G. P. Putnam's Sons Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1976

226 N.L.R.B. 1256 (N.L.R.B. 1976)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. P. Putnam 's Sons Inc.; Coward , McCann and Geo-
hegan , Inc.; Berkley Publishing Corporation and
Office and Professional Employees International
Union, Local 153 , AFL-CIO . Cases 2-CA-13467,
2-CA-13488, and 2-RC-16633
December 1, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On September 29, 1975, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, G. P.
Putnam's Sons Inc.; Coward, McCann and Geohe-
gan, Inc.; and Berkley Publishing Corporation, New
York, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph 2(a) of
the Order:
"(a) Upon request, from October 1, 1974, recog-
nize and bargain with the Office and Professional
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 In accordance with our recent decision in Trading Port, Inc, 219 NLRB
298 (1975), our Order will require Respondent to recognize and bargain
with the Union as of October I, 1974, the date on which the Union attained
majority status
Employees International Union, Local 153, AFL-
CIO, as the exclusive bargaining representative of the
employees in a unit of all office and clerical employ-
ees employed by Respondent at its 200 Madison Av-
enue, New York, New York location, including assis-
tant editors, copy editors, production assistants, art
directors and sales clerks, but excluding advertising
directors, artists, editors, senior editors, managing
editors, presidents of Putnam's; Coward, McCann's;
and Berkley's, production chiefs, publicity directors,
publicity and promotional department heads, direc-
tors of the copy editing, personnel, rights and sales
departments, codirectors of Putnam's juvenile de-
partment, salesmen, managerial employees, confi-
dential employees, watchmen, guards, and supervi-
sors, as defined in the Act, as amended, and, if an
understanding is reached, embody such under-
standing in a signed agreement."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice.
WE WILL bargain collectively, upon request,
from October 1, 1974, with Office and Profes-
sional Employees International Union, Local
153, AFL-CIO, as the exclusive representative
of all our employees in the bargaining unit with
respect to rates of pay, wages, hours of employ-
ment and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All office and clerical employees employed
by G. P. Putnam's Sons, Inc., Coward, Mc-
Cann and Geohegan, Inc., and Berkley Pub-
lishing Corporation, at their 200 Madison Av-
enue, New York, New York location,
including assistant editors, copy editors, pro-
duction assistants, art directors and sales
clerks, but excluding advertising directors,
artists, editors, senior editors, managing edi-
tors, presidents of Putnam's; Coward, Mc-
226 NLRB No. 217
G. P. PUTNAM'S SONS INC
Cann's; and Berkley's, production chiefs,
publicity directors, publicity and promotional
department heads, directors of the copy edit-
ing, personnel, rights and sales departments,
co-directors of Putnam's juvenile department,
salesmen, managerial employees, confidential
employees, watchmen, guards and supervi-
sors, as defined in Section 2(11) of the Act,
constitute a unit appropriate for purposes of
collective bargaining within the meaning of
Section 9(b) of the Act.
WE WILL NOT question employees about their
reasons for seeking union representation.
WE WILL NOT threaten employees with plant
closure and loss of career opportunities if they
select Office and Professional Employees Inter-
national Union , Local 153, AFL-CIO, to repre-
sent them.
WE WILL NOT threaten employees with dis-
charge if they engage in activities on behalf of
Office and Professional Employees Internation-
al Union , Local 153, AFL-CIO.
WE WILL NOT grant employees paid medical
insurance coverage and additional holidays to
induce them from becoming or remaining mem-
bers of Office and Professional Employees Inter-
national Union , Local 153, AFL-CIO, or to re-
frain from giving any assistance or support to it.
WE WILL NOT discharge employees because
they join , assist , or give support to Office and
Professional Employees International Union,
Local 153, AFL-CIO.
Since the Board found that we violated the
law when we discharged Mark Denton, Steve
Morganstern , Carla Sarett , Peter Duffy, Joan
Kelsey, and Elke Meyer Titus, WE WILL offer
them immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions without preju-
dice to their seniority or other rights or privi-
leges and WE WILL pay them for any loss of pay
they may have suffered because we discharge
them.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their right to self-organization , to form,
join, or assist labor organizations , to bargain
collectively through representatives of their own
choosing , and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Sec-
tion 7 of the Act , or to refrain from any or all
such activities.
You are free to become and remain members
1257
of Office and Professional Employees Interna-
tional Union, Local 153, AFL-CIO.
G. P. PUTNAM'S SONS, INC; COWARD,
MCCANN AND GEOHEGAN, INC.; BERKLEY
PUBLISHING CORPORATION
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This is an
unfair labor practice proceeding involving allegations that
the above-named Respondent (the three companies named
above are affiliated companies and are referred to collec-
tively as Respondent) violated Section 8(a)(1), (3), and (4)
of the Act by various acts of interference , restraint, and
coercion , and by discharging certain of its employees be-
cause they supported and assisted the above-named Union
and/or because they gave testimony under the Act. Con-
solidated with the unfair labor practice proceeding are ob-
jections to conduct affecting the results of an election in
Case 2-RC-16633 held on January 22, 1975. The com-
plaint alleges that Respondent's unfair labor practices have
rendered impossible the conduct of a fair election and that,
as a majority of Respondent's employees had signed valid
cards authorizing the Union to represent them , a bargain-
ing order should issue. The unfair labor practice proceed-
ing was initiated by a charge in Case 2-CA-13476 filed by
the above-named Union on October 7, 1974, 1 a charge in
Case 2-CA-13488 filed by the above-named Union on Oc-
tober 17, amended on November 25, amended for the sec-
ond time on September 17, and amended yet a third time
on February 26, 1975. A consolidated complaint was is-
sued on December 19, and amended on March 5, 1975. On
March 11, 1975, the Regional Director for Region 2 issued
a supplemental decision , order consolidating cases, and no-
tice of hearing in Case 2-RC-16633 in which he consoli-
dated the objections with the unfair labor practice cases.
On May 19, 20, 21, 22, 29 and 30, 1975, hearing was held
in New York City, New York.
Upon the entire record, including my observation of the
witnesses , and after consideration of the briefs filed by
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
1. FACTUAL SETTING
G. P. Putnam 's Sons, Inc. (herein called Putnam ) and its
subsidiaries Coward, McCann and Geohegan (herein
called Coward, McCann) and Berkley Publishing Compa-
ny (herein called Berkley ) are affiliated businesses with
common officers , ownership , directors, and operators, en-
gaged as a single integrated business enterprise in New
York City and the State of New Jersey , in the publication,
Unless otherwise indicated all dates are in 1974
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale, and distribution of books.' These cases involve only
Respondent's operations in New York City.
In the summer of 1974, some of Respondent's employees
began discussing the idea of obtaining union representa-
tion. After some meetings in homes a meeting was held at
the McAlpin Hotel on or about August 7, where represen-
tatives of various unions made presentations explaining
how they could benefit the employees if they were selected
as the bargaining representative The employees present
opted for Local 153 and, on or about August 9, the follow-
ing letter was sent to Walter Minton, president of Putnam:
We the undersigned are actively participating in the
current organizational campaign being conducted by
Local 153, Office and Professional Employees Inter-
national Union, AFL-CIO.
As a point of information, we are legally protected in
exercising our rights of self-organization. It is an un-
fair labor practice for an employer to interfere, re-
strain, coerce or in any way obstruct employees in
pursuing such activity.
Local 153 sincerely hopes that G. P. Putnam's Sons
will observe the letter of the law and stands ready to
initiate the necessary legal action in the event that it
becomes necessary.
The letter bore what purported to be the signatures of 29
employees.
On September 26, the Union notified Respondent it rep-
resented a majority of the office and professional employ-
ees and that it would file a petition the next day, which it
did. On December 17, after a hearing, the Regional Direc-
tor issued a Decision and Direction of Election. On Janu-
ary 22, 1975, an election was held in the unit found appro-
priate by the Regional Director in which 20 employees cast
ballots in favor of representation by the Union and 29 cast
ballots against representation. There were 10 challenged
ballots which were determinative of the results of the elec-
tion, but a subsequent determination by the Regional Di-
rector upholding the challenge to I ballot rendered unnec-
essary the resolution of the remaining 9 challenges. On
January 27, 1975, the Union filed timely objections to con-
duct affecting the results of the election. Certain of these
objections were withdrawn, and, as noted earlier, in a Sup-
plemental Decision on March 11, 1975, the Regional Di-
rector consolidated the remaining objections for hearing
with the instant complaint.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Discharges
1. The discharge of Mark Denton
Mark Denton was employed by Respondent as an edito-
rial assistant in the adult trade department. In March 1974,
he was promoted to assistant editor in the juvenile depart-
ment under the supervision of Charles Mercer. Denton tes-
2 Jurisdiction is not in issue The complaint alleges, the answer admits,
and I find that Respondent meets the Board 's $50,000 direct outflow stan-
dard for the assertion of jurisdiction
tified he received five raises during his employment, the
last of $5 per week on September 1. He testified that he was
told of the raise by Mercer on or about August 8 and at the
time Mercer expressed pleasure about Denton's work and
regrets that the raise could not be greater.
