The Miller Press

National Labor Relations Board - Board Decisions

Jun 15, 1972

197 N.L.R.B. 574 (N.L.R.B. 1972)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Miller Press and Jacksonville Printing Pressmen
& Assistants' Union, Local 97, subordinated to
International Printing Pressmen & Assistants'
Union of North America , AFL-CIO. Case
12-CA-4960
reasons has not been established by a fair preponder-
ance of the evidence. Accordingly, we shall dismiss
the alleged 8(a)(3) portions of the complaint.
AMENDED CONCLUSIONS OF LAW
June 15, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On November 19, 1971, Trial Examiner Harold X.
Summers issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions to the extent
consistent herewith.'
We agree with the Trial Examiner that by engaging
an industrial psychologist to interview employees
concerning their opinions of working conditions,
together with surrounding circumstances implying a
promise of benefit, Respondent violated Section
8(a)(1). However, we do not agree with the Trial
Examiner that the refusal to recall employee Carter
in December 1970 violated Section 8(a)(3).
When Carter was originally hired, he advised
Respondent that he did have a criminal record.
However, the full extent of Carter's criminal record
was not known at that time. Carter thereafter worked
for Respondent about 7 months until Respondent
discharged him in September 1970 in order to rehire
a more senior employee. Subsequent to Carter's
discharge, the full and complete extent of Carter's
criminal record came to Respondent's attention, and
when a job became available in December 1970,
Respondent failed to recall him.
The Trial Examiner concluded that Carter was not
recalled in December because of his prior union
sympathies and activities in violation of Section
8(a)(3). We do not agree. In view of Carter's
extensive criminal record which became known to
Respondent only subsequent to Carter's discharge,
we find that the failure to recall for discriminatory
I The Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and positions of the parties
Respondent also filed a Motion to Reopen the Record and a Supplement
Motion to Reopen the Record As our Decision dismisses the allegations to
which those motions are directed, we hereby deny those motions
We adopt the Trial Examiner's Conclusions of Law
in the following manner:
Strike the present Conclusion of Law 3, renumber
the subsequent Conclusions of Law accordingly, and
amend the new Conclusion of Law 3 to read:
3. By causing employees to be interrogated as to
the sources of dissatisfaction which may have
motivated them to seek representation by a labor
organization, in a manner and under circumstances
tending to assure them of amelioration without such
representation, Respondent interfered with, re-
strained, and coerced employees in the exercise of
rights guaranteed them in Section 7 of the Act, in
violation of Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Miller Press, Jacksonville, Florida, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Causing any employee to be interrogated as to
the sources of dissatisfaction which may have
motivated him to seek representation by a labor
organization in a manner and under circumstances
tending to assure him of amelioration without such
representation.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form labor organiza-
tions, to join or assist any labor organization, to
bargain collectively through representatives of their
own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any and all
such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business at Jacksonville,
Florida, copies of the attached notice marked
"Appendix."2 Copies of said notice, on forms
provided by the Regional Director for Region 12,
after being duly signed by Respondent's authorized
representative, shall be posted by it immediately
2 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted pursuant
to a Judgment of the United States Court of Appeals enforcing an Order of
the National Labor Relations Board "
197 NLRB No. 85
THE MILLER PRESS 575
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of the receipt of
this Order, what steps the Respondent has taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it
alleges that Respondent violated Section 8(a)(3) and
(1) in the failure and refusal to recall Jarrell Lee
Carter, Sr.
CHAIRMAN MILLER, concurring:
While I agree with my colleagues that Respondent
violated Section 8(a)(1) and did not violate the Act in
the refusal to recall Carter on December 13, 1970, I
would also dismiss the 8(a)(3) allegations for the
following reasons:
The Trial Examiner concluded that Carter was not
recalled on December 13, 1970, because of his union
sympathies and, as a remedy, recommended that
Respondent be ordered to "reinstate" Carter to his
former job. However, the General Counsel had
alleged that Carter was discriminatorily discharged
on September 11, 1970, and was thereafter discrimi-
natorily denied reinstatement, the theory of his case
being based on the original alleged unlawful dis-
charge. But the Trial Examiner found, and we have
adopted that finding, that the discharge was not
unlawful and there is, therefore, no statutory obliga-
tion to reinstate. To find a violation of the Act in the
failure to reca. 1, in view of our finding of no unlawful
discharge, the General Counsel must have alleged
and proven a separate violation in the failure to
rehire Carter because of his union sympathies and
activities. I am of the opinion that the complaint
does not allege such a theory and the record will not
support such a conclusion.
First, the allegations of the complaint are stated in
terms of reinstatement and recall. There are no
allegations regarding a failure to rehire. Secondly, the
General Counsel's theory throughout is based on an
obligation to reinstate because of a discriminatory
discharge. Thirdly, Respondent was precluded by the
Trial Examiner from introducing any defense it may
have had as to a discriminatory refusal to rehire-see
footnote 67, Trial Examiner's Decision-because the
Trial Examiner viewed such as a matter for compli-
ance, again demonstrating that all participants in this
proceeding believed that this case was being tried on
a theory of discriminatory discharge and a continu-
ing refusal to reinstate.
Finally, the General Counsel has not produced
enough evidence to sustain even an inference that
Respondent discriminated against Carter in the
matter of rehire. Indeed, the evidence actually
suggests otherwise. For example, Carter was original-
ly hired through an ad in a newspaper, which would
indicate that was Respondent's regular method of
finding employees. The extent of Carter's union
activities during his employment remains somewhat
of a mystery. Whether he was active in the organiza-
tion campaign or one of the leading union activists is
not a matter of record. However, the evidence does
show that Respondent made the decision to termi-
nate Carter prior to any inkling of his or any other
employees' union activities. Respondent only there-
after became aware of the union demands, and
consequently delayed terminating Carter until it
sought legal advice, hardly an indication that
Respondent was predisposed to violate the Act.
Furthermore, since Carter's termination, the Union
has been certified and the record indicates that
Respondent is bargaining.
Respondent claims it did not recall Carter because
of a temporary slump in the economic picture, a
defense the Trial Examiner credited when he found
no violation in the refusal to rehire on October 15,3
and because it had learned, in the meantime, of the
full extent of Carter's criminal record.4 Respondent's
claims are supported by the record and by the Trial
Examiner's findings. Therefore, the only intervening
circumstance between Carter's lawful discharge and
Respondent's refusal to rehire him, at least up until
December 13, was Respondent's becoming aware of
the full and complete details of Carter's criminal
record, which is, if as stated, enough to astound any
employer. When, on December 13, Carter again saw
an ad in the newspaper for his former job, he did not
even bother to apply, which application becomes a
necessity in order to find a discriminatory failure to
rehire.5 Accordingly, for these reasons, in addition to
the grounds for dismissal stated by my colleagues, I
would dismiss the 8(a)(3) allegations of the com-
plaint.
3 The Trial Examiner states that Respondent did not rely on the defense
that it had learned the full details of Carter 's criminal record when it failed
to rehire him on October 15 However, Respondent 's president, Miller,
testified that Carter's criminal record and the business slump were the
reasons he was not rehired at that time
4 Although the Trial Examiner found that Respondent did not have a
policy against hiring anyone with a criminal record and that Respondent
was aware that Carter had a criminal record when he was hired, he
inferentially concluded at fn 62 that the full extent of the criminal record
was uncovered later
5 The filing of the charge does not amount to such an application here,
since the charge and complaint are based on the failure to reinstate, an
entirely different concept from an application for employment Cf N L R B
v Pennwoven Inc, 194 F.2d 521 (C A 3)
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by survey or otherwise, ask our
employees about complaints or grievances caus-
ing. them to seek a union, under circumstances
tending to assure them that such complaints and
grievances will be cured without them going to a
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to organize, to form, join, or
assist a labor organization, to bargain collectively
through a bargaining agent chosen by themselves,
to engage in other concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any such
activities.
THE MILLER PRESS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, 400 West Bay
Street, Jacksonville, Florida 32202, Telephone
904-791-2168.
TRIAL EXAMINER 'S DECISION
HAROLD X. SUMMERS, Trial Examiner: In this proceed-
ing, the General Counsel of the National Labor Relations
Board (herein called the General Counsel and the Board,
respectively) issued a complaint I alleging that The Miller
Press (herein called Respondent) had engaged in and was
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). The answer to the complaint admitted some of
its allegations and denied others; in effect, it denied the
' The complaint was issued on March 25, 1971 The unfair labor practice
charge initia ting the proceeding was filed on September 17, 1970
2 Although the transcript contains oral arguments presented by counsel
at one or another point during the hearing, there was no summary argument
at its conclusion The first day of hearing ran from 10 a in to 6 40 p in , and
the second (and final) day from 9 a in to 1135 p in , without a supper
break All parties, including the reporter, fully cooperated in working these
hours-the 2-day transcript covered 644 pages-because of the fact, early
known, that, if the hearing was not concluded on the second day, prior
commitments dictated that there would be an extended recess Toward the
commission of any unfair labor practices Pursuant to
notice, a hearing was held before me at Jacksonville,
Florida, on May 4 and 5, 1971; all parties were afforded
full opportunity to call and examine, and to cross-examine
witnesses, and thereafter to submit briefs.2
The case involved issues of whether, as a result of certain
acts of its agents, Respondent had independently inter-
fered with, restrained, or coerced its employees in the
exercise of rights guaranteed them by Section 7 of the Act,
in violation of Section 8(a)(l) thereof; whether Respon-
dent, by discharging employee Jarrell Lee Carter, Sr., on or
about September 11, 1970, had discriminated in regard to
the term of employment of an employee, thereby discour-
aging membership in a labor organization in violation of
Section 8(a)(3) and (1) of the Act; and whether Respon-
dent, by thereafter failing and refusing to recall Carter, had
engaged in an independent act of discrimination in
violation of 8(a)(3) and (1).
Upon the entire record 3 in the case, including my
evaluation of the witnesses based upon my observation of
their demeanor, I make the following-
FINDINGS OF FACT
I JURISDICTION
Respondent is a Florida corporation with an office and
place of business at Jacksonville, Florida, where it is
engaged in the retail commercial printing business. During
the 12 months preceding the issuance of the complaint
herein, Respondent's gross revenue for its finished prod-
ucts exceeded $500,000 in value' and, during the same
period, it purchased goods, supplies, and materials valued
at in excess of $50,000 from suppliers in Jacksonville,
Florida, who themselves purchased and received said
goods and supplies directly from points outside the State of
Florida.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE UNION
The charging party, Jacksonville Printing Pressmen &
Assistants ' Union , Local 97, subordinated to International
Printing Pressmen & Assistants ' Union of North America,
AFL-CIO (herein called Local 97) is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of Events
On September 1, 1970,4 Local 97, through its counsel,
close of the second day, after all parties had rested, counsel for the General
Counsel expressed a desire to argue orally I announced that, under the
circumstances , I would not hear oral argument at that hour, instead, I
suggested , any such argument ought take the form of a brief Thereupon, no
party having requested that a resumed date be set for the receipt of oral
argument, the hearing was closed
3 (1) By a ruling issued by me on September 20, 1971, the transcript of
this hearing was corrected in certain respects
(2) Upon unopposed motion , Resp Exh 3A is received in evidence
4 Unless otherwise indicated, all dates referred to herein fall within the
year 1970
THE MILLER PRESS 577
wrote to Respondent, advising that the Local represented a
majority of Respondent's production and maintenance
employees and requesting recognition as their bargaining
agent. Should there be no affirmative reply within 3 days of
the receipt of the letter, the writer said, he would assume
that Respondent had chosen not to recognize the Local,
which would thereupon take the matter to the Board. This
letter was received by Respondent on September 2
Insofar as is revealed by the evidence in this record, the
contents of the letter caught Respondent by surprise; up to
this point (I find) its agents had been unaware of any union
campaign Immediately, Alfred Miller, Jr., president and
general manager of Respondent,5 consulted with counsel.
