The Ann Arbor Press

National Labor Relations Board - Board Decisions

Jul 8, 1949

85 N.L.R.B. 58 (N.L.R.B. 1949)

In the Matter of ARTHUR J. WILTSE, DOING BUSINESS AS THE ANN
ARBOR PRESS and BINDERY WORKERS UNION LOCAL 20, INTERNA-
TIONAL BROTHERHOOD OF BOOKBINDERS, A. F. L.
Case No. 7-CA-39.-Decided July 8,1949
DECISION
AND
ORDER
On February 4, 1949, Trial Examiner Myers D. Campbell, Jr.,
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that he cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also recommended that the complaint be dismissed insofar as it alleged
that the Respondent had engaged in certain other unfair labor prac-
tices. Thereafter, the Respondent and the General Counsel filed excep-
tions to the Intermediate Report, and the Respondent filed a brief in
support of his exceptions. 0
Pursuant to the provisions of Section 3 (b) of the Act, as amended;
the National Labor Relations Board has delegated its powers in con-
nection with this proceeding to a three-member panel Chairman Her-
zog and Members Houston and Murdock].
The Respondent's request for oral argument is hereby denied, as the
'record, exceptions, and briefs, in our opinion, adequately present the
issues and the positions of the parties.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except insofar as they are inconsistent
with the additions, exceptions, and modifications hereinafter set forth.
1. The Respondent contended, at the hearing and in his brief, that
the complaint herein should be dismissed. on the following grounds :
85 N. L. R. B. No. 12.
58
ANN ARBOR PRESS' 59
(a) The character of Respondent's business is essentially local, and
it would therefore not effectuate the policies of the Act to assert juris-
diction over the Respondent.
(b) The record does not affirmatively indicate the compliance of
the charging Union with Section 9 (f), (g), and (h) of the amended
Act.
(c) Service of the charge did not conform to the requirements of
Section 10 (b) of the amended Act.
We find no merit in any of these contentions, and the motions to
dismiss are hereby denied for the following reasons :
On commerce facts similar to those set out in the Intermediate Re-
port, it was held, in a prior proceeding before the Board, that the
business now operated by the Respondent affected commerce within
the meaning of the original Act.:' No reason appears for altering that
position now. Accordingly, for the reasons stated by the Board and
the court in that case, as well as those stated by the Trial Examiner
herein, we find that the Respondent is engaged in commerce within the
meaning of the amended Act.
With respect to the Respondent's contention based upon Section
9 (f), (g), and (h), we have recently decided that in complaint cases,
as well as in representation cases, compliance with this section is a
matter for administrative determination and is not litigable by the
parties? Inasmuch as we are administratively advised that the Union
has fully complied with the filing requirements, we shall reject this
contention.
With respect to his further ground that service of the charge did not
conform to the requirements of Section 10 (b), Respondent argues
that the charge was not served by the charging party, that service was
not personal, and that service was not made upon him within the
period specified by Section 10 (b); because his son accepted the regis-
tered mail containing the charge and he himself did not learn of the
charge until more than 6 months after the occurrence of the alleged
violations.
However, we have recently held that service of the charge by the
Regional Director, as was the case here, is proper.3 And while it is true
that Section 10 (b) speaks of service upon the person, we do not agree
with the Respondent that the phrase is used in the strict sense or as a
word of art so as to exclude service other than personal. The com-
prehensive usage of this phrase is shown by Section 11 (4), which
1 Matter of Horace G. Prettyman et at., 12 N. L. R. B. 640, rev. on other grounds, 117
F. 2d 786 ( C. A. 6).
2 Matter of Paul's Valley Milling Company , 82 N. L. R. B. 1266.
3 Matter of Erving Paper Mills, 82 N . L. R. B. 434.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
states that service shall be "either personally or by registered mail or
by telegraph or by leaving a copy thereof at the principal office or
place of business of the person required to be served." The respondent
argues that Section 11 (4) does not apply to service of the charge,
because that Section refers to "complaints, orders, and other process
and papers of the Board," and the charge is none of these. We do not
agree with the Respondent that Section 11 (4) does not apply to the
charge. But, even granting that Section 11 (4) is not applicable, con-
sistency requires that, if service upon the person is used in the first
part of Section 10 (b) to mean both personal and substituted service,
the same meaning should attach to the same words in the proviso to the
same section. We therefore find no merit in this contention, and con-
clude that service of the charge by registered mail satisfies the require-
ments of the amended Act.'
Nor do we find that service was not properly made within the statu-
tory period. Well within this period, on February 9, 1948, a copy of
the, charge was sent to the Respondent by registered mail, and accepted
for the Respondent on February 10, 1948, by his son, who was also an
employee. The record indicates that mail was in fact regularly
accepted by persons other than the Respondent, despite Wiltse's denial
that any one was authorized to do so. Moreover, we note that the com-
plaint herein, which the Respondent admits he has received, and as to
the service of which no question is raised, was, similarly to the charge,
served by registered mail and received by one of the Respondent's
employees. We therefore conclude, as apparently did the Trial
Examiner, that the Respondent's son was authorized to act in behalf
of the Respondent, and that the Respondent was served with the charge
well within the statutory period.5
In the light of the foregoing, we conclude that the service require-
ments of Section 10 (b) have been met.
2. The Trial Examiner found, as set forth in the Intermediate
Report, that the Respondent violated Section 8 (a) (1) of the amended
Act. We agree with this conclusion. However, in so finding, we
rely only upon the following conduct of the Respondent: 6 (1) Wiltses
interrogation of employees Heman Miller and Eva Berry' as to their
' Contrary to the Respondent's contention , our Rules and Regulations do not impel a
different conclusion . Section 203 . 14 refers to service upon the person . But reading it,
as we must , with Section 203.84, we find that service by registered mail is expressly
permitted.