Denton attended the union meeting at the McAlpin Ho-
tel on August 7 and signed a union card on August 12.
That same day, he testified he saw Minton go to Mercer's
office and hand him a paper. After Minton left, Mercer
called Denton in and remarked, " I see you signed this let-
ter. I feel hurt I think it's violation of the personal relation-
ship we have developed " Denton expressed regret at not
having informed Mercer but explained he felt obliged to
keep the matter secret for the sake of other employees.
Mercer then referred to a conversation with Denton in
nud-June when employees of another publisher had been
on strike and reiterated his remarks on that occasion that
"Putnam's was Walter's [Minton] ship, it was his baby, and
that he would not allow a union to go in there, that he
would close it down before he would allow a union there."
Mercer said Minton would boot the union supporters right
out of Putnam's
On August 15, Mercer asked Denton to prepare a report
on the status of all the projects he was working on.
On August 15, Minton called Denton to his office and
told him that, while he was not then contracting for manu-
scripts, he would in future. He told Denton that was mana-
gerial work and, if Denton was involved with a union,
there was a conflict of interest.
On August 21, Mercer terminated Denton on the ground
he was too slow, citing delay in turning in fall lists (Denton
had just turned them in and they were resting in Mercer's
"IN" box), and too much time editing a novel. Denton
explained it had been his first such editing job and com-
plained that if Mercer had felt he was taking too long he
should have told him so. Mercer said he did not want to
defend his position He thought Denton was too intelligent
for the type of work the job required and that Denton did
not like detailed work. Denton admitted he might not like
detailed work but he understood that was part of the job.
The discharge of Denton poses the issue of Respondent's
motive for the discharge. General Counsel contends that
Denton was discharged because of his support of the
Union and Respondent contends he was discharged for
cause. Respondent also contends that as an assistant editor
Denton was a managerial employee not entitled to the pro-
tection of Section 7 of the Act I discuss the managerial
employee issue below in connection with the discharge of
Joan Kelsey, and no useful purpose would be served by
describing Denton's duties which were similar to Kelsey's.
For reasons there given, I conclude that Denton was not a
managerial employee. Moreover, I conclude that his dis-
charge was motivated by his support of the Union and was
not for cause.
The conclusion that the discharge was for union activity
is based on several factors. A significant factor is the credi-
bility of Mercer. In a way, Mercer impressed me as a very
decent and honest man, the type of man who, as he testi-
fied, preferred the carrot to the stick as a method to im-
prove employee performance Nevertheless, I cannot credit
him. While he appeared to be truthful, an examination of
his testimony reveals that he really had very little of sub-
G. P PUTNAM'S SONS INC.
stance to say. On the critical issue of Denton's slowness, he
could point to only one specific example, the editing of
"Winter Wheat," and it is undisputed he had not spoken to
Denton about that until he was terminated. He adverted to
an alleged claim by Denton that he was overworked, but
Denton testified that his discussion with Mercer was about
overtime, not overwork, and was attributable to the sugges-
tion of Dorothy Rudo, Minton's secretary. This was not
denied.
According to Denton prior to his termination he had not
been reprimanded about his work; in fact, he had been
complimented. Thus, as noted earlier on August 8, Mercer
told him he was pleased with his work and that he would
be receiving a $5-per-week increase on September 1 Mer-
cer sought to explain the increase as an equalization of
Denton's salary with Kelsey's but I can give no credence to
such an explanation. One would assume Respondent
would not be granting any kind of increase to an employee
who was unsatisfactory and, if Mercer were to be believed,
Denton had been unsatisfactory for several weeks before
August 8. Moreover, it is noteworthy that Mercer did not
contradict Denton's testimony that Mercer told him he was
pleased with his work. In addition, it appears that Minton
was unaware of Denton's shortcomings because, on August
15, he called Denton into his office to tell him he would be
contracting for manuscripts in future. Such a remark,
which was intended to dissuade Denton from his union
activity, belies the claim that Denton was unsatisfactory
and belies Mercer's testimony that he had discussed his
dissatisfaction about Denton with Minton and Rudo and
they had counseled him to be patient. Neither Minton nor
Rudo corroborated Mercer. In this connection, Mercer
never did make clear what finally brought his patience to
an end. As a matter of fact, on a matter of such impor-
tance, and as one with few employees to supervise, Mercer
could not even remember precisely when he made the deci-
sion to terminate Denton.
For all the foregoing reasons, I do not credit Mercer's
assertion that Denton was discharged for cause. To the
contrary, I conclude that the reason for his discharge was
the one implicitly acknowledged by Mercer in a conversa-
tion with Joan Kelsey about the Union on October 14.
According to Kelsey's uncontradicted testimony, on that
occasion Mercer told her, "You have to understand that
what kind of man Mr. Minton is in that he would oppose
any kind of organizing like this. I tried to tell this to Mark
.. . and Mark just wouldn't listen." Mercer said Mark
"was a dumb-dumb for signing that letter." These remarks
were of a piece with Mercer's remarks to Denton in mid-
June and on August 12.3
On the basis of the foregoing, including the timing of
Denton's discharge so shortly after the start of the union
activity, the precipitate manner in which the discharge was
effected without prior warning, and Respondent's union
animus not only as expressed by Mercer, but also as spread
out in the record and detailed hereinafter, I conclude that
Denton was not discharged for cause, but rather was dis-
charged because of his support of the Union and that Re-
3 Mercer's remarks to Kelsey were not alleged to be violative of Sec
8(a)(I) of the Act and, therefore, they are considered only as evidence of
Respondent's union animus and motive
1259
spondent thereby violated Section 8(a)(1) and (3) of the
Act.
2. The discharge of J P Duffy
J. P. Duffy was employed by Respondent on July 16,
1973, as an editorial assistant. After about 10 weeks, he
transferred to the publicity department as assistant to the
publicity director at an increase in pay of $500 annually In
April 1974, he received a $500 annual raise. Duffy had a
variety of duties, including writing press releases for adult
trade books and arranging radio and TV bookings for au-
thors when advised by the publicity director to do so.
Duffy signed the August 9 letter to Minton and signed a
union card on the same day. Duffy testified, without con-
tradiction, that on August 13 Minton came to his office,
adverted to the fact that Duffy had expressed interest in
appointment to the job of publicity director for Coward
McCann, and remarked that he thought Duffy was emi-
nently qualified for the job, but he would never recom-
mend him. Duffy asked why and Minton, using a vulgarity,
said he was upset about this union thing and noted that
Duffy's name was on the August 9 letter. He asked what do
"you people know about a union , anyway?" He remarked
that he had been trying to institute his own programs, in-
cluding a seniority project, and, using the same vulgarity,
what upset him was that the majority of the beneficiaries
were the young people and by and large they were the ones
who had signed the letter. Minton concluded by stating
that Duffy could speak to Jack Geohegan, president of
Coward McCann, about the publicity director's job. After
saying that, he remarked, "I feel like I've been stabbed in
the back."
Later that day, Minton called to speak to Duffy's super-
visor, Martha Shattuck. She was then at lunch and when
she returned Duffy told her of his conversation with Min-
ton and asked for her advice She remarked she had not
known until just earlier of his interest in the Union and
advised him that he could either go to Minton and apolo-
gize and admit to a mistake and that he really did not
know what he was signing or else he could look for another
job. Duffy did not apologize He asked for an interview
with Geohegan about the job as publicity director, was in-
terviewed, but was not offered the job.
According to Duffy, prior to these events, he had en-
joyed a friendly working relationship with Shattuck with
the two of them lunching together both in and out of the
office and with Shattuck stopping by his office to chat.
This all changed. Shattuck became rude and unfriendly,
not even offering him a good morning or good afternoon.
Moreover, he had not been criticized about his work per-
formance.
On October 2, 1974, Shattuck called Duffy into her of-
fice and told him he was terminated. Duffy asked why and
she told him it was because he did not follow through.
Asked to be more specific, she referred to one Kay Gor-
man, an author whose hotel arrangements on a publicity
tour in late September had been handled improperly.
Duffy blamed the travel agency. He asked for other exam-
ples, but she could give him none and she admitted that
"by and large, your work is very good. But things haven't
worked out as I had hoped."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing is Duffy's version of his employment his-
tory and performance and of his conversations with man-
agement. If credited, his testimony would support a finding
that his discharge was attributable to his support of the
Union and not to any incompetence or other cause. Thus,
he was a known union supporter exposed to Minton's ani-
mus, counseled by his supervisor to apologize or seek other
work, subjected to his supervisor' s animus by a change in
attitude, and, finally, discharged without warning on the
heels of the Union's demand for recognition and its filing
of a petition for an election. The only problem is that I do
not credit Duffy.
