The Ann Arbor News

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 423 (N.L.R.B. 1974)

THE ANN ARBOR NEWS 423
Booth Newspapers, Inc.' d/b/a The Ann Arbor News
and Detroit Mailers Union No. 4, International
Mailers Union (Ind.). Case 7-CA-10431
April 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On December 28, 1973, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief to the excep-
tions.
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,2 and conclusions3 of the Administrative
Law Judge and to adopt his recommended Order.
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 and
hereby orders that Booth Newspapers, Inc. d/b/a
The Ann Arbor News, Ann Arbor, Michigan, its
officers , agents, successors , and assigns, shall take the
action set forth in the said recommended Order.
i The Administrative Law Judge inadvertently captioned the Respon-
dent as "The Ann Arbor Press" instead of "The Ann Arbor News."
2 We hereby correct the following inadvertent errors in the Administra-
tive Law Judge's Decision: In the first sentence of fn. 47, change "Harper"
to "Burch." Under sec . 1II,B ,3, in the first sentence of par. 8, change
"Respondent" to "General Counsel."
8 We do not adopt, however, the Administrative Law Judge's comments
that the General Counsel has a greater burden of proof in establishing a
discriminatory motivation for an employer's failure to promote an
employee, than the General Counsel does in establishing a discriminatory
motivation for an employer's discharge or demotion of an employee. In
either event, the preponderance of the evidence governs, and in this case the
preponderance of the evidence does not show that Zill was denied full-time
employment in violation of Sec. 8(aX3) of the Act.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was tried before me on October 3-5, 1973, 1 at Detroit,
Michigan . The charge was filed by Detroit Mailers Union
No. 4, International Mailers Union (Ind.), herein called the
Union, on June 18 and served upon Respondent by
registered mail the same day. The primary issues are
whether Respondent violated Section 8(ax 1) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
,151 et seq. ), herein called the Act, by interrogating its
employees concerning their union activities and by threats
and promises of benefit in connection therewith; and
violated Section 8(a)(3) of the Act by refusing full-time
employment to its part-time employee Ricky2 Zill because
of his activities on behalf of the Union.
I Upon the entire record,3 including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of all parties, I make the following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT 'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a Michigan corporation engaged in the
publication and distribution of newspapers at various
places of business in Michigan , including Ann Arbor
where it publishes The Ann Arbor News, the only facility
involved herein ; that during calendar 1972, a representa-
tive period, Respondent had a gross volume of business in
excess of $1 million and held membership in or subscribed
to interstate news services , published nationally syndicated
features , and advertised nationally sold products, the gross
revenue from which advertisements exceeded $ 100,000;
that during the same period Respondent received at its
Ann Arbor place of business , directly from points outside
Michigan , goods and materials valued in excess of
$100,000 of which $50,000 worth were delivered to its other
installations in Michigan ; and that Respondent is an
'employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits , and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
i All dates are in 1973 except as otherwise stated.
2 His erroneous designation as Richard in the complaint was amended at
the hearing.
8 The following corrections of errors in the transcript of testimony are
hereby ordered for the purpose of clarification . p 67, 1. 2, "and other
witnesses" should be "and no other witnesses" ; p. 70,1.21 , "Harper" should
be "Burch"; p. 70, I. 22, "Burch" should be "Schweitzer"; p. 220, I. 4,
"reduced" should be "increased"; and p. 220, I. 7, "reduce" should be
"increase."
210 NLRB No. 63
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. The Union's selection as bargaining
representative
In the latter part of 1972, the mailroom employees of The
Ann Arbor News started talking about unions, and, after
contacting other unions, employee Harper contacted the
instant one in December 1972 or January 1973. He and Zill
then engaged in organizing work, including signing up the
employees. This activity occurred in the Company's
mailroom and parking lot as well as in Harper's home and
various restaurants. Following rejection of the Union's
demand for recognition in February, the Union filed a
representation petition on February 9 for a unit of all full-
time (two) and regular part-time (five) mailroom employ-
ees, a total of seven.4 An election was held April 6,
pursuant to stipulation of February 27, and the Union was
certified on April 16.
2. The Company' s preelection campaign
The day the Company received the Union's letter
requesting recognition, Burch asked employee Harper,
according to the latter, if he was dissatisfied with his job.
Harper responded in the negative, and Burch told him
about the recognition request.
Between that date and the election, Mailroom Foreman
Burch and Plant Manager Schweitzer admittedly took each
unit employee separately into a private room on company
time for the purpose of persuading him to vote against the
Union. They were all asked why they were dissatisfied and
what Respondent could do to cure their unhappiness, and
from a list held by Schweitzer they were told how good
their working conditions were but if they had problems to
see their foreman rather than union representatives; that
the Union would not be able to get them any more than
what the Company was willing to give, and that the Union
could not even guarantee that existing benefits would be
continued if it represented the employees; that part-time
employees were excluded from the IMU contract at the
Company's plants in Grand Rapids and Bay City; and that
the Company's organized units "don't have as good a
benefit package as the mailing room employees enjoy
without the union."
During the same period Burch himself admittedly talked
to each of the employees, asking why they were dissatis-
fied, urging a "no" vote, and stating that "there was a
4 As of the date of the hearing the distribution had changed to three full-
timers and four part-timers. Harper, however, was no longer among them,
having voluntarily left in May because of a personality clash with the other
full-timer then employed. He remained on the Union's bargaining
committee
5 Burch testified this occurred in the course of comparing existing
mailroom conditions with those prevailing under the ITU contract then in
effect for the typographers
6 Although Zill did not advert to anyone else's presence in his direct
examination , he stated on cross that Harper was there at the time.
r General Counsel , recognizing the absence of any reference to Grand
definite possibility of having more rigid rules if the union
was voted in," 5 including docking employees for coming in
late or leaving early.
Zill, a part-time mailroom assistant, testified on his
examination-in-chief that in February or March, Burch
called him to the paper storage room and asked him "what
it would take to satisfy [him] not to have the union come
in," Zill answered that he did not really know, and Burch
offered him $3.50 an hour "if the union was voted down."6
Zill's hourly rate at the time was $2. Near the conclusion of
the hearing, General Counsel introduced a piece of paper
torn off a newspaper bundle wrapper containing two rows
of figures which Zill testified were written by Burch on that
occasion, as follows:
2.50 2.50
3.00 2.75
3.50 3.00
His testimony at this time, however, when asked what the
second column indicated, was, "that's what he thought he
could get for me. $2.50 is what he thought he could get and
he was going to try to get either $2.75 or $3.00."
About 2 weeks later, Zill testified, Burch approached him
and asked if he could speak with him. They went to the
paper storage room. Schweitzer was present. Schweitzer
asked Zill why he wanted the Union, and Zill replied that
he would thereby improve his position, specifically noting
that he had been trying to get full-time work. Schweitzer
pulled a piece of paper from his pocket and told Zill that
the Union's initiation fee was high, somewhere around
$100, and the dues were at least $10.75 a month.
