Jurisearch, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1980

250 N.L.R.B. 571 (N.L.R.B. 1980)

JURISEARCH, INC.
Jurisearch, Inc. and Steven M. McCarthy. Case 20-
CA- 14460
July 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 15, 1980, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel filed a motion to strike Respondent's exceptions
and brief' and also filed copies of the General
Counsel's brief to the Administrative Law Judge.
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, find-
ings, and conclusions 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Jurisearch,
Inc., San Francisco, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
I The General Counsel moved to strike Respondent's exceptions and
brief on the grounds that they did not meet the specificity requirements
of Sec 102.46(b) of the National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, and were not timely served on the parties
In our view, the motion is lacking in merit. Accordingly, the General
Counsel's motion to strike is denied. United Cement Company, a Wholly
Owned Subsidiary of Texas Industries. Inc., 209 NLRB 1137 (1974).
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case was held November 20 1979,' and is
based on an unfair labor practice charge filed on March
14, 1979, by Steven M. McCarthy. A complaint was
issued July 27, 1979, on behalf of the General Counsel of
the National Labor Relations Board, herein called the
Board, by the Regional Director for Region 20, alleging
i On November 20, 1979. at the conclusion of Respondent's case the
hearing was continued until December 5, 1979, at Respondent's request in
order to afford Respondent the opportunity to call Marc Resnick as a
witness. However. prior to that date Respondent requested that the hear-
ing be closed because of its Decisions not to present Resnick's testimony
Accordingly. by telegram dated December 3, 1979, I closed the hearing
250 NLRB No. 91
that Jurisearch, Inc., herein called Respondent, had en-
gaged in unfair labor practice within the meaning of Sec-
tion 8(a)(l) of the National Labor Relations Act, as
amended, herein called the Act, by discharging McCar-
thy for engaging in protected concerted activity. Re-
spondent filed an answer denying the commission of the
alleged unfair labor practice. 2
Upon the entire record,3 from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS OF FACT
I. THE QUESTIONS PRESENTED
The essential questions presented for decision are
whether the Charging Party, Steven McCarthy, worked
for Respondent as an independent contractor or employ-
ee and, if he were an employee, whether he engaged in
activity protected by Section 7 of the Act and was dis-
charged for this.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. McCarthy's Status
I. The evidence
Respondent is in the business of providing legal re-
search for lawyers. It maintains an office in San Francis-
co, California, where during the material herein it em-
ployed between 20 to 25 researchers of whom 4 or 5
were employed full time and the remainder part time.
McCarthy was one of the part-time workers. The work
of the researchers was coordinated by Research Coordi-
nator Barbara Weiner who was subordinate to Research
Director Marc Resnick. Respondent also employed two
editors: Ellen Matthews full time and Scott Pryor part
time.
The full-time researchers sign a contract of employ-
ment. They are paid a salary from which Respondent
makes the usual tax and social security deductions and
are required to work 35 hours a week. They must accept
all assignments. Although they spend most of their work-
ing time away from Respondent's office they are re-
quired to report their whereabouts to Respondent peri-
odically by phone and at times are required to work at
specific libraries so Respondent will know where to
locate them in case of a business emergency. In addition
to their research duties the full-time researchers are re-
quired to do other work. The full-time researchers prior
to being employed by Respondent on a full-time basis
had worked for Respondent part time and when their
work proved to be satisfactory were offered full-time po-
sitions which they accepted.
In contrast to the full-time researchers the part-timers
do not sign an employment contract, nor are the usual
payroll deductions taken from their pay, and they are not
2 In its answer Respondent admits it is an employer engaged in com-
merce within the meaning or Sec. 2(6) and (7) of the Act and meets the
Board's applicable discretionary jurisdictional standard
3 The joint motion filed by Respondent and the General Counsel to
correct the transcript is hereby granted
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required to work a minimum of hours. They are assigned
to work on a particular project for which they are allot-
ted a certain number of hours to complete and are paid
by the hour for their work. They are not obliged to
accept every assignment and, as McCarthy did on one
occasion, may reject assignments.
Like the full-time researchers the part-timers make no
financial outlay for tools or equipment inasmuch as they
use the legal materials found in the several law libraries
located in San Francisco and vicinity. The only time the
part-time researchers spend at Respondent's office is to
pick up and deliver their assignments and to check Re-
spondent's files to see if they contain old research memos
which would assist them in their current assignment. The
part-timers are not required to keep Respondent in-
formed of their whereabouts nor are they required to
perform tasks other than their research projects and,
unlike the full-time researchers, do not have access to the
computerized research service leased by Respondent. In
addition to their hourly rate of pay the part-time re-
searchers are reimbursed by Respondent for expenses in-
curred in completing a project; i.e., xeroxing, phoning
clients. They receive no fringe benefits such as medical
insurance, vacations, etc.; however, the record does not
reveal whether the full-time researchers receive any
fringe benefits.
The brochure which Respondent distributes to pros-
pective customers makes no distinction between Re-
spondent's part-time and full-time researchers and de-
scribes Respondent's researchers and the methodology
used by Respondent in its research in these terms:
You submit a research project to us and establish
direction and cost guidelines. At that time one of
our research directors will confer with you and
assign your project to an appropriate research team.
. . .Researchers are trained to identify key check
points on each project. The status of the project is
reviewed with a supervising editor before a call to
you is made. A research director will thoroughly
review your project as it nears completion. Thus,
every case you submit to JURISEARCH gets the bene-
fit of at least three legal minds using their special
expertise.
SECOND, OUR STAFF. Research attorneys are
chosen by JURISEARCH to ensure high standards of
legal research excellence. Careful consideration is
given to the practical experience and educational
credentials of each applicant.... This refined
JURISEARCHER election process produces teams of
research attorneys wholly dedicated to your case.
The current JURISEARCH research staff, chosen
from over 1,000 applicants ....
The Charging Party, Steven McCarthy, during the
time material herein, was a recent law school graduate
not yet admitted to the bar. In September 1978 in re-
sponse to Respondent's classified newspaper advertise-
ment for a legal researcher he submitted his resume and
an interview was arranged with Respondent's research
director, Marc Resnick. Resnick described the job, ex-
plained that the rate of pay was $6 an hour, reviewed
McCarthy's resume, and asked him which areas of the
law he felt most comfortable researching. When McCar-
thy indicated he expected full-time work Resnick stated
that because the business was a new one he could not
initially guarantee McCarthy 40 hours a week but that as
time went on McCarthy would approach 40 hours a
week. Thereafter Respondent notified McCarthy he had
been given the job. McCarthy then quit his job with the
California Continuing Education of the Bar.
