East Side Shopper, Inc.Download PDFNational Labor Relations Board - Board DecisionsJul 9, 1973204 N.L.R.B. 841 (N.L.R.B. 1973) Copy Citation 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 " Copy with citationCopy as parenthetical citation