6 Matter of Quarles Manufacturing Company, 83 N. L. R. B. 697.
6In this connection , we place no reliance upon N. L. R. B. v. Prettyman, supra, as
establishing an anti -union animus in the Respondent . Nor do we rely upon Wiltse's state-
ments at the hearing herein , cited by the Trial Examiner at footnote 18 of the Intermediate
Report.
' The Respondent contends that testimony relative to wiltse's conversation with Berry
should be stricken , since Berry testified that there was no threat of reprisal or promise of
ANN ARBOR PRESS 61.
union membership; his further interrogation of Miller as to who were
the leaders of the Union; and his threat to Miller to close the bindery
should the organizational campaign succeed; (2) Superintendent
Covert's affirmation to Miller that Wiltse was serious in his threat to
close the bindery if the Union should organize it; (3) Forelady
Schneider's 8 interrogation of Berry as to why she had denied attend-
ing the union meeting; (4) Laverne Rose's 9 interrogation of Donald
Kalmbach.
3. We agree with the Trial Examiner's apparent refusal to find
that the Respondent acted discriminatorily in ordering employees
Reed and Lolmaugh, and the other girls in the bindery, to "go home"
and in telling them that "if he wanted them, he would call them
back." 10 We are, however, unable to agree with his specific finding
that the refusal to reinstate Reed and Lolmaugh upon application on
the following day was likewise not violative of the Act.
Although the Respondent contended that all employees quit on
December 29, 1947, and the General Counsel argued that they had not
quit but were, as the result of the Respondent's orders, discharged, we
are of the opinion, as was the Trial Examiner, that neither position is
tenable. Rather do we find, as the Trial Examiner impliedly did,
that, by leaving their work at the time and in the manner described in
the Intermediate Report, the bindery girls went on strike, and that, as
strikers, they retained their status as employees of the Respondent
for the purposes of the Act, and were protected against the unfair
labor practices prohibited by it 11
As appears from the Intermediate Report, all the bindery girls,
except Reed and Lolmaugh, were offered, on the very day of the
benefit. We do not agree . Interrogation as to union membership is per se violative of the
Act. Matter of Ames Spot Welder Co ., Inc., 75 N. L. R. B. 352. That the employee involved
did not consider the statement coercive or feel intimidated is not relevant . Matter of The
Red Rock Company, 84 N. L. It. B. 521.
1 We find that Schneider is a supervisor within the meaning of the amended Act. It is
clear that she was the employees ' first contact with management in the bindery; and that
the bindery girls considered her a representative of management is shown by their presenting
their wage demand to her on December 29. Under these circumstances , Schneider 's remarks
herein may be attributed to the Respondent . Matter of J. S. Abercrombie Company, 83
N. L. It. B. 524; Matter of Taylor Manufacturing Company, Inc., 83 N. L. It. B. 142.
e The Respondent contends that Rose is not a supervisor within the meaning of the
amended Act . However, we note that Rose had been superintendent of Respondent's plant,
and, although no longer in this position , he still indicated to production employees the
manner in which work was to be done. His status as an employee considered to represent
management is further established by Superintendent Covert's consulting him at the time
of the December 29 wage demand . For these reasons, we find the Respondent chargeable
with Rose ' s statement . See cases cited at footnote 8, supra.
10 The complaint in effect, contained such an allegation . Although the Trial Examiner
did not specifically dismiss that allegation , It is apparent from his other findings, discussed
herein, that he concluded that the General Counsel had failed to sustain that portion of the
complaint.
'I N. L. B. B. v. Mackay Radio cf Telegraph Co., 304 U. S. 333.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stoppage, reinstatement- to their former jobs; and all accepted. Reed
and Lolmaugh, however, were not so favored. And upon their ap-
plication the following day for reinstatement to the jobs which they
had held, they were refused on the asserted ground that they were at
the bottom of the seniority list, and replacements for them had already
been obtained. At the hearing, the Respondent gave as a further
reason for such replacement that the work of Reed and Lolmaugh was
unsatisfactory.
We are, however, unable to accept either reason as the ground for the
refusal to reinstate. Insofar as the quality of their work is concerned,
the record is devoid of any proof that any complaint was ever made
concerning their work, or the performance of their duties. And had
the Respondent truly been motivated by considerations of efficiency,
he would not have included among the three hired as replacements,
two girls who were totally inexperienced in this work. As to their
being replaced on seniority grounds, we note that the Respondent
contends in his brief that he never had a seniority policy in the bindery
and that his criteria were an employee's usefulness and efficiency.
While it is true that, when Reed and Lolmaugh applied for rein-
statement, they had already been replaced, we cannot accept the Re-
spondent's position, in effect, that it was fortuitous that Reed and Lol-
maugh were the only employees who were not reinstated. The prof-
fered explanation for the replacement of only Reed and Lolmaugh is
that, while job applicants were reporting pursuant to Covert's request
to the State Unemployment Bureau, Covert decided that he might
check with the strikers to see whether they would be willing to return
the next day at the prestrike terms of employment; and that he called
all the strikers except Reed and Lolmaugh because, by the time he
reached them, all the other bindery girls had accepted and he had
already engaged three applicants. However, the record clearly shows
that the Respondent, at no time, asked the State Unemployment
Bureau to furnish more than two or three employees; that three em-
ployees did apply pursuant to this request; and that the three were
hired with the admitted intention of retaining two of them 12
There is also uncontroverted testimony that the Respondent be-
lieved that Reed and Lolmaugh were the leaders in the work stop-
page, having been so informed by Covert and Witting, on the day of
' Covert's testimony as to how many girls he asked for was contradictory . At one point
he said that he did not specify any number , at another he said that if he did specify a
number, it was 10 or 12. Our finding herein is based upon the testimony of witting, a
generally credible witness, whose testimony in this matter is supported by the fact that
only 3 girls did in fact appear as applicants for employment.