On September 5, 1978, McCarthy reported for work.
Respondent's research coordinator, Barbara Weiner, as-
signed him his first research project. She explained to
him the procedures which were to be followed. She also
gave him several pieces of written material: A 21-page
document entitled "Basic Legal Research Techniques;" a
6-page "Researcher's Guide;" a sample research memo-
randum; a "Jurisearch Citation Form"; a form on which
he was to list all of his research sources when he re-
searched a project; a topical index of legal subjects
keyed to Respondent's files which Weiner told him to
use whenever he received an assignment in order to de-
termine if Respondent's files contained a research memo-
randum which would be of assistance to him in research-
ing his assignment; a "Researcher Sheet."
The 6-page "Researcher's Guide" reads as follows:
1. Most of your work at JURISEARCH will involve
writing one of the following:
A. OBJECTIVE MEMORANDUM: This is the easi-
est form of research because it sets forth both
sides of the applicable law. It should contain four
sections entitled Facts, Issues, Discussion, and
Conclusion (preferably) or Summary (occasional-
ly). Its purpose is to generally inform the attor-
ney what the state of the law is in an objective
sense, as and only as it relates to his specific
questions and issues.
B. ADVOCACY MEMORANDUMS are usually
more difficult to write at first because they set
forth only one side of the law, the side that sup-
ports your client's position. In this sense they are
intellectually dishonest, but should be balanced in
our legal advocacy system by the opponent's
brief which will present his side of the question
only. You are in the position of a debator as-
signed to make the best possible argument for
your side only.
Advocacy memorandums consist of Facts,
Issues, Argument, and Conclusion.
C. TRIAL BRIEFS are briefs for use in trial
court. The requesting attorney may or may not
intend to file it. Trial briefs are essentially identi-
cal to advocacy memos but include an additional
category, Synopsis of Argument, which is placed
at the beginning of the brief and states the argu-
ment in outline form and should be prepared with
both the caption of the case and attorney's signa-
ture so that the attorney can directly submit it to
the court if he so wishes. Typically it will consist
of the issues set forth as positive statements in the
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JURISEARCH, INC.
client's favor plus occasional subtopics in outline
form under the statements.
D. APPELLATE BRIEFS must follow the re-
quirements for briefs set forth in the appropriate
court rules. You must check these rules because
they will set forth the required form and, usually,
the form for cites. It is best to xerox the court
rules in question and turn them in with the brief
so the editors and typists can make sure they also
follow this form.
2. Please keep in mind the purpose of whatever
you are writing. Somebody is going to act on your
research. With an objective memo the requesting at-
torney probably wants to make a decision on the
basis of your research so you should come to a con-
clusion rather than merely stating generalities or
principles of law.
With an advocacy memo or a brief the requesting
attorney wants to argue his case from your research
so you should advocate only his side of the question.
However you may need to develop defenses to the
likely legal attacks your position is most subject to.
Advocacy memos may contain a brief "notes to at-
torney" section warning or giving notice to the at-
torney of a strong or stronger case which may be
possible for the other side to make. In general the
body of the memo should not mention anything
contrary to his client's position. Do be argumenta-
tive.
3. IssuEs are set forth as questions and underlined
in the "Issues" sections of advocacy and objective
memos. The issues should also be placed in the dis-
cussion or argument as subject headings. In objec-
tive memos the issues should be stated in the discus-
sion as questions, but in advocacy memos the issues
should be put as positive statements in the argu-
ment. Thus, in an advocacy memo the issue as
stated in the "Issues" heading could be "Is murder
illegal?" In the "Argument this issue would be
"Murder is illegal." In an objective memo the issue
would be stated in both the "Issues" and the "Dis-
cussion" as "Is murder illegal?"
Where there is only one issue, it need not be re-
peated in the discussion or argument.
4. CITATION FORMS may be gotten from the at-
tached citation sheets. The editor will also set forth
appropriate citations for state statutes for new
states.
Both the official reporter and the regional report-
er should be set forth where both exist except that
U.S. Supreme Court cases need only the U.S. cite
(121 U.S. 722, for example). Some states no longer
publish official reporters so that the National Re-
porter is the official reporter and the only cite that
can be given, but remember to put in parentheses
the state, the court and the year, e.g. (Mo. App.
1950).
All cites must have dartes. This includes cases, stat-
utes, books, treatises, law review articles, C.J.S.,
Am. Jur., and A.L.R. The appropriate date for mate-
rials other than cases is the latest copyright date
from the front of the volume.
All federal statutes must be cites to US.C.A, or
U.S.C. The only exception is the Internal Revenue
Code. Internal Revenue cites should cite both
U.S.C.A. and the Internal Revenue Code.
When in doubt use the citation forms.
5. DON'T SAY:
A. "it is submitted" or "Plaintiff submits"
13. "etc."
"Seems to," "indicate," "appears," or similar
phrases should be used very sparingly, if at all.
"See . . ." if what you're referring to is impor-
tant enough to mention paraphrase, summarize or
append it to your research report, when in doubt,
xerox.
6. The strongest authority in state court is the
highest most recent case from that state's courts,
then the most recent federal case from that state,
then cases from out of state. (Excepting those areas,
primarily federal or constitutional, where the U.S.
Supreme Court has final say.)
7. Am. Jur. and C.J.S. and A.L.R. quotes are of
much less utility-avoid them in general, and never
use them exclusively if it can possibly be avoided.
Sometimes they provide useful language, but first
priority is citing cases.
8. Some treatises have authoritative value. Exam-
ples are the Restatements, Fletcher on Corporations,
Appleman or Couch on Insurance, and Prosser on
Torts. As with Am.Jur. and C.J.S., avoid exclusive
use of them wherever possible.
9. All cases should be Shepardized. Often She-
pards is the best research tool because the Digests
for many states, Wisconsin particularly, are not
very exhaustive. In this situation it may be neces-
sary to find a digested case which is on point, She-
pardize it, and look at the cases listed under the per-
tinent headnote. These cases will be later and are
likely to include the best case which is the one
which is latest in time and supports best the proposi-
tion you are advancing.
10. Both your peace of mind and the quality of
your writing will be improved if you reason the
problem through as far as possible before starting
research and outline your paper before writing it.
Often you will be familiar enough with a subject to
write the outline before you write. The job is then
greatly simplified as it is only necessary to find
cases that specifically support your outline and
write it up.