Being opposed (I find) to the unionization of Respondent's
employees, he sought appropriate legal advice. Counsel
gave him advice, including information as to what he could
and could not say to employees about unions and
unionization.
Within the 2 days following the receipt of the letter from
Local 97, Respondent asked employees who had not yet
filed job application blanks to do so at this time
On or about September 3, Miller telephoned Byron,
Harless, Schaffer, Reid & Associates, Inc., a psychological
consulting firm providing clinical, industrial, and educa-
tional counseling, and spoke to Dr. Ernest Larsen, a
psychologist employed by that firm. The available evidence
does not reveal whether Miller told Larsen that the
occasion for the contact was his receipt of the letter from
Local 97; but (I find, on his own credited testimony) the
actual basis for the action was the fact that, because of the
Union's letter, Miller had become aware of employees'
"unhappiness and dissatisfaction" and was now seeking a
means of finding out the reasons therefor. After some
discussion, he retained that firm to make a survey of the
attitudes and opinions of Respondent's employees, and it
was arranged that he would meet with Dr. Larsen on
September 9.
On Friday, September 4, the employees working that day
were called to the conference room on the second floor at
approximately 3:30 p.m Nineteen in number, they
included all day-shift production workers and their
supervisors.
Because what took place at this meeting looms important
in the resolution of at least one issue in this case, I here set
it forth in extended detail 6
The session lasted about an hour. The first half consisted
of a formal talk by Miller,7 and the rest was devoted to
employees' comments and questions.
Miller opened by noting that no work was scheduled for
the upcoming Labor Day weekend, and he expressed the
hope that everyone would enjoy the 3 days.
He then told them of the letter he had received from
Local 97-he called it "the IPP & AU"-and he read it to
them He said that the demand for recognition came as a
complete surprise to him and that he did not believe the
Union represented a majority of Respondent's employees.
Respondent's intention, he told them, was to request the
NLRB to hold an election.
Continuing, he expressed the opinion that Respondent's
past success had been "to everyone's benefit." Respondent
preferred, he said, to operate the business without a union's
representing its employees and to run an "open shop"
rather than to deal with a union. In short, he stated, he
wanted to run the plant as he pleased.8
Some of the employees who had not been approached by
union representatives-Miller continued-would undoubt-
edly be contacted in the future. In considering any request
to sign a union card, he cautioned them to think the matter
over carefully "because it would lead to trouble, trouble,
and more trouble " He said that they should not believe all
of the union promises, for example, those about "sky-high"
wages, the company could only pay the wages it was
financially able to produce, and the union could not
increase this ability to produce He pointed out that
Respondent had given most of the employees several raises
in the past 12 months and he saw no reason why, this
practice could not continue. Some of them, he added, had
been taking home some pretty big paychecks, but, if a
union came in, there would be a tendency to cut overtime
because the Union would cause the Company to hire more
employees in order to widen the base for dues payments.
And he said that Respondent was increasing benefits as
fast as if possibly could-wages were equal to or higher
than some wages set by this Union in the Miami area and
were on a par with the Union's wages in Atlanta.
At or about this point-having completed the formal
speech he had written out-Miller told the employees that
he would like them to see a moving picture which was on
its way from the airport. Discerning a certain lack of
enthusiasm to stay for a showing-after all, this was
toward the close of the work day-he said he would tell
them something about the film- It concerned a strike at
Kingsport, Tennessee, a strike accompanied by violence.
He pointed out, parenthetically, that the rough treatment
seen in the movie would probably not occur "in this
section of the country" because Florida was a "right-to-
work" State and Tennessee was not. And he noted, in
passing, the movie had been "approved as being true" by
the Fifth Circuit Court of Appeals.
Miller then said that, for the benefit of the new
employees, he would like to give a brief history of the
Company: His father had founded it in 1912; he himself
had joined up in 1937, and the two had worked hard
5 I find that Miller at all times pertinent was an agent of Respondent
6 My findings as to what occurred at the meeting are based primarily on
Miller 's credited testimony , as substantially corroborated , in relevant part,
by other witnesses , but I deem it necessary , at several points herein , to make
specific reference to related testimony which is being credited or
discredited
r The talk had been prepared and reduced to writing by Miller, then
reviewed by counsel
8 A witness for the General Counsel ( Glenn Wright ) testified that Miller
had said he wanted to have the "say " about anything that went on in the
plant and to be able to hire anyone he wanted without the help of a
middleman I have credited Miller's testimony as to the words he used in
this respect
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter to build up the business; in 1955, Respondent
had moved to its present location; and his father had
retired in 1966 at the age of 77 Prior to the retirement, he
noted, the Company had been floundering because its
management was divided, but since that time it had been
moving forward rapidly.
Now,* Miller asked if there were any comments or
questions.
A number of employees spoke up. The gist of what was
said, if not the exact order, appears below.
Employee Trent Rogers, a camera shop employee, said
that he thought that Ed Minnick, then production
manager, had been "badgering" him; although, he said, he
knew more about photography than Minnick would ever
know, Minnick looked over his shoulder and generally
treated him as a child. Moreover, he continued, he was
aware that the company had been advertising for a
cameraman, and he felt his job was in danger; he resented
this, and that was why he had joined the Union. "I don't
care who knows it. I joined and signed a card." At this
point, Miller interjected, "Remember, I did not ask you
that "
Ray Therrell, a lithographic stripper, said that he had
been working in the litho-stripping department by himself
and that, because of the pressure, he was making mistakes.
Miller said that he was aware of the situation and that he
"understood."
Cora Raiford, artist, questioned whether she could be
pressured into joining the Union. Also, she said she was
afraid of strikes-she had no husband or anyone to take
care of her.
Ed Waters, a pressman, asked why, after people had
been employed by Respondent for some time, thfy were
suddenly asked to fill out job application blanks covering
their past history. Miller explained that Respondent had
set up a personnel file for each employee and that this form
was needed for the file.9
Charles Lake, linotype operator, made a comment. The
only reason he was retaining his membership in the ITU
(International Typographical Union, not involved herein),
he said, was that he did not want to lose his pension rights.
Continuing, he said he felt that the Company had "pretty
poor markup for copy" but that, otherwise, he was very
satisfied that Miller Press was a good place at which to
work. Miller agreed that there should be better markup
Trent Rogers said something about being a "master of
the trade" and about his having left Respondent several
times before. In apparently jocular rejoinder, a fellow
employee (James Smith) said he thought Rogers had quit
and come back five or six times
Margaret Naylor, proofreader (and wife of a foreman),
said that she thought that this was the best place in town to
work and that she liked working there.
9 He explained , at the hearing, that the purpose of the file was "to
appraise employees," and that applications had nothing to do with union
activities
10 This finding is based upon Carter's credited testimony, as substantial-
ly corroborated and amplified by witnesses Smith and Miller himself
Respondent's brief characterized Carter's comments as being "against the
Union "
11 A number of witnesses-among them , Carter, Waters , and Edward
Cheney-testified that Miller raised the subject (of a company union)
Charles Lake made another contribution. He com-
plained about the fact that many changes and alterations
were required and that the molds on the second linotype
were not suitable for the type of work being done. Miller's
answer was that Respondent was more particular about its
typesetting than most shops, as for the molds, he
explained, new molds had been ordered 3 or 4 months
earlier.
A number of others-unidentified herein-voiced com-
plaints: Someone said there were too many rush jobs;
another, that there were too many customer alterations;
another, that supervisors were not doing an acceptable job;
another, that employees "were not handled properly" and
were not given full instructions; another, that there was a
lack of cooperation among the employees; and still
another, that there had been a great deal of special
handling on the photopress picture on a certain annual
report, all of which was disregarded when the report went
to press.
J. L Carter, a compositor, spoke up. He said that he
had dropped his membership in ITU because "they" had
given him no help in finding work and because their dues
were so high. He did point out, though, that before unions
entered the printing industry there were sweat shops, and
that the unions had done much for management as well as
for employees.10
Thereupon, an (unidentified) employee said that the best
thing for the Company was "no union."
Before the meeting ended, the subject of an unaffiliated
union came up It was raised by Trent Rogers-and this
was at least his third contribution. In effect-the state of
this record does not lend itself to findings as to the exact
words used-he asked whether it was not possible for the
employees to have a "company union." Miller's rejoinder
was, "That is possible, yes." 11
The meeting ended at or about the employees' normal
quitting time Although the moving picture film had now
arrived, no one wished to stay to see it and it was not
shown.
On September 8, a petition for certification was filed by
Local 97 with the appropriate Regional Office of the
Board; and, next day, a copy of the petition was sent by
the Regional Office to Respondent.
On September 9, pursuant to arrangements previously
made, Miller met with Dr. Larsen, agent of the psychologi-
cal firm engaged to survey the attitudes and opinions of
Respondent's employees. Larsen briefly outlined the
procedure which would be followed and it was arranged
that the survey would take place 2 days later.
On September 10, Respondent posted a notice informing
its employees that it had engaged an outside firm, of
consulting psychologists to survey their attitudes toward,
and their opinions of, Respondent. The purpose of the
himself, but, in each such case , the witness' testimony was tempered by
statements such as " to the best of my recollection " or "I believe
Miller testified unequivocally that he responded to the question of an
employee of whose identity he was not positive, and other witnesses
identified Trent Rogers, either by name or by description , as being the one
who raised the subject Trent Rogers-having ended his employment with
Respondent by voluntarily quitting, living elsewhere, and unavailable to any
of the parties-did not testify I have resolved any credibility questions in
accordance with the findings recited above
THE MILLER PRESS
move, as explained in the notice, was to determine how the
employees felt about theirjobs and working conditions and
to determine how Respondent could become a more
effective organization. "The survey," the notice continued,
"is for the benefit of each employee as well as that of
Miller Press." It was explained that all employees would be
asked to fill out a questionnaire requiring approximately 30
minutes and that some employees, selected at random,
would be briefly interviewed by psychologists. Soliciting
frank answers, the notice guaranteed confidentiality; the
identities of those giving responses, either in the question-
naire or in an interview, would be known only to the
psychologists. The program would begin-the notice
concluded-next day, at a time and place of which each
employee would be advised.
On the morning of September 11, Respondent posted a
schedule to be followed in connection with the survey. The
notice set forth the times at which each group of
employees-all -of them, including members of manage-
ment-were to go to the conference room on the second
floor that afternoon.
Shortly after lunchtime, Larsen and an assistant arrived
at the plant and set up a base of operations at the second
floor conference room and an adjoining office.12
As each group of employees, following the posted
schedule, came to the conference room, Larsen spoke to
them collectively. He explained what was going to be
done-all employees were to receive several forms to fill
out, and a number of employees would be selected at
random for an interview-and he assured them that, in any
report to the Company, the information given would not
be attributed to its source.
