farley) It is well settled that where a respondent acquires a going business with its plant and other assets, including its custom and goodwill , and continues to operate it with its existing managerial/supervisory/work force as a con- tinuing operational entity without hiatus in operations, as successor thereof it continues to be obligated to bargain collectively with union representatives under a subsisting collective-bargaining agreement between the Union and the succesor's predecessor. Cf, e g , NLRB v Burns International Security Services , 406 U S. 272, 278, 279-281 (1972); Wiley v. Livingston , 376 U.S . 543 (1964), Makela Welding, Inc. v. NLRB, 387 F .2d 40, 46 (6th Cir . 1967), Jeffries Lithograph Co., 265 NLRB 1499 ( 1982); Aircraft Magnesium , 265 NLRB 1344 (1982); Johnston Ready Mix Co, 142 NLRB 437 ( 1963). There is here presented a situation not only of a tradi- tional successorship under which the successor is clearly obligated at least to bargain with the employees ' bargain- ing representative under a subsisting collective-bargain- ing agreement , but also a situation which eloquently be- speaks not only a violation of that obligation under Sec- tion 8(a)(5) and ( 1), but also a discharge in violation of Section 8(a)(3) and ( 1) of the Act We have here an es- tablished picture of a photographic department , covered by collective -bargaining agreement with a union, the senior professional photographer member of which had been in its continuous employ for 30 years, fully experi- enced in and qualified to perform any and all of its oper- ations, a department kept so busy that the photographer in question was not permitted to take his vacation until the final 2 weeks of the year, an openly avowed antiun- ion successor which brought about the discharge of and discharged that senior photographic unit union member on 1 hour 15 minutes' notice after 30 years of continuous employment, and relatedly promoted another but far junior photographer to purported supervisory status (in a resulting 3-man, including that supervisor , unit) with a $25-per-week raise coupled with his employer-induced resignation from the Union ; a successor which, while continuing thereafter to do substantially more photo- graphic business, nevertheless has (with scant and minis- cule exception , and that only during the month following his discharge) to employ or rehire the discharged union photographer, while hiring only nonunion help to do the work previously performed by the summarily discharged union photographer , and an employer who has uncon- vincingly assigned shifting, conflicting and false reasons for the discharged union photographer's discharge ("not laid off for lack of work"-G C Exh 7, p .3--vs. oral statement to employee and also contention at trial that he was laid off for "lack of work ," contrary to overwhelm- ing credited testimony and Respondent's own records- cf supra fn. 27). By long experience, specific know-how, and capability, Ferry could unquestionably have been continued to be utilized not only at Respondent's South- field photographic facility as previously, but also else- where in its far-flung corporate empire. Why did it not do so, or at least make Ferry such an offer? As it frankly and freely indicated, it wanted no unionists in its employ. 38 Respondent was well aware of Ferry's membership in the Union prior to and at the time of as well as subse- quent to Ferry's discharge, as well as that "On January 3, 1981 the [Union] bargaining unit at Wilding consisted of two (2) employees- Ferry and Dieterle."39 Respond- ent was further well aware that "On January 3, 1981, there was in existence a collective-bargaining agreement between the said Union and the Wilding Division recog- nizing the Union as the sole and exclusive bargaining representative for all Wilding employees [including Ferry and Dieterle] engaged in still and motion picture photography. 1140 It will additionally be recalled that, when photolab technician Weiner expressed the view at a spring 1981 employee's convocation with Photographic Department Supervisor Stewart that a union might be called for, Stewart sharply cautioned him to "watch those type of conversations . . . . people from St Louis [i e , Respondent Maritz' headquarters] do not take kindly [to] that kind of conversation . . . they do not like unions " Generations of Board experience with the realities of industrial relations have accumulated clues or factors useful to determination of whether discharge of, or other adverse personnel action against , an employee is dis- criminatory (Act, Sec. 8(a)(3)) or coercive, restraintful or in interference with (id. Sec. 8(a)(1)) congressionally de- clared rights of employees (id. Sec. 7) under the Act. Those clues or factors include: leadership or prominence in union or protected concerted activity by the affected employee (NLRB v. Sequoyah Mills, 409 F 2d 606, 608- 609 (10th Cir 1969), NLRB v. Council Mfg. Corp, 334 F.2d 161, 164 (8th Cir. 1964); the