II1. If you are a new researcher or are unsure of
your position, prepare a brief outline and then dis-
cuss it with your editor.
12. A cited case should nearly always include
either a summary of facts and or a quote from the
case which fairly states its holding. Fondle the Facts.
It is poor practice to merely state a principle and
follow it with a cite, but where several cases sup-
port a proposition, it is appropriate to set forth
either the holding or a quote from the best case and
then say "also supporting the proposition are" and
cite the others with or without brief discussion, em-
573
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phasizing similar or dissimilar facts where appropri-
ate.
13. Usually the least tedious way to put a case
into a memo or brief is to copy a page of it on the
xerox machine, cut the pertinent section out on the
paper cutting machine at the library or with scis-
sors, and tape the quote into the paper being writ-
ten. This saves the time and boredom involved in
copying quotes and ensures that they are quoted
correctly. JURISEARCH will reimburse you for your
xerox costs if you list them on the white time slip
you turn in for the case. When in doubt, xerox.
14. When it is necessary to research a subject
with which you are unfamiliar, you should familiar-
ize yourself with the area. Some good ways of
doing this are:
A. Skim the digest topics on the subject and
then read a scattering of the digest blurbs to see
what issues have arisen and been litigated in the
area.
B. Read the pertinent statutes of a good horn-
book on the subject.
C. Review the pertinent statutes in the jurisdic-
tion in question.
D. Skim the blurbs on the subject in Am.Jur.
or C.J.S. or a pertinent Restatement.
15. Always check the statutes before writing or
coming to any conclusion on the case law. Many
areas of the common law have now been codified.
Good examples of this in Wisconsin are employ-
ment contracts, franchise and dealership agree-
ments, adverse possession, and duty of care in
public places or places of employment (Safe Place
Act).
16. In general if you run short of hours within a
client's time limit, or if he requested a call after a
certain number of hours, we would like you to per-
sonally call the attorney. Before your first three or
four "attorney calls" call Marc at 257-6960 and dis-
cuss what your approach to the attorney will be
and what you want to say to him.
We are interested in providing you and the attor-
ney a chance to directly communicate with each
other. We are of course anxious to do as much
work for the attorneys as possible, but we do not
want to produce work they won't or don't need.
If for some reason you do not wish to call a par-
ticular attorney or to discuss a particular problem,
you do not have to do so, but please relate the situ-
ation to your editor and to Marc.
You may call from the editor's office or from
your home and will be reimbursed for any such
calls.
17. It is critically important to JURISEARCH that
when you accept a project you complete it and turn
it in to JURISEARCH on or before the date and time
specified. If you cannot guarantee this, you should
not accept the project. Once you accept the project
we are relying on you. Uncompleted or late pro-
jects are often of no value to us and can lose us val-
uable clients. Obviously we cannot pay for uncom-
pleted or late work.
18. Our orientation is to have primary researchers
contact our clients directly. For the most part this
system works well. However at times there are
problems keeping track of deadlines and due date
changes made by researchers. In some cases this has
resulted in our office staff having to rush and work
under pressure as late as 10:30 p.m. unnecessarily
because we were not told of an extension which a
researcher had already obtained. Likewise we re-
cently missed a deadline and had to make an emer-
gency trip to the airport to get a memo out because
of an error made in communicating a deadline
change.
For these and other reasons we have come up
with a "Researcher-Client Phone Contact Sheet."
We believe this is the simplest and most reliable so-
lution to our problem. We have tried to make it as
quick and easy to complete as is possible. We must
ask you to fill it out each time you contact a client.
Directions:
1) Be sure and enter the file number and your
name on the top line.
2) If you are not changing any of the due dates
simply skip the first boxed section. If you are
changing the due dates be sure that you have noti-
fied the editor of the change and that s/he approves
of the time interval you have allowed between
when you will turn the work into JURISEARCH and
when this must be received by the client. Please
note-the project is not complete when you turn it
in-it still requires processing, editing, possible revi-
sions, typing and packaging, delivery to carrier,
transit time and delivery. In general, for non-rush
work five days is a reasonable interval, if you are
calling about a time extension it may be a good idea
to discuss this with the editor before you make the
call.
3) If you are not changing the hours authorized
or requesting approval of an hourly estimate simply
skip the second boxed section. If you are making
changes in the hours authorized section, keep in
mind we want to do as much work for a client as
we can, but do not wish to produce anything which
he will not find useful for dealing with his own spe-
cific problems. If more time is needed, we would
like you to be aware of the following:
I) The editor puts in approximately 10% addi-
tional time to what you put into an average proj-
ect. For instance, if an attorney presents us with
a "10 hour" ceiling and you estimate that you
will need an extra 10 hours (after having already
worked 10 hours) do not ask for only 10 hours,
ask for 12; the extra 2 hours are needed to cover
the 10% editing time the editor may be likely to
put into a 20 hour project.
2) Secondly, leave some margin. Do not ask
for 5 hours if there is a possibility that 7 are
really needed. It is often helpful to use phraseolo-
gy like "approximately" or "about" or give
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JURISEARCH, INC
ranges ("need 3-5 more hours"). It has been our
experience that in spite of the fact that attorneys
are budget conscious they are more interested in
receiving a quality product than in saving a few
dollars. If a final bill is for fewer hours than were
authorized, this is not in any way harmful.
19. Never donate time to an attorney! Although
this sounds like a rather obvious proposition, we
have had problems with researchers doing this.
Your sole obligation is giving the attorney the best
job that is possible within the time limitation he has
imposed. Remember your obligation will often be
limited by the attorney's budget. No one can fairly
ask a researcher to produce a 20 hour memo in 10
hours.
Don't donate your time. If all an attorney will
authorize is 10 hours, don't work longer, we can't
bill for it and thus can't pay you for it. We do not
want you to give your time away as it is valuable to
us and to you.
Weiner in her conversation with McCarthy emphasized
Section 19 of the guide which deals with the instruction
that the researcher should not donate his time and should
not work longer on a project than the time authorized
and would not be paid for working unauthorized hours.