Thereupon, each employee was given two forms, and
Larsen's assistant gave the instructions for filling them out.
One of them contained six questions, each calling for a
short written response. The other contained 65 statements
with which each employee could express, by pencil mark,
agreement or disagreement. Both documents dealt, gener-
ally, with the employees' opinions of working conditions.
In the completion of the forms, no names were called
for; only the department of the employee was to appear
thereon.
These "tests", administered under the guidance of
Larsen's assistant, consumed anywhere from 5 to 30
minutes of each employee's time.
Meanwhile, Larsen interviewed employees in the adjoin-
ing office. He selected those to be interviewed by pointing
to someone selected at random from among those working
on the written forms and asking him if he would come in
for an interview. The questions asked at the interview were
of a nature similar to those in the written forms, with
emphasis, however, upon encouraging the interviewee to
unburden himself of concerns or problems not touched
upon by the written material. Larsen took notes of what
was said.
Neither the forms nor the interviews concerned them-
12 My findings as to the procedures followed in questioning and
interviewing employees are based upon Larsen's credited testimony As he
testified, it became obvious that he was describing the procedures generally
followed by him in administering this type of survey and that he had no
independent recollection of details relating to the instant survey To the
t xtent that I have made findings going beyond Larsen's testimony, I append
579
selves, as such, with unions or unionization. Nor, insofar as
is revealed by this record, was the subject raised by any of
the employees, with the following exception: When Larsen
selected J. L. Carter for interview, Carter said that he had
been advised by "the union" not to allow himself to be
interviewed privately but to insist on having someone
along with him.13
Those that were interviewed were interviewed one at a
time, except in two instances. Carter, as he requested, was
interviewed along with fellow-employee Edward Cheney,
and (without explanation in this record) Glenn Wright and
Louis Rukab, employees in Carter's department, were also
jointly interviewed.
Forty employees were involved in the written portions of
the survey. (These included members of management, sales
people, and office clericals, as well as 31 "nonsupervisory"
employees-all who were present and working that day.)
And, of these, approximately one-half were interviewed by
Larsen.
This stage of the survey ended at approximately 5 p.m.
that day.
Near quitting time the same day (September 11), Carter
was discharged (details infra). Six days later, the instant
unfair labor practice charge, alleging that Carter's dis-
charge violated the Act, was filed; notice of the filing of the
charge, sent to Respondent by the Board's Regional Office,
was received on September 18.
On September 18, Respondent, over Miller's signature,
sent a three-page letter to each employee about the "union
drive to represent our employees." The letter informed the
addressee that the resolution of the matter would involve a
serious decision eventually to be made by the employees
themselves in a Board-conducted election, a decision
which could affect the future of each employee and his
family. If a union were brought in, the letter continued, the
direct contact between them and management would no
longer prevail-Respondent would have to deal with
outsiders rather than with the employees as individuals.
Averring that the Union's only interest in the employees
was in the income which could be derived from them, it
urged them to talk to those who had belonged to unions
and had resigned because the unions did not measure up to
their promises. The letter pointed to the cooperative
relationship which had been built up over the years and
asked for a consideration of the consequences of terminat-
ing that relationship; it labeled as a catastrophe the fact
that the progress gained by the employees over their period
of employment would surely be slowed considerably if not
stopped altogether by the installation of "union out-of-
towners"; and, saying that "all of us are in the same boat,"
it urged the pulling of oars together, in order to move
forward. Continuing, it conceded that the growth of the
Company during the past 2 years had caused transitional
problems which had affected both management and
employees, but it gave assurances that every effort was
being made to alleviate the situation. "You will see the
appropriate explanations
13 This is based on the credited testimony of Carter, as corroborated, in
substance, by other witnesses Larsen did not remember details, but he did
recall that "two people" had indicated a strong preference that they be
interviewed together rather than separately; he recalled it "because it was
very unusual "
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
results very soon, I promise you this." The writer further
pointed out that the Company recognized individual
accomplishments because it could deal directly with
employees, but that, with a union in the plant, it could do
no such thing; and that the Company's pay scale was as
high as or higher than any other printing company in the
area and was higher than that in the latest contract of IPP
& AU for Miami and was equal to that in Atlanta. The
Union's reputation for strikes was alluded to and an
example was cited, reference was made to the financial loss
and suffering accompanying strikes.
"On the other hand [the letter continued], we do not lay
off employees when business is down-instead, we have
sustained losses rather than reduce the payroll. We have
always taken care of our people. Do you think the union
can do this for you? The answer is a definite `no.' Then
who is your real friend-the union or the company?"
The letter concluded by saying that the signing of a
union card did not mean that the signer must vote for the
Union; that only the Company, not the Union, created
jobs; and that no Union could get for them more than the
Company was able to give. It urged a vote against union
representation when an election should be held.
On a date indeterminate, but occurring subsequent to
September 11 and prior to September 30, the psychological
consulting firm transmitted to Respondent a written report
of its survey as to the employee attitudes. A multipaged
document, it contained a description of the procedures
followed, details as to the information received, the firm's
analysis of this information, and its recommendations for
followup treatment. This report serves as a basis for a
number of findings herein, including the following:
Paraphrased or actual information given by employees,
both on the written forms and in interviews, was set
forth in the report, including both criticisms and
compliments of management. In this connection, the
pledge of confidentiality was strictly adhered to.
The report set forth a number of conclusions reached in
the course of the survey. For example, it stated that,
while departmental morale among the office, sales and
management groups were "above average" the nonsu-
pervisory employees, as a group, displayed a "below-
average" state of morale. These employees were
concerned, the report said, with a number of things, but
mostly with their "security"; and, in comparison with
the office, sales, and management groups, the pro-
duction and maintenance departments appeared dissat-
isfied with the fairness of the pay scale, promotions,
work load, work equipment, recognition and status,
supervision, and the psychological climate prevailing at
Respondent's plant.
Among its recommendations was one to the effect that
personnel guidelines, with special emphasis upon
wages, salaries, and promotions, be developed and be
put in writing for the information of everyone; and it
also recommended that information from this survey
be fed back to the employees.
Further recommendations concerned themselves with
upper management. Saying that top management
showed little concern for rank-and-file employees and
questioning that Miller projected himself as being
warm, concerned, interested, or understanding, the
report recommended that he have a psychological
appraisal with a feedback interpretive counseling
session as soon as possible; stating that current
supervisory personnel were not functioning adequately,
it recommended an evaluation of the top supervisors
for developmental purposes; and it recommended that
a job analysis be made of the duties and responsibilities
of middle and top management positions.
Finally, it stated that, in the composing room, a very
unfortunate leadership situation existed; and it recom-
mended that the supervisor there, Earl Naylor, be
reassigned or be evaluated to determine his potential
for improvement in human relations and man-to-man
dealing.
At no point in the report was there any mention of
unions or unionization, either as a part of employees'
comments being transmitted therein or as a part of the
reporting firm's analysis or recommendations.
On September 30-the date set for a hearing on the
representation case initiated by Local 97's petition to the
Board-the parties entered into a Stipulation for Certifica-
tion Upon Consent Election, calling for an election to be
held on October 22.
Also on September 30, Respondent sent a letter to each
employee bearing upon the attitude survey conducted by
the industrial psychologists. First reassuring them that the
identities of the employees' giving information to the
psychologists had been carefully concealed from manage-
ment, it stated that it had now received the psychologists'
report and that the trend of the employees' feelings about
the Company as brought out in the survey would be the
subject of discussions with the employees during the
ensuing 10 days. Continuing, the letter pointed out that the
Company had been working hard to develop a new sales
program and had been exerting efforts to make up for the
losses incurred earlier that year; in exerting these efforts,
"we have obviously overlooked other problems." What was
needed, the letter concluded, was a better understanding of
.,each other's problems."
On or about October 15 or 16, approximately a week
before the Board's representation election was to be held,
Miller met with Respondent's employees once again, at
which meeting he spoke to them about the coming election.
Using a chart, he discussed, among other things, some of
the benefits presently enjoyed by the employees, such as
hospitalization and workmen's compensation. This record
contains no further details as to what he said on this
occasion, but, as conceded by counsel, I find that the
presentation by Miller constituted an attempt to "talk the
employees out of joining the union."
On October 16, Miller sent Respondent's employees a
third letter. Assuming personal responsibility for "supervi-
sion difficulties" because his attention had been otherwise
absorbed, he assured them that the problem would be
corrected. He emphasized that he anticipated no lack-of-
work problem if things continued along their present way;
and this was true, he said, whether or not Local 97 should
win the election set for October 22. But he reiterated that
management and the employees could work together "in
the direction of steady growth" more effectively without a
THE MILLER PRESS
union. He alluded to work benefits enjoyed by them
without a union and without the need to pay dues, and he
pointed to the fact that, if the Union should win, the
Company would be required to deal only with the Union
and not with the individual workers. "Even if the union
wins and you do not join the union, you will still be under
the union jurisdiction." As he had earlier, he alluded to the
possibility of a loss of overtime because of union pressures
in that direction. "So-with all the problems that the union
can bring to all of us-and for no good cause . . . the
simple and very easy way you can prevent it, is to vote
against the union by putting nothing more than an `X' in
the `No' box on the ballot. You don't sign your name, you
just vote-'No'."
Within the several days immediately preceding the
election, Miller had an individual discussion in the
conference room with each employee. As characterized by
Miller in his testimony, he considered each such session a
"campaign talk." The main thrust of the sessions-he
testified-was to find out what each individual thought
that a union could do for him that the Company could not
do without a union; and his primary object was to find out
what each employee thought about the Company and what
improvements could be made.14
Although Miller, in his testimony, did not recall details
as to each such conversation, he did testify as to the gist of
the meetings: He wanted to acquaint the employees with
the fact that, because a union had requested recognition,
the Company had become aware that it must have a
problem and he was seeking to identify that problem; in
each case, he said that he was not interested in whether the
employee with whom he was talking had signed a union
card or had joined the Union and he did not ask any
employee about his union activities, but he did say that he
did not believe that the Company needed a union and that
he thought that this was a good place to work without a
union; and, finally, he would ask for any comments.
Several employees, in the course of the conversation, said
that they favored a union or were union members, but, in
each such case, Miller said, "Remember, I'did not ask you
that question," and he was careful thereupon to express no
objection or antagonism.
At the hearing, Miller conceded that any of the
employees with whom he spoke could fairly assume that, in
these conversations, Miller was seeking out the reasons
why each of them wanted a union, and I so find.
