Urban Research Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1971

195 N.L.R.B. 147 (N.L.R.B. 1971)

URBAN RESEARCH CORPORATION 147
Urban Research Corporation and Heather Booth
Urban Research Corporation and Lorraine E.
McCloud . Cases 13-CA-10333 and 13-CA-10364
January 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On September 8, 1972, Trial Examiner Sidney S.
Asher issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Respondent
filed exceptions, supporting briefs, and answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Urban Re-
search Corporation, Chicago, Illinois, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations of
the Act not found herein.
I In agreement with the Trial Examiner, we find that although McCloud
did join other employees in a strike still in progress, Naisbitt had not dis-
charged her for doing so, as he had the others, merely allowing her to
advance her scheduled layoff date by some 3 days In these circumstances,
we find it unnecessary to consider whether the last paycheck sent to
McCloud after the walkout contained any language "smacking of finality"
and, accordingly, deny the General Counsel's motion to reopen the record
for the purpose of receiving such evidence
TRIAL EXAMINER'S DECISION
SYDNEY S. ASHER, Trial Examiner: On January 19, 1971,
Heather Booth, an individual, filed charges in Case 13-CA-
10333 against Urban Research Corporation, Chicago, Il-
linois, herein called the Respondent. On January 29, 1971,
Booth filed amended charges against the Respondent. On
February 5, 1971, Lorraine E. McCloud, an individual, filed
charges in Case 13-CA-10364 against the Respondent. On
April 12, 1971, the General Counsel of the National Labor
Relations Board, through the Regional Director, con-
solidated the two cases and issued a consolidated complaint.
The consolidated complaint alleges that on or about February
195 NLRB No. 30
2, 1971, the Respondent threatened its employees with repris-
als if they engaged in concerted activties; that on or about
January 19, 1971, the Respondent terminated its employee,
Heather Booth, because of her concerted activities in joining
and assisting Research for the People, a labor organization,
herein called the Union, and for presenting grievances to the
Respondent; that on or about February 2, 1971, the Respond-
ent terminated its employees Lorraine E. McCloud, Robert
Tredray, John Litweiler, Charles Litweiler, and Michael
Jensen because of their concerted activities in joining and
assisting the Union and for requesting the Respondent to
meet and confer on grievances. It is further alleged, in the
alternative, that the Respondent discharged Lorraine E.
McCloud on that date "because of her sympathy with her
fellow employees who were engaging in ... protected con-
certed activity in joining [and] assisting ... the Union and for
requesting [the] Respondent to meet and confer on griev-
ances." It is alleged that this conduct violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended (29
USC Sec. 151, et seq.), herein called the Act. On April 13,
1971, the General Counsel issued an amendment to the con-
solidated complaint. Thereafter the Respondent filed its an-
swer, admitting that Heather Booth had been terminated, but
denying that this had been done for the reason stated in the
complaint, and denying that it had discharged the other five
employees named in the complaint. The answer alleges
affirmatively that these five individuals "voluntarily quit their
employment." On May 11, 1971, the Regional Director is-
sued a second amendment to the consolidated complaint and
thereafter the Respondent filed its answer thereto.
Upon due notice, a consolidated hearing was held before
me on May 19, 20, and 21, 1971, at Chicago, Illinois. All
parties were represented and were afforded an opportunity to
participate fully in the hearing. After the close of the hearing,
the General Counsel and the Respondent filed briefs, which
have been carefully considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
A. Preliminary Matters
The consolidated complaint alleges, the answer admits,
and it is found, that the Respondent is, and at all material
times has been, a Delaware corporation with its principal
office and place of business in Chicago, Illinois. It is engaged
in the publishing business . During the calendar year 1970, the
Respondent shipped goods valued at more than $50,000 from
its Chicago, Illinois, facility directly to destinations outside
the State of Illinois. It is accordingly found that the Respond-
ent is, and at all material times has been, an employer en-
gaged in commerce as defined in the Act, and its operations
meet the Board's jurisdictional standards.
The complaint alleges that Research for the People is, and
at all material times has been, a labor organization within the
meaning of the Act. The answer states that the Respondent
is without knowledge concerning Research for the People and
therefore denies this allegation of the complaint. The record
shows that Research for the People is an organization which
came into existence in January 1971 and that employees of
the Respondent participate therein. On January 20, 1971, a
number of the Respondent's employees signed individual
cards reading as follows:
I the undersigned authorize Research for the People to
bargain for me with my employer on all matters con-
cerning wages , working conditions, job security and
benefits.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on January 22, 1971, Research for the People
filed with the Board a petition in Case 13-RC-12354, seeking
to represent for the purposes of collective bargaining certain
employees of the Respondent . The petition was later with-
drawn.
Section 2(5) of the Act provides:
The term "labor organization" means any organization
of any kind, or any agency or employee representation
committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of
dealing with employers concerning grievances , labor dis-
putes, wages, rates of pay, hours or employment, or
conditions of work.
The evidence previously described clearly brings Research
for the People within the above-quoted definition. Accord-
ingly, it is found that Research for the People is, and all
material times has been , a labor organization within the
meaning of the Act.
B. The Setting
The Respondent is designed to research and publish infor-
mation concerning urban economic and social developments.
Research and information services are sold to corporations,
community -funded poor people's organizations , universities,
Federal , State , and municipal government agencies , school
systems, foundations , and private social institutions . The Re-
spondent is also involved in training and education.
The Respondent publishes several newsletters: Urban Cri-
sis Monitor, a report issued twice a month on the state of the
nation 's cities, the Urban Reporter, a bimonthly newsletter on
urban affairs ; Urban Enterprise, a bimonthly newsletter on
minority economic development, Urban Employment, a bi-
monthly newsletter on minority hiring , training , and upgrad-
ing; and Spokeswoman, a monthly newsletter covering trends
in the field of women 's rights.