The 21-page manual entitled "Basic Legal Research
Techniques," which is copyrighted by Respondent, in its
introductory paragraph informed McCarthy: "This
manual is designed to acquaint you with basic research
techniques which you may or may not have learned in
law school. The discussion is structured so as to describe
the basic approach to a legal research problem. which,
once earned, will no doubt be refined by each individual
as his or her skill develops [emphasis supplied]." The
manual goes on to stress that thorough legal research
cannot be accomplished without using the West System
and explains in detail why the West System is better than
other existing systems of research. The manual in effect
makes it plain that Respondent expects its researchers to
use the West System as their primary research source. In
detail the manual shows how to research problems using
the West System in conjunction with the use of "Trea-
tises," A.L.R., "Legal Encyclopedia," the "Guide to
Legal Periodicals," the Loose Leaf Services, and Case-
books. It also explains in detail how the researcher
should use the various digests which are a part of the
West System and, in connection with the use of the
"Key Number" system, declares: "You MUST RUN THE
RELEVANT KEY NUMBERS THROUGH ALL VOI.UMES OF
THE GENERAL DIGEST and THROUGH THE ADVANCE
SHEETS OF THE REGIONAL REPORTER COVERING THE AP-
PLICABLE JURISDICTION." On the question of statutes the
manual states:
A. Importance
Another one of those "it cannot be overempha-
sized" elements of legal research is the necessity for
a statutory search in virtually every problem you
confront. The fact that a court decision can be
obliterated by a statute necessitates a watchful eye
for legislative responses to the judiciary. Therefore,
at some point in the research process, attention must
be given to the statutes of the state whose law gov-
erns the attorney's problem.
B. When to Search
If you are working on a statute-prone problem,
then your search should begin with the index to the
relevant code. One thing is clear, searching for a
statute should not be the last thing you do; if you
adopt such a habit, you will find numerous times
when all case research is rendered virtually worth-
less because of the passage of a statute nullifying ju-
dicial doctrine.
And then on the matter of Shepardizing, the manual
states: "Woe be unto the one who fails to Shepardize
ALL cases cited in his or her memorandum." And on
this subject issues the further warning:
You should not wait until your memorandum is
written to Shepardize cases; the best method per-
haps is to Shepardize all cases which will probably
appear in your memorandum at the same time, or,
you may want to Shepardize a particularly relevant
case immediately upon finding it so that subsequent
cases citing it may be read and studied.
Continuing on this subject the manual instructs the re-
searcher to also Shepardize legislation and law review
articles.
In order to make sure that McCarthy followed the
legal research techniques set forth in Respondent's man-
uals McCarthy was given a printed form on which he
had to list all of the "Digests," "Encyclopedias," "Legis-
lation," "Treatises," "ALR," "Guide to Legal Periodi-
cals," "Restatements," loose leaf services, "Words And
Phrases," and "Additional Sources" which he used in re-
searching a project and to list each one of the cases cited
in his memorandum which he Shepardized.
The "Jurisearch Citation Form" issued to McCarthy
requires that the citations which are set out in detail
therein be used for all cases, reports, statutory material,
and books referred to in his research memoranda and
also sets out rules for him to follow regarding citation
order, punctuation, introductory signals, capitalization,
and other related matters.
During the period he worked for Respondent, from
September 5, 1978, until his termination approximately 3
weeks later, McCarthy was assigned three separate as-
signments: One on September 5; the second on Septem-
ber 8; the third on September 18. He was paid for a total
of 36-1/2 hours plus various expenses.
In connection with each of these assignments Weiner
gave McCarthy a "Researcher Sheet" which listed the
number of hours McCarthy was authorized to work on
the assignment, the date he had to turn it in to Respond-
ent, the specific question he was to research, and the
name and phone number of the client. At the completion
of each assignment McCarthy completed the remainder
of this form by writing down the number of hours he
had worked to complete the assignment, broken down
575
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the time he spent researching and writing, and item-
ized his expenses. In addition to completing this form
McCarthy also completed the form which asked him to
list all of the research materials he used to research the
project and listed all of the cases he Shepardized.
Each legal memorandum submitted by McCarthy was,
as indicated in Respondent's sales brochure, reviewed by
an editor. The editor's written comments concerning
McCarthy's first assignment were as follows: 4
The issues should all be phrased as issues, i.e.
"should --- or "whether-----",
Etc. ....
This memo really worries me. There is no indica-
tion that the researcher checked out the Oregon re-
vised statutes. These issues may be statutory. If
Oregon statutes have not been checked, they must
be researched before the memo can be sent to the
attorney. If statutes have been checked, researcher
should say so in memo. This is essential.
The editor's written comments concerning McCarthy's
second assignment were as follows:
Fact Statement should indicate (1) which party is
our client and (2) what is the jurisdiction.
This memo concerns me in that there is no indi-
cation that possible statutes have been checked.
Statutes should be consulted and a memo should in-
dicate the effect of any statutes. If no relevant stat-
utes memo should say so.
The editor's written comments concerning McCarthy's
final assignment were as follows:
1. Statement of facts confusing-needs expansion.
2. Discussion of 2 types of implied contracts on
p. I needs cites.
3. p. 6-need parallel cite for Pa cite & date for
F.2d cite, need date for law review cite.
4. On p. 11, 12 you give 3 criteria for prevailing
on an implied fact contract. What is your authority?
5. Dates come at the end in cites.
6. Sloppy cites-dates & parallel cite left off in p.
16, p. 17 F.2d cite w/out circuit & date also p. 20
On September 26, 1978, Respondent wrote all of its re-
searchers a memo which in part stated:
Recently we have been noticing a conspicuous ab-
sence of a voluminousness which we feel to be an
essential element of our research product. The best
way to increase the volume of memos which you
prepare is to reproduce those portions of judicial
opinions that bear directly on the points being re-
searched. In that way our attorney-clients have the
benefit of judicial language and not merely the writ-
er's analysis of the judicial language. Further, while
researching a question for a California attorney you
may find a very relevant Arizona case. If that case
These comments were shown to McCarthy and his memorandum
was returned whereupon McCarthy returned to the library and revised
the memorandum in accordance with the editor's instructions.
is not in some way set out, the California attorney
may never have access to the case.
2. Discussion and Conclusions
Respondent contends that McCarthy was not an em-
ployee within the meaning of the Act but was an inde-
pendent contractor, exempt from protection under the
Act. In determining the status of persons alleged to be
independent contractors, the Board applies a "right-of-
control" test, which turns essentially on whether the
person for whom the services are performed retains the
right to control the manner and means by which the
result is to be accomplished, or whether he controls only
the result. In the latter situation, the status is that of an
independent contractor. As the Board has frequently reit-
erated, it must apply a common law agency test in deter-
mining who are employees under the Act, and will con-
sider a number of factors considered significant at
common law in order to determine whether an employ-
ment relationship exists. See Philadelphia Newspapers,
Inc., 238 NLRB 835 (1978). The resolution of this
question depends on the facts in each case and as seems
typical in cases of this kind there are present factors sup-
porting the position of both parties.
