East Side Shopper, Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1973

204 N.L.R.B. 841 (N.L.R.B. 1973)

EAST SIDE SHOPPER , INC. 841
East Side Shopper, Inc., Tri-County Printers, Inc., Cir-
culation Service , Inc., d/b/a Dawn (Detroit Area
Weekly Newspapers , Inc.) and Newspaper Guild of
Detroit, Local 22, The Newspaper Guild, AFL-CIO.
Cases 7-CA-9567, and 7-RC-11174
July 9, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On February 20, 1973, Administrative Law Judge
Benjamin B. Lipton issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, the General Counsel
filed cross-exceptions, and the Charging Party filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order,' as modified herein.
Although not alleged by the General Counsel in the
complaint, the Administrative Law Judge found that
statements made by Ben and Charles Nathanson to
employees on April 21, 1972, amounted to implied
threats of job loss violative of Section 8(a)(1) of the
Act. We do not agree.'
The statements were made in the context of de-
scribing the Company's poor financial condition and
were predicated upon what might happen if "unneces-
sary wage demands" or "unreasonable demands"
were made by the Union on the Company. In our
view , these statements were a lawful exercise of the
Respondent's right of free speech protected by Sec-
tion 8(c) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, East Side
Shopper, Inc., Tri-County Printers, Inc., Publishers
Circulation Service, Inc., d/b/a Dawn (Detroit Area
Weekly Newspapers, Inc.), East Detroit, Michigan, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as so
modified:
1. Delete paragraph 1 (a) and substitute the follow-
ing:
"(a) Coercively interrogating employees concern-
ing their union activities and those of fellow employ-
ees; offering, promising, granting, or newly
announcing wage increases or conditions of benefit to
employees to influence their union activities and sen-
timents."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the election conducted
on June 13, 1972, be set aside, that the petition filed
therein be dismissed, and that the proceeding in Case
7-RC- 11174 be vacated.
1 We agree with the Administrative Law Judge that the Respondent did not
prove that its financial condition in May 1972 was so critical that it required
the Respondent to institute this reorganization which cost three of its editori-
al employees their jobs In doing so, however , we do not rely, as did the
Administrative Law Judge , in part, on the fact that the Respondent expended
money engaging the services of labor relations attorneys to advise it in this
case.
2 Chairman Miller would not find the announcement of vacation pay for
part-time employees on April 25 , 1972, violative of Sec 8(a)(1) of the Act
The decision to grant vacation pay was made before the advent of the Union
and, in his view, the conception of this benefit being legitimate , a normal
delivery was equally legitimate . See his dissent in Tommy's Spanish Foods,
Inc, 187 NLRB 235, adopted by the Ninth Circuit in N L.R B v. Tommy's
Spanish Foods, Inc, 463 F.2d 116 (1972), and Rennie Manufacturing Company,
Inc, 202 NLRB No 152.
2 While Chairman Miller agrees that a bargaining order is appropriate
herein , he would, for the reasons stated in his separate concurrence in United
Packing Company of Iowa, Inc, 187 NLRB 880-881, predicate his remedy
solely on the extensive 8(a)(1) and (3) violations found herein.
° Members Jenkins would affirm the Administrative Law Judge 's finding
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a formal trial before an Administrative Law
Judge of the National Labor Relations Board at
which all sides had a chance to present evidence, it has
been found that we violated the law and we have been
ordered to post this notice to inform our employees of
their rights and to honor what we say in this notice.
WE WILL NOT coercively interrogate you con-
cerning your union activities and those of your
fellow employees.
WE WILL NOT offer, promise, grant, or newly
announce wage increases or conditions of benefit
to influence your union actiivities and senti-
ments.
WE WILL NOT lay off, terminate, or otherwise
204 NLRB No. 125
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminate against our employees , in order to
discourage membership of support for Newspa-
per Guild of Detroit , Local 22, The Newspaper
Guild , AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT refuse to bargain collectively with
Newspaper Guild of Detroit , Local 22, The
Newspaper Guild, AFL-CIO.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the rights guaranteed in the National
Labor Relations Act, which are as follows:
To engage in self-organization
To form , join , or help unions
To bargain as a group through representa-
tives of their choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL offer to Alan H. Mass , Robert Musial,
and Tom Baer reinstatement to their former or
substantially equivalent positions , without preju-
dice to their seniority or other rights and privileg-
es previously enjoyed.
WE WILL make whole the employees named
above for any loss of earnings they may have
suffered as a result of our discrimination against
them , with interest at 6 percent.
WE WILL , upon request , bargain collectively
with Newspaper Guild of Detroit , Local 22, The
Newspaper Guild , AFL-CIO, as the exclusive
representative of our employees in the appropri-
ate unit, and put into a signed agreement any
understanding reached . The appropriate unit is:
All employees , including editorial depart-
ment employees , commercial department em-
ployees , and mechanical department
employees , but excluding guards and supervi-
sors as defined in the Act.
EAST SIDE SHOPPER, INC.,
TRI-COUNTY P RINTERS, INC.,
PUBLISHERS CIRCULATION
SERVICE, INC, D/B/A DAWN
(DETROIT AREA WEEKLY
NEWSPAPERS, INC.)
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3200.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: In Case
7-CA-9567, the complaint by General Counsel alleges vari-
ous independent violations under Section 8(a)(1), (3), and
(5) of the Act. I In Case 7-RC-11174, pursuant to a stipula-
tion for certification upon consent election , a Board election
was conducted on June 13 in a unit comprising all employ-
ees of Respondent . Of 52 ballots cast, 21 were for the Union,
31 were against the Union, and 6 were challenged. The
Union filed timely objections . On August 21, the Regional
Director issued his report on the objections , and consolidat-
ed the complaint and representation cases for the purpose
of hearing before an Administrative Law Judge . The surviv-
ing objections 2 are broadly coextensive with allegations in
the complaint . Respondent generally denies the alleged vio-
lations . From November 13 through 16, a hearing was held
before me in Detroit , Michigan . Comprehensive briefs were
filed by the General Counsel , Respondent, and Charging
Party.
Upon the entire record in the cases , and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
Respondent maintains a place of business in East Detroit,
Michigan, where it is engaged in the publication, sale, and
distribution of newspapers. During the calender year 1971,
Respondent received gross revenues in excess of $500,000;
published advertising for nationally sold products; pur-
chased and received newsprint valued in excess of $50,000
from other companies, located in Michigan, which had re-
ceived such newsprint directly in interstate commerce. Re-
spondent admits , and I find , that it is engaged in commerce,
and that the Union is a labor organization, within the mean-
ing of the Act.