ANNT ARBOR PRESS 63
the stoppage 13 In these circumstances, the unreliability of the prof-
fered explanation, and the failure of the Respondent's other reasons
for the replacement of Reed and Lolmaugh convince us that the Re-
spondent selected Reed and Lolmaugh for replacement during the
strike in order to bar their reinstatement upon termination of the
strike and thus to rid himself of the two employees who were regarded
as the leaders of the stoppage. That the belief as to the leadership
of Reed and Lolmaugh in the stoppage strongly motivated the Re-
spondent is strikingly demonstrated by the Respondent's actions
about 5 weeks later. Then, as appears herein, the Respondent sum-
marily discharged employees Maluske and Kalmbach in violation of
the Act, because of their presumed leadership in the Union which
was formed in the interim.
While an employer has the right to replace economic strikers in
order to carry on his business, that right is not unlimited, and an em-
ployer may not use the device of replacement to rid himself of em-
ployees objectionable because of union or concerted activity 14 When
Reed and Lolmaugh applied for reinstatement, their applications were
refused on the ground that they had been replaced during the strike.
As found above, their selection for replacement was discriminatory
in nature, and but for such discrimination, Reed mid Lohnaugh's
jobs would not have been filled during the short period of the strike,
and Reed and Lolmaugh would have been reinstated together with
the other strikers.
Accordingly, since Reed and Lolmaugh were acting in concert with
the other bindery employees for their mutual aid and protection with
respect to the matter of wages, the Respondent's discrimination against
Reed and Lolmaugh for their activity with the group and for their
presumed leadership thereof, discouraged membership therein in
violation of Section 8 (a) (3) of the Act. Furthermore, as the work
stoppage and the presentation of the demand for a wage increase were
concerted activities for the purpose of mutual aid or protection, the
Respondent, by discriminating against Reed and Lolmaugh, inter-
fered with, restrained, and coerced his employees in the exercise of
their rights under Section 7 of the Act, thereby violating Section 8
(a) (1) of the Act.
'$ Because they were not in fact the leaders , the Trial Examiner concluded that the
Respondent 's belief was immaterial . This was clearly erroneous . If such belief was the
motive for replacement , it is of so consequence that it was not founded in fact or may
have amounted to no more than a suspicion . Matter of Boreva Sportswear, Inc., 73
N. L. It. B. 1048.
14 N. L. R. B. V. Mackay Radio 4 Telegraph Co., supra.; cf. Matter of Republic Steen
Corporation ( 98" Strip Mill ), 62 N. L. R. B. 1008. -
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find further that, whether the discharges be regarded as a viola-
tion of Section 8 (a) (1) or of Section 8 (a) (3), it is necessary to
order reinstatement and back pay in order to effectuate the policies
of the Act 15
4. We find, as did the Trial Examiner, that the discharges of Donald
R. Kalmbach, Harry G. Maluske, Eva Berry, and Robert Hanselmann,
on February 4, 1948, were violative of the Act.
We reject, as did the Trial Examiner, the Respondent's contentions
that he did not know of the union membership of these bindery em-
ployees, and that the discharges were due to a retrenchment policy
dictated by economic necessity.
The record conclusively establishes that the Respondent considered
Kalmbach and Maluske to be union members and leaders, in advance
of their discharge; that he sought to ascertain Berry's activity in the
Union shortly before her discharge, and that Hanselmann was a union
member who was discharged at the same time. Under these circum-
stances, and on the entire record, we find that the Respondent had
'knowledge of the union membership and activities of these four dis-
tchargees..
With respect to the Respondent's contention that the discharges
were made because of retrenchment, the record fails to establish that
the Respondent found it necessary to discharge any employees for this
reason after February 4, and, contrary to Respondent's argument, it
appears that the number of bindery employees has remained substan-
tially unchanged between December 31, 1947, and September 29, 1948,
the date of the hearing herein.
We therefore find, for the above reasons as well as those stated by the
Trial Examiner, that these four discharges were discriminatory."'
ORDER
. Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
16 In accordance with our practice the period from the date of the Intermediate Report
to the date of the Order herein will be excluded in computing the amounts of back pay to
which Mary A. Reed and Marjorie A. Lolmaugh are entitled, since the Trial Examiner did
not recommend their reinstatement or an award of back pay to them. Matter of Quarles
Manufacturing Company, 83 N. L. R. B. 697.
'Bin affirming the findings as to Hanselmann and Berry , we do not rely upon Hofmann's
questioning of Hanselmann as to whether the latter , was bringing the Union into the shop,
or upon Witting ' s statement that he thought Berry's discharge was because of the Union.
The Respondent contends that Berry was discharged for the reason, among others, that
she asserted an intention to engage in another work stoppage like the one on December 29.
we, like the Trial Examiner, find that no such remark was ever made by Berry. However,
assuming the remark was made, it is clear that a discharge for so speaking is violative of
the Act because it is directed at precluding employees from engaging in concerted activity
in support of wages, hours , and other conditions of employment.
ANN ARBOR PRESS 65
Relations Board hereby orders that the Respondent, Arthur J. Wiltse,
doing business as The Ann Arbor Press, Ann Arbor, Michigan, his
agents, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Bindery Workers Union Local
20, International Brotherhood of Bookbinders, AFL, or any other
labor organization of his employees, by discharging, refusing to rein-
state or in any manner discriminating in regard to their hire and tenure
of employment or any term or condition of employment;
(b) Interrogating employees in any manner as to their union activi-
ties, views, sympathies, or membership;
(c) Threatening closing of his plant in the event his employees
form or join a union ;
(d) In any other manner interfering with, restraining, or coercing
his employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Bindery Workers Union
Local 20, International Brotherhood of Bookbinders, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or pro-
tection, and to refrain from any and all of such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employement as
authorized in-Section 8 (a) (3) of the Act.