I am satisfied that McCarthy was an employee of Re-
spondent. Thus, even though the evidence described in
detail above discloses several factors usually present in
an employer-independent contractor relationship, these
factors are in my opinion outweighed by the evidence
demonstrating an employer-employee relationship. The
result to be accomplished in this case is the production
of legal research memoranda which Respondent sells to
its customers. I am of the opinion for the reasons set
forth hereinafter that in connection with McCarthy's
production of legal research memoranda Respondent had
the right to control the manner and means by which he
produced them and that the record also demonstrated
that McCarthy in working for Respondent did not re-
semble an independent business entrepreneur whose earn-
ings were controlled by self-determined policies, personal
investment, expenditures, or market conditions.
A. Respondent had the right to control the manner and
means by which McCarthy performed his work as a legal
researcher.
(a). The research techniques used by McCarthy were not
left to his professional discretion.
i. Initially McCarthy was required by Respondent to
check its files for research memoranda produced by
other researchers which might assist him in whole or in
part with his own assignment.
ii. Respondent's copyrighted 21 page manual of "Basic
Legal Research Techniques" 5 in effect required that Mc-
Carthy use the West System as his primary research
source and in minute detail explained to McCarthy how
he should use the West System in conjunction with legal
treatises, ALR, legal encyclopedias, the "Guide To
n I reject Respondent's contention that the instructions contained in the
Researcher's Guide, Jurisearch Citation Form, and Basic Legal Research
techniques "are only industry standards, and are therefore very analogous
to asking compliance with rules such as the ICC, or DOT regulations
Respondent offered no evidence in support of this contention
576
JURISEARCH, INC.
Legal Periodicals," the loose leaf services, casebooks,
etc. The manual also explained in detail how McCarthy
should use the various digests which are a part of the
West System and, in connection with the use of the "key
number" system, issued this instruction: "You MUST RUN
THE RELEVANT KEY NUMBERS THROUGH ALL VOLUMES
OF THE CENTRAL DIGEST and THROUGH THE ADVANCE
SHEETS OF THE REGIONAL REPORTER COVERING THE AP-
PLICABLE JURISDICTION." In addition the manual in-
structed McCarthy to conduct a "statutory search" at
some point in his research and specifically instructed him
that "if you are working on a statute-prone problem,
then your research should begin with the index to the
relevant code." Likewise it directed McCarthy to She-
pardize each case cited in his memoranda as well as leg-
islation and law review articles. The instructions to con-
duct a statutory search and to Shepardize were re-em-
phasized by Respondent in the "Researcher's Guide"
issued to McCarthy. Sections 9 and 15 directed him to
"always check the statutes before writing or coming to
any conclusion on the case law," and that:
All cases should be Shepardized. Often Shepards
is the best research tool because the Digests for
many states . . . are not very exhaustive. In this sit-
uation it may be necessary to find a digested case
which is on point, Shepardize it, and look at the
cases listed under the pertinent headnote. These
cases will be later and are likely to include the best
case which is the one which is lastest in time and
supports best the proposition you are advancing.
Lastly, section 14 of the "Researcher's Guide," on the
subject of research techniques, states in general:
When it is necessary to research a subject with
which you are unfamiliar, you should familiarize
yourself with the area. Some good ways of doing
this are:
A. Skim the digest topics on the subject and then
read a scattering of the digest blurbs to see what
issues have arisen and been litigated in the area.
B. Read the pertinent section of a good hornbook
on the subject.
C. Review the pertinent statutes in the jurisdic-
tion in question.
D. Skim the blurbs on the subject in Am. Jur. or
a pertinent Restatement.
iii. McCarthy was held accountable for adhering to the
above-described research techniques by means of a print-
ed form which he was required to fill out and submit to
the editor at the completion of each assignment. On this
form McCarthy was required to list all of the research
materials he had used, i.e., digests, legal encyclopedias,
ALR, treatises, etc., and to list each one of the cases
cited by him which were Shepardized.
(b). McCarthy's professional discretion in reducing the re-
sults of his legal research into writing was drastically cir-
cumscribed by the supervision of his editor and the instruc-
tions contained in the "Jurisearch Citation Form" and the
"Researcher's Guide."
i. The legal memoranda submitted by McCarthy were
edited for their substance (legal accuracy) as well as for
grammar, style, syntax and citations. McCarthy was re-
quired to accept the editor's revisions. In addition, as
General Manager Retter testified, the editor could reas-
sign one of McCarthy's legal memoranda to another re-
searcher if the editor felt it needed a lot of remedial
work and further testified that editors went to the library
to check the accuracy of the material contained in
memoranda submitted by part-time researchers like Mc-
Carthy.
ii. The "Jurisearch Citation Form" issued to McCarthy
required that the citations which were set out in detail
therein be used for all cases, reports, statutes, and books
referred to in McCarthy's research memoranda and also
set out rules for McCarthy to follow regarding citation
order, punctuation, introductory signals, capitalization,
and other related matters.
iii. The 6-page "Researcher's Guide" set out the
format which McCarthy must follow for the several
types of legal research memoranda he could be assigned
and in detail described the manner in which an "advoca-
cy" as contrasted to an "objective" memorandum should
be written. It also instructed him where in the memoran-
dum to place the "issue" section and how to phrase the
issues. In addition the manual instructed McCarthy:
(1) To use citations set forth in the "Jurisearch Cita-
tion Form" and that "all cites must have dates" and ex-
plained the appropriate date for material other than cases
and stated that all federal statutes must "be cited to
USCA or USC" except for the Internal Revenue Code.
(2) Not to use the phrases "it is submitted," "plaintiff
submits," "etc," "seems to," "indicate," "appears," or
similar phrases.
(3) Not to simply cite a case without either paraphras-
ing it or summarizing it or xeroxing and making it a part
of the memorandum.
(4) Not to quote from Am. Jur. or CJS or ALR but to
cite cases rather than quote from these sources.
(5) As a new researcher McCarthy must prepare a
brief outline of his research memorandum and discuss it
with his editor and even after he acquired experience, if
he were unsure about an assignment, to likewise prepare
a brief outline of his research memorandum and discuss it
with his editor.
A "cited case should nearly always include either a
summary of the facts and holdings or a quote from the
case which fairly states its holding,"' and advised Mc-
Carthy how to handle a situation where several cases
support the same proposition of law.
McCarthy was authorized to work only a fixed number of
hours for each assignment" and was paid an hourly rate
6 Respondent's letter to its researchers dated September 26, 1978,
reemphasizes the importance of this particular instruction and that the re-
searchers adhere to it.