As indicated, the above findings apply to this series of
conversations, generally. As to one of them, however, there
was more detailed testimony, on the basis of which I make
more detailed findings. In that conversation, Miller asked
Edward Cheney, compositor, if he was interested in a
union. Cheney said that he did favor representation by
14 In this respect , Miller testified that he was not satisfied with the results
of the psychologists' survey
15 Cheney had been a member of the ITU, a fact of which Respondent
was aware
16 The findings with respect to this conversation are based upon the
credited testimony of Cheney Miller did not recall whether he had asked
Cheney why he wanted a union, as earlier indicated, he testified that he did
not remember the details of any one of this series of conversations
17 At one point , he said that he made the remark during his talk with the
employees on September 4, at another , that it took place at his second
meeting with employees , at another , that it took place at or before
581
Local 97. Miller asked Cheney for his reasons. Cheney
explained to Miller that he felt that his foreman, Earl
Naylor, was trying to get him fired. He had had trouble
with Naylor, he said, in connection with one of his duties,
"making up the cage"; also, on one occasion, Naylor had
complained to the front office because he (Cheney) had
complied with an order given him by the plant manager
and not by Naylor. In the same conversation, Cheney
expressed an awareness that a compositor would not
normally be interested in membership in the International
with which Local 97 was affiliated 15 because that organiza-
tion did not "particularly understand" compositors' prob-
lems, but Cheney felt that he had to have the protection of
a union.16
On the morning of the election-October 22-Fred
Miller, son of Alfred Miller-then working as a salesman
-was walking through the plant. He stopped alongside Ed
Cheney and asked how he felt about the Union and how he
was going to vote. Cheney confined his answer to saying
that he thought that Fred's father had "missed the boat"
when, having suggested that the employees have their own
union, he failed to pursue the subject further.
The Board-conducted representation election was held
on October 22. Of the approximately 21 eligible voters, 12
voted for, and 8 voted against representation by Local 97.
Included in Miller's testimony at this hearing was a
statement to the effect that, on one occasion, he had told
employee James Smith, who, at the time of this hearing,
was Local 97's chapel chairman, that he had absolutely no
objection to dealing with Smith about employee griev-
ances. His testimony, insofar as it related to the date of this
conversation, was very confused.i7 I find, in context-to
the extent that it has any relevance-that Miller made the
statement after the representation election was held
B. Independent Interference, Restraint, and Coercion
The complaint alleged that Respondent interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, in that (1) Miller, in his
speech to employees made on September 4, (a) stated that
he preferred to deal with the employees directly rather than
through a union, (b) suggested that the employees form
their own union, and (c) told them they wouldn't have to
pay dues to some outside union; and (2) Respondent, on or
about September 11, 1970, engaged an industrial psycholo-
gist for the purpose of interviewing employees concerning
their opinions of supervisors and of their working condi-,
tions, and who thereafter interviewed employees during
working hours, away from their work stations, concerning
their supervisors and working conditions.18
My findings underlying these allegations have been set
September 2; and , at still another , that it took place after some kind of
word-"nothing official"-was out to the effect that Smith was going to be
chapel chairman. Smith, although he testified at the hearing , made no
mention of the incident
18 On a number of occasions during the hearing, upon objections by
Respondent's counsel to the introduction of certain testimony on the
ground that it was unrelated to the incidents hereinabove alleged, the
General Counsel explained that his purpose in seeking to introduce such
evidence was to demonstrate "background" material which would shed light
on the issues , he specifically disclaimed any intention to inject any
allegations of unlawful conduct not specifically appearing in the complaint
(Continued)
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the preceding subsection and details will not be
repeated here. Suffice it to say that, spurred by the
knowledge dust received that a union had been and was
organizing Respondent's employees and in an atmosphere
marked by Respondent's hostility to the unionization of its
employees, Miller did tell the employees, in a speech
delivered on September 4, that he preferred to deal with
them directly rather than through a union; and Respon-
dent did engage an industrial psychologist to make a
survey of employees' attitudes toward Respondent, which
survey was conducted on September 11, for the purpose of
ascertaining what sources of dissatisfaction, if any, might
have caused employees to find the need for a bargaining
representative. But, in his speech, Miller did not suggest
that the employees form their own union-he did, in
response to an employee's query as to whether such a
union could be formed, concede that this was a possible
approach, despite the fact (which I here find) that he
preferred dealing with no union over dealing with any
union, "outside" or "inside"; and the only context in which
he may be said to have suggested that employees would not
have to pay dues to an outside union lies in his statements
(oft repeated, in many ways) that the continuation of
existing working conditions and their betterment in the
future was not dependent upon the employees' being
represented by a union. Furthermore, with respect to the
survey, (1) there was no reference by personnel of the
industrial psychologist, in their contacts with employees, to
unions or unionization, and (2) promises of confidentiality
as to the identity of any employee giving information were
made and were adhered to
The short answer to the complaint's allegations respect-
ing Miller's speech is that nothing he said was accompa-
nied by threat of reprisal or promise of benefit, either
expressly or by implication. Specifically, it is not violative
of the Act for an employer (absen` threat or promise) to
express to employees a preference for dealing with them
directly rather than through a union; or to tell them,
directly or indirectly, that they do not need union
representation in order to maintain or better working
conditions.19
As for the allegation that Miller suggested the formation
of their own union, I have found that this did not occur
I find no interference, restraint, or coercion of employees
Therefore-whatever else such evidence might tend to demonstrate-i have
not considered as potential unfair labor practices any conduct other than
those specified in the complaint
19 See Sec 8(c) of the Act
20 Respondent made no claim , and presented no evidence , that it had
ever made any efforts to unearth employee "gripes" prior to its receipt of
Local 97's letter On the contrary, in one piece of literature given employees
during the period immediately preceding the representation election of
October 22, Miller, speaking of the information brought out by the survey,
said that , " in our concentration on the problems [of improving our position
through more and better selling and trying to make up for past losses I we
have obviously overlooked other problems", in another, he conceded that
he was at fault for supervisory difficulties because his attention had been
absorbed in other areas
21 In his preelection letter of September 30, in which he referred to the
report given him by the psychologists ' firm , Miller , having conceded that
Respondent , in its concentration on building up sales , had failed to
recognize "other problems" revealed by the survey, continued by saying,
"Now, I'm sure you will see a more balanced operation in the near
in the exercise of their self-organizational rights, in any
aspect of Miller's speech of September 4.
But the matter of Respondent 's engaging the industrial
psychologist's firm, and the survey conducted by that firm
pursuant to the terms of its engagement , is a- different
story. Respondent (I find) acted only because it was made
aware of union activity in the plant and only because it
opposed the unionization of its employees.20 This move,
linked , as it was, with a subsequent speech constituting an
attempt to "talk the employees out of joining the union",
with subsequent, intensified "campaign talks" in which
each employee was questioned individually as to his
reasons for dissatisfaction, and with other subsequent
conduct indicating that the passage of time would bring
about an amelioration of complaints uncovered by the
survey,21 could only have been interpreted by Respon-
dent's employees (in the absence of any other cogent
explanation) as a means of assuring them that the
grievances which caused them to seek representation by a
union would be remedied without such representation-in
short , as a promise of benefit to discourage unionization.
Under the circumstances, I find and conclude on the basis
of what I deem to be a fair preponderance of the evidence,
that the survey-i.e., Respondent's contracting for it and
the psychological firm's engaging in it22-was calculated to
and tended to inhibit Respondent's employees in the
exercise of self-organizational rights guaranteed them by
Section 7 of the Act.
It is not unlawful for an employer to solicit employee
grievances during a union 's organizational campaign, "so
long as `the discussions [about grievances] avoided any
attempt by the company to imply promises of benefit if the
union was defeated,' "23 nor does the use of opinion
surveys per se violate Section 8(a)(1); 24 but the solicitation
is unlawful if it is "accompanied by an express or implied
promise of benefits specifically aimed at interfering with,
restraining , and coercing employees in their organizational
effort".25 And this is true even though the "survey
questions [constituting the solicitation] are perhaps pro-
tected under Section 8(c) of the Act if viewed in
isolation."26 In Tom Wood Pontiac, Inc.,27 the Board found
that asking employees to answer a written questionnaire as
to their grievances, in a preelection context, constituted a
future " in another such communication-that of October 16-after
accepting the responsibility for Respondent 's supervisory difficulties
pinpointed by the survey-he gave assurances that
You should be seeing a marked change right now This will
rapidly get better the way it should be, and it will stay that way It
is now and always has been company policy to have good supervision
and it will be that way from now on
22 I find the firm and its personnel, in this respect, were acting as' agents
for Respondent
23 N L R B v Tom Wood Pontiac, Inc, 447 F 2d 383, 384 (C A 7),
quoting from and citing cases
24 Ibid
25 ITT Telecommunications, etc, 183 NLRB No 115 Here, the
employees were asked to respond to a written questionnaire , the answers
were analyzed by a psychologist , and, at a followup meeting , the survey
results were explained and employees were asked to voice any particular
complaints
26 N L. R B v Tom Wood Pontiac, Inc, supra
27 179 NLRB No 98, enfd N L R B v Tom Wood Pontiac, Inc, supra
THE MILLER PRESS
solicitation carrying with it an implied promise that the
grievances would be remedied.28 A fortiori, where there are
additional circumstances which establish, expressly or by
implication, that the purpose of the solicitation is to convey
to employees that their complaints will be remedied
without union representation, there is a violation of the
Act.29
In its brief, Respondent cites a number of precedents in
support of its argument that the taking of the instant
survey, and its surrounding circumstances, did not violate
the Act-Orenduff & Kappel, Inc., 118 NLRB 859, 864,
874-875; Montgomery Ward, 150 NLRB 1374, Murray
Ohio Manufacturing Co., 156 NLRB 840, 847-848; and
Superx Drugs, Inc., 170 NLRB 911. I find these to be
inapposite. In the first case, wherein representatives of the
employer met with selected employee representatives to
discuss grievances, it was found, as a fact, that these
meetings were the result of an employee suggestion; the
Board, "in the context of [Respondent's] other actions and
the surrounding circumstances at the time" could find no
coercion. In the Montgomery Ward case, it was found that
the employer took the survey'in question prior to its having
any knowledge of organizational activities. In the Murray
Ohio case, the Trial Examiner (with subsequent Board
approval) specifically discredited an employee's testimony
that he was interrogated concerning his grievances against
the company, finding instead that he was the one who
broached the subject and volunteered the information in
question. As for Superx, the allegedly unlawful solicitation
consisted of an incident in which several members of
management had asked an employee if she liked her job,
how she got along with her store manager, and if she had
any complaints, in the context of a case involving
numerous allegations of serious violations of Section
8(a)(1), (3), and (5)-all of which were dismissed; the Trial
Examiner, in a lengthy decision, made short shrift of the
incident in question by saying, summarily, that he found
nothing there establishing interference, restraint, or coer-
cion, and the Board, in a "short-form" affirmance, made
no mention of the incident whatsoever.
In addition, Respondent's brief places emphasis on the
fact that the survey, and its aftermath, concerned itself
with problems of supervision or management, and that the
assurances later given in Miller's letters concerned them-
selves with improving management. Without citation, it
argues, in effect, that an employer may interrogate as to
such matters and may make related promises of benefit
with impunity. In my opinion, the argument is misplaced.