1 All dates are in 1972 unless otherwise shown . The complaint was issued
on August 21, based upon the Union 's original and amended charges filed,
respectively , on June I and 29
All but three of the objections were withdrawn with the Regional
Director's approval
EAST SIDE SHOPPER, INC. 843
11. THE UNFAIR LABOR PRACTICES
A. Essential Issues 3
Under Section 8(a)(1), whether Respondent-about April
15 engaged in coercive interrogations ; about April 10 creat-
ed the impression among the employees that their union
activities were under surveillance; on April 25 announced
the granting of vacation benefits to part-time employees; on
April 27 promulgated new rules and procedures governing
grievances and layoffs; on May 25 offered promotions and
pay raises to certain editorial employees as part of a depart-
mental reorganization contemplating a reduction in force;
and on May 26 terminated employee Tom Baer because he
refused to accept such proffered promotion and pay raise.
Under Section 8(a)(3) are alleged the terminations on May
26 of editorial employees Alan H. Mass and Robert Musial
as a consequence of the aforesaid reorganization.
Under Section 8(a)(5) the question presented is that of a
refusal to bargain on evidence of union membership appli-
cation cards preceding the election, with principal reliance
on the Gissel case ° to justify a bargaining order based on
the extensive unfair labor practices allegedly committed by
Respondent.
Under Objection 13, 5 -whether Respondent, between
April 25 and June 12, "made repeated implied and overt
threats of loss of jobs because of union activity."
B. Respondent's Structure and Hierarchy
Detroit Area Weekly Newspapers (Dawn) generally de-
scribes the parent company and its combined corporate
holdings. Dawn includes East Side Shopper (the main oper-
ating employer of the unit employees) and its subsidiaries,
consisting of The Gross Point Press, Inc., The Community
News, Inc. (owners of the building which houses Dawn's
operations), and Northwest Suburban Newspapers, Inc.,
(the assets of which were sold in 1971); Tri-County Printers,
Inc. (confined to printing functions); and Publishers Circu-
lation Service , Inc. (confined to distribution services). Re-
spondent publishes various newspapers under two headings,
Community News and East Side Shopper,-with designa-
tions thereon addressed to different localities in the Detroit
area. All these newspapers carry certain common features,
articles , and content , but differ in reporting local news af-
fecting the particular territory of distribution. As pertinent
here, the editorial department at East Side Shopper per-
forms the reporting, writing and editorial duties for about
10 publications of Respondent.
All the Dawn companies are commonly controlled, and
wholly owned by Ben Nathanson (90 percent) and his son,
Charles E. Nathanson (10 percent). The father is president
and publisher, and the son has been executive editor,6 with
supervisory authority over the editorial department, since
7 Only the editorial employees are immediately involved in the issues pre-
sented.
N L.R.B. v. Gissel Packing Co., 395 U S 575 (1969).
5 Other allegations in objections 6, 7, and 13, and directly encompassed in
the complaint.
6The father's salary is about $36,000, and the son's about $12,000.
he began employment with the Respondent in February
1971.7 William Ewald was the associate executive editor
during the material events. From August 1971 to April 21,
1972, an editorial board existed, consisting of Charles Na-
thanson and editorial employees Jerry Berndt, Jennifer Jar-
ratt, and John Semivan.8 This board had the power to hire,
fire, set wages, and control editorial coverage. Leonard J.
Snewajs is the vice president and general manager with
authority over all departments, particularly as to costs and
accounting, but excluding any control over "editorial poli-
cy." Department heads are the immediate supervisors of
classified, advertising, production, mechanical, and ac-
counting personnel.
C. Advent of the Union
Beginning in January, discussions took place among edi-
torial employees Mass, Baer , Musial, George Lathrop, and
Bruce Broader concerning efforts to obtain union represen-
tation . In early February, Mass met at the Union's offices
with James McMahon, international representative and or-
ganizer. In mid-February, a further meeting was held with
McMahon and the five employees, above. On April 11, a
leaflet announcing a general meeting to be held with the
Union was prepared on Respondent's premises by Mass
and Musial, and disseminated by them, with Baer's assis-
tance , on the windshields of cars in the parking lot and on
bulletin boards in the lunchroom. On April 13, the sched-
uled meeting was held attended by 25-30 employees of
Respondent. Plans and procedures were discussed for ob-
taining recognition, and membership application cards were
distributed. Some cards were signed by employees on this
date, and others were solicited and signed in the ensuing
days .9 On April 18, Musial prepared a leaflet, in part report-
ing on the union meeting of April 13, which he and Mass
distributed in the same manner as the union notice of April
11, supra. While Musial was typing the leaflet in
Respondent's office, and had just written the portion which
stated that-"This is to bring you up to date on what's
happening with our union,"-Charles Nathanson ap-
proached and read the typed material. He said, " I'm glad
to see you know what the difference between your time and
the company time is." Musial responded, "When you've
worked twelve hours yesterday and already eight today and
you've got six more to work, it all kind of runs together."
On April 24, Union Agent McMahon telephoned Presi-
dent Nathanson requesting recognition and offering to meet
and demonstrate majority status in a unit of all employees.
Nathanson refused. On April 25, McMahon sent Respon-
dent a formal letter confirming the phone conversation, and
on the same date filed an election petition with the Board.
As of April 25, the Union had 37 signed cards in an agreed
unit complement of 57 employees, of whom General Coun-
sel reserved the position, not litigated, that 2 were supervi-
sors.
"Earlier in April," Charles Nathanson told Snewajs that
7 Theretofore, he was a graduate in sociology, a music teacher at universi-
ties, and , for a while, the sole staff on a weekly opinion newsletter.
8 It is not clear whether these names specified by Musial constituted the
full editorial board.
9 A few were signed on April 12
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he knew the unionization effort had come from the editorial
department . On April 21, at a meeting called by Respondent
with employees in the circulation department , Charles Na-
thanson stated that Alan Mass was "one of the instigators
... behind the union ." 10 In early May, Mass and Musial,
acting for the Union, conferred with Snewajs to establish
the election date , of June 13.
D. Restraint and Coercion
Employees and supervisors in various departments work
in a large open room at the East Side Shopper premises. In
February 1971, when Charles Nathanson commenced em-
ployment , he regularly occupied a desk in the same room.
Some months later, he moved into an enclosed office-from
which the desks of all but one of the editorial employees
could be observed . However, he continued to spend periods
of time in the outer office discussing matters with individual
employees . At the beginning of 1972 , he took "sabbatical"
leave from the job to pursue certain graduate studies, al-
though he maintained contact with the office and spent
about a day each week on the premises . As he testified,
"shortly after the first of April" he returned to his full-time
duties.