I The "Researcher's Guide" specifically instructed McCarthy never to
spend more time on an assignment than authorized and warned that he
would not be paid for any unauthorized hours of work This instruction
was reemphasized by Weiner when she assigned McCarthy his first proj-
ect and in fact McCarthy was not reimbursed for the extra hours he spent
working on his last assignment In view of these circumstances the fact
Continued
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and was required to turn in an assignment by a specified
date, all of which had the effect of circumscribing his free-
dom to determine independently the manner in which he
would perform his work and made it impossible for him to
increase his income by the exercise of entrepreneurial skill.
Quite the opposite, if McCarthy because of his skills fin-
ished an assignment prior to the number of authorized
hours he would have lost money inasmuch as he was
being paid by the hour.
C. McCarthy did not operate his own independent busi-
ness and performed functions which were an essential part
of Respondent's normal business operations. McCarthy, a
recent law school graduate, was waiting for the results
of the bar examination. He intended to practice law and
was not in the business of performing legal research. On
the other hand, the work of McCarthy and the other
part-time researchers constituted an integral part, if not
the primary part, of Respondent's business operation.
Thus approximately 80 percent of Respondent's research-
ers were employed, like McCarthy, on a part-time basis.
In view of this it is clear that Respondent's part-time re-
searchers constitute an integral and functional part of the
research service which Respondent in its sales brochure
holds itself out to perform for the general public.
D. Respondent and McCarthy contemplated that even
though McCarthy was hired on a part-time basis he would
work for Respondent on a regular basis, so long as his work
performance was satisfactory. Thus, during the employ-
ment interview Research Director Resnick, in response
to McCarthy's request for full-time work, assured him
that as time passed he would gradually reach the position
where he would be working 40 hours a week. Also
during the short period of time he was employed, ap-
proximately 3 weeks, McCarthy was assigned three pro-
jects.
E. McCarthy's work for Respondent was conducted under
Respondent's name, his conversations with Respondent's
customers were kept under close scrutiny, and his work was
sent to the customers under Respondent's name without
mention of who performed the work. In this regard the
record reveals that when a part-time researcher talks
with Respondent's customers they do so in the name of
Respondent and that during their first three or four as-
signments are required to first speak with Respondent's
research director, prior to talking with the customer, and
discuss with the research director what they intend to
say to the customer. Also if the researchers do not want
to speak to a customer about a problem, they must notify
either the director or their editor. And in each instance
where a part-time researcher does in fact talk with a cus-
tomer for whom he or she is doing an assignment, the
researcher is required to write up a summary of the con-
versation as well as a description of the customer's atti-
tude and demeanor and transmit this information to the
editor at the time the researcher turns in the assignment.
F. McCarthy was required to submit with each assign-
ment a record of the hours he worked, broken down into the
that McCarthy was paid for his unauthorized hours on his first two as-
signments does not detract from the conclusion that as a rule Respondent
expected its part-time researchers to only work the hours they were au-
thorized and did not pay them for extra hours.
hours he spent researching and writing, and an itemized list
of his expenses which was subject to Respondent's review.
G. There was no agreement, written or verbal, between
McCarthy and Respondent concerning his terms and condi-
tions of employment, which were promulgated unilaterally
by Respondent and were subject to its unilateral change.
H. The relationship between McCarthy and Respondent
embarked upon in a manner resembling the typical employ-
er-employee relationship rather than a contracting situation;
that is, Respondent sought McCarthy through advertis-
ing in the classified pages and interviewing him rather
than offering contracts for bid. Nor did the parties con-
template a limited relationship restricted to one project,
rather, as discussed supra, it is plain they expected a con-
tinuing employment relationship with an open termina-
tion date.
I. McCarthy had no capital investment in his work, main-
tained no separate place of business, did not hold himself
out to be in business for himself and his compensation was
not derived from profits above overhead expenses,8 nor was
he subject to the risk of loss. In short, McCarthy while
working for Respondent had no opportunity to make de-
cisions which involved the usual risks taken by independ-
ent business persons which may result in profits or losses.
Based upon the findings set forth in subsections A
through I, supra, in particular subsection A, I am per-
suaded that this is not a situation where the technical and
the creative means by which McCarthy carried out his
job were left to his professional judgment;9 rather, the
record establishes that Respondent retained the right to
control the manner and means by which McCarthy per-
formed his work and that McCarthy was expected to op-
erate under Respondent's plan of operation. It is for this
reason that I conclude that McCarthy's relationship with
Respondent was that of an employee rather than an inde-
pendent contractor. I realize that there are present cer-
tain factors, cited by Respondent, which are sometimes
present in those cases where an employer-independent
contractor relationship has been found to exist. Thus, Re-
spondent did not make the usual social security deduc-
tions nor did McCarthy receive any of the usual fringe
benefits normally associated with employee status. Also,
McCarthy was a professional who was free to reject a
request by Respondent that he accept an assignment. Nor
did Respondent have control over his working hours,
working conditions, or place of work. Nevertheless, I am
of the opinion that these factors are outweighed by the
other factors described in subsections A through I, supra,
which establish McCarthy's status as an employee, in
particular the factors described in subsection A, supra,
which demonstrate Respondent had the right to control
r Indeed, as found supra. Respondent paid McCarthy for the usual ex-
penses associated with his work.
It is for this reason that this case is distinguishable from the situation
in Young & Rubicam International, Inc., 226 NLRB 1271 (1976), and the
several cases cited and discussed therein which are relied upon by Re-
spondent
I have not however considered the several Internal Revenlue rulings
which were also cited by Respondent inasmuch as none of them involved
persons who performed the kind of work done by McCarthy
578
JURISEARCH, INC.
the manner and means by which McCarthy performed
his work as a legal researcher. 10
B. McCarthy's Termination
1. The evidence
During the week of September 18, 1978, McCarthy
telephoned John Fisher, another researcher employed by
Respondent, and told Fisher that he had been in touch
with an organization of paralegals with the object of or-
ganizing Respondent's legal researchers. McCarthy asked
how Fisher felt about the Respondent's legal researchers
joining together for their mutual benefit. Fisher was non-
committal and appeared "very cool" to the suggestion.
On September 26, 1978, McCarthy wrote a letter ad-
dressed to his "Fellow Researchers" which ended with a
request that the researchers telephone McCarthy if they
were interested in what was suggested in the letter. The
letter which was signed by McCarthy reads as follows:
Fellow Researchers:
Do YOU GET PAID FOR THE ACTUAL NUMBER OF
HOURS YOU WORK?