The credibility issue is not between Minton and Duffy.
Minton did not deny the conversation with Duffy on Au-
gust 13. But that conversation only offered further proof of
Minton's animus and in Duffy's case it is Martha
Shattuck's motive we have to analyze. According to Shat-
tuck, it was she who made the decision to discharge Duffy.
She did not consult Minton about the decision, nor her
immediate superior Thomas, although she advised Thomas
of her decision. At least, this was her testimony and I credit
it. I have two reasons for crediting Shattuck. First, her de-
meanor was very impressive; she appeared to me to be
entirely candid and forthright. Second, notes which she
made contemporaneously with incidents reflecting on
Duffy's work performance corroborate her testimony
about his failings and contradict Duffy's testimony that he
had not been criticized about his work prior to his union
activity. I realize that the notes are only as reliable as
Shattuck's testimony, but they do lend credibility to her
testimony. Apart from that, Duffy did not impress me fa-
vorably. He had a ready explanation for every item of
complaint against him, some of which strained credulity.
With Shattuck being credited, a finding that J. P.
Duffy's discharge was unlawfully motivated is unwarrant-
ed; rather, the record supports a finding that Duffy was
discharged for the reasons specified by Shattuck at the
hearing as more fully detailed in her notes. Accordingly, I
shall recommend dismissal of the complaint allegation re-
specting his discharge.
3. The discharge of Peter Duffy, Carla Sarett, Steve
Morganstern, and Elke Meyer'
Except for Peter Duffy, the above-named employees
were employed by Respondent in the school and library
department. Duffy was employed in the advertising depart-
ment as secretary to the advertising director. All signed
union cards. Elke Meyer also coauthored with Joan Kelsey
a report to employees of the representation hearing which
she had attended and she distributed union literature at the
office, as did Carla Sarett. On October 15, all were given a
letter from William Thomas, vice president and director of
sales, notifying them they were being terminated effective
October 29 for the asserted reason that Respondent was
reducing the number of its publications in the juvenile and
young adult categories due to a decrease in sales. General
Counsel contends that these terminations were motivated
4 Subsequent to the events herein Elke Meyer married and appears on the
record as Elke Meyer Titus
by Respondent's opposition to the Union and not by eco-
nomic considerations.
The school and library department was formed in the
mid-60's to meet a demand for juvenile books in schools
and libraries stimulated by Federal legislation and funding.
Because of such funds and demand, schools were purchas-
ing many books and were purchasing directly from pub-
lishers such as Respondent. As a result the school and li-
brary department grew to a point where it employed 12
salesmen and an unspecified number of office employees.
However, with the passage of time and a change in Federal
funding, plus the effects of inflation, the demands for juve-
nile books in schools and libraries decreased. Thus,
whereas Respondent published 189 titles in 1966, and 251
in 1967, a decline began in 1968 with 181 titles published,
and continued thereafter as follows: 164 titles in 1969, 147
in 1970, 146 in 1971 and 1972, 93 in 1973, and 84 in 1974.
In 1969, 10 salesmen in the library department were termi-
nated and the remaining 2 began selling adult trade books
as well as school and library. At some unspecified time
thereafter, only one salesman was employed to sell school
and library books as well as adult trade. Moreover, with
the reduction in titles published the need for certain func-
tions was reduced. For example, less advertising copy had
to be written, fewer promotional circulars had to be pre-
pared, and a decrease in correspondence occurred. Ac-
cording to Respondent, these were the factors which moti-
vated the decision to abolish the school and library
department on October 15, and to terminate the four em-
ployees here in question.
It is, of course, settled law that the burden is on General
Counsel to prove that the discharge of union supporters
was motivated by their support of the Union, rather than
economic necessity, and, upon first impression, it appeared
to me that he had not met that burden, that the factors
supporting a finding of a violation were insufficient to
overcome the evidence of economic necessity. Upon deep-
er analysis, however, I conclude that the record did not
support Respondent's assertion of economic necessity and
that the abolition of the school and library department was
a fictional act performed to disguise the unlawful motive
for terminating the four employees here in question. It is
difficult to explain at precisely what point I arrived at this
conclusion.
In the first place, it is clear that Respondent did not
cease to sell books to schools and libraries. As Minton stat-
ed, "There is no school library department per se any more.
It was abolished as a separate entity and its functions
merged with those of the sales department, the adult sales
department." Thus, we do not have a discontinuance of
functions; rather, we have a transfer of functions. Accord-
ing to Respondent, however, because of decreasing sales
there were less functions to be performed, and, accord-
ingly, no longer any need for a separate department. There
are references in the record to less need for promotion cir-
culars, less publicity, less ad writing and copy editing, and
less correspondence, but all the testimony in that regard is
very general and not fixed in time, and, in the final analy-
sis, has validity only insofar as Minton and Thomas are
deemed to be credible witnesses. I did not so deem them.
If there was less need for the functions described, pre-
sumably this lessened need was demonstrated long before
G. P. PUTNAM'S SONS INC
October 15. Beginning with 1968, the number of titles pub-
lished annually decreased with a significant drop from 146
in 1972 to 93 in 1973. Yet, there is no showing that any
reduction in personnel occurred at that time. According to
Minton, he kept urging Vice President Thomas to discon-
tinue the department, but Thomas resisted, assertedly be-
cause he hoped for a turnaround. If this were a true picture
of the situation one would expect a showing that, on or
about October 15, something happened to dissolve
Thomas' resistance to Minton's appeals. The only showing
consisted of Thomas' testimony that, in September or Au-
gust 1974, he "saw in the Times where they were closing
out the libraries in New York City, they are closing three
branches down." In other words, after resisting for years
the efforts of Minton to discontinue the department
Thomas was persuaded by a news item in the Times! This
is an incredible story and I do not credit it.
Integrally related to this story is the evidence of how the
decision was finally arrived at. There is no evidence in that
regard. After adducing pages of testimony about the
changes in the industry, including testimony of two indi-
viduals not connected with Respondent, Respondent could
not specify when the decision was made, what was said in
the discussion , or how it was decided to implement it. Nei-
ther Minton nor Thomas could remember such details al-
though they had assertedly debated the issue for years. In
my judgment, their lack of recollection was attributable to
the fact that the actual discussions would have revealed the
discriminatory motive for the terminations.
In this connection, it is noteworthy that Respondent's
supervisors who were to be affected by the decision had no
inkling of the decision prior to its promulgation. To the
contrary, according to the uncontradicted testimony of
Steve Morganstern , after the announcement Walter Gelles,
his supervisor, indicated to him "that he didn't know how
all the work was going to get done, that he thought that-
he said he didn't know how he was going to be able to do
all of the work that there was that needed to be done." 5
Other supervisors expressed the opinion that the termi-
nations were attributable to the employees' union activi-
ties . Thus, Carla Sarett gave uncontradicted testimony that
her supervisor, Jill Rauscher "told me that she was really
sorry but the department was being eliminated. She said
she wished it could have been otherwise, but there had
been so much trouble since J. P.'s firing because of the
union business , she didn't know all that much about it. She
hoped Mr. Minton wasn't cutting off his nose to spite his
face."
Peter Duffy testified, without contradiction, that his su-
pervisor, Russ Snyder, told him "he was very sorry about
what had happened but that he would have liked to be
there and done something to prevent it but he didn't think
he could because he said Minton was on the war path."
Duffy was not employed in the school and library depart-
ment, but was assertedly terminated to make a job avail-
able for a more senior employee.
None of these supervisors played any part in the deci-
sion to terminate four employees, but it is significant that
5 As indicated, this testimony was undemed Gelles was no longer in Re-
spondent's employ at the time of the hearing, but there is no showing he was
unavailable to testify
1261
they were unaware of any economic necessity for the ter-
minations and knew Minton 's attitude toward the Union
well enough to have believed he was acting out of union
animus and not business considerations.
In light of the foregoing , I conclude that the abolition of
the school and library department was not attributable to
economic considerations ; to the contrary, given Respon-
dent's demonstrated animus against the Union , the fact
that the economic conditions in the school and library part
of Respondent 's business had existed for many months
prior to October 1974, and that nothing occurred in or
about October 1974 to alter those conditions except for the
revelation that Respondent's employees were interested in
union representation and that a petition for an election had
been filed on September 27, 1974, the conclusion is war-
ranted that the department was abolished as a pretext to
terminate the four employees in question . In this connec-
tion , it is noteworthy that three of the four employees had
signed the August 9 letter which was delivered to Minton.
While Morganstern 's only activity was to sign a card, and
there is no showing Respondent had knowledge of that
fact , his discharge was nevertheless unlawful as it was part
and parcel of the decision to discontinue the school and
library department as the pretext to terminate known
union adherents.
Finally, I have considered the fact that since the aboli-
tion of the school and library department the only addi-
tional employee to be hired was a clipping girl. In myjudg-
ment, that fact is insufficient to overcome the many factors
described above which demonstrate that the terminations
were unlawfully motivated.
