R. R. Donnelley and Sons Co.

National Labor Relations Board - Board Decisions

Feb 17, 1945

60 N.L.R.B. 635 (N.L.R.B. 1945)

In the Matter of R. R . DONNELLEY AND SONS COMPANY and ORGANIZA-
TION COMMITTEE, CHICAGO PRINTING TRADES UNIONS
Case No. 13-C-2032.-Decided February 17, 1945
DECISION
AND
ORDER
On April 25, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. The respondent and the Union filed exceptions to
the Intermediate Report and supporting briefs; thereafter each filed
a reply brief. Oral argument, in which the respondent and the
Union participated, was held before the Board at`Washington, D.•C.,
on October 17,1944.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs filed by the parties,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our findings and order hereinafter set
forth.
1. The Trial Examiner has found, and we agree, that the respond-
ent has engaged in unfair labor practices, within the meaning of
Section 8 (1) of the Act.
The record shows, as set forth in the Intermediate Report, that for
many years the respondent has engaged in an intense and diversified
campaign designed and timed to coerce its employees in the exercise-of
their right to self-organization and to discourage membership in the
Union. Thus, in April 1937, anticipating the favorable effect on
unionization of the Supreme Court's decision upholding the consti-
tutionality of the Act,' the respondent immediately sought to head
off the Union's then contemplated organizational drive at the re-
' N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1.
60 N. L. R B., No. 118.
635
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's plant. In ail article appearing in the respondent's official
house organ, under the signature of C. G. Littell, the respondent's
president, and in a letter addressed to the respondent's employees by
Thomas E. Donnelley, the respondent's chairman; and Littell jointly,
the respondent interpreted the Supreme Court's opinion in an unfair
and distorted manner which was designed to, and which did, leave
the employees with the impression that the Act in practical applica-
tion was meaningless and that therefore it was to their best interest
notNto organize. For example, while the respondent categorically
referred to the employees' "right" to organize, no mention was made
of the unfair labor practices defined in Section 8 of the Act or of the
Court's affirmance of the Board's order requiring reinstatement with
back pay of employees discharged for union activity; at the same time
the respondent emphasized the statement in the decision that "the
At does not prohibit the normal exercise of the right of the em-
ployer to select its employees or to discharge them," and warned that
even though a majority of the employees might select a bargaining
representative, the respondent would nevertheless be privileged to
enter into individual contracts with its employees concerning wages,
hours, and other conditions of employment, a misleading and er-
roneous construction of the Act, which the respondent never cor-
rected.2 Further, n urging the employees not to organize but to
continue their present non-union relationship, the respondent made it
clear that the benefits which the employees, were, enjoying under the
present policy would have to be discontinued in the event of union-
ization. Moreover, the lengthy diatribe against unions in the Littel
article contained unprovoked, derogatory, and inflammatory state-
ments which labeled union as "outside agitators" who would adversely
affect the best interest of the respondent and create uncertainty with
respect to the job security of the employees; charged union as being
selfislt, unfair, and primarily interested in the collection, of_ dues ; and
prophesied that the Union would resort to strikes, violence, and in-
timidation.' Although the record contains no evidence of any strike
talk or misconduct at that time on the part of union solicitors, the
respondent hypothesized itself in the role of "protector," and con-
cluded with an appeal to employees to report annoyances by union
solicitors.
On numerous occasions in 1941 and 1942, the respondent's continued
hostility,and opposition toward the Union was made clear to the em-
2 See N. L. R. B. v. J I. Case Co , 134 F ( 2d) 70, 73 (C C. A. 7), aff'd 321 IT . S. 332,
where the Court, after finding that the employer 's statement to its employees that in-
dividual contracts precluded collective bargaining , was an erroneous conclusion of law,
stated that to influence employees In the exercise of their statutory rights by "the use
of the erroneous conclusion was-an invasion of that neutrality required of employers in
dealing with their employees."
R. R. DONNELLEY AND SONS COMPANY 637
ployees. In Littell's 1942 speech, in other statements by him and by
Edward R. Busby, the respondent's general plant superintendent, and
in a letter to employees in the armed forces, the respondent further
defamed unions and cast aspersions on union members in its employ
by intimating, as found by the Trial Examiner, that there was some-
thing unpatriotic, if not subversive, in self-organizational efforts
during the war emergency.
Shortly after the Union began to intensify its organizing activity
among the respondent's employees in the spring of 1942, the re-
spondent put renewed vigor into its counter-campaign to prevent
organization of its employees. The Intermediate Report sets forth in
detail the extent to which the respondent went in seeking to accom-
plish its objective. For instance, in the fall of 1942, when the Union
became active in his department, James W. Fleiman, manager of
the respondent's rotogravure department, told Foreman West that
many of the employees were undecided about the Union and that
"we will make up their minds for them." Accordingly, Flexman re-
quired all employees under him to report during working hours to
his office in groups of two and spoke to them against unionization; on
other occasions Flexman made a number of anti-union remarks to
employees in the plant. Likewise, General Plant Superintendent
Busby exerted direct anti-union pressure on certain groups of em-
ployees who has indicated considerable interest in the Union. In
December 1942, during working hours, Busby gave prepared anti-
union talks to five different groups of employees. It also appears,
as found by the Trial Examiner, that on numerous occasions in De-
cember 1942, and during the early part of 1943, Busby visited the
pressroom during working hours and had conversations with em-
ployees for the purpose of discouraging membership in the Union.
Generally, the remarks of Superintendent Busby and Department
Manager Flexman followed the pattern of the anti-union theme devel-
oped by Donnelley and•Littell in their 1937 publication, mentioned
above; they included, however, more direct and open threats of em-
ployer retaliation. For example, Busby, elaborating on the respond-
ent's assertion that the Union would resort to strike action, told em-
ployee Krippner, as found. by the Trial Examiner, that "he should
remember that once he went out on strike he was no longer an em-
ployee of Donnelly's." 3 Likewise, as found by the Trial Examiner,
Flexman told employee Caldwell as late as March 1943, that he was
"The respondent contends that by this statement Busby was merely relating the law on
the subject since he thereby meant that, as an economic striker, Krippner would not be
entitled to reinstatement should his position be filled. Busby however gave no indication
to Krippner that that was the meaning of the statement. Under these circumstances, we
find that the reasonable implication of the statement was that Krippner would be dis-
charged for going on strike.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surprised to hear that Caldwell had "gone union on him" and that as
a result Caldwell was a "marked" man and would not in the future
receive the responsibility he deserved but that he could "redeem" him-
self by resigning from the Union. In a conversation with employee
Dorn during the same month, Flexman sought to dissuade Dorn from
joining the Union by pointing out that the respondent rewarded those
employees who remained loyal by not joining the Union. .
To make its campaign against the Union more effective and inti-
mate, the respondent made use of its foremen, for whose anti-union
activity the respondent is responsible,4 as found by the Trial Exam-
iner. The record shows that at foremen's meetings the foremen were
regularly schooled in the respondent's official anti-union philosophy
and arguments and that the respondent expected, and in effect author-
ized, foremen to combat on its behalf the Union's organizing efforts.
That the foremen actively participated in the respondent's anti-union
campaign and exerted intense pressure on the employees, is clearly
revealed by their numerous statements and conversations set forth in
the Intermediate Report. Those foremen who were unable to cope
with the growing sentiment in their respective departments for self-
organization were either reprimanded, as in the case of Foreman
Anderson, or demoted, as in the case of Foreman West.
Also forming part of the respondent's counter-campaign against the
Union was its unlawful practice of obtaining, and circulating among
its hierarchy, information concerning the union activity of its em-
ployees, as found by the Trial Examiner. The record shows that on
numerous occasions foremen and other officials of the respondent inter-
rogated employees and also applicants for employment, with respect
to their union membership and activity. Likewise, it was common
practice for foremen to give information on such matters to their
superiors, who not only readily accepted it but also tacitly approved
of and encouraged such reporting. Considerable information about
the Union was made known to the respondent's top officials in num-
erous oral reports and in at least three written memoranda.
In agreeing with the Trial Examiner that the totality of the re-
spondent's conduct was coercive and violative of Section 8 (1) of the
' The Trial Examiner and the parties herein proceeded on .the premise that the foremen
were properly in the same bargaining unit as subordinate employees. This would mean
of course , that they could vote for or against the labor organization seeking to represent
the unit. This premise has since become the "rule of the case" since the Board in a subse-
quftnt representation proceeding relating to the respondent has included the supervisors of
the rank of foremen within the various bargaining units . Under the circumstances, the
foremen in their capacity of members of the bargaining unit had the same freedom of
action as all other employees with 'respect to joining or not joining unions and expressing
their opinions on the subject . Consequently , the liability of the respondent for the anti-
union statements and conduct of the foremen steins, not from their foreman status as such,
but from the fact that, as the record establishes , the respondent encouraged, authorized,
or ratified their activities or acted in such manner as to lead the employees reasonably to
believe that the foremen were acting for and on behalf of management.
R. R. DONNELLEY AND SONS COMPANY 639
Act, we are not unmindful of the respondent's contention that the
articles, letters, and statements, mentioned above, are privileged by
the constitutional guarantee of freedom of speech. However,. we
think it clear, and we find, that the record viewed as a whole clearly
establishes that the respondent has overstepped the legitimate bounds
of free speech 5 and has departed from the minimal neutrality require-
ments imposed upon an employer by the Act." Certain of the re-
spondent's anti-union statements are clearly objectionable per se,
for example, Department Manager Flexman's threatening remarks
to employees Caldwell and Dorn, set forth above; other hostile state-
ments which were repeated to the employees over a period of years,
although more temperate in form, nevertheless also reflect a calculated
and sustained determination by the respondent to frustrate the em-
ployees' freedom of choice in selecting a bargaining representative.'
It is clear, and we find, that the respondent's numerous oral and pub-
lished statements, set forth in the Intermediate Report and herein-
above, viewed in the light of the respondent's labor relations history
and the discriminatory demotion of Walter West, set forth in the
Intermediate Report, in their totality amounted to more than the kind
of employer persuasion sanctioned by the Constitution. Indeed, we
are of the opinion, and we find, that in its protracted campaign against
the Union, the respondent sought to, and did, use its economic power
as an employer to intimidate its employees in the exercise of the rights
guaranteed by the Act, the coercive effect of which conduct was not
neutralized by the respondent's formal assertions, made on several
occasions during lengthy diatribes against the Union, that its em-
ployees had the right to join a labor organization."
°N. L. R. B. V. Reliance Manufacturing Co., 143 F. (2d) 761 (C. C. A. 7) ; N. L R. B. v.
Sunbeam Electric Mfg. Co., 133 F. (2d) '856 (C. C. A 7) ; N. L. R. B. v. Stone, 125 F (2d)
752 (C. C. A. 7), cert. den . 317 U. S. 649 ; Valley Mould it Iron Corp. v. N. L. R . B., 116 F.
(2d) 760 (C. C. A. 7) ; Peter J. Sehueitzer v: N. L. R. B, 144 F. (2d) 520 (App. D C.) ;
N. L. R. B. v. Trojan Powder Co., 135 F. (2d) 337 (C. C. A. 3), cert. den 320 U. S. 768;
N. L. R. B. v. M. E. Blatt Co., 143 F. ( 2d) 268 ( C. C A. 3 ) ; see also Matter of Agar
Packing it Provision Corporation, 58 N. L. R. B. 738 , and Matter of Tomlinson of High
Point, Inc., 58 N L. R. B 982
° See Stone, Sunbeam Electric Mfg. Co , and Reliance Manufacturing Co cases, supra.
While some of the respondent's statements , such as those concerning the closed shop,
may have been directed primarily at the rules and customs of the printing trades unions,
the respondent 's inconsistent position with respect to the demands which it claimed the
Union would make, was intended to discourage adherence to the Union and to discredit the
Union as a useful and effective bargaining agent . Thus, the respondent told the employees
that in the event of successful organization of the plant , the Union would demand a closed
shop and the establishment of those rules and customs of the printing trades union which
the respondent claimed would require the discontinuance of existing beneficial conditions
of employment ; that it would be forced to accede to the demands which would result in the
loss of benefits to the employees and in less favorable working conditions , but that it would
never accede to the demand for a closed shop Without deciding whether such statements
are per se violative of the Act , the respondent 's inconsistent position on these matters
constitutes part of the course of conduct upon which our finding of a violation of 8 (1) is
based.
8 See Matter of Agar Packing it Provision Corporation, 58 N. L. R B 738 ; Matter of
Julius Cohn, d/b/a Comas Manufacturing Co., 59 N. L. R. B . 208; Matter of American
Needleerafts, Inc., 59 N L. R. B 1384.
640 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record we are convinced, and-we find, as did the
Trial Examiner, that by its entire course of conduct, the respondent
Intended to, and did, interfere with, restrain, and coerce its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. The Trial Examiner has found that. in the fall of 1938'or 1939,
the respondent refused employment to Stanley Klaviter because of
his union affiliation. This finding is based largely on the testimony
of L. D. Maxwell, which the Trial Examiner credited, that when
Klaviter applied for work at the plant, Assistant Employment Man-
ager Wise told Maxwell; in the presence of employee Helen Germain,
that Klaviter could not be employed because of his union membership.
This testimony is sharply disputed by Wise and Germain, as appears
in the Intermediate Report. In resolving this conflict in favor of
Maxwell, and against the respondent's witnesses, the Trial Examiner
gave no weight to the obvious incongruity in the testimony of Max-
well and Klaviter. The record shows that shortly after Wise alleg-
edly made the statement in question, Maxwell and Klaviter had a
conversation about Klaviter's employment possibilities and, according
to Klaviter's undenied testimony, Maxwell then stated that Klaviter
had "a good chance" of obtaining employment with the respondent.
It is difficult for us to reconcile this assertion of Maxwell with his
testimony that he had then been told by Wise that Klaviter would not
be employed because of his union affiliation. Moreover, there is no
clear showing that at the time Klaviter applied for employment,
there was available work at the plant which he was qualified to per-
form. Under all the circumstances, we are not convinced that Kla-
viter was discriminatorily denied employment; and the Trial Exam-
iner's finding of discrimination is hereby reversed.
3. The Trial Examiner has found that Harold Gunther was laid
off in March 1940 because his father was a union member and not
because of lack of work, as asserted by the respondent. In so finding,
we believe that the Trial Examiner relied too heavily on Maxwell's
disputed testimony, which the Trial Examiner credited, that Produc-
'tion Manager Michelson selected Gunther for lay-off because of his
father's union membership, and failed to give sufficient weight to
other factors negating the inference of discrimination.
The record shows that from 1937 to his induction in the armed
forces in February 1941, Gunther was continuously employed by the
respondent, except for the lay-off in question and two earlier lay-offs
in 1938, which are not alleged to have been discriminatory. All. three -
lay-offs occurred during the respondent's slack production periods,
At that time Maxwell was employed by the respondent as foreman , but in the spring of
1943 he quit his job and was employed by the Union in the position which he still held at
the time of the hearing.
R. R. DONNELLEY AND SONS COMPANY 641
when it-customarily effected seasonal and temporary reductions in
personnel. Gunther was not included in the 1939 seasonal lay-off,
but there is no showing that he was thereby immunized against sub-
sequent seasonal lay-offs; nor does it appear why Gunther should be
suddenly singled out in 1940 for disparate treatment because of his
father's union membership. Indeed, Gunther's original application
for employment, dated in 1937, indicated his father's union member-
ship, and notwithstanding he was hired by the respondent; subse-
quently, as stated above, he was laid off and rehired on two occasions
prior to the lay-off in question. We find no basis for the Trial Ex-
aminer's suggestion that the information concerning the union affilia-
tion of Gunther's father was 'appended to Gunther's 1937 application
at sometime after the form was originally filled out. Under the
circumstances, we are not able to agree with the Trial Examiner that
Gunther's lay-off was due to his father's union membership, and the-
Trial Examiner's finding of discrimination is hereby reversed.
4. The Trial Examiner has found that the respondent granted Vic-
tor Zamara a promotion with a wage increase in order to induce him
to withdraw from the Union. While Zamara's promotion occurred
shortly after the respondent had knowledge of his prominence in the
Union, it also appears that he was one of three employees who were
simultaneously promoted to pressman jobs for the duration, in ac-
cordance with the respondent's up-grading policy. We do not think
that the record warrants a finding of discrimination, in the treatment
of Zamara, and the Trial Examiner's finding in this respect is hereby
reversed.
5. The Trial Examiner has found that the respondent discrimina-
torily adopted and enforced rules which unreasonably restricted em-
ployees' union activity on company property outside of working hours
and thereby violated Section 8 (1) of the Act. On June 11, 1943, the
respondent posted a rule prohibiting every kind of union activity on
C'company time or property," and' on July 19, 1943, a substitute rule
which retained the absolute prohibition as to company time but quali-
fied the prohibition as to the employees' own time by forbidding union
activity on company property outside of working hours only when
such activity interfered with production or discipline. We have had
occasion in other cases to consider the legality of rules similar to those
adopted by the respondent and we have heretofore formulated a gen-
eral statement on this subject, which reads as follows:
The Act, of course, does not prevent an employer from making
and enforcing reasonable rules covering the conduct of employees
on company time. Working time is for work. It is therefore
within the province of an employer to promulgate and enforce
a rule prohibiting union solicitation during working hours. Such
628563-45-vol 60-42 - o
'642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rule must be presumed to be valid in the absence of evidence that
- it was adopted for a -discriminatory purpose. It is no less true
that time outside working hours, whether before or after work, or
during luncheon or rest periods, is an employee's time to use as
he wishes without unreasonable restraint, although the employee
is on company property. It is therefore not within-the province
of an employer to promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours, although on
company property. Such a rule must be presumed to be an un-
reasonable impediment to self-organization and therefore dis-
criminatory in the absence of evidence that special circumstances
make the rule necessary in order to maintain production or
discipline.'°
It'is clear therefore, as the Trial Examiner found, that the respond-
•ent's rule of June 1943 is objectionable insofar as it prohibits union
activity on company property outside of working hours. However,
since the objectionable portion of the rule, which was never in fact
,enforced, remained in effect for only a short period of time and was
deleted from the substitute rule of July 1943, we shall not make any
'finding with respect to it.
As stated above, the language of the substitute rule does not contain
the unreasonable restriction -of the first rule, and on its face is not
objectionable. However, the Trial Examiner has concluded from the
testimony of General Plant Superintendent Busby, set forth in the
Intermediate Report, that the rule in effect was intended to prohibit
reasonable union activity on company property outside of working
hours. Busby testified that he had never had occasion to reprimand
any employee for interfering with production or discipline by engag-
ing in union activities outside of working hours, or to determine under
what circumstances such conduct normally would come within the
meaning of the prohibition. We do not believe that Busby's off-hand
views concerning the applicability of the rule, advanced under pressure
,of cross-examination in response to certain hypothetical situations
posed by the Board's counsel, alone form a proper basis for condemn-
ing a rule which on its face is otherwise proper.
Nor are we able to agreed with the Trial Examiner that the re-
spondent adopted these rules to thwart self-organization among its
,employees. The respondent contended and offered evidence to show
that the rules were posted to combat a charge admittedly made by the
Union in a radio broadcast on May 27, 1943, to the effect that the
respondent was assisting a company union by permitting organizing
10 Matter of Peyton Packing Company , 49 N. L. It. B. 828, enf 'd, as modified , 142 F. (2d)
1009 (C. C. A. 5), cert. den 323 U. S. 730. See also Matter of Republic Aviation Corp., 51
N. L. It. B. 1186, enf 'd 142 F. ( 2d) 193 (C. C. A. 2), cert. granted 65 S. Ct. 55.
R. R. DONNELLEY AND SONS COMPANY 643
activity "by company men on company time." In view of the fact
that the first rule was posted shortly after the May 27 broadcast
by the Union and not earlier in. the respondent's extended organizing
campaign,'1 we are inclined to accept the respondent's explanation of
its conduct. Nor, unlike the Trial Examiner, do we find sufficient
evidence of a discriminatory application of the rule.
Under all the circumstances, we are of the opinion that the evidence
is insufficient to warrant a finding that the respondent's conduct in
promulgating and enforcing the rules in question was violative of the
Act, and the Trial Examiner's finding to that effect is reversed.
6. The Trial Examiner has found that the respondent discrimina-
torily demoted Samuel Gates from Press 100, and later discrimina-
torily transferred him from the day shift to -the night shift, in
violation of Section 8 (3) of the Act. We do not agree. The record
shows that in May or June 1943, Gates was removed as the regular
pressman for Press 10012 and his job was given to his assistant.
Thereafter, Gatesworked mostly as a substitute pressman or assistant
pressman on various presses until September 1943, when he was made
regular pressman on Press 88. During this period Gates retained his
job status as a pressman and on the whole was given work commen-
surate with his qualifications, without any reduction in pay. Indeed,
as the Trial Examiner found, his earnings during this period were
higher than those during the comparable period of the preceding
year. In these circumstances, we do not believe that the treatment
accorded Gates resulted in any substantial difference in his condition
,of employment, or that the respondent was discriminatorily moti-
vated in its treatment of Gates.
With respect to his proposed transfer to the night shift, the record
shows that Gates had worked on the day shift for about 18 months
and that, in accordance with the "modified" system of shift rotation
then in effect, Gates was scheduled for work on the night shift so
that a certain employee, who was entitled to a transfer from the night
shift to the day shift, could be so transferred. Gates protested his
proposed transfer to General Plant Superintendent Busby and
claimed that he was being discriminated against because five older
pressmen, permanently assigned to the day shift, had never been
required to work on the night shift. Busby replied, according to
Gates' testimony, that he "will make these older fellows put time in
11 We attach no special signifleance to the fact that at about the time the rule was posted
there was considerable union activity among a relatively small group of unskilled workers,
especially since the Union 's intense campaign among the larger group of skilled employees
had then been in progress for over a year.
12 The respondent contended that Gates was removed from the press because of his in-
ability to organize the press crew and because of certain complaints about his work on an
earlier job for Sears Roebuck Co . The record shows that at the time of his removal, Press
100 was again to be used on additional work for Sears Roebuck Co.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same as you, put a six months on night and a year on days."
Notwithstanding this effort by Busby to meet Gates' grievance; the
latter, according to his own testimony, told Busby that he "was not
satisfied with the decision" and indicated an unwillingness to agree
to any plan which included work on the night shift:
Under the circumstances, we are unable to find that the respondent's
treatment of Gates constitutes discrimination, within the meaning of
Section 8 (3) of the Act, and the Trial Examiner's finding in this
respect is reversed.
7. We agree with the Trial Examiner's findings, as set forth in the
Intermediate Report, that the respondent demoted Walter West in
violation of Section 8 (1) and (3) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent , R. R. Donnelley and Sons
Company; Chicago, Illinois, and its officers , agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Organization Committee , Chicago
Printing Trades Union, or in any member thereof, or in any other
labor organization , by demoting any of its employees , or by discrimi-
nating in any other manner in regard to their hire and tenure of
employment or any term or condition of employment;
(b) Questioning and haranguing its employees concerning their
union affiliations and activities , maintaining a system of reports on
union activities in the plant , and instructing foremen and supervisors
to make statements to their employees concerning labor organizations
which transgress the provision of the Act;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right 'to self-organization , to form
labor organizations , to join or assist the Organizing Committee,
Chicago Printing Trades Union, or any member thereof , or any other
labor organization, to bargain collectively through representatives of
their own choosing , and to engage in concerted activities , for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer Walter West immediate and full reinstatement to the
position which he held prior to his discriminatory demotion on April
15, 19,43, or to a substantially equivalent position , without prejudice
to his seniority or other rights and privileges;
R. R. DONNELLEY AND SONS COMPANY 645
(b) Make Walter West whole for any loss of pay he has suffered
by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages from April 15, 1943, the date of his dis-
criminatory demotion, to the date of the respondent's offer of rein-
statement, less his net earnings during said period;
(c^ Post at its plant at Chicago, Illinois, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Thirteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon the receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other
material; and
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent laid off and refused to hire individuals because of
their union sympathy or membership, and promulgated and enforced
discriminatory rules, within the meaning of Section 8 (1), and that
the respondent, discriminated against Samuel Gates, within the mean-
ing of Section 8 (3) of the Act, be, and it hereby is, dismissed.
NLRB 577
(9-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not.in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist organization com-
mittee, Chicago Printing Trades Union, or any member thereof,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
0
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
WALTER WEST
We Will Not question or harangue employees concerning their
union affiliations and activities, maintain a system of reports on
union activities in the plant, or instruct foremen to make state-
ments to employees concerning labor organizations, which trans-
gress the provisions of the Act.
All our employees are free, to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
b condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
Dated----------------
E. R. DONNELLEY AND SONS COMPANY
---------------------------
(Employer)
By --------------------------------
(Representative ) Title)
NoTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application in
accordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered-, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Russell Packard , for the Board.
Mr. Leon M . Despres, Mr. Joseph M. Jacobs, Mr. Francis D. O'Mara, and Mr.
Nicholas M. DiPietro , all of Chicago , Ill., for the Committee.
Mr. Ernest S. Ballard, of Pope & Ballard, and Mr. T. C. Kamnnholz , both of
Chicago, 111., and Mr. Preston C. King, Jr., of Washington, D. C., for the
respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Organization Committee , Chicago Print-
ing Trades Unions, herein called the Committee and, at times, the Union, the
National Labor Relations Board, herein called the Board , by the Regional
Director for the Thirteenth Region (Chicago, Illinois ); issued its complaint,
dated September 25, 1943, against R. R. Donnelley and Sons Company, herein
called the respondent and, at times , Donnelley's, alleging that the respondent
had engaged in and was engaging in unfair labor practices within the meaning
of Section 8 (1) and ( 3) and Section 2 ( 6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint , accom-
panied by notice of hearing, were-duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint , as amended during
the course of the hearing, alleged in substance : (1) that the respondent ques-
tioned its employees relative to their union affiliation and activities ; advised
and warned them to refrain from union affiliation ; by both written and oral
communications sought to discourage and prevent them from engaging in union
R. R. DONNELLEY AND SONS COMPANY 647
activities ; made disparaging and derogatory statements to its employees con-
cerning the Union and its leadership, and warned them that they would gain
no advantages through union affiliation but would lose certain existing benefits ;
promulgated a rule prohibiting union activity on company time and property ;
demoted, laid off, refused to hire and otherwise discriminated against individuals
because of their union affiliation and activities; by the foregoing and other
similar conduct, interfered with, restrained, and coerced its employees in viola-
tion of Section 8 (1) of the Act; (2) that the respondent demoted Walter West
because he had designated the Union his bargaining representative and had
engaged in concerted activities with his fellow employees for the purpose of
collective bargaining and other mutual aid and protection ; demoted Samuel Gates
and, later, caused the termination of his employment because Gates had ex-
pressed sympathy with labor organizations and had engaged in concerted activi-
ties with fellow employees for the purpose of collective bargaining and other
mutual aid and protection; by the foregoing conduct, violated Section 8 (3) of
the Act.
In its duly filed answer to the Board's complaint, as it was amended during
the course of these proceedings, the respondent admitted•that it had published
to its employees certain statements regarding organizational activities but denied
that it had interfered with, restrained, or coerced its employees in violation of
Section 8 (1) of the Act. It also denied that it had discriminated against Walter
West or Samuel Gates in violation of Section 8 (3) of the Act, and asserted by
way of affirmative defense, that it demoted West for causes not related to his
union affiliation or activities.
Pursuant to notice, a hearing was held before the undersigned, the Trial
Examiner duly designated by the Chief Trial Examiner, at Chicago, Illinois,
from November 1 to December 13,.1943; at Washington, D. C., on December 29
and 30, 1943; and at Chicago on February 9, 10, 11, 1944. All parties were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. Pursuant to application by the
respondent, two depositions were taken : at Abilene, Texas, December 17, 1943,
and at Spokane, Washington, December 22, 1943, respectively. Near the close of
the hearing the respondent moved to dismiss the complaint insofar as it alleged
the discriminatory demotion of Walter West and to exclude the Committee from
further participation in these proceedings, because of the publication in the
Committee's bulletin or newspaper, during the course of the hearing, of matter
relative to the testimony on the West case. This motion was denied by the
undersigned.
Upon the conclusion of the taking of the testimony, the Board, the Union and
the respondent presented oral argument before the undersigned. The respondent
and the Union thereafter filed briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
R. It. Donnelley and Sons Company is an Illinois corporation which has its
offices and principal place of business at Chicago. It operates branch plants at
Crawfordsville, Indiana, and Detroit, Michigan, but only the operation of its
Chicago plant is involved in this proceeding. It is engaged in the manufacture,
processing, distribution and sale of printed matter. ,
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal raw materials used in operations at its Chicago plant are type
metal, materials for engraving, paper,,]nk, bindery and shipping materials such
as wrapping paper and rope. During the calendar year 1942, the value,of raw
materials purchased and used at the Chicago'-plant was in excess of $2,500,000,
of which amount more than 80 percent was for materials shipped from points
outside the State of Illinois to the Chicago plant. During the same calendar year,
the total receipts from sales of products manufactured and processed at the
Chicago plant was in excess of $10,000,000, of which amount more than 75 percent
was from sales of products shipped to points outside the State of Illinois.
The respondent employs at its Chicago plant in excess of 4,600 persons.
On the basis of the foregoing statements of fact, based on a stipulation of
the parties, the undersigned finds that the respondent, R. R. Donnelley and
Sons Company, is engaged in commerce within the meaning of the Act.
II THE ORGANIZATIONS INVOLN En
In 1938 a movement was undertaken by some of the Chicago printing trades
unions, affiliated with the American Federation. of Labor, to coordinate their
organizational effort as it related to employees of the respondent, and as a re-
sult the Organization Committee was formed. Others of the printing trades
unions later were represented on the Committee, and it eventually was sponsored
by the International as well as the local units of the printing trades unions. In
April 1942, Nicholas DiPietro was assigned to assist in the work of the Com-
mittee by the International Typographical Union, and in July 1942_he was
named executive secretary of the Committee. He testified concerning the pur-
poses and function of'the Committee :
Basically, the Organization Committee's purpose is to coordinate the
organizing activities as they relate to the employees of R. R. Donnelley
and Sons Company ; to look toward collective bargaining agreements with
R R. Donnelley and Sons Company in behalf of its employees . . . which
will relate to wages, hours, working conditions and the handling of griev-
ances and the general purposes as set forth in contracts now existing be-
tween printing trade unions and employers with whom they do have
contracts.
The Committee is authorized by its constituent unions to act in their behalf
in organizational work and to secure signatures of employees designating the
Committee as their bargaining representative and empowering the Committee
to represent them in proceedings before government agencies.