With your education and skills do you really
think you shouldn't?
If you answered "No" try these:
Would you benefit from comparing your research
techniques and problems with others?
Would you participate in an organized effort to
achieve better hourly wages and improvement of
skills?
If you answered "Yes" read on:
We are obviously in a flooded, oppressive legal
labor market. The very nature of our work tends to
isolate us from each other and the competition ce-
ments the distance. Our employers are unquestiona-
bly aware of this; perpetuate it; and profit from it.
The only way it will stop is on our collective initia-
tive.
Please contact
Steve McCarthy
(415) 658-7157
On September 26, 1978, in the morning, McCarthy vis-
ited Respondent's office and placed copies of this letter
in each researcher's file folder. These folders are used by
Respondent to leave messages for the researchers.
On September 28, 1978, McCarthy received a letter from
Respondent signed by its research director, Marc Res-
nick, which stated: JURISEARCH is sorry to inform you
that our editorial staff has decided to terminate the inde-
pendent contractor relationship you have had with our
company."
On September 28, upon receipt of this letter, McCar-
thy, who was still in the process of completing one of his
z' I also note that General Manager Retter's admission, infra, that one
of the reasons for McCarthy's termination was the fact that the projects
he had received were not completed according to the fundamental direc-
tions" reinforces the conclusion that Respondent had the right to control
the manner and means by which McCarthy performed his work.
assignments, phoned Resnick and asked whether Re-
spondent intended to accept this assignment in view of
the letter of termination. McCarthy testified that Resnick
replied that Respondent would accept the assignment.
McCarthy further testified that Resnick then volunteered
the statement that "he [Resnick] was surprised about
[McCarthy's] growing dissatisfaction with the job." Mc-
Carthy denied being dissatisfied with the job and asked
whether Resnick was upset about the letter which Mc-
Carthy had distributed to the researchers, at which point
Resnick and McCarthy got into an argument the words
of which McCarthy was not able to recall. Resnick did
not refute McCarthy's aforesaid version of this conversa-
tion. In addition, Mary Howell, who was employed as
Respondent's director of attorney services, credibly testi-
fied, without contradiction, that on September 29, while
in the office of Research Coordinator Barbara Weiner, in
Weiner's presence, she listened to a tape recording of
McCarthy's phone conversation with Resnick and that
although she was not able to recall the words used by
McCarthy and Resnick that the topic they discussed was
McCarthy contacting and distributing a letter to the re-
searchers.
On September 29 McCarthy went to Respondent's
office and submitted the completed manuscript for the
assignment he had been working on at the time of his
termination.
The only complaint communicated by Respondent to
McCarthy about his work on the two assignments he had
turned in prior to his termination was Weiner's com-
plaint that in connection with his first assignment he had
failed to research the applicable state statutes.
In connection with the decision to terminate
McCarthy's services Respondent presented one witness,
General Manager Dale Retter, who testified that the de-
cision to terminate McCarthy was made as the result of a
discussion between Retter, Research Editor Ellen Mat-
thews, and Research Director Resnick. Retter testified,
"[Retter, Matthews, and Resnick] decided McCarthy
would not be given additional research projects, based
on the quality of work we received and the fact that the
projects we had received were not completed according
to the fundamental directions." Matthews and Resnick,
who were still employed by Respondent on the date of
the hearing in this case, did not testify.
Retter testified that among the things which Mat-
thews, Resnick, and himself discussed during the conver-
sation which resulted in McCarthy's termination was the
work which McCarthy had performed on his assignment
edited by Matthews' and further testified that during
the discussion Matthews showed Retter and Resnick her
editorial comments and expressed her dissatisfaction with
McCarthy's work and stated she did not consider his re-
search adequate. Of course this testimony is inherently
implausible because the credible and uncontradicted testi-
mony of McCarthy establishes that McCarthy's work
which Matthews edited was not submitted to Respond-
ent by McCarthy until after Respondent had mailed and
"1 Matthews only edited one of McCarthy's assignments. the Septem-
ber 18 one, which McCarthy did not submit until September 29
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCarthy had received the letter of termination.' 2 This
patently false testimony, plus my impression based upon
Retter's demeanor that he was not a trustworthy witness
and Respondent's unexplained failure to call either Res-
nick'3 or Matthews to corroborate Retter's testimony
has led me to reject Retter's testimony in its entirety
concerning Respondent's motivation for discharging Mc-
Carthy. Rather I find that the reasons advanced by
Retter for McCarthy's termination were not the real rea-
sons.
2. Discussion and Conclusions
As I have concluded supra, the sole evidence present-
ed by Respondent, the testimony of General Manager
Retter, to explain its motivation for terminating McCar-
thy was a fabrication and not the real reason for
McCarthy's termination. I agree with the General Coun-
sel's contention that the real reason for McCarthy's ter-
mination was his distribution of the September 26, 1978,
letter to the Respondent's researchers. In reaching this
conclusion I was influenced by the following consider-
ations.
McCarthy was terminated immediately after having
distributed the September 26 letter. Respondent at the
time of McCarthy's termination knew he had distributed
the letter.14 Respondent was unhappy with McCarthy
for having distributed the letter.' 5 And when Resnick
spoke to McCarthy about his termination, instead of ex-
plaining to him that his work performance was unsatis-
factory, Resnick expressed surprise about McCarthy's
"dissatisfaction with the job," which taken in context
could only have been a reference to McCarthy's letter of
September 26.16 It is these reasons taken in their entire-
ty, plus the false reason advanced by Respondent to jus-
tify its termination of McCarthy, that persuade me that
the moving cause of McCarthy's termination was his dis-
tribution of the September 26 letter to Respondent's re-
searchers and that but for this activity he would not
have been discharged.
The General Counsel takes the position that
McCarthy's activity in distributing the September 26
letter to the other researchers was sanctioned by Section
7 of the National Labor Relations Act. Respondent con-
tends that this conduct was not the kind of activity pro-
tected by Section 7 of the Act because McCarthy acted
alone and was motivated by the personal consideration
of saving his own job.
It is now generally recognized that an individual em-
ployee acting alone to secure improved working condi-
12 In fact at one point in his testimony Retter in effect admitted that
McCarthy's work assignment, which Matthews edited, was not submitted
to Matthews until after McCarthy's termination.
I' As I have indicated supra, the hearing was continued at Respond-
ent's request for the specific purpose of affording Respondent an oppor-
tunity to present Resnick's testimony.