Zill further testified that late in February Burch told him
that when the Union was voted in at the Company's Grand
Rapids installation it got rid of all the part-time employ-
ees.7 Harper testified to a similar statement by Burch in
March during one of several conversations he had with
Burch in which Grand Rapids was discussed .8 Harper also
testified that sometime in March, in the mailroom, Burch
told him that Respondent' s Saginaw plant had voted to
decertify the Union and were enjoying better working
conditions since then than they had been before, and that
,.we have a better deal now, and our deals were going to get
better." 9
From time to time, according to Harper, Burch would
read him passages from the Union's bylaws calculated to
discourage interest in the Union, like the high initiation
fees . Harper testified on direct examination that on one
occasion, when he came in late, Burch told him "that it was
good to do that now, that when the union comes in it will
Rapids in the complaint , agreed he would seek no specific remedy in this
respect and relies on such evidence only as supporting a finding of
Respondent's union animus which Respondent concedes . On cross-exanu-
nation Zill admitted stating to the Board 's investigator that apart from a
statement by Burch that if the Union came in he would not "beat [Zell ] up
or anything," no one threatened me regarding the union , or indicated
anything would happen to me because of my being active for the union."
8 Harper and Burch lunched together two or three times a week and
discussed the Union constantly while the election was pending.
9 It was stipulated at the hearing that there have been "no elections in
the mailroom in Saginaw "
THE ANN ARBOR NEWS
cost me twenty-five minutes off my time card." And once,
when Fleming to asked Burch if he could leave 15 or 20
minutes early, Burch said he could and added that he had
"better . . . take advantage of it now because if the union
gets in you won't be able to do it." Harper's cross-
examination in this respect was as follows:
Q. (By Mr. Brooks) Mr. Harper, I believe you
made mention of a conversation you had with Mr.
Burch in between February and April of 1973 in which
you were late for work for a few minutes . I would like
to establish the context in which that discussion took
place. Now when you held the discussion with Mr.
Burch, pertaining to what the situation might be after
the union came in, weren't you talking about the
conditions of the contract with the union in the press
room?
A. You say was I talking about that?
Q. You and Mr. Burch. Weren't you at the time
talking about the union contracts that do exist?
A. We discussed that. I don't know if that was
discussed previous.
Q. Didn't Mr. Burch indicate to you in connection
with this particular subject matter that union contracts
elsewhere provided for employees being paid on an
hourly basis and they were paid starting with when they
showed up for work and until they left work?
A. You are saying did he say that to me?
Q. Yes, do you recall that.
A. I don't recall that. We had perhaps similar but I
wouldn't say he said those exact words.
Q. But in effect didn't he discuss the subject with
you?
A. Yes, I don't know if it was relevant to that
particular being late discussion or not.
Q. You don't know that it is irrelevant either, do
you?
A. No, I don't.
Q. Is your testimony the same with respect to your
conversation with Mr. Fleming, when he indicated he
wanted to leave early?
A. Are you asking me if I think those conversations
were relevant to Mr. Fleming leaving early?
Q. Were those conversations with respect to those
contracts and their requirements at that time?
MR. FILLENWARTH: I object until we find out what is
in the contracts, and what contracts he is talking about.
MR. BROOKS: Any union contract.
JUDGE HERMAN: His question is broad enough to
embrace any union contract.
Q. (By Mr. Brooks) I am asking you whether or not
there was some discussion at that time pertaining to the
union contracts requirements?
A. At the time Mr. Fleming requested to leave
early?
Q. Yes.
A. I don't believe there was a discussion.
Q. You don't believe so?
10 Although Flermng held the title of assistant foreman and was
contended by General Counsel to be a statutory supervisor , he was included
on the stipulated eligibility list for the election
A. I don't recall.
425
Burch told Harper on another occasion , Harper testified,
that Respondent knew the men were underpaid, that this
was partly because of the Government wage controls, but
that he felt that "if the union was voted down [they] would
be brought up to standards."
At various times during the pendency of the election,
according to Harper , Burch interrogated him concerning
the Union, including the identity of the card signers.
Harper replied that he "really [could]n't say." After
Harper later disclosed to Burch that he was chapel
chairman , Burch would ask questions about the Union
including why the Union had lost out at other employers.
In late March," Harper testified, Burch asked him if he
would speak with him, Schweitzer, and Fleming. They
went into the "flat room" of the mailroom . Schweitzer said
he had been shocked, that he had not realized the men
were unhappy and that he would have taken care of the
situation if he had known and if there had not been any
Government restrictions . He said his hands were tied now
because of the pending election, but that if the Company
were given a chance it would rectify the errors, and the
employees did not need people from Detroit to take care of
their problems . Around the same period , Harper testified,
he saw Burch and Schweitzer call other employees aside
and talk to them.
Shortly after this, apparently, according to Harper, he
told Burch that he thought Burch had really tried to get
pay increases for the men and his lack of success indicated
that the men would not be better off without the Union, so
he asked Burch to arrange for him to see Schweitzer who
he felt had held up the raises. Burch made the appointment
for him and Harper went to Schweitzer's office to get the
facts "from the horse 's mouth." Schweitzer explained again
that the Government had restricted Respondent 's freedom
of action, asked him "about [his] participation in the
union," and asked him to realize that Respondent was
working for the employees just as much as the Union was,
and to vote no.
Finally , Harper testified to a discussion in the drivers'
room among himself, Burch, and Zill, in which Burch
asked Zill what he thought was a fair wage , Zill mentioned
$2.25 an hour, or $2.50 an hour, somewhere in range," and
Burch said he would see what he could do and talk to him
later; that Burch left for a few minutes and returned,
saying he could do better than that.
Foreman Burch recalled asking Zill in Harper 's presence
what he felt "he should be making as far as monetary
consideration ," but denied asking what it would take to
satisfy Zill not to have the Union in, or offering Zill $3.50
an hour if the Union was voted down, or telling Zill that he
could do better than a raise to $2.25 or $2.50 an hour.
Burch admitted on cross-examination that when Zill
answered his question as to the source of Zill's dissatisfac-
tion, they discussed the possibility of a raise and "the full
benefit package that the fulltime employees get," and
Burch said, "I will see what I can do." While denying
' I Harper placed this conversation in late March or early April. But he
then testified to an apparently subsequent conversation "about a week
before the election ." The election was held on April 6.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telling Zill that Respondent got rid of its part-timers when
the Union was voted in at Grand Rapids, Burch did testify
to having told Harper that he believed that part- timers
were not covered by the union contract at Grand Rapids.12
Burch denied any conversation with Harper about the
Saginaw plant and, in particular, that he ever told Harper
that working conditions had improved at Saginaw after
decertification of the Union. 13 He also denied asking
Harper who belonged to the Union or had signed cards.
And although conceding that his recollection of the
meeting among himself, Zill, and Schweitzer was poor
because the latter had done most of the talking, Burch
testified that Schweitzer did not ask Zill at that time why
he wanted the Union.
On direct examination Schweitzer testified as follows:
Q. Now in your conversation with Mr. Harper,
what extent, if any, did you promise him there would
be more pay and better working conditions if the union
was voted out?
A. There were no promises made whatsoever.
Q. To what extent was such a promise made to any
other employee?
A. There were no promises made.
Subsequently, but still on direct , in response to the general
question as to the contents of their conversation, Schweit-
zer testified, "I told him that I could make no promises,
there would be no changes in working conditions while
this-before the election ...."
Schweitzer also testified that he assured the employees in
their conversations that Respondent had no intention of
getting rid of the part -timers . And he responded, "I don't
believe that I did," in answer to the question whether he
asked Harper to describe his union activity.
