Munro Enterprises, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 403 (N.L.R.B. 1974)

MUNRO ENTERPRISES, INC. 403
Munro Enterprises, Inc.' and Boston Mailers' Union
No. 1,
_
International Typographical Union, AFL.-
CIO. Case 1-CA-8935
April 30, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
On December 19, 1973, Administrative Law Judge
Maurice S. Bush issued the attached Decision in this
proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief and
Respondent filed exceptions, a supporting brief, and
an answering brief to General Counsel's exceptions.
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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
subject to the modifications set forth below:
1. We find merit in the General Counsel's
exception to the Administrative Law Judge's dismiss-
al of the alleged violation of Section 8(a)(1) of the
Act entitled "Incident of December 1, 1972" in the
attached Decision. The Administrative Law Judge
credited the testimony of Twist and Lavertue that
during a meeting with the employees on December 1,
1972, Howard James, one of Respondent' s managers,
stated that if there was a union in the plant there
would be no free time for the employees. The
Administrative Law Judge further found that Res-
pondent had a then existing practice of permitting
employees to leave a few minutes prior to their
regular quitting time. In view of these findings, we
find and conclude that James' aforementioned
remark was clearly a threat of reprisal against the
employees if they supported a union, and, conse-
quently, a violation of Section 8(a)(1) of the Act. It is
equally clear that in determining whether James'
statement constitutes a threat in violation of 5 "ction
8(a)(1), it is not significant that employees did not
testify that they regarded James' statement as a
threat of reprisal; nor is it significant that James may
not have intended this remark to convey a threat.
"No proof of coercive intent or effect is necessary
under Section 8(a)(1) of the Act, the test being
I Name as amended at the hearing.
s Time-O-Matic, Inc. v. N.LRB., 264 F.2d 96, 99 (C.A. 7, 1959).
s In adopting the Administrative Law Judge's findings concerning the
discharges of January 3, 1973 (sec. III ,D of his Decision), we do not agree
with or adopt his rationale that the small plant doctrine is "even more
applicable to a small plant in a small town ... of only about 15,000"
210 NLRB No. 62
`v hether the employer engaged in conduct which, it
may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act.' "2
2. With respect to the alleged violation of Section
8(a)(1) of the Act entitled "Incident of December 28,
1972" in the attached Decision, the record herein
does not support the Administrative Law Judge's
statement that employee Twist admitted that when
James offered him the job of pressman, James
discussed finding a replacement for departing press-
man Gauvin; hence the record does not support his
credibility resolution based thereon, that for that
reason the conversation must have occurred on
January 15, 1973. However, we agree with his
alternative finding that General Counsel has not met
his burden of proving that Respondent in that
conversation threatened economic reprisals in viola-
tion of Section 8(a)(1) of the Act.
3. While we agree with the Administrative Law
Judge that Respondent did not by the statement to
Nolin, discussed under the heading of "Incident of
December 15, 1972," threaten withdrawal of a
benefit, we so find only because the claimed benefit
had not been granted to her, and we do not adopt the
Administrative Law Judge's alternative grounds for
so finding.
4. In view of our determination that the discharg-
es that took place on January 3 and March 9, 1973,
were not motivated by unlawful considerations in
violation of the Act,3 we need not pass upon General
Counsel's exceptions to the Administrative Law
Judge's findings that Maurice Lavertue and Eleanor
Theberge were supervisors within the meaning of the
Act.
5. We find, in agreement with the Administrative
Law Judge, that a bargaining order is not warranted
in the instant case. In addition to the single
discriminatory discharge of employee Twist on
February 20, 1973, in violation of Section 8(a)(3) and
(1) of the Act, we have found that Respondent
violated Section 8(a)(1) of the Act by a single threat
on December 1, 1972, long before the Union's
demand for recognition dated February 9, 1973. In
our view Respondent's unfair labor practices were
not of so pervasive a character as to warrant a
judgment, under Gissel4 standards, that use of the
Board's traditional remedies could not insure a fair
election and that the Board should, accordingly,
accept the prepetition authorization cards as a more
reliable index of employee choice. Thus, the single
unlawful discharge herein involved an employee who
population and because a supervisor signed a union card and attended
union meetings. However, the supervisor's knowledge of union activities is,
of course, chargeable to Respondent . Cf. Montgomery Ward & Company,
Incorporated 115 NLRB 645,647.
4 N.LR. B. v. Gissel Packing Co., Inc., 395 U.S. 575.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was neither the leading union adherent nor in any
particular leadership position among the employees
with respect to the Union and occurred in the
context of lawful economic layoffs. Furthermore, the
single independent violation of Section 8(a)(1) which
we have found was not of an aggravated nature and
occurred more than 2 months before the Union's
demand for recognition.
No. 1, International Typographical Union,
AFL-CIO, or any other labor organization.
MUNRO ENTERPRISES,
INC.
(Employer)
Dated By
(Representative) (Title)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Munro Enterprises, Inc., Berlin, New Hamp-
shire , its officers , agents, successors , and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order as herein modi-
fied:
1. Insert the following paragraph and reletter
paragraph 1(a) as 1(b):
"(a) Threatening to take reprisals against its
employees by stating it will terminate its practice of
permitting employees to leave a few minutes prior to
their regular quitting time because they support the
Boston Mailers' Union No. 1, International Typo-
graphical Union, AFL-CIO, or any other labor
organization."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer John Twist full reinstatement to
his old job or, if that job no longer exists, to a
substantially equivalent position without preju-
dice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he
may have suffered as a result of his discriminato-
ry discharge.
WE WILL NOT discharge any employees for
supporting the Boston Mailers' Union No. 1,
International Typographical Union, AFL-CIO,
or any other labor organization.
WE WILL NOT threaten to take reprisals against
any employees by stating we will terminate our
practice of permitting employees to leave a few
minutes prior to their regular quitting time
because they support the Boston Mailers' Union
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 , Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
MAURICE S . BUSH , Administrative Law Judge : Respon-
dent Munro Enterprises , Inc., is engaged in the publication
of The Berlin Reporter,' a weekly newspaper established in
1890, together with two other recently established smaller
newspapers, out of its office and news plant at Berlin, New
Hampshire.
Judith James is the president and sole stockholder of the
Respondent and the publisher of its papers. Formerly the
widow of Steve Munro, Mrs. James became the wife of
Howard James, a Pulitzer Prize winner ,2 on January 1,
1972. Even pnor to his marriage to Judith , Howard James
became one of Respondent's managers on November 1,
1972, and he continued in this capacity until January 1,
1973, when he became general manager and thereafter
continued in that capacity at least through March 9, 1973.
All important management decisions here pertinent were
made jointly by Judith and Howard James, but the day-to-
day management of the news plant was largely in the
hands of Howard James as Mrs . James to a great extent
was preoccupied with the care of their combined six
children.3
Although Howard James is here involved as a principal
figure in the operation of Respondent's business, his
primary personal interest is that of a freelance writer of
nonfiction books and in the preliminary research that such
books require . During the period here involved, there were
brief intermittent times when he was absent from the news
plant to research and write a new book , still unfinished,
1 By oral amendment at the trial , Respondent' s name shown in the
complaint as "Berlin Reporter - Munro Enterprises , Inc ," was corrected to
read as "Munro Enterprises, Inc "
2 Received for his book, "Crisis in the Courts "
3 At the time of her marriage to Mr James , Judith James was the mother
of four children by her prior mamage; Mr James at the time of the
marriage had a child by a pnor marriage ; toward the end of 1972, Mrs.
James gave birth to a child out of her marriage to Mr James
MUNRO ENTERPRISES, INC. 405
dealing with the problems of juvenile children as a sequel
to an earlier published book on the subject of children.
On November 7, 1972, practically all of the 34 or so
employees of Respondent's news plant walked off their
jobs in protest over what they deemed the unfair treatment
of one of their coworkers. Shortly thereafter several of the
employees sought the assistance of Local 75 of the Pulp
and Paper Workers in organizing Respondent's news plant
and a number of the employees signed cards authorizing
Local 75 to represent them. However, the differences that
caused the walkout and other grievances were settled in
large part within 2 days without the intervention of Local
75 and all the employees who had walked out returned to
work on November 9. Thereafter the employees desiring
representation switched unions by withdrawing from Local
75 and signing up with the Boston Mailers' Union No. 1,
the aforementioned Charging Party as their chosen
bargaining representative. By January 3, 1973, the Mailers'
Union had union authorization cards from 14 of Respon-
dent's employees.
On January 3, 1973, the Respondent closed down its job
printing shop which had been engaged in printing
letterheads, school reports, and such other privately
printed matter for customers under the claim that the
operation of that part of its business was unprofitable. On
March 9, 1973, Respondent terminated the printing of its
newspapers in its own news plant at Berlin and thereafter
sublet the work to a panting plant at Norway, Maine,
under claim that it could not find pressmen to replace the
pressmen who were quitting, among other justifications for
such action hereafter discussed.
Starting early in 1973, the Company began to terminate
many of its employees. On January 3, 1973, the Respon-
dent discharged seven employees under claim of financial
necessity. On February 20, 1973, Respondent discharged
its advertising solicitor, John Twist, for alleged incompe-
tency. Twist had been a spokesman for the employees who
had walked off their jobs on November 7, 1973. On March
9, 1973, the Company discharged three other employees as
an outcome of its aforementioned decision to permanently
discontinue the mechanical production of its newspapers at
its own plant and to subcontract that work to an out-of-
town printer.
Under the above undisputed but skeletomzed facts, the
issues under the pleadings herein are: (1) the appropriate
unit of employees in Respondent's office and news plant
for the purposes of collective bargaining; (2) interference,
restraint, and coercion by Respondent of its employees in
the exercise of rights guaranteed employees in violation of
Section 7 of the Act as more specifically set fo_ th in
subsequent parts of this Decision; (3) the discriminatory
discharge of 12 employees between January 3 and March
9, 1973, in violation of Section 8(a)(3) of the Act; (4) the
majority status of the employees in the appropriate unit
desiring union representation on various dates; (5) and
whether Respondent's admitted refusal to bargain with the
Union under all the circumstances of the case constitutes a
violation of Section 8(a)(5) of the Act. These issues will be
taken up in a somewhat different order than shown above.
The complaint herein was issued on June 22, 1973,
pursuant to a charge filed on March 13, 1973. Respon-
dent's answer denies the alleged unfair labor practices.
The case was heard over a period of 9 days between July
3i and August 10, 1973, at Berlin, New Hampshire. Briefs
filed on October 1, 1973, by counsel for General Counsel
and the Respondent, together with a letter from counsel for
the Charging Party stating that the Charging Party adopts
General Counsel's brief in support of its own position,
have been carefully reviewed and considered.
For reasons hereinafter indicated, the complaint will be
dismissed for failure of proof except for the unlawful
discharge of John Twist.
Upon the entire record in the case and from my
observations of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, Munroe Enterprises, Inc., a New Hamp-
shire corporation, is engaged in the publication and
distribution of newspapers at its principal office and place
of business in Berlin, New Hampshire. The newspapers
published by the Respondent carries advertisements of
nationally sold products. The Company's gross annual
revenue is in excess of $200,000. It is admitted that the
Respondent is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Boston Mailers ' Union No. 1,
International Typographical Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Judith James' first husband was the late Steve Munro
whom she married in 1959. On May 1, 1967, Judith and
Steve Munro, jointly, purchased The Berlin Reporter, a
weekly newspaper established in 1890 and published at
Berlin, New Hampshire, which they acquired under the
name of Munro Enterprises, Inc. Mr. Munro was killed in
an automobile accident in 1970. Upon his death, Judith
Munro, then the mother of four children by her marriage
to Mr. Munro, became the sole stockholder and president
of Munro Enterprises. On January 1, 1972, Judith Munro
became the wife of Howard James, a former reporter for
the Christian Science Monitor and chief of its Midwest
Bureau from 1965 to September 1970. From September
1970, until his marriage to Judith in January 1972, Howard
James had been primarily engaged as a freelance writer,
lecturer, and consultant. His books include "Cases in the
Courts," published in 1968, for which he received a Pulitzer
Prize and "Children in Trouble-A National Scandal,"
published in 1970.4
Five months after his marriage to Mrs. James, Mr.