The Respondent maintains a comprehensive urban affairs
data bank , which is the result of screening , analyzing, and
coding information from over 1 ,000 publications , including
daily newspapers , the underground press, the black press, and
other periodicals . This information is categorized into 12
major subject areas concerning urban problems . The data
bank is produced on microfiche cards under the name News-
bank. Employees of the Respondent in the Newsbank divi-
sion are classified as screeners , pasters, or indexers . Screeners
select articles from the various newspapers and periodicals
applicable to the various categories . Pasters take the news
articles , prepared by the screeners , trim them , and mount
them on appropriate sheets, based on the subject or index
categories . Indexers catalogue the newspaper articles by a
prearranged index , and make suggestions , additions , or dele-
tions to the index . The index is a guide to the use of the
microfiche cards on which all the news articles are eventually
photographed from the pasteup sheets. The indexes and mi-
crofiche cards are sold to various institutions who subscribe
to the service. However the Respondent does not take direct
responsibility for selling or marketing Newsbank. This is
done by Arcata Microfilm Corporation, herein called Arcata,
the Respondent 's "partner in the joint venture ." It has been
customary for the Respondent to stop working on news items
from the previous month's publications on the 8th or 9th of
the month and to deliver the completed work to Arcata for
final processing on about the 15th of each month. Conse-
quently, the period between about the 8th and the 15th of
each month is a critical period for the Newsbank staff, and
the workload is "extremely heavy" during this period. The
Newsbank employees refer to it as the "crunch period."
John Naisbitt is, and all material times has been , the Re-
spondent's president and chairman of the Board. The Re-
spondent also has a number of vice presidents. The president
and vice presidents together constitute the executive commit-
tee of the Respondent. Barbara Birthwright, one of the vice-
presidents, is in charge of Newsbank.
So far as the record shows, no labor organization had
attempted to organize the Respondent's employees, nor had
the employees sought self organization , prior to the beginning
of 1971. At times here material (January and February 1971)
the Respondent employed a total of approximately 20 full-
time employees and an undisclosed number of part-time
workers.
C. Case 13-CA-10333,-
The Discharge of Heather Booth
1. Facts
Heather Booth began working for the Respondent in Sep-
tember 1970 as a part-time (20 hours per week) indexer on
the Newsbank staff. i Between the time of her hire and the end
of 1970, Booth took some work home, with Birthwright's
knowledge and approval , two or three times; and between
January 1 and 15, 1970 , Booth again took some work home,
with Birthwright 's knowledge and approval , an additional
two or three times.2
Three times between January 5 and 8, both dates inclusive,'
several Newsbank employees met at lunchtime in a cafeteria,
off the Respondent 's premises , to discuss their grievances. As
the result of these meetings the employees ' grievances were
reduced to writing and an additional page was attached to the
grievances listing the names and addresses of the employees
who subscribed including Booth.
On the morning of Monday , January 11, those Newsbank
employees whose names appeared at the end of the descri pp
-tion of grievances met in the Respondent's office with Birt h
wright . In accordance with the employees ' agreement,
Muhammad handed the document to Birthwright , who be-
gan to read it aloud . However , instead of completing this,
Birthwright pointed out that this was "crunch week" and
that they were all busy , and suggested that further discussion
be postponed until Friday . This was agreed upon, and the
meeting ended . Birthwright then took the document to Nais-
bitt who, after looking at it, asked Birthwright : "Who ini-
tiated this?" Birthwright replied either that she did not know
(Birthwright 's version) or "The Newsbank people them-
selves" (Naisbitt 's version). The document was later submit-
ted by Naisbitt to the Respondent 's executive committee,
where it was discussed , probably during late afternoon that
day, or possibly on Thursday January 14.
Booth 's activities during the first 3 days of the January
"crunch week" were as follows: She worked at the Respond-
ent's premises on Monday and Tuesday , January 11 and 12.
Although Birthwright, who hired Booth, testified that Booth was hired
to work only at the Respondent ' s office, I was not impressed with Birth-
wright's demeanor while so testifying In any event, regardless of what was
said at the time of Booth's hire , it is obvious (as will appear hereafter) that
Birthwright did, on occasion , permit Booth to do some work at home
These findings are based on Birthwright's admission on cross-examina-
tion , corroborating Booth's more general testimony that she (Booth) "would
take work home frequently ." Although Birthwright sought to soften the
impact of her admission by labelling the work which she allowed Booth to
take home as "extra work"-presumably in excess of 20 hours per week-
I do not credit this, especially in the light of Booth's credited testimony that
Birthwright , at the time of Booth's hire, had told Booth " the corporation
did not have enough money to pay me [Booth ] overtime and as I [Booth]
could not work overtime, but that I should put in 20 hours per week "
All dates hereafter refer to the year 1971, unless otherwise noted
URBAN RESEARCH CORPORATION
On Wednesday , January 13 , she took work home, with Birth-
wright 's permission.
On Thursday , January 14 , Booth telephoned to Birth-
wright and informed her that the work which she (Booth) had
taken home was completed and would be delivered to Re-
spondent 's office. Booth further stated she could not work at
the Respondent 's office that day because she had to attend a
meeting. She asked Birthwright 's permission to take work
home ; Birthwnght replied this would be "unacceptable."
Booth did not work at the Respondent 's premises that day.