During the preelection period Respondent sent three
letters to the employees, two dated March 27 and 28,
respectively, over Schweitzer's signature, and the third
dated April 2 and signed by Burch, in substance soliciting
"No" votes on the basis that the Union's selection as
bargaining representative would not be in the employees'
"best interests" yet would lead to the incurrence of heavy
financial obligations-"an impossible burden." 14
3. Denial of full-time status to Zill
a. Operation of the mailroom
Zill has been a part-time employee in Respondent's
mailroom at Ann Arbor since June 9, 1971. Full-timers
normally work 7 1/2 hours a day for 5 days a week while
the part-timers' normal workweek consists of 6 4-hour days
from 1 to 5 p.m. The plant operates from Monday through
Saturday from 9 a.m. to 5 p.m. and also publishes a Sunday
paper requiring work from 11:30 p.m. Saturday to 2:30 or
3 a.m. Sunday, as a result of which there are seven shifts.
12 On cross, Burch admitted to the making of a similar statement by
either himself or Schweitzer in their meetings with each of the employees.
13 He testified that he knew "nothing at all" about the mailroom at
Saginaw.
14 General Counsel does not contend the letters themselves are unlawful.
15 Burch added, however, that while "spelling is important ... the thing
that overrides this would be overall clerical ability, filing properly , typing
Foreman Burch covers five of these , and the other two are
covered by the full-timers in rotation . In Burch's absence,
either as part of the routine shift changes , or because of
illness, vacation, or other reasons , a full-timer is acting
supervisor over the part-timers and the approximately 20
women working as stuffers . Full-timers enjoy certain
benefits not shared by the part-timers, including, inter alia,
paid holidays and vacations and sick pay.
Full-timers normally spend their mornings making
changes in addressograph plates and in a miscellany of
duties requiring the operation of four machines kept in
Burch's office as well as the performance of certain
maintenance work on the machines . Most of the preventive
maintenance on the machines in the mailroom proper,
including greasing , oiling, cleaning, and adjusting, is also
done in the morning, as is any corrective maintenance
remaining from the previous night.
The press run starts at 1:30 p.m. Odd counting, i.e.,
adding to or subtracting from the predetermined size
bundles coming from the counter-stacker machine , is done
by the part-time employees although some counting is
done by the full- timers . Normally, however, one of the full-
timers monitors the stacker, unjamming it or correcting
other mechanical problems that may arise, while the others
"rove," correcting any malfunctioning of the other ma-
chines and directing the part-timers in getting the bundles
out and loading the vehicles.
According to Burch, "the three major things" Respon-
dent seeks in its full-time employees are mechanical
aptitude, electrical aptitude , and clerical ability, including
spelling.15 One's appearance "is not a big thing but is taken
into account," and the ability to get along with other
employees "is very definitely a factor." The ability to
supervise "is a necessity" because of the full-timers'
responsibility for the operation of the mailroom in Burch's
absence. Although part-timers occasionally monitor the
equipment when the presses are running and sometimes
clean and oil the machines, they do not do any necessary
repair work or make adjustments. They normally do simple
manual work such as laying out the wrappers and rolling
the papers in them for mailing, stacking loads on the docks,
loading the mailbags on the trucks, and general cleanup
work. They make the daily trip to the post office16 and
make deliveries of any skips or shortages . Their work
requires no mechanical or electrical ability and the only
clerical requirement is their ability to count .17 In sum,
Burch testified, the part-timer's job "where he would
become useful to us" can be learned in 2 or 3 days, and
part-time help "is very easily obtained" at Ann Arbor.
Full-timers, like part-timers who are straight hourly
employees, punch the timeclock. And they receive premi-
um pay for hours worked in excess of 37-1/2 and for
Sunday work as such. They are paid for the 37-1/2 hours,
however, even when they work less.'s
what you see and typing what you read ...
16 In May and June a full-timer made the trip Tuesday mornings.
17 Their handling of the bottom wrapper and the typing machine merely
requires the operation of a switch.
18 Harper was docked for time spent bargaining with Respondent as a
member of the Union 's negotiating committee . General Counsel disclaimed
reliance on this to establish an independent unfair labor practice.
THE ANN ARBOR NEWS 427
b. Zill's union activities
As indicated above, Zill and Harper got the employees to
sign union cards. They also conducted organizing meet-
ings, and Harper became chapel chairman and Zill
secretary-treasurer. Zill has also been on the Union's
bargaining committee since the beginning of contract
negotiations in May. Zill succeeded Harper as chapel
chairman when the latter quit Respondent's employment
about May 19, and management was so informed at a
bargaining session later that month.
c. The filling of full-time vacancies
(1) Policy or practice prior to Harper 's departure
Zill testified it was company policy to fill a full-time
vacancy with the senior part-timer desiring the job.19 To
"the best of [Harper 's] recollection," only "some" of the
full-timers hired during his tenure "came through the ranks
and some were hired off the street." By "through the
ranks," he meant merely that they had had "some
connection with the Company previously ." Thomas
Wicks'20 "recollection" was that "the majority" of full-
timers hired during his tenure had "at one time" been
employed "some place in the [Booth] chain," and that
"approximately five" had come up "from the mailing room
as parttime employees ." Wicks testified , however, that a
part-tuner "automatically" became full-time , i.e., entitled
to such fringe benefits as "vacation pay , paid holidays,
double time on Sunday , hospitalization , jury call, et
cetera," when he worked 27 or 28 hours a week for 6
months , and that Burch had told him this when he
conferred such status on him .21 He qualified this on cross-
examination by acknowledging that he was "an excep-
tion"; that he thought the Company had given him the
fringe benefits "partially because they were pleased with
the work that [he] had been doing ," which covered "a wide
variety of jobs" extending "not only in the mailroom but
also in the circulation department"; and that he had
"observe[d] that those who did not do outstanding jobs
didn 't receive quite as many advantages in this respect."
He also conceded that unlike the employees working 37
1 /2 hours he was strictly on an hourly basis .22 And while
he thought that the "approximately five" who came from
the part-time ranks actually got 37 1 /2-hour jobs, he could
name only two who could fit this category, Harper and
Terry Littlejohn. The latter , however, did not become a
full-timer directly from a part-time job but only after an
intervening 3-year tour of Navy duty in which he had
19 At the time of Harper's resignation the senior part-tuner was Bob
Malcolm . The record does not indicate whether Malcolm was interested in
the job.
29 A mailroom employee for 6 years prior to his resignation in 1971.
21 By that time he had had some college courses eventually leading to a
degree in industrial technology.
as He did not take the "intelligence" test which, as noted infra, is given to
all full-time applicants.
ss Harper quit in August 1969 because of a personality clash with
Littlejohn who had been hired full-time in January of that year. When
Littlejohn quit 3 months later, Harper was rehired after Respondent
advertised the job In February 1971, however, he requested to revert to
part-time work so that he could return to school . A year later he reapplied
for a full-time opening , and because of his previous experience and the
attained an electrician 's rating, and an additional 6 months
in private industry in electrical and furnace repair work.