. 2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Mary A. Reed, Marjorie A. Lolmaugh, Eva Berry,
Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights
and privileges ;
. (b) Make whole Mary A. Reed, Marjorie A. Lolmaugh, Eva Berry,
Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Mal-
uske for any loss of pay each may have suffered by reason of the
discrimination against him or her by payment to him or her of a sum
of money equal to the amount each would normally have earned as
wages from the date of the discrimination against him or her to the
date of the Respondent's offer of reinstatement to a former or sub-
stantially equivalent position, less his or her net nearnings during
such period; 17
17 As noted above , the period from the date of the Intermediate Report to the date of this
order will be excluded in computing the amounts of back pay to which Mary A. Reed and
Marjorie A. Lolmaugh are entitled , since the Trial Examiner did not recommend their
reinstatement or an award or back pay to them.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its plant in Ann Arbor, Michigan, copies of the notice
attached hereto, marked "Appendix A." 18 Copies of said notice, to
be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the Respondent or his representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material ;
(d) Notify the Regional Director for the Seventh Region (Detroit,
Michigan) in writing within ten (10) days from the date of this
order what steps Respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent discriminatorily laid off all the bindery girls on
December 29, 1947, be, and it hereby is, dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 discharge or refuse to reinstate any employee be-
cause of his membership in or activity on behalf of BINDERY
WORKERS UNION LOCAL 20, INTERNATIONAL BROTHERHOOD OF
BOOKBINDERS, A. F. L., or any other labor organization.
WE WILL NOT interrogate our employees in any manner as to
their union activities, views, sympathies, or membership.
WE WILL NOT threaten to close our plant if our employees join
or form a labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist the above-
named union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purposes of collective bargain-
as In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words: "A DECISION AND ORDER" the words: "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
ANN ARBOR PRESS 67
ing or other mutual aid or protection, or to refrain from any and-
all of such activities except to the extent that such right may be-
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
AVE WILL oFFER to Mary A. Reed, Marjorie A. Lolmaugh, Eva
Berry, Donald R. Kalmbach, Robert W. Hanselmann, and Harry
G. Maluske immediate and full reinstatement to their former or-
substantially equivalent positions without prejudice to any sen-
iority or other rights and privileges previously enjoyed, and make-
them whole for any loss of pay suffered as a result of the dis-
crimination against them.
All our employees are free to become or remain members of the.
above-named union or any other labor organization. We will not,
discriminate in regard to the hire or tenure of employment or any term.
or condition of employment against any employee because of mem-
bership in or activity on behalf of BINDERY WORKERS UNION LOCAL 20,.
INTERNATIONAL BROTHERHOOD OF BOOKBINDERS , A. F. L., or any other-
labor organization.
ARTHUR J. WILTSE, DOING BUSINESS AS
THE ANN ARBOR PRESS,
Employer.
By ----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date-
hereof , and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Cecil Pearl, Esq., of Detroit , Mich., for the General Counsel.
George Meader, Esq ., and John S . Dobson, Esq., of Ann Arbor , Mich., for the-
Respondent.
Mrs. Jane Dailey Seving , of Dearborn , Mich., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by Bindery Workers Union Local 20, International
Brotherhood of Bookbinders , A. F. L., herein called the Union, the General CounseL
of the National Labor Relations Board, herein respectively called the General
Counsel and the Board, by the Regional Director of the Seventh Region (Detroit,
Michigan ), issued a complaint against Arthur J. Wiltse, doing business as The Ann
857823-50-vol. 85-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arbor Press, herein called the Respondent. The complaint alleged that the Re-
spondent had engaged in, and is engaging in, unfair labor practices affecting com-
merce, within the meaning of Section 8 (a), subsections (1) and (3), and Section
2, subsections (6) and (7) of the National Labor Relations Act, as amended, 61
Stat. 136, 29 U. S. C. Supp. I, Secs. 141, et seq., herein called the Act. Copies of the
charges; the complaint, and notice of hearing thereon were duly served upon the
Respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance :
(1) that the Respondent has engaged in and is now engaging in certain unfair
labor practices affecting commerce as set forth and defined in the Act; (2) that,
on or about December 29, 1947, the Respondent discharged and thereafter refused
to reinstate Mary A. Reed and Marjorie A. Lolmaugh for the reason that said
employees had engaged in concerted activities for the purpose of collective bar-
gaining and other mutual aid and protection; (3) that, on or about February 4,
1948, the Respondent discharged and thereafter refused to reinstate Eva Berry,
Donald R. Kalmbach, Robert W. Hanselmann, and Harry G. Maluske for the
reason that each of them had joined and assisted the Union and had engaged in
concerted activities for the purposes of collective bargaining and other mutual aid
and protection ; (4) that, by such acts and conduct, the Respondent discriminated
against the named employees and discouraged them from acting in concert for
the purpose of collective bargaining and discouraged membership of his employees
in a labor organization, in the exercise of the rights guaranteed in Section 7 of the
Act and violated Section 8 (a) (1) and (3) of the Act; and (5) that, such acts
and conduct of the Respondent constituted unfair labor practices affecting com-
merce within the meaning of Section 8, subsections (a) (1) and (3) and Section
2, subsections (6) and (7) of the Act.
The Respondent's answer dated September 21, 1948, denied the jurisdiction of
the Board and in the answer moved to dismiss the complaint because of want of
jurisdiction ; denied generally that he committed the unfair labor practices alleged
in the complaint ; made certain affirmative allegations concerning the discharges ;
and denied knowledge of any attempt to organize his bindery employees, and of
any union representation.
Pursuant to notice, a hearing was held in Ann Arbor, Michigan, on September
28, 29, and 30, and October 1, 5, and 6, 1948, before the undersigned Trial Exami-
ner, duly designated by the Chief Trial Examiner. The General Counsel, the
Respondent, and the 'Union participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues. The Respondent was permitted to express
his personal views on some of the issues.