James, on May 1, 1972, signed a contract with the same
4 Both books are based on a series of articles by Howard James that
appeared in The Christian Science Monitor
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
publisher that published his prior books to write a book on
problems of child abuse, tentatively entitled "Little
Victims." The original deadline for the publication of that
book was May 1, 1973, but at the time of the trial herein in
August 1973 it had not yet been published because of his
preoccupation with the management of Munro Enterprises.
At the time of James' marriage to Mrs. James, he
brought to the marriage a child by a prior marriage. On
November 14, 1972, Mrs. James gave birth to a child out of
her marriage to Mr. James. At the times here directly
involved, the Jameses had a combined family of six
children in their household.
Shortly after his marriage to Mrs. James, Howard James
became acting and later general manager of the Respon-
dent while his wife remained its sole stockholder and
president. For the period here involved from January
through March 9, 1973, the exigencies of Respondent's
business absorbed virtually all of his time and many hours
of overtime. However, there was an understanding between
Mr. and Mrs. James from the date of their marriage that as
soon as Respondent's business would permit, Mr. James
would withdraw from the active day-to-day management
of the business to devote his full time to his primary
literary interest of completing the research and writing of
his new book, "The Little Victims," dealing with "children
who are emotionally disturbed, children who are battered
and abused, children who are mistreated in other ways who
have problems at school and children that are retarded."
Mr. James has a researcher who is aiding him on the
preliminary research required for the book.
For 2 months between July 15 and September 15, 1972,
Judith and Howard James left the management of
Respondent's business in other hands while they and their
six children drove westward as far as Colorado in their
pickup truck and camper. The primary purpose of the
travel was to give Mr. James the opportunity to gather
research data for his new book by visitations to various
institutions such as mental hospitals and schools for the
retarded. The other purpose of the travel was to help him
establish a stronger relationship to his four stepchildren by
his marriage to Judith. On the trip, James would from time
to time leave Mrs. James and the children at a trailer camp
while he took off by himself to various locations in search
of data for his book.
The employees at Respondent's news plant at Berlin
knew before the Jameses departed on their westward trip
across the country that the purpose of the trip was to give
Mr. James the opportunity to research his new book. Just
prior to their departure, Mr. and Mrs. James held a
meeting of Respondent's employees on July ! 1972, at
which Mr. James read to them a written statement received
in evidence as Respondent's Exhibit 6. The opening
paragraph of that statement reads:
As you already know, I have a book contract and must
keep my committment to my publisher . So must go out
and research.
The balance of Mr. James' statement to Respondent's
5 Sua sponte, the record is corrected to show the circulation of the Berlin
Reporter and the Northland News to be as shown above as against the
employees addressed itself primarily to the financial
conditions facing the Company over which Mr. James
expressed much concern. Respondent's financial condition
of that time, July 13, 1972, has a bearing on the discharges
that thereafter took place in the early part of 1973. In that
connection the key portions of the statement read as
follows:
We now have the largest payroll in the history of The
Reporter. . . . With this big payroll, and with the
improvements we have been trying to make, profits are
now at an all time low .... One of our major
problems has been the job shop. On most weekly
papers the job shop accounts for anywhere from 40 to
60 percent of the income. Our job shop doesn't even
account for 10 percent of the income ... .
If we don't bring in more business for the web press; if
we don't find other ways to build the [Berlin] Reporter
and Northland News; and if we don't make substantial
increases in the job shop , we are going to have to cut
several jobs off the payroll.
The above warning of possible discharges for financial
reasons was made many months before there was any
union activity among Respondent's employees and months
before the Respondent was charged with unfair labor
practices stemming out of alleged interferences of the
rights guaranteed employees by the Act to self-organiza-
tion and to join unions.
It appears that when the news plant here involved was
taken over in 1967 by Mr. and Mrs. Munro, the plant was
engaged in the publication only of the Berlin Reporter and
in the operation of a job shop for the printing of
letterheads, school reports, and other printed matter wholly
unrelated to the publishing end of the business.
At a later date the Respondent also began the publica-
tion of another newspaper called the Northland News out
of its plant in Berlin . At first the Northland News was
published semimonthly but in early November 1972 it was
changed to a weekly publication. Simultaneously with this
change, the Respondent also commenced the publication
of a new weekly newspaper out of its Berlin plant called
the Groveton News which was identical with the North-
land News except that the front page of the Groveton
News was different.
Each of the three newspapers has its own separate
geographical circulation, the circulation of the Berlin
Reporter being 9,500; the Northland News, 7,600; and the
Groveton News, 600.5
B. Alleged Interference, Restraint, and Coercion
The complaint as amended alleges three instances of
unfair labor practices as independent violations of Section
8(a)(1) of the Act. These will be discussed in chronological
order below.
inverted figures of 7,600 for the Berlin Reporter and 9,500 for the Northland
News shown in the transcript.
MUNRO ENTERPRISES, INC.
1. Incident of December 1, 1972
The complaint alleges that on December 1, 1972,
Howard James "threatened employees with reprisals if
they supported a union by stating at a meeting of
employees that if the employees became represented by a
union, they would have to work the hours for which they
are paid, and there would be no free time available."
The record is undisputed that a staff meeting of virtually
all of Respondent's 34 employees was held at the news
plant on December 1, 1972, pursuant to the request of the
employees for the purpose of discussing with Mr. and Mrs.
James certain of their demands as set forth in a document
presented in advance of the meeting to Mr. James and in
evidence as General Counsel's Exhibit 11. At the meeting
Mr. James was the spokesman for management and John
Twist, an alleged discriminatee, was one of the spokesmen
for employees present at the meeting.
Twist testified that Howard James said to the employees
at the meeting that "if the union came into the paper" the
employees would be required to punch a clock, and that,
"There would be no free time." Maurice Lavertue, another
alleged discriminatee and spokesman for the employees at
the meeting, also testified that James at the meeting stated
that "if you had a union in here there would be no more
free time around here." From other testimony by James
this reference to free time appears to be a reference to the
Respondent's then existing practice of "tolerating" em-
ployees to leave the news plant sometimes a few minutes
before their regular quitting times.
Howard James in his testimony flatly denied that he had
made that statement to his employees.
Discussion and Conclusions
From a careful reading of the statement attributed by
Twist and Lavertue to Howard James , I find that even if
that attributed statement is credited, it did not constitute a
threat of reprisals against the employees if they supported
the Union but was merely an expression of opinion of what
might occur un r a tightly worded collective -bargaining
agreement . Suc an expression of opinion in the light of
the entire context of that staff meeting was in my view
merely a protected expression of the Employer 's "views,
argument , or opinion" under Section 8(c) of the Act. It is
significant that neither Twist or Lavertue testified that they
regarded James ' statement as a threat of reprisal if the
Union came in . A careful reading of the testimony elating
to that staff meeting shows that there was a mutual and
frank discussion of the pros and cons of having a union at
Respondent 's news plant . It is significant that out of the 34
or so employees at the indicated staff meeting and the 10
employees who testified in this proceeding only Twist and
Lavertue attributed the statement in question to James.
As noted James denies the statement attributed to him.
While I credit Twist 's and Lavertue's testimony that James
made such a statement to the employees at the staff
meeting, I credit James' denial of the attributed statement
insofar as it implies any threat of reprisal against the
employees if they decided to be represented by the Union.
2. Incident of December 28, 1972
407
The complaint, as amended, alleges that on or about
December 28, 1972, Howard James "threatened employees
with economic reprisals if they supported the Union by
stating to John Twist that if the Union got in, the printing
of the newspaper could be done in Norway [Maine] and
that the production shop could be closed."
The composite testimony of Twist and Howard James
leaves no doubt that James in a private conversation he
had with Twist told Twist that the printing of Respondent's
newspapers "could" be done in Norway, Maine, but the
similarity ends there as their testimony is in conflict both
as to the date of the conversation and the context out of
which the above statement was made.
The complaint originally alleged that the incident under
discussion took place on or about January 15, 1973, but at
the opening of the trial before any testimony was taken the
complaint was orally amended to show that incident took
place on or about December 28, 1972.
In his testimony Twist was uncertain as to the precise
date of the incident but placed it within 1 to 3 days prior to
January 3, 1973, the latter being the date on which the
Respondent discharged seven of its employees. Twist
testified that James at that time after engaging him in a
private conversation about the serious shortcomings of
some of Respondent's employees who he said could not
hold jobs elsewhere, told him that if a union came in, it
would be "good" for himself and his wife because the
operation of the plant would then be "a hard nose
operation" and "if the people did go union, that he could
do his printing in Norway-Norway, Maine."
James, on the other hand, gave an entirely different
version of the background of his remark to Twist that the
printing of Respondent's newspapers "could be done in
Norway, Maine." His version is inextricably tied in with a
very serious and undisputed problem he was facing in
finding a pressman to replace the pressman who had
served notice on January 15, 1973, of his desire to resign
his job so that he could rejoin his wife and small daughter
in Connecticut. That pressman was Robert Gauvin who
had started his job as a pressman for Respondent in late
October 1972. Gauvin's testimony corroborates James' that
he notified James on January 15, 1973, that he would be
terminating his employment as of May 1, 1973, later
advanced to mid-March 1973. James testified that shortly
after Gauvin notified him of his impending resignation that
he offered the pressman's job to Twist but that Twist
would not commit himself and later declined the offer. In
that connection as is here more directly pertinent, James
testified that Twist at that same conversation asked him
what he would do if he could not find a replacement
pressman and that he (James) replied, "I could probably
print in Norway." James expressly denied making that
remark as a threat to print elsewhere if the Union
succeeded in coming in.
Twist admits that James had offered him the pressman's
job, but his testimony flatly contradicts James' testimony
that the offer was made in the middle of January 1973.
Instead he testified that James made the offer to him in
November 1972 before Gauvin became the pressman and
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while Tom Yoder was still the pressman and James was
still looking for a replacement for Yoder.
Discussion and Conclusions
Summarized, the parties are agreed that at a disputed
time James told Twist that the printing of Respondent's
newspapers which were being printed at Berlin "could be
done in Norway." The time and context of that statement
is in dispute. Twist testified that the remark was made on
December 28, 1972, as part of the larger declaration, "If
the people [employees] did go union, that he [James] could
do his printing in Norway." James, on the other hand,
testified that his remark that the printing "could be done in
Norway" was made on January 15, 1973, in response to
Twist's question as to what he would do if he could not get
a replacement for his pressman Gauvin who had given
notice that he was quitting.
From a careful study of the record as a whole, I credit
James' version of what he said to Twist both as to time and
as to context against Twist's version. I make that
credibility resolution because Twist admits that James, at
the time he offered him the chief pressman's job, did tell
him that if he could not find a replacement for the
departing pressman, Gauvin, that he could punt in
Norway and because that offer must have been made to
Twist on January 15, 1973, as testified to by James, and not
in November 1972 as claimed by Twist because in
November 1972 the Respondent did not then have a
pressman vacancy as Gauvin's undisputed testimony
shows that he became pressman for Respondent in
October 1972.
These circumstances compel a finding that James'
remark to Twist that the Respondent "could print in
Norway" was made in mid-January 1973 when Twist asked
what James would do if he was unable to find a pressman
to replace his departing pressman. Coordinately, I credit
James' denial that in his private talk with Twist he
threatened to print at Norway if the Respondent's plant
became unionized.
The only argument advanced by General Counsel in his
brief for not crediting James' version of the incident is
based on an inaccurate interpretation of his testimony
under cross-examination. The argument goes that James'
offer of the pressman's job to Twist could not have been
made on January 15, 1973, as claimed by James because
his testimony under cross-examination shows that he made
the offer to Twist, who had mechanical ability, as a result
of advice received from "people at the New England Press
Association and other publishers" for the solution of the
problem small newspapers were having getting pressmen
was "to train somebody locally and to look for someone
with mechanical ability," and that this advice could not
have been made on January 15 or within the month
thereafter because the annual conference of the New
England Press Association did not start until January 15
and because James testified that he was away from Berlin
for 30 days thereafter. Based on this interpretation of
James' testimony under cross-examination, counsel for
General Counsel contends that, "James obviously lied
when he claimed that he was prompted to ask Twist about
running the press because of what he had been told by the
people at the Press Association, since the Press Association
conference had not even taken place"6
That argument is without merit for at least two reasons.