According to Burch, Respondent's policy is to consider
interested part-timers along with other applicants, but
apart from Harper other part-timers who have asked for
full-time jobs have been rejected as not qualified although
performing their part-time work satisfactorily; Harper was
the only full-timer ever hired directly from part-time work
in the mailroom , and this occurred in 1968 in a tight labor
market with only three or four responses to the advertise-
ment and because Burch knew him to be personable,
congenial, and possessing good work habits and, he
thought, mechanical aptitude.23 Burch also testified that on
all but one of the approximately dozen occasions on which
full-time vacancies have been filled since he became
foreman in 1967 newspaper ads were placed in a search for
applicants , and the single time this procedure was not
followed was with the most recent hire (Dorow) because
such hire occurred only 4 to 5 weeks after the appearance
of the last ad.24
Harper testified he did not "believe" he had been
required to file a new application when he became a full-
timer in 1968 after 2 years as a part -timer, but his written
application is in the record . Harper admitted taking an
"intelligence" test . This test, designated "Personnel Classi-
fication Test," is administered to all full-time applicants.
(2) Filling of vacancies upon Harper's departure
Zill was hired in June 1971 at $1.75 an hour, and raised
in November 1971 to $2, in June 1972 to $2.10, and in June
1973 to $2.25.25
Zill, who admittedly could not operate a typewriter when
he came to Respondent in 1971 , according to his
application, first inquired about a full-time job in the
mailroom sometime in 197228 when he made known his
interest to Assistant Foreman Fleming .27 He talked to
Fleming about it "probably half a dozen times" in 1972
and possibly 1973. About February or March 1973, he
testified, he mentioned his desire for the first time to Burch
and renewed his request "at least three times ," between
then and April, Burch being noncommittal . He testified
later that he "[did not] believe" any of these requests
occurred subsequent to the Union's appearance other than
the occasion when Harper quit.
According to Zill, Burch approached him about a week
after Harper quit and "offered me the job, said would you
like the job?" Zill answered affirmatively and Burch said
he would "see if it was all right with Mr. Schweitzer." The
next day Burch called Zill into his office and told him he did
Company 's satisfaction with his work he was selected over the other
applicants who had responded to the ad.
24 Dorow , who had had II years ' experience in the mailroom of a
punting fine , was hired to replace Mayne , one of the two whose hire over
Zill in June precipitated the instant charge . Mayne had soon been found
wanting and was fired.
25 Burch testified that such raises were automatic , merely indicating
satisfactory performance as a part-timer , the alternative being disnussal.
26 His recollection of dates was hazy. He thought it was "close to a year
now, if not more . . . [p]ossibly in March of '72." The hearing, as noted,
was in October 1973.
27 Around June 1972 Zill also applied for a full -time apprenticeship in
the pressroom but was turned down.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not get the job but that if he wanted to he could apply for it
with the other applicants.28 Zill filed by mail a resume of
his work experience. 29 Some time thereafter, Zill was called
to the office of Bruce Moore who handles personnel
matters for Respondent 30 Moore asked him if he knew
how to operate and repair the machines in the mailroom.
Zill replied that he could operate and repair those in the
mailroom proper but that although he knew how to operate
the machines in Burch's office, he could not repair those.
Moore gave Zill an application which Zill completed at
home and left on Moore's secretary's desk in her
absence 31 His testimony on direct examination in this
connection was as follows:
Q.
A.
Q.
A.
Q.
tion?
(By Mr. Fischer) Who gave you the application?
Bruce Moore did.
Where was that?
That was in his office.
Did you ever fill out or make out the applica-
A. Yes, I did.
Q. Where was that?
A. I made it out at home.
Q. What did you do with it when you made it out
at home?
A. Returned it to the secretary's desk.
Q. What secretary?
A. Bruce Moore's secretary.
Q. When?
A. June 10th.
Q. June what?
A. June 10th, I think.
Q. Did you keep a copy of it?
A. I did not have a copy.
Q. Now subsequent to your handing in your
application-
JUDGE HERMAN: Did you say you handed in this
application on June 10th?
THE WITNESS: It may not have been the 10th but it
was in June.
Q. (By Mr. Fischer) Now subsequent to your
handing in the application and mailing in the resume
did anyone from management discuss your employ-
ment as a full time mailing room employee?
A. No.
Q. Did you ever hear anything from management?
A. Yes, I did.
Q. When was the first time after you turned in the
application and mailed in the resume?
A. It was on my way to work.
28 Respondent ran the following advertisement from May 16 to June 5:
MAIL ROOM ASSISTANT
Needed ... person with mechanical ability, for machine and conveyor
operation and maintenance in our modern mall room . The person
selected will also have some clerical duties , including addressograph
operation . Excellent working conditions and the latest in fringe
benefits. Interviews by appointment only Send work resume including
address and phone number to Box 113 , The Ann Arbor News.29
The resume reflects poor spelling and typing.
30 Again Zill 's recollection of dates was extremely vague He placed this
as occurring in late June or early July but testified to a subsequent
conversation, infra, with Moore early in June ; and on cross-examination he
fixed the date of his visit to Moore's office as June 2 or 3.
Q. About when?
A. In June of '73.
Q. Who said anything to you about it?
A. Bruce Moore did.
Q. Where was this?
A. He was sitting by the driveway coming into the
Ann Arbor News.
Q. In his car?
A. No, there is a planter area and he was sitting on
the edge of that.
Q. Was anyone else present?
A. No.
Q. And will you tell the court what Mr. Moore said
and what, if anything, you responded to what he said?
A. He said I didn't get the job, and since I hadn't
been there for the last few days, that's why they hadn't
contacted me before.
Q. And would you tell the court what happened,
why you weren't there the three days previously?
A. I received a speeding ticket and spent the time
in jail 32
He later testified, still on direct examination, that his
conversation with Moore in the driveway occurred "about
two weeks [after]" his return to work the Monday
following his incarceration33 (which, as he testified on
cross, was June 11), and that his initial information from
"management" about the filling of the vacancy was
supplied by Burch on the day of his return.
In fact two full-time jobs were filled by the hire of
outsiders Mayne and Gahagan on June 5 and 6, respective-
ly.34 They were chosen from a group of 25 applicants most
of whom were screened out by Moore. Six or seven of the
applications were passed on to Burch who ultimately
interviewed the two he later decided to hire.35
Mayne's application indicated filing and typing experi-
ence, and he was highly recommended by two supervisors
in Respondent's circulation department. He was also
thought to have mechanical aptitude based on prior work
in a hardware store and his interest in motorcycles and
cars. Gahagan had experience and training (including
Navy service) in typing and electronics and had taken a
college course in electrical engineering.
Burch denied ever offering Zill the job. He testified that
after placing the ad in the regular way he remarked to Zill
that he supposed Zill was interested and that when Zill
affirmed that he was, he replied, "Okay, I will see what
happens." When Moore thereafter showed Burch Zill's
resume and asked his opinion, Burch said he would not
consider Zill. One basis for this conclusion, according to
31 This application was not offered in evidence.
32 His speed exceeded 100 miles an hour.
33 He spent June 6 , 7, and 8 in jail
34 The increase in the full -time complement entailed by the hiring of two
men was ordered by Schweitzer because of Respondent's increasing
workload.