On Friday , January 15, at about 10 : 30 a.m ., Booth tele-
phoned Birthwright and stated that she (Booth) was "quite
sick" and had "made an appointment at student health" and
could not come in to the Respondent 's office. She asked if she
could take work home . Birthwright refused the request, but,
pointing out that it was payday , asked Booth where her time
sheet was so she could have Booth 's check prepared. Booth
answered : "In my desk drawer ." Booth ended the conversa-
tion by saying : "I know this is crisis time . If you reconsider
you can feel free to call me ." Birthwright obtained Booth's
time sheet but was unable to understand part of it. Birth-
wright telephoned to Booth in order to have the time sheet
explained . During this conversation Birthwright said she
would stop by on Saturday to talk to Booth about something.
Booth then repeated that she was sick , but as it was crisis
time , if Birthwright wanted her to do work at home over the
weekend , she could do so. Again Birthwnght declined.
On the evening of Saturday , January 16 , while Booth was
at home , she received two telephone calls. The first was from
Susan Davis, one of the Respondent's vice presidents and a
member of the Respondent 's executive committee. Davis
related that there had been a meeting of the executive com-
mittee at which there had been "general discussion of the
Union ," and that Birthwright had stated that she found
Booth "incompatible" and could not work with Booth any-
more . Booth asked Davis: "What does that mean ?" Davis
replied that the meaning was not clear . The second telephone
call, from Birthwright, came several minutes later. Birth-
wright informed Booth that there was no indexing for Booth
to do , as Birthwnght had "done it all." She therefore in-
structed Booth not to come in to work on Monday. Booth
responded that there was "going to be this union meeting"
and that she (Booth) "had a right to attend it."` Birthwnght
then repeated that Booth was not to "come into the office on
Monday to work ." Booth remarked : "Barbara , that sounds
kind of final ." Birthwright answered : "It is final."
On the afternoon of Sunday , January 17 , Davis spoke to
Nancy Nesewich , then a rank -and-file employee of the Re-
spondent , in Nesewich 's apartment . Davis stated she had
received a telephone call from Booth in which Booth related
that Birthwright "had called and fired her ." Surprised, Nese-
wich asked : "How could that happen?" Davis replied that at
a recent executive committee meeting Birthwright had sug-
gested that Booth should be discharged . Nesewich asked:
"Does it have anything to do with the petition ?" and Davis
answered . "Well, probably ." That same afternoon Booth tele-
phoned Birthwright and said she wanted to talk to Birth-
wright that day. Birthwnght answered that she was too busy
finishing indexing to talk to Booth.
On Monday , January 18 , Booth went to the Respondent's
office and asked Birthwright whether she (Booth ) had been
discharged or had been laid off, explaining that if she had
been discharged she wanted to "go to the NLRB" and if she
had been laid off she wanted to "file for unemployment com-
' As described above, the meeting about the employer grievances had
begun January 11, and had been postponed until January 15 It was later
postponed to January 19
149
pensation ." Birthwright responded : "You haven 't been fired.
You have been laid off." Booth then left. That night, when
Booth was at home, Birthwnght telephoned to her and said:
"You weren't fired yesterday but you are today." When
Booth asked why, Birthwright replied because of Booth's
"attitude," pointing out that Booth had been late returning
from her Christmas vacation , and that Booth "couldn't do
indexing ... they could hire someone else to do indexing bet-
ter," that Booth and Birthwright were " incompatible," and
that Booth had failed to report to work when she was needed
-a reference to the previous week . After a pause , Birth-
wright directed Booth "not to set foot on Urban Research"
the next day. Booth protested that she "had a right to come
in, there was going to be this union meeting." Birthwright
repeated that Booth "was not to set foot in Urban Research"
and Booth iterated her intention to be there . At this point,
Birthwright terminated the conversation.'
At about 9 a.m. on Tuesday, January 19, Naisbitt and
Birthwright met with some of the Newsbank employees to
resume the discussion of the employee grievances which had
commenced on January 11 and then been postponed. Booth
was not present . Naisbitt discussed each of the grievances in
detail , and indicated the Respondent 's willingness to agree to
most of them . When this was completed one of the em-
ployees, Lorraine E. McCloud (the Charging Party in Case
13-CA-10364), asked why Booth had been discharged.
Birthwright replied that Booth "had been fired because she
had now shown up in `crunch week ' when we really needed
her " Naisbitt added that "Heather was fired because she was
doing sloppy work and ... had taken off days without calling
in." McCloud remarked : "Why, John , Heather had been ill."
Naisbitt responded : "Well, there are other reasons . Heather
is a very power-hungry lady [who was ] trying to use our
group for her personal purposes" and "had been disloyal to
the company ." During this discussion , Birthwright an-
nounced that the matter was "a closed issue " and left the
meeting. Naisbitt stated that the decision regarding Booth
had been made by Birthwright , that he supported Birth-
wright in that decision , and "if they wanted to discuss it
Barbara Birthwright is the one that is responsible ... they
could discuss it with her" but as far as he was concerned "it
was a closed matter ." The meeting then ended.'
Later that day Booth appeared at the Respondent 's office
and asked Naisbitt if she had "really been fired " He replied.
"Yes, you really are fired now. You weren't fired yesterday
but when you came in to work on Monday you blew it."
Booth then cleaned out her desk and left. So far as the record
shows, this was the last communication between Booth and
any member of the Respondent 's management.
Later that day, Naisbitt and Birthwnght reported to the
Respondent 's executive committee , concerning the meeting
with the Newsbank employees about their grievances. That
evening, Davis (who had attended the executive committee
meeting) telephone to Nesewich and reported that "Heather
Booth had definitely been fired." Nesewich asked: "Do you
mean Heather is being fired as a scapegoat for the petition and
the organizing of the Newsbank employees?", to which Davis
answered: "Yes." Nesewich remarked that "this was very
unfair" and Davis agreed.'