4. The discharge of Joan Kelsey
Joan Kelsey was employed by Putnam as an editorial
assistant in October 1973. In March she was promoted to
the job of assistant editor in the juvenile department and
her salary was increased from $150 to $165 per week. Kel-
sey signed a union card and was active on behalf of the
Union. She appeared at the hearing on the petition in Case
2-RC-16633 and coauthored a leaflet which was distrib-
uted to employees after the hearing on October 10. On
October 16, Kelsey was discharged by Walter Minton who
told her that it was because she had engaged in union ac-
tivity on company time. He also reminded her that his
name was "Mr. Walter Minton."
The complaint alleges that the discharge of Kelsey was
because of her activities on behalf of the Union and be-
cause of her participation in the representation proceeding.
Respondent asserts two defenses to these allegations: that
Kelsey was a managerial employee not entitled to protec-
tion under Section 7 of the Act and that, in any event, her
discharge was based on unprotected activity; namely,
union activity on company time. I find no merit to either
defense.
It is unquestioned that managerial employees are not
covered by the Act .6 The dispute centers on whether Joan
Kelsey was a managerial employee. The Board has defined
6 N L R B v Bell Aerospace Company, Division of Textron, Inc, 416 U S
267(1974)
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managerial employees "as those who formulate and effec-
tuate management policies by expressing and making oper-
ative the decisions of their employer, and those who have
discretion in the performance of their fobs independent of
their employer's established policy." General Dynamics
Corporation, Convair Aerospace Division, San Diego Opera-
tions, 213 NLRB 673 (1974). On the record in the instant
case , it is clear that Kelsey does not come within that defi-
nition.
As assistant editor in the juvenile department Kelsey had
several duties, including the writing of the jacket of books
which were published, writing correspondence, and keep-
ing check on the production of manuscripts which had
been approved for publication. Among Kelsey's other du-
ties were the reading of manuscripts, solicited or unsolicit-
ed, the preparation of summaries of such manuscripts, and
the submission of recommendations to Supervisor and Edi-
tor Margaret Frith. In addition, Kelsey interviewed artists
for possible use pursuant to contract on the illustration of
manuscripts of book jackets. If an artist's work appeared
suitable to Kelsey, she would make a recommendation to
Frith. Kelsey testified that she never talked to authors, nor
did she offer contracts to authors.
Respondent offered no evidence to contradict Kelsey's
testimony about the nature and scope of her duties, and
from Kelsey's description it is difficult to perceive a basis
for finding her to be a managerial employee. Her duties in
reading manuscripts and preparing summaries, with rec-
ommendations to publish, did not involve the execution of
management policies or the exercise of discretion in the
performance of her duties independent of Respondent's
policies. Such discretion as was involved in recommending
manuscripts represented the exercise of an artistic judg-
ment , not a management function Moreover, that recom-
mendation was to the first level of supervision and the rec-
ord does not indicate what weight, if any, it received.
In rebuttal, Respondent posits negative factors in sup-
port of its contention that Kelsey was a managerial em-
ployee. Thus, it contends that the fact that assistant editors
alone cannot sign a contract with an author is no reason to
find Kelsey is not a managerial employee, because no sin-
gle individual employed by Respondent can enter into a
contract with an author. This is an irrelevancy. The record
does not indicate that Kelsey ever negotiated contracts
with either authors or artists or, if she had, that she was
vested with any discretion in any such negotiations
Respondent contends that, if editors are excluded from
the unit, so too should assistant editors because the jobs
are functionally the same and the differences are of degree
of responsibility. However, Respondent has not identified
the editors to whom it has reference, so that one cannot
determine whether the functions of editors and assistant
editors are essentially the same. More importantly, the rec-
ord does not indicate that editors are managerial employ-
ees. Rather, it appears that editors were excluded because
they were supervisors. Thus, Margaret Frith was excluded
as a supervisor, not as a managerial employee.
Respondent contends a finding that Kelsey is a manage-
rial employee is supported by the testimony of Ann Mar-
tindale and Ned Leavitt, assistant editors in the adult trade
department. Such a contention assumes that all assistant
editors have the same duties and responsibilities, which is
not the case. Thus Martindale and Leavitt had expense
accounts, were expected to acquire manuscripts , and nego-
tiated contracts with authors. Kelsey had no expense ac-
count, was not expected to acquire manuscripts, and did
not negotiate contracts. Accordingly, were Martindale and
Leavitt managerial employees, their status would not be
diapositive of Kelsey's.
In any event, I would not find Martindale and Leavitt to
be managerial employees under the Board' s definition. It is
clear that they do not formulate and effectuate manage-
ment policies, nor do they have discretion independent of
their employer's established policies. While they recom-
mend the purchase of manuscripts, and apparently decide
on their own to reject a manuscript, such function repre-
sents the exercise of literary criticism, not a managerial
function. The managerial function occurs in the decision to
purchase a manuscript and to commit company funds to
its publication and promotion, and the record indicates
clearly that assistant editors have no authority in this area.
In adult trade, decisions are made by an editorial commit-
tee of which assistant editors are a part. In my judgment,
such part as they may play in editorial committee decisions
are insufficient to constitute them managerial employees.?
When assistant editors negotiate with authors their discre-
tion is circumscribed by the price range fixed by the edito-
rial committee.
For all the foregoing reasons, I conclude that Kelsey was
not a managerial employee and that she was therefore enti-
tled to the protection afforded employees by Section 7 of
the Act.
As noted earlier, Kelsey did engage in activities protect-
ed by Section 7 of the Act. Among such activities was the
distribution of union literature at work and the solicitation
of employees to sign the August 9 letter. Respondent con-
tends, however, that in the course of such activity Kelsey
engaged in solicitation on company time and that, accord-
ingly, her discharge for such reason is not unlawful. Re-
spondent misconceives the law.
Respondent had no rule against solicitation on company
time and the Board has held that in the absence of a valid
rule it is not a sufficient defense that a dischargee 's activi-
ties occurred on company time . The J. L. Hudson Compa-
ny, 198 NLRB 172 (1972); Greentree Electronics Corpora-
tion, 176 NLRB 919 (1969). In both cases, the Board
indicated that the legality of the discharge depends on an
evaluation of several factors, not solely the fact that solici-
tation was on worktime. As the Board stated in Greentree:
The Trial Examiner's rationale presumes that, de-
spite the absence of a valid rule, employers may termi-
nate employee organizers who engage in work-time
union solicitaion even though the activities of the em-
ployees entail no interference with production or plant
discipline. In our opinion, the question of whether
worktime solicitation is protected or unprotected ac-
tivity cannot be determined on an absolute basis. On
the contrary, the result must turn on the delicate bal-
' Compare producer/directors in Post Newsweek Stations of Florida, Inc,
Station WPIG-70, 217 NLRB 14 (1975 ) and Westinghouse Broadcasting
Company, Inc, 215 NLRB 123 (1974)
G. P. PUTNAM'S SONS INC
ance that must be maintained between the employee's
right to engage in organizational activity and the em-
ployer's responsibility for the maintenance of rules
necessary to efficient operation of the plant. This bal-
ance must be administered in a fashion ensuring that
reprisals are not taken against the principal in-plant
organizers where legitimate interests of employers are
not involved.
A discharge based on worktime distribution of
cards in the absence of a valid rule is suggestive that
the employer was reacting to the protected aspect of
the employee's conduct, rather than considerations of
plant efficiency. Accordingly, in Selwyn Shoe Manu-
facturing Corporatron,3 it was held that in the absence
of such a rule it was not a sufficient defense that the
dischargee's activities (in that case, antiunion activi-
ties) "impinged on working time."
7 172 NLRB 674 (1968)
The Board said-
There must also be a showing that the discharge
flowed from [the employee's] abdication of her
working duties rather than from the fact that she
engaged in solicitation against the Union.a
4 td
Applying this rationale to the facts of this case, it is evi-
dent that the discharge of Kelsey was violative of Section
8(a)(1) and (3) of the Act even though some of her union
activities were conducted on company time.8 This conclu-
sion is supported by the fact that there was no showing that
Kelsey's activities caused any disruption or interference in
production or in the performance of the work duties of
other employees. Respondent did not even assert that such
interference resulted from Kelsey's activities. Moreover,
the record indicates that the atmosphere in Respondent's
office was a relaxed and informal one, where coffeebreaks
were taken at the pleasure of the employees and solicita-
tions of various sorts were permitted. Under these circum-
stances, including the fact that Kelsey was discharged
without warning and the evidence of Respondent's opposi-
tion to the unionization of its employees, a finding is war-
ranted that Kelsey's union activities on company time were
seized upon by Respondent as a pretext to discharge her
because of her union activities generally.