35 Although Burch was unaware at the time , among those eliminated by
Moore was one McKeon, a union man with substantial mailroom
experience , but whose application indicated that he was then earning $221 a
week after having received $211 on his last previous job, and that the
minimum salary he would now consider was $200. Respondent 's rate was
$160
THE ANN ARBOR NEWS 429
Burch, was his belief that Zill was not "capable of running
the room, or handling the necessary supervisory responsi-
bilities that are placed on these fellows in my absence." In
this connection, he testified, Zill "seemed to find it easy to
sit and do nothing, and be in another part of the building
and so forth when there was work to be done."36 This
included "at least eight or ten" occasions of visiting the
men in the pressroom, wandering off to the lunchroom,
talking to the cashier or "merely standing in the mailroom
talking to a couple of young gals that we had inserting,
stuffers." Some of these would last but a few minutes while
others were more protracted. Sometimes he would disap-
pear altogether for as long as 15 or 20 minutes at a time.
Burch also felt that the quality of Zill's work was not all it
should have been, that he was frequently "somewhat
sloppy in his work habits and . . . inattentive to details of
the work." Nor did Burch feel that Zill had sufficient
electrical and mechanical aptitude although he could recall
no specific incident preceding his rejection of Zill to justify
this appraisal.37 Burch testified he discussed the above
shortcomings with Zill on 15 to 20 occasions prior to June
but never gave him a written warning or disciplinary slip.
After denying that he ever gave any employee a written
warning he admitted, when confronted with such a slip, to
having given it to Harper in 1970, also recalled having
given one to another employee, and added that those were
the only two occasions he had done so and they involved
"extreme circumstances," Harper's reprimand having been
given for reporting late for work 12 days the previous
month.
Zill testified on direct examination that he had never
been disciplined or criticized in respect to his operation or
maintenance of the machinery or otherwise regarding his
work before filing his application for the full-time job save
for being told "once" 38 to cease talking to the girl running
the cash register. According to Zill, he spoke to the girl
"only [to get] change from her" while paying for certain
personal classified ads he placed in the paper. However, on
direct examination in rebuttal his testimony was as
follows:
Q. Was anything said to you on those occasions
you were there paying your bill and receiving the
receipt from the cashier?
A. No.
Q. Was anything said to you when you returned to
your job site , or your working area, when you returned
from the cashier?
A. No.
And on cross, he testified:
Q. (By Mr. Brooks) Have you gone to the cashier's
office and talked to Joann Downing?
A. She was there.
Q. And talked with Joann Downing on occasions
when you were not participating in official business?
A. Yes.
36 Other part- timers were also guilty of this but to a lesser degree,
according to Burch.
37 Zil l admitted to using his penknife to hold open the switch of one of
the machines, "probably" a dangerous procedure , but this happened after
Q. You were friendly with her, weren't you?
A. I know her. She is not an enemy.
MR. BROOKS : Thank you. Nothing further.
MR. FISCHER: Okay.
JUDGE HERMAN: Were these occasions that weren't
official business something other than your getting the
cash receipts?
THE WITNESS : I was getting change-I was getting
change for a dollar.
JUDGE HERMAN: Did you ever have any conversa-
tions with her, purely personal in nature, apart from
getting change?
THE WITNESS: No, sir.
JUDGE HERMAN: Any further interrogation?
MR. FISCHER: No.
Q. (By Mr. Brooks) Are you aware you had so
many conversations with her of a personal nature it was
necessary for her supervisor to talk to Mr. Burch?
A. I am aware that he talked to her.
Q. Did Mr . Burch talk to you about the situation?
A. Yes, he did.
Q. Did you indicate you would improve your
conduct?
A. Yes, I did.
MR. FISCHER: When was that?
THE WITNESS: I don't remember.
MR. FISCHER: With respect to the date they refused
you full time employment? Before or after?
THE WITNESS : Before.
On his initial cross-examination he admitted having
suffered the loss of regular overtime work driving the mail
truck as a result of his speeding ticket and his prior
involvement in an accident.
During his regular hours, according to Zill, i.e., from 1 to
5 p.m., he worked alongside the full-timers, operated the
same equipment (including all the equipment in the office),
and performed the same functions, although he conceded
that he did not do as much typing and that the full-timers
spent an hour or an hour and a half more in the office than
he did. He also testified that he worked there some
mornings , "filling in as a fulltime employee ." And he
occasionally received, together with other part-timers,
instruction from Harper on the use of the machines. This
last, according to Burch , was at the cost of the part-timers'
regular work and he ordered it stopped . Burch also testified
that the addressograph machine was the only one in his
office that Zill ever operated, and that Zill never made
changes on addressograph plates for carrier bundles or
made up plates for mailing wrappers or set the controls on
even that machine for its various operations.
In an announced effort to show the confidence Respon-
dent reposed in Zill's ability, General Counsel sought to
elicit from Zill testimony that he had been assigned some
"job with respect to teaching [Mayne and Gahagan] the
business." The testimony went as follows:
Q. Do you know of your personal knowledge with
his rejection for the full -time job
38 He placed this as "probably " in July (which would have been after his
rejection) but was uncertain.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to the two new employees were you assigned
any job with respect to teaching them the business?
A. Not directly.
Q. Were you indirectly? Yes, or no?
A. Well, yes.
Q. But whom?
A. By Mr. Burch.
Q. What did Mr. Burch tell you and when in
connection with that subject?
A. I was showing Jack how to count.
Q. Who is Jack?
A. Jack Gahagan, the second man who was
employed, how to count.
Q. What do you mean how to count?
A. How to count newspapers.
Q. Do they count newspapers differently than they
count sheep?
A. No.
JUDGE HERMAN : Is there something special in
counting newspapers? The way you describe it, there
must be.
THE WrrNEss: There is a knack in knowing how to
split the bundles, and how to keep a head, and there are
some different things that need to be shown.
Q. (By Mr. Fischer) Is that what you had in mind
you were showing the new employees?
A. Yes.
Q. What happened on that occasion?
A. Everett walked up and said okay. In other
words, it seemed to me he didn't want me he didn't
want me to do it, or didn't think I was competent and
told me not to do it.
MR. BROOKS : I move to strike the response where
the witness started it seemed to me.
JUDGE HERMAN: It may be stricken.
Q. (By Mr. Fischer) Tell me this on any other
occasion did any one from management indicate to you
they wanted you to show or help these new employees,
these two full time mail room employees?
A. No.
B. Concluding Findings
1. General
not entirely accepted the fallback contention, the result I
have reached somewhat parallels it.
2. The 8(ax 1) allegations
Burch 's and Schweitzer 's own testimony leaves no doubt,
in my opinion, that Respondent has violated Section
8(axl) in respect to at least some of the conduct
complained of. Their admitted systematic and repeated
interrogation of all the unit employees during the pendency
of the election,39 their solicitation of information as to the
sources of the employees ' dissatisfaction and what could be
done to remedy them, and their invitation to the employees
in this context to see their foreman rather than union
representatives because the Union could not even guaran-
tee the continuation of existing benefits if it were selected
as bargaining representative (which at once establishes an
implied promise of benefit and a warning of the futility of
choosing the Union in the approaching election), all
constitute violations of Section 8(axl) which I view as
neither "borderline" nor "technical ."40 The implied prom-
ise assumed greater explicitness in Schweitzer 's admitted
statement to Zill that he "could make no promises, there
would be no changes in working conditions while this-be-
fore the election ...."
Additional violations established by the evidence includ-
ed:
(1) Burch 's statements that current practice would be
changed so as to dock employees for reporting late or
leaving early if the Union were voted in. It is of course
settled that such threats contravene Section 8(axl). Falcon
Tank Corp., 194 NLRB 333. And while I agree with
Respondent that the evidence indicates that Burch referred
to the ITU contract when making the statements it does
not follow that the statements merely "constituted non-
coercive speculation concerning terms which might flow
from the union contract covering the mail room" (br., p. 6).