First, James did not state in his testimony that he secured
the advice to train a local man with mechanical skill to
become a pressman at the conference of the New England
Press Association which commenced on January 15, 1973;
he merely testified that he received this advice from
"people at the New England Press Association and other
publishers." Secondly, James' testimony does not show as
claimed by Government Counsel that he was continuously
away from Berlin for approximately a month from and
after January 15. On the contrary his testimony shows that
he came back to Berlin every Friday afternoon to hold a
staff meeting of Respondent's employees and on other
occasions to pick up his wife "if she didn't have the car."
Moreover, James' testimony shows that his intermittent
absences from Berlin for the period January 15 to
February 15 was primarily to work on his book. His
attendance at the conference at Boston of the New
England Press Association obviously could not have lasted
a full month as it is common knowledge that association
conferences generally run only a week. Thus , even if
credence is given to General Counsel's contention that
Janes did not make his offer of the pressman's job to Twist
until after the conference of the Association took place as
the result of advice from people in attendance at the
conference, it is clear that he could have made his offer to
Twist of the pressman's job as early as the Friday following
the opening of the conference on Monday, January 15,
1973. It is significant that James did not testify that he
made the offer to Twist prior to his leaving Berlin to attend
the association meeting in Boston; his verbatim testimony
is that he made the offer, "In the middle of January dust
prior to my leaving the paper to go to work on the book. "
(Emphasis supplied.)
However, even if the above rationale did not exist for
crediting James' version of the incident against Twist's, I
would still credit James' version because both James and
Twist seemed by the conviction of their testimony and by
their demeanor to be equally sincere and truthful in their
testimony. Under such circumstances, I find and conclude
that the General Counsel has failed to meet the burden of
proof on the allegation in the complaint that James
"threatened employees with economic reprisals if they
supported the Union by stating to John Twist that if the
Union got in, the punting of the newspaper could be done
in Norway and that the production shop could be closed."
Accordingly I find that General Counsel has not sustained
the allegation by a preponderance of testimony and will
dismiss the allegation for failure of proof. Blue Flash
Express, Inc., 109 NLRB 592, 601-602; Casa Grande Cotton
Oil Mill, 110 NLRB 1834, 1852; Editorial "El Impartial";
Inc., 131 NLRB 223 at fn. 1.
3. Incident of December 15, 1973
Finally with respect to the Section 8(a)(l) allegations, the
6 G C bnef, p 7, fn 12
MUNRO ENTERPRISES, INC. 409
complaint alleges that on or about February 10, 1973,
Howard James at the office "threatened employees with
reprisals if they supported the Union by stating to Louise
Nolin, `I do not know what your feelings are about unions,
but if the Union gets in, you will have to work to seven.' "
Louise Nolin commenced her employment with the
Respondent on January 2, 1972, as a typesetter in the
Company's compugraphic department where its makeup
newspapers are proofread and set to type. She was
discharged on January 3, 1973, reinstated on February 5,
1973, and discharged again on March 9, 1973. The
question of whether her discharges were discnmmatonly
motivated are also issues in the case; they will be dealt with
in later sections of this Decision. The present section deals
only with the alleged independent Section 8(a)(1) violation
described above.
Up to the time of first discharge on January 3, 1973,
Nolm, a young married woman and mother of a 2-year old
daughter , worked only part time, putting in an average of
about 12 hours per week. She was recalled on February 5
to work full time to take the place of another typesetter
who had quit. Prior to February 5, she had declined to
work full time because of her young child.
Nolm participated in the brief walk-out of Respondent's
employees of November 7, 1972, over what they consid-
ered Howard James' unfair treatment of a fellow employee
as heretofore mentioned. On December 12, 1972, she
signed a union authorization card. At unremembered times
she attended one or more union meetings.
Nolin worked with a senior typesetter, Eleanor Theberg,
who began her employment with the Respondent in 1943.
Both were discharged on March 9, 1973, when the
Respondent shut down its production department and
contracted to have its newspapers printed in Norway,
Maine, by another printer.
Notwithstanding her relatively recent experience as a
typesetter, Howard James regarded Nolin as "our best
operator on the compugraphic" because she "made the
fewest mistakes . . . and was the most able person we
had."
However, the composite testimony of Nolin and Howard
James shows that they did not always get along well
because r ' ,er trait of independence and tendency to be
argume. ...ive. In November of 1972 when she was a part-
time employee she became argumentative and difficult to
deal with because of James' discharge of the then acting
general manager, Tom Yoder. At another time because of
an unpleasantness that developed between James and
Nolin over the malfunction of a piece of equipment, Nolin
told James that she "wouldn't be able to work with him" if
9 The transcript of Nolin's testimony reads
Q. (to Noun) And you apparently had a disagreement or a
misunderstanding between you as to what the arrangement [i e , with
respect to working until 7 p in on Tuesdays] was to be Is that correct?
You apparently didn't understand him and he apparently didn't
understand your interpretation of how the schedule could work Would
that be a fair way to say that?
A It could
8 James admits that he did mention the Union to Nolin at the time he
queued her over her failure to work until 7 p in on Tuesdays in accordance
with her scheduled worktime, but testified that he did this only in
connection with telling her, pursuant to advice received from his counsel
after he had received notice that the Union had filed a petition for an
the relationship between them continued to remain
strained. Moments later, feeling that he had perhaps been
unjust to her, James apologized to Nolin for the incident
and asked for her understanding. She replied that she loved
her work and would do all she could to see the paper grow.
On February 5, 1973, when Mrs. Nolin was rehired for
full-time employment, an agreed schedule of the hours she
was to work was posted on the employees' bulletin board
and from all the evidence of record it appears and is found
that Mrs. Nolin herself posted the schedule . It is undisput-
ed that the schedule showed that she was to work until 7
p.m. on Tuesdays.
Nolin admits that at the time of her rehiring the "prime"
subject of her conversation with Howard James was that
she was "to work until 7 o'clock on Tuesday nights."
However, she testified that notwithstanding that agreement
she simultaneously told James that she "preferred a
change" in her scheduled worktime so that she would not
have to work on Tuesdays until 7 p.m. because of her small
child and that James in response told her that "if I could
arrange with my co-workers a schedule and still meet the
deadlines and still get my work out, that it would be all
right with him."
Although Nolin believes that she had such an arrange-
ment with Mr. James, she admitted under cross-examina-
tion that it was possible that James "didn't understand .. .
[her] interpretation of how the schedule could work."7
On February 15, some 10 days after she had been
rehired, James asked Nolin why she was not working until
7 p.m. on Tuesdays in accordance with the posted work
schedule. She replied that she thought there was an
"arrangement ... when he hired me, that if my co-
workers agreed that I could have another schedule, that it
would be all right with him." As James insisted that she
work until 7 p.m. on Tuesdays in accordance with her
posted work-hour schedule, she told him that she "found it
unnecessary" because she "hardly had any work to keep
me going until 6 o'clock." At that juncture I credit Nolin's
testimony that James said to her, "Listen here lady, I don't
know what your feelings are about unions, but if the union
gets in here, if Judy [his wife] or I tell you to work until 7,
you will have to work until 7."8 The record leaves no doubt
that Nolin understood this to mean that if the union came
in, she would be required to work her full posted scheduled
hours on Tuesdays. Her reply to James on this was, "I'll see
about that-we'll see about that "
At the trial counsel did not question James on whether
upon rehiring Nolin he had agreed to allow her to leave the
news plant earlier than 7 p.m. on Tuesdays if she could
arrange to get her work out before 7 p.m. As a result there
election, "that we could make no deals or special arrangements with any
employee " I do not credit this highly sophisticated explanation by James as
to how he happened to mention the Union to Nolin As James was
obviously angry with Nolin for not living up to her scheduled Tuesday night
work hours, I find that his more natural response to her telling him that she
"found it unnecessary' 'o work to 7 p in "because I hardly had any work to
keep me going until 6 c'ciock" was the remark attributed to him by Nolin as
quoted above I also credit the quoted remark because Noun' s superior
demeanor carried more conviction than James' However, the creditation of
the remark does not dispose of the ultimate question whether it constitutes a
violation of Section 8(a)(l) of the Act That is a determination that must be
made in the light of all the circumstances surrounding the remark
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no testimony by James in the record on this . However,
from the fact that James some 10 days after he hired her
jumped Nolin for not working until 7 o'clock on Tuesdays
and from Nolin's admission that it was possible that James
did not understand from the conversation she had with
him on the day of her hiring that he had agreed to let her
off before 7 p.m. on Tuesdays if her work was finished, I
find that James had not entered into such an arrangement
with Nolin and that she was mistaken in believing that they
had such an agreed arrangement contrary to her posted
scheduled worktime.
Discussion and Conclusions
As the above findings show that James upon rehiring
Nolin did not give her permission to end her work day
earlier than her posted Tuesday 7 p.m. quitting time if she
finished her day's work before that time, I find and
conclude that his assertion to her, after he discovered she
was not working until 7 p.m., that in the event the Union
came in she would be required to stay at the news plant
until her regular 7 p.m. quitting time , was not a threat of a
withdrawal of a preunion work benefit to leave before her
scheduled quitting time because he had never given her
that right. Accordingly, I find James' assertion to Nolin
that if the Union came in she would have to put in her full
posted Tuesday work hours does not constitute an unfair
labor practice in violation of Section 8(a)(l) of the Act.
But even if it is assumed that the record would support a
finding that James upon rehiring Noun had given her
permission to leave the news plant earlier than her
scheduled Tuesday 7 p.m. quitting time provided she got
her work out of the way ahead of time, I find and conclude
that James' assertion to Nolin that if, the plant were
unionized she would have to work her full scheduled work
hours, was not a threat but merely an angry retort to
Noun's impertinent rejoinder that she found it "unneces-
sary" to work until 7 p.m. because she hardly had enough
work to keep her going until 6 p.m. I further find that
James' retort under the circumstances of Nolin's provoca-
tive rejoinder constitutes privileged speech under the
provisions of Section 8(c) of the Act. The retort was more
than a mere protected opinion ; it was an assertion of the
truth that under a collective-bargaining agreement, em-
ployees are required to work the full hours they are paid
for. It is also clear that whether or not the Employer
provides work to keep his employees occupied, he is
entitled to have his employees present on their jobs during
the hours he pays them to be present.
Under the full circumstances here present the allegations
of the complaint under consideration will be dismissed for
failure of proof.
C. Appropriateness of the Alleged Unit
The complaint alleges that all of Respondent's full-time
and regular part-time editors, writers, reporters, advertising
solicitors, clerks, receptionists, bookkeepers, artists, pho-
tographers, circulation and office personnel, all printing
production employees excluding executives, professional
employees, guards, and supervisors as defined in the Act
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
Although the Respondent in its answer denies the above
allegation, it offered no evidence to the contrary at the trial
and does not list that allegation as an issue or advance any
argument thereon in its brief.
The record shows that at the times here pertinent all of
Respondent's employees worked under the same working
conditions and rules, shared common supervision, had
contact with each other , and shared the same fringe
benefits . These facts are manifest from Respondent's own
handbook entitled "Employee Benefits and Work Rules."
In addition the employees in each of Respondent's
departments were expected to and did perform functions in
other departments and were required to attend general
staff meetings as called by management.
Discussion and Conclusion
On the basis of the above undisputed facts, I find that
Respondent has an appropriate unit of employees as
alleged in the complaint and set forth above.
D. Alleged Discriml zatory Discharges of January 3,
1973, and Background
The Company on January 3, 1973, discharged 7 of its
then approximately 34 employees which included supervi-
sors and temporary part-time employees . Six of the seven
dischargees were discharged as a group by Mrs. James and
told that they were being terminated for financial reasons.