Were the Board or a reviewing court to conclude that the
discharge of Kelsey for engaging in union activities on
company time was not unlawful, a finding that her dis-
charge was unlawful would nevertheless be warranted on
another ground. As noted earlier in discharging Kelsey,
Minton reminded Kelsey that his name was "Mr. Walter
Minton." The reason for his admonition was not apparent
from that conversation but became apparent in a memo-
randum from Minton to all employees dated October 18,
wherein he advised employees of Kelsey's discharge and
the reasons therefore as follows:
8 Kelsey denied engaging in union activites on company time: I do not
credit her
1263
Lastly, on Wednesday I fired Joan Kelsey effective
immediately. I did so for two reasons: Firstly, she had
been pursuing union activities and soliciting employ-
ees on union business on company time, which is for-
bidden under the labor laws. Secondly, and more im-
portantly, she-with Elke Meyer-wrote a report of
the first hearing before the NLRB that was distributed
to company employees that was totally disrespectful
of my position as president of this company It does
not matter that some of the reportage on what oc-
curred at that hearing was inaccurate, or that words
were put in my mouth that I did not utter. What is
important is that the tone and some of the content of
the memorandum was so utterly disrespectful of the
president of this company that I found it impossible to
allow an individual so obviously lacking in respect for
her employer, both personally and as the occupant of
the office which I hold, to continue in Putnam's em-
ploy, especially since Ms. Kelsey's job as Assistant Ed-
itor brought her into contact with numerous individ-
uals outside the company as the representative of
G. P. Putnam's Sons.
The report to which Minton had reference was a leaflet
addressed to fellow employees dated October 10, signed by
Kelsey and Meyer, in which they reported their attendance
at a formal hearing before the Board in connection with
the representation case. In this memorandum they reported
that Minton was claiming that there was no such title as
associate editor and that management was attempting to
exclude assistant editors, copy editors, confidential secre-
taries, and art directors. The report referred to manage-
ment's position as "ludicrous "
The October 10 leaflet is typical of literature distributed
in organizational campaigns and is an example of a funda-
mental exercise of rights protected under Section 7 of the
Act. While an employee in the exercise of such rights may
forfeit his protection Respondent has not indicated in what
respects Kelsey did so in her coauthority of the report. The
only "disrespectful" word is "ludicrous" and this is hardly
sufficient to render the leaflet unprotected.' In comparison
to other literature of that genre the leaflet is restrained and
temperate.
On the basis of the foregoing, assuming arguendo that
the discharge of Kelsey was not unlawful to the extent it
was based on her worktime union activities, I find that her
discharge was violative of Section 8(a)(1) and (3) of the Act
because it was, by Respondent's own admission, motivated
in substantial part by her coauthorship of the report of the
representation hearing 10
The complaint alleges that the discharge of Kelsey was
also violative of Section 8(a)(4) of the Act. Kelsey did ap-
pear at the representation hearing and may have testified
(this is not clear), and such activity is protected by Section
8(a)(4) of the Act. But there is no evidence that Kelsey's
9 See William C Linn v United Plant Guard Workers of America, Local
114, 383 U S 53 (1966)
10 It is settled law that a discharge motivated in substantial part by an
employer's protected activity is unlawful although it may also have been
based on other reasons N L R B v Great Eastern Color Lithographic Corp,
309 F 2d 352. 355 (C A 2, 1962)
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attendance at the hearing had any bearing on her dis-
charge . The only nexus between her attendance at the
heanng and her discharge is the fact that Kelsey coau-
thored a report of the heanng and was discharged because
of the report . There is a difference between her attendance
at the hearing and her report on it. Section 8 (a)(4) protects
the former ; General Counsel has cited me no authority for
the proposition that it protects the latter . Accordingly, I
shall recommend dismissal of the 8 (a)(4) allegation.
B. The Alleged Interference, Restraint, and Coercion
1. The alleged promises and grant of benefits
By memorandum dated November 15, Respondent noti-
fied all office employees that effective November 1, 1974, it
would pay for employee Blue Cross and Blue Shield cover-
age which employees had theretofore paid.
On January 20, 1975, Respondent distributed a memo-
randum to all employees dated January 15, setting forth
the holiday schedule for 1975. This schedule provided for a
holiday on general election day, Tuesday, November 4,
1975, whereas in 1974 Respondent had only closed early
on election day. In addition, the memorandum notified
employees of the suspension for 1975 of the requirement
that employees work a full schedule on the workdays im-
mediately before and immediately after the holiday to re-
ceive pay for it . The memorandum also notified employees
that an additional paid holiday would be added to the
schedule in 1976.
The complaint alleges that the foregoing benefits were
granted to employees to induce them to refrain from sup-
porting the Union . It is settled law that the grant of bene-
fits to employees for the purpose of inducing them to with-
draw or withhold support of a union or to vote against a
union in an election constitutes interference within the
meaning of Section 8 (a)(1) of the Act. N.L. R.B. v. Ex-
change Parts Company, 375 U.S. 405 (1964). In any given
case, the only question is the employer's motive in granting
the benefits in question and a significant factor in that
regard is the timing of the bestowal of benefits . In the ab-
sence of evidence that the timing was governed by factors
other than the pendency of an election , an inference is
warranted that the benefits were granted for the purpose of
interfering with the freedom of choice of employees in de-
ciding whether or not to select a bargaining representative.
Respondent asserts that the memoranda announcing the
benefits were issued at a time in accord with company poli-
cy, but no evidence was adduced at the heanng to support
the assertion . As to holidays, the record indicates that it
was company practice to announce the holiday at the be-
ginning of the new year. (See G .C Exh . 12-A.) However,
whereas the announcement was made on January 3 in
1974, in 1975 it was made on or after January 15. Thus, it
would appear that the announcement was made to maxim-
ize the impact on employees in the election on January 22.
Respondent did not explain the reason for the delay. More
importantly , the holiday announcement specified addition-
al holidays and Respondent has not explained why it de-
cided to grant additional holiday benefits or when it made
the decision . Nor has it explained why, unlike its 1974 an-
nouncement , it undertook to advise employees 1 year
ahead of time of an additional holiday to begin in 1976.
Under the circumstances , including the other unfair labor
practices of Respondent found herein , the finding is war-
ranted that the timing of the announcement and the grant
of additional benefits were motivated by the pending elec-
tion and constituted interference within the meaning of
Section 8(a)(1) of the Act.
Similar , as well as additional , considerations apply with
reference to Respondent's granting of Blue Cross and Blue
Shield benefits . Respondent offered no explanation for its
announcement of such benefits . There is a glimmer of an
explanation in a memorandum to all employees dated Oc-
tober 31 (G C. Exh. 9), wherein Respondent adverted to a
new union contract covering its warehouse employees
which provided for Blue Cross -Blue Shield coverage. But
the glimmer was never incandesced by any further evi-
dence, such as evidence that it was Respondent 's policy to
grant to office employees the same benefits granted to
warehouse employees. Apart from the absence of an expla-
nation, there is affirmative evidence in the October 31
memorandum that the Blue Cross-Blue Shield benefits
were a response to the Union's organizational campaign.
Under the circumstances , I find that the additional insur-
ance benefits were granted to induce the employees to
withhold support from the Union and that Respondent
thereby violated Section 8(a)(1) of the Act.
2. The alleged interrogation
The complaint alleges that , on four specified dates, Wal-
ter Minton , Margaret Frith, Charles Mercer , and William
Thomas interrogated employees about their union activi-
ties In his brief , General Counsel has not indicated on
what evidence he relies for the complaint allegations and I
have noted no evidence of interrogation by Minton, Mer-
cer, or Thomas. As to Margaret Frith, there was uncontra-
dicted testimony by Joan Kelsey about two conversations
about the Union during the week of August 12. In the first,
Frith remarked to her that she did not realize Kelsey had
any problems with her job, and "If you have any problems
with your job, if you want a union , then you should explain
to me . . . what those problems are and why you want a
union ." Kelsey replied she had no problems as between
Frith and herself . The following day Kelsey distributed
copies of the employees ' August 9 letter to Minton. Later
in the day , while Kelsey was in Frith' s office , Frith re-
marked to her that she could have saved herself a lot of
trouble if she had told her the day before . Kelsey replied
that she really had no explanation to give and Frith said "if
I couldn 't explain to her why I wanted the Union, that I
should think very seriously about what I was doing." Kel-
sey told her she had, but Frith said she did not think so.
General Counsel adverted to Frith' s remarks in his brief
and referred to them as violative of Section 8(a)(1) without,
however, indicating why or in what respect they are viola-
tive The only 8(a)(1) conduct attributed to Frith in the
complaint is interrogation . For that reason, I have not eval-
uated her remarks in terms of an implied threat . In terms
of interrogation, I deem Frith's inquiry as to why Kelsey
G. P PUTNAM'S SONS INC. 1265
wanted a union to be an unlawful intrusion into her union
activities which, contrary to Respondent's contentions, I
also deem coercive in tendency. No lawful purpose was
asserted for Frith's inquiry and there were no assurances
against repnsal. To the contrary, the observation that Kel-
sey should think very seriously about what she was doing
implied possible repnsal. Kelsey would have been particu-
larly sensitive to Frith's remarks because she had been
threatened only a day or so earlier by Minton. Accord-
ingly, I find Frith's interrogation was violative of Section
8(a)(l) of the Act.