The constituent or member unions of the Committee are: Typographical
Union No. 16 and Mailers Union No 2, Franklin Union No. 4, Web Printing
Pressmen's Union No. 7, Paper Handlers Union No. 2, Ink Workers Union No. 8,
and United Commercial Artists and Photographers, affiliated with International
Printing Pressmen and Assistants Union of North America, A. F. of L.; Book-
binders and Paper Cutters Union No. 8, Bindery Women's Union No. 30, and
Bindery Help and Specialty Workers Union No 182, affiliated with Interna-
tional Brotherhood of Bookbinders, A. F. of L.; Photo-Engravers Union No. 5,
affiliated with International Photo-Engravers Union, A. F. L.; Progressive
Lodge No. 126, affiliated with International Association of Machinists ; Local
B-134, affiliated with International Brotherhood of Electrical Workers, A. F.
of L.; Miscellaneous Warehousemen's Union No. 781, and Truck Drivers and
Chauffeurs Union No. 705, affiliated with International Brotherhood of Team-
sters, A. F. of L.; Lithographers Union No. 4, affiliated with Amalgamated
Lithographers' Association.
R. R. DONNELLEY AND SONS COMPANY 649
On the basis of the foregoing and the entire record, the undersigned finds
that the Organization Committee and each of its member or constituent unions,
are labor organizations within the meaning of the Act, admitting to member-
ship employees of the respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Background -
(a) Period prior to 1933
R. R. Donnelley, respondent's founder, came from Canada to Chicago in 1864,
and engaged in the printing industry, first as operating partner of a then estab-
lished firm, and, later, as head of his own firm Atter various vicissitudes,
including the Chicago fire and the panic of 1873, R. R. Donnelley purchased a
printing plant from the Lakeside Printing & Publishing Company. This busi-
ness was incorporated in 1890 as R. R. Donnelley and Sons Company. In 1899,
R. R. Donnelley died and his son, T. E. Donnelley, became president of the
firm, and continued to serve in that capacity until 1936 when he was succeeded
by C. G. Littell. T. E. Donnelley then became, and now is, Chairman of re-
spondent's Board, of Directors.
From the "precarious life" of printing establishments during the closing
decades of the last century, Donnelley's has become one of the largest printing
establishments in this country, employing more than 4,600 persons and engaged
at its Lakeside Press in Chicago in the printing, in whole or in part, of many
prominent publications, such as Time and Life magazines, Farm Journal,
Readers' Digest, Encyclopaedia Britannica, Sears Roebuck and Montgomery
Ward catalogues, telephone directories and various church publications. A
building financed by the elder Donnelley to house his then infant printing
business , was destroyed in the catastrophic Chicago fire. Today, Donnelley's
occupies some 1,000,000 -square feet of floor space in its 8-storied Chicago plant,
and also owns and operates a plant at Crawfordsville, Indiana where some
1,000 persons are employed, as well as other smaller plant units.
Donnelley's is one of the few large printing establishments in the United
States today which functions without a collective bargaining agreement with
any labor organization.
Prior to 1907, Donnelley's had contractual relations with several of the
printing trades unions Most, and perhaps all, of these agreements included a
closed shop provision.' During the years 1903 to 1907, inclusive, disputes arose
i
' These findings are based on the undisputed and credited testimony of DiPietro ; Leslie
G. Goudie, of the International Brotherhood of Teamsters , William F Cleary, of the Inter-
national Brotherhood of Electrical Workers , Ira Cole, of the International Association of
Machinists; Joseph J. Wolfe, of the International Brotherhood of Bookbinders; Robert
Bruck, of the Amalgamated Lithographers' Association , C M Baker, of the International
Typographical Union ; William H. McHugh, of the International Printing Pressmen and
Assistants Union ; and Lawrence Gruber, of the International Photo-Engravers Union
2 A brief summary of respondent's contractual relationships with labor organizations,
based on a stipulation of the parties, follows
In 1903 the feeders and assistants in respondent's pressroom were covered by a
closed-shop contract between the Typothetae, an association of employing printers of
which respondent was a member, and Franklin-Union No. 4, an unaffiliated labor
organization.
In 1904 the journeymen bookbindeis were covered by a contract between the
Typothetae and Local Union No. 8 of the International Brotherhood of Bookbinders.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the respondent and the respective unions, and one by one the contrac-
tual relationships were broken off as the parties found their differences to be
"irreconcilable." s The last of the agreements was broken off in 1907, and from
that date until 1933, respondent maintained what is referred to variously as an
"open shop" or "closed non-union shop." 4
T. E. Donnelley freely admitted that from 1907. to 1933, the respondent refused
to employ any known union member and discharged any employee known or
found to be affiliated with a labor organization! While he thought the number
discharged for union affiliation during this entire period was no more than 4 or
5, Elmer D. Chapman, manager of respondent's employment department, thought
the number thus discharged was substantially larger. The number is im-
material in view of the respondent's admission of its closed non-union shop
policy. In furtherance of its policy, it required applicants for employment to
state whether or not they were members of a labor organization and to sign an
agreement which contained the following clause :
From the date hereof, I accept employment . . . upon the understanding
that I am not a member of a labor union; that said employer maintains a
non-union shop, and that during my said employment, I will not become a
member of any labor union, and will have no dealings, communications or
interviews with the officers, agents or members of any-labor union in rela-
tion.to membership by me in any labor union, or in relation to my said
employment.
In 1929, the respondent through its employment manager, Chapman, per-
sonally solicited its employees in the higher branches of skill , to sign what is
commonly known as a "yellow dog" contract, containing the following clause:
That he [the employee] warrants that he is not a member of any labor
union or similar organization and that he will not during the term of this
Agreement join any labor' organization, join in or encourage any strike
or disturbance, or absent himself during any such strike if his presence shall
be required by the Employer.
Chapman testified that the employees were not required to sign the agreement
and that no punitive action was taken with respect to an employee who refused
In 1905 the composing room was operated tinder a closed -shop contract between the
Typothetae and Chicago Typographical Union No. 16.
In 1906 the photoengraving department was under a closed-shop agreement which
had been entered into prior to the acquisition of that part of the business by purchase
in 1903.
In 1907 the journeymen pressmen were covered by a contract between the Typothe-
tae and Printing Pressmen ' s Union No. 3.
The above agreements were terminated on the respective dates given . The record
does not disclose the period of their existence prior to the dates given.
$ The various labor disputes involving Donnelley's in the 1903-1907 period appear for
the most part to have been but a segment of a nationwide conflict between employer asso-
ciations , such as the United Typothetae of America , and the printing trades unions, in
which the unions demanded and the employer associations opposed a reduction in the work
day from 9 to 8 hours . The disputes engendered widespread industrial strife, including
strikes, or, as contended by the unions , lockouts . For an authoritative study of these
and similar problems as they applied to the Chicago area, see : BOOK AND JOB PRINT-
ING IN CHICAGO, by Emily Clark Brown (The University of Chicago Press, 1931).
4 It appears that the term "open shop," applied "equally to early conditions under which
both union and non-union men were' hired, but no contractual relations were entered into,
and to the strictly non-union condition ," where union members were excluded from em-
ployment . Book And Job Printing in Chicago , page 215 ( See footnote 3, supra.)
5 Donnelley testified concerning this period : "Only people who were not members of the
union could work in the place and they thoroughly understood it; everybody understood
it." "If a man joined the union we discharged him."
R. R. DONNELLEY AND SONS COMPANY 651
to sign it. He further testified that the "yellow dog stipulation" was first used
in 1929. However, there were introduced in evidence agreements with the
same type of stipulation bearing the dates respectively, 1910, 1911, 1918, 1922,
1925. It is clear therefrom and the undersigned finds, that the respondent
-employed the "yellow dog" form of agreement in contractual relations with its,
employees substantially throughout the period of 1907 to 1931, inclusive. The
expiration date of the last of these agreements was December 31, 1931. The
form of application blank carrying the individual non-union agreement was not
used after August 4, 1933. Donnelley testified concerning the discontinuance
of the yellow dog type of agreement, "I believe we came to the realization that
-there was a lot of criticism about the yellow dog contract, and we made up our
mind to do away with it." °
The respondent further implemented its closed non-union shop policy by the
use of a reference blank addressed to former employers of newly hired per-
sonnel. This reference blank bore the question, inter alia, Was applicant a
member of any labor organization. Donnelley testified that he "supposed" the
question concerning union affiliation was dropped from the reference form in
1933. As will be seen -in a subsequent section of this report, the form contain-
ing this question was actually in use as late as May 13, 1937.
During the period 1907-1933, Donnelley was prominently identified with em-
ployer associations which had for their primary aim the maintenance of the.
open shop in the printing industry. One of these organizations, the Open Shop
Employing Printers Association of Chicago, of which Donnelley was a director,
was, according to Donnelley, mainly an employee recruiting agency for "open
shop" employers. Among its activities was the establishment of a training
school for the purpose of supplying non-union applicants for employment. Don-
nelley's advertised in the Open Shop Directory, issued-by one or more of these
employer association, as "Open Shop Since 1905," and again, as "Open Shop
Since 1904." As Donnelley testified, whereas "open shop" was the term "used
publicly", the respondent actually operated a "closed non-union shop" throughout
this period 7 There can be no doubt that Donnelley employees understood the
term "open shop", as then used by the respondent, to be descriptive of a policy
barring all employee participation in union activities.
In 1908, shortly after it became a closed non-union shop, the respondent
started an apprentice school for the training of skilled workers. Donnelley
testified that the school was started after he had read in a government publica-
tion a report on an apprentice school in the Chain printing plant in Paris,
France, and that the date of its inception shortly after Donnelley's started its
non-union shop policy, was accidental. He testified that the school was started
to "educate good workers" and that it "happened" also that it was later supply-
ing non-union journeymen a He further testified concerning a speech which he
made to an employee association -in 1910, "I made a statement that there was
another advantage to it [apprentice school], and that is we didn't have any
labor troubles long after the thing was started and working." Since 1915 the
respondent has drawn from its apprentice school for most of its craftsmen
personnel.
A summation of the respondent's policy with reference to organizational
activities of its employees during the 1907-1933 period, as it was brought to
bear upon the minds of the employees, is substantially set forth in two letters,
8 In 1933, the State of Illinois enacted a law prohibiting the use of the "yellow dog" type
of labor contract.
° See footnote 4, supra.
8 Executive vice-president Zimmermann testified similarly : "The only consideration we
gave to the apprentice school was the training of skilled people for our own organization."
c
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed respectively , by T. E. Donnelley and C. G. Littell, addressed to employees
of respondent 's pressroom in August 1929 . The following excerpts from the
letters are illustrative :
We will under no circumstances deal with the union , and we will
continue to operate this plant non-union.
If any of our employees think it is to their advantage to cast their lots
with the union and thereby obtain better positions than they have with us,
that is their privilege , but it must be understood that by so doing they are
giving up their connections with this concern for good.
* * * * * * *
Our flag is nailed to the mast. We run non-union or not at all . We have
hundreds of men we have known from boyhood , whose troubles are our
troubles , but if they join the union they would be through here forever . . .
* * * * * *
Concluding-if, by some impossible combination of mob psychology; the
union were able to persuade every man in our employ to strike , we would
never rehire , and would immediately organize non-union.
(b) The 1933-1935 period
The respondent while freely and candidly conceding that from 1907 to 1933
It pursued a policy of excluding all known union members from its employment,
contends that with the signing of the President 's Reemployment Agreement
(PRA), pursuant to the provisions of the National Industrial Recovery Act
(NIRA ), on August 4, 1933, it completely reversed its policy with reference to
employee affiliation with unions , and thereafter did not discriminate as between
union and non-union members . It will be recalled that PRA embraced, inter
alia, compliance with Section 7 (a) of NIRA which provided that employees
should have the right to organize and bargain collectively through representa-
tives of their own choosing , free of employer interference, restraint or coercion.
In signing PRA, the respondent inserted the following provision not contained
in the official printed form :
We sign with the provisions that Section 7 (a) of the National Recovery
Act shall not be construed to impair any constitutional rights' of the
undersigned.
While the respondent 's singling out of Section 7 (a) for a qualifying clause,
arouses a reasonable doubt of the respondent 's intention to comply unqualifiedly
with the provisions of this section , the real focus -of inquiry is whether the
respondent did in fact on August 4, 1933, effect such a reversal of its policies
that its employees could no longer harbor reasonable doubts of their freedom
to engage in organizational activities.'
Donnelley testified that at or about the time the respondent signed PRA,
he addressed the employees and advised them of the change in respondent's
policy with reference to their organizational activities . The following is an
excerpt from his testimony on cross -examination :
I addressed the employees , the night force in one group and the day
force in another one, and told them that the rule of not being able to join
6 On February 17, 1934 , the President approved the Code of Fair Competition for the
Graphic Arts Industries , of which the respondent was a member . This code embraced the'
provisions of Section 7 (a). The approval of the Code had the effect of terminating PRA,
and therefore of the qualification which respondent had attached to that document.
R. R. DONNELLEY AND SONS COMPANY 653
the union was out on account of the law. We recognized the law, and
intended to obey it. Any man in the employ had a perfect right to become
a union man or non-union man, as he wished, and there would be no
discrimination.
.1 told them that I thought it would serve better for them to stay" non-
union, because we believed that we could pay them more money and we
could deal with their grievances better by direct contact, and we hoped
that they wouldn't.'°
Donnelley further amplified his testimony on the topic:
I told them I thought it was to their advantage to continue as they were,
that we could pay them more money and our relations would be very much
pleasanter and less controversial, and there would be less controversy if
all the grievances were handled direct man to man, which I think is the
way . . . all grievances should be settled.
General Superintendent E. B Busby, Department Manager James W. Flexman,
Employment Manager Chapman, and Foreman Edward Warner, testified that
they were present and heard the Donnelley speech Their testimony as to the
content of the speech was much more general and lacking in particulars than
Donnelley's own testimony. The speech was not reduced to writing and there
is no further evidence of its contents than this testimony of Donnelley officials
and supervisors.
On July 7, 1933, C G Littell addressed the eniloyees and this address was
published in the Lakeside News, a bulletin or newspaper published by the re-
spondent for its employees." The Littell speech purported to set forth the cir-
cumstances under which NIRA came into existence. After canvassing various
factors leading to the enactment of the law,- Littell referred to Section 7 (a)
as follows :
. . . there is a permanent and powerful organized labor lobby in Wash-
ington who had to be placated, and to do so Congress injected the labor
clause, 7A, which stated that every code submitted shall contain the condi-
tion "that employees shall have the right to organize and bargain collectively
through representatives of their own choosing"
This clause has led many to think that all industry was to be unionized,
and it is to give you particularly the low-down on this matter that this
meeting is called tonight. General Johnson, the Administrator of the In-
dustrial Recovery Act, has publicly declared that his office could not be
used to unionize industry and that there was no reason for the unioniza-
tion of those shops which at present have fair working conditions and
wages.
The remainder of the speech is in the nature of an argument against the union-
ization of Donnelley eiriployees The following excerpts are significant when
compared with statements appearing in letters addressed to pressroom employees
in August, 1929-set forth in the prior sub-division of this Report-and with
statements made by Littell in April 1937, which will be noted subsequently:
10 It appears that in a prior hearing before the National War Labor Board ( WLB), Don-
nelley stated that he made this speech in 1935 Ile testified that lie had thought that was
the first effective date of a law prohibiting discrimination and discovered his mistake
when respondent ' s attorney explained the different laws on the subject
11 Prior to 1933 this publication was called the Lakeside Press. It is produced by
respondent at respondent 's expense , is coedited by respondent and employee representatives,
with respondent reserving the right of "veto " of material which it does not wish to appear
in the publication , and from time to time it prints statements of management policies.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This 7A clause states that for two years the employees shall have the right
to organize , but there is no reason why they should organize in a business
such as this where for years fair treatment has prevailed in the top wages
of the trade paid. ( Italics supplied)
* * * * * *
. . . in this particular business we are very much opposed to unionization,
and I am here to give you my own reasons for this opposition . I will grant
that a union is useful in certain conditions where there are rapacious em-
ployers and where sweat shop conditions obtain, although even then, un-
fortunately , the employees frequently find that by unionizing they have
simply transferred from a rapacious employer to a robber , racketeer, and
murderer .. .
11 13
The most important part of all unions is dues. That is what makes the
wheels run, makes jobs for the organizer , business agent, etc ., and the
holders of these jobs try to show how busy they are by making trouble be-
tween you and your employer , unless, as frequently happens in Chicago,
the union develops racketeering management , and then they don't give , a
damn for you.
* * * * * * *
We object to unions on account of the herd spirit which they instill into
their members . We object to that idea of a dead level where all men, are
the same, all of -presumably equal ability, and all earning the same re-
ward . . . The union idea does not permit a man to give extra service
to show his capabilities .. .
There could be no bonus system in union shops or other recognition of
unusual endeavor because a union expects no such endeavor.
* * * * * * *
To sum up, I believe that there are cases where unions are necessary;
in fact, where hanging would more fit the crime ; but not here.
It is noted that the Littell speech contains no statement of reversal of Don-
nelley policy with reference to employees ' union activities . While the gist of
Section 7 (a) is set forth , the speech contains no statement that the respondent
intends to comply with that section of the law. Instead of such unequivocal
declaration of intent as would be required to free the employees from the effect
of some 28 years of proscribed union activity , the speech is vehemently anti-union.
On December 8, 1933, letters were addressed to certain employees over Littell's
signature , purporting to give informatiobin , on "what was going on in Washington'
in connection with the Printers ' Code." "This Code," the letter stated, "is getting
great opposition from the unions. In my opinion it is because the hours of
labor will be fixed by the Code , and the wages offered are going to be such
that it is not going to leave the union organizers with anything to talk about in
trying to get more customers . . . The unions are making every effort to take
advantage of the N. R. A. to try to get all shops unionized and all printers paying:
dues, this in spite of the fact that General Johnson has repeatedly stated that
there was nothing in the Recovery Act which made it necessary for any work-
man to join any organization whatever . They have entire freedom of choice.
I have said right along , and I say it again , with due consideration of the situation
R. R. DONNELLEY AND SONS COMPANY ,655
at the present time, that the unions have nothing to offer the employees of'R. R.
Donnelley & Sons Company."
The December 8 letter, more moderate in tone and content than the July 7
speech , and containing a catagorical statement of employees ' freedom to organize,
is nevertheless predominantly an argument against unions , and contains no lan-
guage which, to the average employee, would spell complete immunity to dis-
criminatory practices if he chose to affiliate with a union.
Except for the Donnelley and Littel speeches and the December 8 letter, the
record contains no evidence that prior to the passage of the Wagner Act in
July, 1935, Donnelley employees were advised by management that the latter
had "reversed" its pQlicy with reference to organizational activities of its em-
ployees. E . R. Busby testified that when he became general plant superintendent
in 1934 , he instructed department heads that there was to be no discrimination
as between union and non -union members, but admitted on cross-examination
that the Donnelley speech of 1933 was the only announcement to employees of a
change in policy of which he had knowledge , though he further testified that it
was common knowledge throughout the plant that the respondent had signed PRA.
2. Anti-union statements and conduct of respondent executives ; correspondent
statements and conduct of supervisory personnel -
Respondent executives responsible for formulating general labor policies are :
Thomas E. Donnelley , chairman ; C. G. Littell , president ; Herbert P . Zimmer-
mann, executive vice-president . Littell became ill in October 1942 and did not
resume his duties as president until October 1943. In the interim , Zimmermann
functioned as his substitute . Closely associated with the three top ranking
executives in the formation and enforcement of labor policies , is Edward R.
Busby, respondent 's general plant superintendent.
Following the Supreme Court's decisions in April 1937 , upholding the con-
stitutionality of the Act , Littell published through the medium of the Lakeside
News, an article in which he purported to "explain" the court 's decision . Subse-
quent to the publication of this article , the respondent on April 14, 1937, addressed
a further notice on the same topic to its employees . Donnelley described this
notice as a "simplification " of the Littell• article. Further written notices con-
cerning unions were addressed by the respondent to its employees on the following
dates : November 30, December 7, December 30,1942; February 23, 1943. A letter
was sent to Donnelley employees in the armed services on May 20, 1943. In ad-
dition to the aforementioned written or published addresses and notices to
employees on.union matters, Littell addressed employees orally_on March 19, 1941,
and March 12, 1942. Superintendent Busby addressed groups of employees
during the latter's working hours, from prepared statements , on December 4, 5,
14, 21, 22, 1942 . All of the foregoing statements and publications are admitted
by the respondent and were included in whole or in part as appendices to the
respondent 's answer to the Board complaint . It is further revealed in the testi-
mony of witnesses , that respondent , through its supervisory personnel, made
numerous other statements to its employees on the topic of unions.
The undersigned considers that the Donnelley -Littell-Busby statements are
important in arriving at a determination of the issue , since admittedly they are
attributable to management and they set a pattern , followed in all major respects
by employees of lesser managerial rank. For purposes of organization, the
material appearing in these statements and publications which" the undersigned
considers germane to the issue , is presented under topical headings.
656 DECISIONS OF NATIUNAL LABOR RELATIONS BOARD
a. Statements on the Court's decision affirming the constitutionality of the Act 12
Several excerpts from the court's decision are quoted in the Littell article of
April 1937, accompanied by Littell's construction of the court's language. After
referring, to\the employees' "correlative right to organize," Littell comments:
"A later quotation will show that the employees of The Lakeside Press 13 can
continue their relations with their employer exactly as they are at present, or,
furthermore, any individual employee of The Lakeside Press can make an indi-
vidual contract with his employer."
In commenting on the designation of a bargaining representative, Littell states,
"Furthermore, the only way an organization or individual can be described as
the representative of any particular unit of our plant, would be in case there
was a vote and it was proved that this representative was chosen by the majority
of the employees of;hat unit."
In commenting on the requirement that the employer shall bargain collectively
with the majority representative of an appropriate unit, Littell states :
This act goes on to state that it does not compel any agreements of any
kind between employers and employees. Neither does it deny an employer the
right to refuse to make a collective contract and hire individuals on what-
ever terms he can make with those individuals. 1 The employer must bargain
with properly chosen representatives but he doesn't have to come to any
agreement. You can lead the horse to water but you can't make him drink.
If he has made individual contracts and agreements, still at any time any
employee or group of employees shall have the right to present grievances to
their employer. [Italics supplied.]
The concluding excerpt from the court's decision which Littell chose for quota-
tion, is the passage on "the normal exercise of the right of the employer to select
its employees or to discharge them."
Having concluded a cursory and partial summary of the court' s decision,
and without reference to the unfair labor practices defined in Section 8 of the
Act, Littell comments :
These are the rights of the employees of The Lakeside Press under this new
law, and these are the, rights of the employer., In the language of the day-
and so what.
A further passage bears this comment :
You know your rights now, under the new law, and we are going to observe
the law as written. It is our firm belief that it is much more advantageous
for you and your families, to continue in our present arrangement.
The remainder of the Littell article of April 1937 is substantially a restate-
ment of respondent's opposition to unionization of its -employees. Although
lihrased in somewhat milder language, it follows in general the pattern of
Littell speech published in the Lakeside News in July, 1933, to which reference
has been made in subdivision A (1) of this Report.
The April 14, 1937, letter was addressed to employees over the names of
T. E. Donnelley and C. G. Littell. The opening paragraph of the letter states :
THE PRINTING TRADES UNIONS are engaged in a campaign to organize
the open shop printing plants in Chicago. Their representatives state that
sooner or latter they will start their drive to unionize this plant.
11 In its statement respondent quoted from the court 's decision in N. L. R. B. v. Jones f
Laughlin Steel Corp., 301 U. S 1.
is The Lakeside Press is respondent 's trade name.
R. R. DONNELLEY AND SONS COMPANY 657
This letter, briefer than Littell's article in the Lakeside News, stresses the
fact that whereas under the Act a bargaining representative chosen by a
majority of employees in an appropriate unit is the sole bargaining agent for
all employees in the unit, nevertheless :
Those employees in such unit as wash to deal their their employer may enter
into an individual contract with them concerning wages, hours and other
conditions of employment.
There is no evidence that this erroneous and misleading statement of the law
was at any time thereafter retracted or corrected."
The same letter contains this further passage :
The Wagner Act is the law of the land and we intend to obey it. While
our employees have the right to join a union, we hope they will not do so,
as we honestly believe that the present relationship between us and our
employees is far more advantageous to our employees and their families.
Further excerpts from the Littell article and the April 14, 1937, letter appear
in subsequent sub-divisions of this Report. -
b. Statements derogatory of the Union and union leadership
In respondent's statements to its employees, reference is made to "outside
interference" and "agitators." Thus Littell, in his April 1937 articles states:
"We must not let that organization [Donnelley's] be interfered with by outside
agitators." (Italics supplied) In the same article he states, "Unions tend to
mediocrity A constant state of bickering, frequently breaking into open war-
fare, does not develop cooperation or the state of mind necessary to deal with
the a'rts." Again, in the same article, is this reference to union leadership,
"Labor leaders must still act as if they had a real interest in the welfare of
the working man." In the April 14, 1937, letter to employees, appears this
statement: "We have lived in peace with our employees for over thirty years
without outside interference, and we believe that the welfare of all of us lies
the same way." [Italics supplied.]
Frequent references are made to union dues. Thus the Littell article of
April 1937 states: "For thirty years this business has been operated without
connection with any union. In that time no member of this organization has
lost a single hour on account of a union, or because of any disagreement with
the management. . . . During this time there have been no union dues paid
by our employees, and dues in some of the trades now amount to important
sums. The April' 14 letter carries this statement, "For more than thirty years
we have maintained the right of any individual to work in this plant without
paying dues or obtaining permission from an outside organization. . . . On
March 12, 1942, in a talk to employees, Littell after reviewing respondent's
growth, refers to a pay roll amounting to $10,242,304 and concludes with the,
remark : "Wouldn't someone like a rakeoff on that." n
As will appear in subsequent sub-divisions of this Report, reiteration and
extension of these statements appear in remarks of supervisory personnel.
14 ". . . to bring to bear, as an influential factor upon its employees, the use of the
erroneous conclusion, was an invasion of that neutrality required of employers in dealing
with their employees prescribed by the Act . . N. L. R B. v. J. I. Case Co., 134 F.
(2d) 70 (C. C A. 7), aff'd 321 U. S. 332.
15 Compare with Littell's July 7, 1933, speech in which he stated inter alia, "The most
important part of all unions is dues . . .", and corresponding statements of supervisory
personnel set forth in sub-division III A (5) of this Report.
628563-45-vol. 60-43
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the record is barren of any evidence that Donnelley employees have
been subjected to violence or threat of violence by the Union, respondent's
statements to its employees are replete with suggestions that the Union will
employ force or unlawful pressure to compel union affiliation. At the same
time the respondent hypothesizes itself in the role of "protector." Thus, in
the April 14, 1937, letter, appears this statement :
Representatives of the union, failing to persuade you to join the union,
may resort to intimidation, threats or coercion to compel you to join. Such
intimidation is unlawful and the law will be invoked to protect you.
Fortunately, Chicago stands out as a law-abiding community. If you have
been annoyed by union solicitors, kindly report the facts to Mr. Chapman,
your foreman, or the undersigned."
Littell in his April 1937 article states : "For those of you who continue to believe
that unions have nothing to offer you, we pledge ourselves to resist any attempt
to force you into any organization."
c. References to the armed services
Employees if they have two years of continuous employment prior to in-
duction into the armed services, are continued on respondent's pay-roll register
as employees Respondent's letters relative to its position on unions, since in-
ductions began, have on occasion been addressed through the mails to its em-
ployees in the armed services as well as to the homes of employees not yet
inducted.
Littell's April 1937 article stated, "We have disproved the union theory that
the natural state of an employee and employer is one of war, or that their in-
terests are always, antagonistic" In a talk to employees on March 12, 1942, he
stated, "In closing I would like to point out that in the last eight or nine years
the United States has imported from Europe a class system. And we have
been engaged in busily fanning the fires of class hatreds we have imported " He
then refers to The Lakeside Press as "a Gibraltar . . . in this sea of class
hatred, where every man is just as good as he is, and has equal opportunity
based on his own merit," and not on any imported European class distinction
or ideologies." He added, "I am not thinking of unionism," but disingenuously,
because this is immediately followed by the following language :
Your older fellow workmen can tell you we had the same extra effort to
organize us in the last war, helped by combinations of union officers and
politicians. This will all pass away as before with the ending of the war
and the present political regime.
Busby in talks to groups of employees on December 4 and 5, 1942, referred to'
Donnelley employees in the armed forces "fighting to defend democracy, to de-
fend life, liberty and the pursuit of happiness, so that we will all have a right
to go to the church we want to, to live on as we please, and work as we please,
without paying dues to anyone." On December 5, he substituted the term, "with-
19 Donnelley testified concerning this statement :
I referred to the time when people insisted upon pressing themselves upon men who.
were not interested, and insisted upon calling at their houses and otherwise talking
to them when they didn't want to be talked to
Q. Couldn't that have been taken care of very well by the employees themselves?
A. Well, I put that in here anyhow.
17 This is an obvious reference to the Union's alleged insistence on seniority,which, as
will be seen elsenheie in this Report, the respondent maintains would prevent promotion
on the basis of meant.
R. R. DONNELLEY AND SONS COMPANY' 659
out paying tribute to anyone." On December 14, 1942, Busby stated in another
speech to employees, "And I want to say one thing-when the lights come on I%
hope that we have preserved for our boys in the services all of the things they,
are fighting for." [Italics supplied.]
Busby testified that this last statement was extemporaneous and denied that
he intended that the statement should be associated wih unions, although he
admitted that in his reference to "all of the things" the men in the armed
services were fighting for, he did not intend to include the right to have unions.
Also, admittedly, the statements were made in juxtaposition to references to
unions and in a context of argument against unions.
In August 1943, John De Vries, an employee in the armed forces, visited the
plant in military uniform while on leave and talked to some of the employees
in the department where he had worked prior to induction. De Vries had lunch
in the plant with employees Lester Hayes, Charles Brown and John Kotan. It
appears that these latter three employees discussed the progress of the Union_
in the department with De Vries. Later, when Hayes, Brown and Kotan re-
turned to work, Foreman Jack Diebel told them that De Vries resented their-
having talked to him about the Union, and that it was "very unpatriotic" for-
them to talk union'to a service man who had visited the plant on furlough 38
The undersigned finds that the foregoing statements and conduct, appearing
in a context of anti-union activity, implied and were meant to imply that there
was something unpatriotic and perhaps subversive in self-organizational efforts.
during the war emergency among employees not inducted.19
d. Declarations on the closed shop, and warnings of strike action 20
It has been noted that during the period from 1907 to 1933 the respondent
militantly enforced its own version of a closed shop. It also sponsored the
Lakeside Employees Association, a social and recreational club, in which prior
to the summer of 1943, membership with checkoff of dues was mandatory after-
6 months of employment. In neither instance was the volition of the em-
ployee taken into consideration. It may very well be questioned, therefore,
whether the respondent objects to the closed shop idea as a principle. Since-
1937 it has, however, repeatedly voiced its opposition to a closed union shop.