' The January "crunch week" appears to have come to an end on the
evening of January 18 with the delivery of most December materials to
Arcata
' These findings are based primarily on a synthesis of the testimony of
McCloud and of Robert Field Tredray, another employee To the extent that
the versions given by Naisbitt and Birthwright do not agree , I credit that of
McCloud and Tredray
The findings regarding this conversation are based on Nesewich's un-
(Cont)
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Contentions of the parties
The parties agree that Booth was terminated during the
Booth-Birthwright telephone conversation on the night of
January 18. The complaint alleges this was done because of
Booth's "union and protected concerted activities in joining,
assisting, and participating in the formation of the Union, and
for presenting grievances to [the] Respondent." The Re-
spondent, in its brief, maintains "that Booth was guilty of
irresponsible employee conduct immediately prior to her be-
ing discharged [and] that such irresponsibility was the basis
for the discharge." But the General Counsel, in his brief,
argues "that the reason advanced by [the] Respondent, i.e.,
`crisis ' or 'crunch ' time , in justification for its decision was
clearly pretextual, and not the moving or operative cause for
the termination."
3. Conclusions as to Booth's discharge
It is clear, and I find, that the presentation of the list of
grievances to the Respondent constituted concerted activity
protected by Section 7 of the Act. It is equally clear that, prior
to January 15, the Respondent knew the names of the em-
ployees involved, for a list of those who participated was
attached to the document delivered to Birthwright. Indeed,
Naisbitt's interest in the identity of the proponents of group
action is shown by his first reaction when the document was
handed to him: he inquired "who was behind it ... who had
put it together."' Moreover the record shows that the deci-
sion to discharge Booth was made on January 15 by Birth-
wright, and acquiesced in by Naisbitt. The question presented
is therefore whether the concerted activities of the employees,
and Booth's known participation therein, was a substantial
motivating factor in Birthwright's decision to discharge
Booth, or whether, as the Respondent contends, the sole
reason for the discharge was Booth's behavior during
"crunch week."
There are a number of factors to be considered in deciding
the motivation for Booth's discharge: (1) The discharge oc-
curred within a week after the Respondent first became aware
of the employees' concerted activities; (2) Booth had received
no prior warning that her conduct was considered unsatisfac-
tory and might lead to discharge; (3) Davis, a vice president
of the Respondent, admitted that Booth was made "a scape-
goat for the petition and the organizing of the Newsbank
employees"; (4) There was a significant lack of candor in
Birthwright's dealings with Booth. On January 16 Birth-
wright told Booth that Birthwright had already completed all
the indexing, yet on the next day Birthwright refused to talk
to Booth on the purported excuse that she (Birthwright) was
too busy finishing the indexing. Also on January 16 Birth-
wright assured Booth that Booth's discharge was "final," but
denied testimony . Although Davis was available to testify, no party called
her as a witness . The Respondent attempted to impeach Nesewich's credi-
bility by the testimony of Martin Weinstein, another vice president of the
Respondent , that Nesewich had remarked "that she was upset with the
company operations in a number of areas." However , when Nesewich was
on the witness stand she was not confronted with this alleged remark, nor
given an opportunity to deny or explain it. In the absence of a proper
foundation, it cannot be used to discredit her. Wigmore, Code of Evidence,
3rd ed, 1942, #920, International Union of Operating Engineers, Local
106 AFL-CIO (E. C. Ernest Company), 140 NLRB 1213, 1214. Further-
more , Naisbitt's admission that he discussed Booth 's discharge with Davis
twice, once probably on January 19, tends to corroborate Nesewich's tes-
timony to some extent
Naisbitt testified that he made remarks to the executive committee and
to the Newsbank employees indicating that he was pleased that the em-
ployees, as a group , had presented written grievances to management In my
opinion, based on Naisbitt 's demeanor while testifying , these purported
expressions of pleasure did not ring true
on January 18 Birthwright told Booth: "You haven't been
fired. You have been laid off;" (5) Birthwright repeatedly
insisted that Booth not "set foot " in the Respondent 's prem-
ises on the days the Respondent planned to discuss the griev-
ances with the employees-an obvious gambit to limit
Booth's further participation in concerted activities; (6) The
Respondent put forward several and sometimes inconsistent
reasons for Booth's discharge. Although Birthwright main-
tained that Booth's failure to come to the office during
"crunch period" (specifically on January 13, 14 and 15) was
the sole reason for the discharge, Naisbitt indicated that
Booth "blew it" by appearing at the office on January 18.
Moreover, Birthwright in her January 18 telephone conversa-
tion with Booth stated additional reasons for the discharge
(namely incompatibility, late return from Christmas vaca-
tion, and lack of ability in indexing) and the Respondent's
attorney in a later letter to a Board attorney listed as addi-
tional considerations the unsatisfactory nature of Booth's
work performance, describing her as "unable to comprehend
the principles of indexing [and] totally unsuited for her
work"; (7) At the meeting of January 19 with the Newsbank
employees Naisbitt labelled Booth "very power-hungry" and
"disloyal to the Company", and accused her of trying to
"use" her fellow employees "for her personal purposes"-
clear references to the employees' concerted activities and an
indication that the Respondent suspected that Booth had
been the instigator of the grievance document; and (8) The
Respondent did not then, and does not now, deny that Booth
had Birthwright's express permission to work at home on
January 13, or challenge the truth of Booth's statement to
Birthwright on January 15 that she (Booth) was ill.
The Respondent raises several defenses. It points to un-
denied testimony that Gary Yettick, an employee, was ter-
minated in November or December 1970 because "he did not
show up for work on a 'crunch' day." But details are lacking;
the evidence does not show whether Yettick had previously
been warned, nor whether, like Booth, he had offered to work
at home, nor whether, like Booth, he had informed the Re-
spondent that he was ill. On the record before me, I am
unable to determine to what extent Yettick's case is compara-
ble to that of Booth. The Respondent also urges that it did
not discharge any of the other employees whose names ap-
pear on the grievance petition. The short answer to such an
argument was recently given by the United States Court of
Appeals for the Sixth Circuit as follows:
The layoff of a single dissident may have-and may be
intended to have-an in terrorem effect on others, and
the Board need not wait until a party commits a gross
violation before it may find any violation at all.'