3. Threats of plant closure
a. Pearl Hanig
Claire Moriarty, a copy editor, testified that in the week
following August 24, 1974, Pearl Hanig, her supervisor,
came to her office and discussed the union campaign with
her. Hanig expressed the hope that Moriarty was taking the
matter seriously, "because if you are successful, Minton
will shut the place down."
The parties stipulated that Hanig was a supervisor within
the meaning of the Act. Moriarty's testimony was not con-
tradicted and I credit it. Respondent appears to contend
that Hanig's statement may not be found to be violative of
the Act, because it was Hanig's opinion of what Minton
would do with not one word of testimony to link the state-
ment to Minton. Such a contention is without merit. Since
Hanig was a supervisor, her statements were attributable to
Respondent, and the fact that her statement may have
been a reflection of her opinion of Minton's reaction to
union organization, not found in fact, does not detract
from the coercive effect on employees of a statement that
their employer will shut the place down if they succeed in
their organizational attempt, I find Respondent violated
Section 8(a)(1) by Hanig's statement.
b. Charles Mercer
The allegation with regard to Mercer is based on the
uncontradicted testimony of Denton described earlier
wherein Mercer told him on August 12 that "Putnam's was
Walter's ship, it was his baby, and that he would not allow
a union to go in there, that he would close it down before
he would allow a union there." As with Hanig's statement
to Kelsey, I find that Mercer's statement was coercive and
violative of Section 8(a)(l) of the Act.
c. Walter Minton
Copy Editor Claire Moriarty testified, without contra-
diction, that in the last week of October as she was leaving
work she observed Minton at the elevator in the company
of Sebastian Aiello, director of production, and employee
Ron Leavey, and she overheard Minton say something
about the warehouse and "if they try anything like that
around here, I'll shut the place down "
General Counsel adverts to this incident in his brief
without, however, indicating to which complaint allegation
it refers. It appears the remark is embraced in paragraph 12
of the complaint. I find the remark ambiguous and insuffi-
cient to form the basis of an 8(a)(l) finding. It appears that
at the time there was union activity at Respondent's ware-
house in New Jersey and Minton was referring to that.
However, for all the record indicates "If they try anything
like that around here" may have had reference to unlawful
or unprotected activity at the warehouse which would have
justified shutting the place down.
4. Theats of discharge and other reprisals
The complaint alleges that on or about October 29, 1974,
Respondent, by Walter Minton, threatened employees with
discharge and other reprisals if they engaged in activity on
behalf of the Union. It is not clear precisely what conduct
of Minton's was embraced in that allegation except for an
incident involving Claire Moriarty.
According to her, on October 29, while she was in her
office with employee Jamie Gordon, Minton came in and
said to her, "I've heard reports about your conducting
union activities from the office . . . if I hear any further
reports you'll be terminated." Moriarty attempted to de-
fend herself and to say that such reports were not true, but
Minton would not let her. He asked her if she understood
and all she was able to say was that if he meant had he
heard her, yes she had. Throughout, Minton spoke in a
very loud voice and shook his finger at her.
Minton admitted going to Monarty's office and speak-
ing to her. He could not remember his exact words, but
stated initially that he told her if she pursued union activi-
ties on company time and if the company could prove that
she did so, that could be reason for dismissal. On further
examination, he amended his testimony to "on company
premises during working hours," confessing, however, that
the exact wording was not fresh in his mind.
According to Jamie Gordon, Minton told Moriarty he
had heard of her conducting union business on company
time. Moriarty told him it was not true, but Minton added
that if he heard of this happening again she would be ter-
minated.
From the foregoing, it is evident that this incident pre-
sents a factual dispute as to whether Minton's threat to
discharge Moriarty, which is not in dispute, was addressed
to union activities on company time or company premises.
Recognizing the admitted uncertainty of Minton' s testi-
mony, in view of Jamie Gordon's testimony, I am persuad-
ed that Minton's threat of discharge was addressed to
union activities of Moriarty on company time. This conclu-
sion is of little comfort to Respondent, however, because I
conclude that under the circumstances the threat was un-
lawful. I have already adverted to the applicable principle
in the analysis of Kelsey's discharge for union activity on
company time. The same principle operates here. Respon-
dent had no rule against solicitation on company time and,
as noted earlier, nonwork activities were permitted in a
work situation that appears to have been lax and permis-
sive. In singling out only union activities in his threat to
Moriarty, Minton demonstrated that his concern was not
with the fact her activities were on company time, but that
her activities were union activities. Moreover, Moriarty de-
med her union activities had occurred on company time
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and there is no evidence to contradict her. While Minton
accused her of engaging in union activity on company time
he offered no concrete evidence beyond a generalized as-
sertion of his observations . He gave Moriarty no opportu-
nity to defend hereself and his very manner of utterance
and gesticulation revealed an anger that can be attribut-
able only to his animus at the employees ' interest in obtain-
ing union representation . Under the circumstances, the
threat of discharge was violative of Section 8(a)(1) of the
Act.
As indicated, this is the only incident clearly embraced
in paragraph 13 of the complaint , the only paragraph in
which Minton is charged with threats other than threats of
plant closure. In his brief, General Counsel adverts to testi-
mony by Joan Kelsey that between August 12 and 21 Min-
ton called her to his office and told her he felt some people
employed by the Company had ability and the possibility
of an editorial career and that if she wanted to have an
editorial career at Putnam 's or at any other company that
she should think very seriously about the consequences of
organizing. This testimony was uncontradicted and con-
veys an implied threat . However , a finding of an 8(a)(1)
violation may not be made because there is no allegation of
such a threat in or about August 1974, and the matter was
not fully litigated.
In his brief , General Counsel also adverts to memoranda
distributed to employees by Respondent on October 28
and 31, and on January 15, 1975. Since paragraph 13 of the
complaint mentioned only one date, October 29, the date
Moriarty was threatened by Minton , I question whether it
was intended to cover the statements in the memoranda.
Certainly , the allegation could not reach the memorandum
distributed on January 15, 1975. Nevertheless, I shall con-
sider the memoranda in terms of possible threats. It ap-
pears Respondent deemed the memoranda as encompassed
by the complaint as it was received without objection and
Respondent addressed himself to it in his bnef.I I
The October 28 memorandum responded to union litera-
ture disputing Respondent 's assertion that its school and
library department was abolished for economic reasons.
After setting forth Respondent 's position on that issue, the
memorandum adverted to the brief period of service of
over half of the employees who had signed the August 9
letter, then addressed itself to employees with longer tenure
as follows:
To those employees , who are making a commitment
careerwise to Putnam 's, may I point out that you are
in considerable danger of letting a number of almost
totally inexperienced persons make a decision about
union membership that will have considerable ef-
fects-and not positive effects in my opinion-on
your career . Three of the 29 signers have gone on to
better paying jobs in other publishing houses-capital-
izing on experience gained at Putnam. It is to be ques-
tioned if they would have gotten those jobs in non-
union houses had Putnam 's been unionized.
The October 31 memorandum referred principally to a
The memorandum of January 15, 1975 , was, in any event , relevant to
the objections
new contract covering employees at the New Jersey ware-
house, made a promise of benefit consisting of new insur-
ance benefits (discussed supra), and contained these para-
graphs:
So what is a union going to get for you-except a
politically motivated strike-during which those in-
volved will not receive union strike benefits or unem-
ployment compensation . Because the union will have
to make demands-and the company will have to re-
ject them
A union would mean that you will be required to pay
dues, All of you. And be party to a rigid pay scale,
have vastly reduced opportunities to move into other
positions in the company. And to take the skills you
have learned here and move to other companies-
non-union shops do not knowingly hire union mem-
bers.
The January 15 memorandum purported to rebut union
misstatements and contained this paragraph:
The entire publishing industry is the subject of a union
drive. In a number of trade houses the unions have
made no headway . In two or three larger ones they
have succeeded in forcing an election . Putnam 's is the
first election in the industry . The trade book pub-
lishing industry is composed mostly of small firms in
which most employees work one on one with their su-
periors. This is why we oppose unionization with its
standardization of salaries , raises, promotion prac-
tices. Other trade publishers feel similarly . Tradi-
tionally there has been considerable moving from
company to company as people progress in their ca-
reers.
We do not believe a non-union publisher will know-
ingly hire a union member for a job opening.