At the trial Mrs. James testified that some of these six
dischargees were also discharged because of dissatisfaction
with their work although they were not told so at the time
of termination . The six persons so discharged as a group
were Joseph Rivard, Maurice Lavertue, Natalie Caron,
Thomas Ramsey, Lilo Eder, and Gregory Melville. The
seventh person discharged on the same date was Louise
Nolin who was discharged by telephone by Mr. James as
she was home sick that day . At first he told Nolin that he
thought he would have to discharge her because of lack of
funds but as she pressed him for a definite answer he told
her it was best to call it "quits" over the telephone as her
"attitude hadn't been good at work ." As heretofore noted,
Nolin is a person of independent disposition who became
argumentative and difficult to deal with over Mr. James'
discharge of the news plant's Acting General Manager
Yoder.
Except for Melville, who was not employed at the time,
all of the above-mentioned dischargees of January 3, 1973,
had participated in the November 7, 1972 , walkout
described in earlier sections of this Decision. Dischargee
Twist had been the spokesman for the employees during
the course of their brief walkout . Dischargee Lavertue and
another employee had caused the walkout.
All of the seven dischargees here under consideration
except Melville and Ramsey had signed union cards in
December 1972, about some 15 days prior to their
discharge of January 3, 1973 . In addition 12 other
nondischarged employees , including Robert Gauvin, a
stipulated supervisor , had also signed union cards prior to
January 3, 1973 . Moreover, Supervisor Gauvin attended
MUNRO ENTERPRISES, INC.
union meetings and accordingly was in the position to
advise management as to the employees at the plant
involved in union activity . Excluding from the 34 employ-
ees that the Company had on January 3, 1973, all admitted
or claimed supervisors and all temporary part -time help
(such as high school students), the Respondent on January
3, 1973, had 20 admitted bona fide employees and of that
number 14 had signed union cards prior to January 3,
1973 . From these facts, I infer and find under the small
plant doctrine that the Respondent at the time of the
discharge of the seven employees here under consideration
had knowledge that all of them except Melville were union
activists or supporters or believed them to be such. Malone
Knitting Co., 152 NLRB 643, 647, and cases cited. The
small plant doctrine is obviously even more applicable to a
small plant in a small town such as Berlin which has a
population of only about 15,000.
In addition the small plant doctrine has special relevance
in a situation such as here present where one of the card
signers (Gauvin) is a stipulated supervisor who not only
signed a union card but also attended union meetings. It is
inferred and found that his knowledge of the union activity
of the employees in the news plant became that of the
Respondent. Rust Sales Co., 157 NLRB 1681, fn. 7; J. J.
Gambery & Pennley Pack South, Inc., 189 NLRB 889, 890.
The record further shows that the Respondent at all
times here pertinent was opposed to having a union or an
association of employees at its news plant . Following their
walkout of November 7, 1972, the employees presented 14
written demands upon Mr . James as Respondent's general
manager . The 14th demand was in effect a demand that the
Respondent recognize the Berlin Reporter Employees
Association which had been formed as of November 7,
1972. Mr. James declined to meet with Respondent's
employees unless they withdrew that demand. It was only
after the employees agreed to withdraw that demand that
James met with them on their other 13 demands .9
The intensity of Mr. James ' opposition to having a union
at the plant is further evidenced by a conversation he had
with one of Respondent's admitted supervisors, Earl
Burton, on February 16, 1973, who at the time was The
Berlin Reporter's Valley editor. James told Burton that one
of his employees "had come to him with evidence of
sabotage on the press" and for that reason on the advice of
counsel he was thinking of changing the locks to the news
plant. When Burton countered with the remark that, "Life
was too short not to trust people," James grabbed Burton
by his necktie and said, ". . . They have me by the neck;
they want to unionize everybody but Judy [Mrs. James]
and me." 10 The above incident took place several days
after the Union had filed a petition for an election and
made a demand upon Respondent for recognition . About a
month after the above incident Burton resigned from his
post as Valley editor of the Respondent and at the time he
9 The findings of the above paragraph are based upon the credited
testimony of employees Twist and Lavertue. James' ultimatum that he
would not meet with the employees on their 14-pomt demand , unless they
dropped their 14th demand for recognition as a group , is not alleged as an
unfair labor practice in the complaint and counsel for General Counsel at
the trial did not seek to raise the matter as an issue by litigation . As it is
evident from the record that General Counsel had knowledge of Mr. James'
ultimatum prior to the issuance of the complaint but chose to use it solely to
411
testified herein he was employed by another newspaper in
a different city.
The following is the evidence adduced by Respondent in
its effort to establish that its collective discharge of the
seven aforementioned employees on January 3 , 1973, was
brought about primarily by financial necessity.
The record shows that long before the employees'
walkout of November 7, 1972, or any union activity at the
news plant, the Company was finding that its job shop
department was a losing venture despite recurrent efforts
to put it on a paying or profitable basis . Thus at a staff
meeting held on July 13, 1972, Mr. James, reading from
prepared memorandum which was later posted , told the
employees that,
One of our major problems has been the job shop. On
most weekly papers the job shop accounts for anywhere
from 40 to 60 percent of the income. Our job shop
doesn 't even account for 10 percent of the income
-and that must change. Our goal is to increase the
job shop business to at least one-third of our total
business.
Mr. James further warned the employees that,
If we don't bring in more business for the web press; if
we don't find other ways to build the Reporter and
Northland News ; and if we don't make substantial
increases in the job shop, we are going to have to cut
severaljobs off the payroll. i i (Emphasis supplied.)
At another staff meeting held on October 24, 1972, still
before any union activity had manifested itself at the plant,
Mr. James , again reading from a prepared and later
memorandum, had this to say to the assembled employees
about the job shop department,
Number one problem area is the job shop . We've long
suspected that it has been dragging us down . But not
until we improve our bookkeeping methods did we
know how much ! And it is clear that it has been going
on for years.
Our choice is clear: either close the shop down, and sell
the equipment NOW or make it pay NOW. There is no
question about the leak , and we've got to plug it
quickly.
Closing the shop would mean cutting one or more
persons from the staff-people who do not have a variety
of skills.
11
The job shop has been losing for three reasons: (1) We
have done a very poor job of selling job printing since
show union animus, General Counsel's request in his brief (fn 26, p. 12)
that the ultimatum be considered as an additional violation of Section
8(a)(1) as part of his motion to conform pleadings to proof is denied (See
beef of General Counsel , p. 12, In. 26.)
io The above findings are based upon the credited testimony of Burton.
11 The above paragraph is a repetition of an earlier quotation above but
in another connection.
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steve [Munro, the deceased husband of the present
Mrs. James], and Steve was only starting to make the
shop break even. (2) Too often we've done a poor job
with our regular customers, until now we have very few
regular customers left. (3) We don't have the talent on
our present staff to do more than the most simple,
cheap jobs, and the shop is a big money-loser because
of this.
Along with its money losing job shop department, the
Respondent has also had an overall financially deteriorat-
ing situation which began months before any union
activity started at the news plant. In part, this was due to
an over expansion of Respondent's payroll. The aforemen-
tioned memorandum of July 13, 1972, which Mr. James
read at a staff meeting of all of Respondent's employees,
speaks of the financial problems facing the Company in
part as follows:
We now have the largest payroll in the history of The
Reporter.
With this big payroll, and with the improvements we
have been trying to make, profits are now at an all time
low, since Munro Enterprises has taken over the paper.
Part of the reason for this is that each year raises have
been given to most or all employees, and yet business
has not been that much better. At the same time, costs
have climbed.
Part of the problem has been the switch from hot type
to cold type. At other papers, this reduces costs-but
here it has increased costs. Part of the reason is that we
have had to have more people on the staff-and other
papers have not had to do this.
If we don't bring in more business for the web press; if we
don't find other ways to build the Reporter and Northland
News; and if we don't make substantial increases in the
job shop, we are going to have to cut severaljobs off the
payroll (Emphasis supplied.)
The aforementioned later memorandum of October 24,
1972, which Mr. James read to the staff, shows that
financial position of the Company had not improved, that
costs had risen, that economies were required, and that
employees could not look forward to pay raises in the then
current year of 1972 or in 1973. Pertinent parts of the
memorandum read:
Taxes have gone out of sight on our building; all costs
are up; telephone bills are far too high, so we must
tighten our belts where we can, and the big money-
loser, the job shop, is the key target. (At the same time,
we must find more work for the web press.)
There will be no general wage increases this year: Do
not expect a raise in 1972 or 1973 .... We have no
other choice except put a freeze on wages, except for
people who are clearly growing. (Emphasis as in
memorandum.)
12 The operating expenses shown above for the months of November
and December do not include officers' salaries However, the above profit
figures for the same 2 months reflect profits after officers' salaries (The
profit figures for all months showing profit are before taxes ) Although the
above shows for December an operating profit of $1,021, the profit-and-loss
We are going to go further in the hole-for a brief period
of time - to save some jobs and the job shop. (Emphasis
supplied.)
It is again noted that the above remarks by Mr. James to
Respondent's employees at staff meetings were made prior
to any employees' self-organization or union activity at the
news plant.
Respondent's profit-and-loss statements for the months
of August through December 1972, except for the month of
October for which there is no data of record, reflect the
following: i2
1972
Total Profit
Operating Operating Before
Month Income Expenses Taxes Loss
Aug. $27,692 $24,530 $2,954
Sept. 21,722 25,312 None $3,692
Oct. No data
Nov. 30,007 25,187 2,529
Dec. 31,110 27,235 1,021
Respondent's Federal income tax returns for the years
1969, 1970, 1971, and 1972, based on a fiscal year ending
April 30, show taxable income or loss as follows:
Taxable
Year Income Loss
1969 $21,677
1970 24,365
1971 12,345
1972 $11,042
Thus even with the reduction of seven employees from
its payroll as of January 3, 1973, the Respondent still
showed a loss of $11,042 some 3 months later on April 30,
1973, the end of its fiscal year.
Part of this loss is reflected by Respondent's loss as of
December 28, 1972, of its only outside regular printing
customer for whom it had been printing The Coos County
Democrat, a newspaper.
In the latter part of November 1972 Respondent lost a
promising prospect of a contract to print the newspaper of
another firm, the Walker Press, because that firm began to
question Respondent's reliability to print as a result of the
walkout of Respondent's employees on November 7, 1972.
If that prospect had materialized, the Respondent would
have had an additional source of income in the amount of
$47,000 per year.
From May until November 1972, Respondent had nearly
doubled the number of employees on its payroll from 18 to
35, with a resultant increase in its weekly payroll from
1$2,000 to $3,500 per week.13
For a number of months prior to the January 3, 1973,
discharges, Respondent's accountant had advised Mr. and
Mrs. James to cut the payroll as a means of controlling
costs and curbing losses.
The two Jameses came to the decision to discharge six or
seven of its employees in December of 1972 but decided to
defer action thereon until after the Christmas and New
Year holidays. As heretofore shown, the seven discharges
took place on January 3, 1973.
statement for that month shows an alternate "loss" in the amount of $1,978
by reason of a "Provision for taxes , estimated" in the amount of $3,000
13 The above finding is based upon combined testimony of Howard
James and the aforementioned dischargee , Maurice Lavertue.
MUNRO ENTERPRISES, INC. 413
Of the seven discharges, only two, Joseph Rivard and
Maurice Lavertue, were full- time regular employees. The
remaining five employees were strictly part-time employ-
ees. While Respondent contends that all seven of the
dischargees were discharged primarily for economic
reasons , the two Jameses testified that they were also
selected for termination for other reasons unrelated to any
union activity on their part. Their testimony shows that the
7 dischargees here under consideration were the most
dispensable of the 34 or so employees the Company had on
its payroll at that time.
The two full-time employees discharged on January 3,
1973, were Maurice Lavertue and Joseph Rivard. Lavertue
began his employment with Respondent in its pasteup
department in February 1972 as a part-time employee. In
the latter part of November 1972 he was promoted to the
full-time position of back shop supervisor 14 with a salary
increase to $160 per 40 hour week over the $100 per week
he had been making as a part-time employee. The wage
increase was given Lavertue on the express condition that
he take charge of the compugraphic department in the
back shop which employed four other employees in
addition to Lavertue. Lavertue admits that he accepted the
wage increase subject to his agreement that he take charge
of the compugraphic department.