At the close of the General Counsel's case the undersigned sustained a motion
to conform the pleadings to the proof with respect to immaterial variances. The
undersigned denied Respondent's motion to dismiss the complaint in whole and
1 There was no dispute that the Respondent was served with a copy of the charge and the
complaint on September 14, 1948. Although Respondent in his testimony at the hearing
denied that he had been previously served with the charge , he failed to raise the point in
his answer and, according to an affidavit admitted as an exhibit , the original charge was
served by the mailing of a copy thereof, by registered mail to the Respondent on February
9, 1948. Furthermore, a return receipt of the post office was signed by John W. Wiltse on
behalf of the Respondent on February 10, 1948, showing receipt of the charge at Respondent's
address on that date . The undersigned therefor finds that the charge was duly served upon
the Respondent on February 10, 1948, in accordance with the terms of the Act.
ANN ARBOR PRESS 69
in part on specific grounds numbered 3 2 and 4, and reserved ruling on the 1st,
2nd, and 5th, grounds,' to wit :
1st, that the evidence failed to'sustain the charge of unfair labor practices,
2nd, that the evidence failed to sustain the jurisdiction of the Board,
3rd, that there was no evidence of compliance (by the Union) with section
9 (f), (g), and (h) of the Act,
4th, that there was no admissable evidence of service of a copy of the charge
upon respondent, and
5th, that there was no evidence to establish the Union as a labor organiza-
tion within the meaning of the Act, Section 2 (5) and admitting to member-
ship employees of Respondent.
The undersigned reserved rulings on Respondent's motion to dismiss para-
graph 6 of the complaint and that part of paragraph 7 of the complaint relating
to Robert W. Hanselmann and denied Respondent's motion to strike that portion
of the testimony of Eva Berry relating to the conversation with the Respondent
.,on February 4, 1948. The undersigned reserved ruling on Respondent's motion
to strike all testimony of witnesses for General Counsel as to the seniority
policy of the management of the Respondent. The same rulings were made on
Respondent's motions when renewed at the close of all of the evidence,* and the
undersigned reserved ruling on Respondent's motion to strike all of the evidence
in the record purporting to consist of statements by the Respondent, his agents,
and supervisory employees, which contain no threat of reprisal or force or promise
of benefit. The motions on which ruling was reserved are now disposed of in ac-
cordance with the considerations, findings, and conclusions, herein.
The parties presented oral argument at the close of the hearing. All parties
were granted time for filing briefs and proposed findings and conclusions. A
brief was filed by the General Counsel and a brief and proposed findings and
.conclusions have been filed by Respondent.' The briefs and proposals have been
carefully considered.
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
Prior to March 1945, the Respondent, Arthur J. Wiltse and Horace G. Pretty-
man as co-partners d/b/a The Ann Arbor Press, were engaged in the commercial
letterpress printing business in Ann Arbor, Michigan.' Since the dissolution of
the partnership in March 1945, the Respondent, Arthur J. Wiltse d/b/a The Ann
Arbor Press, has continued the business of the partnership under the same
name, with his plant and offices in Ann Arbor, Michigan, engaging in letterpress
7 The contention of Respondent involving the question of the Union 's compliance with
Section 9 (f), (g), and ( h) of the Act are foreclosed by such Board decisions as Baldwin
Locomotive Works, 7.6 N. L. R. B. 922, and Lion Oil Company, 76 N. L. R. B. 565, to the effect
that compliance is an administrative , and not a litigable, issue.
' The other contentions are disposed of herein.
' Respondent 's proposed findings and conclusions are ruled upon as follows, to wit :
Proposed Findings C and D are granted; and A, B, E, F, G, & H are denied in the
form stated.
Proposed conclusions A, B, and C , are denied.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.priting, typesetting, presswork, binding, and shipping of printed material, in-
cluding periodicals, school annuals, trade magazines, and journals.'
During the calendar year of 1947, the Ann Arbor Press, purchased raw
materials, consisting principally of paper, ink, and metal ; amounting to approxi-
mately $20,000 worth was shipped from points outside of the State of Michigan
to Ann Arbor. During the same period, Respondent purchased $2,000 worth of
repair parts from outside the State of Michigan. In addition, the Respondent
had a substantial amount of his printed material bound by the firm of Brock
and Rankin, in Chicago, Illinois, at a cost of $15,000, and for that purpose, first
shipped the printed material to Chicago, and then had the bound product re-
shipped to Ann Arbor, Michigan.
During the same year, the Respondent's sales of printed material amounted
to $850,000. Of this amount, $190,000 by value consisted of periodicals printed
by the Respondent and mailed by him to numerous points outside, as well as
within, the State of Michigan ; $6,000 by value consisted of printed material
shipped by rail to the Government Printing Office in Washington, D^. C.; and
$59,000, by value consisted of advertising material such as folders, catalogues,
broadsides, and parts books, which were printed for and shipped to various
automobile and other industrial companies whose sales are Nation-wide but
whose plants are within the State of Michigan.'
Upon the foregoing facts, contrary to the contention of the Respondent, the
undersigned finds that the Respondent is and was engaged in commerce within
the meaning of the Act, Section 2, subsections (6) and (7).7
The undersigned reserved ruling on motion of the General Counsel to take
judicial notice of a Federal Court decision involving this Respondent and the
Board. The motion is sustained and the undersigned has reviewed the opinion
in the case of N. L. R. B. v. The Ann Arbor Press, 117 F. 2d 786, and finds that
the Circuit Court of Appeals of the Sixth Circuit on February 13, 1941, found
that the Board had jurisdiction over the Respondent. That settled the question,
and the undersigned finds there has been no material change in character of Re-
spondent's business to the time of this hearing."