"4 General Manager Retter admitted that the knowledge that McCar-
thy had distributed the September 26 letter came to his and Resnick's at-
tention contemporaneously with the decision to terminate McCarthy.
'1 Howell's undenied testimony is that Resnick and Retter indicated
that the distribution of the letter by McCarthy was regarded by them as
an effrontery
's I also note, as described mupra, that McCarthy interpreted Resnick's
remark in this fashion arid it does not appear that Resnick objected to
McCarthy's interpretation.
tions is engaged in protected concerted activity within
the meaning of Section 7 if "at the very least [his con-
duct] was engaged in with the object of initiating or in-
ducing or preparing for group action or that it had some
relation to group action in the interest of the employ-
ees." Mushroom Transportation Company v. N.L.R.B., 330
F.2d 683, 685 (3d Cir. 1964). An employee who commu-
nicates his concerns about working conditions to his em-
ployer or coworkers is entitled to the Act's protection
where, at a minimum, that conduct "coalesces with ex-
pression inclined to produce group or representative
action." Hugh H. Wilson Corporation v. N.L.R.B., 414
F.2d 1345, 1348 (3d Cir. 1969), cert. denied 397 U.S. 935
(1970). This is so, as the Court recognized in Hugh H.
Wilson, supra at 1347, because:
The lines defining this right [to engage in pro-
tected concerted activity] have of necessity been
painted with broad strokes. To protect concerted
activities in full bloom, protection must necessarily
be extended to "intended, contemplated or even re-
ferred to" group action [quoting Mushroom Trans-
portation, supra] . .. lest employer retaliation de-
stroy the bud of employee initiative aimed at better-
ing terms of employment and working conditions.
Other courts which have considered this question have
sustained the Board's finding of protected concerted ac-
tivity where the conduct of a single employee contem-
plated group action and there was no outward manifesta-
tion of support from others. See, for example, N.L.R.B.
v. Empire Gas, Inc., 566 F.2d 681 (10th Cir. 1977) (em-
ployee's protest of employer's bonus program in a letter
advocating a collective refusal to work on certain days);
N.L.R.B. v. Sencore, Inc., 558 F.2d 433, 434 (8th Cir.
1977)(employee's activity in enlisting the support of
fellow employees concerning her views of a wage in-
crease); Dries & Krump Manufacturing Company v.
N.L.R.B., 544 F.2d 320, 327-328 (7th Cir. 1976)(employ-
ee's distribution of copies of his own view of a grievance
together with a note appealing to employees to initiate
some type of group activity); Randolph Division, Ethan
Allen, Inc. v. N.L.R.B., 513 F.2d 706, 708 (Ist Cir.
1975)(employee's request for financial information about
the company because of her interest in unionization, an
object which could only be achieved by group action).
In the instant case McCarthy's preparation and distri-
bution of the September 26 letter to the other researchers
clearly contemplated group action toward improving the
researchers' wages and other working conditions, thus
when measured by the legal principles set forth above it
was the type of activity protected by Section 7 of the
Act. I reject Respondent's contention that the record es-
tablishes that in preparing and distributing the letter
McCarthy's motive was merely a personal one, to save
his own job. The fact that when McCarthy, on Septem-
ber 26, distributed the letter he also learned that one of
Respondent's customers had complained about his work
is not sufficient to impugn the bona fides of McCarthy's
activity. McCarthy had prepared the letter for distribu-
tion prior to learning about the customer's complaint. In
fact, he had embarked on his effort to persuade the re-
580
JURISEARCH, INC
searchers to organize themselves in order to improve
their working conditions the previous week when, as de-
scribed supra, he spoke to researcher Fisher about the
matter. Nor is there evidence that at the time McCarthy
spoke to Fisher and prepared the September 26 letter for
distribution that anyone from Respondent had said any-
thing to McCarthy which would have reasonably made
him believe that his job was in jeopardy. In short, there
is a lack of evidence to establish that in preparing and
distributing the September 26 letter to the researchers
McCarthy was motivated by personal considerations un-
related to the welfare of the other researchers.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging Steven McCarthy for engaging in
protected concerted activity Respondent has violated
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(l) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the poli-
cies of the Act, including immediate and full reinstate-
ment of Steven McCarthy to his former position or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or any
other rights and privileges previously enjoyed, as well as
the payment of backpay, with interest, for earnings lost
by him as a result of his discharge. Backpay shall be
computed in accordance with F. W Woolworth Company,
90 NLRB 289 (1950), with interest computed in the
manner set forth in Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER "
The Respondent, Jurisearch, Inc., San Francisco, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for exercising the right to
engage in protected concerted activity under Section 7
of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
t? In the event no exceptions are filed as priovided bh Sec 10)2 4 of
the Rules and Regulations of the National L abor Relation,, Board. Ihe
findings, conclusions, and recommended Order herein shall. as prolided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all ohjetlion Ithereto
shall be deemed waived for all purposes
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Steven McCarthy immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights and
privileges previously enjoyed, and make him whole, as
set forth in the "Remedy," for any loss of earnings suf-
fered as a result of his discharge.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its San Francisco, California, place of busi-
ness copies of the attached notice marked "Appendix." H
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by Re-
spondent's authorized representative, 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 insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
i'" hl ie eelnil iIhal tisll )rdert is enforced h si Jldgmllent I al Lm ltcd
Stales, (Colurt of Appeals. thic ',ords in Ith' nrilt rrcailing "'osted h
Order (f Ihe National I ahlr Rclatollln, I .ilrd" shall reai d "It' llrLru-
ant to as Julgmtnill t11 I1t. ' rlth c St;tils c.l-llrt Iot Appcals I t:fhori g .1n
Order of the N timlwi.il I.[lahr RcIktl.sii,, hlB-rd
APPENDIX
NoI-lcI To EMPI oEtis
Post Ii) BY ORI) DR OF I[HI
NAIIONAI LABOR R.A'TIONS BOARI)
An Agency of the United States Government
W[. Wll i NOI' discharge or otherwise penalize
employees for engaging in protected concerted ac-
tivity under Section 7 of the National Labor Rela-
tions Act, as amended.
WE wll.i NOI in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed by Section 7 of the
National Labor Relations Act, which are:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a rcpresenta-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things.
Wli W III offer Steven McCarthy immediate rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, swithout
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prejudice to his seniority or any other rights and
privileges previously enjoyed by him, and wE Wl.l
make him whole for any loss of earnings suffered by
him, with interest, as a result of our unlawful act in
discharging him.
JURISEARCH, INC.
582