(1) For one thing, an examination of the matters with
which the survey was concerned reveals that the area of
investigation dealt not only with management and supervi-
sion; it covered wages, raises, promotions, workload,
equipment, psychological climate, recognition and job
28 An employer's "willingness to receive and consider employee requests
at a time which coincided with the first union organization campaign
might well have indicated to the average employee that better conditions
would be forthcoming" N L R B v Yokelt, 387 F 2d 751, 755 (C A 2) Cf
Fairchild Camera v N L R B, 404 NLRB 581 (C A 8), denying enforcement
of 169 NLRB 90 (wherein the Board had held that the employer's calling of
a meeting of employees for the airing of grievances was motivated by a
desire to defeat a union organizing attempt ) on the ground that there was no
substantial support for the Board's finding as to the purpose of the meeting
583
status, communications, and employment security. And at
least one of the "promises of benefit" noted earlier took the
form of an admission, arising out of the survey, that "other
problems"-i.e., problems other than those related to sales
and to profits-had been overlooked by Respondent,
followed by assurances that the employees would see a
"more balanced operation in the near future"; the
assurance was not confined to the area of management or
supervision. (2) If indeed one of the factors impelling
employees to seek representation by a labor organization
was dissatisfaction with supervision and with management
(epitomized, for example, by a real or fancied inadequacy
of supervisors' instructions or, for example, by a real or
fancied harshness in management's disciplinary program),
a promise that corrective action in the area would be taken
would, it is quite clear, discourage unionization, and any
argument that such promises have a special exemption
from proscription by the Act is unconvincing.
Having found that the circumstances surrounding the
taking of the employee attitude survey herein was
calculated to and tended to inhibit Respondent's employ-
ees in the exercise of self-organizational rights guaranteed
them by Section 7 of the Act, I find that Respondent, by
the part it played therein, interfered with, restrained, and
coerced said employees in violation of Section 8(a)(1).
C. Carter's Discharge
At or about mid-December 1969, Ruben Hacker, a
compositor employed by Respondent for the past 6 years,
became ill and was taken to the hospital. During the first
12 weeks of his confinement (3 in a hospital and the rest at
home), he was considered on sick leave and he received
one-third of his weekly salary under Respondent's employ-
ee illness insurance policy. During this period, however,
Respondent was informed that he was suffering from
terminal cancer, with about 3 months to live, and
undoubtedly would not return to his old job. Thereupon,
early in February, Respondent placed an advertisement in
a newspaper seeking a replacement.
Jarrell Lee Carter, Sr., a compositor then unemployed,
saw the advertisement. Determined to be the first to be
interviewed for the job, he used the classified telephone
book to trace down the telephone number given in the
advertisement-Respondent was not there identified by
name-and, on Monday, February 9, he presented himself
at the plant at 7 a in.
He was interviewed by Earl Naylor, foreman of the
composition and letterpress department.30 Naylor asked a
number of screening questions and had Carter fill out a job
application form; later that day, Carter was told that the
job was his.31
I find that nothing was said, during these contacts, about
Carter's being hired to replace someone else or about this
29 Northwest Engineering Co, 148 NLRB 1136, 1139-40, enfd 376 F 2d
770 (C A DC), Eagle-Picher Industries, Inc, 171 NLRB 293, Texaco, Inc
(Evansville Bulk Station), 178 NLRB 434, enfd 436 F 2d 520 (C A 7), Sears,
Roebuck and Co, 182 NLRB 777, enforcement denied on the facts, 450 F 2d
56 (C A 6, 1971)
30 1 find Naylor to be a supervisor for, and agent of, Respondent
31 Further details as to the employment interview , to the extent they bear
upon the issues herein , appear in the next subsection hereof
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being or not being a permanent job; Naylor said only that
Carter would be considered a temporary employee for 30
days. I find, on all the evidence, that (1) he was, in fact,
hired as a replacement for Hacker but that (2) it was
Respondent's intention, and Carter's understanding, that
his would be a regular full-time job at the expiration of a
30-day trial period.
Carter reported the next day. During the next 7 months,
he worked as a hand compositor in the composition and
letterpress department, ajob at which his performance met
all company standards.
At 4:20 p.m. on September 11 (the day his department
had undergone the psychological survey), Carter was
approached by Naylor, who said, "We want to see you
over here in the office." They went to the office where
Dean Andrus, plant manager, and Ed Minnick, plant
superintendent and Naylor's immediate supervisor,32 were
waiting. Andrus handed Carter three envelopes. "One of
them will explain why your services are no longer needed
here, one of them is a week's severance pay, and one of
them is a week's regular pay."
The "explanation" consisted of a memorandum on
Respondent's letterhead, bearing that day's date; it was
addressed to Carter, the subject was "Termination," and
the signer was Dean Andrus. It read:
Prior to your being hired here at Miller, one of our
regular full time employees became very ill and had to
be hospitalized. After some time in the hospital it was
indicated that Ruben Hacker possibly was not going to
live and obviously would not be able to return to work.
With this in mind we hired you feeling confident that
Ruben would not be able to return.
However, we continue to keep Ruben Hacker on all
our insurance and even subsidized his income for some
time . . . and recently he had surprised everyone by
recovering his health to the degree that he has
requested to return to work full time here at Miller.
Ruben being of such experience and long standing
employee of our Company, we are obligated and
rightly so, to put him back to work. Another prime
factor of course is that work has slacked off and we just
aren't able to substantiate carrying both of you at this
time.
Therefore, we are . . . regretfully, giving you a week's
severance pay and thus terminating your employment
as of today at 4:30 PM with Miller Press.
I want to wish you well and let you know I will be glad
to answer any inquiries for you as to new employment.
Carter read the note, then said that he didn't think that the
reason given therein for his discharge a "valid" one and
that he would let the Union handle it from then on.
As Carter left the office, he announced in a loud voice
that he had been discharged. Thereupon, he left the plant.
The complaint herein alleges that Respondent dis-
charged Carter, and thereafter failed and refused to
32 1 find that Andrus and Minnick were supervisors for, and agents of,
Respondent at all times pertinent herein
33 Sometime in August, Carter, motivated by "curiosity," had attended a
meeting sponsored by Local 97 There, he had signed a card authorizing
Local 97 to represent him for the purposes of collective bargaining, along
with a number of other employees of Respondent, thereafter, seven or eight
additional employees signed such cards and Carter transmitted them to the
reinstate him, because he had joined or assisted Local 97 or
had engaged in other concerted activities for the purpose of
collective bargaining or mutual aid or protection. Further
explicating at the hearing, the General Counsel, in effect,
contends that Respondent's agents entertained an animus
against the unionization of its employees, that Carter had
been active on behalf of Local 97, that Respondent was
aware of his activities, and that, as a consequence, his
employment was terminated. As for the reason assigned by
Respondent for the discharge-the desire to give Hacker
his old job back-the General Counsel argues that this was
but a pretext for the action.
I have already found that Respondent, through its
agents, was indeed hostile toward the idea of the
unionization of its employees.
Basically, it is the General Counsel's position that the
"protected activity" for which Carter was discharged was
his making a statement earlier that day to the psychologist
conducting the employee attitude survey-a statement
made in the presence of Foreman Naylor.33 Although my
general findings as to the circumstances surrounding the
survey have been enumerated in the subsection entitled
"Chronology of Events", it thus becomes necessary to
make more detailed findings as to this incident.
The men in composition and letterpress department went
upstairs to be interviewed, as scheduled, at 1:45 p.m. The
group consisted of Earl Naylor, foreman, Carter and
Edward Cheney, both compositors, Glenn Wright, cylinder
pressman, Charles Lake and Louis Rukab, linotype
operators, and Margaret (Mrs. Earl) Naylor, proofreader.
The group was commencing to fill in the written forms
when Larsen asked for someone to be interviewed. Naylor
was the first person selected.
When this interview ended, Naylor and Larsen came
back to the conference room. Naylor sat down and
resumed his work on the written forms, and Larsen asked
Carter if he minded being interviewed. It was at this point
that Carter said that, upon advice of the union, he wanted
someone with him at any such interview. Thereupon,
Larsen took Carter and Cheney in for a joint interview.
Carter's remark was openly made. Among those who
heard it were Earl Naylor and his wife.
Their interview ended, Carter and Cheney returned to
the conference room and Wright and Rukab went into the
conference room, also to bejointly interviewed.
At or about this point, Margaret Naylor-who had not
been called in for an interview-finished her written forms
and went downstairs, back to work. Very shortly, close
together in the following order, four others went down;
Naylor was in the lead; Lake-who was not interviewed
-was a few feet behind him; and Carter and Cheney were
next. (Wright and Rukab came down a bit later, after their
interview was finished.)
The time at which these various individuals went to their
work places from the conference room can be gauged in
secretary-treasurer of Local 97 But there is no contention , or evidence, that
agents of Respondent were aware of these facts , indeed , I find that
Respondent ' s first knowledge of any union activities in the plant on
anyone's part came when it received Local 97's letter on September 2
Nor does the General Counsel point, as a contributing factor to the
discharge, to Carter's comment (earlier noted) on the occasion of Miller's
September 4 speech
THE MILLER PRESS
terms of the credited testimony of Carter that he went
downstairs between 2 and 2:15 p.m.
Shortly after Naylor got downstairs, he was called into
the proofroom by Mrs. Naylor, who had a work problem;
and he spent a period of time there. (Carter, at the hearing,
testified that, after they went downstairs, Naylor "avoided"
him for a number of hours. I find that, although Naylor did
not speak to Carter until he summoned him to the office,
there is no warrant for any finding that Naylor "avoided"
him.) At 4:20 p.m., as earlier found, Naylor came to Carter
and took him to the office to be discharged.
Naylor denied that, between his return from the
psychologist's survey and the discharge, he told any
member of management about what Carter had said in the
conference room; he testified further that he had no
opportunity to do so. I find, in fact, that he did have the
opportunity-after all, he would not have summoned
Carter to the office if he had not been in communication
with those who were about to discharge him-but I deem it
unnecessary at this time to determine if Naylor told
management of the conversation during the several hours
preceding the discharge. The relevance of a finding in this
respect depends, in large measure, upon the facts surround-
ing the reason assigned by Respondent for the discharge
-the desire to give Ruben Hacker his old job back.
I now address myself to this issue.
As noted earlier, Carter had been hired as the replace-
ment for Hacker, who had not been expected to return to
his old job.
Just after the turn of the year, following 3 weeks in the
hospital, Hacker had gone home to recuperate. At first, he
was confined to his bed and, then, for some time, his
movement was severely limited . He was-and, at the time
of the instant hearing, has continued to be-under a
doctor's care and undergoing weekly treatment.
While he was in the hospital, and later when he was at
home, Hacker had been visited by Earl and Margaret
Naylor a number of times. Early in June, he made the first
of a series of telephone calls to the Naylors' home, and he
made approximately three more calls during that month.
On each such occasion, the message he conveyed was that
he needed and wanted work; he would become emotional
and his voice would break. Naylor's wife was the main
recipient of Hacker's pleas, either because she answered or
because her husband, unable to "take" a man 's crying,
turned the call over to her.
I find that , in this series of contacts, Hacker's requests
for employment were unaccompanied by the words "full
time" or "part time"; 34 but, although it was not specified, I
find that Hacker was requesting, and that Naylor under-
stood him to be requesting, part-time work.