11. THE ORGANIZATION INVOLVED
Bindery Workers Union Local 20, International Brotherhood of Bookbinders,
A. F. L., is a labor organization admitting to membership employees of Respondent.
5 Among the publications printed by the Respondent are : The American Foundryman, a
monthly with a circulation of 11,000; Michigan Law Review, published 9 times a year,
with a circulation of 3,500; American Journal of Pathology, a monthly with a circulation
of 3,300; Cancer Research, a monthly with a circulation of 1,200; and the National Dixis
Distributor , a monthly with a circulation of 1,200, for oil stations.
'General Motors Truck , Kaiser-Frazier Corporation, Ford Motor Company, Buick Motor
Car Division , Bulldog Electric Company, and Argus, Inc.
T In the Matter '. f Phoenix Mutual Life Insurance Company, 73 N. L. R. B. 1463; Clover
Fork Coal Comj'Y y v. N. L. R. B., 97 F. 2d 331.
8 Upon similar evidence as to the interstate character of the business of the preceding
partnership of which the Respondent Wiltse was a member, the Court of Appeals,
Sixth Circuit , found that the Act applied to the conduct of the partnership business and
sustained the Board's jurisdiction. N. L. R. B. v. The Ann Arbor Press, 117 F. 2d 78G_
See also N . L. R. B. v. Fainblatt, 306 U. S. 601.
ANN ARBOR PRESS
III. THE UNFAIR LABOR PRACTICES
A. Introduction
71
Arthur J. Wiltse d/b/a The Ann Arbor Press is engaged in letterpress printing,
including setting type, presswork, and bindery work. He had departments for
the various functions of the business, consisting of an office, a composing room,
a pressroom, a bindery, and a shipping department. Mr. Arthur J. Wiltse has
been sole owner and sole manager since March of 1945, and had practically the
entire management thereof for the 18 years he had been connected with The
Ann Arbor Press. The composing and pressroom employees have been union
members and have operated under union contracts at various periods for
several years.9
The supervisory staff under Mr. Wiltse, the owner and manager, consisted of
'William Covert, superintendent of the plant, Clair Witting, working foreman of
the bindery and in charge of shipping department, and Rose Schneider, working
forelady in charge of the bindery girls.
On December 29, 1947, there were fifteen (15) female employees, including
Rose Schneider, in the bindery, and on December 31, 1947 (2 days later) there
were sixteen (16) females, including Rose Schneider, and seven (7) male em-
ployees, including Clair Witting. On September 29, 1948 (during the hearing)
there were fourteen (14) female and eight (8) male employees in the bindery
including the 2 supervisors.
On December 29, 1947, all of the girls working in the bindery department
engaged in a concerted work stoppage. There is no evidence that any union
or union activity had any connection therewith.
The first evidence of any union activity in the bindery department is that of
the organizational meeting on January 31, 1948, as set forth later.
On February 4, 1948, four of the bindery and shipping department employees
were discharged. They had joined the Union, but there was no contract between
the Union and the Respondent, and there had been no attempt at recognition
.and no attempt to enter negotiations for collective bargaining.
B. The work stoppage on December 29, 1917
As stated above there is no evidence that any union activity had any connection
-with the work stoppage on December 29, 1947. During the morning of that
-day several of the 15 girls in Respondent's bindery began a discussion about a
raise in wages and it continued until all of them reached an agreement among
themselves that they would all ask for the raise at the same time. Then, all
.at one time, they stopped their machines, or quit the work they were doing, and
gathered around the forelady, Rose Schneider's machine, and asked her to request
the Respondent to give them all a 10-cent an hour wage increase. Schneider
told them she would have to call the foreman, Clair Witting. Foreman Witting
was in the bindery at the time and came over to the group of girls. Several of
them in unison told him they would have to have a 10-cent an hour raise in pay
or they would not work. The foreman said he would see what he could do and left
9 The unionization of the composing and pressroom employees is shown by the undis-
puted testimony of William Kitchen, foreman of the composing room, and of Wilfred Hanson,
foreman of the pressroom . It is also shown in case of Horace 0. Prettyman at al., 12
N. L. R. B. 640.
0
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the bindery room and went to the office of Superintendent Covert. Covert asked
him if he was sure they would not work unless they got more money , and sent
him back to the group of girls to find out, also , to get them to write their names
and hourly wage rates on a piece of paper . On securing the paper , on which each
one wrote her name and rate, the foreman again went to the superintendent's
office. The girls waited a while and discussed whether to continue to wait there
or go out to lunch and return atfer the lunch period for the answer . Just at
the lunch period time 11: 45 a. in. and as the girls were preparing to leave the-
bindery, the foreman and superintendent came out of the office and the foreman
said to them that they could go home and if he wanted them he would call them,
back . The girls then left the plant.
The superintendent then called the State unemployment bureau for replace-
ments, and then decided to try to persuade the girls to return to work. He
telephoned and asked each one if she would reconsider and return to work
the next day at the same rate of pay . Each one called said she would if the
rest of the girls agreed . The last two on the seniority list, Mary A. Reed and
Marjorie A. Lolmaugh , were not called because three girls from the unemploy-
ment bureau had been engaged during the afternoon to report for work the next
morning.
The next day , December 30, 1947 , Mary A. Reed and Marjorie A. Lolmaugh,
called at the office of the superintendent , and in answer to their inquiry as to why
they had not been called, were told that they had lost their seniority when they
went out ; that their positions had been filled ; that he did not need them at that
time, but would call them if he needed them.
1. The alleged discriminatory discharges
The General Counsel contended that Reed and Lolmaugh were discharged,.
for engaging in concerted action for the purposes of mutual aid or pro-
tection. The Respondent contended that they had voluntarily terminated their-
employment and he was under no obligation to reinstate them, as replace-
ments had been employed before they applied for reinstatement. Reed and Lol-
maugh and two others of the bindery girls testified at the hearing and recited,.
what impressed the undersigned as, a well rehearsed account of the events of
the morning of December 29, 1947.