precipitate nature of the discharge in relation to the employer's discovery of the discharged employee's organizational activity (Tele- Trip Company, Inc. v. NLRB, 340 F.2d 575, 579-580 (4th Cir 1965); NLRB v. Council Manufacturing Corp., supra), the timing of the discharge (NLRB v. Sequoyah Mills, supra; Tele-Trip Company, Inc. v. NLRB, supra, NLRB v. Montgomery Ward & Co, 242 F.2d 497, 502 (2d Cir. 1957), cert. denied 355 U.S. 829 (1957)); the satisfactory job performance of the affected employee (NLRB v. Elias Brothers Big Boy, 325 F 2d 360, 366 (6th Cir. 1963)); the employer's continued need to have the affected em- ployee's job filled (NLRB v. Local 776, IATSE (Film 38 Respondent 's continued utilization of some unionized employees in certain categories is in no way inconsistent with its desire to purge its operations of union members Those exceptions are in categories so effec- tively o' universally union organized that Respondent would , for practi- cal purposes, be unable to obtain unionized help, e g , vehicle drivers (Teamsters) 19 Respondent's June 23, 1981 letter to Region 7 (G C Exh 7, p 2, fifth par ) 40 Id p 2, fourth par MARITZ COMMUNICATIONS CO Editors), 303 F 2d 513, 519 (9th Cir 1962), cert denied 371 U.S 826 (1962)); the replacement of the discharged employee (NLRB v. Superior Sales, 366 F.2d 229, 235 (8th Cir. 1966), NLRB v Davidson Rubber Co, 305 F 2d 166, 168-69 (1st Cir 1962), NLRB v. Local 776, IATSE (Film Editors), supra; NLRB v. Montgomery Ward & Co, supra); the disparate treatment of the affected employee (NLRB v. Nabors, 196 F 2d 272, 275-276 (5th Cir. 1952), cert. denied 344 U S. 865 (1952)); the employer's implau- sible explanations for his action (NLRB v. Harry F Ber- gren & Sons, 406 F 2d 239, 245-246 (8th Cir 1969) cert. denied 396 U S 823 (1969)), the employer's shifting "reason" for the discharge (NLRB v. Superior Sales, supra), and the employer's unexplained failure to persua- sively support his explanation for a suspect discharge through available records and witnesses (U.S. v Denver & Rio Grande Railroad Co, 191 U.S. 84, 91-92 (1902); NLRB v. Wallick, 198 F.2d 477, 483 (3d Cir 1952)). Congruence of such factors-substantially and signifi- cantly all or almost all here-warrants the conclusion that the employer's contention that the discharge was routine or otherwise not violative of the Act "fails to stand under scrutiny" (NLRB v. Dant, 207 F.2d 165, 167 (9th Cir. 1953) and cases cited). Cf. also NLRB v. Great Dane Trailers, 388 U S 26, 33-34 (1967) Since Respondent's currently assigned reason-i.e., "lack of work"41-for Ferry's discharge does not hold water as a reason for not continuing Ferry in his job, or for recalling him to its employ, what, then, was the reason? After careful and close review of the entire record, within the frame of reference of the surrounding circumstances and credited testimony, only one reason emerges in this case of a seasoned, experienced, capable, versatile, and faithful employee of 30 years' seniority; namely-in view of Respondent's strong union animus, so clearly demonstrated, and even voiced in so many ways-Ferry's union adherence; so that, through elimi- nating Ferry from its employment and its attendant re- duction of the photographic bargaining unit to only a single member (Dieterle), so as to avoid having to con- tinue to deal with the Union.42 The "icing" in this ploy was to procure Dieterle to drop out of the Union by keeping him in its employ with a raise of pay and "pro- motion" to "supervisor" over only two others in the re- sulting 3-person (including Dieterle himself) unit (already amply supervised by Stewart), thereby hopefully ridding itself of the Union altogether On the record as a whole, I find and determine that, as alleged in the complaint, William J. Ferry was dis- charged and not employed by Respondent because of his union membership and to avoid any obligation to bargain with the Union as required by the subsisting collective- bargaining agreement at the Southfield, Michigan facility 4' But cf supra, including Respondent 's own written statement to the Board's Regional Office (G C Exh 7, p 3) 42 In this connection and Respondent's Vice President of Human Re- sources Goring's testimony that Respondent did not honor Ferry's union contract because "the law does not recognize a one person bargaining unit," it is to be observed that upon and after its takeover of Wilding Di- vision here, Respondent did (as acknowledged testimonially by Goring) "take over" a union contract of a different union ("DGA"-Directors Guild of America) covering only one employee, i e , Carraway a "film di- rector " See supra fns 15 and 38 211 taken over by Respondent and where Ferry was em- ployed, and that, except for those reasons and consider- ations Ferry would not have been discharged and would have been continued in his job. Cf NLRB v. Transporta- tion Management Corp, 462 U S 393 (1983), expressly approving Board's rationale in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S 