The excerpts from the memoranda quoted above have
one common theme: the inability of union members to ob-
tain employment with nonunion publishers . General Coun-
sel contends that such statements were unlawful , citing
Mueller Brass Co, A Subsidiary of U V Industries, Inc., 204
NLRB 617, 622 (1973). 1 agree . Minton had no basis in fact
for predicting the reaction of other employers to the union-
ization of Respondent 's employees and an expression of
opinion , not based on objective fact , has been held not to
be protected by Section 8(c) of the Act ; rather , such unsup-
ported statements as Minton 's are clearly calculated to
coerce employees in the exercise of their Section 7 rights
and are violative of Section 8(a)(1) of the Act. The Coca-
Cola Bottling Company of San Mateo, 188 NLRB 590, 596
(1971); Texas Transport & Terminal Co., Inc and Texports
Stevedore Company, Inc, 187 NLRB 466 (1970)
III CASE 2-RC-16633 THE OBJECTIONS
As noted earlier , the Union , Petitioner in Case 2-RC-
16633, filed timely objections to conduct affecting the re-
sults of the election conducted on January 22, 1975. These
objections were 12 in number but, after investigation by
the Regional Director, on February 26, the Union with-
G P PUTNAM'S SONS INC 1267
drew objections 3 and 4, and 6 through 12. Objections 1, 2,
and 5 were consolidated for hearing with Cases 2-CA-
13476 and 2-CA-13488 and they are as follows:
Objection I Since on or about August 9, 1974, the
Employer questioned its employees about their views
toward Petitioner, whether employees attended Peti-
tioner's meetings and contents thereof, and threatened
employees with loss of career opportunities by joining
or assisting Petitioner.
To the extent this objection alleges questioning of em-
ployees, I find no merit to it. There is no evidence of ques-
tioning of employees after the date of the filing of the peti-
tion. The Ideal Electric and Manufacturing Company, 134
NLRB 1275 (1961). Insofar as the objection alleges threats
of loss of career opportunities, the only threats after Sep-
tember 27 are the statements in the memoranda of October
28 and 31, 1974, and January 15, 1975, that union members
would not be able to find employment with nonunion pub-
lishers. As found earlier, such statements were coercive and
constitute grounds for setting aside the election.
Objection 2. On various dates in September and
October 1974, the Employer discharged or laid off
Mark Denton, J. P. Duffy, Joan Kelsey, Carla Sarett,
Elke Meyer, Steve Morganstern and Peter Duffy, and
transferred Phil Caracci to a less desirable position,
because they joined or assisted the Petitioner for pur-
poses of collective bargaining.
I have found that the discharges of Mark Denton, Peter
Duffy, Carla Sarett, Steve Morganstern, Elke Meyer Titus,
and Joan Kelsey were unlawful. As all these discharges,
except for Denton's, occurred after the filing of the peti-
tion, they constitute grounds for setting aside the election.12
Objection 5. On or about January 20, 1975, the Em-
ployer granted additional holidays, paid Blue Cross
insurance coverage and other benefits to all employ-
ees. On or about January 21, 1975, the Employer fur-
ther warned employees against voting for Petitioner.
As noted earlier, on January 15, 1975, Respondent
granted employees an additonal holiday in 1975, an-
nounced an additional holiday for 1976, and relaxed the
requirements to qualify. I have found above that Respon-
dent granted these benefits to induce employees to with-
hold support from the Union. Accordingly, I find that Re-
spondent thereby also interfered with the election.
Although Objection 5 alleges that Respondent granted
medical insurance coverage to employees on January 20,
1975, the record indicates this was done by memorandum
dated November 15, effective November 1. As this was
after the filing of the petition, and, as I have found, was for
the purpose of inducing employees to withhold their sup-
port from the Union, I find that by granting such insurance
coverage Respondent interfered with the election.
In accordance with the foregoing, I find merit to Objec-
tions 1, 2, and 5 and shall recommend that they be sus-
tained and that the results of the election of January 22,
12 No evidence was presented respecting the allegation of an unlawful
transfer of Phil Caracci
1975, be set aside. However, as I conclude, for reasons
specified below, that a bargaining order is necessary to
remedy the unfair labor practices herein found, I shall rec-
ommend that the petition be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent as set forth
in section II, above, occurring in connection with its opera-
tions set forth above, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
conduct prohibited by Section 8(a)(1) and (3) of the Act, I
shall recommend that the Respondent be ordered to cease
and desist therefrom and take certain affirmative action, as
set forth below, designed to effectuate the policies of the
Act.
As I have found that Respondent terminated Mark Den-
ton, Peter Duffy, Carla Sarett, Steve Morganstern, Joan
Kelsey, and Elke Meyer Titus because of the union activi-
ties of these employees, I shall recommend that it be or-
dered to offer each of them immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and to make
them whole for any loss of earnings they may have suffered
by reason of their unlawful termination by payment to
them of a sum of money equal to that which they normally
would have earned as wages, from the date of their dis-
charge to the date of the offer of reinstatement, less net
earnings, to which shall be added interest at the rate of 6
percent per annum in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The foregoing and the posting of a notice to employees
are the traditional remedies for unfair labor practices of
the type committed by Respondent. However, in this case,
the General Counsel contends that the unfair labor prac-
tices are so serious and substantial in character and effect
that they warrant the entry of a remedial order requiring
Respondent to recognize and bargain with the union as the
exclusive collective-bargaining representative of its em-
ployees in an appropriate unit."
13 The appropriate unit is that found by the Regional Director in Case 2-
RC-16633 as follows
All office and clerical employees employed by Respondents at their 200
Madison Avenue New York, New York, location, including assistant
editors, copy editors, production assistants, art directors and sales
clerks, but excluding advertising directors. artists, editors, senior edi-
tors, managing editors, presidents of Putnam's. Coward McCanns and
Berkleys, production chiefs, publicity directors, publicity and promo-
tional department heads, directors of the copy editing, personnel, rights
and sales departments, coeditors of Putnam's juvenile department,
salesmen , managerial employees, confidential employees , watchmen,
guards and supervisors, as defined in Section 2(11) of the Act, consti-
Continued
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is now settled law that the Board is empowered to
issue a bargaining order where an employer 's unfair labor
practices are of "such a nature that their coercive effects
cannot be eliminated by the application of traditional rem-
edies, with the result that a fair and reliable election cannot
be had" or "If the Board finds that the possibility of eras-
ing the effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional remedies,
though present , is slight and that employee sentiment once
expressed through cards would , on balance , be better pro-
tected by a bargaining order...." N. L. R. B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 614 (1969).
In the instant case , Respondent 's unfair labor practices
were pervasive. They included the discharge of two of the
most prominent supporters of the Union, Joan Kelsey and
Elke Meyer Titus, and the threat by Putnam's president to
discharge yet another active supporter. They reflected an
animus against the Union so strong that an entire depart-
ment was abolished in name to justify the discharge of
three other employees. The discharge of employees because
of their union activities has consistently been viewed by the
Board as a serious unfair labor practice the effects of which
are not easily dissipated. Not content to rely on the coer-
cive effects of such discharges, Respondent further frus-
trated the election process of the Board by granting bene-
fits to employees which then reminded, and in future will
continue to remind, employees that Respondent is the
source of their benefits. In my judgment, Respondent's
conduct precludes the holding of a fair rerun election and
if employee sentiment was once expressed through cards it
requires protection by a bargaining order.
The parties stipulated that as of October 1, 1974, the
payroll period covered by the bargaining request of Sep-
tember 27, 1974, there were at least 58 employees in the
appropriate unit . (G.C. Exh. 33) Not included in the num-
ber was Mark Denton who had been discharged on Sep-
tember 18, 1974. As I have found he was discharged unlaw-
fully, he should be included in the unit. Apart from these
59 employees, the eligibility of 7 individuals is disputed.
General Counsel would exclude Walter Gelles and Jill
Rauscher as supervisors. According to the testimony of
Steve Morganstern and Elke Meyer Titus, they were inter-
viewed, hired, and supervised by Walter Gelles, promotion
manager . According to the testimony of Carla Sarett, she
was interviewed, hired, and supervised by Jill Rauscher.
Respondent offered no evidence respecting the status of
Rauscher and Gelles and I find on the basis of the uncon-
tradicted testimony described above that they are supervi-
sors within the meaning of Section 2(11) of the Act and I
shall exclude them from the unit.
The remaining five individuals whose status is in dispute
are Jamie Gordon, Ned Leavitt, Indira Licht, Ann Martin-
tute a unit appropriate for purposes of collective- bargaining within the
meaning of Section 9(b) of the Act
The only dispute about the appropriateness of this unit litigated before me
is over its inclusion of assistant editors on the ground they are managerial
employees and/or supervisors As I find they are neither , they are included
in the unit At the hearing on the petition , Respondent sought to exclude art
directors as managerial employees or supervisors , a contention rejected by
the Regional Director The contention was not renewed before me
dale, and Joan Kelsey. These individuals occupied posi-
tions as assistant editors. Respondent contends they are
managerial employees . I have already indicated in the sec-
tion above dealing with the discharge of Joan Kelsey the
duties, responsibilities , and authority of assistant editors.
