Maritz, Inc.

National Labor Relations Board - Board Decisions

Feb 22, 1985

274 N.L.R.B. 200 (N.L.R.B. 1985)

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