989 (1982). B. Interrogation 1. Allegation and issue The complaint, by amendment allowed during the progress of the trial, alleges additionally that on January 3, 1983, Respondent interrogated Ferry in violation of Section 8(a)(1) of the Act. Respondent insists that its conceded interrogation of Ferry on the occasion in ques- tion was not in violation of the Act. 2 Facts On January 3, 1983, during the pendency of the instant proceeding, Respondent through its counsel43 took the deposition of Ferry in a civil suit which Ferry had com- menced against Respondent and Bell & Howell in the United States District Court, Southern Division of the Eastern District of Michigan, for damages for unlawful discharge in violation of statute (other than the Act) and common law. The deposition was not taken on notice to the United States or the Board, and Ferry was represent- ed therein only by private counsel. There is no claim or explanation here of any necessity for the timing of that deposition in relation to the pendent nature of the instant proceeding and trial. The deposition which was not con- cluded but continued sine die, encompassed about 5 hours At no time before, during, or in connection with it was Ferry given any "Johnnie's Poultry" reassurance.44 Respondent's counsel there interrogated Ferry extensive- ly concerning various aspects of the instant proceeding (then pending before me), including Ferry's transactions, written communications and statements, and even con- versations, between him and the Board's counsel han- dling the instant proceeding before me, in respect to the instant proceeding. The General Counsel contends that this interrogation of Ferry by Respondent, insofar as it delved deeply into the instant proceeding, went unnecessarily and unreason- ably beyond the needs of the district court case and im- 43 The same counsel as its principal trial counsel herein 44 As the Board recently reminded in CNA Financial Corp, 264 NLRB 619 (1982) "Under Johnnie's Poultry Co, 146 NLRB 770 (1964), and its progeny, the Board has long held as it recently did in Kyle & Stephen, Inc, 259 NLRB 731, 733 (1981), that, in preparing its defense in an unfair labor practice proceeding The employer must follow specific guidelines in questioning the em- ployee to avoid incurring 8(a)(1) liability Among other require- ments, an employer must tell the employee the purpose of the ques- tions, assure the employee freedom from reprisal , and secure the em- ployee's voluntary participation These safeguards are designed to minimize the coercive impact of employer interrogation and are applicable irrespective of the employer's intent to coerce, the extent of the questioning or number of employees so interrogated, or the remoteness of the interrogation to alleged unlawful conduct 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD properly probed into the instant case, utilizing the garb and mechanism of the district court case to do what would otherwise clearly be violative of Section 8(a)(1) of the Act. To the contrary, Respondent appears to insist that the district court action provided in effect an abso- lute and per se unquestionable cover for such a far-rang- ing interrogation At the trial, during argument on the General Counsel's application, strenuously opposed by Respondent, to permit amendment of the complaint so as to include an allegation of an 8(a)(1) violation in the foregoing aspect, I expressed the view that I would not rule it out as a matter of law and that determination of the issue could well turn on the nature and extent of the interrogation conducted, considering the issues in the civil suit and the reasonable necessities of trial preparation therefor Al- though this view was and is apparently in no way shared by Respondent, after more careful consideration I am persuaded of the essential correctness of the view I ex- pressed at trial and therefore continue to adhere to it. Accordingly, it is necessary to examine and assess the scope of the interrogation in order to determine whether it may fairly be regarded as arguably relevant to the issues or the needs of trial preparation in the district court proceeding If not, the interrogation, depending on its nature and scope, could well be no different from any coercive interrogation violative of the Act, with no auto- matic and absolute per se immunity from a finding of violation of Section 8(a)(1) simply because it was con- ducted under the umbrella of another litigation. The two necessary tests, it seems to me, are (1) Was the interro- gation in the other case bona fide and reasonably or ar- guably relevant to the issues or trial preparation needs of that case, if yes, that is the end of the matter and no 8(a)(1) violation may be found 45 If not, however, then: (2) Was the questioning coercive or otherwise improper, so that, if it had been conducted elsewhere, it would be in violation of Section 8(a)(1); if no, that is the end of the matter and no 