This is particularly true in the instant case, where it appears
that the Respondent either suspected Booth of being the in-
stigator of the concerted activities or decided to make her the
"scapegoat."
In view of the eight factors described above I am con-
vinced, and find, that Booth's discharge was motivated, in
substantial part, by her participation in the employees' pre-
sentation of the grievance document to Birthwright. A dis-
charge so motivated interferes with the protected rights of the
employees guaranteed in Section 7 of the Act and is violative
of Section 8(a)(1). As the affirmative portion of the remedy
hereafter recommended would in any event be the same, I
deem it unnecessary to determine whether Booth's discharge
The Rust Engineering Company v N.L.R.B., 77 LRRM 2885, 2887
(C A 6). See also N.L.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374
F 2d 147, 152 (C.A. 6).
URBAN RESEARCH CORPORATION
likewise violated Section 8(a)(3) of the Act, as alleged in the
complaint."
D. Case 13-CA-10364,-
Events After Booth 's Discharge
1. Facts
As mentioned above , on January 20, some of the Respond-
ent's employees signed cards authorizing the Union to repre-
sent them in collective bargaining . On January 22, the Union
filed with the Board a petition in Case 13 -RC-12354 seeking
to represent the Newsbank employees of the Respondent for
bargaining purposes . This petition was withdrawn on Febru-
ary 19.
In the meantime , on January 29, Naisbitt and Birthwright
met with the assembled Newsbank employees. Naisbitt an-
nounced that , due to the Respondent's precarious financial
condition , certain steps were going to be taken , including the
layoff, for an indefinite period to commence February 5, of
two Newsbank employees , a screener and a paster . Naisbitt
left and Birthwright discussed with the employees the choice
of individuals to be laid off. After considerable discussion, it
was decided that McCloud , a full-time employee of Newsbank
who volunteered to do so , would be the paster to be laid off."
The selection of the screener to be laid off was not settled at
that time.
At about 5 p .m. on February 1, Naisbitt summoned to his
office John Litweiler , a full-time screener on the Newsbank
staff, and informed him that he (John Litweiler) had been
selected as the screener to be laid off, effective February 5.
John Litweiler communicated this decision to Charles Lit-
weiler , Robert Tredray , and Michael Jensen , three of his
fellow workers on the Newsbank staff, all of whom were
full-time employees . The four men left the Respondent's
premises together , it then being after the end of the workday.
Outside the office they agreed that "we should request a
meeting with Naisbitt in the morning to discuss the situa-
tion ." John Litweiler offered to contact McCloud that
evening "and see what her feelings were ." Accordingly, he
telephoned to McCloud and told her what had happened.
McCloud agreed that the employees should request a meeting
with Naisbitt and that they "should walk off if John [Naisbitt]
refuses the meeting."
The next morning , February 2, at about 8 : 30 a.m ., in the
Respondent's office , in the presence of Charles Litweiler, Tre-
dray , and Jensen , John Litweiler asked Naisbitt : "We would
like to have a meeting to discuss who is going to be laid off."
Naisbitt refused , explaining: "We have been having too many
meetings lately ." A discussion ensued , in which Charles Lit-
weiler joined , regarding the fairness of the selection of John
Litweiler as one of those to be laid off. Annoyed , Naisbitt
remarked to the four employees : "I am running this com-
pany , you are not ." He admonished the employees to "return
to work," adding that those who wanted to work could do so
and those who did not want to work should leave . At this
point , John Litweiler rose from his desk and stated : "Well,
if we can ' t have the meeting and decide these things, I am
ready to walk out and anyone who is willing to, who feels as
I do, please come along ." In response , Charles Litweiler,
Tredray , and Jensen then rose from their desks." Naisbitt
10 Canada Dry Corporation, 154 NLRB 1763, 1764, fn 2, and BI-State
Warehousing, Inc., 192 NLRB No 84, fn 1.
11 Although McCloud testified that she was a screener , the parties stipu-
lated that she was a paster , and John Litweiler, an employee , so testified
At that time, in addition to McCloud, there were four pasters and three
screeners
" Other Newsbank employees took no action
151
stated that if the employees walked out he was going to
interpret their action as quitting . John Litweiler responded:
"On the contrary , we are not quitting ... If you want the
work done give us a call and we will be ready to come back
as soon as tomorrow morning if you have the meeting."
Naisbitt answered : "John , you are not going to get a call. If
you walk out you are through." As the four men were putting
on their coats, Naisbitt , angered , stated to the Respondent's
comptroller in a "very loud voice" (which the men could
hear): "These four are through . Send them their checks in the
mail." The men signed out and left."
Outside on the street the four men met McCloud coming
to work and told her what had happened . They stated that
if she cared to join them, they would be in a certain drug
store . McCloud entered the Respondent 's office and inquired
of Naisbitt what had happened to her four fellow workers. He
answered : "They weren 't fired , they walked out ... They
didn 't find the conditions around here satisfactory , so they
left." He told McCloud that if she wanted to work there, she
could, adding that the four men "left on their own accord."
McCloud then conferred with Birthwright , after which she
returned to her desk , where she sat pondering what to do.
Naisbitt approached and inquired : "Young lady, are you go-
ing to work?" McCloud said : "John , since you have all these
people gone , I don't want to be laid off." He replied that the
decision to lay off McCloud on February 5 would not be
changed , but if she wanted to leave sooner she could do so.