Interrogation
Baer testified that , on Saturday , April 15, Charles Na-
thanson approached him at his desk , stating-"I hear Alan
[meaning Alan Mass] is trying to get the Union in." Baer
responded "I wouldn't try to pin it all on Alan. A lot of other
people are involved ." Nathanson then asked "who specifi-
cally,"-to which Baer replied , "a lot of people in all of the
departments including myself ." Nathanson remarked that
he "wasn't against the union per se but he didn't think the
Guild would be the union for us"; if Respondent were
forced to have a union contract , it would be obliged to keep
"incompetent reporters," and it "did not need excess bag-
gage at that time."
Nathanson gave this testimony: He had not observed the
Union's notice on the election board (posted April 11) and
was told about it by a Semivan or Berndt the night of April
14. After coming to work on April 15, Baer was the first
person he saw , in the late afternoon . He told Baer he heard
about posting of the union notice , and inquired , "what's
going on about a union in here?" Baer answered, "it is
several of us . . . it is not just Al Mass , if that is what you
think." Nathanson further commented that he did not know
whether the Guild was the right union , but his one concern
then was whether it meant Respondent would have to keep
reporters it otherwise "would't keep because they weren't
competent." Questioned by Baer , he indicated that he did
not have any particular reporters in mind . Nathanson's ac-
count impressed me as improbable and unconvincing. Baer
is credited . I find that , by seeking to verify that Mass was
an instigator of the union movement and by asking Baer to
identify the employees who were involved with Mass, Re-
10 Credited testimony of employee Timothy J. Clancy. Also present were
Ben Nathanson , Snewajs, and the department head , Donald P . Zella. The
latter testified he did not hear such comment by "Mr. Nathanson."
spondent engaged in coercive interrogation violative of Sec-
tion 8(a)(1), as alleged."
Threats of Job Loss
On April 21, Respondent held a series of meetings with
employees in the various departments . With the editorial
group there were present Ben and Charles Nathanson as
well as Snewajs . Each sought to portray that the Company
was in poor financial condition .' As pertinent , Charles Na-
thanson stated that "if a union got in and made unnecessary
wage demands . . . management would be forced to reduce
the departments even more than they were ." Ben Nathan-
son told the employees that , if a union came in , it would
mean unreasonable demands made on the Company which
might necessitate the cutting of certain department person-
nel. He knew that union authorization cards were passed
out, and "it is still not too late" to ask for these back . If they
do, there is no way management would know if they did or
did not sign a card . And they could settle all their problems
internally within the family . It was his experience that
unions in many cases have forced companies out of busi-
ness .13 No study was made by Respondent of additional
costs, if any , it could entail if it had to recognize the Union.
In the Gissel case , 14 the Supreme Court articulated stan-
dards by which it may be determined whether an employer's
prediction of the possible effects of unionization is proper
and permissible.'
Thus , an employer 's rights cannot outweigh the equal
rights of the employees to associate freely , as those
rights are embodied in §7 and protected by §8(a )( 1) and
the proviso to §8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers , and the necessary
tendency of the former , because of that relationship, to
pick up intended implications of the latter that might
be more readily dismissed by a more disinterested ear
[A]n employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union , so long as the
communications do not contain a "threat of reprisal or
force or promise of benefit ." He may even make a
prediction as to the precise effects he believes unioniza-
tion will have on his company . In such a case, however,
the prediction must be carefully phrased on the basis
of objective facts to convey an employer 's belief as to
demonstrably probable consequences beyond his con-
trol. . . . If there is any implication that an employer
1 Blue Flash Express, Inc, 109 NLRB 591, and e g ., The Richman Brothers
Company, 157 NLRB 1666, 1681.
12 In the meeting with circulation department employees , Charles Nathan-
son also said Respondent "could not afford to have a union in there."
13 Based on the composit credited testimony of Mass, Musial , and Baer.
Ben Nathanson and Ewald did not testify . To the extent he was questioned,
Snewajs did not refute any of the foregoing . The version given by Charles
Nathanson is not accepted.
14 N L.R B. v. Gissel Packing Co., 395 U S 575, 617-18 (1969)
15 N.L.R.B. v. Varo, Inc., 425 F 2d 293,300 (C.A. 5, 1970); and see Bancroft
Mfg. Co, 189 NLRB 619, 622
EAST SIDE SHOPPER, INC.
may or may not take action solely on his own initiative
for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reason-
able prediction based on available facts but a threat of
retaliation based on misrepresentation and coercion,
and as such without protection of the First Amend-
ment.
In my view, the statements of Ben and Charles Nathanson
on April 21 impressed upon the editorial employees the
intended implication that, because of Respondent's asserted
financial difficulties, the effective designation of a bargain-
ing representative might well result in a "forced" reduction
of personnel. Applying the standards in Gissel, as well as
viable Board precedents, I find that these were predictions,
which Respondent conveyed to the employees in a context
of unmistakable animus toward the Union, which were not
derived from objective facts and were not "demonstrably
probable consequences beyond his control," but rather were
threats of retaliation based on misrepresentation and coer-
cion.
The complaint does not specifically allege such threats as
violations. As earlier noted, one of the election objections
here in issue alleges that, between April 25 and June 12,
Respondent made repeated implied and overt threats to the
employees of job loss. The petition was filed on April 25,
constituting the cutoff date prior to which conduct may not
be alleged as interfering with the election.16 Therefore, on
this evidence, no finding is made of election interference.
However, the holding of a violation is not precluded here by
the absence of a particular complaint allegation. The Board
has explicated, viz.:
It is also the practice to allow the General Counsel
considerable leeway in amplifying or expanding certain
details not specifically set forth in the complaint if they
accord with the general substance of the complaint. As
long as those details are fully litigated and offer no
element of surprise to the Respondent, they are usually
held to be a proper basis for an unfair labor practice
finding. However, when the General Counsel attempts
to prove, or the Trial Examiner makes a finding of an
entirely new cause of action or violation not covered in
the complaint, the Board has rejected such offer of
proof or finding.17
The evidence adduced is in accord with the general sub-
stance of the complaint and there is not involved an entirely
new course of action or violation.18 No objection was ad-
vanced to the admission of such evidence, taken during the
first 2 days of the hearing; there was no claim of surprise;
a substantial portion of such evidence is uncontroverted;
and the issue was fully litigated and argued in the briefs.