8(a)(1) violation may be found, but if yes, such a violation should be found. I do not share what appears to be Respondent's posi- tion (at least at times), that a party in effect enjoys open season to interrogate an employee with impunity so long as it is done under cover of other litigation.46 Particularly in view of the seriousness of the allegation involved, and the possible novelty of the contentions raised, I have painstakingly reviewed the deposition in question. It rather exhaustively covers the following sub- ject matter somewhat extensive delving into the current photograph/performing arts/ media-related employment of Ferry's two young sons, Respondent's counsel expressly 41 I cannot subscribe to the view that even if the interrogation was bona fide and relevant and, indeed, even highly material, to issues in the other cases, the interrogation could nevertheless be violative of Sec 8(a)(1), whether or not meriting remediation under the Act 48 I do not accept Respondent's distinction between litigation started by an employer for the express purpose of serving as a vehicle for such interrogation, and litigation started by the employee against the employ- er Employees have the right to commence litigation, by exercising that right they do not relinquish the Act's protections (neither for themselves nor for other employees within the Act's protection, nor in extinction or dilution of the public interest and statutory obligations of the Board), nor make themselves fair game for vandalization stating his intention to question Ferry concerning the in- stant NLRB proceeding; inquiring into whether Ferry has applied for social security benefits or filed a workers compensation claim, whether Ferry has ever testified anywhere in any case, eliciting that Ferry's garage was once broken into, and thereupon pursuing the circum- stances of that theft, whether Ferry was ever "arrested" or "charged," and thereupon pursuing the circumstances involved in a traffic ticket, Ferry's military service; Ferry's education; details of all employments of Ferry since high school; the circumstances of Ferry's com- mencement of employment with Wilding in 1950, Ferry's union membership in detail now and since 1951; Ferry's membership in "any other types of organizations"; Ferry's employment in detail since his January 1981 dis- charge;47 extensive interrogation concerning the circum- stances of his January 5, 1981 discharge; the status of Ferry's Union and its membership support at the South- field facility;48 conversations with other employees re- garding the union situation in connection with Respond- ent's takeover, even during lunch, Dieterle's conversa- tions with Ferry concerning Dieterle's intentions with regard to withdrawing from the Union and concerning assurances Dieterle had received in connection there- with, the circumstances of Dieterle's joining the Union around 1965 and his admissions concerning his 1981 withdrawal therefrom and Maritz' solicitation thereof; Dieterle's assurances of substantial freelance work for Ferry from Maritz, which never eventuated, rather ex- tensive questioning concerning the amount of union dues and assessments after as well as before Ferry's dis- charge;49 rather extensive interrogation regarding Die- terle's withdrawal from the Union; Ferry's conversations with Kraft and Stewart since Ferry's discharge; Ferry's conversations with Weiner (a General Counsel witness here, still in Respondent's employ at the time of this trial) at the NLRB Regional Office; Ferry's conversa- tions with fellow employee Slaght, as well as with Lor- raine Dieterle, since Ferry's discharge; detailed interro- gation concerning the extent of Lorraine Dieterle's ob- served work activities at Maritz following (as well as prior to) Ferry's discharge here; the extent of Ferry's overtime work in the year prior to his discharge; Walter 47 While seemingly irrelevant or peripheral to the district court litiga- tion, this would directly impact upon any backpay liability in a backpay case supplemental to the instant proceeding-an inquiry impermissible even in the instant case 48 During this phase of the interrogation-involving a subject highly violative of the Act and seemingly in no way related to the district court case-when pressed to disclose the names of his informants, Ferry pro- fessed inability to identify other than one or two of those employees, adding that if he was wrong "it would put them in a bad light, and I don't want to sit here and do that to anybody " Respondent 's counsel nevertheless continued to press Ferry to reveal the identities of the em- ployees who had informed him that Dieterle "had been asked by Maritz to withdraw from the Union," and specifically asked Ferry whether David Weiner-still in Respondent's employ and who testified as a Gen- eral Counsel witness adversely to Respondent in the instant proceeding- had been one of his informants 49 Question by Respondent 's counsel at this point (Ferry deposition, G C Exh 4, p 