In the first place , the contextual lines may not be narrowly
limited to the particular discussions involved but properly
embrace all of the surrounding activity including the
clearly unlawful conduct above described. Moreover, the
Board has found violative an employer 's reference to
harsher working conditions at one of its unionized plants
even without specifically linking the reference to the plant
in dispute . Thus, in The Hertz Corporation, 195 NLRB 96,
104:
Conceding it "clearly communicated" to the employees
its opposition to the Union (br., p. 3), Respondent urges
that its conduct did not violate Section 8(axl), with the
fallback contention that "[a ]t best, borderline , technical
violations of the Act occurred," providing an insufficient
predicate for an 8(aX3) finding (br., p. 12). While I have
as Even were I to discredit-which I do not-Harper's testimony
concerning his interrogations by Burch and Schweitzer as to his and other
employees' union views and activity, the result would be the same . I fail to
perceive the legal significance of Respondent's attempted distinction
between asking an employee why he is unhappy with his working conditions
and asking why he wants a union (br., p. 8). Similarly, asking why he is
dissatisfied or why he wants the Union in the midst of an organizing
campaign puts the employee in the same position as if he were asked
whether he wants the Union . Respondent's reliance on the Board 's small
plant rule in this connection (br., p. 8) to show Respondent had no need to
inquire as to the identity of the union adherents ignores the anticipated
Regarding Shafer's statements on November 24 that,
with a union at the Dallas station, the employees there
were required by management to work harder, includ-
ing the requirement of washing cars twice , it is our
opinion that the implication was clear that this was
effect of such inquiry on the employees who, as far as the record shows,
were unaware of the extent of Respondent 's knowledge.
40 Cf. Birdsall Construction Company, 198 NLRB No. 20 , enfd . 487 F.2d
288 (C .A. 5, 1973); King Chrysler-Plymouth, Inc., 174 NLRB 531; Eagle-
Picher Industries, Inc., 171 NLRB 293, 299-300; Reliance Electric Company,
191 NLRB 44, 46, enfd . 457 F.2d 503 (C.A. 6, 1972). "The question is not
only what the employer intended to imply but also what the employees
could reasonably have inferred ." N.LR.B. v. Kaiser Agricultural Chemicals,
473 F.2d 374 (C.A. 5, 1973). 1 do not read Coverall Rental Service, Inc., 205
NLRB No. 140, cited by Respondent, as detracting from the force of the
foregoing authorities.
THE ANN ARBOR NEWS 431
management policy in response to unionization. While
there was no express statement that the foregoing
conditions of work at Dallas under a union would be
imposed at San Antonio if the latter went union, it was
reasonably clear that the impression was conveyed that
such would be the case or, at least, was a good
possibility. In view of Shafer' s statements as to what
conditions of employment company management had
imposed in a unionized station, the listeners could
reasonably conclude that company management in the
same Company would follow a similar policy in San
Antonio. Certainly this is true since Shafer did not say
that conditions at Dallas did not represent company
policy or that such policies were not to be expected at
San Antonio in the event of unionization.
A fortiori, the employees will reasonably tend to be coerced
when their plant is mentioned as the prospective subject of
similar treatment . And the possession of a contract right to
impose such treatment does not prevent the employer from
forbearing to exercise it.
(2) Schweitzer's promise to Harper that the employees
would get a pay raise if they rejected the Union.
Respondent's brief (p. 9) urges an utter failure of evidence
to support the allegation. It relies for this purpose upon the
precise language of paragraph 9(e) of the complaint, to wit,
"promised its employees pay raises if they induced fellow
employees to reject the Charging Party as bargaining
representative." As I read the evidence, Respondent thus
ignores Harper's testimony that Schweitzer told him about
a week before the election-by which time Respondent
well knew of his strong union views 41-that he had not
realized that "we were unhappy with our wages," that if he
had known the situation would have been cured, and that
if the Company were given a chance it would rectify the
matter . The request to be "given a chance" during an
election campaign can only be and here admittedly was a
request for a negative vote; and conditioning such
rectification, i.e., a pay raise, on that vote was an unlawful
promise of benefit, a finding quite consistent with the
admitted conduct found unlawful above. Paragraph 9(e) of
the complaint is sufficiently broad to encompass this
conduct even if the promise be deemed simply one made to
obtain Harper's vote. In addition, however, the paragraph
is literally satisfied by Respondent's awareness of Harper's
influence on the other members of the bargaining unit.
(3)' Burch's promise to Harper that wages would be
raised if the Union lost the election. Again I credit
Harper 's testimony that Burch said he felt the employees'
pay would be brought up to standards if the Union were
voted down. Like Schweitzer's promise it was consistent
with the other 8(axl) conduct found, and its coercive effect
was not lessened by the qualifying word, "felt." A "feeling"
on the part of the man who runs the mailroom and does all
the hiring therefor, and who reports directly to the front
office , constitutes more than the mere "speculation"
41 And probably of his position as chapel chairman which, according to
his credited testimony, he disclosed to Burch prior to "several" conversa-
tions they had in the course of their frequent discussions about the Union.
44 Similarly with respect to the alleged threat that part-timers would lose
their jobs if the Union came in based on the alleged reference to such an
occurrence at Grand Rapids , again a matter easily ascertainable from the
Respondent argues it to be (br., p. 10). Nor can it be passed
off as "speaking as one supervisor to another" (ibid )
because of the supervisory duties that devolved upon
Harper in Burch's absence . When Burch was present
Harper performed no supervisory duties. He was a rank-
and-file member of the bargaining unit and indeed so
much so that he sat on the union side of the bargaining
table in its negotiations with Respondent.
I find no merit to the remaining 8(axl) allegations of the
complaint. I do not credit Zill's testimony that Burch asked
him what it would take to satisfy him not to have the
Union come in and, when he was unable to suggest a
figure, offered him $3.50 an hour if the Union was voted
down. Apart from the unlikelihood that Burch would have
offered him a 75-percent increase without getting any
suggestion at all from Zill as to the amount, the other
evidence bearing on the issue militates against it . Zill's own
subsequent testimony, adverting to the slip of paper (G.C.
Exh. 10) bearing two columns of figures written by Burch
on that very occasion, was that "$2.50 is what [Burch]
thought he could get for me and he was going to try to get
either $2.75 or $3.00." Moreover, Burch's testimony, that
this occurred in the context of his inquiry as to the source
of Zill's dissatisfaction, and that on learning it was partly a
matter of wages he only asked Zill what he thought he
should be making and then responded to Zill's request by
saying he would see what he could do, is confirmed by
Harper who testified that it was Zill who mentioned "$2.25
an hour, or $2.50 an hour, somewhere in that range."
Harper departed from Burch' s account only in attributing
to Burch the statement , after leaving for a few minutes,
that he could improve upon Zill's request. Perceiving no
reason why Respondent would have wanted to overcom-
pensate Zill, and noting the disparity between Zill's and
Harper's testimony concerning the event, I credit Burch's
denial that he said anything more than that he would see
what he could do. I do not believe this adds anything
material to the implied promise already found unlawful
supra.