As I there stated, assistant editors do not formulate and
effectuate management policies, nor do they have discre-
tion independent of Respondent's established policies. Ac-
cordingly, I find that the five last named assistant editors
are not managerial employees and I shall include them in
the unit.
As a result of the foregoing conclusions , the unit consist-
ed of 64 employees as of October 1, 1974. The record con-
tains authorization cards signed by 32 of those employees
on or before October 1, 1974, designating the Union to
represent them for purposes of collective bargaining. In
addition, two employees (Steve Morganstern and Peter
Duffy) signed a petition designating the Union to represent
them for purposes of collective bargaining. Thus, as of Oc-
tober 1, the Union had been designated by a majority of
the unit employees, that is, 34 out of 64 employees.
Cathy Edwards signed a card on October 10 and Dale
Copps on October 8. If one were to count their cards that
would increase the unit size to 65 because Edwards was not
hired until after October 1, but the Union's designations
would increase by 2 for a total of 36; however, as of Octo-
ber 10, J. P. Duffy had been discharged for cause reducing
the unit to 64 and the authorization cards to 35. Another
card signer (Roger Director) was discharged presumably
for cause on October 11, reducing the unit to 63 and the
number of cards to 34. From these figures, it is apparent
that at all times material herein the Union had been desig-
nated by a majority of Respondent's employees in the unit
found appropriate.
The question yet to be decided is whether all those desig-
nations were valid. Except for the cards of Ellen Blosvern,
Michael Hutchison, and Luisa Spencer, all cards were au-
thenticated by the employees whose names appeared
thereon. In the case of Luisa Spencer, authentication of her
signature was made by her husband. In the cases of Blos-
vern and Hutchison, authentication was predicated on tes-
timony of Union Agent Donna Mobley on the procedure
followed by the Union in soliciting cards and handling
cards received by mail, including the fact , in Hutchison's
case , that his card had been submitted to the Board in
support of the petition in Case 2-RC-16633. In addition,
W-4 forms of the Treasury Department signed by Blosvern
and Hutchison for employment with Respondent were in-
troduced into evidence and a signature comparison sup-
ports a finding that the cards bearing their names were
signed by them.i4
Respondent contends that the authorization cards are
invalid to support a bargaining order because they were
obtained by substantial misrepresentation of purpose and
many are ambiguous. I do not understand on what basis
14 As to the propriety of proving the authenticity of a union authorization
card through comparison of the signature thereon with a specimen, see
Local Union No 707, Highway and Loca l Motor Freight Drivers and Clare-
mont Polychemical Corporation 196 NLRB 613, 625 (1972)
G. P PUTNAM'S SONS INC
Respondent predicates its assertion of ambiguity.l5 The
cards read as follows:
I hereby enroll and designate Office and Professional
Employees International Union , Local 153, AFL-CIO
to represent me in all negotiations for collective bar-
gaining and better working conditions.
As is evident , this is a single purpose unambiguous card
and the rule of law is that such a card will be counted for
purposes of providing majority status unless it is proved
that the employee was told that the card was to be used
solely for the purpose of obtaining an election. This rule of
law is known as the Cumberland Shoe doctrine,16 and in
Gissel, supra at 606 , after analysis of the conflict in the
circuits with regard to this matter , the Supreme Court stat-
ed:'
In resolving the conflict among the circuits in favor
of approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly cancelled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election.
There is no evidence whatsoever that the language of the
card in this case was "deliberately and clearly cancelled by
a union adherent with words calculated to direct the signer
to disregard and forget the language above his signature."
At most, employees were told "that the card will probably
be used first to get an election ," a statement which Gissel
holds is insufficient to vitiate the clear language of the
card. In this connection, I cannot help but note that the
employees who signed cards in this case were with an ex-
ception or two probably the most literate employees to ap-
pear before me to testify about authorization cards. Nor
can I overlook the fact that many employees signed cards
in the privacy of their homes, with no solicitors to mislead
them, and that the cards were attached to union leaflets
which spoke, not in terms of an election, but in terms of a
union contract. Accordingly, I find no merit to Respon-
dent's assertion of substantial misrepresentations and con-
clude that all the cards were valid designations of the
Union.
Based on the foregoing, and for reasons which I have
given above, I shall recommend as an appropriate remedy
for Respondent 's serious unfair labor practices that it rec-
ognize and bargain with the Union which had been validly
designated by its employees as their representative for pur-
poses of collective bargaining. Moreover, the unfair labor
15 Respondent adverts to the fact that all the cards bore language that
they were "Strictly Confidential" and that some employees expressed sur-
prise at their use at the hearing These facts did not invalidate the cards
Steele Apparel Company, Inc, 172 NLRB 903, 922 (1968)
16 Cumberland Shoe Corporation, 144 NLRB 1268 (1963).
1269
practices committed by Respondent require that it be
placed under a broad order to cease and desist from in any
manner infringing upon the rights of employees guaranteed
in Section 7 of the Act.
CONCLUSIONS OF LAW
1. G. P. Putnam's Sons, Inc., Coward, McCann and
Geohegan Inc., and Berkley Publishing Corporation, con-
stitute an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Office and Professional Employees International
Union, Local 153, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3 All office and clerical employees employed by Re-
spondent at its 200 Madison Avenue, New York, New
York location, including assistant editors, copy editors,
production assistants, art directors and sales clerks, but ex-
cluding advertising directors, artists, editors, senior editors,
managing editors, presidents of Putnam's, Coward Mc-
Canns and Berkleys, production chiefs, publicity directors,
publicity and promotional department heads, directors of
the copy editing, personnel, rights and sales departments,
codirectors of Putnam's juvenile department, salesmen,
managerial employees, confidential employees, watchmen,
guards and supervisors, as defined in Section 2(11) of the
Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Office and Professional Employees International
Union, Local 153, AFL-CIO, is the exclusive representa-
tive of the employees of Respondent in the unit described
in paragraph 3 above within the meaning of Section 9(a) of
the Act.
5. By interrogating employees about their reasons for
seeking union representation, threatening employees with
plant closure and loss of career opportunities if they select
the Union to represent them, threatening employees with
discharge if they engage in activities on behalf of the
Union, and granting employees paid medical insurance
coverage and additional holidays to induce them from be-
coming or remaining members of the Union or to refrain
from giving any assistance or support to it, Respondent has
engaged in, and is engaging in, unfair labor practices with-
in the meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act.
6. By discharging Mark Denton, Steve Morganstern,
Carla Sarett, Peter Duffy, Joan Kelsey, and Elke Meyer
Titus, because of their activities on behalf of the Union,
Respondent has engaged in, and is engaging in, unfair la-
bor practices within the meaning of Sections 8(a)(1) and (3)
and 2(6) and (7) of the Act.
7. General Counsel has failed to establish by a prepon-
derance of the evidence that the discharge of J. P. Duffy
was violative of Section 8(a)(1) and (3) of the Act, and that
the discharges of Joan Kelsey and Elke Meyer Titus were
violative of Section 8(a)(4) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 17
Respondent, G. P. Putnam's Sons, Inc.; Coward, Mc-
Cann and Geohegan, Inc.; and Berkley Publishing Corpo-
ration, New York, New York, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their reasons for
seeking union representation in a manner or under circum-
stances constituting interference with, and restraint and
coercion of, employees in their exercise of Section 7 rights.
(b) Threatening employees with plant closure and loss
of career opportunities if they select the Union to represent
them.
(c) Threatening employees with discharge if they engage
in activities on behalf of the Union.
(d) Granting employees paid medical insurance cover-
age and additional holidays to induce them from becoming
and remaining members of the Union or to refrain from
giving assistance or support to it.
(e) Discouraging membership in, or activities on behalf
of, Office and Professional Employees International
Union, Local 153, AFL-CIO, or any other labor organiza-
tion of its employees, by discharging employees because of
their activities on behalf thereof or otherwise discriminat-
ing in regard to the hire or tenure of employment or any
terms or conditions of employment of its employees.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with Office and
Professional Employees International Union, Local 153,
17 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
AFL-CIO, as the exclusive representative of all the em-
ployees in the unit described above, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Offer Mark Denton, Steve Morganstern, Carla Sar-
ett, Peter Duffy, Joan Kelsey, and Elke Meyer Titus imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or privi-
leges, and make them whole for any loss of pay they may
have suffered by reason of the discrimination against them
by payment to them of a sum of money equal to the
amount they normally would have earned as wages from
the date of their discharge to the date of their reinstate-
ment, in the manner set forth in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rele-
vant and necessary to a determination of the amounts of
backpay due under the terms of this recommended Order.
(d) Post at its New York City place of business copies of
the attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by the Respondent's rep-
resentative, shall be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the petition in Case 2-
RC-16633 and the allegations of the complaint found not
to have been sustained by a preponderance of the evidence
be dismissed
18 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 "