McCloud responded : "Ifs that 's the case, I will just have to
leave ... and go with the others ." Accordingly , McCloud
collected her belongings , left the Respondent's office, and
joined the four men at the designated drug store.
Except for an incident later that day involving John Lit-
weiler and his key to the office , which I consider unimportant
to the issues here, none of these five persons has returned to
the Respondent 's premises . There has been no picketing.
A few days after February 2, John Litweiler and Tredray
received checks from the Respondent in payment of wages
due. On the back of these checks, where they would normally
be endorsed , appeared: "Full and final payment for services
rendered ." John Litweiler blanked out these words before
negotiating his check.
Since February 2 the Respondent has replaced Charles
Litweiler , Tredray and Jensen with full-time replacements.
John Litweiler and McCloud , who were to have been laid off
on February 5, have not been replaced.
2. Contentions of the parties
The General Counsel does not attack the validity of the
Respondent 's decision to lay off two Newsbank employees for
economic reasons, nor does he urge that the choice of the two
individuals to be laid off was discriminatory, nor does he
contend that the Respondent violated Section 8(a)(5) of the
Act when Naisbitt on February 2 refused the demand of some
of the Newsbank employees that he confer with them about
the layoff. But the complaint alleges that on February 2 Nais-
bitt "threatened" the Litweilers, Tredray and Jensen "with
economic repnsals"-specifically discharge-if they walked
out in protest of Naisbitt's refusal to meet with them. Fur-
ther, the complaint alleges that on February 2 Naisbitt dis-
charged the four men and McCloud "for engaging in union
and protected concerted activities in ... the formation of the
Union , and for requesting [the] Respondent to meet and con-
fer on grievances ." In his brief, the General Counsel main-
" The findings regarding these events are based on a synthesis of the
testimony of John Litweiler and Tredray, corroborated in part by that of
Naisb,tt To the extent that Na,sb,tt's version differs from that of John
Litweiler and Tredray, I credit the latter two
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tains that the four men "were economic strikers, discharged
by [the] Respondent's president for requesting a meeting on
a layoff, and for walking out in support of their demand." He
further argues that their discharge "results in the conversion
of the strike, economic in its inception, to an unfair labor
practice strike." As to McCloud, the General Counsel con-
tends that she "stands equally with her co-workers, whom she
joined in sympathy of their cause."
The Respondent's defense is that all five individuals volun-
tarily quit their employment, or in the alternative they all
went out "on an economic strike to enforce Litweiler's de-
mand that Naisbitt grant more meetings." In short, the Re-
spondent maintains that none of the five was ever discharged
for any reason.
3. Conclusions as to the
threat of discharge
On February 2, when the four men rose from their desks
in response to John Litweiler's call for a walkout, Naisbitt
stated that if they walked out he would interpret their action
as quitting. He further warned: "If you walk out you are
through." This was a clear threat to discharge the employees
in retaliation for their walkout. As such economic strikes
constitute activity protected by Section 7 of the Act, it follows
that Naisbitt's threat of reprisal interfered with protected
concerted activity and therefore violated Section 8(a)(1) of
the Act.
4. The discharges of the Litweilers,
Tredray, and Jensen
Undoubtedly, the employees did not intend permanently to
sever their employment. John Litweiler made this clear when
he told Naisbitt: "We will be ready to come back as soon as
tomorrow morning, if you have the meeting." These are not
the words of men who have no further desire to continue the
employment relationship. On the contrary, these are the re-
marks of strikers who seek to remain as employees-but are
determined to withhold their services until such time as their
employer agrees to meet and discuss their working condi-
tions. It constitutes not a quit but a strike." Nor can an
employer, by simply labeling a walkout as a "quit," deprive
it of its essential nature as conduct protected by Section 7 of
the Act."
I find no merit in the Respondent's defense that none of the
four men was discharged. Had Naisbitt permitted the four
men voluntarily to walk out together, and not taken any steps
against them for doing so, there might have been insufficient
evidence to support the General Counsel's contention that
they were discharged. But Naisbitt did not merely stand idly
by when they struck. Instead, he immediately made it clear
to them-by stating to the comptroller in their hearing that
they were "through"-that he was then and there perma-
nently severing their employment. This was underscored a
few days later when two of them received paychecks contain-
ing language unmistakably indicating that they had been dis-
charged.
I conclude that Naisbitt, in fulfillment of his illegal threat,
discharged the four men because they engaged in an eco-
nomic strike, before any of them had been replaced. Such
conduct violated Section 8(a)(1) of the Act.16 It may also have
violated Section 8(a)(3) of the Act, but as the affirmative
remedy would be the same in either event, I need not decide
this issue
5. Conclusions regarding McCloud's status
I agree with the General Counsel that McCloud "joined
[her coworkers] in sympathy for their cause." As she made
common cause with them, she too became a striker." How-
ever, I cannot agree with the General Counsel' s statement in
his brief that the "Respondent's president treated McCloud
no differently than the others." Naisbitt told the four men
that if they struck they were through, but he made no such
remark to McCloud. Moreover, there is no evidence that the
paycheck sent to McCloud after the walkout contained any
language smacking of finality. Accordingly, as McCloud has
not been discharged or otherwise disciplined for her part in
the protected concerted activities of the employees, there has
been no violation of the Act as to her.
6. Conclusion regarding the
status of the strike
The strike began as an effort to force the Respondent to
hold a meeting and confer with the employees. Thus in its
inception it was a lawful economic strike. Naisbitt's illegal
threat to discharge the employees if they walked out and the
actual discharge, in fulfillment of that threat, prolonged the
strike and converted it into an unfair labor practice strike."
So far as the record shows, none of the five employees who
walked out has offered to return to work or has abandoned
the demand for a meeting with Naisbitt. The Respondent has
neither offered to hold such a meeting nor invited the strikers
to return to work. The impasse which caused the strike in the
first place remains and the strike must be regarded as continu-
ing at this time.