Through its executives and supervisory-personnel it has issued numerous un-
equivocal statements to the effect that it will never under any circumstances;
sign a closed shop agreement with the Union: At the same time the respondent
asserts and the record shows that since 1907, the respondent has entered into
no negotiations with any union regarding a contract and therefore it is clear
that statements on the closed union shop refer to a thus far hypothetical situa-
tion. Since respondent's statements on the closed shop are frequently coupled
with warnings of strike action, the topics are dealt with as related subject
matter.
As has been seen, the April 1937 statements while setting forth the em-
ployees' right to bargain collectively through representatives of their own choos-
1e Diebel denied that he used the word "unpatriotic" in this connotation, but admitted[
that having been advised by Foreman Herbert Abraham that De Vries resented the `Union,
talk", he reprimanded Brown, Kotan and Hayes and told them that it was "very unsports-
manlike" for them to talk union' "to a man who came in here on a furlough for a visit "'
He further testified that he did not consider the discussion during the employees' lunclu
hour to be a violation of a company rule. See sub-section A (9) infra of this Report_
Phe undersigned credits the mutually corroborative testimony of Brown, Hayes and Kotaua
that Diebel used the word "unpatriotic." _
19 See Matter of J. L. Brandeis & Sons, 54 N. L. It. B. 880.
20 See Matter of Rodgers Hydraulic, Inc, 51 N. L It. B. 417.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, emphasize the fact that the law does not compel an agreement between
employer and employees' representatives. Thus the April 14, 1937; letter
states:
Moreover, this Act does not compel an employer to come to an agree-
ment with the bargaining agents. The employer is required to negotiate
and make a sincere effort to reach an agreement, but if an unjust or unfair
demand is made upon him, as for example, a demand for a closed shop, he
is not required to make such an agreement.
As has happened in the past, unions will attempt to call at the em-
ployees' homes or meet them elsewhere and try to persuade them to join
the union. If the unions believe they have obtained a sufficient number of
members to cripple production, they will probably call upon us, claiming to
represent a majority of our employees, and will make certain demands, in-
cluding that of a closed shop. We will refuse any demand for a closed
shop, and the union will then probably call their members out on a strike,
and such a strike will be resisted. [Italics supplied ]
On December 7, 1942, at a time when representatives of the respondent and
the Union were engaged in a series of conferences before government agencies,"
the respondent addressed a letter to its employees emphasizing that it was not
engaged in negotiations with the Union, and stating inter alia :
In our relations with you as with all of our employees we recognize your
right to join or not to join a labor union. For ourselves, as a company,
we are opposed, however, to the closed union shop and will not force any
employee to join a union against his or her will. This is the open shop
policy. It has, been, is now, and will continue to be the policy of this
company.
In "A Report To Our Employees" of December 30, 1942, the respondent
reiterated:
I want ,to repeat that the open shop policy has been and will continue
to be the policy of this company ; and I urge' upon you.that, pending the
hearings, you be not disturbed by unofficial statements regarding the posi-
tion of this company
In a "Notice to Employees" of February 23, 1943, the respondent stated :
President Roosevelt said on November 14, 1941: "I tell you frankly that
the Government of the United States will not order, nor will Congress pass
legislation ordering, a so-called closed shop." 22
21 On or about November 27, 1942, some of the unions affiliated with the COMMITTEE
exercised the "struck work" provisions of their contractual relations with other employers,
which would have the effect of a work stoppage on jobs which were handled in part by
Donnelley's. There was no work stoppage, however, at Donnelley's Conferences before
government agencies ensued, and the Union terminated its struck work program after a
few days. Conferences of Union and Donnelley representatives before government agencies
continued, however, and had not been teiminated at the time of this hearing Respondent
asserted, and it is clear, that these conferences implied no recognition of the Union by
respondent as bargaining representative of any of its employees.
22 The President's statement was issued with reference to the controversy involving the
operation of the coal mines, and obviously was not intended to and could not impress a
limitation upon the statutory requirement that an employer bargain collectively with the
duly chosen majority representative of its employees. Compare Littell's reference in 1933
to General Johnson as authority for respondent's opposition to the unionization of its
employees under NIRA.
R. R. DONNELLEY AND SONS COMPANY 661
We assure our employees that we will not sign a closed shop agreement,
and no employee will be compelled to join a union to retain his position in
this plant.
In a letter to its employees in the armed services, dated May 20, 1943, the
respondent stated inter alia:
Upions have been bringing every pressure possible upon our employees
to join the Union They apparently have not got a majority of our people
or they would have asked for an election . . . If they should win the election
we can tell you positively that we will not sign a closed shop agreement.
We make this statement flatly . . The President has also stated that he
would not force any firm to sign a closed shop agreement.
Busby instructed the foremen that they might state to employees that the
respondent would never sign a closed shop agreement and repeated to them
the reference to President Roosevelt's statement ; they in turn repeated this to
employees under their supervision.
In none of its references to President Roosevelt's statement on the closed shop,
did the respondent explain the circumstances under which the statement was
issued. Busby testified that he did not know the circumstances surrounding
the issuance of the President's statement and that he merely copied it from
the notices or letters of his superiors.
In a speech to employees of respondent's rotogravure department on Decem-
ber 22, 1942, Busby stated that if a majority of the employees joined the Union,
the respondent would be required to negotiate with the Union and "try to come
to some agreement." He further stated that he was not sure than an agreement
could be reached because "the constitutions of the union required that any
contracts they draw up he closed shop agreements," and the respondent would
not sign a closed shop agreement. He continued : "If, in order to enforce a
closed shop agreement, the unions would call all their members out on strike,
we would attempt to go ahead and operate this business with those who still
remained at work " On December 4, 1942, in a speech to employees of the mail-
ing crew, Busby after referring to the-probability of a strike in the event the
Union obtained majority' membership, stated : "If' you should be called out on
strike we would have no choice but to go ahead and get out our magazines
to the best of our ability. . . I don't know what your status would be, but
if you were called out of this plant on strike, I am not sure, but I don't believe
that you would have any status with the company." On December 22, 1942,
Busby told employee Edward Krippner that if there was a strike, the respond-
ent "would go ahead and run the business and the people who went on strike
would be out on the street or would be out of a job ..." 23
The same or similar statements of respondent's determination not to sign
a closed shop agreement, and suggestions and warnings of strike action, were
echoed on down through the supervisory hierachy. Thus Department Manager
James W. Flexman, in the Fall of 1942, called groups of employees to his office
and advised them, inter alia, that if the Union secured a membership of 51
percent, "it might call a strike to try to organize the other 49% . . .
e Loss of employee benefits
T. E. Donnelley testified on cross-examination that the Littell statement of
July 7, 1933, was intended to influence employees to believe that working con-
13 These findings are based on admitted statements.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ditions would not be improved and "might possibly be worsened" under a union
-contract. This theme was given more tangible form-In respondent letters and
publications in 1937 and thereafter. The statement repeatedly occurs that the
unions have nothing to offer Donnelley employees. This is accompanied by
its correlative theme that employees will lose certain existing benefits should
they become unionized. Thus, Littell in his April 1937 article in the Lakeside
News, states :
A change [to union representation] will give you no more money or
better working conditions. A change would add much uncertainty to your
employment as you would be subjected to an outside labor leader who might
issue a strike order at any time for matters entirely unconcerned with your
employment here. [Italics supplied.]
The same article contains the following statement, "For thirty years we have
seen eye to eye and pulled shoulder to shoulder, and between us have built up
the most famous printing plant in the world. The result could never have
been achieved with a union." In a talk to employees on March 19, 1941, Littell
stated, "While unions may obtain high wages for the few they never can do it
for the many. The larger their membership above a certain point, the less they
an do for their members."
More specifically, Littell told the employees in his 1937 article :
If we were unionized we would have to ,discontinue onr bonus system,
which is a device to enable us to pay higher wages than are normally paid
in the trade and still keep in competition. We could not have special
premiums for quality of work. Unions forbid any arrangement that differ-
entiates between workers.`
* * * * * * *
If we were unionized we could not follow our present method of promo-
tion. We could not take off the floor a man who showed merit and pro-
mote him to running a machine. We would have to take somebody from
the union that claimed "control over that machine. Maybe he would be a
much poorer man than the one we wished to promote.2a
If we were unionized we could not have our apprentice school.
The record is replete with repetition and elaboration of the above statements,
in talks and remarks addressed by supervisory personnel to employees through-
out the period from 1937 to the present.
Another existing benefit which respondent, through its supervisory personnel,
bas repeatedly advised its employees they would lose through unionization, is
the minimum work week which under the present system of Donnelley opera-
tions, guarantees to skilled employees a minimum work week whether or not
there is work sufficient to keep them occupied at their regular jobs. Frequent
reference to these matters will be found in testimony set forth in subsequent
sub-divisions of this Report.
24 Compare with the July 7, 1933, article in which Littell stated : "We object to unions
.on account of the herd spirit which they instill into their members. We object to that
idea of a dead level where all men are the same, all of presumed equal ability, and all
-earning the same reward. . . . There could be no bonus system in union shops or other
11-recognition of unusual endeavor because a union expects no such endeavor. . . .
25T. E. Donnelley testified that the respondent in its 1937 letter to employees wanted
-them to believe that under a union there would be no bonus and no system of meritorious
promotion except seniority. See also footnote 28, infra.
R. R. DONNELLEY AND SONS COMPANY 663
3. Anti-union statements and conduct of General Plant Superintendent
E. B. Busby
As previously stated, the union's Committee was formed in 1938 primarily
for the purpose of coordinating organizational efforts of the printing trades
unions. Appointment of Di Pietro as executive- secretary of the Committee in
July 1942 appears to have given added impetus to the Committee's organiza-
tional drive among Donnelley employees. Beginning on November 29, 1942,
there were a series of conferences of Committee and Donnelley representatives
before government agencies. These conferences as previously stated resulted
from the Union's action in exercising its "struck work" program, and did not
represent even partial recognition of the Committee as a bargaining representa-
tive of any of the Donnelley employees.
On November 30 and December 7, 1942, the respondent issued notices to its
employees in which it stated, inter alia :
Our employees are notified that this plant is being operated on the open
shop plan and this company intends to continue operating it as such in the
future . . . This Company is not engaged in negotiations with any union
. .. The Wagner Act gives you the right to join or not to join a union, as
you see fit. We intend to protect you in this right.
These notices further stated that the Union had not seen fit to petition for an
election but that should it exercise this right and have a majority, the Act
would require the respondent to "honestly bargain with them, looking to an
agreement," but would not require respondent to make an agreement "if the
terms of the agreement-such as, for example, demands for a closed shop-are
not satisfactory to the employer." The notice is concluded with a statement
that it was not issued "with any thought of influencing you with regard to your
rights under the Wagner A'ct," but that it was prompted by inquiries of em-
ployees "regarding the policy of this company."
In February or March, 1943, there was formed the Committee's Council of
Union Donnelley Employees, herein called the Council. Membership in the
Council was composed of Donnelley employees who had been designated as
union representatives of their respective departments. Throughout this period,
and beginning possibly as early as 1938, the Committee sponsored a series of
radio broadcasts directed primarily toward the organization of Donnelley em-
ployees. In the spring of 1943, names of officers and representatives of the
Council were broadcast. The Committee also issued a bulletin or newspaper
which was distributed to Donnelley employees.
From the foregoing, it is seen that the period from the summer of 1942 to
the present, has been one of renewed and intensified organizational efforts by
the Committee.28 It is clear from the entire record that this period was also
marked by increased effort on the part of management to discourage union
affiliation among its employees.
2e Busby testified that from 1938 when the Union "started getting out a Bulletin and
started broadcasting", there was considerably more activity than in the period from 1933
to 1938. He later testified that there was increased activity in the spring of 1942 when
D1 Pietro became associated with the Committee's organizational drive, but that "there
was nothing very active about it until the December 11th work stoppage that we took up
with the United States Conciliation Service." It appears, however, that the first of con-
ferences on the Union 's "struck work" program occurred on November 29, 1942.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beginning in December 1942, Busby made a series of speeches to employees
of certain departments where organizational activity was notably intense 27 Ex-
cerpts from certain of these speeches, attached to respondent' s answer to the
Board's complaint, show that on December 4 and 5, 1942, Busby talked ' to re-
spondent's mailing crews ; on December 14, 1942, he addressed employees of the
rotary press room ; on December 21 and 22 he addressed employees of the cylin-
der-making division of the rotogravure department. All of these talks ad-
mittedly were made during the working hours of the employees addressed ; in
some and perhaps all instances, employees were called from their jobs by their
foremen and directed to a place of assemblage outside their departments. All
of the Busby talks were on the topic of unions and were purportedly made in
response to inquiries by employees. Busby testified that he spoke from pre-
pared statements and following this, the employees would ask questions and he
would answer. On the occasion of his talks to the mailing crews and em-
ployees of the rotary press room, he had a stenographer present who made a
transcript of questions and answers He testified that on other occasions, on
returning to his office he would dictate the questions asked and the answers he
had given. The Busby speeches and remarks, as revealed by the excerpts in
respondent's answer, while containing formal statements of employee rights
to exercise unfettered choice in matters of union affiliation, follow the general
pattern of the Donnelley-Littell statements and are in fact and effect a care-
fully and cautiously formulated argument against the unionization of Don-
nelley employees.28 They include comparisons of earnings of Donnelley and union
shop employees, inevitably tending to show that total earnings of Donnelley
employees are higher, and stress the Donnelley guaranteed minimum work-
week; they include numerous statements to the effect that Donnelley's would
never sign a closed shop agreement, with frequent references to strike eventu-
alities. Some reference has been made to specific statements included in these
speeches, and it is needless to set forth their entire subject matter here in
detail since it conforms closely to the pattern of statements set forth in the
preceding subdivision of this. Report
Busby also made numerous other talks and statements to employees. on the
topic of their organizational activities which do not appear in respondent's
answer, but are to be found in the testimony.
Several Board witnesses testified concerning talks or remarks by Busby ad-
dressed to employees of the offset pressroom during December 1942, and January
and February, 1943.
Axel Anderson, a former foreman who was retired by the respondent on pen-
sion in March, 1943, testified that in the Fall of 1942, Knyse, an employee, gave
him the card of a union representative who had called at the latter's home,
27 It is clear from Busby's own testimony that his speeches coincided with increased
organizational activity. Thus he testified that coincident with conferences over the Union's
"struck work" program, union representatives began advising employees that they "had
better" join the Union because the respondent was about to sign a contract with the Union.
As a result, employees questioned him concerning the matter, and he then made his first
speech to the mail crews. He testified that he made his speech to employees of the rotary
pressroom because there had been "lots" of organizing on company time, as a result of
which employees had asked him if they had to join the Union. He gave a similar explan-
ation for his talks to employees of the rotagravure department. On cross-examination, he
testified that he started conversations in the pressroom when he heard that "pressure" was
being applied to compel union affiliation.
28 Thus, Busby admitted on cross-examination that in his December 22 speech he intended
to convey to the employees that if they thought in joining the Union they were bettering
themselves, they were mistaken.
R. R. DONNELLEY AND SONS COMPANY 665
and he in turn sent the card to Busby. On the basis of further information
which he obtained from employees, he later advised Busby orally that union
organizers were calling on employees at the latter's homes Busby then cane
.into the offset press room and talked to several of the employees. Fred Miller,
an employee of that department, testified that Busby spoke "to the effect that
we were working in a good place; the union had nothing whatsoever to offer us;
and, all advantages weighed against one another, Donnelley's was by and far
the better place to work; that is, comparing Donnelley's to a union shop" This
testimony, not specifically denied by Busby, is credited
On or about December 6, 1942, there was a bowling match between night
and day shifts of the offset press room, sponsored by the employees. The bowl-
ing was not on respondent's premises and it was attended by several union
organizers who spoke to the employees in behalf of the Union. Anderson testi-
fied that Busby asked him who arranged the bowling match and said that he
believed that Miller arranged it and that Miller was "a damn fool if he did."
Busby, while admitting that he was advised of the bowling match and of the
attendance thereat of union organizers, denied that he made the statements
relative to Miller. Such statements are consistent with Busby's entire course
of conduct as reflected by the record, and the undersigned credits Anderson's
testimony.
Following the bowling match, and perhaps prior thereto, there was a suc-
cession of union meetings for employees of this department. Miller testified
that on days following the union meetings, Busby would spend from three to
four hours in the press room "running from one to another . . . As a matter
of fact, he would come in the north entrance and work his way entirely
through the room." John Benshop testified that Busby "visited" the night shift
only twice during the same period. Earl Varcoe testified that Busby "would
start at one end of the room, and he would make the rounds . . . ; quite fre-
quently when he would talk to one or two men they would serve as a nucleus
and before you knew it there would be four or five or six men.... Some days
he spent damn near the whole day there The man was so hoarse he could
hardly talk." Anderson testified that Busby talked to the men, in groups or
singly, "whenever he got somebody he wanted to talk to, he talked to them."
Admittedly, the Busby talks occurred during the employees' regular working
hours and they were paid their regular wage for the time thus consumed.
Busby testified, however, that he made no more than three or four talks to the
employees of this department on the subject of unions. Allowing for some ex-
aggeration on the part of the Board's witnesses, the undersigned believes that
Busby's testimony on the frequency of his talks was an understatement, and
finds that on numerous occasions during December, January and February, he
visited this department for the purpose of discouraging the organizational activi-
ties of the employees.
Benshop testified that in December Busby came to his machine and stated
that Donnelley's would never sign a closed shop contract, and Benshop would
not have to join a union as long as he worked at Donnelley's. Other employees
gathered around Benshop's machine, and Busby told the group that if Don-
nelley's paid the union wage scale, it would have to raise its prices to customers
and would therefore get fewer contracts. As a result, it would be unable to
continue its guaranteed minimum work week. Benshop testified that Busby
stated in this connection, "In fact, you would have to be sitting home waiting
for us to call you. Maybe you` would be home for two or three days out of a
week, maybe you would sit around for two weeks waiting for a call from us
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until we got a job in " Miller testified in similar vein, that Busby stated that
if the Union was successful, Donnelley's would have to raise its prices 20 per-
cent in order to pay the union wage 'scale ; as a result less of the Donnelley
product would be sold. Busby then stated, "I believe you fellows are aware
of conditions in union shops ; if there is no work the men stay home until
called " Varcoe testified similarly The mutually corroborative testimony of
these witnesses is credited.21
In February 1943, at a time when Miller was engaged in non-production work
due to repair on his machine, Busby told him, "You know, Miller, if this were
a union shop you wouldn't have to fool around with that sort of thing; you
•vould be home . . . You get the inference of that remark, don't you?"' Irwin
J. Kopecky, an employee of another department, testified that in the Fall of
1942, Busby in talking to him referred to another employee who was then
engaged in repairing his machine, and said that under union conditions that
employee would be sent home until his machine was repaired. Kopecky's testi-
mony, not specifically denied by Busby, is credited.
Walter Zad, employee of the offset press room, testified that Busby came
to his machine and inquired if he had questions to ask on unions. Zad replied
in the negative, but Busby nevertheless started a discussion of unions and
stated, inter alia, that under union conditions Donnelley's could not guarantee
the minimum work week. In February, 1943, Zad told his foreman that he had
joined the Union. Shortly thereafter Busby came to him and said, "I under-
stand you are in favor of the union." Busby then repeated his statement that
under union conditions Donnelley's could not continue its guaranteed work
week, and that under union conditions when there "wasn't a form on the press"
the operator was sent home n
On the day following his talk with Benshop and other employees of the offset
press room regarding the guaranteed minimum work week, Busby called Ben-
shop from his work and showing him advertisements of shops which were selling
their equipment, commented, "Here, I want to show you what I mean by going
bankrupt. . . . This is what happens to shops who are paying union wages."
During or about the same period Busby told Miller that the department was
losing money and was maintained only as a favor to customers who wanted
offset print work. In February, 1943, Busby told Benshop, "Over my better
judgment today I signed a contract for Sears Roebuck's catalogue inserts
for this summer. I only hope that we with the present conditions can fulfill
our schedule and contract ..." 32 Anderson testified that he heard Busby tell
20 Busby admitted that the conversations occurred though he gave a somewhat different
version of what was said.
30 This finding is based on Miller's testimony which the undersigned credits. Busby
admitted that he told Miller that under union conditions, when there was no work on
the presses the men would be sent home, but denied the statements attributed to him by
Miller.
31 These findings are based on Zad's testimony , substantially undisputed.
32 These findings are based on the testimony of Benshop and Miller. According to Busby,
Benshop stated that Donnelley's could pay the union wage scale and still make a profit,
and he replied that some of the union shops were going bankrupt. He admitted that he
later showed Benshop two advertisements of bankrupt houses, but testified that he did not
know whether the bankrupt firms were "union" or not. He admitted that he said with
reference to the Sears Roebuck catalogue inserts, "I only hope that we with the present
conditions can fulfill our schedule and contract," but explained that a new order for these
inserts had just been received whereas no orders had been received for the two preceding
seasons "because they weren 't entirely satisfied with our quality . . He admitted that
he told Miller that the department was losing money, but denied that he said it was main-
tained only as a favor to customers who wanted offset prints . According to him, he said
R. R. DONNELLEY AND SONS COMPANY 667
employees that "if they joined the union they couldn't afford to take the Sears
job, because they couldn't rely on the help." According to Anderson, Busby
made this statement "to half a dozen of them. It was at a press." The under-
signed credits this testimony.
Rudolph Albrecht, an employee of the offset press room, joined the Union
in February, 1943, and paid an initiation fee of $50. A few days later, Busby
came to him (luring working hours and said, "Did you lay $50 on the table?"
Busby then advised Albrecht that he "should weigh the advantages" that he
would have in "any organization," but that he was free to do as he pleased.
Anderson testified with reference to Albrecht, that Busby came into the
department and asking for Albrecht, stated, "Why, I hear the darned fool joined
the union, planked $50 down." Busby admitted that he spoke to Albrecht
about the latter's payment of a $50 union fee. He "thought" a-foreman had
told him and "understood" that Albrecht had paid his fee in cash whereas
others who had signed union cards had not paid an advance fee. Busby denied,
however, that he made the statement attributed to him by Anderson. Anderson
who was a foreman of the department at the time the alleged statement was
made, was a credible witness and the undersigned finds that Busby made the
statement attributed to him by Anderson.
Edward A. Krippner, an employee of respondent's composing room, testified
that in the fall of 1942, following a conversation which he had had with
Employment Manager Chapman relative to dropping the annuity which was
maintained by the respondent for its employees through voluntary pay-roll'
deductions, Busby came to his machine during working hours and questioned
him on the subject. Krippner told Busby that what with deductions for social:
security, the prospect of high taxes and union dues, he felt that he was carrying
too much. According to Krippner, Busby then said, "Now that you mention
union, I can talk about it," and continued with a comparison of Donnelley and
Union annuity or pension plans. Krippner testified that Busby said on this
occasion :
You know the Wagner Law permits or does not permit us to do certain
things . . . I can think what I want, but I can't do certain things . . . I
think you are crazy for joining the union, but I can't say it because the
Wagner Law won't permit me.
On November 27, 1942, the date on which the Union first engaged in its
"struck work" program relative to Donnelley's, Busby sat down by Krippner's _
machine and asked him why the Union did not ask for an election. When
Krippner answered that he did not know, Busby stated, "You know as well as I
know. You have a handfull of people here." Busby then asked Krippner
.what would happen to him if there was a union strike, and when Krippner re-
plied that he would get a job in a union shop, Busby told him that "maybe"
he could get a job but that he should remember that once he went on strike he
was no longer an employee of Donnelley's. During the same conversation Busby
stated with reference to the closed shop, "You will never get it. This place
will never be a closed shop." According to Krippner, Busby also referred to
Di Pietro, the union's representative, as a "persuasive lawyer with his eyes
on the $300,000 treasury."
that while Donnelley's did not make money on some of the "fine print work," it was good
advertising for Donnelley's. The undersigned does not credit Busby's version of the state-
ments and finds that he made the statements attributed to him by the Board's witnesses,
and that they were made in a context of activity designed to discourage the employees in
their organizational activities.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Busby admitted that he talked to Krippner at the latter's machine, and
"mentioned all the advantages" of working at Donnelley's and told Krippner to
"compare them himself with the advantages that were in other shops." He also
admitted the statement attributed to him by Krippner on the closed shop and
Krippner's status if he went on strike. He testified that Krippner said he was
a "persuasive talker" and that he replied that he could not quote Shakespeare
the way Di Pietro did, but denied that he referred to Di Pietro in the words
attributed to him by Krippner. On cross-examination, he testified that in a
meeting of Union and Donnelley representatives on the "struck work" con-
troversy, Di Pietro made a statement which "sounded like Shakespeare" to
him. However, Krippner testified without contradiction that the conversation
at his machine occurred on November 27, and the first of the meetings of
Donnelley and union representatives occurred on November 29 Busby also
denied that he told Krippner that he thought the latter was crazy for joining
the Union but could not say so because of the Wagner Act. The undersigned
is unable to credit Busby's denials, and finds that he made the statements sub-
stantially as attributed to him by Krippner.
Lester Hayes, employed in respondent' s rotary press room , testified that in
February, 1943, shortly after he told his foreman, Herbert Abraham, that he
had joined the Union, Abraham advised him that Busby wanted to see him.
According to Hayes, Busby said that he was quite hoarse from talking to the
men and that he would talk to two at a time .33 He then called an employee
from the machine adjoining Hayes'. After stating the employees could join or
not join a union as they saw fit, Busby said that if they did join Donnelley's
would not be able to continue its guaranteed minimum work week. Busby ad-
mitted that he told Hayes and other employees of the rotary press room on
February 26, 1943, that Donnelley's would never sign a "closed-shop agree-
ment," and that if the plant was "unionized", it would "probably" result in the
loss to the employees of the guaranteed minimum work week, and that the
men would "probably" be laid off when the presses were down.
In the fall of 1942, Di Pietro and other union representatives were engaged
in a mass 34 distribution of union pamphlets on the sidewalks outside of re-
spondent's plant. Busby introduced himself to Di Pietro and said that he
would protest the large number of distributors engaged in handing out the
pamphlets and that he thought such conduct constituted unlawful assembly and
was afraid that violence would result therefrom. Later in the day, Carl Ber-
ritter, a union officer, suggested that Busby and Di Pietro sit down at a con-
ference table "and work this thing out." Busby relied, "You won't get inside
to a conference with us in twenty years." Besides union representatives who
were present at this time, employees were going in and out of the building and
it reasonably may be assumed that they heard Busby's remark 36 In November
or December, 1942, William Krippner heard Busby state in the presence of a
number of employees: "Somebody started a rumor around here that we started
negotiations with the union. That is not so. That is a lie. We never did
and we never will." 88 -
83 Busby's explanation of his hoarseness was that he had a cold.
34 Di Pietro testified that some 100 persons were engaged in the distribution of the
union literature
a, This finding is based on Di Pietro's testimony which the undersigned found to be con-
vincing . Busby admitted that he protested the mass distribution of circulars but denied
that he made the statement attributed to him by Di Pietro.
39 This finding is based on Krippner's testimony which the undersigned credits. Busby
admitted that he told employees that respondent would never sign a closed shop contract
R. R. DONNELLEY AND SONS COMPANY 669
Employees of the rotary pressroom and other departments testified con-
cerning Busby statements, but since this testimony is all of the same general
character and pattern as that which has already been set forth in this report,
it is needless to review it in further detail.
Busby testified that with few exceptions his statements on the Union were
made in response to inquiries addressed to management by employees. He
was generally unable, however, to supply the names of employees whose ques-
tioning led to his frequent and extended statements. Statements, otherwise
violative of the Act, are not rendered immune to its interdictions merely be-
cause they are made-in response to questioning, but it is clear from the entire
record that the questioning of employees was no more than a pretext for a pre-
determined course of anti-union statements and conduct. In his prepared
speeches, Busby addressed the employees of _ entire departments. On other
occasions, on entering a department and the topic of unions having been raised
by one employee, he would then proceed to discuss the union with other em-
ployees in the department without further questioning. Thus he testified with
reference to his discussion of unions with Varcoe, that having answered ques-
tions for other employees in the department and Varcoe not having been pres-
ent, he went to him and reviewed the questions asked and the answers he had
given When Zad told him that he had no questions to ask, Busby continued with
his usual anti-union argument. Busby admitted that he may have initiated a
discussion of unions with Albrecht and Varcoe but testified that Albrecht had
been a foreman and Varcoe a training supervisor of apprentices, and "under
the circumstances" he felt- free "to discuss the union situation with them." He
admitted on cross-examination, however, that Albrecht had not had foreman
status for several years and Varcoe had not been a training supervisor "for
some time." Busby also admitted that he initiated, without- questioning, a dis-
cussion of unions with employees of the rotary press room. He testified on
cross-examination, ". . . when I heard that there was a lot of union activity in
the press room I went down and started conversations myself with some of
them in the rotary press room," and "I started those conversations as a result
of complaints I had that they were putting pressure on the people." There is
no further evidence of the "pressure" thus referred to than Busby's uncorrobo-
rated statement which the undersigned does not credit. Busby also testified
that an employee once having initiated a conversation regarding the Union, he
might come back a week later and pursue the conversation, without further
questioning, concerning matters which he had previously left unanswered. The
following excerpts from Busby's testimony on cross-examination are illustrative:
Q. And with the exceptions that you named, you did express these
opinions only in answer to questions, didn't you?
A. That is about right, yes
Q. So that with the exceptions that you named, you pursued a very careful
course of conduct, isn't that correct?
A. Yes.
Q. Now, what was the reason for pursuing that particular course of con-
duct with reference to expressing these opinions?
with the Union and that Krippner may have overheard this statement but denied the-
specific statement attributed to him by Krippner. As has been seen, respondent issued,
several statements to its employees about or during this period emphasizing that the
Company was not engaged in negotiations with the Union, and that it did not initiate-
the meetings with union representatives before government agencies In view of the total'
situation , the undersigned is unable to credit Busby 's denial
&7O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, I thought we shouldn't open up conversations with employees
unless they opened them up with supervisors, unless there was union activity
within the department, or unless, as during the month of December, the
employees were being told that we were negotiating with the union, unless
there were some special reasons for it like that.