Accordingly, I conclude that, on April 21, Respondent
made implied threats of curtailing the editorial work force
to discourage the employees from joining the Union and to
16 Goodyear Tire & Rubber Co., 138 NLRB 1253
17 Stokley- Van Camp, Inc. and Bordo Products Co. d/b/a Stokley-Bordo, 130
NLRB 869, 872. And see, e .g. Granada Mills, Inc, 143 NLRB 957, 958, In.
1; Rocky Mountain Natural Gas Co, Inc., 140 NLRB 1191, 1192-3
18 Various independent acts of coercion are alleged under Section 8 (a)(1).
845
influence the withdrawal of their membership applica-
tions,-in violation of Section 8(a)(1).
As previously shown, on April 24, the Union orally made
its demand upon Respondent for recognition. On April 25,
Charles Nathanson, with Ewald present, held a meeting of
the editorial staff in which he announced certain changes:
The editorial board (having supervisory and editorial au-
thority) was dissolved. The employees were required to do
a story a day. They were to report to work at 8:30 a.m.,
unless they were covering a story, in which case they had to
telephone the office to furnish details of the assignment.19
Every morning Nathanson will meet with each reporter to
discuss his planned activities for the day. Every morning he
will personally open the mail and deliver the pertinent mail
to the particular reporter. Nathanson told the employees
that "the system we have been working under didn't work
out although he wished it had because it was much more
friendly and open and easy going." General Counsel specifi-
cally stated that these changes are not alleged as unlawful
conduct, and I deem it unnecessary to pass upon whether
violations would lie. The evidence is relevant to show the
timing of certain actions taken by Respondent in relation to
the critical factor of the employees' organizing activities.
Impression of Surveillance
This allegation depends principally on the undisputed
fact that, in April, after Respondent's knowledge of the
union drive, Nathanson moved from his private enclosed
office into the open editorial section and occupied one of
two desks adjacent to Mass and Baer. I am inclined to
accept as more plausible Musial's estimate that the move
took place about the time of the April 25 meeting, described
above, although the precise date is not crucial 20 Nathanson
gave as reason for the move his desire to establish a closer
working relationship with the reporters. On cross-examina-
tion, he admitted that one of the reasons was the "union
organizational situation." Baer testified that, thereafter, Na-
thanson "seemed to be more concerned about what I was
doing, about whom I was talking to on the phone, what I
was writing, and what I was saying on the phone. He would
just stop working while I was talking on the phone." It is
inferable that the main motivation for Nathanson's move to
place him closer to the work stations of the editorial em-
ployees was his awareness or suspicion of their union activi-
ties on company time. While Ewald, a supervisor, regularly
worked in the open editorial area, the employees might have
regarded such a move by their chief, Nathanson, coming at
this time, as intended to engage in surveillance. However,
the subjective reaction of the employees in this situation
cannot be controlling. Working time is for work; it is a
legitimate prerogative of management to observe and super-
vise the functions of employees during working hours. No
issue is raised that Respondent discriminatorily invoked or
applied any rules to restrain union solicitation or activity on
company time. Confining the holding to the circumstances
19 Theretofore, it is apparent that the reporters, spending time in the field,
were allowed certain discretion in observing office hours.
20 Charles Nathanson's testimony appears confused as to the timing of his
return from the sabbatical and his move into the outer office Baer placed
the move about April 20-22
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this case, I do not find the move by Nathanson was such
an extraordinary departure from the norm as would inher-
ently tend to intimidate the employees in the exercise of
their statutory rights . Therefore I find insufficient support
for the allegation that Respondent unlawfully created the
impression of surveillance among the employees.21
Vacation Benefits
On April 25, a memo was distributed by Respondent to
all the unit employees announcing that part-time employees
will receive paid vacations , pursuant to a formula which
existed for full-time employees . The document states that
the vacation policy was changed "last November" to in-
clude part-time employees . In November , at the usual time
of employee wage evaluations , Vice President Snewajs was
approached by Virginia Honecker , head of the classified
department , to grant vacation benefits to the part-timers in
her department. Within a few days he advised Honecker
that the request was approved to be effective during the
annual vacation period , normally beginning in June. Au-
thorized by Snewajs, she informed only the five part-time
employees in her charge . Respondent produced no records
to evidence the decision at this time . Snewajs conceded that
it was not then put into writing , the other department heads
were not informed, and that, prior to the April 25 memo, the
employees other than those told by Honecker were not
aware of such change in vacation benefits . In explanation
for the delay Snewajs averred that he was personally preoc-
cupied in November and December by the serious illness
and death of a relative residing at his home . Other reasons
were that he was heavily absorbed with accounting matters,
and that the vacation period would not commence until
June . It is difficult to be convinced on such evidence that
a decision extending benefits to all part-time employees was
effectively made in November but was not promulgated for
a period of 5 months. Be that as it may, the significant
aspect is that the first information as to these benefits was
not given to the general employee complement until the day
after the Union 's recognition demand and the day the elec-
tion petition was filed ; and the timing of this announcement
coincided with that of various other changes inaugurated by
Respondent, all of which were clearly precipitated by the
advent and challenge of the Union. Upon all the evidence,
I find these vacation benefits were announced at this time
to dissuade the employees from the desire for union repre-
sentation , thereby violating Section 8 (a)(1).22
New Rules on Grievances and Layoffs
On April 26 or 27, Respondent distributed to "all employ-
ees" a memo entitled "Policy relating to employee job secur-
ity." Indicating that some employees are concerned about
arbitrary dismissal or layoffs , it states and repeats the pur-
pose of providing assurance that "every employee is aware
of this policy and no one is separated from his or her job for
arbitrary reasons ." Essential provisions include discharge
21 See N L R B. v Monroe Auto Equipment Co, 368 F .2d 975, 1000-01
(C.A. 8, 1966), Precision Products & Controls, Inc, 160 NLRB 1119-20.
22 E.G , Stoner Lumber, Inc, 187 NLRB 923
procedures 23 Under the procedure for "Right of Appeal,"
an employee may discuss the matter in turn with the depart-
ment head, the general manager, and Publisher Ben Na-
thanson (who signed the memo).24 "Layoffs" will be made
on the basis of departmental length of service (or seniority).
However, a junior will be retained if he or she is the "only
employee who can perform the work that still must be
done." Recall will be in inverse order of layoffs. Prior to
discharge or layoff, an employee will receive 2 weeks' notice
or will be paid in lieu thereof. Under "Employee Sugges-
tions ," the Company wants to take the "fullest advantage"
of discussions with employees concerning better ways to get
the job done and "ways to solve employees' problems."