It was not disputed that it was customary for the bindery workers to shut
down the machines a few minutes early to prepare for the lunch period which.
began at 11: 45 a. in.
The foreman, Clair Witting, testified as to the events ; his being called over
to the group of girls about 11: 30 a. in.; 10 upon being advised that they demanded
a 10 cent an hour raise or would not work he said he would see what he could
do about it ; his going from the bindery room to the office of the plant superin-
tendent and relaying the demand ; his being sent back to the bindery to be sure
if the girls had said they would not work unless they got the raise, and obtaining
the paper on which he had had each one of the 15 girls write her name and rate of
pay; his return to the superintendent's office and the discussion of the demand
10 The undersigned accepts Foreman Witting's version as substantially reflecting the
events, the time consumed. and the demand. His version is strengthened by the testimony
of the girls themselves as well as the male bindery workers, Kalmbach and Maluske. It
was not disputed that the girls were told to go home and they would be called if wanted.
ANN ARBOR PRESS 73
with the superintendent ; and then he and the superintendent coming out of the
office and telling the girls to go home just at 11: 45 a. in. as the male bindery
workers were leaving the bindery for the lunch period.
Marjorie A. Lolmaugh testified that after Witting obtained the paper, with
the names and rates of pay, it was "around ten minutes or fifteen minutes" before
he came out and told the girls to go home. It was undisputed that some of the
group "punched out," after leaving the bindery-going to the rest room for wash-
ing up and for wraps-going down the stairs to the time clock, at 11: 51 a. in.
Harry G. Maluske, a male bindery worker, testified that he continued working
after the girls had congregated around Rose Schneider and said very positively
at was 11: 42 a. in., as he was going to the washroom to prepare for lunch period,
when he heard Witting tell the girls to go home. This was after the girls shut
down their machines ;-called Witting over to the group ; the two conversations
with him ;-his two trips to the superintendent's office ; the writing of the 15
names and rates ; the undisputed wait, by the girls, for an answer ; and the
instructions to the girls to go home.
Donald R. Kalmbach, another male bindery worker, testified that he was still
working after he noticed that the girls were congregated around Rose Schneider
and they were still talking when he left to go to lunch at approximately 11: 45
a. in. He also said the occurrence was near lunch time, within a three-quarter
of an hour period.11
The bindery girls testified they did not say that they would not work if they
did not get the 10-cent raise. However, Foreman Witting testified they told
him, in unison, on each of the two discussions he had with them, that they would
not work. Mary A. Reed testified she "didn't hear" anyone say that they would
not work. (Emphasis supplied.) In considering this dispute of facts, together
with the undisputed testimony as to the question and answer, when the superin-
tendent 12 telephoned some of the bindery girls during the afternoon of December
29, 1947, and asked each one if she would return to work at the same rate of pay
and was advised that she would do what the rest of the girls did,1° the under-
signed finds these issues in favor of the Respondent and against the
complainants."
2. Conclusions
The undersigned finds that all of the bindery girls had concertedly shut down
their machines and stopped work approximately 15 minutes before the authorized
lunch period of 11: 45 a. in. and had jointly communicated their demand for a
11It appears from the consideration of the admitted events, that the only reasonable
inference that can be drawn therefrom is, that the time consumed was considerably more
than just a few minutes . The undersigned finds that the work stoppage occurred at or
just before 11 : 30 a. in.
12 Covert , the superintendent , testified on cross-examination that he considered the girls
discharged . On redirect he explained his meaning , which the undersigned accepts ; that
all of the girls quit on that day and he did not discharge them, as he told them he would
call them back if he wanted them back.
1s Violet Bachman, one of these employees, testified, "He [Covert] asked me if I wanted
to return to work and I told him I would do what the rest of the girls did. He said , so far,
the ones he had called was going to return."
14 This finding , upon the contested issue of refusal to work unless the raise was granted,
is based upon the credited testimony of Foreman Witting, together with the reasonable
inference drawn from all the evidence as to the conduct and attitude of the girls when they
quit their work and demanded the raise , and from their statements on being called to
reconsider.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increase to Foreman Witting. Thereafter, they concertedly refused to
perform any further work, did not work, and awaited an answer to their demand.
The foreman answered by sending them home and saying he would call them if
he needed them. By their concerted refusal to work on Respondent's time, and
their leaving the plant together, they manifested an intent to continue with their
-concerted demand.
The Respondent's superintendent engaged three new employees as. replacements
and asked each of the bindery girls, except Mary A. Reed and Marjorie A.
Lolmaugh, if they would reconsider and return to work at the same rate of pay.
The calls were made in order of seniority and the replacements had been effected
before the two named had been reached, as they were the last two on the seniority
list. The Respondent was not required to call them and the undersigned finds
that they would not have been called in any event for the above reasons. The
undersigned attaches no importance to the Respondent's statement that the two
girls may have been ringleaders in the work stoppage, for it clearly appears from
all of the evidence, that the ringleaders were, in fact, other and different persons.
Therefore, it is found that there was no discrimination in regard to the hire
and tenure of employment of Mary A. Reed and Marjorie A. Lolmaugh. It will
accordingly recommend that so much of the complaint as alleges that Mary A.
.Reed and Marjorie A. Lolmaugh were discriminatorily discharged, be dismissed.16
C. The discriminators/ discharges on February 4, 1918
1. Background and organizational activities
As stated before, Arthur J. Wiltse had practically the entire management of
The Ann Arbor Press for about 18 years. His experience with unions and organi-
:zational activities appears to have begun about 1932 and the activities in 1937
and early part of 1938 among his composing room employees led to charges of
unfair labor practices 19
The record does not disclose the time or circumstances of other activities, but
is clear that both the composing room and pressroom were organized and operating
under union contracts or under negotiations for renewal thereof, at the time of
this hearing.