34 This finding is contrary to the testimony of Hacker , who said he was
asking for part-time work, and of Margaret Naylor, who said he was asking
for fu//- time work Naylor testified that it was his understanding that Hacker
was seeking part-time work
31 Also, on one or more occasions , Margaret Naylor took it upon herself
to plead on Hacker's behalf with Andrus and with Miller
36 In addition to his supervisory duties, Naylor acted as a compositor.
37 Naylor testified that he cleared this with Andrus and Miller, Miller
testified that he had no knowledge of the matter until he heard that Hacker
was at work in place of the vacationing Naylor A resolution of the
discrepancy is unnecessary to the disposition of this case
38 Hacker testified that he also substituted for Carter, and Carter
585
Late in June, Naylor told Andrus about Hacker's
situation, but it was agreed between them that they had no
way of knowing whether Hacker was physically capable of
working. Subsequently-during the first or second week in
July-Naylor and Andrus put the matter to Miller; there,
in effect, Naylor was suggesting that consideration be
given to Hacker's pleas for work. Again, the discussions
centered around Hacker's physical condition; doubt was
expressed about his ability to "pull his weight"; and no
decision was made at the time 35
During the early part of July, Hacker visited the plant
and spoke to Naylor. He reiterated that he wanted work
and, when he found out that Naylor was taking his
vacation at the end of the month, asked whether he could
fill in.36 Naylor-believing this would be a good test as to
Hacker's physical abilities-said that he saw no reason
why this could not be done; and he told Hacker to report
on July 30.37 Hacker did so,,an4 he worked 8 hours each
on July 30 and 31, 8.54 hours on Monday, August 3, and 8
hours each on August 4, 5, 6, and 7.
Next, Hacker filled in for Ed Cheney, also a compositor,
while the latter was on vacation.38 He worked 14 overtime
hours during the weekend of August 15 and 16, and he
worked 8 hours each from Monday, August 17, through
Friday, August 21.
By this time, Naylor, convinced that Hacker could
perform his old job, recommended to Andrus that he be
recalled. Meanwhile, scheduled to take a second, short
vacation, he asked Hacker once again to take his place.
Thereupon, Hacker worked on Thursday, Friday, and
Monday, August 27, 28, and 31; on each of these days, he
put in 8 hours.
By the time Naylor returned from this vacation, Miller
and Andrus had discussed what to do about Hacker. Now
concluding that he was physically able, they agreed
between them, in accordance with Naylor's recommenda-
tion, that Hacker should be recalled to his old job. While
details were not discussed-Miller was willing to leave the
implementation of the decision to Andrus-it was tacitly
understood that Hacker's return would mean that his
replacement, Carter, would have to be let go. When Naylor
returned on September 1, Andrus informed him of the
decision and told him to notify Hacker. On the same day,
Naylor telephoned Hacker and told him to report back to
work on September 7.39 The plan also called for the
discharge of Carter on Friday, September 4.
As recited earlier, Local 97's written request for
recognition as bargaining representative for Respondent's
employees was received on September 2. This brought
about a change; with respect to the contemplated Hack-
er/Carter personnel action; members of management were in
testified that , while he had no personal knowledge , he understood that this
was true (Carter was on an unpaid vacation during the 2 weeks ending July
31.) But the Company' s records indicate, and I find, that he did not fill in
for Carter
39 Naylor so testified In effect, Hacker denied receiving this request,
although he conceded that, on at least one occasion while he had been
substituting for vacationers, Naylor had offered him full-time work and he
had temporized because-as he told Naylor-on one day he would feel well
and on another he could not get out of bed Because Hacker was a confused
and confusing witness with little memory for details , I credit Naylor's
testimony in this respect
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt as to whether the change could now be effectuated.
On or about Thursday, September 3, Andrus instructed
Naylor to take no further steps at this time to make the
change, pending the receipt of advice from counsel.
With respect to this item, counsel subsequently advised
Respondent to do what would have been done as if no
union were in the picture. However, because the advice
came so late in the week and because Respondent's
management was concerned with so many other details
involving the union-see, for example, an account of their
activities during that week, appearing under "Chronology
of Events", supra-the plan to recall Hacker, for the time
being, remained in suspension. And when Hacker came for
his paycheck on Friday evening, September 4-he had
worked one day of that pay period-he was told, without
explanation, that the date of his return was being
postponed for a week.40
On or about Tuesday, September 8, Andrus informed
Naylor that Carter's employment should be terminated on
Friday, September 11„ and that Hacker should come in to
work on Monday, September 14. Naylor attempted to
reach Hacker by telephone during the week but was
unsuccessful; on Friday morning, he left a message with
Mrs. Hacker, a message which was ignored.41 Therefore,
after work on the same day-Carter having been dis-
charged that afternoon-Naylor stopped at Hacker's house
but found no one at home.42 Later that same evening, this
time accompanied by Mrs. Naylor, he again went to
Hacker's home This time, he was "banging at the door"
and she was "yelling." Once again, Hacker did not
respond, and they left.43
Next day, Saturday, September 12, attempts to reach
Hacker by telephone were again unsuccessful.44 Likewise,
a 4 p.m. visit to Hacker's home on Sunday, September 13,
was fruitless. But finally, at 9 or 9:30 p.m. that same night,
when they made their second visit of the day there, the
Naylors were invited in by Hacker.45 They-Mrs. Naylor
did almost all of the talking, Earl Naylor merely nodding
occasionally-reraised the matter of Hacker's return to
work. Hacker said that he thought the employees were on
strike, but he was quickly disabused of this notion.
Thereupon, his attitude changed and he expressed a
willingness-nay, an eagerness-to report on the following
morning. He did say that it would be necessary for him to
report to a doctor for a shot every Thursday afternoon, a
shot which sometimes brought about after effects; and he
did refer to the fact that there might be occasions when he
would be physically unable to report for work or to finish
out the day. He was assured that he could have Thursday
40 Based upon Naylor's credited testimony
41 Hacker , aware that there had been union activities among Respon-
dent's employees the last time he worked there-August 27, 28, and
31-made the assumption (according to his testimony) that the employees
were now on strike and that the company wanted him to come back and
cross a picket line to work Therefore, he was determined to thwart any
attempt by Naylor to reach him, he not only ignored the phone message of
Friday morning-he also refused to answer other telephone calls coming in
that day
42 Actually, Hacker was at home Having decided that he did not want to
go back to work at this time-see last prior footnote-he did not answer the
knocking (he called it "banging") on the door He testified that he knew
who the caller was but that he stayed in a back bedroom until Naylor went
afternoons off and that other absences due to physical
problems would not be held against him.
By now, I find, Earl Naylor was aware that, whether it be
called "full-time" or "part-time" work, the job which was
to be filled by Hacker would not cover full work weeks.
Nonetheless, I find further, he entertained an honest belief
that Hacker, replacing Carter, could perform all work
which would be available for him.46
Hacker did report for work at the plant-except as a
substitute for vacationing employees, this was the first time
since December 1969-on the morning of Monday,
September 14.
On the above facts, I am persuaded that Carter's
statement made to Dr. Larsen at or about 1:45 p.m. on
September 11,-even if Naylor informed his superiors of
the incident within the next several hours-played no part
in Carter's discharge later that afternoon. On the contrary,
I am convinced, and I conclude, that he was let go because,
and only because, Respondent had decided to reinstate the
individual who had been replaced by him 7 months earlier.
Not only was the decision (to substitute Hacker for Carter)
made almost 2 weeks before Carter made the statement in
question; objective steps designed to implement the
decision-in the form of numerous actual or attempted
contacts with Hacker-also preceded the making of the
statement. The General Counsel has not made out a case
of discharge "because [Carter]joined or assisted [Local 97]
or engaged in other concerted activities for the purpose of
collective bargaining or mutual aid or protection."
D. The Failure/Refusal Subsequently to Recall
Carter
The General Counsel-if I understand him correctly
-contends that, even if the discharge of Carter on
September I I was not violative of the Act, Respondent's
failure thereafter to recall him constituted an independent
violation. The argument is three-pronged: (1) at the time
Respondent became aware that Hacker, his replacement,
did not want full-time work, (2) at the time Hacker totally
terminated his employment with Respondent, or (3) at the
time the position vacated by Hacker was filled by yet
another compositor-at any or all of these times, the
failure to recall Carter was motivated by the knowledge
that Carter had been and was active on behalf of the
Union.
Respondent denies that his union activities had anything
to do with its not recalling Carter. On the contrary, it
attributes this to other reasons which are noted at
appropriate places herein-below.
Any analysis of the issue must commence with a
away
43 This finding is based on Hacker's credited testimony Neither Earl nor
Margaret Naylor mentioned this second visit in their testimony
44 Hacker testified that the phone calls came in "on the hour", but that
he turned down the bell and did not answer Mrs Naylor testified that Mrs
Hacker did answer one of the calls to say that Hacker was out of town Earl
Naylor testified that he did not believe he tried to call Hacker on Saturday
45 Hacker testified that , after avoiding all prior contacts , he finally
decided that the annoyances would undoubtedly continue and that,
therefore, he might as well get the matter over with
46 The availability of sufficient work to justify employing someone for
the opening , whether he be Hacker, Carter, or anyone else, is discussed in
the next subsection hereof
THE MILLER PRESS
reiteration of the finding that Respondent was hostile to
the unionization of its employees. On the other hand, no
discussion of the failure to recall Carter would be complete
without a notation that (as previously found) Local 97 won
the representation election held on October 22; and, in the
absence of any contention or evidence to the contrary, I
must presume, and I find, that Respondent thereafter
adhered to the bargaining obligations required by the
Act.47
Respondent makes no claim that, subsequent to his
discharge on September 11, it was unaware of the union
sympathies entertained by Carter. Indeed, I find that,
whether or not, prior to the discharge of September 11,
Naylor had transmitted to upper management information
about the statement Carter had uttered in his presence
dunng the employee attitude survey, he did, at any rate,
pass it on subsequent to the discharge, 48 also, at the
conclusion of his exit interview on September 11, Carter,
protesting the reason assigned for the discharge, had
announced, in management's presence, that he would let
the Union handle the matter from then on; and, 7 days
later, Respondent received word from the Board Regional
Office that Local 97 had filed the instant unfair labor
practice charge claiming that Carter had been discharged
because of his interest in the Union. I find that, at all times
subsequent to his discharge, Respondent was aware of
Carter's sympathies with respect to Local 97.
Hacker's second term of employment with Respondent
proved to be less than full-time and, overall, of short
duration.
On Monday, September 14, the first day he reported for
work, there was insufficient work to keep him busy He
called this to the attention of Naylor, who said he should
"hang around until 4:30." He did, and his timecard shows
8 hours worked that day. Thereafter, company records
based upon his timecards show that, although he worked
dunng each of 3 weeks, he worked full-time-i.e., 8
hours-only 5 out of the 15 days involved and he did not
work at all on 3 of them.
During his first day back, he was told, by at least two
employees, that the Company was "using" him merely to
justify Carter's discharge; they said, in effect, that Carter
had been fired for his union activities and that Respondent
was utilizing Hacker's recall as a cover for the real reason.
This disturbed Hacker and, that night, he telephoned
Miller. He related what he had heard and said that he
resented his being thus used; the record contains no
testimony as to Miller's response, but, in the context of the
remainder of the conversation. I find that Miller denied
that Hacker had been called back for the' purpose
indicated. Among other things, Hacker mentioned that he
had never asked for his old job back on a full-time basis,
and Miller said that he had been unaware of this-that he
was under the impression that Hacker had indeed been
seeking to come back to his job under its former
conditions. Toward the close of the conversation, Hacker
asked Miller not to tell anyone about this phone call and
47 Among other things, the record contains evidence upon which I find
that Respondent, after the victory of Local 97, kept that organization
informed of changes in personnel
48 1 do not believe that a foreman would have failed to reveal such
information to his superiors, if only to round out the picture of the
587
not to speak to him at the plant. The two spoke for about
30 minutes; and the only significant result was that (I here
find) Miller was now fully aware that Hacker did not
desire full-time work.