General Counsel also introduced a 16-page memo dated
April 1970 covering policies, benefits, and rules affecting
the employees. This comprehensive document contains vir-
tually none of the provisions of the April 26 memo. Mass
testified he had no knowledge, verbally or in writing, of any
type of policy on layoffs or appeal rights. There is no show-
ing that a seniority policy theretofore existed or was prac-
ticed for any purpose. And Respondent produced no
evidence that the rules and procedures described in the
April memo were previously in effect. Contrary to
Respondent 's argument , General Counsel amply carried the
burden of establishing that these were actual changes in the
employees' working conditions. My conclusion is that they
were substantial and beneficial changes, as with the others
found, supra, which were made by Respondent to influence
the employees' sentiments regarding the Union.25 The al-
leged violation of Section 8(a)(1) is sustained.
E. Termination of Baer, Mass, and Musial
On May 25 and 26, Respondent undertook to "reorgan-
ize" the editorial department , resulting in the termination of
these three employees. The substance of the reorganization
involved a rearrangement of certain duties and the designa-
tion of three employees as "local editors." Each local editor
would be responsible for laying out and editing his own
copy and making assignments to "stringers ." Stringers were
usually students employed on a casual or part-time basis to
cover stones or write articles, and were not reflected on the
regular payroll. Under the new system, "great reliance"
would be placed on the use of such stringers. In the past,
most of the reporters had taken care of one or two cities, had
not done layout, and had not assigned stringers. A local
editor would now handle three cities. Charles Nathanson
and his associate, Ewald, would also directly perform cer-
tain local editing functions. In effecting the reduction in
force, seniority would be followed. As of this time, there
were nine employees in the editorial department, with the
following dates of hire:
Shirley Armstrong-5/ 17/71
23 An oral warning and from one to three written warnings depending on
length of service and seriousness of the offense Willful misconduct, for
which an employee may be discharged immediately or receive a written
warning, includes, e g, theft , dishonesty, insubordination.
24 A passage here- "As far as I am conerned , employees have always had
this right and will always have it."
25 N L R B v Exchange Parts Co, 375 U S 405, 490 (1962), Tonkawa
Refining Co, 175 NLRB 619
EAST SIDE SHOPPER, INC. 847
Thomas Baer-5/14/71
Jerry Berndt-3/22/71
Bruce Broder-8/4/71
Jennifer Jarratt-6/7/71
George Lathrop-8/26/71
Alan Mass-8/30/71
Robert Musial-6/ 17/71
Doris Yata-8/ 1 /66
Yata was continued as the women's (or social) editor. Jar-
ratt, although allocated one of the three local editorships,
was actually assigned as the "entertainment, sports, and
special features editor." Berndt was unaffected as "the pho-
tographer." Armstrong was retained as "the proofreader."
Baer was offered a local editorship on May 25 as a "pro-
motion," with an annual pay increase of $1,000, and in-
formed he would be laid off if he failed to accept. The next
morning there were further discussions. Baer asked who
would remain in the department, and "was told some peo-
ple," i.e., Ewald, Jarratt, Broder, and himself if he accepted.
He refused the offer because it looked like "some kind of
reprisal against the union organizing," and the job "couldn't
be adequately handled by one person." On May 26, Mass
was laid off. At 6 p.m. on May 25, Musial was approached.
He testified: After referring to the financial condition of the
Company, Nathanson asked him if he had "given thought
to looking for employment elsewhere," and how long he
intended to stay at Dawn. He indicated he was not actively
looking for another job at the moment but would give con-
sideration to one, if offered, with better pay and greater
opportunity for experience. About 6:30 p.m. on April 26,
Nathanson explained the details of the reorganization, and
then advised Musial he was laid off because of the willing-
ness he indicated that he wanted to leave. The three avail-
able positions of "local editor" went to Jarratt, Broder, and
Lathrop, the latter two receiving substantial wage increases.
These actions on May 25 and 26 were taken by Respon-
dent with full congnizance of the organizational campaign,
the Union's bargaining demand, and the Board election
scheduled for June 13. Respondent's animus toward the
Union is well demonstrated by the contemporaneous viola-
tions found, supra. Included are the predictions of "forced"
layoffs based upon assumptions of unreasonable union de-
mands. The editorial department was known to Respondent
as the source of the union movement. No such reorganiza-
tions or any reductions were effected in any other depart-
ments . Thus, of some 55 employees in the appropriate unit,
the terminations happened to fall upon Mass , Musial, and
Baer , the most outstanding union advocates (with Mass
having earlier been singled out by Respondent as an instiga-
tor). Such a pronounced disproportion in the selection of
union adherents for layoff, and here especially of affecting
only the editorial department, is a significant consideration
of the type often recognized by the Board and the courts 26
In context of the present case, an objective of discouraging
union membership could effectively be achieved by termi-
nation of any combination of the editorial department em-
ployees, most of whom were in the Union. And seniority
26 E.g, Montogomery Ward & Co v. N L R B, 377 F 2d 452 , 458 (CA 6,
1967); Starlite Mfg. Co., 172 NLRB 68.
could be a convenient device to reach the individuals partic-
ularly desired for separation. But, indeed, such seniority was
not followed throughout the roster of editorial employees,
such as in the case of Musial.27 The fact that Baer rejected
the offer of "a promotion" and a substantial wage raise to
take one of the reconstructed jobs of local editor does not
necessarily serve to absolve Respondent of violation for his
layoff. The group reduction affected him in essentially the
same manner as it did Mass and Musial. The complaint is
quite sufficient in focusing upon the individuals terminated.
In substance and effect, the whole reorganization plan is
indicted as unlawfully motivated. General Counsel's theory
that Baer was protected in his refusal to accept such a
change from his existing employment to become part of a
discriminatory scheme would have validity, upon factual
support, under Section 8(a)(1) and (7) of the Act. In sum,
it is my judgment that General Counsel made out a strong
prima facie case of discrimination in the terminations of
Mass, Musial, and Baer.
Within this preelection period, when considered with the
unlawful changes in benefits and conditions, supra, the reor-
ganization and accompanying terminations would pre-
dictably have a forceful effect on the employees' free choice
in the election.28
[O]nce it has proved that the employer engaged in dis-
criminatory conduct which could have adversely af-
fected employee rights to some extent, the burden is
upon the employer to establish that he was motivated
by legitimate objectives since proof of motivation is
most accessible to him 29
Here, General Counsel has provided ample proof of
Respondent's antiunion motivation. 0 The burden therefore
was fully upon Respondent to show "legitimate and sub-
stantial business justifications" for its conduct.