Upon the above findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Urban Research Corporation is, and at all material times
has been, an employer within the meaning of Section 2(2) of
the Act, engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. By discharging Heather Booth because she engaged in
activities protected by Section 7 of the Act, thereby interfer-
ing with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, the Respond-
ent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. By threatening to discharge and discharging John Lit-
weiler, Charles Litweiler, Robert Tredray, and Michael
Jensen because they engaged in a strike, thereby interfering
with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. The above-described unfair labor practices tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce and constitute unfair labor prac-
" ° "The essence of a strike is the voluntary concerted withholding of labor
requested by an employer " Columbia Pictures Corporation, 82 NLRB 568,
577 See also N.L.R.B v Washington Aluminum Co., 370 U S 9
" Allen Hayosh Industries, Inc, 176 NLRB No 57, and Nuodex Division
of Tenneco Chemicals, Inc., 176 NLRB No 79 Respondent cites Stuart F
Cooper Co, 136 NLRB 142, but that case is distinguishable on its facts
" There is, in my opinion, no evidence to support the General Counsel's
contention that the employees were discharged because they formed the
Union or because they demanded a meeting
" Nuodex Division of Tenneco Chemicals, Inc, 176 NLRB No 79, and
Southern Greyhound Lines, 169 NLRB 627, enfd 426 F 2d 1299 (C A 5)
18 Astro Electronics, Inc, supra
URBAN RESEARCH CORPORATION 153
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
5. It is not necessary to decide whether the Respondent has
engaged in or is engaging in unfair labor practices within the
meaning of Section 8 (a)(3) of the Act.
6. By the conduct described in paragraph 3 above, the
Respondent converted the economic strike which began on
February 2 into an unfair labor practice strike, which is still
in progress.
7. The Respondent did not discharge Lorraine E. McCloud
in violation of Section 8(a)(1) or (3) of the Act.
THE REMEDY
As the unfair labor practices found to have been committed
by the Respondent are persuasively related to other unfair
labor practices proscribed by the Act, the danger of their
commission in the future may reasonably be anticipated from
the Respondent's past conduct." Therefore, in order to effec-
tuate the policies of the Act, it will be recommended that the
Respondent cease and desist not only from the unfair labor
practices found but also from any other invasion of the em-
ployees' Section 7 rights.
Affirmatively, it will be recommended that the Respondent
offer Heather Booth immediate and full reinstatement to her
former job or, if that job no longer exists, to a substantially
equivalent job, without prejudice to the rights and privileges
she previously enjoyed, and make her whole for any loss of
pay she may have suffered because of her discharge by paying
her the amount she normally would have earned from the
date of her discharge to the date of the offer of reinstatement,
less her net earnings during this period.
We turn next to strikers Charles Litweiler, Tredray, and
Jensen, none of whom has indicated his willingness to return
to work and all of whom are still on strike.20 The General
Counsel urges that they should be fully reinstated with back-
pay." However, it is the settled policy of the Board that
striking employees are not entitled to backpay while they are
on strike. Their rights depend on the termination of the strike
which is ordinarily signified by the strikers' application for
reinstatement. Employees who are discharged while on strike
must also indicate abandonment of the strike and a willing-
ness to return to work, in order to establish their right to their
jobs and resumption of wages unless there is a showing that
such application would be rejected, i.e., that it would have
been futile." The General Counsel has made no such showing
1' It is well established that a discriminatory discharge of an employee
because of his union activity goes to the very heart of the Act A J Krajewski
Manufacturing Co. Inc., 180 NLRB No 173
30 On cross-examination, Tredray testified as follows
Q Have you asked to have your job back?
A No I have not Mr Naisbitt had indicated we would not be called
back as I say , "You will not get a call" when we had offered we would
come back if he called us, I would not receive such a call He then said
"You are through " He said to the comptroller "these four are through "
And therefore I have taken no action
This self-serving declaration was volunteered by Tredray Although I
consider Tredray a candid and forthright witness, I do not believe this
statement should be extended beyond its precise content Tredray did not
testify that he had broken ranks with his fellow strikers, or that he had
decided to demand that they would not return to work until Naisbitt granted
them a meeting. In the absence of such a disclaimer, I cannot find that it
would have been futile for Tredray to have made an unconditional offer to
return to work At most, his testimony shows he never reached the question
of abandonment
" Astro Electronics, inc, supra, and cases cited at fn 6 thereof Both the
General Counsel and the Respondent cite, in their respective briefs, South-
ern Greyhound Lines, supra However the Board has pointed out that
"Southern Greyhound Lines, unlike the cases [cited in the Trial Examiner's
Decision] involved a discharged sympathy striker " (Emphasis supplied )
here and none of the strikers has applied to return to work.
I perceive no reason in this case to depart from the usual
remedy with respect to discharged strikers. Accordingly, it
will be recommended that the Respondent offer to each of
these three strikers, upon his unconditional application to
return to work, immediate and full reinstatement to his
former job or, if such job no longer exists, to a substantially
equivalent job, without prejudice to his seniority or other
rights and privileges , dismissing, if necessary , any employee
hired since February 2 to replace him.
At the time the strike began, John Litweiler had been
notified of his pending layoff, effective February 5. Therefore
it will not be recommended that he be reinstated upon his
unconditional application to return to work. Instead, it will
be recommended that, upon his unconditional application for
reinstatement, John Litweiler's name shall be placed on a
preferential hiring list for employment in a suitable new open-
ing. When such an opening occurs, John Litweiler, in prefer-
ence to new applicants, shall be offered the job.