66, 11 6-8) "So, there was a substantial economic incen- tive for Walt Dieterle to stop his membership with the Union, correct?" It is indeed difficult to see any linkage of that subject with the district court case MARITZ COMMUNICATIONS CO Dieterle's alleged supervisory status and Stewart's super- visory status; organization of the slide, photographic "multimedia" department, further extensive interrogation (by associate counsel) regarding details of Ferry's union membership and dealings with any union business repre- sentatives since the early 1950s, and his and union meet- ings with employees; the union collective-bargaining agreements and Ferry's role in their negotiation, includ- ing his statements at union meetings; details of grievances under the collective-bargaining agreement; union repre- sentation of other employees at Wilding and Maritz; de- tails of Ferry's layoff and of his discussions thereof with his union business agent and the Union's attorneys;50 dis- cussions at union meetings concerning Ferry's layoff; de- tails of the settlement with Bell & Howell of an NLRB proceeding (against Bell & Howell) other than the in- stant proceeding, including investigative contacts of NLRB agents with Ferry and conversations between Ferry and the NLRB investigators, as well as concerning affidavits signed by Ferry; minute details of Ferry's dis- cussions with the NLRB agents (and their identities) in- vestigating the charge in the instant proceeding and con- cerning the taking of his affidavit herein, including de- manding production of that affidavit; details of the inves- tigation and impediments to the progress of the instant proceeding in relation to Maritz' actions or cooperation therein and the identities of persons whom the NLRB in- vestigator in the instant proceeding whom the NLRB in- vestigator in the was contacting or endeavoring to con- tact at Maritz, conversations the NLRB investigator in the instant proceeding was having with Walter Dieterle and David Weiner (witnesses in the instant proceeding); the identity of possible employee witnesses in the instant proceeding (e g, David Weiner); details of conversations between Ferry and Linda Rabin Esq., counsel for the General Counsel in the instant proceeding, including Ms. Rabin's account of her investigative or trial preparation measures, covering discussions with Respondent, and also "anything that was submitted to the NLRB" (id., G.C Exh 3, p. 166, 11. 12-13) or to Ms. Rabin (id., G.C. Exh. 3, p. 167, 1, 5); trial preparations with Ms. Rabin in the instant proceeding, including what Ms. Rabin "told" him to say and not to say or to "emphasize as important facts to bring out during the testimony" at the instant proceeding-which had not yet but was about to come to trial (id p 169, 11. 3-4);5 i discussions of Ferry with Ms. Rabin (counsel for the General Counsel here) concerning Ferry's conversations with Respondent Manager Kraft and also concerning the extent of "free- so It is observed that during this questioning, Ferry's private counsel noted his objection on the record "I object to him [i e , Ferry] revealing any of the attorney-client privileged information that may have been con- veyed to him by his attorney or that may have conveyed back to his at- torney" (deposition, G C Exh 3, p 137, 11 16-19) and instructed Ferry not to answer such questions when they were persisted in by Respond- ent's counsel (id pp 138-140), also p 147, 1 24 "Continuing objection ") 51 At this juncture, the following occurred Q (By Respondent's counsel Opperwall) What did she [ Rabin] tell you [Ferry] not to mention) A (By Ferry) I don't know if I should really answer anything like that Q (By Opperwall) Well, you're here to answer questions today [G C Exh 3, p 168, 11 5-7 1 213 lance" work farmed out to others than Ferry after his discharge here but which had previously been done by Ferry, whether Ms. Rabin had discussed with Ferry any company records or other information, or whether Ferry had any knowledge of documentation concerning the "absorption" (i.e , direct billing or billable labor costs) of the photographic department while he was employed there; Ferry's sources of information concerning "free- lance" photographic work farmed out to others than Ferry after Ferry's discharge, and what Ferry told coun- sel for the General Counsel Rabin in this proceeding about that; what support Ferry had for his assertion that Maritz was antiunion; and other interrogation of Ferry in detail concerning the contents of the affidavit supplied by Ferry in the instant case to the Board's investigator and to counsel for the General Counsel here, including whether the words or thoughts were the investigator's rather than Ferry's, in the instant proceeding. The 187-page deposition of Ferry, which had com- menced at about 1:05 p.m. on January 3, 1983, was ad- journed at 5:50 p.m. to be resumed on an unspecified future occasion 3 Resolution and rationale A careful reading of the deposition in