4. Anti-union statements and conduct of Department Manager James W. Flexman
Several Board witnesses testified concerning alleged anti-union statements
and conduct of James W. Flexman, manager of respondent's rotogravure de-
partment . Flexman who was employed by the respondent in 1925, served as a
foreman in the cylinder making division of the rotogravure department from
1938 to June 1942, when he became superintendent of the department. On or
about January 1, 1943, he was assigned additional duties relating to sales, and
thereafter bore the designation of department manager.
In the fall of 1937 , Flexman, at that time a foreman , called employee Fred Dorn
to his office and told him that he believed that Clifford Lenz, another employee
of the department, belonged to the Union. Flexman asked Dorn to find out if
Lenz did belong and to . use his influence to get Lenz to give up his union affilia-
=tion. Dorn agreed that he would do what he could. Thereafter, Dorn met with
-Lenz, and Lenz admitted that lie belonged to the Union. Dorn told him that
he was "wrecking all his chances at Donnelley's" and that if lie continued his
union affiliation he would eventually be "tossed out." Dorn also told Lenz that
"he felt as though through the offices of Mr. Flexman he could square things up
" Lenz then gave Dorn his union dues book and told him that he was "through
with the Union." This conversation took place outside of working hours and
off of respondent's premises. Subsequently, in the plant and during working
hours, Dorn gave Lenz' union book to Flexman. Dorn testified: "He [Flexman]
just congratulated me on the way I handled the thing, and I left the office." 97
This testimony, denied by Flexman, was convincing and is credited.
In the fall of 1942, during a period of increased organizational activity among
employees of, the department, Flexman, then department superintendent, had
the employees of the department summoned to his office in small groups. Walter
West, a night foreman of the department at the time, testified that Flexman
took this action shortly following a foreman's meeting at which Busby had
stated : ". . . if the unions can sell themselves to the men I can't see any reason
why the company can't sell itself also." Flexman asked West to be present in
his office during his conferences with the employees of West's shift "just in case"
he was misquoted at a later date West inquired, "What are you going to talk
to them about, Jim?" to which, according to West, Flexman replied, "A lot of
these guys are setting on the fence. They don't know what they want. We will
make up their minds for them."
37 The findings in this paragraph are based on the mutually corroborative testimony of
Dorn and Lenz which the undersigned credits. Flexman did not "remember" a conversa-
tion with Dorn concerning Lenz' union membership . He testified that Lenz handed him
his union book and told him that he had made a mistake in joining the Union, and that he
gave the book to his superior who advised him to return it to Lenz . According of Flexman
he carried out this instruction . Lenz denied that he at any time gave his union book to
Flexman
31 As will be seen in subdivision B (1), infra, of this Report , the respondent during the
last week in June, 1943, installed its bonus system in a division of the department despite
the opposition of the employees to this method of wage incentive As a result there was
increased organizational activity. Flexman testified that there was a great increase in
-union activity in the summer of 1942 and that there was a " flare-up" of activity in the
gall of the same year which continued through the year and in 1943.
R. R. DONNELLEY AND SONS COMPANY 671
In his interview with the employees Flexman told them that since a "certain
court decision", the respondent felt that it could give the employees its side of
the story as it related to unions.39 Employee Alfred Schutt testified that
Flexman spoke "primarily" about Donnelley's and what it had to offer, referred
to the guaranteed minimum work week, and said that "security" at Donnelley's
was equal to union shops or better. Dorn testified that Flexman stated that if
the Union was successful, Donnelley's would have to raise the price of its
products, and as a result there would be less work and more slack seasons
during which the men would be laid off. Flexman also told these groups, or some
of them, that if 51 percent of the employees joined the Union, and 49 remained
non-union, the Union might call a strike and in that event the 49 percent would
"reap the harvest." {0 Clifford Lenz, one of the employees thus addressed,
testified :
Q. Had there been any talk of a strike by the employees at all at that
time?
A. No.
Q. Had you ever heard of any talk of strike in the shop at that time?
A. No.
Q. In all the time you were there had you ever heard any talk about strike
by the employees in your department?
A. No.
In one of his talks Flexman warned employee Allen Schmidt to "watch out"
for Bill Schragle, a union organizer, and referred to Schragle as a "shrewd
operator." "
Flexman, while admitting that he called the employees of the department to
his office, testified that he was following a suggestion made at foremen meetings
that it would be a good idea to talk to the employees "periodically" for the pur-
pose of bringing to their attention facts about Donnelley's and to find out if they
had grievances. He admitted that unions were discussed, and testified that an
employee of the first group summoned to his office, asked what would happen to
hun if the Union won a majority. He replied that normally the Union would
ask for an election and if it won it would become the bargaining agent. "I told
them," Flexman testified, "that if they [the Union] secured this 51 percent in this
election, usually they would try to organize the other 49 percent and one of
their methods of organizing was to call the ones that they had signed up out on
strike." He admitted that there was no threat of strike at the time he made
the statement. He was unable to recall the name of the employee who allegedly
initiated the discussion 6f unions, but testified "and from that time on I knew
that the unions were being discussed among the men, and I wanted them all
to have the same statement from me, so from that point on I initiated the
subject with the other groups myself." Flexman denied the statement attributed
to hint by West concerning his purpose in calling the employees to his office.
On the basis of the entire testimony, the undersigned finds that Flexman
called the employees of the department to his office in the fall of 1942 for the
s" This finding is based on the testimony of Board witnesses Lenz, Dorn and Alfred
Schutt, which the undersigned credits. Flexman denied that he made any reference to a
court decision.
40 This finding is based on the testimony of Board witness , Robert Cook Dorn and
Lenz testified similarly , and Flexman admitted that he made a statement with substantially
the same content
41 This finding is based on the testimony of Board witness Schmidt, which the under-
signed credits Flexman denied that he warned Schmidt about Schragle or referred to
Schragle as a "shrewd operator" but admitted that lie said that Schragle was a "smooth
talker."
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of addressing them on the subject of unions. The undersigned further
finds that he made the statements attributed to him by the Board's witnesses. It
is noted that these statements conform to the pattern of argument against unions
formulated and expressed by his superiors Flexman 's testimony thati the union
discussions were initiated by questioning of employees is identical with the
explanation of Flexman 's superior , Busby, offered in extenuation of his own
statements to employees against unions Flexman like Busby testified that once
an employee had made an inquiry concerning unions , he thereafter , without fur-
ther questioning , addressed other and different groups of employees on the same
topics.
In March 1943 , after Harry Caldwell 's name had been published in a union
bulletin as a representative on the^Committee 's Council , Caldwell was advised
by his foreman , Frank Johnson , Jr., that Flexman wished to see him in the
school room on the eighth floor of the plant. Here , in private conversation,
according to Caldwell, Flexman told him that lie was surprised to hear that Cald-
well had "gone union on him" and that the "publicity " had made Caldwell a
"marked man ," that he probably would not in the future receive the "respon-
sibility" which he deserved , but that he could "redeem" himself by resigning
from the Council . Flexman told him that the respondent appreciated "loyalty"
in its employees , and mentioned Axel Anderson , a foreman who was pensioned
'by the respondent , in that connection 12 Flexman said that he did not think the
Union could win an election and asked Caldwell to talk to employee Van
Horn outside of working hours and try to talk Van Horn "away from his union
leanings."
Flexman admitted that the conversation with Caldwell occurred He testified
that Caldwell was one of the first of apprentices who received his training under
Flexman's supervision , and when he saw Caldwell 's name in the union publica-
tion, he "felt very deeply about it and called him up there to the school to talk
to him about it." He reminded Caldwell of their friendship and that it was
through his " influence" that Caldwell had learned two trades According to
F'lexman, he told Caldwell that he was not talking to him as a supervisor but "man
to man " He denied that he told Caldwell that because of the latter 's union
affiliation he was a "marked man" or that he would not in the future receive the
"responsibility " he deserved . Flexman testified on cross -examination :
Q. You told him that you felt his actions incompatible with your friend-
ship and his loyalty to the company?
A. I meant it to be construed that way, yes.
The undersigned finds that Flexman made the statements attributed to him
by Caldwell . It appears that the entire association between Flexman and Cald-
well was that of supervisor and supervised , and at the time the conversation
occurred Flexman was manager of the department . Obviously , he could not
under these circumstances divest his statements of their coercive effect and
render respondent immune to responsibility for them, by the verbal sleight-of-
hand of telling Caldwell that he was not talking as a supervisor but as "man to
man."
Also in March , 1943, employee Dorn having received notice of a Union meeting,
told Flexman that he wanted to talk to him before attending the meeting. At
Flexman's suggestion they went to the eighth floor class room for privacy . There,
Dorn told Flexman that he wanted to know where lie stood with Donnelley's
before attending the meeting and that he was primarily interested in job security.
Dorn testified that Flexman replied, ". . . if you stick with the firm this time you
42 See subdivision A (5), infra, of this Report for further reference to Anderson.
R. R. DONNELLEY AND SONS COMPANY 673:
will be well taken care of " Dorn further testified that Flexman told him that it
was all right for him to attend the union meeting and that perhaps Dorn could
find out who belonged to the union and let him know. Flexman admitted that the
conversation occurred but testified that Dorn gave him assurance that all that
was said would be in. confidence. He admitted that he told Dorn of the advan-
tages of "remaining with the company,"" and that he referred to Axel Anderson
as one who : :has been loyal all these years . . ." 44 He also admitted that he told
Dorn that it would be all right for him to attend the union meeting, but denied
that he suggested that Dorn should report to him concerning Donnelley employees
who attended the meeting. Where there is conflict in the testimony, the under-
signed credits Dorn whom the undersigned believes to have been the more
truthful of the two witnesses and whose testimony, in large part, was corrobo-
rated by Flexman.
Other anti-union statements and conduct of Flexman are set forth in sub-
division B (1) of this Report which deals with the alleged discriminatory
demotion of Walter West.
5. Anti-union statements and conduct of department superintendents and
foremen 46
On or about December 6, 1942, Foreman Axel Anderson questioned employee
John Benshop about the attendance of union organizers at a bowling match, and
asked him if the employees signed union cards. During or about the same period,,
when there was a succession of union meetings for employees of Anderson's
department, he told Benshop that he heard some of the employees were signing
union cards and that they were a "bunch of damn fools." Anderson also ques-
tioned Earl Varcoe about the union meetings and asked him if he attended and
if he knew what employees had attended. He told Varcoe that he had been
employed by Donnelley's when the unions were in and when they were out and
they were "no damned good." Anderson told Miller, "The unions are no .. .
good . . . I know . . . I have had a lot of experience with them. Their main
object is to get their fingers into your pockets." 4e
Anderson was employed by the respondent in 1898. Prior to 1906 he had been
a member of a union which at that time had a contract with the respondent.
He was expelled from this union when he resumed work during a strike which
occurred prior to 1906. Shortly thereafter he was made a foreman and con-
tinued as a foreman until March 1943, when he was retired on a pension. He
testified, "I didn't want any of my boys to join the unions ... and I told them
frankly that I thought they were making a mistake if they joined the union."
Anderson further testified that Busby asked him it he knew which of the em-
ployees had joined the Union, and that lie replied, "They won't talk to me any
more," whereupon Busby said, "lt looks awful bad for us." Anderson advised
as Flexman admitted on cross-examination that his reference to "remaining with the
company" was to distinguish from affiliating with a union
Dorn testified .
Q. What did you understand, what impact was there on your mind by the use of
the word "loyalty" with reference to Axel?
A Axel Anderson was a strike breaker, he was a scab, he was anti-union, that he
was 100 percent pro-Donnelley. . . .
There are more than a thousand pages of testimony on this topic. In order not to
unduly burden the Report, the undersigned will set forth only such portions of the testi-
mony as appear to have a particular bearing on the issue Other testimony is omitted
because the undersigned considers it cumulatiN c
4° These findings are based on the undisputed testimony of Benshop, Varcoe and Miller,
which the undersigned credits.
625563-45=vol. 60-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Busby that he should not talk to the men any more about unions but should "let
them alone," after which, according to Anderson, Busby did not speak to him"
"Oh, he was very angry and blamed ine for it," Anderson testified, "What the
hell, I didn't put them in the union. I discouraged them all I could."
Busby denied that he made the statements thus attributed to him by Anderson.
The undersigned finds Anderson's testimony to be consistent with the entire pat-
tern of respondent interference with organizational activities of its employees
and credits it.
In the spring of 1937, employee Gunnar Holmquist had a conversation with a
fellow employee during which he stated that he had heard that the press room
was about 50 percent unionized. Shortly thereafter, Holmquist's foreman, Ed-
ward Warner,- called him from his work and asked him where he got his infor-
mation on organization in the press room and if he could point out the men whom
Holmquist had heard talking about organization in the press room. Warner
inquired, "Can you recognize them? Do you know their names?" When Holm-
quist answered in the negative, Warner said, "You know, Swede, I done you a
favor some time ago, I had your wages raised . . . and now you put me on the
spot." 48
In the spring of 1942, on an occasion when union representatives were dis-
tributing circulars to employees outside respondent's plant, Foreman James
Schwartz told employee Frank Vlach, that he "didn't see where the men would
gain anything by hooking up with them guys." '-Schwartz also said that the
employees "would be suckers" if they handed out money "for stuff like that."
In a conversation with employee John Perry, in which Perry apparently had
sought advice concerning hospitalization benefits, Schwartz raised the subject
of unions , and told Perry that "it was foolish to pay dues in unions . . . s 4B In
December 1942, Foreman McBride told Oscar Kammer and perhaps other em-
ployees in the department, that he did not see where the employees would "do
any good" by joining a union, that if they joined they would have less time and
make less money. Later, during a lunch period, he told Kammer that he "couldn't
understand where all the money was coming from to carry on a campaign such
as they [the Union] were against the Donnelley outfit." McBride further com-
mented, "There sure must be a lot of graft in this union outfit." 60 In February,
1943, Foreman Harry Engnell asked employee Charles Brown why so many of
the men were signing with the Union, and stated, "The unions wine and dine you
now and then take it out later. Look at your dues . . . Your unions are a bunch
of racketeers." 61
47 Miller and Benshop testified that after Busby began his series of talks to employees
of this department, Anderson ceased his anti-union activity.
48 These findings are based on Holmquist's testimony which the undersigned credits.
Warner, in respondent's employ for 34 years and a foreman for 28 years, denied that he _
told Holmquist that Holmquist had put him "on the spot," but otherwise did not contradict
Holmquist's testimony. He admitted on cross-examination that he did not recall whether.
he had conversations with Holmquist in 1937 about unions, and that it was "possible"
that he may have had the conversation concerning which Holmquist testified.
49 These findings are based on the testimony, respectively , of Vlach and Perry. Schwartz
admitted that he talked to Perry about hospitalization but testified, "I don't remember
talking to Perry about any union activity at that time." He did not remember having had
a conversation "individually" with Vlach but admitted that Vlach may have overheard a
discussion which he had with employees in which he spoke of the bonus and compared his
experiences at Donnelley's with his prior experience in other printing shops.
69 These findings are based on Kammer ' s undisputed testimony which the undersigned
credits McBride did not testify
61 These findings are based on the testimony of Brown. Engnell admitted that he had a
"long conversation " with Brown about unions which lasted " On and off for a couple of
weeks," during which Brown tried to "sell" him and he tried to "sell" Brown. He denied
R. R. DONNELLEY AND SONS COMPANY 675
In March 1943, Herbert Abraham, a foreman in respondent's rotary press
room, asked employee William Schott what he thought he would gain by joining
the Union, compared wages at Donnelley's with the wage scale which he read
from a union booklet many years old, and told Schott that having been with
Donnelley's for 27 years he would not gain anything by union affiliation. In
April, 1943, Abraham asked Schott if he had signed a anion pledge card. In
June, 1943, following the Union's public announcement of Robert Jurtsen as a
member of the Committee's Council, Abraham after remarking to Jurtsen that
he had shown initiative and had been advancing in his work, stated, "Now, you
have turned around. What is your connection with these outsiders?" Abraham
also told Jurtsen, "You know. . . you could probably go a long way in the company,
Bob, if you put your mind to work." 62
Foreman Earl McQuiston asked employee Torger Cornell, "Why are all these
boys signing up with the union when we know that their yearly averages working
for Donnelley are much higher than those of the average union man?" McQuiston
also told Cornell, John Meyer and other employees that there was a lot of union'
activity in the rotary press room and that they should consider the matter and
decide what they wanted to do. During this period, McQuiston showed the
employees with whom he discussed the Union, a list of several old employees who
had received retirement annuities or pensions. McQuiston thought the infor-
mation on pensions came from Busby and that he may have obtained it through
Superintendent Maurice Delworth. Following announcement of employee repre-
sentatives on the Committee Council, McQuiston asked Meyer if he was for or
against the Union, and when Meyer replied that he wanted further information
before deciding, McQuiston said he should see George Liska, whose name had
been announced as a Council member. Meyer remarked that Liska formerly was
anti-union , whereupon McQuiston said, "He is probably getting a good piece of
change out of it ..." -
In April, 1943, Superintendent Edwin Walker called employee Walter Ray
to his office and asked him if he belonged to a union, and when Ray answered
in the affirmative, asked him why.64 When in the spring of 1943, Walter Zad wore
a union button during his working hours, Superintendent Mark Castellanet told
him, "Now that you are in a union what do you think you are going to gain by
that he referred to the Union as a "bunch of racketeers" but admitted that he mentioned
a newspaper article and told Brown , "The union referred to there seems like it was doing
quite a bit of racketeering," and asked Brown if lie knew if the printing trades unions were
like that.
52 These findings are based on the testimony of Schott and Jurtsen which is substantially
corroborated by Abraham's admissions Abraham testified that he talked to Schott at
least 20 times about unions , and admitted that he asked Schott if he had signed a union
pledge card. He also admitted statements attributed to him by Jurtsen and testified that
be made the statements out of "personal interest."
ai These findings are based on the testimony of Cornell and Meyer substantially undis-
puted by McQuiston. McQuiston denied that he told Meyer with reference to Liska's
union activity that Liska was "getting a good piece of change" out of it, but admitted that
he told Meyer that Liska was a union organizer and "was paid for that " Questioned by
respondent's council, "Did you have talks with other employees in which you told them
that there was a lot of union activity in the department and that you thought they ought
to decide what they are going to dog", McQuiston answered in the affirmative
"' This finding is based on Ray's testimony which the undersigned credits. Walker
admitted that he called Ray to his office after he had been advised by Ray's foreman that
some of the employees in the department were "worried" and wanted to know if they
would have to join the Union Walker, while admitting that there was discussion of the
union (luring his conversation with Ray, denied that he asked Ray if he belonged to the
Union . He testified that he asked Ray if he or the employees on his shift had any griev-
ances It is clear from Walker's own testimony that his primary concern in calling Ray
to his office was the organizational activity which Ray's foreman had reported to him.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it?"" In the summer of 1943, John J. Foley, a foreman in the rotary press
room, told Wilber Hoffswell, as the latter was leaving his work shift, that unions
had nothing to offer employees and the older men would lose rather than gain.
Hoffswell had been in respondent's employ some 21 years. Foley suggested
that he speak to his fellow employees and discourage them from affiliating with
the Union. During or about the same period , in a conversation which occurred
off of respondent's premises, Foley asked employee Leonard Strom, "What is
the matter with you boys on your shift? Have you gone union nuts?" and told
Strom that if Donnelley's were a union shop he would not be working there
Later, in the plant, as employee John J. Panozzo was leaving his work shift,
Foley after "jiggling" the union button which Panozzo was wearing, said,
". . . you . . . Dago, I am surprised at you . . ." Foley then told Panozzo that
while pressmen helpers would benefit from the Union, he should consider the
"old timers." Foley had been employed by Donnelley's as a foreman for some
20 years 06
In September 1943, Jack Diebel, a foreman of respondent's rotary press room,
having started a conversation about unions with employees during their working
hours, asked them what they expected to gain from the Union and compared
Donnelley and union shop conditions. On another occasion during the same
month, lie asked employee John Kotan why the Union members were paying $4
a week for the unionization of Donnelley's and stated that if the Union won
some of the pressmen would not be able to hold their jobs under union con-
ditions.64
In the spring of 1943, Frank V. Johnson, a foreman in the rotogravure de-
partment, after observing Viigiuia Mitchell, a 'comparatively new employee, in
conversation with Clifford Lenz, whom Johnson knew to be an active union
member, approached Mitchell and asked her if she had signed a union card,
remarking that she appeared to be in a receptive or "responsive" mood. John-
son testified on cross-examination :
Q And you knew at that time Lenz was an officer of some kind of union?
A. Yes, I did
Q And you were concerned about Lenz going up and talking to a new
employee? -
A. Yes.
Josephine Grages, a packer girl, testified that in May 1943, her forelady and
immediate supervisor, Mrs. Irene Mack,` approached her during working hours
and told her that while employees could join a union if they wished to, they
51 Castellanet admitted that he questioned Zad about his union affiliation, and testified
that having recommended Zad for promotion and the change having been made, he "couldn't
understand why he would be dissatisfied after that."
60 These findings relative to the Foley statements are based on the testimony of Hoffswell,
Strom and Panozzo which the undersigned ciedits Foley admitted that the conversations
occurred He testified that he advised Strom against unions because he had a personal
interest affecting his livelihood. He testified that Hoffswell initiated the discussions of
unions by saying that the employees were "nuts" and would find out when they got
"hooked up" with the Union. According to Foley, he then asked Hoffswell why he did not
do something about it -
67 These findings are based on the testimony of Kotan and Schott which was substantially
corroborated by Diebel Diebel testified that on some occasions employees volunteered
information about their union activities and that on others he would "interrogate them
about it " He admitted that he advised employee Thoma, Cummings with reference to
unions, that Cummings should think things over clearly "before he did anyhing that he
would be sorry for . . .
sa Mrs Mack's name was Mrs Irene Maciejewski but she was known in the department
as, and was called, Irene Mack.
R. R. DONNELLEY AND SONS COMPANY 677
"wouldn't get any place" by joining but that they would lose their bonus and
the full work week during slack seasons. Mrs. Mack admitted that she asked
Grages if she had signed up with the Union, and that during the course of an
ensuing conversation she told Grages that she did not, think that under union
conditions the employees would continue to get their bonus or the 40 hour
guaranteed work week: Mrs. Mack, testifying that she was an "assistant fore-
woman," admitted that she had supervision over about 40 girls and that she
"bossed" the girls on her shift. Grages' testimony, substantially corroborated
by Mrs. Mack, is credited, as are Mrs. Mack's admissions also
Further testimony concerning alleged anti-union statements and conduct of
supervisory employees, is set forth in subsequent subdivisions of this Report.
6. Respondent's responsibility for anti-union statements and conduct of its
foremen
Respondent concedes that statements and conduct of supervisory personnel
above the rank of foremen, are attributable to it. Respondent's counsel in oral
argument before the undersigned conceded that if anti-union statements and
conduct of foremen are attributable to it, a finding of S (1) violation of the
Act might properly be made, but denied that such statements and conduct of
foremen are attributable to the respondent, inasmuch as foremen are eligible
for membership in the Union, and normally would be included in an appropriate
unit for purposes of collective bargaining. The undersigned believes that it is
clear that foremen and other supervisory personnel of lesser rank are eligible
for union membership, and normally would be included in an appropriate unit."
Eligibility for union membership and inclusion in an appropriate unit while a
factor to be considered, is not of itself conclusive on the issue of whether the
anti-union activities of these supervisory employees are attributable to the
respondent. The statements and conduct of foremen are not properly viewed
in isolation but in the context of the total situation of respondent policies with
reference to organizational activities of its employees. If respondent may be
said to have authorized or ratified the conduct of its foremen, or if in view of
the total situation, employees may reasonably believe that foremen in their
anti-union statements and conduct represent management, such statements and
conduct are properly attributable to management.'
Respondents supervisory hierarchy'is headed. by Busby, the general plant
superintendent, who is answerable directly to Zimmermann, the executive vice
president. Department heads, called variously department managers, super-
intendents and general foremen, are next in rank and are answerable to Busby.
The foremen, supervise groups or divisions within a department, and are answer-
able to the department heads or general foremen. They exercise all of the
authority common to supervisors. They instruct and supervise groups of em-
ployees, and have the authority to reprimand and to discharge. In the normal
employer-employee relationships they represent management and are answerable
to management for a proper adherence to managerial policies. Thus, T. E. Don-
nelley testified :
These foremen have been with us for years, they know our policies. They
obey them. They sometimes make errors unwittingly, or a bad piece of
cs Jones & Laughlin Steel Corp , 51 N L R B 1204 ; Service Printers, Inc , 54 N. L R B.
1082
'ON L R . B. v. International Ass'n of Machinists , 311 U. S 72 ; N. L R. B v Link-
Belt Co , 311 U S 584 See also, Ever Ready Label Corp , 54 N L R. B. 551.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
judgment We have never had anybody I know of in the history of the
business who has absolutely gone against orders from the top.
As has been seen, the respondent has repeatedly voiced its policies with refer-
ence to the organizational activities of its employees, through letters and notices
and speeches of its executives, and its general plant superintendent. It has not
adopted a "hands-off" or neutral attitude in these matters itself, nor has it re-
quired of its foremen that they should pursue a hands-off or neutral attitude
while on duty and while exercising their normal supervisory functions. To the
contrary, through its foremen meetings it has instructed its foremen as to what
is permissible for them to say to employees on the subject of unions.
Busby testified that beginning on or about the last month in 1937, meetings of
department heads at which he presided were held weekly, and that from January
1938 foremen meetings were held monthly." Normally, foremen meetings are
presided over by the respective department heads, although on numerous occa-
sions Busby has addressed these meetings also. Busby testified that the foremen
meetings were started "to make sure that all of our foremen understood and
complied with all the laws and regulations," and that the "scope of the subject
matter" considered at meetings of department heads and of foremen was iden-
tical. It is clear from the entire testimony, that the principal topic of discussion
in these meetings of foremen and department heads, was the Union.62
- Busby testified that the foremen meetings were conducted in the manner of a
round table discussion. A foreman would state a question which he considered
that he might be asked by an employee concerning union affiliation, and discussion
would follow and a proper answer would be formulated. In some of the meetings
both questions and answers would be written on a blackboard and the foremen
would take notes. . . : Busby testified, ". . . we would work out-what we thought
was a correct answer, a fitting answer, that was within the law, and tell them
that was the thing they could say if asked " He further testified on cross-
examination :
Q In talking to the employees you wanted the foremen, did you not to
carry out the policy of the company as it was formulated by yourself and
the men under whom you were working, is that right?
A. Well, we want the place to be an open shop. We believe that it ought
to stay the way it is. We told the foremen what they had a right to say
if asked . . . we told them that they could talk about the advantages of
working at Donnelley's.
The answers to hypothetical questions which might be asked, as formulated
and approved at these foremen meetings, adhered to the pattern of respondent's
routine arguments against the unionization of its employees, as set forth in
the letters, notices and speeches of its executives. Thus, Foreman Johnson _
testified that if asked by an employee whether he had to join a union, the fore-
man was instructed to answer that "Donnelley had stated that he would never
sign a closed shop agreement and that the President of the United States had
si Flexman testified that there were meetings of department heads every week for a few
months, and then only when there was something important to pass on to the supervisory
staff.
62 Foreman McQuiston testified that after January 1, 1-943, the eptire discussion of fore.
men meetings presided over by Superintendent Sperry was confined to union activity.
Questioned on cross-examination , "The principal discussion when Busby was there was
union activity , too?" McQuiston testified , "Well , I would say it was about half and half,
possibly ." Foreman John V. Johnson testified that about 40 percent of the time consumed
in foremen meetings that he attended was on the topic of unions.
R. R. DONNELLEY AND SONS COMPANY 679
said he would' never force employers to sign a closed shop agreement." Fore-
man James Schwartz testified similarly :
Q. Were you told what you could say if he asked you whether he had
to join to keep his job?
A. I would tell him that he wouldn't have to join any union to hold a
job, and I would also mention to him that the President of the United
States made a statement that he would never make any man join a union
to hold a job.
Foreman L. D Maxwell testified that Busby said the foremen should talk to
the men and explain that present conditions at Donnelley's were better than
they would be under union conditions, "and he tried to tell us certain things
we could say to the men and not get in trouble with the Government." "
According to Maxwell, Busby would conclude his talks by advising the foremen
that while it was the employee's privilege to join a union if he wished, the-
foremen should "try to point out to the men where they would be foolish if
they did," that the foremen should Will the employees' confidence and explain
that they were better off at Donnelley's without a union. Questioned, "And
were you instructed to repeat the statements to the employees?" Maxwell
testified, "Not directly. It was indirect. He [Busby] was telling all this,
that we would go tell the men, but he never came right out and said to go tell
them." Foreman Walter West64 testified concerning the foremen meetings:
The impression I got was that he [Busby] was trying to convey to us
the idea we should convey it to the men . . . and yet in such a way that
it wouldn't involve the company in any lawsuits, or damage. We were
to use our own-the idea was to be brought to the men but yet we were to use
our own idea in such a way that the management wouldn't be held respon-
sible. In other words, we were holding the bag.
The following are excerpts- from Foreman Johnson's testimony on cross-
exam-ination:
Q Then, to summarize the effect of the foremen's meetings, Mr. Johnson,
is it fair to say that Mr. Busby gave you at those meetings the company
viewpoint on all these subjects which Mr. Busby told you to transmit to
the employees?
A. Mr. Busby did not specially say transmit these things to the em-
ployees. He gave us our own limitations as representatives of management
so that we could keep within the law, the spirit of the law.
Q. But when he gave you these statements, did you not understand that
he was giving you the company viewpoint?
A. Yes, for our benefit.
Q. Yes. And specifically for repetition to the employees, isn't that right?
A. If we had occasion to use it. [Italics supplied ]
In addition to the meetings of foremen and department heads, there was a
constant line of communication concerning organizational activities of eYnploy-
.ees, extending from the foremen to Busby and through him to the executive
staff. Busby admitted that department heads and foremen frequently brought
him information on union meetings and other organizational activities of the
e3 Maxwell voluntarily severed his employment with respondent in May, 1943, to become
an organizer for the Union. He had been in respondent's employ some 25 years
ea West was a foreman from June 1940 until April 15, 1943, when he was demoted to a
non-supervisory position.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, and that foremen advised department heads of union activities in
the divisions under their supervision respectively. He testified on cross-exam-
ination:
Q. As a matter of fact, during the entire period you have been superin-
tendent-your foremen kept you well informed on these subjects, have they
not?