Should the Respondent, upon their unconditional offer to
return to work, fail to reinstate Charles Litweiler, Tredray,
or Jensen as provided above, or fail to place John Litweiler's
name on a preferential hiring list and offer him employment
in a suitable new opening in preference to new applicants,
then it will be recommended that the Respondent make
whole each such striking employee who unconditionally ap-
plies for reinstatement for any loss of earnings suffered be-
cause of the Respondent's failure to do so by paying each of
them the amount he would have earned in the case of Charles
Litweiler, Tredray, or Jensen, from the date of his uncondi-
tional application to return to work; and in John Litweiler's
case from the date a suitable new employment becomes avail-
able; to the date of the Respondent's offer of reinstatement,
less his net earnings during such period.
All backpay provided for herein shall be computed on a
quarterly basis in the manner established in F. W. Woolworth
Co., 90 NLRB 289, including 6 percent interest per year as
set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It
will also be recommended that the Respondent preserve and
make available to the Board, upon request, all records neces-
sary to compute the amount of backpay due hereunder, and
that it post appropriate notices.
It will further be recommended that the consolidated com-
plaint be dismissed, insofar as it alleges that the Respondent
discriminatorily discharged Lorraine E. McCloud.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:22
Nuodex Division of Tenneco Chemicals, Inc, supra, fn 2 So far as I am
aware , the Board has not defined sympathy strikers But even as to sympathy
strikers, the General Counsel must show, before they are entitled to rein-
statement or backpay, that the strike has terminated As the strike here is
still in progress, it is unnecessary to determine whether Charles Litweiler,
Tredray, and Jensen were sympathy strikers Universal Services, Inc, and
Associates, 184 NLRB No 42, cited by the General Counsel, is not in point
There the strike had ended
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Urban Research Corporation, Chicago, Illinois, its offers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging its employees or otherwise visiting repris-
als upon them because they concertedly present grievances.
(b) Threatening to discharge or discharging its employees
because they engage in a lawful strike.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights protected by
Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Offer Heather Booth immediate and full reinstatement
to her former position or, if that position no longer exists, to
a substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously enjoyed,
and make her whole for any loss of pay she may have suffered
by reason of the discrimination against her, with interest at
the rate of 6 percent per year.
(b) Upon their unconditional application for reinstatement,
offer Charles Litweiler, Robert Tredray, and Michael Jensen
immediate and full reinstatement to their former positions or,
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, discharging if necessary
any replacements hired after February 2, 1971, and make
them whole for any loss of pay they may have suffered in the
manner set forth in the section of this Decision entitled "The
Remedy."
(c) Upon his unconditional application for reinstatement,
place the name of John Litweiler upon a preferential hiring
list, offer him employment in any suitable new opening in
preference to new applicants, and make him whole for any
loss of pay he may have suffered in the manner set forth in
the section of this Decision entitled "The Remedy."
(d) Notify any of the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement, upon application after discharge
from the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and Service
Act.
(e) Preserve until compliance with any Order for backpay
made by the Board and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
compute the amount of backpay due under the terms of this
recommended Order.
(f) Post at its office in Chicago, Illinois, copies of the at-
tached notice marked "Appendix."23 Copies of such notices,
on forms provided by the Regional Director for Region 13,
after being signed by an authorized representative of the Re-
spondent, shall be posted by the Respondent immediately
upon receipt thereof and shall be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily dis-
played. Reasonable steps shall be taken by the Respondent to
" 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 be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
insure that such notices are not altered, defaced, or covered
by any other material.
(g) Notify the said Regional Director, in writing, within 20
days from the date of the receipt of this Decision , what steps
the Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the consolidated com-
plaint herein be dismissed, insofar as it alleges that the Re-
spondent discharged Lorraine E. McCloud in violation of
Section 8(a)(1) or (3) of the Act.
" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the said Regional Director , in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise punish our em-
ployees because they concertedly present grievances to
us.
WE WILL NOT threaten to discharge or discharge our
employees because they engage in a lawful strike.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of their right to self-organiza-
tion, to form, join, or assist any union, to bargain collec-
tively through representatives of their own choosing,
and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from such activities, except to the extent
that such rights may be affected by an agreement requir-
ing union membership as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor Re-
lations Act, as amended.
WE WILL offer Heather Booth immediate reinstate-
ment to her old job or, if that job no longer exists, to a
similar job, without loss of seniority or other privileges,
and pay her the wages she lost because of her discharge,
with 6 percent interest.
WE WILL, upon their unconditional offer to return to
work, offer Charles Litweiler, Robert Tredray, and Mi-
chael Jensen immediate reinstatement to their old jobs
or, if those jobs no longer exist, to similar jobs, and pay
them any wages they lose if we fail to do so, with 6
percent interest.
WE WILL, upon his unconditional offer to return to
work, place John Litweiler's name on a preferential hir-
ing list and offer him employment in any suitable new
opening, before offering it to any new applicant, and pay
him any wages he loses if we fail to do so, with 6 percent
interest.
WE WILL notify any of the above-named employees
who are currently serving in the Armed Forces of the
United States, of his or her right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act and
the Universal Military Training and Service Act.
Our employees are free to become or remain or to refrain
from becoming, or remaining, members of any union, except
to the extent that such right may be affected by an agreement
requiring union membership as a condition of employment,
as authorized by the National Labor Relations Act.
URBAN RESEARCH CORPORATION 155
URBAN RESEARCH This Notice must remain posted for 60 consecutive days
CORPORATION from the date of posting and must not be altered, defaced, or
(Employer) covered by any other material.
Any questions concerning this Notice or compliance with
Dated By its provisions, may be directed to the Board's Office, Everett
(Representative) (Title) McKinley Dirksen Building , Room 881, 219 S. Dearborn
This is an official notice and must not be defaced by any- Street , Chicago, Illinois 60604 , Telephone 312-353-7572.
one.