At the time in issue there were about 21 rank and file employees in the bindery
-and about 4 in the shipping department. All were under the supervision of
Foreman Witting.
Janudry 31, 1948, was the date of the first union organizational meeting of
Respondent's bindery department employees. The Union held the meeting at the
Allenel Hotel in Ann Arbor, Michigan, and it lasted about 2 hours. There is no
evidence of any prior union activities in the bindery. That meeting was attended
by several of the bindery employees including the four employees that were
discharged on February 4, 1948.17
2. Interference, restraint, and coercion
The Respondent Arthur J. Wiltse had previously demonstrated his antipathy
toward unions and union activity. The pattern of his aversion began, as
11 N. L. R. B. v. Mackay Radio & Tel . Co., 304 U. S. 333.
16 Horace G . Prettyman et al ., supra.
17 The organizational meeting was conducted on behalf of the Union by Jane Dailey
Seving, business representative, secretary and bookkeeper of Bookbinders Local 20. The
Union's recognition of Respondent 's bindery has been withheld pending this proceeding.
ANN ARBOR PRESS 75
recited in the Prettyman et al., case, cited above, wherein his statements, con-
duct, and publications clearly show such views, and continues through his own
testimony, statements, and attitude in the instant case."
There is no direct evidence that the organizational activities of January 31,
1948, came to the attention of the Respondent before February 4, 1948, the day
on which he made inquiries of bindery employees about the Union and about
organizing the bindery. The bindery room area was small. It is reasonable to
infer from all the evidence that information as to union activity would, and, the
undersigned finds, did, come to the attention of the Respondent within the time
elapsed after the organizational meeting and before the discharge of some of the
employees involved in the union activity on February 4, 194819 This finding is
based upon the admitted investigation of union activity by Respondent A. J.
Wiltse, his supervisors, and officials. He testified that on February 4, 1948, he
"might" have discussed with Miller some of the problems of running the bindery
economically if it was organized, and pointed out to him [Miller] many difficulties
of operating The Ann Arbor Press economically at the present time and dis-
cussed the possibility of its being even more difficult if it was organized. In reply
to questions concerning any specific conversations with other bindery employees,
Mr. Wiltse testified "And if I did have any conversation with them about whether
there was going to be a union or not, I had a right to, I don't know how they
would ever get a collective bargaining agreement if they wanted to be represented
by a union without my knowing it sometime." 20
Generally denying the commission of unfair labor practices, the Respondent
asserted that after the work stoppage on December 29, 1947, and for some time
before, he "had been concerned with the production of The Ann Arbor Press
generally throughout the plant and was watching the operation of the business.
to see what was causing trouble and disturbance, what the slow-downs were for,
and this insurrection that occurred on the 29th of December aroused me [Wiltse]
to believe that the plant wasn't operating well." And "determined that I was
going to thin out the bindery somewhat because of the pay roll and the excessive
number of people working there. .. ." He did not advise his superintendent
or the bindery foreman of his plan "to thin out the bindery somewhat." n The
additional reasons alleged for the discharge of the four named above, will be
discussed later.
February 4, 1948, was indeed a day of action on the part of Mr. Wiltse, the
Respondent. He telephoned from his home before working hours and ordered his
19 This finding is based upon a careful consideration of the case cited , and of the evidence,
in the light of Mr. Wiltse's entire course of conduct, his voluntary statements during the
hearing, and the record herein, as a whole. He said "The labor policies of The Ann Arbor
Press are entirely within me." In reply to a question about one of the dischargees, "That
is right. I had a complete right to, my business, I don't have to employ anybody if I don't
want to."
19 Brenner Tanning Company, Inc., 50 N. L. It. B. 894; Matter of Firestone Tire of Rubber
Company, 62 N. L. R. B. 1325.
20 Heman "Bus " Miller was a production employee . His testimony and that of other
witnesses, as to the pertinent conversations and inquiries, are discussed later.
21 There was no supporting evidence or clarification of the alleged trouble and disturbance,
and slow-downs, or of the belief that the plant was not operating well The thinning out
of the bindery because of the pay roll and the excessive number of people is refuted by
undisputed evidence and by exhibits of record. It is clear that 3 new bindery girls were
engaged for trial on December 30, 1947, with the intention of retaining 2 of them as perma-
nent employees. The exhibits show 23 bindery employees on December 31, 1947, and 22
on September 29, 1948. ( Time of hearing.)
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
superintendent, Covert, to discharge Harry G. Maluske, saying "get that man
out of here before I come in." The superintendent carried out the order and ef-
fected the discharge of Maluske about 8: 30 a. m. Mr. Wiltse came into the
plant and personally discharged Hanselmann about 8: 45 a. in. Then in the after-
noon he personally discharged Kalmbach and ordered Eva Berry discharged at
.about 3: 30 p. in.
The summary and precipitate manner in which the discharge of the three
-bindery employees and the one truck driver 2 was effected during the day, which
was contrary to Respondent's policy and normal procedure, is significant in con-
sidering motivation of the Respondent therefor 2
Clair Witting, the working foreman of the bindery, testified there had never
been a time during his 5 years at Respondent's plant, that four employees were
discharged in 1 day. He further testified that on the morning of the day of the
four discharges, he talked to Mr. Wiltse, the Respondent, and that Mr. Wiltse
"`wanted to know if I thought `Buz' 24 [Miller] had anything to do with the
union," and "I said I didn't know." "He asked me if I would find out." Witting
then went over and told "Buz" Miller that Mr. Wiltse wanted to see him about
the Union, to go to the office and talk with him.
Heman Miller, a production employee, had worked in the Respondent's bindery
for about 5 years. He testified that shortly after 9 a. in. on the day involved,
?Foreman Witting asked him what he knew of any union activities around the
bindery, that Mr. Wiltse had asked him to find that out. Miller then went in the