A. They have talked to me about them.
Busby further testified, "Well, we have been going along and trying to keep
this place an open shop and, therefore, we are interested in knowing whether
we have succeeded in doing that or not." Foreman Isom testified that be had
on occasion reported to Busby on organizational activities on the basis of
information he gained from employees, either through interrogation or their
voluntary statements Foreman Diebel testified that he would question the
employees in his division about union meetings, the number of employees that
attended, and what was said by the organizer, and that he on occasion passed
such information on to Busby. "I thought he would be interested, and I wanted
him to have it," Diebel testified ; and, "I might have been up in Mr. Busby's
office an hour or so a week giving him information." Busby while denying,
that he requested such reports, admitted that he received them and that he
did not reprimand a foreman for bringing him such information. "Whenever
they brought me information I have accepted it," he testified
Busby's receptiveness to reports from foreman and department heads on
union activities in their respective departments, was tantamount to approval
and ratification of such action, and is further evidence of respondent's actual
identification with the anti-union conduct of its foremen. While the record
discloses several instances of employees who were reprimanded for alleged
union activities during working hours, the record affords no single instance of
any foreman or supervisor having been reprimanded for engaging in activities
hostile to the union during his working hours and while on duty as supervisor,
although in view of the prevalence of this activity, the respondent clearly had
knowledge of it. In such instances, however, as the record affords of fore-
men whose actions tended to favor unions, the respondent was quick to note
its disapproval.
When Foreman William Holzkamp attended a union meeting while on sick
leave, his superior, General Foreman Maurice Delworth, told him that he should
report to Busby at once on his attendance of the union meeting "before some-
body else got there first." Thus prompted, Holzkamp, accompanied by Del-
worth, went to Busby's office and told Busby, "I made a terrible mistake. I
went to a union meeting last Wednesday." " Thereafter, Busby talked to Fore-
man Maxwell, told Maxwell that he knew that Holzkamp attended a union
meeting and asked Maxwell if Holzkamp was a member of the Union. Maxwell
was also advised by Holzkamp that Busby had asked him if any foremen had
attended the union meeting, and specifically inquired if Maxwell attended."
aF This finding is based on the testimony of Delworth and Busby . Delworth testified that
he thought it was "a kind of dishonest thing" for Holzkamp , a salaried foreman , to attend
a meeting while lie was on sick leave , but admitted that there would have been nothing
improper in Hoizkainp ' s stopping by a cigar store or shopping for groceries Asked on
cross -examination , "And you thought . it was because he went to a union meeting it
was dishonest , isn't that true1 " Delworth testified , ' Well, if you want to put it that way,
yes." Busby testified that he told IIolzkamp that his attendance of a union meeting would
not affect his employment status , and in view of Holzkamp 's obvious penitence , the under-
signed finds this testimony credible Holzkamp did not testify.
ss This finding is based on Maxwell's testimony which the undersigned credits Busby
denied questioning either Holzkamp or Maxwell concerning the other 's union activity.
R. R. DONNELLEY AND SONS COMPANY 681
On or about December 13, 1942, Superintendent Delworth called Maxwell at
the latter's home and told him to report to Busby's office.67 Busby told Maxwell
that he was advised that there was much union activity among the employees
of his shift and that he should "talk to the men, gain their confidence, point
out where they are worse off if they join the union than they are now . . ."
According to Maxwell, he refused to agree to this action. On December 14,
Busby made a speech to employees of Maxwell's department, referred to else-
where in this Report. On the same night he asked Maxwell if he did not want
to transfer to the day shift. Maxwell refused. In March 1943, Maxwell advised
Busby that he was in favor of the Union and thought Donnelley's would be
better off if it were unionized. Busby replied that he could not understand
Maxwell's attitude but that it would make no difference in the treatment
accorded him by Donnelley's and he hoped that Maxwell would "see the light." ea
During or about this same period, following a regular foreman's meeting, a
special meeting attended by most or all of the foremen of Maxwell's department
except Delworth, the general foreman or superintendent, was held in- the plant
during working hours, with respondent 's permission Foreman Engnell testi-
fied that the purpose of the meeting was "to talk to Mr Maxwell. . . . To see if
we couldn't get him to use his influence to try to straighten the thing out that
was going on at that time . . . That was this union activity." The following
are further excerpts from Engnell 's testimony : -
Q. Just explain what you mean by that statement.
A. Well, there was a number of us that thought that Maxwell was actively
engaged in unionizing. -
Q. You also thought that Maxwell was permitting the union to get too
strong in his department and you wanted to talk to him about that?
A. Yes.
Q. You wanted to discourage Maxwell from permitting union activities?
A. That is right.
Q. And from permitting his employees to join the union?
A. We wanted him to use his influence in trying to persuade these fellows
against unionism °B
Engnell denied that the meeting was held pursuant to instructions from
Busby, and did not recall having had a conversation with Busby about the
meeting prior to the time when it was held, although he further testified, "I
think I did say something to Mr. $usby afterwards . 'I don't know, but it
was a long time afterwards."
The undersigned believes it is unlikely that the respondent would have no
knowledge of the purpose of a meeting of its foremen , held in the plant during
their working hours, with respondent ' s permission. Certainly , respondent's
foremen would not thus have taken time from their duties as foremen, time
for which they were paid by the respondent , for the purpose of bringing pres-
sure to bear upon Maxwell to conform to respondent 's general pattern of dis-
BT Maxwell was foreman on a night shift and had remained at home due to inclement
weather.
99 Busby testified that he summoned Maxwell to his office and told him that union
activity on company time must be stopped , and admitted that on December 14 he asked
Maxwell if he did not want to transfer to a day shift ; he testified that during October
Maxwell had asked for a transfer . Otherwise , he denied the statements attributed to him
by Maxwell In view of the generally unsatisfactory character of Busby 's testimony, the
undersigned credits Maxwell ' s version of the statements.
89 Foreman Abraham testified similarly that union activity on Maxwell ' s shift was one
of the principal things discussed at the meeting. I
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraging union activity, had they not had grounds for believing that they were
thus acting with impunity and with respondent's sanction. The record bears
no evidence or suggestion that they, or any of them, were thereafter repri-
manded or penalized for the action which they had taken 40
Conclusions
From the foregoing and the entire record, it is clear and the undersigned
finds, that from 1938 to the present time, the respondent has conducted frequent
meetings of its department heads and foremen in which the respondent's anti-
union policies are formulated in specific answers which the departments heads
and foremen are advised they may give in response to questioning of em-
ployees. Such "advice" stemming from respondent's general plant superinten-
dent, and offered in meetings in which general personnel problems were also
discussed and concerning which instructions were given, was tantamount to
instructions. While the foremen were instructed not to say anything "deroga-
tory" of the Union and Union leadership and to advise employees of their
freedom to join or not join unions, the answers given them for transmission to
employees were without exception- adverse to the organizational objectives of
the Union and were clearly intended to have the effect of discouraging union
affiliation of Donnelley employees. The respondent thus deliberately extended
Its medium of anti-union propaganda throughout its supervisory ranks, and
made of its foremen and supervisors agencies of transmission, for not only did
it instruct them that they might discuss organizational activities with the em-
ployees, without reference to their working hours, but it told them what to say. 1
If, in talking with employees, some of the foremen extended their remarks
according to their individual concept of what was appropriate to the occasion,
they were still ostensibly acting within the framework of their authorization
by management and within the general pattern of managerial opposition to
unions, since they engaged in this activity during working hours and while on
duty -as supervisors and the respondent, through statements of its executives
and talks and speeches by its general plant superintendent, furnished the frame
of reference for their remarks. Therefore the testimony of foremen that they
spoke to employees out of "personal interest" and in violation of their instruc-
tions, can not serve to render respondent immune to responsibility for their
statements and conduct. The employee, under the circumstances, would not
normally be able to distinguish between statements and conduct of his foreman
as foreman and his foreman as one who was merely expressing a personal opin-
ion in no wise representative of management'
It is also clear from the foregoing' that while authorizing and directing its
foremen to engage in activity adverse to the Union, no equivalent latitude was
40 Walter West signed a union card in December 1942 and in April, 1943 was demoted to
a non-supervisory position. Since it is alleged that the demotion was discriminatory,
further discussion is reserved for a subsequent subdivision of the Report.
11 Compare Matter of John H Harland Company, 35 N L R B 76, in which the under-
signed and the Board found that the employer was not in violation of Section 8 (1) of the
Act because of conduct and statements of its foreman who were eligible for membership
In the union.
12 In point is Foreman Isom's testimony that having reprimanded employee George Ander-
son for allegedly having engaged 'in union activity on company time, he a few moments
later questioned Anderson concerning the latter's union affiliation. In administering the
reprimand Isom admitted he was acting as a foreman in behalf of management, but he
testified that in his subsequent questioning of Anderson concerning the latter's union
affiliation , he was acting out of "personal interest".
R. R. DONNELLEY AND SONS COMPANY 683
accorded them to engage in conduct favorable to the Union. Thus Manager
Flexman testified that Donnelley's "certainly did not expect the supervisors to
engage in any union activities."
Attention has already been directed to Busby's concept and observance of
his injunction that supervisors should not initiate union discussions. In con-
sideration of the entire record, it is impossible to reach a reasonable conclusion
other than that the injunction was actually an adroit effort to evade legal
responsibility and, in fact, a pretext, and was so regarded by the entire super-
visory personnel73 It is seen that respondent's entire course of action was
such as to provoke questioning and that, in any event, the injunction never to
initiate a discussion of unions with employees, was honored more in the breach
than in the observance. -
Upon consideration of the entire testimony and record, the undersigned finds
that anti-union statements and conduct of respondent's entire supervisory hier-
archy, including foremen, are attributable to it.
7. Inquiries regarding union meetings, union affiliation and activities of em-
ployees; and maintenance of a system of reports thereon
Previous mention has been made of a_reference inquiry or questionnaire used
by the respondent prior to 1933 This form or inquiry was sent to prior em-
ployers of an applicant for employment at Donnelley's, and contained the ques-
tion: Was applicant a member of any labor organization? T. E.' Donnelley
testified that he thought this question was omitted from the reference form
subsequent to 1933. There was received in evidence, however, a_reference form
dated May 13, 1937, addressed to a prior employer of Harold Gunther (see
sub-division A 9 (b) of this Report) which contained this same question. After
the introduction of the document, the respondent admitted that "inadvertently"
the old reference form containing the inquiry as to the applicant's union
affiliation during prior employment, had been used 1,020 times since August 4,
1933, and prior to November 19, 1943. The last use of the form containing this
question, according to respondent, was May 13, 1937, the same- date as that
appearing on the Gunther reference form which had been introduced by the
Board.
Employment Manager Chapman testified on cross-examination that in 1937
he was reprimanded by Littell and Donnelley for the continued use of the old
form, and that he in turn reprimanded the stenographer in his office responsible
for continuing to send out the old form after 1933. Chapman's further testi-
mony that use of the old form was unintentional or inadvertent, is not
credible, nor does the undersigned credit his testimony on cross-examination
that he was reprimanded by Littell and Donnelley. This latter testimony the
undersigned believes to have been an afterthought and a fabrication. Chap-
man admitted that he studied the inquiry forms to see if a new employee was
T3 Thus Busby approached Zad and asked him if he had questions to ask, and when Zad
replied that he had none , Busby continued nevertheless to discuss and argue against unions.
Flexman testified that once employees have raised the question of unions, he thereafter
felt free to initiate discussion Rith other groups of employees. Questioned, "Wasn't that
in violation of your instructions?" Flexman replied, "No, I don't believe so, because the
subject had originally been raised by an employee." Foreman McQuiston testified that
the subject of unions having been raised by an employee, he might meet this employee a
month later and discuss unions with him and that he would consider this latter conversa-
tion a continuation of the first. The ultimate reductio ad absurdum of this position is
that once an employee had asked a question of managerial representatives , these latter were
thereafter free to voice ad infinitum their arguments against unions to all employees.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "kind to keep," and that he saw "all the records" before they were filed'
In the "live file." It is obvious, therefore, that 1,020 inquiry forms used by
the respondent since 1933 would not have completely escaped his notice.
Donnelley testified concerning the use of the reference inquiries prior to 1933-
Q. Now, one of the reasons for these reference letters was to find out
whether the employee was a member of a labor organization, was it not?
A. Yes, that was one of the principal things
As previously noted, prior to 1933, the applicant was required to state on.
the application form whether or not he was affiliated with a labor organiza-
tion. There is evidence that some applicants for employment were questioned
concerning their union affiliation subsequent to that-date Clifford Lenz who
applied for work in 1936; and John Pflaumer and John A. Netz who applied in,
1942, testified that at the time they filled out their application forms they were
questioned orally by Chapman relative to their union affiliation. This testi-
mony, denied by Chapman, was convincing and is credited.
In addition to the foregoing, it has been noted in prior sub-divisions of this
Report, that respondent through its department heads and foremen questioned
its employees, during their working hours, regarding their union affiliation and'
activities It has also been noted that respondent's foremen reported to their
department heads and to Busby regarding union activities among the employees
of their respective departments. Busby, in turn, made reports to his superiors
on the union activities of the employees Thus in the summer of 1943, Zimmer-
mann received from Busby written memoranda regarding union meetings. A
memorandum of June 17 reported on the alleged attendance of "several officials
of the C. I. 0." at a meeting of the Committee's Council. "I understand," the
memorandum stated, "that the Donnelley organizers who were at the meeting'
were very much disturbed about these C. I 0. men and that it created a very
unfavorable impression in their minds." A memorandum of June 21 reported
that about 30 Donnelley employees attended the formal opening of headquarters
of the Pressmen's Union. The memorandum of August 5, 1943, reported on a
meeting of the Pressmen's Union, and stated inter alia, "They discussed plans
for a picnic and said that they needed to have one as they were running out
of ideas and also running out of funds and-they tliought the picnic might bring
in some new members and also put some money in their treasury." The same
memorandum reported that 40 or 50 Donnelley employees had attended a meet-
ing of the Mailer's Union, and further stated that this union by providing Don-
nelley employees with week-end work had "interested quite a number of them
in the Union and some of them have signed up." 44
In addition to the written memorandum, Zimmermann testified that he received
oral reports on union activities, and that before Littell became ill these reports
were made to Littell, and that both Littell and Donnelley received reports that
never reached him. Donnelley testified that he had been advised by the em-
ployment department of Union meetings and that "When our men are involved,
if they have the information, they let me know." According to Donnelley, how-
ever, such reports were- casual and there was no "system" of reporting. He
also testified that he had on occasion inquired of foremen how the Union "was
14 Busby testified that the information contained in the memoranda was "volunteered"
by foremen The undersigned has found, however, that Busby by his acquiescence and
receptiveness in the receipt of such information , has in effect fostered and ratified a
system of reporting by foremen concerning the union activities of their respective
departments.
R. R. DONNELLEY AND SONS COMPANY 685
getting along in the plant." Through the Union's series of radio broadcasts s
and bulletins and other publications, the respondent was advised of certain
phases of the Union's organizational activities and participation therein of cer-
tain Donnelley employees, but no culpability can be attributed to it because of
its receipt of such information through public channels
It is not doubted that there is a zone within which the employer may legiti-
mately inquire of its supervisory personnel and receive repoits from them, re-
garding the union activities of the employees, as long as it does not constitute
these supervisors its agents or otherwise encourage them in harassment of em-
ployees by inquiries concerning their union activities, surveillance, and like
practices. In the opinion of the undersigned the respondent has exceeded what
is permissible in this respect, in that it has through its general plant superin-
tendent, department heads and foremen, instituted inquiries regarding union
meetings and the attendance thereat of Donnelley employees, questioned its em-
ployees concerning union meetings, their union affiliation and activities, and fos-
tered an informal but nevertheless consistently maintained system of communi-
cation regarding union activities extending from the lowest ranks of its super-
visory hierarchy to its principal executives. The totality of this conduct, occur-
ring as it does in a context of anti-union statements and acts calculated to dis-
courage union affiliation, constitutes interfereilce, restraint, and coercion within
the meaning of Section 8 (1) of the Act.
8. Respondent's hiring policies.; discriminatory refusal to employ
Prior mention has been made of the apprentice school which respondent estab-
lished in 1908. Beginning in 1915, this school furnished the respondent with
skilled workmen, and after 1930 substantially its entire needs for additional
skilled personnel. As a result, respondent's hiring of skilled workmen from the
"outside" has been negligible. Recently, due to induction of employees in the
armed services, respondent has "up-graded" or trained substantial numbers of
its apprentices and employees in the lower branches of the skilled and unskilled,
to fill its personnel requirements. Its position is that it has taken this action
because there are not available from outside sources, competent and skilled
workmen. Admittedly, it has made no inquiries of labor organizations concern-
ing availability of skilled union workmen; also, it appears that it may have been
advised that there are union- craftsmen available for employment and that it
has not sought to avail itself of this source of skilled workmen. It does not
appear, however, that the Act places an affirmative duty upon the employer to
seek union applicants for employment on the basis of general information that
such applicants are available in the labor market Such non-action does not con-
stitute refusal to hire. It is only when the applicant presents himself for em-
ployment and is refused because of his union affiliation or activities, that a vio-
lation of the Act's interdiction of discrimination in hiring occurs.
It is contended that a finding of refusal to hire because of union affiliation,
should be inferred because it is shown that in the hiring of thousands of un-
skilled workmen the respondent has hired only a few whom it believed or knew
to be affiliated with a labor organization. In support of this contention, there
was introduced in evidence a list containing 84 names which the respondent pre-
sented in proceedings before the National War Labor Board. This document
was dated February 10, 1943, and purported to be a list of employees hired from
1933 to February 10, 1943, whose applications showed that they had formerly
TB Beginning in January, Busby had his secretary make a stenographic transcript of all
of the Union 's radio broadcasts which related to the organization of Donnelley employees.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked for union employers. No question was raised concerning the authenti-
city of this document and, in absence of further showing, the undersigned
assumes that this list contains the names of all persons hired during the period
stated whom the respondent inferred or knew were members of a labor or-
ganization7e During the period of from April 1, 1938, to October 18, 1943,
respondent hired some 22,397 employees." It reasonably may be assumed that
during the entire period from 1933 to February 10, 1943, the respondent hired a
great many more than the 22,397 figure. The percentage of persons hired during
this period whom it knew or believed to be union members is seen therefore
to be very small. There is no showing, however, of what percentage of the
available labor supply during this period was union or non-union, or what per-
centage of the available supply of union labor actually sought employment at
Donnelley's, nor are there facts in the record ar of common knowledge from
which inferences may be drawn to make a complete statistical picture to serve
as a basis for findings. I
In further support of the allegation that the respondent's hiring policy is dis-
criminatory, 9 witnesses, each of whom was affiliated with a union or had-been
in his prior employment, testified that they applied for employment at Don-
nelley's and were refused.
Earnest D. Simmons testified that in 1931 or 1932 he mailed an application
blank to Donnelley's and ieceived a reply from Chapman stating that he would
be notified if help was needed. In October 1935, he received a telephone call from
Chapman asking him to come to respondent's'employment office. At the office
he filled out an application blank that was identical with the one he filled out in
1931 or 1932. According to Simmons, Chapman told him that he could not work
at Donnelley's if he was a member of a union and suggested that he give up his
union card in order to obtain employment. Some 2 weeks later, Simmons dis-
cussed with Chapman the job to which he would be assigned in the event he was
employed. He testified that he refused Chapman's suggestion that he give up his
union card, and was not employed. Chapman testified that he had no recollection
of any conversation with Simmons but was certain that he never advised Sim-
mons that he could not work at Donnelley' s if he was a union member. The
undersigned has not found Chapman to be a credible witness, but doubts that
Chapman, as late as October 1935, would have made the bold suggestion to an
applicant for employment that he give up his union card in order to obtain
employment at Donnelley's. The undersigned therefore has a substantial doubt
as to the accuracy of the dates stated in Simmons ' testimony and finds that
Simmons was not refused employment in violation of the Act.
Stanley Howell, Milton Bowman, Leon Green, Arthur and Ben Schaffer, and
John J. Dowd, each applied for and were refused employment in 1942 or 1943.
The undersigned has considered the entire testimony relative to the refusal
to employ these individuals, and finds that no inferences adverse to the respond-
ent can be drawn from it, inasmuch as there is no evidence that respondent had
knowledge of their union affiliation other than that such knowledge may have
been inferred from the fact that they had previously worked in union shops, or
that there were job openings at the time they applied which they were qualified
79 The Union presented testimony to the effect that of the 84 whose names appeared on
the list, a large percentage were not actually affiliated with a union at the time they
applied for work at Donnelley's. There is no evidence however that the respondent was
advised of the non-union affiliation of these individuals.
77 During slack seasons , there was a severance of the employment of large numbers of
unskilled workmen many of whom were subsequently rehired It would appear that this
figure includes the rehiring as well as the initial hiring of individuals.
R. R. DONNELLEY AND SONS COMPANY 687
and competent to fill, or that, if these were such job openings, they were actually
filled with non-union applicants. All of the aforementioned persons with the
possible exception of Howell, applied for skilled labor jobs.
Philip Giganti, who in answer to an advertisement applied for employment
as a pressroom helper in August 1941, testified that his application blank con-
tained a question relative to his union affiliation and that he answered the
question in the negative. He gave the name of a union shop as his former
employer. Later, he received a letter stating that the respondent had nothing
to offer him. In the opinion of the undersigned, no reasonable inference can
be drawn from his testimony that he was refused employment because of his
union affiliation.. -
Andrew Guzzo testified that he applied for employment in 1942 and was ques-
tioned by someone in the employment office, whether he was a union man.
According to Guzzo he replied, "I am and I am not." He testified that pursuant
to instructions, he returned a day or two later, and explained, "I am a union
man in a union shop and when I am in a scab shop I am a scab." According to
Guzzo the official in the employment department thereupon advised him, "seeing
you can't make up your mind, the Company can't use you." Guzzo's entire
testimony lacked convincingness and the undersigned does not credit it.
In the Fall of 1938 or 1939, Stanley Klaviter, then employed by the WPA, asked
L. D. Maxwell, his neighbor, if Maxwell could get him a job at Donnelley's.
Maxwell, then a foreman in respondent's rotary pressroom, spoke to Chapman
about Klaviter and Chapman suggested that he bring Klaviter to the plant.
Pursuant to this conversation, Maxwell brought Klaviter to the plant and
introduced him to Chapman. Maxwell testified that Chapman told him, "This
fellow Klaviter is really an all right looking man," and that later he saw Klaviter
in the employment office and told him that he would arrange for his physical
examination. Maxwell then spoke to the nurse, Helen Johns 48 Germain, and
asked her whether she could take care of Klaviter's physical examination since
the latter was going to ride home with him.
Maxwell testified that while he was talking to the nurse, Richard Wise, assist-
ant to Chapman, came into the dispensary and said, "For God's sake, why bring
a man down here like that?" Maxwell said, "What's the matter with him?" and
Wise replied, ". .. he belongs to the Steelworkers Union . . . We can't have
a man like that around here." Maxwell asked Wise how he knew that Klaviter
belonged to a union, and Wise replied that Klaviter in filling out his application
blank, told John J. Chapin, interviewer and assistant to Chapman, that he
belonged to a union and that while he was not paid up in his dues, he intended to
pay them.
Maxwell further testified that the Wise statement was made in the presence
of the nurse, and that later, on several occasions, he discussed the incident
with Mrs. Germain and that she recalled the Wise statement. Mrs. Germain left
Donnelley's on March 5, 1943, to enter the armed services ; in the Fall of 1943 she
was in Chicago on furlough. Maxwell testified that he entertained Mrs. Germain
in his home at the time she left Donnelley's to enter the armed services, and
that on this occasion, they drove to Cedar Lake, Indiana. According to Maxwell
the Klaviter incident was discussed and Mrs. Germain confirmed her recollection
of the Wise statement. This testimony was corroborated by that of Mrs. Max-
well. Maxwell further testified that in the Fall when Mrs. Germain was in
Chicago on furlough, she called at the union office, where he was then employed,
78 Helen Johns was married in 1940. For uniformity she is referred to herein as Mrs.
Germain.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that they together visited Di Pietro's office. "I had already told Mr. Di Pietro
of the [Klaviter] case and I told him at that time Miss Germain was there to
verify it . . . " Di Petro called Packard, the Board's attorney, and made an
appointment for Maxwell and Mrs. Germain. Maxwell and Mrs. Germain then
went to Packard's office.
According to Maxwell he had already given Packard a written account of the
Klaviter incident and Wise's alleged statements with reference thereto Packard
questioned Mrs. Germain concerning her recollection of the Wise statements and
she affirmed that she recalled the statements and that Maxwell 's written account
of the statement was true. Maxwell testified that Mrs Germain discussed an
incident involving a person other than Klaviter, but that Packard stated that
he was not interested in it since it involved alleged discrimination on account
of religion.
Klaviter testified that while filling out an application blank, Chapin asked him
if he belonged to any organization, and that he replied, "Yes, I belong to Federa-
tion of Labor." Klaviter further testified, ". . . and I told him, I said I wasn't
paid up at that time, but if I would get a job I would pay it up and come in "
According to Klaviter, at a place of prior employment, he had belonged to an
affiliate of the American Federation of Labor for steel and foundry workers.
He testified that Chapin advised him he would be called when there was an
opening, and that while driving home with Maxwell, he told the latter that he
bad been questioned about his union affiliation and that Maxwell replied he had
"a good chance of getting in" He was not thereafter, however, offered employ-
ment at Donnelley's.
Chapin testified that he did not recall having interviewed Klaviter but that
he had never since his employment in 1938 questioned any applicant concerning
his membership in a labor organization. He testified that he had been instructed
by Chapman to make "no inquiries whatsoever into the affiliation or nonaffiliation
,of the applicant as regards labor organizations."
- Wise, assistant employment manager, testified that he had no recollection of
the Klaviter incident but denied that he had at any time since 1933 made state-
ments such as those attributed to him by Maxwell.
Mrs Germain who, according to Donnelley practice. retained her employee
status after joining the armed services, denied that she heard Wise make the
statements attributed to him by Maxwell or that at any time, in conversation with
Maxwell or his wife, stated that she had beard Wise's alleged remarks or had
commented thereon, and testified that she had no recollection of the Klaviter
matter. She admitted that she was entertained by the Maxwells at the time
she entered the armed services and made the trip to Cedar Lake as their guest.
She also admitted that in the Fall of 1943 while on furlough, she in company
with Maxwell visited Di Pietro 's office and , later, the office of the Board's Re-
gional Attorney, Packard. She denied that the Klaviter case was mentioned or
discussed at either place. She testified concerning her presence with Maxwell
.at the Board's offices :
Q. What was the reason for going to Mr. Packard's office at all?
A. Mr. Packard-I believe it was Mr Packard-had a book for someone
that he wished Ms. Maxwell to deliver.
Q. Is that the explanation that you received from Mr. Maxwell, as to the
visit?
A. No. I didn't ask for any.
"Mrs. Germain further testified that at the time she was in the Board's offices she
did not know that it was the office of a government agency, or what Packard's
R. R. DONNELLEY AND SONS COMPANY
C
689
position was. "I knew he belonged to the Union, and that's all," she testified
on cross-examination. While denying that the Klaviter case was mentioned, she
testified that while in Packard's office she was questioned concerning an incident
involving a Mrs McCracken, but that this matter was not related to unions.79
It is noted that Chapman, Chapin, Wise and Mrs. Germain each testified that
they had no recollection of the Klaviter matter 80 The denials of the testimony
of Board witnesses by both Wise and Chapin was based on what they alleged to
be a course of conduct which would exclude the possibility of questioning of an
applicant regarding his union affiliation of the statements attributed to Wise by
Maxwell. The record is replete with the questioning of employees regarding their
union affiliation by supervisory personnel and the undersigned has found that
the employment office, in the cases of applicants other than Klaviter, has since
1935 made inquiries regarding union affiliations. Klaviter's testimony that he
advised Chapin of his union affiliation, was convincing and, in view of the entire
situation, is credited. In view of Mrs. Germain's admissions that in the Fall
of 1943, at-a time when Maxwell was a paid organizer for the Union and when
these proceedings were pending, she visited Di Pietro's office and, later, the office
of the Board's attorney, in company with Maxwell, her further testimony con-
cerning the circumstances and the purpose of these visits, is vague and improbable.
In contrast, Maxwell's testimony concerning these visits is consistent with such
a course of conduct as might be expected of one interested as he was in the
preparation of a case against Donnelley's and who had previously given the
Board's attorney a statement on the Klaviter case. It is not at all likely that he
would have arranged an interview for himself and Mrs. Germain with the
Board's attorney, for a discussion of an incident not related to unions
or union activities ; it is entirely likely that he would arrange the interview for
the purpose of furnishing corroboration to the statement which he had already
given relative to Klaviter, since such action would be consistent with his interests.
On the basis of the foregoing and the entire record, the undersigned finds that
Wise made the statements regarding Klaviter attributed to him by Maxwell.
It further appears that Klaviter was not skilled in the work of the printing trades
and therefore it is a reasonable inference that he applied for an unskilled or
common labor job. It further appears from Chapman's suggestion to Maxwell
that he'have Klaviter apply for work, that respondent was then interested in
hiring unskilled workmen ; admittedly, it has hired thousands of such unskilled
workmen. In view of the entire record it is a reasonable inference not contra-
dicted by credible testimony, and the undersigned finds, that Klaviter was refused
employment because of his union affiliation.
9. Anti-union conduct affecting the job status of employees
a. George B. Anderson
George B. Anderson testified that on or about February 23, 1943, Winfred Isom,
day foreman of the rotogravure press room in which Anderson was then employed
19 Mrs. Maxwell, also testified concerning the McCracken incident. This testimony was
stricken. For purposes of a consistent record, the undersigned rescinds his ruling striking
the testimony.
80 Respondent's counsel argues that the entire Klaviter matter was a fabrication. In
view of the many hundreds of applicants for employment, and the absence of records, it
is not impossible that Chapman, Chapin and wise may have had no recollection, after
some 5 years, of the incident This does not exclude the possibility and the probability
that Maxwell whose duties did not normally bring him into contact with applicants for
employment and who was a neighbor to Klaviter, would have a distinct recollection of the
entire matter.
628563-45-vol. 60-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a pressman, told him as he was leaving the department after. work, that he
understood Anderson was Union "chairman" of the department. When Ander-
son replied that he was not, Isom asked him who the chairman was, and if he
was a union member. Anderson told Isom that he was an active union member.
Isom then asked what percentage of employees of the department were union
and what Anderson thought he would get out of the Union. According to Ander-
son, Isom also said that he thought the employees of another department were
dropping away from the union and that the rest would do the same in the
future. Isom advised Anderson to "think it over" and make sure that he was
doing the right thing in his union affiliation and activities. Two days later,
according to Anderson, Department Manager Flexman asked hind what he thought
he was doing leading the employees into the Union "blindly" and what he ex-
pected to gain personally by his union activities. Flexman also advised him to
"think it over" and to let him know later what he thought about it.