Notwithstanding that agreement, there is an issue in the
case as to whether Lavertue became in fact a supervisor
within the meaning of the Act after his status changed
from a part-time employee to a full-time employee with a
weekly wage increase of $60. The record shows that after
his promotion Lavertue did not have the power to hire or
fire or discipline other employees and that he spent about
50 percent of his tune doing solo work. On the other hand,
the record shows that he attended supervisor meetings
called by management relating to the mechanical process
of putting out newspapers, that he had the responsibility
for ordering up supplies for the compugraphic department,
that he initiated a new and improved filing system for
advertising pasteup copy, and that he recommended the
hiring to Mr. James of additional employees to fill back
shop positions. The record further shows that the women
employees in the back shop came to Lavertue with
questions relating to their work. From this I infer and find
that he had the authority to responsibly direct the
employees in his department. Based upon the above
findings of fact, I find and conclude without further
discussion that Lavertue was a statutory supervisor at the
time of his discharge.
Aside from the primary financial reason given by Mrs.
James to the employees for their discharge of January 3,
1973, both Mr. and Mrs. James testified that they had
additional private and at that time undisclosed reasons for
selecting Lavertue as well as the other dischargees for
termination. They testified that they selected Lavertue for
termination because they had found him slow in his work
and unimaginative in his pasteups. From the record as a
whole , I find that the Jameses had reasonable cause for
being dissatisfied with the work Lavertue had been doing
for the Company.
Joseph Rivard was the other regular full-time employee
discharged on January 3, 1973. Rivard, about 62 years of
age at the time of his discharge, had worked for The Berlin
Reporter since 1928. He was selected for termination on
January 3 because Respondent had decided to close its job
shop department where he had worked for many years and
because he had become so accustomed to work the hot
type print used in the job shop that he could not make the
transition to the newer cold type equipment the Respon-
dent had recently adopted in its back shop. It was evident
from his testimony and demeanor that he would have
difficulty learning any new skills.
The remaining five employees who were discharged on
January 3, 1973, were part-time employees. Natalie Caron,
who had worked as a proofreader for the Company for
some 11 months, was selected for termination because the
Jameses, according to their combined credited testimony,
felt that her work could be absorbed by an old-time
employee, Eleanor Theberge, and because Theberge had
been noncommittal to Mr. James about whether Caron
should be terminated or retained.
Thomas Ramsey was selected for termination because he
was a high school student and it was felt that his discharge
would have only a minimal disruptive influence on him.
Ramsey was not called as a witness. There is no evidence
of record that he had signed a union authorization card,
but he did participate in the November 7, 1972, walkout.
Gregory Melville was selected for termination because
he had been hired only the week before to temporarily take
the place of a pasteup employee who was ill. Mrs. James
felt that other pasteup employees could handle the work of
the sick employee for a short period as she was expected
back shortly. There is no evidence of record that Melville
had signed or been asked to sign a union authorization
card in the short time he had worked as an hourly
employee for the Company and like Ramsey, he was not
called as a witness. The Company rehired Melville almost
simultaneously with his discharge to sell advertising on a
strictly commission basis. Melville was not in the Compa-
ny's employment at the time of the November 7, 1972,
walkout.
The Jameses advanced no reason for selecting Lilo Eder
for termination other than cutting expenses. Prior to her
termination on January 3, 1973, Eder had worked for some
3 years primarily as a writer of social news for the Berlin
Reporter, covering such news for both Berlin and nearby
Gorham, New Hampshire, which entailed 3 days' work at
the news plant for which she received $24 per week. At the
time of her discharge, Mr. James told her he would like to
rehire her as a social news correspondent for Gorham
where she resides with her husband. As of January 5, 1973,
or 2 days after her discharge, she was reemployed by
Respondent as a social news correspondent for Gorham at
$15 per week, writing her column at home and mailing it in
to the Berlin Reporter.
The final employee selected for termination on January
3, 1973, was Louise Nolin who was the subject of an
alleged Section 8(a)(1) violation dealt with in a previous
section of this Decision. Mr. James considered Nolin as the
14 In his new position as back shop supervisor, Lavertue was given
charge of the compugraphic pasteup and advertising makeup departments
of the Respondent 's news plant
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
best typesetter in the plant's compugraphic department.
For this reason he was reluctant to terminate her but
finally came to the decision to do so because she would not
work the scheduled hours he wanted her to work due to the
fact that she had a 2-year old daughter to look after and
also because he found her difficult to get along with.
In summary, the Jameses testified that their January 3,
1973, discharge of the seven employees, was primarily for
economic reasons but that they also had subsidiary
business reasons as set forth above for selecting these seven
employees for termination.
To further recapitulate, the record shows that for the
fiscal year ending April 30, 1973, the Respondent suffered
an operating loss of $ 11,042 and that warning of a possible
reduction in force if profits did not improve was made to
its employees several months before any self-organization
or unionization efforts took place among the employees.
Discussion and Conclusions
As the above findings show that the Respondent has not
committed any unfair labor practices in violation of
Section 8(a)(1) of the Act, the only remaining possible
basis for finding that it discriminatorily discharged the
involved seven employees on January 3, 1973, are the facts
as found above that Respondent is opposed to having to
deal with the Union and that it had knowledge or believed
that virtually all of the seven discharged employees were
active supporters of the Union.
As to Respondent's opposition to having the Union at its
news plant, it is now well established that an Employer's
mere opposition to a union in the absence of any
interference with the rights guaranteed employees under
Section 7 of the Act does not per se convert the discharge
of a union-favoring employee during the course of an
organizational campaign into a discriminatory discharge in
violation of Section 8(aX3) of the Act. As stated by a Court
of Appeals in 1962, "Certainly the Act does not require
that the Company favor the Union or that it refrain from
opposing the Union, nor does it prohibit the Company from
expressing its opposition to the Union ." (Emphasis
supplied.) N.L.R.B. v. Threads, Incorporated, 308 F.2d 1
(C.A. 4, 1962). Accordingly, I find and conclude that
Respondent's mere opposition to having the Union at its
news plant does not establish a discriminatory motive for
the termination of the seven employees here under
consideration.
There thus remains for consideration only the question
of whether the seven employees were terminated because
of Respondent's knowledge or belief that they favored the
Union as contended by General Counsel. This contention
is at least partially faulted ab initio because the above
findings show that the Respondent rehired Melville as an
advertisement salesman on a commission basis immediate-
ly upon his discharge as an hourly employee in its
compugraphic department and virtually immediately
rehired Eder to work from her home as a social corre-
spondent for the town of Gorham to take the place of her
former services as a writer of general social news in the
plant itself. Such rehirings of employees suspected of union
activity almost immediately after their discharge is not
consonant with the contention that they were discharged
because of their union support. Furthermore, the record
fails to show that Respondent had any knowledge or belief
that Melville had anything to do with the Union at the time
of his discharge as his discharge took place only a week
after he was hired.
As against the contention that the seven employees were
terminated because of their union interest or support, the
record is overwhelming in support of Respondent's defense
that they were discharged because of financial necessity.
That financial necessity is reflected in the fact that the
Company had a net operating loss of $11 ,042 for its fiscal
year 1972 (ending April 30) as against a taxable income of
$12,345 in fiscal 1971 and of $24 ,365 in fiscal 1970. The
basic reason for Respondent 's loss in 1972 was that it had
nearly doubled the number of employees on its payroll
from 18 to 35 in that year, with a resultant increase in its
weekly payroll from $2,000 to $3,500 per week without a
corresponding increase in its operating revenue. General
Manager Howard James sensed the financial difficulties
the Company was getting into in mid-July of 1972 long
before any union activity at the plant got started when he
warned the employees at a staff meeting that unless
revenues from all departments increases , ". . . we were
going to have to cut several jobs off the payroll. " (Emphasis
supplied.) Again on October 24, 1972, James passed on the
alarm he was feeling over the Company's continuing
financial troubles by telling the employees that, ". . . we
must tighten our belts where we can, and the big money-
loser, the job shop, is the key target ... there will be no
general wage increases this year ... do not expect a raise in
1972 or 1973. " (First emphasis supplied; latter emphasis
supplied as in memorandum as read and posted.)
It is significant that the above remarks and warnings of
possible discharges because operating income was not
keeping up with rising expenses were made to Respon-
dent's employees before any self-organization or union
activity had started at Respondent's news plant.
From these undisputed facts and the record as a whole, I
find and conclude that the seven employees discharged on
January 3, 1973, were terminated for economic reasons
and in addition I find that these seven employees were also
selected from Respondent 's staff of employees for termina-
tion for personnel reasons unrelated to their union
activities . I also find and conclude that the discharge of
Lavertue could not in any event have been a discriminato-
ry termination as he was not an "employee" but on the
contrary a "supervisor" within the meaning of the Act at
the date of his discharge . Gibbs Automatic Division, Pierce
Industries, Inc., 129 NLRB 1%, 197-198.
E. Alleged Discriminatory Withdrawal of
Commissions from Employee Godbout
The complaint was amended prior to trial to show a
further alleged violation of Section 8 (aX3) of the Act
(albeit not a discriminatory discharge) as follows:
9(b) Respondent did on or about December 28, 1972,
decrease the wages of Roger Godbout by no longer
paying Godbout any commissions.
At the trial the above alleged date was by oral amendment
MUNRO ENTERPRISES , INC. 415
changed from "on or about December 28, 1972," to "on or
about February 1, 1973."
Roger Godbout, a professional photographer, was hired
by Respondent in October 1971 to work principally in its
darkroom, developing film, making prints and negatives
and plates for Respondent's newspapers , at an hourly wage
of $2.50 per hour which in the fall of 1972 was increased to
$3.25 per hour. It was also part of his job to take pictures
for Respondent during his regular work hours at the same
hourly wage.
In addition Godbout had an arrangement with the
Respondent for picturetaking in his off-duty hours for
which he was to be paid $3 per picture for every picture he
made in his off-duty hours per assignment for use in
Respondent 's newspapers . In early 1972, his pay for
pictures taken after his regular 40-hour week, was changed
by mutual agreement to $4 for the first picture, $2 for the
second picture, and $1 for every additional picture. Thus
under the original arrangement Godbout would be paid a
total of $9 if he took three pictures of three different views
of a burning building, but under the new arrangement he
would receive a total of only $7 for the same three pictures.
In addition Godbout did freelance photography in and
around the Berlin community during his spare time. In
January 1973, Godbout was awarded the title of " Photog-
rapher of the Year" by the New England Press Association
for pictures he had made for the Berlin Reporter.
Starting in March 1972 and running until about the first
week in December 1972, Godbout received from about $70
to $90 a month in supplemental income for pictures he had
taken for the Respondent per assignment in his off-duty
hours . But for the 3-week period between December 7 and
28, 1972, Godbout's bill for pictures taken per assignment
on his off-duty hours came to $178 plus $10.70 for travel
which was paid to him on January 18, 1973. For the period
January 4 to February 8, 1973, Godbout's bill for pictures
taken per assignment on his off -duty hours came to
$200.70 plus $71 .30 for mileage which was duly paid to
him.
Although these last two bills were incurred as per
assignment or directive, the credited testimony of Mr.
James shows that in reviewing the bills he became alarmed
over their size due to the financial difficulties the Company
was then having and because of his desire to curtail
expenses so that no further discharges would have to be
made . A further factor that caused him alarm was that the
Company had just recently lost its contract to print the
Coos County Democrat , a weekly newspaper, with the
attendant loss of regular monthly operating income from
that source.
On February 15, 1973, Mr. James conferred with
Godbout on the subject of his picturetaking for the
Company in his off-duty hours and issued to him certain
directives in that connection. There is a sharp conflict of
testimony over what those directives were.