question, within the frame of reference of the issues raised by the plead- ings in the district court case in which it occurred, makes it crystal clear that much of the subject matter it covered has no conceivable relationship to the issues of the district court case and would not be permitted, since irrelevant, in the trial thereof. Indeed, a good deal of it is so utterly irrelevant that it raises serious questions as to the motivations or bona fides of the interrogators. At the same time, however, major portions of those matters, while utterly irrelevant to the district court case, would clearly constitute coercive interrogation in violation of the Act if they had not occurred under the supposed aegis or mantle of the district court case. I am unable to subscribe to what appears to be Re- spondent's counsel's theory that the mere fact that a dep- osition is conducted in a court case ipso facto provides open season for any kind of interrogation, even such as would, if conducted elsewhere, clearly be violative of the Act.52 While I am extremely reluctant to find a vio- lation of the Act within the framework of "depositional" questioning in another case, a careful reading of the "deposition" in question, as reviewed above. in terms of the issues in the other case, in my view constrains such a finding here.53 52 Could it, for example, seriously be contended that an employer who in the course of his testimony in a district court or other case irrelevantly explicitly threatens that he will never, under any circumstances, bargain with a Board-certified union , and that he will discharge any employee who joins a union, does not thereby violate the Act, on the theory that any utterance is, as a matter of law, totally immunized from accountabil- ity per se simply because uttered in the course of testimony in another proceeding? 53 At least Respondent's counsel's interrogation of Ferry concerning his conversations with counsel for the NLRB, an agency of the United States Government, properly serving as counsel also on behalf of Ferry as the Charging Party in the instant proceeding, constituted a tactic of highly dubious propriety, since counsel for Respondent well knew or Continued 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does the fact that improprieties are committed by a party's attorney immunize them from condemnation, or from accountability by the attorney's principal (his client), any less than if committed by any other agent. Indeed, perhaps they may for that reason be regarded as the more to be condemned, since the popular argument of unfamiliarity with the law, not infrequently advanced on behalf of laymen, may not seriously be advanced, par- ticularly by knowledgeable labor lawyers such as those of Respondent here Cf , e g , Preston Products Co , 158 NLRB 322, 336-343 and 348-350 (1966), enfd. 392 F.2d 801, 809 (D C. Cir. 1967), cert denied 392 U S. 906 (1968). Although Respondent urges vociferously that its abili- ty to defend itself in the district court action would be irreparably harmed if the described interrogation were held to have been in violation of the Act, by no means is this true. To begin with, the "damage" has been done and Respondent may utilize the offending portions of the deposition at the trial, if permitted to do so Further- more, however, as indicated, the offending portions lack relevance to the issues in that proceeding. Moreover, here, as in W. R. Grace & Co. v. Rubber Workers Local 759, 113 LRRM 2641 (1983), Respondent cornered itself by its own actions creating the very situation which it now decries. It is Respondent's problem to extricate itself from the consequences of its own deliberate actions. Cf. Learned Hand, J., in NLRB v. Remington Rand, 94 F.2d 862 at 872 (2d Cir. 1938), cert denied 304 US 576 (1938). "There is no constitutionally privileged method of harassing or punishing those who exercise rights pro- tected by sections 7 and 8 of the NLRA." Brennan, J., concurring in Bill Johnson's Restaurants v. NLRB, 113 LRRM 2647 at 2657-58 (1983). It is, accordingly, found that since Respondent's far- roving interrogation of Ferry in the described deposi- tional framework, in significant aspects so far exceeeded any reasonably relevant trial preparation needs of the case in which it occurred, and since it was unaccompa- should have known that such conversations were privileged and not dis- closable in the circumstances Here, once again , as in other aspects of the legal or "technical" management of the situation involving Ferry's dis- charge (e g , the contention that it was not Respondent , but its predeces- sor, who discharged Ferry), one may well imagine the indignant reaction of Respondent's counsel if Government counsel undertook, without ad- vance notification to and opportunity for Respondent's counsel to be present, a questioning of Respondent regarding its own discussions with Respondent 's counsel (The situation regarding a Government agent's preliminary investigatory contact with