Nonetheless, Hacker reported for work the next day
-and put in 4 hours. During the week-his time records
show-he put in 8, 4, 4, 3, and 8 hours respectively.
On Monday, September 21, he took part of the afternoon
off to visit his social security office. When he came back to
the plant, he was visibly upset. Next morning, Naylor
asked him why. Hacker said that he had learned that the
social security payments he was then receiving could be
jeopardized by his earning more than a certain amount; 49
consequently, he continued, he did not desire to work more
than part-time. In addition, he went on, he was incapable
of putting in a full day's work because of the pressures
resulting from the fact that his fellow-employees were
"ostracizing" him and "giving him a hard time"; and, as a
third factor, he cited the state of his health. It does not
appear that, at this time, Naylor gave Hacker formal
permission to work less than full-time, but the fact remains
that, as of this date at least, Naylor was aware that Hacker
wanted only part-time work. Thereafter, Hacker would
clock out during any periods when work was not actually
available for him, even though he was at the plant ready to
work; the record shows that, during the 5 days from
September 21 through 25 inclusive, he worked 4.90, 6.62,
7.06, 3, and 8 hours respectively.
During the week beginning Monday, September 28,
Hacker did not show up at all the first 2 days, he worked 8
hours on Wednesday, the 30th; he did not report on
Thursday; and on Friday, according to his time records, he
worked 8 hours. On this Fnday-October 2-he became
involved in an argument with fellow compositor Ed
Cheney over the responsibility for a particular work task.
The quarrel was brought before Naylor, who took the two
of them to Ed Minnick. In the course of the discussion,
Minnick said that, if Hacker didn't want to do a good want
to do a good job, [he] might as well go home," upon which
Hacker did leave the plant
Later the same day-having cleared with his superior,
Minnick-Naylor sent word to Hacker that he should feel
free thereafter to work 4 hours a day, 4 days a week.
Hacker did not report for work on Monday, October 5.
Miller, having been informed of the altercation of October
2, called him and was told that, because of personal
reasons, Hacker would not be able to return to work until
Monday, October 12. But he did not return on either
September 12, 13, or 14, and on the latter date, Miller sent
him a letter. Reviewing past events, the letter concluded
with:
As of this date, we are putting you on part-time status.
Even on this basis we do not feel it is really satisfactory
to us because it is impossible for us to get in touch with
you. We do not know the reason for this, but feel that
we are due an explanation.
It is not our intention to handle this in a harsh manner,
discharged person for the personnel file which would be retained by the
company Moreover, I note particularly that Miller, in his testimony, said
that he received no such information from Naylor on September 11
49 Hacker's understanding was that he was limited to $140 earned each
month
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but only to make a definite status so that we at least
know how to plan our work. Fortunately we have not
really needed your services in the past 8 working days
because our composition is low on work. Please let us
hear from you at your earliest convenience.
On September 15, Hacker called Miller. First, he expressed
disagreement with a number of items contained in the
letter's recitation of past history.50 Then he said that, at
this time, he wanted to terminate his employment with
Respondent permanently. Next day, Miller informed
supervision of Hacker's resignation; thereafter, Hacker was
no longer considered an employee of Miller Press.-51
Thereafter, the job went unfilled for approximately 2
months. On Sunday, December 13, Respondent placed a
help-wanted ad in a local newspaper and, on December 18,
a new compositor52 was hired. Since that date, the job has
been filled at all times.
The first of the General Counsel's prongs, then, is that,
absent discriminatory motivation, Carter would and
should have been recalled in place of Hacker on or about
September 15, when Miller became fully aware that
Hacker had not requested and did not want full-time work,
or at least on or about September 22, after Naylor became
fully aware of the same thing.
Perhaps it is relevant here to note-a fact which, in
reliance on Miller's own testimony, I find to be true-that,
had Respondent been aware that Hacker did not want full-
time work, he would not have been recalled in September;
and, consequently, that Carter's employment would not
have been terminated
At any rate, the General Counsel urges (as his second
prong) that Respondent, again absent discriminatory
motivation, would and should have recalled Carter on or
about October 15, after Hacker permanently severed his
employment relationship.
Respondent's defense to this double attack by the
General Counsel is that the available work did not justify
hiring anyone-Carter or anyone else-as a replacement
for Hacker. Miller and Naylor so testified,53 and, as I have
found, Hacker's job did remain unfilled for at least 2
months.
This record contains abundant evidence on the question
of whether, during this period, there was enough work to
warrant the hiring of a compositor in addition to Cheney
and-to the extent he did compositor work-Naylor.
Carter credibly testified that, throughout his 7 months of
employment with Respondent, there never had been full-
so He disputed that the Company had maintained his medical and life
insurance benefits at all times since he became ill, and he also denied that he
had ever requested his job back on a full-time basis
51 After the hearing closed, along with its brief herein, Respondent
submitted a photocopy of an excerpt from "Age Law Administrator's
Interpretations," dealing with the legality of an employer's failure to employ
an individual who places a limitation on his working hours so that his social
security benefits will not be affected The General Counsel objects to the
introduction and use of this material because it was never properly
identified or introduced and because its contents have no relevance to the
issues herein The objection is sustained on both grounds, the material in
question is not admitted into the record, and I place no reliance on it in
arriving at my conclusions herein
51 One Robert Lee Warren, originally classified as a trainee Approxi-
mately I month later , Warren was replaced by one Mays
53 Naylor further testified that he also had in mind that Carter had a
criminal record, a fact about which (he said) he had learned a month before
time work for him; that, on many occasions, he worked no
more than 4 or 5 hours a day even though he was present
and was paid for a full day; and that, during August and
early September 1970, work for compositors was at a low
ebb. Also, Naylor credibly testified that, in his earlier
contacts with Hacker-during the period when Hacker was
pleading for work-he told Hacker that men were standing
around without enough to do. And, finally, there was
testimony, which I credit, that it was not normal company
practice for Respondent to cut hours or to effect layoffs
when work was slack.54
Respondent explains the practice last described as being
due to the peculiarities inherent in its business: there are
extended slack periods during the workday and workweek,
punctuated by rush jobs calling for overtime hours at day's
end or over a weekend; thus, there is a necessity to have
employees on hand, even though they may be being paid
for "down time."
From the foregoing, the General Counsel seems to
reason and to argue that-even though Hacker had been
putting in less-than-full hours, Respondent, following its
past practices, would have replaced him when he left, and
would have replaced him with a "full-time" employee-
specifically, with Carter.55
The defect in the General Counsel's argument lies in the
fact that he is equating the retention of an incumbent of a
job with the hire (or the recall) of someone to fill a vacancy
which may occur in that job. On the basis of the evidence
in this record, I find that, although it would not lay off an
individual when his work was slack, it would and did
exercise its business judgment to delay calling in a
replacement in the event that that individual's employment
relationship was terminated for any reason. It is not for me
to question an employer 's exercise of such business
judgment unless the surrounding facts demonstrate that
the action is motivated by factors other than the asserted
business judgment. I find and conclude that Respondent's
failure to recall Carter (or to hire anyone else), either when
Hacker turned out to be a less-than-full-time employee or
when he quit his employment with Respondent, was for the
reason assigned by Respondent; at any rate, it was not
bottomed upon Carter's concerted activities.
Finally, the General Counsel argues that Carter should
have been recalled on or about December 13, when
Respondent finally advertised for a replacement for
Hacker or, at the latest, on December 18, when a
replacement-other than Carter-was hired.
Carter wasodischarged But, because Respondent does not rely on this factor
as a reason for failing to recall Carter at this time, I here treat solely with the
claim that the current workload did not justify Hacker's replacement by
anyone
54 The record shows two possible exceptions in the past 30 years
Approximately 10 years ago, there may have been a period of 2 or 3 weeks
when the plant operated a 6 instead of an 8-hour day, and, in February
1971, three men-none of whom was a compositor-were laid off during a
"very severe recession " in the Jacksonville printing industry
55 Implicit in the argument is the thesis that Respondent was well aware
that Carter was seeking the Job, that he was well qualified therefor, and that
any reasonable employer would have recalled him rather than seek someone
else Respondent does not dispute the thesis except insofar as it has
advanced reasons (at this time , lack of available work, later, Carter 's prison
record-see infra) why it chose not to recall Carter I find that Respondent,
at all times relevant , knew that Carter was seeking and was available for
employment in his former Job
THE MILLER PRESS 589
Respondent defends on the asserted ground that (1) it
had now learned that Carter had a prison record, and (2) it
had a policy against employing anyone with a prison
record.
Carter does have an "impressive" prison record. On the
basis of a stipulation of the parties following extensive
testimony, I find that he has been convicted of four,
felonies and, in addition, has been convicted of a crime
which, because the sentence was less than a year and a day,
Carter "has been informed" was a misdemeanor rather
than a felony; and that, for the five convictions, he was
sentenced to serve a total time of approximately 30 years
and did serve approximately 15 years.56 He was first
arrested in 1938, and his final release from jail took place
on July 11, 1965; since the latter date, insofar as is revealed
by the evidence herein, he has not been involved in any
criminal proceedings.
Miller testified that, not long after Carter's discharge
-he placed the date as some time between September 20
and October 24, and probably before the representation
election of October 22-he was informed that he was
playing with a dangerous situation and that he had better
be careful; that Carter had a long pnson record; and that
Carter had been spreading the word that he was going to
get even with Respondent-first, he was going to get his
job back, then, a week later he would quit, and, finally,
some months later, through "friends," he would burn down
the plant. (Miller refused to reveal the source of his
information because, he said, he had committed himself
not to reveal it. Miller's testimony in this respect, counsel
for Respondent asserted, was being offered solely with
respect to the receipt of information as to Carter's criminal
record.57) This was the first time-Miller's testimony
continued-that he was aware of Carter's record.
Miller further testified that Respondent has a policy
against the hiring of employees with a criminal record and
that he knew of no instance of deviation from this policy;
asked whether the policy was communicated to supervi-
sion,58 he stated that he thought-correcting himself: he
was sure-that there had been "informal" communication
but that the occasions on which the policy comes into play
are so infrequent that it is not something normally raised at
supervisory meetings-in fact, he did not believe it had
been alluded to during any such meetings during the year
preceding his giving this testimony. But, as an indication of
the existence of the policy, he told of an incident occurring
approximately 6 months before-i.e., in early November
1970-the only such incident he could remember as having
occurred "within recent times": an instructor at the State
prison at Raiford, Florida, had called him with a request
that Respondent take on a man being given his freedom;
Miller had asked why the man had been incarcerated and
had been told the charge was murder; whereupon Miller
had rejected the request.
Naylor testified that, when he hired Carter back in
February 1970, he knew of the existence of the policy.
Testifying further, he said that, although he was made
aware at that time of Carter's having a criminal record of
some kind-details appear infra-he deviated from the
policy only because he thought Carter's problem was
"something minor ... local and a first offense; and you
couldn't hold that against him."