I do not credit Harper's testimony that Burch told him
that Respondent's mailroom employees at Saginaw were
enjoying better working conditions since decertifying the
Union there. In view of the stipulation that there had been
no elections in the mailroom at Saginaw, I am unable to
believe that Burch would have exposed himself to
entrapment in such an obvious lie. He could hardly have
expected that the chapel chairman would not have
ascertained the truth so easily available from the Union.42
Finally, paragraphs 9(g) and (h) of the complaint fall not
only because of a complete failure of evidence as to the
events alleged in May and June but also because the Union
had been certified in April and conditioning the alleged
threats on the choice of the Union as bargaining represent-
ative would have made no sense after the Union had
already been chosen.
Union. I therefore credit Burch's testimony that all that was said about
Grand Rapids was that the part-timers were not covered by the contract
there , a statement conforming specifically to the notes Schweitzer used in
talking to the employees (G C. Exh. 12) which on their face also disclaim
any intention to get rid of part -timers.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The denial of a full-time job to Zill
Despite the 8(a)(1) conduct found above, and the
Company's knowledge that Zill was one of the two
principal union activists, the General Counsel has failed, in
my opinion, to sustain his burden of establishing an
unlawful motive for Zill's rejection for full-time employ-
ment.43 This burden is greater in establishing a right to
advancement to a better job than a right merely not to be
discharged or demoted. The difficulty appears well
illustrated by the fact that the only case cited by the
Charging Party (br., p. 9)44 deals not with a true promotion
but rather with the loss of a promotion to a job on which
the employee had already served "satisfactorily" for over 3
months . The case thus more closely resembled a demotion.
Unlike a discharge , demotion, or other discipline which
may normally be expected to rest on some failure of
performance on the employee's present job, satisfactory
performance on one's current job raises no presumption of
entitlement to promotion, even to fill a vacancy, unless the
work involved is the same or unless it is the employer's
practice so to promote in any event. Neither of these
inferences may fairly be drawn from the instant record.
The attempt to establish the latter on the basis of Zill's
and Wicks' testimony foundered on the evidence supplied
by Burch, which I credit, that mailroom part-timers get no
special consideration, that Harper was the only full-timer
during Burch's tenure to come directly from the ranks of
the mailroom part-timers, and that even Harper's case was
the result of special circumstances. Burch's negation of a
policy of promotion from such part-time ranks finds
considerable support in the surrounding evidence includ-
ing that furnished by the General Counsel's own witnesses.
Harper himself testified that only " some" of the full-timers
hired while he was there "came through the ranks," and
"through the ranks" meant only that they had had "some
connection with the company previously." Similarly,
Wicks' testimony that most full-timers had "at one time"
been employed "some place in the [Booth] chain" falls far
short of supporting Zill's position that it was company
policy to fill a full-time vacancy with the senior part-timer
desiring the job. And although Wicks thought that
"approximately five" full-timers had come from among the
mailroom part-timers, the only one he could name besides
Harper was Littlejohn who actually did not become a full-
timer until after he had completed 3 years' Navy service
with an electrician's rating, plus 6 months' private
employment at electrical and furnace repair work, all
following his part-time job with Respondent. Finally, the
method employed in filling full-time vacancies-advertis-
ing for applicants, reviewing their written applications, and
giving them written classification tests-is scarcely consist-
ent with the simplistic approach urged by the General
Counsel.
43 This is not to imply that the General Counsel failed to make out a
prima facie case, as contended by Respondent (br, pp. 15, 19). Noted in this
connection was the absence of a motion to dismiss at the close of the
General Counsel's case-in-chief.
44 J W. Mortell Company, 168 NLRB 435, 451
45 Charging Party questions Burch's reference to electrical aptitude,
pointing to the absence of such a qualification in the ad But the generic
term, "mechanical," in connection with operation and maintenance of
electrically powered machines , is certainly broad enough to embrace
Hence the General Counsel's effort to demonstrate the
equivalence of the work or at least Zill's experience at the
performance of full- time duties that differed from his
normal type of work. In respect to the similarity of the
work a short answer might be that the history of filling full-
time vacancies would doubtless have more closely approxi-
mated Zill's policy of promoting from within had the
similarity attained the degree alleged . The evidence recited
above shows in fact that the jobs, as suggested by their
different methods of compensation, were substantially
discrete, differing both in kind and degree.
Respondent's "three major" desires in its full-time
employees, according to Burch's credited testimony, are
mechanical aptitude, electrical aptitude, and clerical ability
encompassing filing, typing, and, to a lesser extent,
spelling. This is borne out by the need for these employees
to operate and maintain machines that are electrically
controlled, including addressograph work. As applicants
were advised in the advertisement appearing in the record,
Respondent required a person with "mechanical ability,
for machine and conveyor operation and maintenance .. .
will also have some clerical duties, including addresses
graph operation." 45 None of these skills is a prerequisite to
obtaining a part-time job whose essential functions are
primarily manual in nature. Indeed Zill's application for
part-time work specifically stated that he could not operate
a typewriter. Nor does the record offer any basis for an
inference that he thereafter improved his ability in respect
to the skills sought by Respondent in its full-time
employees. Zill's resume , submitted in connection with his
application for the full-time job, is a poor sample both of
typing and of spelling.
To the extent that full-timers and part-timers performed
parallel functions this was more a matter of the former
doing the work of the latter rather than vice versa. That
Zill, like other part-timers, operated some of the machines,
or may even have performed some operations on all of the
machines, did not necessarily qualify him for a full-time
job with attendant responsibility for the operation and
maintenance of the machines. Zill acknowledged having
admitted to Moore that he could not repair the machines in
Burch's office, the peculiar domain of the full-timers. And
although he claimed to have operated those machines the
record indicates that the virtual extent of such operation
was the instructions he and other part-timers received from
Harper contrary to Burch's orders.
Another essential area in which Zill was found lacking
was that involving supervisory ability.46 I credit Burch's
testimony that Zill dallied and strayed from his job on
numerous occasions beyond the one he admitted to in his
examination-in-chief. On cross-examination of his rebuttal
testimony, Zill admitted that his excessive conversations
with the cashier led to her supervisor's complaining to
electrical skills, which represent but a specific type of mechanical ability.