Dieterle , with Respondent's vice president and manager 's knowledge and acquiescence, and in no way in- volving any probing of Dieterle's conversations with Respondent's coun- sel, is clearly entirely different ) The fact that Ferry's private counsel at the deposition did not object to certain questions does not require alteration of the result here reached To begin with, he did object to certain lines of inquiry Moreover, objec- tions are customarily reserved for trial Furthermore, the United States Government (i e , the Board) was not a party to that proceeding , and the deposition was not on notice to the Government, which was hence not in a position or under obligation to object Finally, rights not only for Ferry but other employees as well as the carrying out of statutory obligations entrusted to the Board are involved in any invasion of the Act's protec- tions. Respondent's contention that Ferry's interrogation could not have been coercive or otherwise violative of the Act since he was no longer an employee of Respondent flies in the face of Sec 2(3) of the Act, which expressly defines an employee to "include any individual whose work has ceased because of any unfair labor practice " need by required safeguards and would, if not so occur- ring within that alleged depositional framework, clearly constitute coercive interrogation in violation of Section 8(a)(1) of the Act, that the Act was thereby violated Cf. Kyle & Stephen, 259 NLRB 731 (1981); Preston Products Co., 158 NLRB 322, 336-343 and 348-350 (1966), enfd. 392 F 2d 801, 809 (D.C. Cir. 1967), cert. denied 392 U.S. 906 (1968). On the foregoing findings and the entire record, I issue the following CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. By engaging and continuing to engage in the acts set forth and found in section II,A, supra, Respondent has discriminated and continues to discriminate in regard to the hire, tenure, and terms and conditions of employ- ment of employees, thereby discouraging membership in a labor organization, in violation of Section 8(a)(3) of the Act; and has interfered with, restrained, and coerced em- ployees in the exercise of their rights under Section 7 and continues to do so, in violation of Section 8(a)(1) of the Act. 3. By interrogating an employee on January 3, 1983, concerning his exercise of rights guaranteed by the Act, as set forth and found in section II,B, supra, Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 in violation of Section 8(a)(1) of the Act. 4. The foregoing unfair labor practices and each of them have affected, are affecting, and unless permanently restrained and enjoined will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent's affirmative defenses, set forth in its answer and amended answers, should be overruled and dismissed. REMEDY Having been found to have terminated the employ- ment of an employee and to have failed and refused to employ him, and also to have coercively interrogated him in regard to his exercise of his rights under the Act, Respondent should be required to cease and desist from those or other violations; and also to offer full and un- conditional reinstatement to the discharged employee to his former job and to make him whole, with interest, for any wages, overtime pay, accruals, bonuses, pension fund payments, and benefits (including vacations and vacation pay, and hospitalization and other medical benefits, in- cluding reimbursement for any expenses or obligations incurred by reason of any cancellation, withdrawal, lapse, or nonpayment of premiums thereon, by Respond- ent) lost or reduced by reason of said discharge, and with full restoration of seniority as though said discharge had not occurred, all as determinable in a supplemental backpay proceeding if necessary. Sums and interest due should be computed as explicated in F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). All references in Respondent's records indicating discharge or nonemployment of William J. Ferry about MARITZ COMMUNICATIONS CO. 215 or since January 5, 1981, for cause (including but not limited to "lack of work") should be deleted, and he should be so informed in writing , and Respondent should be required to desist from so indicating to any prospec- tive employer, unemployment insurance office, reference seeker, or credit agency or character inquiry. Respond- ent should also be required to preserve and make avail- able to the Board's agents its books and records for back- pay and compliance determination purposes; and to post the usual notice to employees . In view of Respondent's calculated, deliberate, serious, and pervasive violations of the Act in the discharge and nonemployment of Ferry, which thrust at "the very heart of the Act ,"54 Respond- ent should also be required to cease and desist from fur- ther violation of its provision.5s [Recommended Order omitted from publication.] 54 A J Krajewski Mfg Co, 180 NLRB 1071 (1970) 55 NLRB v Entwistle Mfg Co, 120 F 2d 532, 536 (4th Or 1941)