Following these conversations with Isom and Flexman, Anderson was
taken from his regular job as operator of Press 77 and assigned to various
duties in the pressroom. He testified that for almost 2 weeks he was assigned
to a job as a trucker, a common labor job which he characterized as requiring
"No brains; all brawn." As a pressman he had been in charge of the press
crew of some five employees and was accorded a high degree of responsibility.
He testified that no reason was given for him for the change in his work
assignment. Following his assignment as trucker, he worked at various semi-
skilled jobs including an occasional assignment as a substitute pressman, and
after some 5 weeks was returned to his old job as pressman on Press 77.
Anderson admitted that his basic wage remained the same throughout the
period but testified that he lost about 60 percent of the bonus which he normally
would have made during the 5 weeks as a pressman. He testified that the press
to which lie was regularly assigned continued in operation during the 5 weeks'
period and that there was "nothing involving the schedule of the pressroom"
which warranted the transfer from pressman to trucker. He further testified
that "generally, in the pressroom a pressman continues to operate his press
until there is no longer any work for the press. After that he takes the next
best job, using his talent as high as possible"
According to Anderson, after lie had been transferred to trucking, Isom, and
perhaps Flexman, also," asked him if he had thought the situation over, and
when he replied that he had, advised him to "keep on thinking about it . . . 11
Both Isom and Flexman admitted that they had a conversation with Ander-
son in February, 1943, but denied the statements attributed to them by Ander-
son Isom testified that on February 24, it having been reported to him by the
foreman of Anderson's shift that Anderson had passed out some union pledge
cards during working hours, he advised Anderson that he could not engage
in this activity during the working hours of the employees: Isom admitted
that on this occasion he also told Anderson, "Out of personal interest . . . I'd
like to know why you joined the union." Flexman testified that he had re-
ceived a report that Anderson was passing out union cards to employees during
their working hours, and that he warned Anderson that lie should not carry on
this activity on company time. Flexman further testified, "I told George that
I had been informed that he was passing out these cards, and I asked him if
he sincerely thought that what lie was doing was going to improve the condi-
81 It is not clear from Anderson's testimony whether he intended to convey that both
Flexman and Isom, or only Isom, approached him with reference to his union activity
after lie had been transterred to trucking.
R. R. DONNELLEY AND SONS COMPANY 691
tions of his fellow workmen." On further questioning, Flexman testified, "I
think I did say something about thinking it over and really thinking it through
and to see whether he still wanted to organize the men." The undersigned
credits the admissions of Flexman and Isom and finds that they also made
the statements attributed to them by Anderson.
Isom and Flexman both testified that they had no personal recollection of
Anderson's work assignments during the period in question and that their sole
knowledge of the matter was based on respondent's work records. Robert
Dorner, foreman of the shift on which Anderson worked and who gave Ander-
son his work assignments, did not testify.
The respondent introduced two exhibits each purporting to show Anderson's
entire work assignments and the total operations of Press 77 on Anderson's
shift, for the period from February 14 to March 31, 1943. The first of these
exhibits was shown on cross-examination of Flexman and- Isom to be inac-
curate. The respondent then introduced a second, corrected exhibit, which was
a summary based on original work records. It appears therefrom, that An-
derson from February 14 to March 31, worked as a trucker on only the follow-
ing dates : February 21, 22, 26, 27 and March 1, 2. It further appears that
Press 77 was in operation on Anderson's shift only 3 days during this-period,
and that on each of these clays Anderson worked as pressman or operator.
During the remainder of the time, he was engaged in repairing presses and
similar non-production duties and occasionally substituted as pressman on some
press other than Press 77.
The undersigned finds that Anderson's testimony that he worked almost 2
weeks as a trucker was inaccurate and that his testimony that Press 77 waa
in operation during the entire time from the date of his alleged demotion until
he was reinstated to his old job as pressman, was erroneous In view of Flex-
man's counsel that Anderson should "think over" the matter of his union
activities and "see whether he still wanted to organize the men" and its oc-
currence at or about the time that Anderson served several days as a trucker,
it is entirely credible that Anderson would conclude therefrom that he was
being discriminated against because of his union affiliation and activities-
However, since Anderson's regular press was not in operation on his shift
and since it was customary under respondent's system of the guaranteed work
week for an employee, when his regular production job was not in operation, to
be assigned to non-production duties ; and particularly in view of the fact
that when Anderson's press was again running on schedule, and at all times
when it was in operation, he filled his regular job as pressman, the undersigned,
while not without doubt, is unable to conclude that be was demoted or other-
wise discriminated against in his work assignments because of his union
affiliation.
b. Harold Gunther
L. D. Maxwell, a foreman in respondent's rotary press room from about
1930 until May 1943 when he resigned to become an organizer for the Union,
testified that while a foreman he was instructed by Christian Michelsen,
production manager, to lay off Harold Gunther, a "packer boy" or unskilled
workman, who was then under Maxwell's superN ision, and that when he pro-
tested that Gunther was a satisfactory workman and that he would not lay
him off until he had been given a reason, Michelsen advised him that Gunther
was being laid off because his father, as an employee of the Chicago public
schools, was affiliated with a union. Maxwell then advised Gunther that he was
to be laid off and told him that his lay off was occasioned by the union afliha-
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of his father. Gunther, being in the armed services at the time of the
hearing, did not testify. His father, Arthur Gunther, head janitor of the
Chicago Board of Education, testified that at the time of Harold's lay off, re-
ferred to herein, Harold had said that Maxwell told him he was being laid
off because his father was a union man.
The Gunther lay off occurred on or about March 19, 1940'2 On June 10, 1940,
Gunther was reemployed as a packer boy. Maxwell testified that on the day that
Gunther returned to work, Bruce A. Young, department superintendent, asked
him, "What the hell is the idea of your telling Gunther why we laid him off?"
and stated, ". . . we had to rehire him to keep from getting in trouble with the
Government." Young then admonished'Maxwell, "For Christ's sake, don't ever do
anything like that again."
Michelsen testified that he had no personal recollection of Gunther but
denied that he instructed Maxwell to lay Gunther off because of the union
affiliation of the latter's father. Young testified that he knew nothing about
Gunther's lay off until he heard that Maxwell had said that Gunther was laid
off because his father was a member of a union. He thought information of the
Maxwell statement reached him through the employment office. Young testified
that upon hearing of it he reprimanded Maxwell and told him that "he was in
direct violation . . . of well-established policies . . He then checked Gun-
ther's records and finding that there was nothing which would prevent his re-
employment, made a "personal note" that Gunther was to be reemployed at the
beginning of the next busy season. Young further testified that he did not know
that the employment department kept records which would reflect the union
affiliation of relatives of the employees.
Normally there are two slack seasons in respondent's production year, during
which certain classifications of unskilled and temporary employees are laid off;
if their work has been satisfactory they normally are rehired, upon application,
at the beginning of the next busy season, but there is an actual severance of
employment in the interim. As many of them as are required to meet In uduction
requirements are retained through the slack seasons.
Michelsen testified that as production manager he determined in advance the
number of employees to be laid off during a slack season but that he did not
recommend the lay off of any named individual. It was customary for the fore-
men to make up lists of employees whom they wished to keep through the slack
seasons and such lists were submitted to the employment department for
,.recommendations." According to Michelsen, he would "relay" the recom-
mendations of the employment department to the respective foremen.
He admitted that on occasion he had advised "the foreman of the reason for the
lay off of an individual employee, and that he had at times told the foreman that
the lay off was "by order of the employment department." Employment Manager
Elmer D. Chapman testified substantially as did Michelsen , that lists
of employees whom a department wished to keep through a slack season were
submitted to the employment department. "We can check that list and send it
back," Chapman testified, "but that . . . is in the nature of a recommendation."
According to Chapman if the foreman was not satisfied with the recommendation
of the employment department, he could appeal to the head of the department
82 Maxwell testified that the lay off occurred a few months before the first registrations
-under the Selective Service Act of 1940, and that Gunther following his lay off and subse-
-quent reemployment , worked only a few months until he was inducted . Respondent's
records disclose that Gunther was laid off from March 19, 1940 to June 10 , 1940, and that
he continued thereafter in respondent's employ without further lay off until February 28,
1941, when lie was inducted in the armed services.
R. R. DONNELLEY AND SONS COMPANY 693
in which he worked. Young testified that as department superintendent he was
responsible for ]ay offs in the rotary press room. While lay offs normally were
determined according to job classification, he admitted that on occasion'he did
select individuals for lay off and that he would give the names of these in-
dividuals to Michelson with instructions to see that they were laid off. Young
also testified that Maxwell as foreman was directed to follow Michelsen's in-
structions regarding lay offs which Michelson, in turn, had received from Young.
It is clear from the foregoing that instructions regarding seasonal lay offs
of individuals may have reached Maxwell through Michelsen and may have
stemmed either from Young or from the employment department. Chapman
admitted that prior to 1933, he had recommended the lay off of a number of
individuals because of their union activities, but denied that he had issued
any such instructions subsequent to that date.
Respondent's employment records show that Gunther filed an application for
employment in April 1937, and was first employed on May 11, 1937. On his
original application form, following the word "Remarks," which is printed on
the form, appears a notation in handwriting: "Father-School Janitor." Ad-
mittedly, respondent had knowledge that all janitors of the Chicago public
school system were affiliated with a union. The notation is in a different hand-
writing from almost the entire remainder of the writing appearing on the
application form, and lacking further evidence, it is not possible to say when
the notation was first made on the application form, but it is a reasonable
inference that it was not made at the time the form was first filled out. Re-
spondent's records further show that during the entire tenure of his employ-
ment, Gunther was laid off during the following period: March 16-June 20,
1938; August 11-November 11, 1938; March 19-June 10, 1940. In each instance
the reason given for the lay off was "no work', and the respective separation
reports show a merit rating of "excellent."
From the foregoing it is seen that Gunther was not laid off during the entire
year 1939, although it is reasonably assumed that there were slack seasons in
this as well as other years ]liichelsen although he had previously testified that
he did not know Gunther, testified that an attempt was always made to find
'Jobs for as many people as possible during slack seasons, and be thought a
job was found for Gunther that year as a trucker. However, the record reflects
no effort on the part of respondent to find work for Gunther during the slack
season of the Spring of 1940. While it was customary for the foreman to
make up lists of employees to be laid off in his department, it is clear that in
1940 Maxwell opposed Gunther's lay off. The record discloses no reason why
Maxwell's recommendation was overruled on this occasion except that Gun-
ther's father was known to the employment department to be affiliated with
a union. That Maxwell advised Gunther that he was being'laid off because of
the union affiliation of Gunther's father is established in the testimony of
Maxwell, Young and Arthur Gunther. Since there is no evidence that Maxwell
in 1940 was affiliated with or interested in a labor organization, there is no
plausible reason why he would have given Gunther such advice unless he had
himself been informed, as he testified, that Gunther's lay off was required be-
cause of the union affiliation of Gunther's father. The undersigned accord-
ingly credits Maxwell's testimony and finds that Michelsen instructed him to
lay Gunther off because of the union affiliation of the latter's father. Since the
employment department was the repository of information from which union
affiliation of Gunther's father was inferred, the undersigned is convinced and
finds that the order for Gunther's lay off issued from that department.
694 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Robert Jurtsen
Robert Jurtsen, an assistant pressman in respondent's rotary press room, pur-
suant to respondent's replacement schedule, obtained a 6 months occupational
draft deferment dating from April 29, 1943 Subsequent to that date he was
elected secretary-treasurer of the Union's Coui4ell, and his election was an-
nounced in the Union's bulletin. The respondent did not apply for an extension
of the draft deferment at the expiration of the 6-month period, and its failure
or refusal to do so is alleged to have been discriminatory. The undersigned
believes it is clear and finds that prior to the expiration of the 6-month period
of deferment, the respondent had knowledge of Jurtsen's union affiliation and_
activities.
-Richard Wise, assistant to Employment Manager Chapman, compiled the
first of respondent's selective service replacement schedules, after consultation
with the department heads. Wise testified that the State Selective Service reg-
ulations did not permit the employer to request further deferments for employees
who had been classified for release within the first 6-month period of the sched-
ule.s' Samuel Gates, however, testified without contradiction, that lie was
advised by employee Charles Shusha that he "would have to go to the Army
unless they got another deferment for him," and that Shusha continued on his
job thereafter. The inference is that respondent did obtain a renewal or ex-
tension of Shusha's original draft deferment. The inference is strengthened
by Busby's testimony that "under certain circumstances" respondent could ask
for additional draft deferment for its 10-color pressmen whose deferments had
run out. Both Gates and Shusha were 10-color pressmen. It is clear therefore
that the Selective Service regulations to which Wise referred were, under some
circumstances, subject to modification or exception, and that the respondent could
and did request further deferment for an employee who had been classified for
release within the first 6-month period of the replacement schedules Shusha,-
however, was in a different department from Jurtsen and was engaged in work
requiring a higher degree of skill. The issue is whether normally and except
for his union activities, respondent would have requested an extension of Jurt-
sel's draft deferment.
There was received in evidence a partial list of respondent's requests for draft
deferments of employees in Jurtsen's department and job classification. Six-
month deferments were requested for Jurtsen and five other assistant pressmen.
Deferments of lesser duration were requested for 7 other assistant pressmen,
whereas deferments of from 6 to 12 months were requested for 4 assistant press-
men. There is no evidence that the respondent requested an extension in
the draft deferment of any of these assistant pressmen, nor is there evidence
whether any of them, except Jurtsen, favored or opposed the Union. Under these
circumstances, the undersigned is unable to conclude that Jurtsen was singled
out for discriminatory treatment with reference to respondent's failure to
request an extension of his deferment at the expiration of the 6-month period.
d Victor Zaniara
Victor Zamara signed a union pledge card early in 1943. In February or March
public announcement was made by the Committee that he had been designated
representative of his department and shift on the Committee's Council. Follow-
83 The regulation referred to by wise follows : "No registrant who appeared on the
original list or amendments thereto for release in the first six months shall appear , neither
shall they be included on the replacement summary unless they have been reclassified in
a class not available for military service."
R. R. DONNELLEY AND SONS COMPANY 695
ing this announcement, Foreman Winfred Isom told Zamara that he had heard
that Zamara was "connected with the union," and asked him what his grievance
was. It appears that several years prior to 1943, Zamara had been demoted
from pressman to assistant pressman. Zamara testified that following his demo-
tion, he had complained to Isom and that Isom had then advised him that there
was nothing that he could do about the matter and that it was up to the "front
office." According to Zannara, until his name had been announced as a member
of the Committee's Council, Isom had never inquired concerning his grievances.
Isom now advised him that it made no difference whether he belonged to the
Union or not, and that he had nothing "to worry about " This testimony, sub-
stantially corroborated by Isom, is credited.
About a week following Isorn's inquiry concerning his grievance, Busby
called Zamara to his office, fold him that he had just heard about the latter's
grievance, and that if he had known he would have done something about it
sooner. Ile then advised Zamara that he would be reinstated to a pressman's
job but that he would be subject to transfer back to assistant pressman later, in
view of superior claim by employees returning from the armed services.
Following his interview with Busby, Zamara received an immediate wage in-
crease of 17 cents an hour, though he was not actually restored to a regular
pressman's job until September 1943.
Busby admitted that he summoned Zamara to his office about March 10 or 12,
1943, and offered him promotion to a pressman's job. He testified that he had
checked the crew situation with Isom, and had decided to give three "old-time"
assistant pressmen, of whom Zamara was one, an opportunity to work as press-
men for the duration and that lie wanted to make sure that they understood
that their status as pressmen would be temporary. He did not explain why
Zamara was given an immediate wage increase although he was not made a
pressman until some 6 months later.
In view of Isom's admission that he had been advised of Zamara's union
affiliation at the time he asked him about his "grievance," his further admission
that he frequently reported to Busby concerning the union activities of employees
in his department, and the fact that Busby had his stenographer make tran-
scripts of all the Union's radio broadcasts which related to Donnelley employees,
the undersigned finds that at the time that Busby called Zamara to his office
he knew that Z•imara was a representative on the Union's Council. The under-
signed believes and finds that Busby's action in granting Zamara an immediate
wage increase and in promising him promotion, associated as it was with Isom's
inquiry about Zamara's grievance of which he already had full knowledge, was
calculated to influence Zamara to give up his union affiliation and, as expressed
by Department Manager Flexman, to "remain with the company." Offering
inducements to an employee to refrain from union activities is not uncommon
and is equally culpable under the Act with discriminating against him because
of his union activities 8'
e. George Cosmos
Prior to July 26, 1943, Cosmos for several years had been employed on a night
shift as a pressman. Pursuant to request, he was transferred to a day shift on
July X26. He had previously signed a union card but it was not until some 2
weeks after his transfer to a day shift that he first wore a union button during
his working hours. He testified that for the first 2 weeks after his transfer, he
served as a substitute pressman, but that thereafter and after the wearing
of his union button, he was only occasionally assigned to a job as substitute
&A See Matter of Mellin - Quincy Mfg . Co., Inc., 53 N. L. R. B. 366.
696 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressman and that the rest of the time he was an assistant pressman. Cosmos
admitted that subsequent to his transfer, he retained the status of pressman
and received the pay of a pressman ; he also admitted that customarily when a
pressman was transferred from one shift to another, he worked as an "extra"
or substitute pressman until there was a vacancy on one of the presses to which
he might be assigned as a regular pressman. He also admitted that there was
no strict rule of seniority which regulated the order of assignment of trans-
ferees to fill such vacancies as arose. He testified, however, that two employees,
Charles Shusha and Elmer Conrad, neither of whom wore union buttons and
both of whom transferred from a night to a day shift after he did, were given
a preference over him in assignments as substitute pressmen. It further appears
that Shusha, who transferred to a day shift on August 21, 1943, was given a
regular assignment as pressman on Press 88 when Samuel Gates left respondent's
employ in November.
Walter Newkirk, foreman of the multicolor pressroom on the day shift,
while not denying specifically Cosmos' testimony that Conrad and Shusha were
given preference over him in their assignments, testified that Cosmos had no,
or very little experience on "heat" presses, and that prior to his transfer had
worked continuously on Press 87 which was an "oil" press. He further testified
that both Cbnrad and Shusha were experienced in the operation of heat
presses, and that Shusha had been an assistant on Press 88, a heat press, for
some 2 or 3 years prior to the time he was made operator of that press He
admitted that Cosmos had been assigned to operate a heat press for a few days
while on the day shift and that his work had been satisfactory. He further
testified that the order in which transferees were assigned to regular pressman
jobs was determined by ability. He did not deny knowledge of Cosmos' union
affiliation. While records admittedly were available which would show the
various assignments of employees during the period in question, no records
were produced to refute Cosmos' testimony that he was discriminated against
in his assignments.
In view of Newkirk's conduct with reference to Samuel Gates (See sub-divi-
sion III B (2) of this Report), respondent's failure to produce records which
would show the respective work assignments of Cosmos, Conrad and Shusha,
and Newkirk's admission-that Cosmos' work on heat presses was satisfactory,
the undersigned is doubtful that Cosmos received such normal consideration
in his work assignments as would have been accorded him had he not worn
his union button and thus made known his union affiliation. However, Cosmos'
testimony was lacking in definiteness sufficient to provide a basis for an actual
comparison between his assignments and those of Conrad and Shusha ; also, since
Shusha admittedly was experienced on Press 88, it is reasonable to assume that
his assignment as regular operator of that press in November was normal.
Newkirk's testimony that Cosmos was inexperienced in the operation of heat
presses at the time he transferred to a day shift, was undisputed, as was his
further testimony that both Conrad and Shusha were experienced in the opera-
tion of this type of press. In view of the somewhat confused and inconclusive
state of the entire testimony regarding Cosmos' assignments, the undersigned
is unable to find that Cosmos was discriminated against because of his union
affiliation.
10. Rules prohibiting union activity
On June 11, 1943, the respondent posted on its bulletin boards a rule for-
bidding "Every kind of self-organization or union activity on company time or
property .. On July 19, 1943, the respondent removed this rule from its`
R. R. DONNELLEY AND SONS COMPANY 697
bulletin boards and substituted therefor a new rule forbidding "Every kind of
self-organization or union activity on company time . . ." This latter rule fur-
ther stated: "Any self-organization or union activity on company property
which interferes with the production or discipline is absolutely prohibited.
Anyone who violates this rule will be disciplined."
Several of respondent's witnesses testified that prior to June 1943 there was
an oral rule which prohibited union activity on company time. General Foreman
Delworth testified that on or about January 1, 1943, he was advised by Busby
that he could forbid union activities during working hours; Delworth thought
the rule on union activity had been posted at that time. He testified that during
his entire 36 years of employment with the respondent, there was no rule
forbidding union activity prior to January, 1943. Department Manager Flexman
testified that Busby gave out the rule at a meeting of department heads some
2 years prior to the hearing. "I am very vague on when it did start," he testi-
fied ; "I believe it was when the unions first became active and started pushing
things there." Busby testified that prior to June 1943, though foremen had been
instructed not to allow union activity `during working hours, no rule had been
posted in the plant or otherwise published to the employees prior to June 11,
1943. -
Busby testified that the rule of June 11 was posted because on May 27, the
Union through a radio broadcast, stated that an independent union was being
organized on company time and that the respondent was making no effort to
stop it ' On the following day, according to Busby, he called the department
heads and told them that they were "to enforce a rule against any union activi-
ties." If, however, as testified to by himself, Flexman and Delworth, he had
long previous to this date already issued such instructions to department heads,
it would appear that such action on May 28 would have been unnecessary. Busby
further testified, on cross-examination, that prior to June 11 "there was a lot of
pressure being put on some of the packer girls and there was a lot of activity
inside the plant," and that on or about May 27 he notified the foremen about
the union activity rule and instructed them to report violations to the depart-
ment heads. Busby later testified that prior to June 11, "There was no definite
system of penalties set up. It was discouraged , but not a definite rule enforced
prior to that time."
It is clear from the entire testimony, that in the period immediately preceding
June 11, there was increased organizational activity among respondent's "packer
girls." " As previously noted, Mrs. Irene Mack, forelady of the packer girls, in
May advised employee Josephine Grages against union affiliation. Foreman
Harry Engnell reprimanded employee Charles Brown for talking to the packer
girls on his press, although Brown denied that he had discussed the Union with
them during working hours and although in the normal course of his duties as
pressman it was necessary that he communicate with these assistants during
working hours ; Engnell later asked him how "strong" the Union was on his shift.
Some 2. days before the June 11 notice was posted, Busby approached Lester
Hayes during his working hours. Hayes testified :
Be called me over in the corner and told me he heard the girls were sign-
ing up in the union and he wanted to warn the girls not to force any of the
other girls into the union. I asked him what he was telling me for, and he
es The May 27 broadcast referred to an "imitation labor organization . . . now being
promoted-for a chosen few ," and advised adherents "to continue making careful note of
all activity by company men on company time."
80 Unskilled labor which assisted in the operation of presses.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said, well, he didn't have any complaint about me, but he wanted me to tell
the other girls not to force any of the other girls into the union."
It is seen from the foregoing that it was not immediately following the Union
broadcast of May 27, but after the respondent had knowledge of an intensive
organizational campaign among its packer girls. and had taken steps through
its foreman Engnell, its forelady flack, and its general superintendent Busby, to
check this activity, that the rule of June 11 was posted.
Busby testified on cross-examination that though there were one or two viola-
tions of the rule of June 11 as it applied to company property outside of working
hours, he ignored these violations "There was doubt in my mind as to the
legal status," he testified, "So . . . from June 11th to July 19th, in spite of having
that notice I wasn't sure that I should enforce it. I got two or three complaints
but did nothing about them. I held them in abeyance." It further appears that
Busby's "doubt" as to the "legal status" of the June 11 rule, was based on the
rule's prohibition of union activity on company property outside of working hours.
As has been seen, the July 19 rule prohibited union activity on company property
outside of working hours only if it interfered with "production or discipline."
The undersigned finds that the June 11 rule's absolute prohibition of union
activity on company property was an unlawtul inteiference with the employees'
right of self-organization. Respondent's counsel argued before the undersigned
that the June 11 rule could not be held to be violative of the Act in absence of
proof that it was illegally enforced. The argument is ingenuous but must fall
since the posting of the rule itself imposed an illegal restraint upon the freedom
of employees to engage in organizational activities. The employees could hardly
have been expected to understand that it would be enforced only partially.68
The July 19 rule is properly viewed and evaluated in the light of respondent's
entire conduct relative to organizational activities of its employees, and with-
particular reference to the force and effect which respondent would give the rule
in its enforcement. The following excerpts from Busby's testimony relative to
the July 19 rule, are illustrative :
Q. Is there any restriction on the subject matter they (the employees)
can talk about on the crews?
A. They can't talk about union organization while they are at work.
Q. That is the only thing they are not permitted to talk about?
A. I don't believe there are any other limitations on it.
* * * * * * *
Q. Well, you say that the people on the presses. in the crews , can talk
about everything except union activity. That is your testimony , is it not?
A. That is right.
87 Busby admitted that he told Haves that he hoped Hayes would use his influence
among union people to see that there was no organizing on company time. He testified
that prior to June 11, he had reprimanded three or four packer girls for engaging in union
activity and also an employee, Manke, who, according to Busby, was active in behalf of an
independent union. Regarding the packer girls, he testified that he was advised that Ann
Stareevich had threatened to "kick hell " out of the time clerk if she did not sign up with
the Union . He was unable to remember whether the girls he reprimanded admitted or
denied that they were guilty of the conduct of which they were accused . There was no
corroboration of Busby ' s testimony and no evidence that any of the activities complained
of occurred on company time, further than his unsupported testimony.
^ See Matter of Le Tonrneau Company of Georgia, 54 N L R. B. 1253, and cases cited
therein.
R. R. DONNELLEY AND SONS COMPANY 699
Q. Suppose you and I are on the job and I say, "The Cubs lost." That
would be all right? - -
A. Absolutely.
Q. But if I were to say to you, "I am going to join the union," that would
be against your rules?
A. That is right.
Q. That condition that you have just described is enforced throughout the
plant with all employees, is that not right?
A. We attempt to enforce it.
Q. They can talk about everything except union activity on company time?
A. Yes, provided they do their woik.
It is clear from the foregoing that respondent in the promulgation of its
July 11 rule, was not primarily concerned with loss of time or interference with
production which might flow from union activity, but with stopping all discus-
sion of unions regardless of whether or not it interfered with production or
discipline. If respondent's witnesses were credited in full, the record would
remain singularly lacking in tangible evidence that respondent's production
has suffered substantially at any time because of organizational activities of
its employees during working hours ; on the other hand, the record is replete
with evidence of interruption of production and loss of productive time due to
the anti-union activities of respondent's executives and supervisory personnel.
Busby further testified on cross-examination, that if employees met in groups
in respondent's recreation room, outside the employees' working hours, and
discussed the Union, ". . . it would result in an interference of discipline."
He testified, ". . . I think it might not be a harmonious thing because the person
that was listening to it might not be listening of his own free will. He is in
a position where it is probably forced on him." B0 Even though the discussion
took place outside of working hours, an employee "shouldn't be required to get
up and leave his place if someone comes up to him and talks to him about it."
Busby defined a group as "5 or 6 people getting together and starting talk
about the union." In contrast, as has been seen, the respondent while con-
tending that its foremen are employees within the meaning of the Act, has
allowed them the utmost latitute in participating, during their working hours,
in anti-union activity.
In view of the foregoing and the entire testimony and record, the under-
signed is convinced and finds that the respondent's two published rules on union
.activities, form an integral and inseparable part of its overall program of
discouraging and otherwise thwarting organizational efforts of its employees 8O
The July 19 rule while phrased to bring it within the sanction of Board and
Court decisions, in the light of Busby's testimony and the total situation is
actually a carefully designed vehicle for further interference with legitimate
organizational activities among its employees. Under this rule the employee
could mention unions during his working hours only at his peril, and if, outside
of working hours, discussion of unions occurred where there was a group of
five or more persons, employees engaging in such discussion would be subject to
reprimand or penalty. There are no special circumstances, such as a course
of union` interference with production and discipline;' to justify the promulga-
sa For purposes of comparison, see footnote 16, supra
'ON. L. R. B. v. William Davies Co., 135 F. (2d) 179 (C. C. A. 7), cert. denied 320
U. S. 770.
91 See Matter of Peyton Packing Company, 49 N L. R. B. 828.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and enforcement of such a rule which in effect amounts to an absolute
prohibition of union discussion, during and outside of working hours, if one
of the employees addressed is not receptive to pro-union talk. The undersigned
accordingly finds that the respondent's rules on union activity constitute an
illegal restraint upon the employees' freedom to discuss unions and otherwise
to engage in self-organizational 'activities, and that the respondent by the pro-
mulgation and discriminatory enforcement of its rules 'on union activities, has
interfered with, restrained, and coerced its employees in violation of Section
8 (1) of the Act. This is not to say that an employer may not promulgate
and enforce such rules as it sees fit which in purpose and effect proscribe
employee activities which interfere with production and the non-discriminatory
exercise of its normal disciplinary powers.
P. Discrimination
1. Walter West
Walter West was employed by the respondent in 1934 as an experienced
journeyman photoengraver or "finisher." In 1936 he was transferred to the
rotogravure department where he worked as a finisher for about 21/2 years,
rfter which he worked as an etcher. During his spare or "no-work" time or
after hours, he developed a method of repairing cylinders, and in recognition
of this work received a letter from Littell, dated December 6, 1938, compli-
menting him on his achievement. On December 7, 1938, he received a similarly
complimentary letter from Busby enclosing a check for $50 in recognition of his
services.
On or about June 1940, West was made a foreman of the second or night
shift of the cylinder making division in the rotogravure department. Shortly
thereafter, Flexman, who previously had been foreman on a day shift, was
made superintendent of the department ; on or about January 1, 1943, Flexman
assumed additional functions and responsibilities and was thereafter designated
"manager" of the department.
Soon after Flexman became superintendent, and in June 1942, West requested
a wage increase. Pursuant to his request, Flexman conferred wtih Busby,
and later advised West that an increase of 15 cents an hour would be authorized
for the latter. West protested the amount of the wage increase and asked to
be transferred back to his non-supervisory position on the day shift. This re-
quest was not granted. West accepted the wage increase which became effective
about July 5, 1942, and continued thereafter as a foreman until April 15, 1943,
when, pursuant to Flexman's recommendation, he was demoted and transferred
to a day shift in a non-supervisory capacity, at a reduced wage. The Board
alleges that the April 15 demotion was discriminatory.