Supervisory ability was also unmentioned in the ad, yet undeniably
constituted a significant factor See infra
46 Although such ability is not normally a factor in assessing the
qualifications of a statutory employee, the job here in question required it
because of the responsibility vested in the full-timers for the functioning of
the mailroom in Burch's absence on a regular basis due to the arrangement
of the shifts . Cf. Nassau and Suffolk Contractors ' Association, Inc, 118
NLRB 174
THE ANN ARBOR NEWS 433
Burch who in turn obtained a promise from Zill that he
"would improve [his] conduct ." Some of the time thus
wasted was spent with the young female stuffers who
would have been among those coming under his supervi-
sion had he gained a full-time job. The contention that
Respondent 's failure ever to give Zill a written warning or
take other disciplinary action against him belies any
asserted misconduct by Zill , or at least Respondent's
dissatisfaction with him , overlooks, first, Zill's admission
that he agreed to improve his conduct, and second , that the
conduct was more tolerable in a part -timer than in a full-
timer.47
Finally, two incidents occurring after Zill 's rejection, and
thus obviously not relied on as a basis therefor, tend
nevertheless to support Respondent 's judgment resting on
the other evidence noted above that Zill lacked the
qualities it wanted in a full-time employee, and hence
negate the contention advanced in his behalf that Respon-
dent's dissatisfaction with him was a mere pretext
manufactured out of the whole cloth . First, he admitted his
arrest and imprisonment for speeding over 100 miles an
hour and that he had been deprived of regular overtime
work driving Respondent 's mail truck in consequence of
that and his prior involvement in an accident. Second, he
admitted the dangerous nature of his use of his pocket
knife to hold down the switch of a machine.48
Respondent contends that hiring people without even
Zill's experience and indeed completely lacking in mail-
room experience demonstrates an improper motive. But
mailroom experience of itself , particularly where the jobs
differ in nature, does not necessarily help an applicant. An
employer may regard aptitude without specific experience
to be preferable to the kind of experience offered by the
part-timer And where , as here , the employer relies on
related experience and the character of the recommenda-
tions accompanying an application , as with Mayne and
Gahagan , it cannot be said that asserting such preference
amounts to a pretext to cover an unlawful motive . Nor did
Burch , as contended , act inconsistently by offering Zill the
job only to renege when his superiors shunned the choice
because of Zill's union activity . I credit Burch 's testimony,
contrary to Zill's, that he did not offer Zill the job when
Harper quit . Indeed such an offer would have been
inconsistent with his reaction to Zill's prior requests49
47 Contrary to General Counsel and Charging Party, Harper's credibility
in this connection does not suffer from his contradiction of his initial
testimony that he never gave written warnings to anyone When his
recollection was refreshed on cross-examination as to the warning slip he
gave Harper, he explained the extraordinary circumstances that impelled
such unusual action and volunteered the information that he had also given
one to another employee in no way related to this proceeding Also noted
here is the fact that Harper's work record introduced into evidence by
Respondent reflects the warning on its face
48 His later testimony in rebuttal that Fleming had once done something
similar without criticism does not help Zill's case since , apart from any other
consideration, it does not appear that any superior of Fleming's was aware
of it
49 Zill was inconsistent in first testifying that between March and April
he had renewed his initial request ( made in March) "at least three times,"
and later testifying that none of these requests occurred after the Union's
appearance
50 Zill's account of filing his application and notification of its rejection
provides additional insights into the entire transaction, but tending mainly
to confuse He first testified to having filed on June 10, which then became
"June 10th, I think " June 10 was a Sunday So it was probably on the 9th
which admittedly had never been especially encouraging.
Besides, Burch's 8(a)(1) conduct hardly squares with his
being Zill's benefactor as distinguished from the villains
above him.
As for the contention that Respondent never gave Zill a
reason for rejecting him, there was no evidence that he ever
asked for a reason. His own testimony was that when
Burch, speaking for "management," told him of the
rejection he simply said, "Well okay."50
In all the circumstances, I find the evidence insufficient
to establish that Zill, who had also been rebuffed in his
attempt to obtain a full-time pressroom apprenticeship
prior to the advent of the Union, was denied a full-time job
in the mailroom because of his union activity.
To the extent I have credited Burch I have not ignored
the embellishments in some of his testimony.51 The facts
recited above, however, show numerous inconsistencies
between Zill and Harper and internally in the testimony of
each. I have accepted neither the General Counsel's claim
of Harper's impartiality52 nor Respondent's claim of
Burch's total candor, and have found Zill, whose testimony
at various points was vague and confusing, less impressive
than either as a witness. As far as possible, and as the
factual recital indicates, I have resolved each testimonial
conflict on the basis of objective considerations. Insofar as
I have been unable to do this my determinations have
rested on my observation of the witnesses' demeanor in the
context.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(l) of the Act
by coercively interrogating its employees concerning their
union activities and those of their fellows, soliciting
grievances from its employees and impliedly promising to
rectify them, warning its employees of the futility of
choosing the Union to represent them, promising a pay
raise if the Union were defeated, and threatening its
employees with reprisals for selecting the Union.
(immediately following his incarceration) or Monday, the 11th, as he
testified on cross, in either event several days after the jobs had been filled.
But he had received the application, he testified , on June 2 or 3 (probably
June 2). He evidently took his time about filing because he was at work on
June 4 and 5 In fact , on the latter date he saw Mayne there without
realizing the significance of the event Moreover , he testified , it was on his
way into work (presumably the 9th or i Ith) that he was informed of his
rejection by Moore who was sitting in the driveway, but he later testified
that his conversation with Moore occurred some 2 weeks thereafter, and he
also testified that it was Burch who reported the news of his rejection on
behalf of "management"
51 I have noted, inter aha, his purported reliance on a threat by Fleming
to quit if Zill got the job Burch testified, however, that this alleged threat
came when he told Fleming that Respondent had received a resume from
Zill But by that time , according to Burch himself , he had already told
Moore (immediately upon learning from Moore that the resume had come
in) that he did not want Zill
52 General Counsel's argument (br, p 5) that Harper's departure from
Respondent's employ shows he "has no possible interest or bias for or
against Zill or the Respondent" can only be characterized as disingenuous
in view of Harper 's retention on the Union's bargaining committee.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices affect commerce 20 days from the date of this Order, what steps Respondent
within the meaning of Section 2(6) and (7) of the Act. has taken to comply herewith.
5. Respondent did not violate the Act by telling its IT Is FURTHER ORDERED that the complaint be dismissed
employees that its Saginaw employees were enjoying better insofar as it alleges violations of the Act not specifically
working conditions after decertifying the Union, by found.
threatening that part-timers would lose their jobs if the
Union were voted in, by asking Zill what it would take to
satisfy him not to have the Union and offering him $3.50
an hour if the Union were voted down, by any alleged
conduct in May and June, or by the denial of a full-time
job to Zill.
REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist therefrom and from any like or related
conduct, and to post the usual notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER53
Respondent, Booth Newspapers, Inc. d/b/a The Ann
Arbor News, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees con-
cerning their union activities or those of their fellows.
(b) Soliciting grievances from any of its employees with a
promise, express or implied, to remedy them.
(c) Warning any of its employees of the futility of
choosing Detroit Mailers Union No. 4, International
Mailers Union (Ind.), or any other labor organization to
represent them.
(d) Promising any of its employees a pay raise or other
benefit for the defeat of the Union or any other labor
organization.
(e) Threatening any of its employees with reprisals for
selecting the Union or any other labor organization.
(f) In any like or related manner, interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Ann Arbor, Michigan,
copies of the attached notice marked "Appendix." 54
Copies of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by an
authorized representative of Respondent, shall be posted
by 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 Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the said Regional Director, in writing, within
53 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.
54 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate any of our
employees concerning their union activities or those of
their fellows.
WE WILL NOT solicit grievances from any of our
employees with a promise, either express or implied, to
remedy such grievances.
WE WILL NOT warn any of our employees of the
futility of choosing Detroit Mailers Union No. 4,
International Mailers Union (Ind.), or any other union
to represent them.
WE WILL NOT promise any of our employees a pay
raise or other benefits for the defeat of the Union or
any other labor organization.
WE WILL NOT threaten any of our employees with
reprisals for selecting the Union or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with the right of our employees to engage in organiza-
tional activity or collective bargaining or to refrain
from such activities.
BOOTH NEWSPAPERS, INC.
D/B/A THE ANN ARBOR
NEWS
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3200.