Godbout testified that James told him that "as of now"
the Company would discontinue giving him any assign-
ments to take pictures in his off -duty hours and that James
directed him to take all assigned photographs during his
regular 40-hour workweek insofar as his primary duties in
the darkroom permitted him to be away from the news
plant for such picturetaking. This had the effect of cutting
Godbout off from $70 to $90 per month in the supplemen-
tal earnings he had been receiving for taking pictures for
Respondent's newspapers in his off-duty hours . Godbout's
testimony further shows that James told him that if he did
not like this new arrangement he could leave , but that he
chose to stay although he had previously told James that he
would quit if the Company discontinued using him for
picturetaking in his off-duty hours.
James, on the other hand, flatly denied that he told
Godbout that he was to be cut off from all picturetaking on
his off-duty hours for the extra compensation he had been
making. He instead testified that he told Godbout "to take
fewer pictures on his own [off duty] time and more pictures
on company time," that is, during his regular 40-hour
workweek at his hourly wage of $3.25 per hour.
Although the record shows that Godbout's memory is
not very reliable, I credit his testimony that James on
February 15, 1973, cut him off from doing any photo-
graphing for supplemental income in his off-duty hours.
This follows from the fact that the record shows that
Godbout at no time after his conversation with James
received any commissions for such off-duty hours picture-
taking in the 3 remaining weeks of employment he had
with the Company until his discharge of March 9, 1973,
with others, when the Company shut down its backroom
and contracted to have its newspapers printed elsewhere.
Godbout was one of the two employees who organized
the November 7, 1972, employees ' walkout . On December
12, 1972, he signed a union authorization card. He also
solicited and received a number of such cards from other
employees in the news plant and attended union meetings.
I infer and find that James had knowledge of Godbout's
widespread union activity at the time he temporarily cut
him off from taking pictures for the Company in his off-
duty hours . A similar finding was made above under the
small plant doctrine that Respondent had knowledge of the
union activities of the employees it discharged on January
3, 1973 , who were nevertheless found to have been
terminated for economic reasons.
Discussion and Conclusions
The record compels the conclusion that the Respondent
on February 15, 1973, put a temporary stop to Godbout's
picturetaking in his off-duty hours for strictly economic
reasons and not because of his known or suspected union
activities . The stringency of Respondent's financial situa-
tion at the time of this action, as fully set forth above, does
not require reiteration here. It is sufficient to note that Mr.
James discovered that for the months of December 1972
and January 1973 the amount of money the Company was
paying Godbout for his off-duty picturetaking greatly
exceeded the $70 to $90 per month it had been paying him
in preceding months and more than doubled the $130 he
earned on his regular 40-hour a week job with the
Company. The record further shows that at the time of this
discovery James was looking for every possible way to cut
expenses so that it would not be necessary to discharge any
additional employees beyond the seven employees who
had been discharged for economic reasons on January 3,
1973, and that he was especially looking for ways and
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means of cutting expenses because the Company had only
rece itly lost its contract to publish the Coos County
Democrat , a weekly newspaper, which had been a source
of regular monthly mcome.
It is evident that Godbout himself realized the economic
necessity for this temporary halt of his moonlighting
picturetaking for the Company because after thinking it
over he agreed to stay on with the Company despite his
previous declaration to Mr. James that he would quit if the
Company discontinued using him for picturetakmg in his
off-duty hours and thereby denied him the opportunity to
supplement his regular wage income.
For the above reasons and from the record as a whole I
find that Respondent's temporary suspension of the
picturetaking work it had formerly given Godbout to do in
his off-duty hours was not discriminatorily motivated and
accordingly was and is not a violation of Section 8(a)(3) of
the Act as alleged in the complaint.
F. Alleged Discriminatory Discharge of John Twist
John Twist, a young man heretofore referred to in
connection with two of Respondent's alleged Section
8(a)(1) violations , became an employee of the Respondent
in February 1972 when he was hired to work as an
advertising solicitor in response to a want ad in the Berlin
Reporter. In addition to soliciting advertisements, it was
also part of his job to lay out such advertisements as he
sold in the news plant's pasteup department. Originally
hired by Mr. James, he was also discharged by James on
February 20, 1973, because of alleged dissatisfaction with
his work.
Twist started his employment with Respondent at a
weekly salary of $70. Some 2 months later after complaints
from Twist that he was having trouble supporting his wife
and child on the salary he was receiving, Mr. James
persuaded Twist, a Vietnam veteran, to apply to the
Veterans Administration for job training as an advertising
solicitor under its financial assistance job training program
for veterans although he had planned to save such
assistance for institutional education.15 Sometime in the
summer of 1972, the Veterans Administration began
paying Twist approximately $155 a month towards his on-
the-job training program which enabled him to more
adequately meet his family's living expenses.
In November 1972 James increased Twist's salary from
$70 to $80 per week and at or about the same time gave
him a commission of 2 percent on all advertising he
personally sold. He received no commissions on estab-
lished advertising accounts although he was expected to
service some of such accounts.
For most of his year with Respondent, Twist worked
under the supervision of Tom Yoder, the acting general
manager , and later under the supervision of Dick Barlow,
sales and business manager , and only briefly directly under
Mr. James and Mrs. James. Frequent executive confer-
is I credit Twist's testimony, as corroborated by Respondent's former
Acting General Manager Yoder, that James ' suggestion to and persuasion
of Twist to apply to the Veterans Administration took place some weeks
after he was hired I discredit James' testimony that Twist was hired with the
understanding that he would apply to the Veterans Administration to be put
on its job training program as part of his employment with Respondent and
ences were held on ways and means of increasing
Respondent's revenues from advertising which Twist
attended.
Around the first of February 1973, shortly before Twist
was discharged, the Respondent hired Stuart Newhall as its
advertising manager, the first such employee to hold that
position and title during Twist's tenure with the Company
as an advertising solicitor. Newhall also solicited advertise-
ments.
Twist became associated in the minds of Mr. and Mrs.
James with efforts to organize Respondent's news plant
since the employees' walkout of November 7, 1972, in
which he participated. They came to think that he was
responsible for the walkout and Mr. James referred to the
walkout as "John Twist's walkout" and accused Twist of
having cost the Company the loss of a potential $47,000
contract from the Walker Press, heretofore mentioned, by
reason of "John Twist's walkout." They drew this
conclusion from the fact that Twist almost from the
beginning of the walkout became the dominant or
exclusive spokesman for Respondent's employees. He was
their spokesman in connection with the 14-point demand
made on the Company, more fully described in an earlier
section of this Decision. He also played a key role in
attempting to get Local 75 of the Pulp and Paper Workers
to organize the plant, later abandoned in favor of the
Boston Mailers' Union No. 1, the Charging Party herein.
The following quotations from Respondent's brief shows
that Mr. James recognized Twist as the employees'
spokesman from the time the walkout began on November
7 until long after its short duration, well into December
1972:
Mr. James testified that . . . [on November 10, 1972]
he asked the employee spokesman, John Twist, what
those [union authorization] cards were all about ... .
And thereafter [on December 10, 19721 he [Mr. James ]
did in fact discuss problems with the designated
spokesman, John Twist.
Around December 10 Mr. James did recall one
occasion where he went to the employees' spokesman,
John Twist, to discuss certain problems . . . . Shortly
afterwards, when he again went to Mr. Twist with other
matters, he was told by Mr. Twist that he was no longer
the employees' spokesman and that there was nothing
more to the Employees' Association.is (Emphasis
supplied.)
A prior section of this Decision entitled "Incident of
December 28, 1972" shows that Mr. James by complaining
to Twist around the first of January 1973 about what he
considered the shortcomings of many of Respondent's
employees, still considered him a spokesman for Respon-
dent's employees despite Twist's disclaimer of that role.
Twist signed a union authorization card for Local 75 of
thus was merely hired as a trainee advertising solicitor subject to dismissal
at any time Yoder, who corroborated Twist, was called as witness by
Respondent, not by General Counsel.
i6 The above quotations are from unnumbered pages in Appendix "A"
of Respondent's brief.
MUNRO ENTERPRISES, INC.
the Pulp and Paper Workers Union and when Local 75 was
supplanted by the Charging Party, he signed a card for it.
Twist's discharge on February 20, 1973, came after the
Charging Party's written request of February 9 for
recognition. From the record as a whole I find that the
Respondent had knowledge of Twist's union activities for
many weeks prior to his discharge and believed him to be
one of the Union's most active and ardent supporters.
I credit Twist's testimony that the following events took
place on February 16 and 20, 1973, ending with his
discharge on the 20th. On February 16, a Friday, Mr.
James called Twist into his office where he criticized Twist
for an error that had crept into one of the newspaper ads
he had picked up on a previous Thursday. The ad was that
of Globe Discount Department Store. When Twist
submitted a proof of the ad to the store manager prior to
publication, the store's manager okayed it, except that he
asked that there be added to the ad, as here pertinent, the
advertiser's "store hours." When Twist brought the proof
back to Cora Birt, Respondent's ad pasteup employee, for
the correction, she readily agreed that she had forgotten to
put the store hours in the ad and stated that she would put
them in. Although not clearly brought out at the trial, this
meant that the ad would also show that the store would be
open on Sunday. But when the ad appeared it erroneously
carried the tag, "Globe Discount Store will be closed on
Sunday." The advertiser was angered by that error. To help
rectify the error the Respondent ran radio announcements
that the Globe store would be open on Sunday. Mr. James
was upset by the error because it cost the Respondent $30
in radio announcement fees to rectify.
Twist disclaimed personal responsibility for the error
because he had given appropriate instructions to Cora Birt
for the ad which if followed would have avoided the error.
I find that the error was not Twist's fault. Although James
appears to have accepted Twist's explanation that the error
was not his fault, he nevertheless told Twist somewhere in
the conference that he was not chosen to be advertising
manager because of errors and that the Globe error was
"his last chance" to make an error. But Twist's credited
testimony shows that James at no time prior to the Globe
incident had ever reprimanded him for prior errors.
Because James had not before this ever reprimanded him
for any errors, he complained to James that he could not
understand what he meant by "last chance."
After his explanation to James of how the Globe error
came about, Twist's credited testimony shows that James
became friendly and most amiable. During the course of
the ensuing conversation James expounded on his personal
policy of promoting employees from the inside to manage-
nal positions and held out the strong possibility of a
promotion for Twist to an opening in a managerial position
he was planning to fill in about 3 weeks. But James
explained that he could not offer him the position of
advertising manager because that had only been recently
filled from the outside by the appointment of Stuart
Newhall to the post (notwithstanding his policy to promote
from within). Twist in effect gave assurances to James that
17 The findings in the above paragraph as in the preceding paragraphs
are based on the patently honest and credited testimony of Twist I
specifically credit Twist's testimony that in the initial conference of that
417
he would work his head off in the next 3 weeks in order to
prove that he deserved the promotion to a managerial
position and accompanying salary increase.
Two hours later James resummoned Twist to his office
and there in the presence of Mrs. James, bluntly told him,
"I want to make sure you understood what I said before.
This is your final warning; we can't have any more
mistakes." Twist expressed great surprise at this "final
warning" because, as he told James, only 2 hours ago they
had "talked about a raise and a promotion" for him in the
next 3 weeks. James replied, "No, I agreed to nothing." 17
Four days later on February 20, James again summoned
Twist to his office and summarily discharged him on the
ground that this time he had found a genuine error
chargeable to Twist and cited the fact that he had
neglected to see to it that an insurance ad was printed in
one of Respondent's newspapers that week. Twist at once
admitted the error but at the same time mentioned to
James mitigating circumstances which caused him to forget
about getting the ad printed. This was that James had
asked him to concentrate at that time getting ads for an
advertisement supplement the Respondent was getting out
for the Washington's Birthday holiday and that in the
many hours he spent beyond his normal hours soliciting
ads for the supplement he had overlooked setting up the
insurance ad for publication. It is undisputed, however,
that the Respondent lost no money from this slip-up by
Twist because the ad was inserted in the next issue of the
newspaper.
Mr. James' version of his February 16 conference with
Twist is completely at odds with Twist's as set forth above.
James testified that on that date he talked to Twist about
"the fact that he had left out ads," that is, multiple ads. I
discredit that testimony because there is no specific
evidence of ads that were left out other than the specific
single ad of an insurance account and also because that
single omission occurred not in the week of which Friday,
February 16, was a part, but in the following week on
Tuesday, February 20, when James fired Twist allegedly
for having left out that particular ad from the newspaper in
which it was to have been originally published.