Both Flexman and Busby testified that when West was offered a wage in-
crease of 15 cents an hour, he stated that if that was all the respondent could
offer him it could not ' expect his best efforts. Flexman testified that Busby
at that time suggested that in view of West's attitude on the wage increase, his
request to return to the day shift in a non-supervisory capacity be granted,
and that he (Flexman) defended West to Busby stating that he did not believe
that West meant what he had said. Flexman further testified that he told
Busby that he "didn't have anyone to put in his [West's] place, anyhow."
Busby testified concerning his conversation with West relative to the wage
increase, "I answered him by saying that if he was capable of being a foreman
I thought it was his duty to society and to himself to use his highest skills and
continue to work as a 'foreman." West denied that lie made the statements
R. It. DONNELLEY AND SONS COMPANY 701
thus attributed to him by Flexman and Busby .92 In view of the entire testi-
mony, the undersigned credits West 's denial.
Flexman testified that West 's conduct subsequent to the granting of the
wage increase , finally convinced him that West did mean what he had said
about not giving the company his best efforts . He advanced the following
reasons for having reached this conclusion and for having recommended West's
demotion :
1. That West opposed the installation of a bonus system in the department
and fomented dissatisfaction with it' among the employees ; 2. That he refused
to carry out the assignments of the day foreman and was critical of the work of
the day shift ; 3. That he left his department during working hours, and on
occasion smoked and had refreshments with employees in respondent ' s lunch
room ; 4. That he, in company with another employee , smoked in respondent's
film storage room in violation of a company rule B3
• During the latter part of June, 1942 , the respondent installed its bonus or
wage incentive system in the staging room, a division of the rotogravure de-
partment . Admittedly the bonus , was unpopular with the employees of this
department . West and others testified without contradiction that as a meas-
ure of disapproval and protest , the employees , with one exception , pooled their
bonus money and donated it to the U . S. 0. The bonus remained in effect
throughout the one busy season and was not thereafter renewed.
Both Flexman and Busby testified that West stated that he was opposed
to the bonus and would not cooperate in "putting it across " with the em-
ployees. Flexman characterized this attitude and conduct as "gross insub-
ordination ." Flexman admitted however, that it was West's duty as foreman
to report employee dissatisfaction with the bonus . He testified that the effi-
ciency of the division was increased more than 50 percent during the period
while the bonus was effective , but that' it was not thereafter renewed because
the same high level of efficiency was maintained without it.
West, while not denying that he was personally opposed to the bonus , denied
that he refused to cooperate in its installation, and his denial was substantially
corroborated in the testimony 'of James Montalto and Clifford Lenz, employees
of the department . Montalto and Lenz testified that though they were opposed
to the bonus, West urged them to give it a "fair trial ." West admitted that
at the request of employees , he reported their dissatisfaction with the bonus to
Busby and that he told Busby that if the bonus was installed it might do more
harm than good. He also told Busby that because of the bonus there was talk
among the employees about joining the Union . Busby replied : "The union
is not going to get in here , not as long as Mr. Littell , Mr. Donnelley , . . . and
men like myself and Mr. Chapman are alive."" West was not at that time
affiliated with the Union and it was his undisputed testimony that there was
12 West testified :
Q You never said to Busby that you would not give Busby your best efforts?
A. No, sir. I did not. He would have fired me on the spot. Nobody ever said that
to Mr. Busby and got away with it
93 Respondent in its original answer to the Board ' s complaint merely denied the
Board's allegations with reference to West, in an amended answer, filed on November 2, it
asserted-as affirmative defense that West was demoted for smoking in a factory area where
inflammable material was stored, and for allowing a subordinate employee to smoke, in,
violation of company rule ; in a second amended answer, filed on November 16, it asserted'
as additional reasons for the West demotion that West was guilty of insubordination in
refusal to perform fully his duties as foreman , and was guilty of neglect of duty in repeat-
edly leaving his department during working hours on personal business
94 This finding is based on West's testimony which the undersigned credits. Busby
denied that he made the statements thus attributed to him.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
little or no union activity in the department prior to the installation of the
bonus.
On the basis of the foregoing and the entire testimony, the undersigned is
convinced and finds that while West personally was opposed to the bonus, he
did not refuse his cooperation in its installation nor did-he foment dissatis-
faction among the employees or otherwise engage in conduct amounting to in-
subordination . It is clear from the entire record that the bonus or wage -in-
centive was an important phase of the Donnelley system of operations. It is
not credible , had West twice engaged in conduct amounting to insubordination-
in his declaration that he would not give the company his best efforts and in
refusing to cooperate in the installation of the bonus-that he would have re-
ceived a substantial wage increase and have been continued in respondent's
employ as a foreman throughout the season during which the bonus was
effective
According to Flexman , from July 1942, until West ' s demotion , he received
numerous complaints from employees and foremen ; he was able , however, to
recall only a few of them specifically . He testified that Orville Meyer com-
plained that West showed favoritism in the allotment of overtime work.
Meyer denied that he ever made such a complaint , and several employees in
West's department testified that the distribution of overtime work was fair
aind impartial and that West had difficulty in getting enough employees to work
-overtime to meet production requirements . This testimony was convincing
.and is credited . Flexman further testified that Haighas Nazar complained be-
icause West had taken up a collection for Fred Dorn , an employee who was at
that time ill. Flexman admitted , however , that collections of, tliisL-nature'were
frequent and had been the practice ever since lie had been in the department.
He also admitted that he did not speak to West about these complaints Ac-
cording _to Flexman , Frank Johnson , day foremen of the rotogravun e cylinder
making department , made numerous complaints , dating from July 1942, that
West did not follow instructions concerning job schedules Some of these coin-
plaints were in writing , Flexman testified , but after reading them he destroyed
them and none were in existence at the time of the hearing
It appears that the day foreman transmits to the night foreman a production
schedule which specifies which jobs are to be given priority, and the night fore-
man is expected to order production on his shift according to the schedule.
It is clear , however, both from Flexman 's admissions and from the testimony
of West and employees of his department , that it is impossible and impracticable
for the night foreman to adhere strictly and under all circumstances to the
-schedule left him by the day foreman Flexman on cross -examination testified
that the night foreman "is to follow those instructions unless it is impossible
for him to do so, or a contingency has arisen which makes it, in his judgmnaent,
,very impractical to do so . . . [Italics supplied ] West testified that
whereas the schedule sheet might call for a certain sequence of jobs , conditions
might require a different sequence , as when cylinders had to be made over to
give a correct representation of customer copy, or where copy had not received
the customer 's final approval . Employees Lenz and Dorn both testified that on
occasion West had shown them the day foremen 's schedule sheet and that at
times it was impossible to follow it strictly.
Flexman admitted that with respect to several of the alleged complaints,
West had given a satisfactory explanation , but testified that in a majority of
-cases, he had not and that on some occasions he, had been "belligerent" and
]had stated that he did not think he should follow Johnson 's instructions. He
further testified that in the presence of employees , West, in a loud voice,
R. R. DONNELLEY AND SONS COMPANY 703
criticized the production of the day shift, but could recall the name of no
employee who was present on such occasions.
On or about January, 1943, according to Flexman, Foreman Johnson re-
ported that he had seen West drinking coffee in the plant lunch room during
the latter's work shift. Flexman testified that he had reports from other per-
sons, whom he did not name, that West played chess and smoked with em-
ployees outside the department during the work shift, and was otherwise absent
from his department during working hours. Admittedly, there were occasions
when- West's duties as a foreman required his temporary absence from the
cylinder making division. Several employees testified without contradiction
that they had seen numerous foremen having refreshment in respondent's lunch
room during working hours and Flexman admitted that he had observed fore-
men of other departments engaging in this practice There is no evidence, save
Flexman's uncorroborated testimony, that West engaged in this conduct more
than was the custom and practice at Donnelley's.
Flexman's entire testimony relative to the complaints which he had received
from, Foreman Johnson and others relative to West's alleged derelictions in the
performance of his duties as a foreman, is lacking in corroboration. Johnson,
although presumably avallab'e as a witness, did not testify All of the em-
ployees who testified on the topic, stated that West was efficient and attentive
to his duties as a foreman. Flexman admitted on cross-examination that West
was a "hard worker" and a highly competent and valuable workman. He also
admitted that production in the department was substantially increased while
West was a foreman and that West was partly responsible for it Admittedly,
he received complaints regarding the conduct of foremen other than West. In
view of the foregoing and the entire testimony, the undersigned is unable to
credit Flexman's testimony that following West's failure to obtain the wage
increase lie sought, he "lost interest" and was guilty of misconduct amounting
to insubordination. The actual causes for Flexman's decision prior to April 1,
1943, to recommend West's demotion and transfer to a day shift, must be
sought elsewhere. -
Following the installation of the bonus system in the department, there was
a period of intense organizational activity among the employees As has been
noted in Section III A (4), supra, of this Report, Flexman in the fall of 1042
called the employees of the department to his office and attempted to discourage
therm in their union affiliation. At his request, West was present in his office
when he thus addressed the employees in small groups. In December, Busby
addressed the employees of the department in a further effort to prevent their
unionization. It is amply clear from the entire record that respondent's fore-
men were also its key men in its efforts to discourage unionism It is a reason-
able inference from the entire testimony that West did not "cooperate" in this
effort. In December 1942, he signed a union caids5 In the same month
Flexman asked him how many men in the department were in the Union and
when West replied that lie did not know, Flexman said, "Well ... of course
Mr. Busby knows you are all right. He thinks you are a pretty good workman,
and everything, but he thinks you have-got too many union friends You are
keeping had company.-0 West testified that prior to the date of this eon-
05 West testified, however, that he actually affiliated with the Union in March 1943
apparently, the card he signed in December was an "authorization card "
8This finding is based on West's testimony v.hich the undersigned credits Flexman
denied the statement thus attributed to him. but such it statement is entirely consistent
with Flexman 's conduct as reflected by the entire testunony and record . See sub -division
A (4) of this Report.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation , his relations with Flexman were cordial and friendly but that there-
after Flexman was critical of his work . West testified, ", . I figured he was
worried about something , and I didn't pay much attention , because he and I
were good friends. His wife was a friend of mine, and my wife was a friend
of his, and we used to go back and forth to each other's houses."
In February , 1943, without preliminary conversation , Flexman suggested that
West return to the day shift. Two days later Busby came through the de-
partment and told West , "Well . . . if the job gets too tough for you, let me
know and I will put someone else in it in your place ." In March, Flexman
had conversations with employees Dorn and Caldwell regarding West.
Caldwell testified that Flexman questioned him concerning West's union
affiliation . Caldwell told Flexman that he had had no "confidential " conversa-
tion with West since January 1 and that at that time West was "on the fence"
Flexman replied that "he had evidence to the contrary and because of that he
was going to have to put him [West ] back on the bench." Dorn testified that
Flexman said with reference to West that he was "positive" that West belonged to
the Union and was "going to have to take him off the night shift and put him
back on days ." "He also stated ," Dorn testified, "that Wally is creating an
unhealthy atmosphere in the department , and that he is going to get rid of him.
He said that he would just have to wait until the opportunity presents itself."
Employees Alfred Schutt , Montalto and Lenz testified that Dorn spoke to them
concerning the conversation he had with Flexman regarding West.
Flexman, although not denying knowledge of West's union affiliation , denied
the statements relative to West's union affiliation attributed to him by Cald-
well and Dorn. He admitted that in March 1943, he spoke to them and asked
them to use their influence in persuading West to return to a day shift ' "I
told them," Flexman testified , " I was going to have to , ask Mr. West to come
on days, and that he had been doing things that we couldn 't tolerate having,a
foreman do , and that I wanted, because of our long friendship . . . to save his
face and save him embarassment . . .
In view of Flexman's admissions and the entire record which shows that
the statements attributed to him by Caldwell and Dorn were consistent with
his entire anti-union conduct, the undersigned credits the testimony of Caldwell
and Dorn, and finds that prior to April 1,• 1943, Flexman had decided to demote
West because of the latter 's union affiliation and activities
Flexman testified that on April 1, 1943, an unidentified voice which he
thought was that of employee Al Prestinacci , spoke to him over the telephone
and said , "West has been smoking in the film and storage room ." According to
Flexman he replied, "Holy smoke !" and hung up . His further testimony con-
cerning the telephone conversation was vague . He admitted that he took no
action in the matter until April 9 when he reported to Busby and reviewed the
"whole West case." °y Busby instructed him to obtain proof that West had
smoked in the film storage room. He then questioned employees Meyer and
Prestinacci about West ' s smoking and on April 10 went to Nazar's home and
questioned him. On April 15, he reported to Zimmerman 's office, where Zim-
merman, Busby, Donnelley , and respondent ' s counsel , were in conference. Busby
°1 Caldwell denied that Flexman asked him to speak to West about transferring to a day
shift.
°8 According to Fiexman he advised Busby of the various items of misconduct which have
already been noted in this Report, and admitted that Busby had been right in recom-
mending west 's transfer to the day shift on the occasion of West ' s alleged -insubordination
in June 1942 , relative to his failure to obtain the wage increase he had requested.
R. R. DONNELLEY AND SONS COMPANY 705
instructed Flexman to secure affidavits from the employees who had knowl-
edge of West's smoking, and then to demote West. That same day Flexman
visited the homes of Prestinacci, Meyer and Nazar and secured their signatures.
to affidavits which he had had drawn up in respondent's employment office, to
the effect that West had smoked in the film storage room.
On his return to the plant with the affidavits, Flexinan told West that he was
being transferred to the day shift as a finisher, at a reduction in wage which
amounted to about $14 a week on the basis of a 40 hour work week. He asked
West if he denied having smoked in the film storage room, and West replied
that he neither denied nor confirmed it. Flexman then said, "We can't have
foremen around here that will go in a room full of highly explosive nitro-
cellulose and endanger the lives of every man in the plant." Flexman advised
West that he could appeal his demotion to Busby, but West replied that he con-
sidered that Flexman represented management and that it wbuld be futile to
appeal to Busby. Neither at this time nor prior to it, did Flexman advise West
specifically of the other factors which allegedly entered into his decision to
recommend West's demotion, nor had he previously questioned West about his
smoking or afforded him an opportunity to explain or deny it.
The film storage room in which West admittedly smoked on the one occasion,
is a small fireproof air-conditioned room in which exposed or used film is stored
Flexman testified that about 5 percent of the total film stored in this room had
a nitrate base, whereas Board witnesses testified that only about 1 percent of the
film had a nitrate base.°° The film is flat and is stored in cardboard containers
which are placed on shelves about the room. At intervals, portions of this used
film which respondent wishes to discard are taken from the boxes and piled on
the floor for sorting and later removal. West testified that at the time lie
smoked in the room, there was no film on the floor, and his testimony in this
respect was corroborated by Jerry Mayer who was in the room at the time
West and Nazar smoked. Flexman testified to the contrary, that between
October 1942 and January 1943, a substantial quantity of the film was placed on
the floor and it remained there until March 15,. 1943, when additional film was
taken from the boxes and added to that already on the floor. Beginning April 15,
according to Flexman, the loose film thus placed on the floor was removed.
Alfred Schutt, Clifford Lenz and Jerry Mayer, employees who in the regular
performance of their duties enter the film storage room almost daily, testified
that there was no film on the floor from February 15 to March 15, 1943. Schutt
testified that the film was removed pursuant to his instructions about February
15. The.undersigned believes that these employees testified truthfully. West
testified that he was uncertain of the exact date when he smoked in the room
but thought it was the latter part of March ; later on rebuttal, he testified that
it was the last week in February or the first week in March The undersigned
credits his testimony corroborated by that of Mayer that there was no film
on the floor at the time he smoked and finds that the incident occurred during the
period between February 15 and March 15, 1943. Further from this, the `actual
date of the incident is immaterial.
West admitted that his smoking was in violation of company rules which,
prohibited smoking anywhere in the plant except specified areas such as the
wash and locker rooms, the cafeteria and the recreation rooms. He testified that
°' The remainder of the film had an acetate or "safety" base. The base of each film was
covered with a non-explosive and not easily ignited emulsion Alfred Schutt, an experi-
enced rotogravure photographer, testified : "The actual base of the film on which this
emulsion is coated is the only thing that has any bearing on safety or non-safety "
628563-45-vol. 6 0-4 6
706 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
there was little or no work on his shift that night, and that at employee Nazar's
suggestion , he and Nazar went into the film storage room where they played a
game of chess and smoked a cigarette. Nazar testified similarly, that during his
"no-work" time,100 seeing that West was unoccupied, he challenged the latter
to a game of chess and they went into the film storage room and played and
smoked. He testified that he kept a chess set in the department, and that it was
common knowledge that employees, when there was no work assigned to them,
might engage in personal activities, and that this had been the custom since he
first was employed at Donnelley's in 1937. Nazar's testimony in this respect was
substantially corroborated by that of other employees and was not contradicted
by respondent's witnesses, Thus Ford T. Bacon, an employee of the rotogravure
department, made a model tank for his foreman during his no-work time, after
his foreman had supplied him with a kit for making it. He testified that other
employees.engaged in similar activities. The respondent produced records show-
ing that at no time during the period in question, was there a total absence of
productive work on West's shift; it is clear from these records, however, that
there were occasions when there was very little productive activity in the
division of which West was a foreman. In any event, the gravity of West's
offense, as alleged by the respondent, lay in his act of rule violation by smoking
and by permitting an employee to smoke with him.
While respondent had a general plant rule against smoking, there were no
postings of this or additional or special notices in the department in which the
film storage room is located. In Department K, however, where inflammable
liquids are used in the engraving process, signs are placed at each entrance to
the department which. warn: "No smoking, dangerous chemicals." Also, in this
latter department there have been several fires arising from the use-of in-
flammable liquids. Nevertheless, according to the uncontradicted testimony of
several Board witnesse& which the undersigned credits, there was and is habitual
smoking in Department K during the-overtime work periods, indulged in by the
working foremen 30' of the department as well as the employees generally. On one
occasion, when the assistant superintendent had reported this smoking to Busby,
Busby carne into the department and as an "example," laid off one employee,
Bill'Brown, for one week. Others, including the working foremen, although
equally involved, suffered no penalty. According to Busby, he advised Brown's
foreman that if he allowed any more smoking in the department, he would be
demoted
On another occasion, Busby found a lighted cigarette on a work bench in
Department K. He testified that Frank Gundlach, an employee, was.sitting at
the bench and the cigarette was within his reach, and that just as he came into
the department, Gundlach "got up and walked away from the bench leaving the
cigarette there." On the following day, according to Busby, lie told Gundlach
that he had no "proof" that he had smoked but wanted him to understand that
the penalty for smoking was a week's layoff without pay. Further than this
warning, Gundlach was neither reprimanded nor penalized. West testified con-
cerning the incident, that Gundlach told him that Busby "caught" him smoking
at his work bench and told him that he should not smoke "in open," that it did
loo It is part of the Donnelley system of the guaranteed minimum work week that when
an employee is not engaged in productive work , lie advises his timekeeper and is assigned
a "no-work" number . While on "no-work" time, he normally engages in repair or cleaning
work, or if no work is assigned to him, lie may engage in personal interests not related to
production.
101 Working foremen have supervision over small groups of employees within a division
or department and are answerable to the foreman or superintendent of the department.
R. R. DONNELLEY AND SONS COMPANY 707
not set a good example. Admittedly, the habitual smoking in the department,
previously referred to, occurred only during the overtime work and it further
appears that the department heads are not normally on duty in this department
after the close of the regular work shift. In their absence, the working foremen
are necessarily in charge of the department. Since the smoking was habitual and
open, the undersigned believes it is clear that the respondent had knowledge of
it and took no action further than that already stated to enforce its rule in this
respect. Obviously, smoking would not be less hazardous because it was en-
gaged in during overtime, nor is there a distinction as regards the gravity of the
offense as between its occurrence on overtime and no-work time.
Flexman testified that in 1929 he read in a local newspaper of a disastrous
fire at the Crile Clinic in Chicago which was reputed to have been caused by
combustion of nitrate based film, and that therefore he regarded West' s smoking
in the film storage room as particularly hazardous. It 'does not appear, however,
that he thereafter or at any time took extra precautionary measures relative
to the room in which the film was stored, such as the posting of warning notices
similar to those posted in Department K. Orville Meyer, a commercial photogra-
pher, testified that smoking in the film room was no more dangerous than smoking
in the room in which the hearing in this proceeding was conducted. The under-
signed is convinced that Flexman's testimony relative to the Crile Clinic fire was
an afterthought and that his entire testimony represents an exaggeration of the
actual hazard of smoking in the film storage room, which, as previously noted, is
fireproof and air-conditioned; similarly, his testimony that there was a quantity
of loose film on the floor of the room throughout the period in question, was
clearly an effort to build up the case against West,, as -was his testimony con-
cerning West's alleged inefficiency and insubordination prior to March 1943.
Respondent in its brief concedes that it "is not very important whether it [the
smoking] happened in the film storage room or in some other part of a produc-
tion department and it is not very important whether any particular inflammable
material was near or not," but contends that the rule on smoking was "absolute."
It has been seen, however, that the normal penalty of a one week's layoff without
pay is not automatic but depends on circumstances.
The undersigned believes that the disparate treatment accorded West is clearly
established. When employee Brown was laid off for one week, his foreman was
merely warned that if he permitted further smoking he would be demoted.
Haighas Nazar who smoked with West, was not penalized, and was assured by
Flexman that in giving an affidavit concerning West's smoking, he "would be in
no way jeopardizing" himself. While the evidence was convincing that Gund-
lach was smoking during his working hours, since Busby did not actually see
him smoking, he merely warned Gundlach that the penalty for smoking was a
one week layoff without pay. In West's case, however, a careful and thorough
investigation was made of his smoking, without affording him an opportunity to
explain or to deny the incident, and when respondent felt that it had secured
sufficient evidence, it demoted him without warning or notice. There are further
circumstances which, in connection with the total situation, the undersigned
believes establish the discriminatory intent activating West's demotion beyond
reasonable doubt.
On or about Apiil 14, at the conclusion of a foremen's meeting, West, having
been advised by employees that Flexman was making inquiries concerning his
smoking, asked Flexman, "Jim, do you think you are justified because I signed
a card?" Flexman replied, "You,admit you signed' the card?" and when West
answered in the affirmative, Flexinan said, "I like your family . . . Your family
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is swell . . . but you are a foreman and you know the company policies." T
He did not then, however, accuse West of having smoked nor did he advise him
of the decision which had already been made with reference to his demotion.
On April 15, the day that West was demoted, Flexman told employee Schutt
that West was "a good pusher, and he got the work out all right, but that
he could not have all that union agitation going on around there, and that the
next foreman would be a man of character and a man that all the fellows would
look up to ..." 103 Foreman Warren Miller, who succeeded West as foreman
of the night shift, told employee Jerry Mayer that he had known for several
months that West was going to be replaced.104
In view of the foregoing and upon the entire record, the undersigned finds
that West's union affiliation and activities constituted the primary motivating
cause of his demotion and transfer to a day shift, and that the respondent by
its action in demoting West and its conduct with reference thereto, interfered
with, restrained, and coerced its employees, in violation of Section 8 (1) and
(3) of the Act.
2. Samuel Gates
Gates was employed by the respondent in 1924 and thereafter until November
8, 1943, when his employment was terminated. From 1926, be was regularly
employed as a pressman. On or about 1938, the respondent installed•a ten-color
press, and later installed two more. Gates was one of some 10 to 12 employees
who were qualified to operate this type of press, an operation requiring a high
degree of skill and responsibility.
In the Spring of 1942, after many years of continuous employment on a night
shift, Gates requested and was given a transfer to a day shift after he had
advised General Plant Superintendent Busby that unless his request was granted
he would seek employment elsewhere. He had previously, on several occasions,
asked his foreman for a transfer to a day shift without success Gates' immediate
supervisor on the day shift was Foreman Walter D Newkirk.105 For a week or
two after his transfer he was assigned to miscellaneous duties and then was
made pressman or operator on 10-color Press 100, which had just been installed
102 These findings are based on West's testimony which the undersigned credits. Flex-
man admitted that he talked to West following a foremen 's meeting of about April 8, and
that he then asked West to go on a day shift in order that he could determine whether be
had been wrong about West's conduct as a foreman "and in that way straighten the whole
thing out " "I was still trying to find some way that I could straighten Mr. West out,"
Flexman testified, "because of our friendship." Admittedly, he did not because of his
alleged friendship for West advise him that it had been reported to him that West had
smoked in violation of company rules. Since West had already been advised by employees
that Flexman was making inquiries concerning his smoking, and Flexman testified that he
made these inquiries following a conversation with Busby on April 9, the undersigned finds
that the conversation occurred on or about April 14 as West testified
103 These findings are based on Schutt's testimony. Schutt signed a union card in Jan-
uary 1943 but withdrew it prior to his conversation with Flexman and was not thereafter
affiliated with the Union Flexman denied the statements attributed to him by Schutt.
Schutt was an intelligent and convincing witness and the undersigned credits his testimony.
101 These findings are based on Mayer's undisputed testimony which the undersigned
credits.
105 Newkirk testified that he was advised by Elmgren, who had been Gates' foreman on
the night shift, that Gates had asked for transfer to a day shift only twice and that each
time he (Elnrgren) had "talked him out of it" by giving him a wage increase or other
inducement Gates while admitting that on one occasion, several years prior to 1942, after
a request to transfer to days he had remained on nights Voluntarily upon receiving a wage
increase, testified that on some 5 different occasions spice he had requested transfer to
days without success. Elnrgren did not testify The undersigned credits Gates' testimony
since Newkirk's hearsay testimony lacks corroboration and Newkirk was not a convincing
witness. No reason was given for respondent's failure to call Elmgren as a witness.
R. R. DONNELLEY AND SONS COMPANY 709
and which was the largest of the 10-color presses and the most difficult of opera-
tion. This press required an operating Grew of some 15 persons. Gates de-
scribed it as the equivalent of two ordinary presses.
In the Spring of 1943 there was union. activity in the department and dis-
cussion of the Union among the employees. On one occasion, Gates and a fellow
employee engaged in such discussion, and when the other employee stated that
under union conditions the men would be laid off when work was not available
on their regular jobs, Gates replied that except for the bonus, conditions would
remain much the same, that he had worked in a union shop and "knew." At
the conclusion of the conversation, which had been overheard by Assistant Plant
Superintendent Matthias Vanderkloot, Vanderkloot asked Gates, "How do you
know so much about the union?" Gates replied that he had been a member of
the pressman's local union in Chicago 30.
At the time of this conversation, Henry Fehr was assistant pressman on
Press 100; shortly thereafter, an extra assistant, Didier, was assigned to this
machine. On or about May or June, 1943, Press 100 shut down for repairs.
Gates then substituted for Jack Jicka, pressman on 10-color Press 88, who was
then on vacation. When Jicka after some 2 weeks returned from vacation,
although Press 100 had been repaired and was again placed in operation, Gates
was not returned to his old job. Instead, his former assistant Fehr was made
pressman on Press 100, and Gates thereafter, for some 3 or 4 months, was assigned
to miscellaneous duties which he characterized as "flunky work." It appears
that some of this time he served- as a substitute pressman or as an assistant
pressman, without regular assignment to any orie press or job. When Jicka
left respondent's employ in September or October, Gates was made pressman
on Press 88. He testified without contradiction that at that time he and em-
ployee Charles Shusha, whom Gates had trained as a 10-color pressman, were
the only two employees on the floor available and capable of serving as operator
of Press 88.
Gates admitted that at no time was his basic wage as a pressman, reduced,
but testified that except on days when he acted as a substitute pressman, he
lost the bonus which he normally would have earned as a pressman. Gates'
records indicate that there was no over-all reduction in his wages but that his
wages were in fact somewhat above the level of the previous year. It is clear,
however, and the undersigned finds, that in all respects except pay, respondent's
action in removing Gates as pressman of Press 100 was demotion since he was
thereby deprived of regular job status as a pressman and assigned to duties
requiring a lesser degree of responsibility and skill.
Gates testified without contradiction that Fehr, who was assigned to his old
job as operator of Press 100, was opposed to the Union and had been named in
a Union radio broadcast as one of several Donnelley employees who were engag-
ing in anti-union activity. This testimony is credited an,d since respondent had
transcripts regularly made of the Union's broadcasts it is reasonable'to assume
that Fehr's opposition to the Union was known to it.
On or about November 1, Newkirk handed Gates a note addressed to a fore-
man of the night shift, advising that on or about November 8, Worchester, an
employee then on a night shift, would come on days while Gates would go on
nights. Gates protested his transfer back to a night shift to Newkirk but New-
106 Vanderkloot did not deny that he overhead Gates' conversation relative to unions or
that he questioned Gates concerning the latter's knowledge of unions, but testified that
he did not "recall" either the conversation or the questioning. Gates' testimony was clear,
convincing and is credited Vanderkioot also testified that he did not advise Gates' fore-
man, Newkirk , of the incident , but if he had no recollection of the incident though it
actually occurred , obviously his recollection in this latter respect cannot be relied upon.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kirk made no response. On November 6, Superintendent Vanderkloot asked
Gates what he intended to do on the following Monday, November 8, and Gates
replied that lie would report for work at his usual time. When Gates reported
at his usual time on November 8 he found that his time card had been removed.
Gates saw Vanderkloot, and at the latter's suggestion, they went to Busby's
office, where Gates explained that his son, who was with the armed forces in
Italy, had recently been hospitalized and had been released and sent back to the
front, as a result of which Gates' wife was nervous and did not want to be alone
at nights.101 Gates testified, " ... it didn't seem to put much impression on
them " After discussion, Busby told Gates that if he made an issue pf his trans-
fer to the night shift, he would require a rotation of all the employees of the
department. Rudy Jirak, an employee who had worked continuously on a day
shift for many years, was called to Busby's office. Jirak said that he had never
worked on a night shift "because nobody ever asked him to." The record is not
clear whether Jirak assented to shift rotation.
Following the meeting in Busby's office, Gates saw Littell and explained to
him the circumstances. of his son's hospitalization. Littell suggested that the
name of Gates' son might be placed on respondent's roll of employees in the
armed services,10" and told Gates to call him later with reference to the shift
transfer. Gates called as directed and Littell then told him that all arrange-
ments had been made for him to transfer to a night shift. Gates did not report
back for work until Friday of that week. He testified, "I figured maybe by hold-
ing out a little bit I might get them to change their attitude." On Friday he
called Littell and told him that he could not transfer to a night shift.' Littell
replied, "I will tell you what to do, Sam; you go out and get yoursef a job in
a union shop . . . you are a union man . . . aren't you?" Gates asked, "Is that
the reason I am getting shoved on nights, because I belong to the union?"