Respondent offers the justification of economic and fi-
nancial difficulties as reason for the terminations at the time
they occurred. Having considered all the defensive evi-
dence,31 I find that it falls considerably short of sustaining
the burden of proof which shifted to Respondent.
The laborious history of the son, Charles, coming to work
for the father, the publisher, in February 1971, with guaran-
tees of a free hand to engage in his "experiment in journal-
ism" with the East Side Shopper; his stubborn resistance to
external and internal complaints over his controversial edi-
torialism (e.g., the quitting of carrier boys); his sudden
strong concern in May 1972 to halt the projected drain of
the company assets representing his father's "sole source of
income"; and the appearance of shifting to a more conven-
27 There is no contention that he wished to resign, and the standard applied
to him , which departs from the concept of seniority, was not invoked as to
all the others
28 Respondent must certainly have been aware that these were required
subjects of bargaining with a duly authorized representative of the employ-
ees
29 N L R B v Great Dane Trailers, Inc, 388 U.S 26, 34 (1967).
30 Where the employer's discriminatory conduct is "inherently distructive
of important employee rights, no proof of an antiunion motivation is need-
ed " Ibid
31 In substantial parts, the testimony on behalf of Respondent, and the
argument in its brief, appears highly attenuated, exaggerated, and lacking in
probity
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional editorial policy have not been demonstrated as hav-
ing any visible impact on Respondent 's financial condition
before or at the time of the terminations in question. Al-
though it is evident that Ben Nathanson , the chief executive
and virtual owner , was vigorously active in the multiple
Dawn corporations , he was obscured in the background and
not called to testify, while in presenting Respondent's evi-
dence the son, Charles , is clothed with vital decision-making
powers ostensibly to save the entire business . However, it
was drawn out that , at least prior to April 21 , Respondent
was consulting with its law firm herein , retained especially
for labor relations . The record is replete with selective inter-
nal dialogues between Charles Nathanson and other mem-
bers of management in an effort to establish a subjective
motivational defense on the part of Charles Nathanson.
These internal discussions , with scarce probative support,
are largely self-serving and unpersuasive . There is only one
entity of Respondent before the Board.32
Charles Nathanson 's decision about May 24 to adopt and
implement the reorganization plan,33 in face of the pending
election , is predicated upon his desire immediately to effect
the savings anticipated from this action , and thereby curtail
to such extent projected losses from being recorded in the
next fiscal year beginning July 1. He was advised by Sne-
wajs that in the next tax year Respondent would not have
the benefit of the Federal tax loss carryback provisions (in
order to apply losses against earlier profits over the preced-
ing 3-year period), and that his father "might" be forced to
borrow money or "to mortgage the building," which was
then owned free and clear , to prevent a "cash drain" and to
"meet operational costs" for the next year . Snewajs , a certi-
fied public accountant , who was Respondent 's informed
witness on the financial evidence , did not know, when
asked, what Respondent 's cash or liquid resources were at
the time . It is therefore argued in effect that this major
decision to proceed with the terminations , and not await the
Board election 2-1/2 weeks hence , had to be made to save
what amounts to the interest for less than a month on about
$ 12,000,34 assuming that borrowing was really necessary.
Considering the size of these enterprises , it would seem that
a small loan on well-secured . property would raise less than
a crises problem . I cannot but find this whole line of testi-
mony incredible.
Operating revenue exceeded $ 1 million from the com-
bined Dawn newspapers in each of the past 4 fiscal years,
with net income, (or loss), before Federal taxes reflected as
follows: 35
Thus , it appears that the accounting losses were a continu-
ing condition for 3 years, and that marked improvement
was achieved from 1971 to 1972. Charles Nathanson de-
East Side
Shopper
Combined
Dawn
1969 $62,997 $81,205
1970 (45,370) (108,400)
1971 (65,279) (191,641)
1972 (40,973) (62,555)
scribed the motive for his reorganization decision in May as
seeking to protect his father 's "only assets" or "sole source
of income ," and as a "reasonable alternative " to "actually
closing the papers and selling the building ." The net worth
of the Dawn corporations , wholly owned by Ben and
Charles Nathanson , has not been shown. 6 However, it is
recorded in the income summary for the fiscal year ending
June 1969 that "retained earnings" of the Dawn compa-
nies 31 were $454,000. In June 1972 (a significant date), Ben
Nathanson through Dawn purchased the stock of the only
minority stockholder at the time , consisting of 10 percent of
the East Side Shopper and about 21 percent of Tri-County
and Publishers , for unborrowed cash of $30 ,000.38
Beginning about November 1971, when under the testi-
mony Respondent's concern with the adverse financial out-
look was becoming more acute , and continuing through
most of 1972, there were granted substantial wage increases
to management personnel, including Ben and Charles Na-
thanson, as well as increased wages and benefits to employ-
ees in all departments . Excepting the termination of the
three editorial employees in May , the manpower figures in
various departments (prepared by Respondent for the hear-
ing) are relatively the same , if not increased . An "attrition"
policy , so verbally described , is not appreciably manifest
from concrete evidence . Since Respondent raises the point
of its deteriorating financial condition in May , it is not
unreasonable to note the substantial expense entailed in
Respondent 's retention of labor relations attorneys , at least
since early April , and the likely event of litigation. No ur-
gency has been demonstrated to justify a critical financial
decision in May , particularly as confined to the editorial
department , apart from the glaringly apparent factor of the
Union.
The reorganization plan, supposedly invoked as Charles
Nathanson's solution to the financial difficulties , does not
impress me as so novel or unique that it was not within
Respondent 's awareness or contemplation before May39 In
essence , it consisted of a reshuffling of some functions
among six remaining editorial employees after three were
reduced in force 40 To a much greater extent , the use of
32 It must be assumed that, with the Union in the picture, all decisions were
carefully weighed by top management together with legal counsel
33 He stated that he first discussed the plan with his father for about I
minute on May 24, after he conveyed his decisior. o Snewajs, and his father
promptly approved.
34 Snewajs verbally estimated in May that for the next fiscal year savings
of $12,000 to $15,000 would result from the reorganization.
35 In reviewing the financial data introduced, the relationship of the small
editorial department to the various corporations, under East Side Shopper
and the combined Dawn, appears somewhat remote. Respondent chose to
offer the evidence on this basis.
36 Notwithstanding the implied plea of financial jeopardy to the continua-
tion of the business , Respondent made no effort to produce substantiating
evidence , e g, a balance sheet or other such accounting documentation.