The rest of Mr. James' version of his February 16
conference is principally a lengthy and rambling account
of the criticisms he voiced to Twist about his lack of
agressiveness as an advertisement salesman. He testified
that it was primarily for this reason that he fired Twist a
few days later on February 20. The record, however, shows
that he did not fire Twist on his own initiative but did so
only on the urgent insistence of Mrs. James as Mr. James
himself admits that he "liked John [Twist]" and that he
was "aggravated with my wife that day because I had not
wanted to discharge John." I find from this admission and
from demeanor evidence that Mr. James' version of the
conversations that took place on February 16 and 20
between him and Twist are not credible. I accordingly
recredit Twist's testimony that the only criticism that
James voiced to him on February 16 was on the error that
had crept into the Globe Discount Store ad which in any
same day, February 16, James definitely told Twist that he would be
seriously under consideration for a promotion to a managerial post within 3
weeks
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
event was not Twist's fault. I also again recredit Twist's
testimony that the sole reason James gave him for his
discharge on February 20 was his admitted failure to see to
it that an insurance ad got into one of Respondent's
newspapers although this oversight did not cost the
Respondent any loss of revenue as the advertiser readily
agreed to have the ad run in the next issue of the
newspaper.
Nevertheless at the trial Respondent 's chief defense for
the firing of Twist was that he was not an effective
salesman of newspaper advertising space in that he did not
bring in the amount of new advertisement business it had
expected him to bring in. As one means of testing that
contention I required counsel for Respondent to submit
into evidence a schedule showing volumes of advertise-
ment sales for the 12 months prior to Twist's employment
with the Company as an advertising solicitor and for the 12
months after he was hired.
The requested schedule was never presented into
evidence due to the apparent oversight of counsel for both
Respondent and General Counsel whom I found most
cooperative and responsive to my requests for stipulated
documentary evidence where pertinent to the issues.
My request for the schedule had the effect of placing on
the Respondent the burden of going forward to prove by
documentary evidence its contention that Twist was not
bringing in new advertisement revenue by a comparison of
the business he brought in in the year of his employment
with Respondent as compared with the volume of
advertisement sales the Respondent had in the year prior
to Twist's employment with the Company.
As the Respondent has failed to meet this burden of
going forward with the requested proof, I find that this
failure of proof on the part of Respondent constitutes at
least one factor in favor of General Counsel's contention
that Twist was not discharged for economic reasons, but
because of his union activities.
Discussion and Conclusions
Unlike the economic justification Respondent had for its
discharge of seven employees on January 3, 1973, because
of the pressing necessity to reduce operating losses,
Respondent does not claim that kind of justification for
Twist's discharge. This follows from the fact that Respon-
dent replaced his services even before it fired him by hiring
Stuart Newhall some 20 days earlier as its advertising
manager to do essentially the same solicitation of advertis-
ing that Twist had been doing the past year under the
simple title of advertising solicitor. With the operating
losses the Company was experiencing, it is obvious that the
Respondent did not need two ad solicitors at the time it
discharged Twist. Although Newhall was given the title of
advertising manager, there is no evidence that he had any
employees working under him after Twist was fired. He
was simply an advance replacement of Twist.
Newhall was hired on February 1, 1972, and Twist was
fired 20 days later on February 20. It is evident that in that
20 days Mrs. James, as publisher and owner of the
Respondent, was looking for pretexts to fire Twist because
of his prior deep involvement in the self-organization of the
employees in the plant and later his union activities. It is
also obvious that both Mr. and Mrs . James held Twist
responsible for the November 7, 1972, employees' walkout
and felt a rancor against Twist because they believed the
walkout which Mr. James called "Twist's walkout" had
caused a potential customer to back away for fear of other
work disruptive walkouts from a proposed contract for
printing which would have brought Respondent some
$47,000 in additional revenue per year.
The record shows that although Mrs. James wanted to
discharge Twist she forced that unpleasant task on Mr.
James and that Mr. James found the task very distasteful
because he liked and respected Twist and was personally
opposed to his discharge despite his familiarity with Twist's
prior efforts towards the self-organization of the Compa-
ny's employees and his later union activities . It is also
evident that Mr. James was finding it difficult to find
pretexts for discharging Twist because when he gave him
his "last chance" warning on February 16, 1973, he backed
off when he learned that the error he had attributed to
Twist in the Globe Discount Store ad was not really
Twist's fault and instead held forth the strong possibility of
a promotion for Twist. It was only on the insistence of Mrs.
James 2 hours later that James reasserted his "last chance"
warning to Twist, this time in Mrs . James' presence, to
Twist's utter mystification . The record further shows that
Mrs. James forced Mr. James to discharge Twist 4 days
later on February 20 for Twist's admitted oversight in
getting an insurance ad in for publication in one of
Respondent's newspapers which in any event did not cause
the Company any financial loss because the advertiser
readily agreed to have the ad put in the next issue of the
paper.
At the trial as above noted, Respondent's defense for the
discharge of Twist shifted from the reasons given to him by
Mr. James at his discharge to the contention that he was
primarily discharged because he was not an effective
solicitor of ads. Although susceptible to documentation,
Respondent presented no documentary evidence to show
that Twist had not increased the Company's advertising
revenue during the year he had been employed by the
Respondent over what it had been in the year prior to his
hiring. Although there is some evidence that Twist was not
as aggressive in getting advertisements as more aggressive
personalities, such as Tom Yoder, Respondent's former
acting general manager , I find that this deficiency was used
as a pretext for Twist' s discharge . I also find that the
plethora of all the other little faults ascribed by the
Jameses to Twist, even if true, were similarly pretextual
reasons for his discharge.
In summary I find and conclude that the reasons given
for Twist's discharge are pretextual and that the real
motivation for his discharge was Respondent's desire to get
rid of Twist because of his known or strongly suspected
union activities . I accordingly find that Respondent
discriminatorily discharged Twist in violation of Section
8(a)(3) of the Act.
G. Final Alleged Discriminatory Discharges of
March 9, 1973
The record contains frequent references to Respondent's
back shop, sometimes called backroom . The Company's
MUNRO ENTERPRISES , INC. 419
back shop is where its newspapers are composed (typeset)
and printed. It embraces the compugraphic department
where type is set and proofreading performed, the news
pasteup department where the material set by the compu-
graphic machine is placed into allotted spaces on sheets,
the ad pasteup department where ads are pasted into a
newspaper page called a "mechanical," the darkroom
department or section where various photographic process-
es required for the newspapers are performed, and the
press department where Respondent' s main press prints
the newspapers.
On March 9, 1973, Respondent shut down its back shop,
discharged the employees who worked there, and thereaft-
er contracted to have its backroom operations performed
by an independent outside publisher and printer in
Norway, Maine, some 55 miles from Respondent's place of
business in Berlin , New Hampshire.
The complaint alleges that the Respondent discriminato-
rily discharged five employees on March 9, 1973, and the
record shows they all worked in Respondent's back shop.
They are Eleanor Theberge and Louise Nolin, typesetters;
Roger Godbout, darkroom technician and photographer;
and Robert Gauvin and Henry Rivard, press operators.
Two of these employees, Louise Nolin and Roger God-
bout, were principals involved in other issues discussed in
prior sections of this Decision. All five of the dischargees
had signed union authorization cards in December 1972
and all had participated in the November 7, 1972, walkout.
Respondent's defense to the five alleged discriminatory
discharges are both economic and personal.
On the economic side, Mr. James' testimony shows that
his chief pressman , Robert Gauvin, had given notice in
early January 1973 that he would be leaving in the spring
in order to rejoin his wife and daughter in Connecticut.
Gauvin later informed James that he would be definitely
quitting on March 14, 1973, but he gladly advanced his
voluntary departure to March 9 when the Jameses decided
to close the backroom on that date. Mr. James' testimony
further shows that Henry Rivard, the assistant pressman,
gave notice on March 2, 1973, that he would quit on March
9. As conceded by General Counsel in his brief, "There
can, of course , be no denying the fact that the Respon-
dent's two pressmen had given notice." The record shows
that over the past year the Company had a large turnover
of pressmen and great difficulty in recruiting replacements.
Efforts of Gauvin to find and train employees from the
inside to become pressmen before his departure were
unavailing . To fill the breach, Mr. James himself, despite
all his other responsibilities, began training under Gauvin's
tutelage to run the big press, but never fully became
qualified to do so before the departure of pressmen Gauvin
and Rivard.
As illustrative of other problems Respondent was having
in other departments of its back shop, Mr. James'
testimony shows that one day just prior to the March 9
shutdown of the backroom, trouble developed on the
compugraphic machine which made it necessary for him to
personally operate the compugraphic computer from 7
o'clock in the morning of that day until about 2 o'clock of
the next morning . Such problems made it a continuous
struggle to get the newspapers out on their deadlines.
Side-by-side with these economic factors, Mr. James also
testified to strong personal considerations that entered into
the decision to shut down the back shop and subcontract
its operations to an outside printer. One of these considera-
tions is that his primary vocational objective in life is to
write nonfiction books requiring a great deal of advance
research. He found the endless problems and hours
required for the management of Respondent's business
seriously interfered with this objective and made it
impossible to advance his career as a writer in which he
had a promising start as a Pulitzer Prize winner and winner
of other merit awards. At the time of the shutdown of the
back shop, he was under particular tension to meet the
May 1, 1973, deadline for the new book he had contracted
to write and hoped that with the closing of the back shop
he would have time to meet that deadline.
The second personal consideration that entered into the
decision to close the backroom was that Mrs. James was so
preoccupied with looking after the six children in the
family, the youngest of which was less than a year old, that
she was unable to give her Company the time it required
for successful operation.
The final personal consideration for giving up the back
shop was that Mr. James' double preoccupation with
managing the Respondent and researching and writing his
book was putting a strain on the family life of both himself
and his wife and their children.
These personal and economic considerations are best
told in Mr. James' own words under testimony:
Q. Was there any other considerations that were
entered into in your ultimate decision [to close the back
shop]?
s s s * s
THE WrrNEss: My researcher [for his new book] was
still there at this time. I had had pressure all along from
him. My son, Paul, had been wetting his bed and he
became terribly upset during this period because I
wasn't around.
JUDGE BUSH : How old is you son, Paul?
THE WITNESS: He is now eight. He was seven at the
time. The other children are terribly upset. I had been
concerned about my book. May 1st was the deadline
for my book in my contract.
* • s s
THE WITNESS: I felt that I could not produce the
book by that date. I had been talking with my agent,
Mr. John Hawkins, of Paul Reynolds in New York. We
were having baby-sitter problems during this period.
Judy [Mrs. James] and I were exhausted.
The compugraphic had been broken down prior to this
and had not run properly. I had run the compugraphic,
the computer, myself. I ran it, as I recall, from 7:00
o'clock in the morning until 3:00-2:00 or 3:00
o'clock-the next morning straight through. My wife,
in fact, brought food to me at the compugraphic
machine.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There were other problems there and we simply
couldn't seem to get the papers out. We couldn't make
deadlines . I felt I had kept my bargain to my wife. I
had made a bargain with her at the time prior to our
marriage that my career was my writing, my consulting
and lecturing.
I had given her more than a full year. I could see no
end to this. My funds were being used up rapidly. I was
in fear of losing my book. Those are many of the
factors.
Q. Did you discuss this with Mrs. James at the
time?
A. It is all we could talk about. In fact, it had
caused some tension between Mrs. James and myself.
Q. And when did you announce your decision?
A. I believe it was before noon on the 9th.
Q. What was the decision that you announced [to
the employees who were being discharged ]?
A. Because of the circumstances of Henry Rivard
and Bob Gauvin [ the assistant and chief pressmen]
leaving and because of the problems we faced personal-
ly I saw no way of continuing the back shop operation.
We had tried our best to do it and had failed.
Q. And, therefore, what?
A. Therefore, we were discharging three employ-
ees.
Although the complaint alleges that five employees were
discharged on March 9, 1973, actually only three were
discharged because the two pressmen, Gauvin and Rivard,
quit for personal reasons on their own on March 9, 1973.