Littell answered, "Not exactly," and suggested that after 6 months Gates should
come back and let him know how he liked a union shop.10'
Gates then applied to Employment Manager Chapman for a release. Chap-
man advised him that he was not supposed to issue a release to an "essential"
man, but would make an exception in Gates' case.11A Upon termination of Gates
employment, Shusha was made pressman in the place vacated by Gates.
Newkirk testified that he removed Gates as operator of Press 100 because Gates
did not "organize" his crew properly and Gates' work as pressman on a Sears
Roebuck color insert job had been unsatisfactory ; he further testified that neither
the quality nor the volume of Gates' production as pressman was satisfactory.
Concerning the Sears Roebuck job, Newkirk testified that complaints had been
lodged by the customer and that on several occasions he had spoken to Gates
about the poor quality of his work. He admitted on cross-examination that
customer complaints on quality of color work were frequent,"' and that pro-
101 Busby denied that Gates made any mention of his son having been wounded and tests.
fled, "I am sorry he didn't." It is undisputed that Gates did later discuss the matter of
his son with Littell. The undersigned believes that normally Gates would have stated to
Busby the circumstances which made it personally objectionable to him to work on a night
shift, and does not credit Busby 's denial that he did so.
108 It appears that while attending school, Gates' son had worked part-time at Donnelley's.
100 These findings are based on Gates' uncontradicted testimony which the undersigned
credits. Littell did not testify An application to take his testimony in his office, and
restricting his testimony to-the one topic of his conversation with Gates, was denied.
110 It appears that respondent was permitted to issue a release for an "essential" man
when the circumstances justified an exception to the general rule.
' The following are excerpts from Newkirk ' s testimony on cross-examination
Q. Has it ever occurred during your entire experience on color jobs that the cus-
tomer has complained about how the color was done other than this Gates incident?
R. R. DONNELLEY AND SONS COMPANY 711
duction schedules were met while Gates was on Press 100. He also testified that
respondent's records would show the amount of work produced by Gates as
pressman, but no records were produced to corroborate his claim that Gates'
volume of production was unsatisfactory. He admitted that although Gates had
worked under his supervision for a year and a half, both the quality and
quantity of his work was satisfactory prior to the alleged "trouble" on the
Sears Roebuck job. Asked to state specifically what caused him to remove
Gates from Press 100, Newkirk testified,
It was his inability to organize his crew well, and the poor quality he run
on the Sears job that we had him on.
Q. How long had the Sears job been running?
A. It has been running five or six weeks, I think, about that time.
On further questioning, Newkirk admitted that for some 3 months prior to the
date on which Press 100 was shut down for repairs, a job for Life had been
run on that press. It further appears from Gates' uncontradicted testimony on
rebuttal that the last Sears Roebuck job which he ran on Press 100, was run
between December 1042 and March 1, 1943, and subsequently and until the press
was shut down and he was removed as its operator, he ran a job for Life.
Gates admitted that he had one complaint from Newkirk on the Sears Roe-
buck job; this occurred near the start of his work shift and had to do with
some adjustment of the press.1' He testified without contradiction that he had
been commended for his work on Press 100 by Somers, respondent's "efficiency"
man, and that the last job that he ran on Press 100 was given the highest effi-
ciency rating ever made in the "color room." This testimony, undisputed, is
credited. Gates further testified that he first wore a union button in the plant
during working hours in the summer of 1943.
Newkirk's explanation of his action in removing Gates as operator of Press
100, lacks corroboration either on the basis of production records or supporting
testimony. At the time of this demotion, Gates had 4 years of experience as a
10-color pressman and was one of the few employees qualified to operate this
type of press. Had lie been unable properly to organize and direct his press
crew, it is not credible that respondent would have retained him as operator
of Press 100 for some 12 to 18 months. Neither is it credible, had his work been
so unsatisfactory as Newkirk's testimony would indicate, that he would have
been continued, following completion of the Sears Roebuck job, for several
months as pressman on a job as important as that for Life. It is significant
that upon his removal, Newkirk promoted Felir, Gates' assistant pressman, to
A. Yes.
Q. As far as that is concerned, it occurs frequently, isn't that right?
A. Yes.
Q In fact, it is going on right now?
A. Probably.
Q. Not "Probably" but frequently. isn't that true?
A. We have complaints from advertisers frequently.
Q. On quality of the work that you produce?
A. Yes, that is right.
M • i • i t
Q. How many people have you taken off the ten-color press because of complaints
as to quality of production?
A. Only one.
Q. Who?
A. Gates.
"'Gates testified, ". . . a foreman comes around and looks at the sheet and he marks
color and fixes it, I don't consider that a complaint." It appears therefrom that he may
have had "complaints" of this character.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fill Gates' old job. Fehr admittedly was a far less experienced operator of
10-color presses than Gates."'
In view of the foregoing and the entire record, the undersigned is unable to
credit Newkirk's explanation of his demotion of Gates and finds that Gates was
demoted because the respondent believed that he was either affiliated with the
Union or active in its behalf.
Newkirk's testimony regarding Gates' transfer from a day to a night shift
was equally unconvincing Both Newkirk and Busby admitted that there was
no regular shift rotation of pressmen in Gates' department. They testified,
however, that there was a "modified" system of rotation. Busby thought the
modified system was in effect prior to the date on which Gates transferred to a
day shift ; Newkirk testified that prior to 1941 only a few pressmen were trans-
ferred from shift to shift. Busby also testified that whenever an employee on a
night shift requested a transfer to days, the request was granted. As has been
seen, however, Gates made repeated requests for transfer to a day shift before
his request was finally granted upon his threat to seek employment elsewhere.
Newkirk and Busby testified that under the "modified" system of rotation,
when an employee on a night shift requested a transfer to days, if there was no
,,volunteer" from an employee on the day'shift to take his place on the night
shift, a rotation was theta set up in the department, and the employee whose name
was listed as having served longest on the day shift was then transferred to
nights Newkirk testified that Gates' name normally would have been reached
about 6 months after he came on a day shift, but that since Gates had spent so
much time on a night shift he "decided to give him a little the best of it and send
one of the younger boys in his place." Newkirk was unable, however, to recall
the name of the employee of the night shift whose request to come on days finally
resulted in Gates being directed to return to the night shift."'
It further"appears that at the time Gates was directed to go on nights, 5 other
employees in his department had been on days for years without shift rotation.
Busby explained this seeming inconsistency by testifying that day shift pref-
erence was given to employees of 20 or more years of service. This appears to
have been a further modification of the modified system of rotation. Newkirk
admitted that Fehr, who was made pressman on Press 100 upon Gates' demotion,
had worked on a day shift without rotation until August or September, 1943,
although he had been employed only some 7 years. Newkirk testified that Fehr
was not required to transfer to a night shift because of a "heart condition";
this condition was improved at the time of his eventual transfer in September
or October. It appears therefrom that normally, if an employee had a sufficiently
strong reason for remaining on a day shift, he was not subjected to shift rotation.
Newkirk denied that he had any knowledge of Gates' union affiliation until the
day following his direction to Gates to return to the night shift, when he was
advised by Foreman Elmgren that Gates was a "union man" ; he also denied
that he ever saw Gates wear a union button until after Gates' shift transfer had
been ordered. He did not explain why or how Elmgren, who had not been
Gates' foreman for more than 18 months, had knowledge of Gates' union affilia-
tion while he did not. As previously stated, Elmgren did not testify.
"I Newkirk testified
Q. Now, how much experience had Fehr had on ten color work prior to this time
when he started to work on Life with Gates, or under Gates?
A. Well, he had had not very much.
Q. . . . You were breaking him in, trying to train him for the work?
A. That is right.
114 His memory having been refreshed , he thought it may have been Worchester.
R. R. DONNELLEY AND SONS COMPANY 713
The undersigned is unable to credit the testimony of Busby and Newkirk
regarding the motivating causes prompting respondent's attempt to place Gates
back on a night shift after he had been on days only some 1S to 20 months.
Prior to the spring of 1942 Gates had been kept continuously on a night shift
for many years. Admittedly 5 employees had remained on a day shift for many
years without rotation. Busby's testimony that preference was shown them
because they had more than 20 years of total employment is an admission
of preference to old employees. The undersigned believes that in normal circum-
stances Gates, who had almost 20 years of total employment and who had spent
most of this time on nights, would have shared in this preference, and ,that
Busby's testimony drawing the line at exactly 20 years, was an afterthought
calculated to give persuasiveness to respondent's refusal to accord Gates the
same preferential treatment shown these other 5 old employees While Busby
agreed that if Gates made an "issue" of his rotation, he would include these
5 employees, it appears that after termination of Gates' employment they con-
tinued uninterruptedly on the clay shift 16 It further appears, as with employee
Fehr, that exceptions to shift rotation were sometimes made for reasons personal
to the employee. Normally, the reasons given by Gates for his refusal to return
to a night shift would have been strongly persuasive, particularly in view of the
fact of his long tenure of employment on a night shift.
The real cause for respondent's refusal to grant Gates' request to remain on
a day shift appears in Gates' undisputed testimony that after he had appealed
to Littell, Littell advised him to get a job in a union shop and reminded him
that he had been "parading around with a union button . . ." The under-
signed credits Gates' testimony that he first wore his union button in the early
summer of 1943. Newkirk's testimony that his first knowledge of Gates' union
affiliation came from Elmgren, the night foreman under whom Gates had not
worked for more than 1S months, and that he was thus advised the very day
following his instructions to Gates to return to the night shift, in absence of
Elmgren's corroboration, is not credible. And in any event, admittedly, at a
time when Gates was still appealing for his job on the day shift, respondent had
full knowledge of his union affiliation and chose to remind hire of it in con-
nection with the severance of his employment. In view' of the total circum-
stances, there is no plausible reason why the respondent would have insisted
in the transfer to the extent of losing the services of an employee on an essential
job and one of its few employees competent to operate a 10-color press, except
respondent's knowledge of Gates' union affiliation As is seen elsewhere in this
report, in the instance of other employees whom the respondent believed to be
engaged in union activity, effort was made to transfer them from their regular
shifts.116
It appears that an extra bonus was allowed for work on a night shift, and it
may well be that some employees in view of the extra earnings, might elect to
remain on a night in preference to a day shift Nevertheless, it is a matter
of common knowledge that normally day shift work is considered more desirable.
In the present situation, in addition to the personal inconvenience of the trans-
fer, Gates' transfer would have involved uncertainty as to his job status, since he
was given no assurance that he would continue as a pressman on a n ight shift,
16 This is inferred from the admitted fact that Busby made the proposal to transfer these
five employees only if Gates made an issue of his own rotation Gates did not accede to
the proposal but continued to insist that he remain on a day shift , and his employment-
was thereafter terminated
110 See sub-divisions III A ( 6) and III B ( 1) of this report with reference to Maxwell
and west, respectively.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, normally, after transfer he would be assigned to a regular pressman's job
only when a vacancy occurred on that shift; until then he would be subject
to assignment as a substitute or assistant pressman or to other work as his
foreman saw fit. Such a transfer, with attendant uncertainty of job status,
would not represent an offer of equivalent employment.
In view of the foregoing and the entire record, the undersigned finds that the
respondent demoted Gates and later sought to transfer him from a day to a
night shift, because of Gates' union affiliation ,and activity in behalf of the Union,
and that the respondent thereby interfered with, restrained, and coerced its
employees in violation of Section 8 (1) and (3) of the Act.
C. Concluding findings
Evidence of unfair labor practices is properly viewed and evaluated against
the background of the employer's entire labor policies and pronouncements with
reference to organizational activities of its employees. It is a truism to state
that an employee cannot enjoy the freedom to participate in organizational
activities guaranteed him by the Act, if his mind is shackled with fear of
employer retaliation. For some 28 years the respondent imposed upon its
employees, without consideration of their individual or collective desires, an
absolute denial of their freedom to engage in any manner of union activity""
Respondent's counsel argues reasonably enough that it was within its legal
rights in proscribing union activity among its employees during the said period.
However, we are not here concerned with the legality of such a course of con-
duct during the period stated. Neither are we concerned here with the legality
of respondent's conduct subsequent to 1933 and prior to the passage of the
Wagner Act. The purpose in reviewing this latter period of respondent's
labor policy is to determine the validity of respondent's claim that in 1933
there was such a complete "about face" in its policies with reference to em-
ployee participation in organizational activities that its employees were freed
from the restraint and coerciveness of the prior 28 years. Such complete
freedom could have been vouchsafed then only by the most unequivocal state-
ments and conduct which would set forth and demonstrate respondent's alleged
reversal of its position regarding ils employees' organizational activities. The
undersigned is convinced that the respondent, though signing the President's
Reemployment Agreement in 1933, took no such steps in implementation of this
action as would affirm in the minds of its employees that they were thereafter
free to engage in self-organizational activities without fear of discrimination.
To the contrary, in view of Littell's statement of July 7, 1933, and Donnelley's
admissions that in the same speech in which he advised employees of the al-
leged reversal of respondent's policy he voiced respondent's continuing objec-
tion to the unionization of its employees, the undersigned is convinced that
the respondent gave no more than a peripheral endorsement to the principles
enunciated in Section 7 A of the National Industrial Recovery Act and in
fact and effect continued to exert pressure upon its employees to refrain from
union affiliation and activities, from which the employees would reasonably
assume that respondent's compliance with Section 7 A was more formal than
real.
If, upon the enactment of the Wagner Act, respondent had adopted a neutral
or "hands-off" policy with reference to organizational activities of its em-
"I Compare with situation =presented in N. L R. B. v. American , Tube Bending Co.' 134 F.
(2d) 993 ( C. C. A. 2 ), cert. denied 320 U. S. 768, where there was no evidence of a back-
ground of anti-union statements or conduct.
R. R. DONNELLEY AND SONS COMPANY 715
ployees, no findings adverse to it could now be inferred from its conduct ante-
dating the Act, though the after effects of such conduct continued as a re-
straint upon the minds of its employees. But the respondent did not adopt a
neutral or hands-off policy when the Wagner Act Became law. Following the
Supreme Court's decisions upholding the constitutionality of the Act, it hur-
ried" into print with a statement to its employees which purported to "ex-
plain" the court's decision, but which in fact, by a careful and shrewd selec-
tion and arrangement of quotations and use of emphasis, managed to convey
to the employees that their gains under the Act were negligible and that it
behooved them to remain as they then were-non-union. Employees who read this
statement, with its (to the respondent) apt "and so what," with its felicitious
references to past Donnelley employer-employee relationships, and its argu-
ment against unions, would reasonably assume that, Act or no Act, organiza-
tional activities would continue to be frowned upon very much as they had in
the past, at Donnelley's. Subsequent to the issue of this statement, and con-
currently with each upswing of organizational activity among the employees, the
respondent, as has been seen, issued numerous statements and through its
supervisory personnel addressed its employees, in a sustained effort to prevent
their unionization.
There is in fact a large measure of candor in respondent's admissions that
it has at all times opposed unionization of its employees and has advised its
employees of its opposition. Thus, General Plant Superintendent Busby
testified : -
Q. Now, do you feel that you have made it clear to all the employees in
the plant that the company desires that they should not join the unions?
A. Yes ; we have told them that we believe they are better off the way
they are. We have said that to them many times.
The respondent also admits that it has carried its opposition to unionization
of its employees to what it has considered to be the limit of permissible conduct
under the Act. Busby's testimony of this topic is illustrative :
Q. It is fair to say that the company desires to do everything legally
permissible to prevent the employees from joining the unions?
A. Yes.
From the foregoing and the entire record, it is clear that the respondent
has been guided by such legalistic concepts of permissible conduct as , from time
to time, seemed to it adaptable to its manifest purpose of discouraging unioni-
zation of its employees . If each of its statements were isolated from its con-
temporary and background context and thus viewed in isolation , it might very
well appear doubtful that a law violation had occurred . But in departing from
all semblance of neutrality , the respondent has subjected its statements to the
reasonable and necessary process of having them viewed and evaluated in the
light of its entire labor relations history, since "experience teaches us that
such a long continued influence does not suddenly evaporate ,i110 and a state-
ment or act which in isolation may appear harmless , may be of the essence
of coerciveness when viewed in the light of a long-continued policy or course of
118 The quotations from the court ' s decision which the respondent incorporated in its
statement , were copied from a local newspaper.
119 Sperry Gyroscope Co. v.- N. L. R. B., 129-•F . ( 2d) 922 ( C C. A. 2 ) ; 10 LRR 689.
N. L. R. B. v. Virginia Electric & Power Co., 314 U. S. 469; see also for a restatement of
the Board 's position relative to alleged 8 (1) statements and conduct : Matter of Van
Raalte Company, Inc. and Textile Union of America ( C10), 55 N. L. R. B . 146; 14 LRR
48; also, Matter of Peter J . Schweitzer, Inc., 54 N. L. R. B . 813; 13 LRR 658.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action which has left its impact upon the minds of the employees Respond-
ent's statements and conduct since the enactment of the Wagner Act, when
so viewed, represent pressure "vocally exerted" and are not, as respondent's
counsel argues , privileged finder the constitutional guarantee of free speech12P
A brief reterence to certain categories of its statements is sufficient for
purposes of illustration.
Respondent's frequently reiterated statement to its employees that it will
never sign a closed shop contract has a particular significance when it is under-
stood that the standard and traditional bargaining contracts of the printing
trades unions are common called closed shop agreements and that the term
embraces the general working rules and stipulations governing working con-
ditions which these unions seek to perpetuate in their contracts That the
respondent in its statements to employees intended to use the term in this,
comprehensive sense, is illustrated in the testimony of its Executive Vice-
president, Zimmermann, one of the triumvirate responsible for formulating
Donnelley policies. The following is an excerpt from his testimony :
Q What do you refer to when-you state "a closed shop contract?"
A. Where only members of the union can be employed and where all of
the union rules are effective.
* * * * * * *
Q. Now, I did not understand the latter part of your answer. Will you
explain that?
A. Well, the unions,-so far as we know, the union contracts have certain
regulations regarding the makeup of crews, the seniority rights and certain
make work rules, all of that type of thing. I don't know what all of the
rules are.
Q. You mean union rules?
A. Union rules. But I understand when a closed shop agreement is
signed all of those union rules become effective. {Italics supplied.]
Busby testified that he had "tried to convey to other people , that every other
item of the closed shop contract, the number of crews, the hours, the wages, every
other one of those things we are required under the Wagner Act to do, that they
are negotiable, and if we are required to arbitrate we will arbitrate over every
other item of the contract except the closed shop clause." However, no such
unequivocal statement appears in speeches, talks or conversations in which -
Busby advised employees of respondent's determination never to sign a closed
shop contract. Wherever the reference appears, it is not to a "closed shop
clause" in a contract but to a "closed shop contract" or agreement. The under-
signed believes that Zimmermann , an impressive and convincing witness, truth-
fully stated respondent's conception of the closed shop as the term was used
in its statements to its employees. The undersigned is convinced and finds that
respondent's frequent declarations that it would never sign a closed shop agree-
ment, coupled with its emphasis on the fact that the Act does not require an
agreement and that the respondent in the future as in the past would maintain
an "open shop", had the effect of conveying to the employees that in the event
a majority of them did designate the Union their bargaining representative,
such collective action would be futile. since the respondent would not enter into
contractual relationships with the Union Such a conclusion is consistent with
120 Compare respondent's August 1929 statement. "Concluding-if, by sonic impossible
combination of mob psychology, the union were able to persuade every man in our employ
to strike, we would never rehire, and would immediately organize non-union."
R. R. DONNELLEY AND SONS COMPANY 717
Busby's perhaps unguarded statement to a union representative , made in the
presence of employees , "You won ' t get inside to a conference with us in twenty
years."
In close association with its declarations that it would never sign a closed
shop contract , the respondent , though there was neither strike nor threat of
strike among Donnelley employees , asserted that in the event of unionization,
and following its refusal to sign a closed shop agreement , the Union would
"probably" call its members out on strike to enforce the closed shop. Such state-
ments, as well as repeated suggestions that employees might meet with violence
at the hands of the Union , when there was no violence or threat of violence, were
calculated to plant fear and uneasiness in the minds of employees, and to
hypothesize the respondent in the role of guardian of its employees ' security and
safety . Respondent 's counsel argued that such statements were justified since
it has been held that an employer , under conditions where force is applied by
unions to coerce non-members, as where non -members are forcibly taken from
their customary place of work, the employer is under affirmative duty to render
such protection to the coerced employee as will enable him to continue to per-
form his duties unmolested . The argument has no foundation in the present
situation where the record is barren of any showing that the Committee or any
of its member unions have imposed any interference whatever with the peaceable
performance of their duties by Donnelley employees.
A further step in logical progression of the Donnelley statements , is that
the Union , having called its members out on strike to enforce its demands for
a closed shop , Donnelley's would continue to function and those who had an-
swered the strike call would be deprived of employee status. It is noteworthy
that the respondent did not see fit to advise its employees that in the event
a strike occurred as a result of its unfair labor practices , its employees would
have a continuing status as employees . In view of the total situation , the threat
of discharge is implicit in the Donnelley statements , and its employees, con-
ditioned by past declarations that the respondent would run non -union or not
at all, could not fail to apprehend the discriminatory intent not too subtly
screened by words 120
In summation it may be said that the whole congery of statements on the
topic of the closed shop , when stripped to their actual and potential import,
signify that in the event a majority of employees designate the Union their
bargaining representative , ( 1)' the Union will demand and the respondent will
refuse a closed shop agreement ; ( 2) to enforce its demands the Union will
call its members out on strike ; ( 3) employees answering the strike call will
be deprived of their status as employees.
While repeatedly asserting that it would never sign a closed shop contract,
the respondent told its employees that in the event the plant became unionized,
they would lose certain privileges and advantages of employment then existing.
They would no longer receive bonus or incentive payments , there would be no
promotions on the basis of merit, and they would bd deprived of the guaranteed
minimum work week. Busby , on occasions when employees were engaged in
non-productive work, would advise them , as a part of his anti-union argument,
that were the plant unionized they would be deprived of their wages at such
times as their regular jobs were not in operation . The logical inconsistency
of respondent 's position is apparent . If the respondent could legally refuse to
negotiate on a closed shop agreement , assuredly it could not be required in
the process of collective bargaining to consent to depriving its employees of
already existing benefits. Doubtless , in the event of unionization , the closed
Footnote 120 on p 716.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop would be one of the foremost issues upon which the respondent would be
called upon to bargain ; other matters such as incentive payments, seniority,
and the guaranteed minimum woik week also might very well be topics upon
which the Union would propose to bargain. The requirements of bona fide
collective bargaining do not permit an employer to pick and choose the issues
which he unilaterally considers fit for negotiation and to reject negotiation on
all others. If this were not true, the whole process of collective bargaining
would be a sham. In the situation here presented, it would be as binding an
obligation under the law for the respondent to bargain in good faith on the
issue of the closed shop, when and if presented, as to bargain on any other
-topic. Respondent's motive in declaring on the one hand that it will never
enter into negotiations on the issue of the closed shop and on the other
hand that employees by unionization will be deprived of certain existing bene-
fits, is clear. In effect the respondent has advised its employees that they can
hope for no gain or security through union affiliation, but that they will lose
existing benefits and endanger such job security as they now enjoy. Such
statements, in the light of the entire complex of facts, are basically and essen-
tially coercive, quite apart from discriminatory acts and conduct directly
affecting the job status of employees.
The record affords no evidence of the outright discharge of employees for
engaging in union or concerted activities. As has been found, however, the
respondent has in some instances penalized employees for what it believed
to. be their union affiliation or sympathies. By its discriminatory lay-off of
Harold Gunther ; its demotion of Walter West and Samuel Gates, and discrim-
inatory requirement that the latter transfer to a night shift; and its discrim-
inatory refusal to hire Stanley Klaviter, the respondent has added additional
weight and substance to the vocal pressure which it has, over a long period of
years, brought to bear upon the minds of its employees to-prevent their union-
ization.
Upon the basis of the findings of fact which the undersigned has made in
Section III (A) and (B) of this Report, upon the entire record, and in addition
to findings of unfair labor practices heretofore made, the undersigned finds:
1. By questioning its employees concerning their union affiliation and activi-
ties, and by otherwise harassing them during their working hours by anti-union
talks, conversations, and speeches ; by warning them that they can not gain by
union affiliation, but will lose existing benefits; by its declarations on the
closed shop, warnings of violence at the hands of the Union, and warnings of
strike action and resultant loss of employee status; by, its statements deroga-
tory of the Union and union leadership, and reflecting on the patriotism of
those who engage in self-organizational activities during the war emergency ; by
the promulgation of discriminatory rules on union activities and the discrim-
inatory enforcement of such rules; by offering employees inducement to refrain!
or withdraw from union affiliation ; by the discriminatory lay-off of Harold
Gunther and a discriminatory refusal to hire Stanley Klaviter ; by the afore-
said statements and conduct, and other kindred statements and conduct as set
forth in Section III (A) of this Report, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
them in Section 7-of the Act and in violation of Section 8 (1) of the Act. -
2. By its discriminatory demotion of Walter West and Samuel Gates, and its
discriminatory requirement that Samuel Gates transfer from a day to a night
shift, the respondent has discouraged membership in the Union and interfered
with, restrained, and coerced its employees in violation of Section 8. (1) and (3)
of the Act.
R. R. DONNELLEY AND SONS COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
719
The activities of the respondent set forth in Section III above, occurring in
connection with the operations described in Section I above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TIIE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take cer-
tain affirmative action which the undersigned finds necessary to effectuate the
policies of the Act. -
The undersigned has found that by certain statements and conduct, set forth
in detail in Section III (A) of this Report, the respondent has interfered with,
restrained, and coerced its employees in violation of Section 8 (1) of the Act.
Since the respondent has in several instances addressed certain of the afore-
said statements to its employees through the mails, the undersigned will recom-
mend that in addition to the posting in its Chicago plant, the respondent mail
to each of its employees , including its employees who are now in the armed
services, notices stating that it will not engage in the conduct from which it is
recommended that it cease and desist, and that it will take the affirmative action
recommended in this Report.
The undersigned has found that on April 15, 1943, the respondent demoted
Walter West because of his union affiliation and activities. The undersigned
will recommend that the respondent offer immediate and full reinstatement to
Walter West to the position he held prior to his demotion, or to an equivalent
position, without prejudice to his seniority or other rights. and privileges, and
that the respondent make Walter West whole for any loss of pay he may have
suffered by-reason of the discrimination against him, by payment to him of a
sum of money equal to that which he normally would have earned from April
15, 1943, when he was discriminatorily demoted, to the elate of the offer of rein-
statement , less his net earnings '' during the same period.
The undersigned has found that the respondent discriminatorily demoted
Samuel Gates and, later, on or about November 8, 1943, caused the termination
of his employment by a discriminatory requirement that he transfer to a night
shift. The undersigned will therefore recommend that the respondent offer
Gates immediate and lull reinstatement to a position on a day shift which shall
be the same position which he held at the time his employment was severed due to
his refusal to accept a discriminatory transfer to a night shift or its equivalent;
the undersigned will further recommend that the respondent make Gates whole
for any loss of pay he may have suffered by reason of the respondent's discrimi-
nation against him, by payment to him of it sum of money equal to that which
he normally would have earned from November 8, 1943, the date of the termina-
tion of his employment, to the date of the offer of reinstatement,, less his net
121 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
dischaige and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Worktrs Union, Local 2590, 8 N. L. R . B 440. Monies
received for work performed upon Federal , State , county, municipal , or other work -relief
projects shall be considered as earniigs . See Republic Steel Corpo,ation v. N. L. R. B,
311 U. S 7.
720 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings 122 during the said period. When Gates shall have been reinstated to
his former or its equivalent position on a day shift, he will be subject to such
normal non-discriminatory shift rotation as the respondent shall see fit to require
of its employees, and nothing in this Report is to be construed otherwise.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Organization Committee, Chicago Printing Trades Unions, and each of
its member unions,123 are labor organizations within the meaning of Section 2 (5)
of the Act.
2. The respondent, R. R. Donnelley And Sons Company, is an employer within
the meaning of Section 2 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Walter
West and Samuel Gates, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (1) and (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2'(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the respondent, R. R. Donnelley And Sons
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the Organization Committee or any of its
member unions, by demoting or refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire and tenure of employ-
ment or any term or condition of employment ;
(a) Discouraging membership in the Organization Committee or any of its
member unions, by the promulgation and enforcement of a rule, or rules, pro-
hibiting union discussion and activities which do not interfere with 'produc-
tion and/or the normal exercise of discipline;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Walter West immediate and full reinstatement to the position which
he held prior to his discriminatory demotion on April 15, 1943, or its equivalent,
without prejudice to his seniority or other rights and privileges ;
(b) Make Walter West whole for any loss of pay he may have suffered by
reason of the respondent's discrimination against him, by payment to him of a
See footnote 121, supra.
123 See Section II of this Report.
R. R. DONNELLEY AND SONS COMPANY 721
sum of money equal to that which he normally would have earned as wages
from April 15, 1943, the date of his discriminatory demotion, to the date of the
offer of reinstatement, less his net earnings" during the said period;
(c) Offer to Samuel Gates full and immediate reinstatement to the position
which he held prior to the termination of his employment on or about November
8, 1943, or to an eqm' alent position on a day shift, without prejudice to his sen-
iority or other rights and privileges ;
(d) Make Samuel Gates whole for any loss of pay he may have suffered by
reason of the respondent's discrimination against him, by payment to him of a
sum of money equal to that which he normally would have earned from Novem-
ber 8, 1943, the date of the termination of his employment, to the date of the
offer of reinstatement, less his net earnings'' during the said period;
(e) Post immediately on its bulletin boards throughout its Chicago plant, and
maintain for a period of at least sixty (60) consecutive days from the date of
posting, and mail to each of its employees including its employees in the armed
services, notices to its employees stating: (1)_that the respondent will not en-
gage in the conduct from which it has been recommended that it cease and
desist in paragraph 1 (a), (b), and (c) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a), (b), (c),
and (d) of these recommendations; and (3) that the respondent's employees are
free to become or remain members of the Organization Committee or of any of
its member unions, or any other labor organization of their choice, and that the
respondent will not discriminate against any employee because of membership
or activities in behalf of a labor organization;
(f) Notify the Regional Director for the Thirteenth Region in writing within
ten (10) days fiom the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the (late of the entry
of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rochambeau Build-
ing, Washington, D C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
W 1LLL1M E SPENCER
Trial E.canarner
Dated April 25, 1944 '
124 See footnote 121, supra.
2 26 See footnote 121, supra.
628563-45-vol. 60-47