37 Not reflected in the statements for later years.
38 Reference is made to the settlement of a lawsuit brought by the minority
stockholder , the nature of which Snewajs indicated he did not know, and of
which the bearing upon the stock purchase is obscure.
39 I do not credit the rationalization that Charles Nathanson coincidentally
discovered the concept of local editorships while visiting another newspaper
publisher in May
40 Respondent's testimony is that Nathanson wanted to reduce four but
EAST SIDE SHOPPER, INC.
"stringers" 41 (not reported on the regular payroll) was en-
visaged to fill the gap, as well as overtime work , and direct
work participation by Supervisor Ewald and Charles Na-
thanson.42 Nominally , of the six in the reduced complement,
three were designated "local editors ," while three were ex-
empted from the seniority application as overall feature
editors and the photographer (Berndt) 43
The manpower chart prepared by Respondent shows 8
editorial employees on the payroll in June and 10 such
employees in October, including supervisors.44 No figures
on the chart are entered for the months between June and
October . Snewajs, responsible for the exhibit , was "not
sure" whether there was any turnover of employees within
this excluded period.45 Charles Nathanson explained that
the addition of two employees in October reflects Ewald
leaving and Mass returning to replace Ewald as a local
editor, with both listed in that payroll period. Here it is not
clarified how Ewald, a supervisor, became one of the local
editors . And the fact remains that at least one employee was
added . On further questioning, Nathanson stated that Bob
Erickson , who was previously carried as a stringer , became
a full-time staffer after Ewald left 46 The facile description
in Respondent 's brief is that, in October , Ewald 's position
was "double staffed" with the addition of Mass and Erick-
son.
As already noted, I do not regard Respondent's evidence
as supporting its contention that it truly followed seniority
in effecting the "reorganization ." Charles Nathanson 's testi-
mony that, on May 25, Musial told him he was frankly "very
eager to leave" the job cannot be credited. Nathanson men-
tioned other , seemingly innocuous , reasons for bypassing
Musial, e.g., previous comments by Musial that he would
really like to write for a magazine some day, that he had
lunch one day at the Free Press, and that he had a friend
at the Detroit News ; and adding that Musial showed a
"clear lack of attention " on one occasion when he mis-
placed a list of stories . Broder was the only other editorial
employee questioned by Nathanson regarding his "commit-
ment to Dawn and to journalism." 41 In April, Broder had,
without success , sought a leave of absence to take a job with
his father on a trial basis , and had earlier expressed interest
in working for a newspaper in the South . On May 25 , Broder
Snewajs persuaded him to confine it to three.
41 Copies of Respondent 's publications are in evidence for one issue in
May and one issue in November A much larger number of names (about
10) appear as "special writers " in November than in May. In the May issue,
the articles were written predominantly by regular staff reporters , identified
under a byline.
02 Nathanson edited the publications for two of the cities
47 Baer was a reporter and photographer
44 With Ewald stipulated as a supervisor , it is not clear whether the figure
eight includes Charles Nathanson or represents an additional employee en-
tering the department in June.
45 Charles Nathanson indicated that a new photographer was hired as a
replacement , presumably for Berndt.
44 On later examination , he changed this testimony by stating that Erick-
son was "still not a regular employee." Lathrop testified that Erickson was
gradually used more and more until he was working full time , about mid-
September. In the May and November newspaper issues in evidence , Erick-
son appears as a "special writer ." See fn 41 , supra Respondent 's brief refers
to him as a proofreader.
47 Jarratt was asked and agreed to stay at least until the end of September,
which Nathanson testified was sufficient for Respondent to get "through the
transition of the reorganization."
849
answered Nathanson that he could make no long range
commitment but had no plans to go elsewhere. On May 26,
he accepted the promotion to local editor. As to Musial,
Nathanson testified that he placed him "on the bottom of
the seniority list," and thus he was not reached to receive
an offer.48 The degree of commitment to Dawn was not a
proper consideration in applying the seniority policy
claimed by Respondent. In any case, the objective credible
evidence clearly indicates that Broder was scarcely in a
better position to be retained than Musial. Broder and La-
throp were junior to Musial.
In late September, Charles Nathanson undertook to com-
municate with Baer, Musial, and Mass for the purpose of
offering a local editorship in a vacancy ostensibly created
by the resignation of Supervisor Ewald. This evidence does
not serve to support Respondent's general contention that
it was consistently carrying out a seniority policy. Nor does
it help Respondent's defense of nondiscrimination in May,
since in September the damage was already done. Whether
these were valid offers of reinstatement to substantially
equivalent employment are matters which are appropriately
relegated to the compliance stage of this proceeding.49
Conclusions
It is my finding that Respondent has presented an elabo-
rate pretext and subterfuge in defense of the so-called reor-
ganization and the terminations on May 26. General
Counsel has established by a clear preponderance of the
evidence that these were terminations violative of Section
8(a)(3) as to Mass, Musial, and Baer, and that Baer's termi-
nation for refusing to accept the proffered promotion to
local editor because of the unlawful nature of the entire
reduction in force, while redundant, is also a violation of
Section 8(a)(1). A disparate method was used in the selec-
tion, particularly affecting Musial. And, in my opinion, all
three were victims of a discrimatory scheme devised and
hurriedly applied to forestall a union certification in the
forthcoming election.50
It is independently alleged essentially that, under the re-
organization, the offers made to the selected editorial em-
ployees, of promotions together with substantial pay raises,
were benefits tendered by Respondent to induce their disa-
vowal of the Union. There is sufficient merit and support
to sustain this allegation. It may reasonably be viewed that
Respondent's approach to these employees had the charac-
ter of the classical "carrot and stick" they were rewarded if
they accepted and laid off if they declined. The violation of
Section 8(a)(1) is found.
F. The Refusal to Bargain
The appropriate unit comprises all Respondent's employ-
ees. When the Union presented its recognition demand on
April 24, there were 55-57 employees in the agreed unit
complement," and the Union held signed membership ap-
48 Seniority was not mentioned to Musial in the terminal interview.
49 E g , Baer did not receive the offer until after the stated deadline for
acceptance
50 See, e.g, N L R B v Preston Feed Corporation, 309 F 2d 346, 350 (C A
4).
Si General Counsel's reservation concerning the supervisory status of two
such employees is not material to the majority question
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plications from 37 such persons , admitted in evidence with-
out challenge.52 Thus, the Union had a clear majority of
cards at the time it requested and was refused recognition
on April 24, and following its confirming letter to Respon-
dent dated April 25. Accordingly, it is held that, on and
since April 24, the Union has been , and is now, the statutory
bargaining representative of the employees in the appropri-
ate unit.