At the trial counsel for General Counsel amended Henry
Rivard out of the Section 8(a)(3) relief demanded for him
in the complaint. In his brief, counsel for General Counsel
similarly dropped the same relief demanded for Gauvin in
the complaint.18 Similarly, counsel for General Counsel in
his proposed recommended Order, as set forth in the
Appendix to his brief, does not ask for reinstatement and
backpay for pressmen, Robert Gauvin and Henry Ri-
vard. is
The only remaining employees discharged on March 9,
1973, for whom General Counsel seeks relief are Eleanor
Theberge, Robert Godbout, and Louise Nolin.
In line with the Jameses' decision to close down the back
shop, much of the equipment in the back shop, including
the large press, has been sold. Some of Respondent's job
shop equipment has also been sold. Respondent's compu-
graphic equipment has been leased to another printer in
Norway, Maine , pending his receipt of his own compu-
graphic equipment as per order. Respondent is seeking a
buyer for its compugraphic equipment.
Discussion and Conclusions
In his brief General Counsel in effect concedes the
economic and personal factors that induced the Respon-
dent to sublet its press work to an outside printer as
distinguished from the other work in the backroom.20
These factors involved Respondent's inability to find
qualified pressmen to replace departing pressmen Gauvin
and Rivard and Mr. James' own vain efforts to fill the
breach at the big press on top of all his other duties as
manager of the Company , his commitments to his
publisher to write a book, and his family responsibilities.
But General Counsel contends that Respondent's deci-
sion to close its back shop insofar as it relates to farming
out its typesetting (called in the trade "composition") was
"plainly an economic folly and a poor business decision"
because, as asserted, the typesetting of Respondent's
newspapers in its own back shop could be done at about
half the cost the Respondent incurs by having it done in
Norway, Maine. Because of this asserted "econonuc folly"
of subletting its typesetting, General Counsel contends that
the economic and personal reasons given by the Respon-
dent for subletting its typesetting work are pretextual
reasons for discharging the three employees here involved
because of their union activities.
However, even if it is assumed that Respondent's
decision to sublet its typesetting was a poor business
decision, that does not prove that the Respondent made
that decision for the purpose of establishing a pretextual
reason for discharging the involved employees because of
their union support or activities. Upon the basis of the
entire record I find and conclude that the desires of the
Jameses for urgent personal reasons to reduce the amount
of time they have to give to the business of Respondent
overrode in importance to them the fact, if it is a fact, that
it would cost more to have their typesetting done in
Norway than in Respondent's own back shop. It is not
unusual for people to take economic losses for personal
reasons.
At any event I find that such evidence as there is in the
record as to the cost of typesetting in Norway as compared
with that in Respondent's own plant is insufficient to
establish General Counsel's contention that it is substan-
tially more costly to having the typesetting done in Norway
than in Respondent's own back shop.
Upon the basis of the entire record I find and conclude
that General Counsel failed to sustain his burden of proof
that any of the employees the Respondent discharged on
March 9, 1973, were discriminatorily discharged in
violation of Section 8(a)(3) of the Act.
H. Alleged Union Majority and Refusal To Bargain
The record leaves no doubt and Respondent does not
appear to contest the fact that the Union has represented a
majority of the employees in the appropriate unit here
involved on the following critical dates, to wit, on January
3, 1973, when Respondent discharged seven employees; on
February 9, 1973, when the Union requested recognition;
and on March 9, when the Respondent upon the closing of
its back shop discharged three additional employees and
is Reference is here again made to the following statement in General 20 General Counsel in his brief at p 26 states, "In fact , most of
Counsel's brief: "There can, of course , be no doubt that Respondent 's two Respondent 's problems appeared to relate to the operation of its press, and
pressmen had given notice [that they were quitting their jobs I." as shown above. it would have been a simple matterjust to eliminate press
19 Henry Rivard is not to be confused with Joseph Rivard who was work "
discharged on January 3, 1973
MUNRO ENTERPRISES, INC.
accepted the insistent resignations of its two pressmen. The
record shows that as of January 3, 1973, the Union had
signed authorization cards from 14 of 20 of the employees
in the unit of conceded employee status within the
meaning of the Act.21 As of or about February 9, 1973, the
Union had signed cards from 12 of 13 admitted employees,
and as of March 9, it had signed cards from 10 out of then
11 admitted employees, in each case exclusive of the cards
of the discharged employees.
On February 9, 1973, the Union sent the Company a
letter demanding recognition and stating that it was
"prepared to show unequivocal proof" of its majority
designation at any early mutually convenient time. The
Union simultaneously filed a petition for a representation
election. The Company on February 12 came into receipt
of the Union's letter and a copy of the Union's petition for
an election.
Under date of February 13, 1973, the Company sent the
Union a letter in which it declined recognition of the
Union on the ground that ". . . we have doubt that you
would represent a majonty of our employees in an
appropriate unit." 22 The letter then goes on to say, "For
this reason we decline to recognize you until you have been
properly certified by the appropriate Labor Relations
Board."
The Union's petition of February 9 for an election came
up for hearing before a Hearing Officer on March 12, 1973.
At that hearing the Union lodged with the Hearing Officer
for filing the unfair labor charge which lead to the issuance
of the complaint herein on June 22, 1973. The Hearing
Officer thereupon adjourned the hearing on the election
petition "indefinitely until the matter of the unfair labor
practice .. can be completely resolved." On June 7, 1973,
the Union withdrew its representation petition without
prejudice.
The alleged unfair labor practices have in the word of the
Hearing Officer been resolved in the present unfair labor
practice proceeding. As summarized, the above findings
show that the Respondent did not, as alleged in the
complaint, discharge the 12 employees here involved for
discriminatory reasons in violation of Section 8(a)(3) of the
Act except for the single isolated discriminatory discharge
of John Twist on February 20, 1973. On the contrary the
findings show that all of the discharges, except in the case
of Twist, were motivated by economic factors or a
combination of economic factors and personal factors
unrelated to the union activities of the dischargees.
As shown above the Union did not make a demand upon
the Respondent for recognition based on signed union
authorization cards from a majority of the employees in
the appropriate unit until February 12, 1973, when its letter
21 The remaining 14 employees in the employment of the Company as of
January 3, 1973, consisted mainly of admitted statutory supervisors, two
additional employees, Lavertue and Theberge, for whom the Company
claimed supervisory status , and a number of temporary employees
employed as inserters for whom the Union claimed status as statutory
employees The Union as of January 3, 1973, had cards from Lavertue and
Theberge, and for a number of the inserters If these were included in the
appropriate unit the Union would have had an even greater majonty than it
has without them However, I have found above that Lavertue was
supervisor within the meaning of the Act on January 3, 1973 1 make a
similar finding that Theberge was also a supervisor within the meaning of
the Act despite her denial that she was a supervisor because her own
421
of demand was received by the Respondent. Based on that
fact and the record as a whole I find that the Respondent
had no direct or inferable knowledge that the Union held
cards from a majority of the employees in the unit on
January 3, 1973, when it discharged seven of the employees
in the unit . Even counsel for General Counsel was unable
to inform me, as the trier of the facts of this case, at the
conclusion of the 9-day trial, with any great certainty the
number of admitted employees in the unit and the number
thereof who had given the Union signed cards at any of the
critical dates here involved.
Similarly based on the record as a whole I make the
further finding that the Respondent had no direct or
inferable knowledge of the majority status of the Union on
any of the critical dates herein prior to the trial of this case
some months later in July and August 1973.
I also find and conclude that the Company had no
knowledge that the Union was charging it with any unfair
labor practices in connection with its discharges of January
3, February 20, and March 9, 1973, until after these events
had taken place, that is, on March 12, 1973, when the
Union filed its one and only unfair labor charge in
connection with these events at the hearing held before a
Hearing Officer on that date by handing to him for filing
its charge.
Discussion and Conclusions
The key issue here is whether an order should be entered
requiring the Respondent to bargain with the Union
notwithstanding the absence of any pervasive unfair labor
practices . In the instant case we have only a single isolated
discriminatory discharge. The remaining 11 discharges
have been found to have been motivated solely by
economic factors or a combination of such factors and
personal factors unrelated to the union sympathies or
activities of the dischargees and accordingly not in
violation of Section 8(a)(3) of the Act. Similarly the
findings show that the Respondent has not engaged in the
three alleged instances of conduct violative of Section
8(a)(1). However, even if such instances could be deemed
to be violations of Section 8(axl), I find that these
instances , whether considered singly or collectively, were
not of such pervasive character as would affect the results
of a Board-conducted representation election.
Under the full circumstances of this case , I find that the
Respondent is not in violation of Section 8(a)(5) of the Act
by its refusal to bargain with the Union and its insistence
upon a Board-conducted representation election.
Accordingly I find and conclude that the General
Counsel is not entitled to an order requiring the Respon-
testimony shows that as the senior employee in the compugraphic or
typesetting department the junior employees in the department came to her
with questions from which I infer that she had authority to direct and did
responsibly direct them in their work . I find that the work of the inserters
was too temporal in character to make them employees within the meaning
of the Act
22 Respondent also declined recognition on the ground that "... there
are questions concerning the scope of an appropriate unit ...:' In an
earlier section of this Decision it was found that the unit as alleged in the
complaint was appropriate . From the record as a whole, I find that this
ground for declining recognition was without merit ab inuio. (See also G.C.
Exh 7.)
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent to bargain with the Union and that the parties should
be relegated to the election processes of the Board.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), and
Peerless of America, Inc. v. N.LRB., 484 F.2d 1108 (C.A.
7, 1973), enforcing in part and remanding in part 198
NLRB No. 138, and the numerous cases cited in the
Court's decision in Peerless. Although the Union has
withdrawn its petition for an election, there is nothing to
prevent it from filing a second such petition.
I further find that of the three critical dates here involved
as they relate to Respondent's refusal to bargain with the
Union, the pivotal date is February 9, 1973, the date on
which the Union mailed a letter to Respondent demanding
recognition based on a card check or in the alternative,
February 12, 1973, when the Respondent received the
letter. Thus I find and conclude that Respondent could not
possibly be in violation of the refusal-to-bargain provisions
of Section 8(ax5) by reason of its discharges on January 3,
1973, because the Union had made no demand for
recognition by Respondent until after January 3, 1973.
In summary I find that the Respondent is not in
violation of Section 8(a)(5) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. All full-time and regular part-time editors, writers,
reporters, advertising solicitors, clerks, receptionists, book-
keepers, artists, photographers, circulation and office
business personnel, and all printing production employees
employed at Respondent's place of business in Berlin, New
Hampshire, EXCLUDING executives, professional em-
ployees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
3. By discharging John Twist, Respondent engaged in
discrimination to discourage membership in the Union,
thereby engaging in unfair labor practices within the
meaning of Section 8(aX3) and (1) of the Act.
4. The Respondent has not engaged in any unfair labor
practices other than that shown in paragraph 3 above.
5. The unfair labor practices shown in paragraph 3
above affects commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
The Respondent having discriminatorily discharged
John Twist, I find it necessary that it be ordered to offer
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
him full reinstatement, with backpay computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716, from
date of discharge to date reinstatement is offered.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER23
Respondent, Munro Enterprises, Inc., its officers, agents,
successors, and assigns, shall: 1. Cease and desist from
Discharging or otherwise discriminating against any
employee for supporting Boston Mailers ' Union No. 1,
International Typographical Union, AFL-CIO, or any
other union.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Offer John Twist immediate and full reinstatement to
his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for his lost earnings in the manner set forth in the
section of the Administrative Law Judge's Decision
entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its place of business in Berlin, New
Hampshire, copies of the attached notice marked "Appen-
dix." 24 Copies of the notice, on forms provided by the
Regional Director for Region 1, after being duly signed by
an authorized representative of the Respondent, shall be
posted by the Respondent immediately 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 the Respondent to
ensure that the notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint, as amended at
the trial, be dismissed insofar as it alleges that the
Respondent engaged in any unfair labor practices other
than the single violation of the Act found herein.
24 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."