The General Counsel takes the position that Respondent
was well aware of the fact that Carter had a criminal
record long before the time indicated; that such awareness
did not block his being hired on February 9 and played no
part in his being discharged on September 11; and,
therefore, that it was now being used as a pretext to justify
Respondent's failure to recall Carter when no other
(lawful) reason existed.
I have earlier alluded to the circumstances surrounding
Carter's original hire. As noted there, he was interviewed
by Earl Naylor and was given a job application form to
complete. It now becomes necessary to give further details
of the incident.
When Carter was given the application form, he filled in
the blank spaces until, toward the bottom of the first of its
three pages, he came upon the question "Were you ever
arrested? If yes, describe in full." At this point, he started
to hand the form back to Naylor, saying that he would be
wasting his and Naylor's time filling out the application
because he had a prison record and he knew that most
employers would not hire exconvicts; moreover, he said,
the application contained only three lines for information
about arrests, whereas he couldn 't give all the details in
three pages, much less three lines. Naylor told him
nevertheless to continue to fill out the application, and he
did. (He wrote in "Yes" to the question "Were you ever
arrested?" and he left blank the space provided for details.)
Among other things, he inserted details concerning his
prior employment as a compositor, beginning in January
1966.59
56 The crimes in question involved violations of both Federal and state
laws, they consisted of auto theft, possession and sale of marijuana,
possession of heroin, safecracking with high explosives, and safe burglary
In addition, during the involved period, Carter was convicted of one or
more other offenses, all misdemeanors, but this record does not contain
details thereof
51 On the basis of this assertion , the Trial Examiner stated at the hearing
that he would make no findings as to the "threat" with which the alleged
phone call was also involved (in its brief , Respondent does not rely on the
"threat" as ajustification for any of its actions )
58 It was not communicated to the rank-and-file employees
59 My findings as to the exchange concerning Carter's arrest record are
based upon Carter's credited testimony I do not credit Naylor, who
testified that, when Carter got to the question on the application blank
about arrests, he said, "Well, I'm not gonna fill this out I got into a little
trouble and through it all I lost my wife", that Carter had said nothing
about needing three pages to give details about his arrests , and that he
(Naylor) had not explored the matter further because he "took it as
something minor"
In a pretrial affidavit given to a Board agent on October 14, Naylor, in
speaking of the hiring interview , said "Carter told me that he had a criminal
record I didn't inquire into his criminal record and he didn't tell me
what it was" At the hearing, he explained that, in using the term "criminal
record" in the affidavit, he was using the phrase in a "broad" sense, not an
"actual" sense "The word 'cnmmal ' used in the affidavit was the wrong
word to use " I find the explanation unconvincing . (It should also be noted
that, in his testimony, Naylor said that Carter's criminal record was once
again reported to him a month before Carter was discharged-i e, in
August-a report he passed on to his superior, yet, he made no mention of
this in his pretrial affidavit.)
In assessing Carter's credibility, I do not hold his prison record against
him He testified directly and to the point , even where his answers might
have been cohstrued to be against his best interests "It was evident that,
having paid his debt to society, he hoped to live down the past and become
(Continued)
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He turned the filled-out application over to Naylor, who
told him to call back at 1 or 2 p.m. for a decision.
The morning passed, during which no other individual
applied for the job. Naylor told a superior-otherwise
unidentified in this record-about Carter's application; in
so doing (I find) he passed on all information which had
come to his attention in the course of the fob interview.60
The superior told Naylor to go ahead and hire Carter if he
wanted to.
Carter called back at 1 or 1:30 p.m. Naylor told him that
he had the job. But, before consummating the deal, Carter
asked permission to come in and see Naylor.
When Carter arrived at the shop, he handed Naylor a
business card advertising his own printing service. He
explained he had a small shop of his own, more or less a
moonlight operation, and that he did not want to take this
job without Naylor's knowing about it. Once again, Naylor
told Carter to call back for a decision 6i
I find that, during the next hour, Naylor informed his
superior of the new development. It was decided that, as
long as Carter, in his private business operations, did not
use Respondent's stock or material, this would be no bar to
his being hired.
When Carter called back, he was given the new decision,
with the caveat about using company materials. Naylor
asked if Carter could report for work in the morning and
he received an affirmative answer. Next day, as earlier
indicated, Carter did begin working for Respondent.
Thus, I find that, as early as February 9, agents of
Respondent-at least Foreman Naylor and one of his
superiors-were aware that Carter had a criminal record;
although they were not aware of details, they had been put
on notice that the details might require' as many as three
pages to recount. Yet, Carter was hired.
Carter worked for Respondent approximately 7 months.
About I month before his discharge, the attention of
Naylor (according to his testimony) was once again called
to Carter's prison record; he heard a "rumor" about it, a
rumor resulting from some of Carter's "bragging" in the
shop. (According to counsel for Respondent, this was the
first that Naylor heard about Carter's "real criminal
record.") Naylor advised Plant Manager Andrus of the
rumor, and the latter took the information "under
advisement." Meanwhile, Carter worked on, until he was
discharged for reasons in which his criminal record played
no part.
Now-i.e., late in September or in October-Miller
assertedly learned of Carter's criminal record for the first
an accepted member of that society So far as the evidence showed, he had
worked diligently and was re-establishing himself " (Calera Mining Co, 97
NLRB 950, fn 4 of the Trial Examiner's Decision at p 962, adopted by the
Board in its fn 8.)
65 Someone-and Naylor testified that it was not he-inserted in a part
of the job application blank reserved " for interviewers use" the comment,
"This man was a union member said he had pulled out of the union "
(During the interview, Carter had told Naylor that he formerly belonged to
the ITU )
6i Again, -this finding is based on Carter's credited testimony Naylor
testified that Carter had mentioned his own printing business during the
morning interview, but I find the details given in Carter's version to be the
more convincing
62 This should not be taken to mean that full details were known from
the beginning As found earlier, only the fact that details would fill three
pages was known at that time , eventually-perhaps in the course of
time. The testimony in support of this assertion is
something less than fully probative in view of Miller's
refusal to name the source of his information (in a situation
wherein there is no legal privilege), thereby eliminating the
possibilities of corroboration or of crosscheck by the
adverse parties herein. But assuming, without finding, that
Miller did receive information at or about this time from
an unidentified source, it does not necessarily follow that
he was hearing of the matter for the first time.
At any rate, it is clear, and I find, that responsible agents
of Respondent were aware of Carter's criminal past from
the time he was hired 62 Yet, he was hired. And, 6 months
later, they became aware of what they considered to be his
"real" criminal record.
In addition, it should be noted that neither Miller,
Naylor, nor any other witness gave any details of the policy
concerning the hiring of exconvicts, such as whether the
term "criminal record" includes arrests as well as convic-
tions, whether any distinctions are made as between types
of criminal offenses,63 and what significance, if any, is
given to the passage of time since the last offense.
And, finally, I have given full weight to Miller's
testimony that, in November 1970, he rejected a prison
official's request that he employ a person-occupation
unknown-just being released from prison after having
served time on a murder charge.
Upon a careful consideration of all these facts, I find
that Respondent did not have a policy against hiring
persons with a criminal record; 64 and that its failure to
recall Carter on or about December 13, 1970, was not
based upon his criminal record.
I have earlier found65 that Respondent, at this time,
knew that Carter was seeking and was available for his
former job. Moreover, I find, on the available evidence,
that, at all relevant times, compositors were in short supply
that Carter was the only applicant in response to the
advertisement of February 9; that Respondent normally
retained compositors even when work was not available for
them; 66 and, that having advertised for a compositor on
December 13, Respondent hired a compositor-trainee on
December 18.
Persuaded by what I consider to be a preponderance of
the evidence, I find and conclude that Carter was not
recalled because of his sympathies with and activities on
behalf of Local 97; and that Respondent, in failing to
recall Carter on or about December 13, 1970, thereby
discriminated in regard to tenure of employment to
discourage membership in a labor organization and,
preparing for the instant hearing-the full extent of the record was
uncovered
63 For example, by what authority did Naylor deviate from the asserted
policy in hiring Carter because he considered the matter "minor" and what
is "minor""
64 Except to the extent that, even absent a firm policy, I assume and
would expect that any reasonable employer would consider the possession
by a job applicant of a criminal record to be a "minus" in arriving at its
hiring decision , such details as the nature of the record, the passage of time
since the last offense , and the availability of other applicants would be given
full consideration . For example, I find that, on February 9, 1970. had any
other applicants answered the want ad, Carter's record would have weighed
against him
65 See fn 55, supra
66 Significantly , Carter himself had been hired at a time when , according
to Miller, Respondent was in a slack period
THE MILLER PRESS
consequently, interfered with, restrained , and coerced
employees in the exercise of self-organizational rights
guaranteed them by the Act.
Upon the foregoing factual findings and conclusions, I
come to the following-
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 97 is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to hire and tenure of
employment by failing to recall Jarrell Lee Carter, Sr., on
or about December 13, 1970, because of his sympathies
with and activities on behalf of Local 97, thereby
discouraging membership in a labor organization , Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a)(3) of the Act.
4. By the foregoing conduct, and by causing employees
to be interrogated as to the sources of dissatisfaction which
may have motivated them to seek representation by a labor
organization , in a manner and under circumstances
tending to assure them of amelioration without such
representation-by all this, Respondent interfered with,
restrained , and coerced employees in the exercise of rights
guaranteed them in Section 7 of the Act, in violation of
Section 8 (a)(1) thereof.
5. The aforesaid acts are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
6. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act
The Remedy
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Without admitting any violations of the Act, Respondent
67 At the hearing , Respondent sought to introduce testimony which
might tend to show that , at any rate , Carter or one of his successors might
have been laid off at one point or another I ruled that any such evidence
was appropriate , if at all , to a compliance proceeding rather than this one
591
argues that , even if there be a violation of the Act which
otherwise requires reinstatement of Carter, reinstatement
should not be ordered, as being "against public policy," in
view of Carter's criminal record . I have already found that
he was hired by Respondent, and was retained thereafter,
despite knowledge as to his criminal record and (I here
find) his employment for a 7-month period was unmarked
by any stigma arising out of dishonesty or other conduct
related to the offenses for which he had been convicted. I
also find that Carter has paid his debts to society and has
been involved in no criminal conduct for more than 6 years
and that he has worked as a compositor , for one or another
employer, at various times since January 1966 without any
allegation or evidence of dishonesty or other conduct
related to the offenses for which he had been convicted. I
shall recommend the Board 's normal remedy in this
respect.
I shall recommend that Respondent offer Jarrell Lee
Carter, Sr. full and immediate reinstatement to his former
position or, if that position no longer exists, to a
substantially equivalent position , without prejudice to his
seniority or other rights and privileges , and make him
whole for any loss of earnings suffered by him because of
Respondent 's acts, by the payment to him of a sum of
money equal to the amount he would have earned from
December 13, 1970, to the date of Respondent's offer of
reinstatement, less his net earnings during said penod.67
Backpay shall be computed on a quarterly basis with
interest at the rate of 6 percent per annum in the manner
heretofore established by the Board.
Since the unfair labor practices committed by Respon-
dent are of a character striking at the roots of employees'
rights safeguarded by the Act, I shall recommend that
Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
hereby recommend that the Board issue the following:
[Recommended Order omitted from publication.]
Therefore, nothing herein should be construed as barring Respondent from
introducing such evidence ( if otherwise admissible ) in any compliance
proceeding herein