As found herein, Respondent engaged in serious viola-
tions of Section 8(a)(l) and (3), which were calculated to
defeat the Union 's organizational effort and undermine its
representation status among the employees.53 These unfair
labor practices, in my opinion , were of a character and
scope which may properly be described as "outrageous"
and "pervasive" within the terminology of the Gissel case.
The effects of such conduct were to preclude a fair represen-
tation test in the conducted election . And they also render
highly improbable the holding of a new or rerun election
without the continuing impact and recurrence of
Respondent 's coercion .54 In these circumstances , the use of
traditional remedies is ineffectual , and consideration is val-
idly given to the signed application cards as a more reliable
measure of the employees ' representation desires . There-
fore, it is concluded that, by refusing the Uniori 's bargaining
request and engaging in the aforesaid unfair labor practices,
Respondent violated Section 8(a)(5), and that a bargaining
order is necessary and appropriate to protect the majority
selection of the Union through written authorizations, and
otherwise to remedy the extensive violations committed.55
G. The Representation Case
The consolidated proceeding is prosecuted with the prin-
cipal objective of setting aside the election of June 13, on
the Union 's objections , and obtaining a Gissel bargaining
order . As already indicated , the evidence fully warrants
such a result. I will therefore recommend that the election
be set aside and the representation petition be dismissed.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section II,
52 1 find completely without ment Respondent 's contention in its brief that
the application cards are invalid to establish a majority count . On their face,
these were not "single -purpose cards" intended only to provide a showing in
order to obtain an election , but were plainly designations of the Union to act
as bargaining agent . N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606-607
(1967). At the hearing, Respondent stated it had no factual questions regard-
mg majority status as evidenced by the cards . Moreover , there is positive
testimony that the employees were told that the cards would be used to seek
voluntary recognition by Respondent , as indeed they were.
37 All the cards were signed prior to the election on June 13 , and preceding
the course of Respondent's major violations.
H As noted , in the election , as against 37 signed cards, the Union received
21 votes . The effect of Respondent's coercion is thus presumptively evident.
It is reasonable to assume on the present facts that the impact of any added
delay would serve only to profit Respondent for its wrongdoing and further
denve the employees of the representation to which they are entitled.
s Cf. Restaurant Associates Industries , Inc., d/b/a Hungry Charley's Restau-
rant, 194 NLRB 1066, distinguishing unfair labor practices "not so likely to
have an inevitable fingering effect as to preclude the holding of a fair elec-
tion."
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
IV THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Particularly in
light of Respondent's discriminatory conduct and other vio-
lations, a broad cease and desist order appears necessary.56
It has been found that Respondent unlawfully terminated
Mass, Musial , and Baer on May 26 . It will, therefore, be
recommended that Respondent offer these, employee, im-
mediate and full reinstatement to their former positions, or
if such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges , and make them whole for any loss of earn-
ings they may have suffered as a result of the discrimination
against them, by payment to them of a sum equal to that
which they would normally have earned, absent the dis-
crimination, from the date of the discrimination to the date
of Respondent's offer of reinstatement, 57 with backpay and
interest computed under the Board's established stan-
dards.SB It will be further recommended that Respondent
preserve and make available to the Board , upon request, all
payroll records, social security payment records, timecards,
personnel records necessary and useful to determine the
amounts of backpay and the rights of reinstatement under
the terms of these recommendations.
Upon the foregoing findings of fact , and upon the entire
record in the cases , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By terminating Alan H. Mass , Robert Musial, and
Tom Baer, thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. All employees of Respondent at its East Detroit,
Michigan, facility, including editorial department employ-
ees, commercial department employees , and mechanical de-
partment employees , but excluding guards and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. Since April 24, the Union has been, and is now, the
56 N. L. R. B. v. Express Publishing Company, 312 U S 426 ; N.L R.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A 4).
37 The reemployment of Mass in October does not preclude this order for
compliance purposes.
sa F W. Woolworth Company, 90 NLRB 289; Isis Plumbing A Heating Co.,
138 NLRB 716.
EAST SIDE SHOPPER, INC. 851
exclusive representative of all employees in the appropriate
unit within the meaning of Section 9(a) of the Act.
6. By failing and refusing , at all times on and after April
24, to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
7. By the foregoing, and by other acts and conduct inter-
fenng with , restraining , and coercing employees in the exer-
cise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondent's unlawful conduct interfered with the
election held on June 13.
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER59
Upon the basis of the above findings of fact and conclu-
sions of law , and upon the entire record of the cases, it is
recommended that Respondent, East Side Shopper, Inc.,
Tn-County Printers, Inc., Publishers Circulation Service,
Inc., d/b/a Dawn (Detroit Area Weekly Newspapers, Inc.),
East Detroit , Michigan , its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and those of fellow employees ; offering,
promising , granting, or announcing new wage increases or
conditions of benefit to employees to influence their union
activities and sentiments ; or threatening employees with
layoffs , job loss, or other reprisals , to induce their rejection
of the Union.
(b) Discouraging membership in Newspaper Guild of
Detroit , Local 22, The Newspaper Guild, AFL-CIO, or in
any other labor organization, by terminating or laying off
employees, or in any other manner discriminating in regard
to hire or tenure of employment or any term or condition
59 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
of employment.
(c) Failing or refusing to bargain collectively with the
above-named labor organization, as the exclusive bargain-
ing representative of all employees in the appropriate unit
described above.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement in conformity with Sec-
tion 8(a)(3) of the Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization, as the exclusive representative of
its employees in the appropriate unit, and embody in a
signed agreement any understanding reached.
(b) Offer Alan H. Mass, Robert Musial, and Tom Baer
immediate and full reinstatement to their former positions,
or if those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings in the manner set forth in "The Remedy" section
of the Administrative Law Judge's Decision.
(c) Preserve and make available to the Board or its agents
all payroll and any other records, as set forth in "The Reme-
dy" section of the Administrative Law Judge's Decision.
(d) Post at its East Detroit, Michigan, offices, copies of
the attached notice marked "Appendix." 69 Copies of said
notice , on forms provided by the Regional Director for
Region 7, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, and be maintained for a period of 60 consecutive
days. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER recommended that the consolidated com-
plaint be dismissed insofar as it alleges violations not specif-
ically found herein.
IT is ALSO recommended that in Case 7-RC-11174 the
election on June 13, 1972, be set aside and the petition
dismissed.
60 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "