Cowles Magazines and Broadcasting, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1964

150 N.L.R.B. 602 (N.L.R.B. 1964)

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations , including mechanics , tire mounters, seat cover installers,
stockmen ,'2 and gas island attendants ; excluding all other employees,
office clerical employees , cashiers , salesmen , watchmen , guards, and
supervisors , as defined by the Act.
[Text of Direction of Election omitted from publication.]
" As it is not clear from the record whether the requested stockman actually works
in the service department , we shall permit him to vote subject to challenge.
Gainesville Publishing Company, A Division of Cowles Maga-
zines and Broadcasting, Inc. and Robert Lamar Lee and Dorus
E. Norwood and Gainesville Typographical Union , No. 911,
International Typographical Union , AFL-CIO
Gainesville Publishing Company, A Division of Cowles Maga-
zines and Broadcasting, Inc. and Rosemary L. Hertel and
William C. Strawn and Gainesville Typographical Union, No.
911, International Typographical Union , AFL-CIO and Rich-
ard P. Arnold and Preston E . Dennington and Raymond A.
Glass. Cases Nos. 12-CA-2680-1,12-CA-2680-2,12-CA-2680-3,'
12-CA-2737-1, 12-CA-2737-2, 12-CA-2737-3, 12-CA-2737-4, 12-
CA-2737-5, and 12-CA-2737-6. December 28, 1964
DECISION AND ORDER
On April 29, 1964, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in,and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
a supporting brief. The General Counsel and the Charging Union
filed no exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision
150 NLRB No. 60.
GAINESVILLE PUBLISHING COMPANY, ETC. 603
and the exceptions and brief,' and hereby adopts the findings,2 con-
clusions, and recommendations 3 of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order,4 the Order recom-
mended by the Trial Examiner and orders that Respondent, its
officers, agents , successors , and assigns , shall take the action set forth
in the Trial Examiner's Recommended Order.5
1 Respondent 's request for oral argument before the Board is hereby denied as the rec-
ord, the exceptions , and the brief adequately present the issues and positions of the parties
2 Respondent has excepted to the credibility findings made by the Trial Examiner. It
is the Board ' s established policy not to overrule a Trial Examiner 's resolutions as to
credibility unless the clear preponderance of all the relevant evidence convinces us that
they are incorrect . Standard Dry Wall Products , Inc., 91 NLRB 544, 545 , enfd. 18'8
F. 2d 362 (C.A. 3). Such a conclusion is not warranted here
3 In the absence of a specific exception , we adopt pro forma the Trial Examiner's
recommended remedy as it relates to backpay for discriminatees Strawn and Glass.
f In view of the fact that Florida has enacted a so-called right-to-work law, we hereby
amend the Recommended Order and notice of the Trial Examiner 's Decision by deleting
the references therein to union-security agreements.
r, The Board includes as part of its order the Armed Forces provision now appearing
in the notice to all employees attached to the Trial Examiner ' s Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This consolidated proceeding , with all the parties represented , was heard before
Trial Examiner Paul Bisgyer on October 28 through 31, 1963 , inclusive , in Gainesville,
Florida, on the amended complaint of the General Counsel,' and the answer of the
'The charge in Case No . 12-CA-2680-1 was filed on July 8, 1963, by Robert Lamar
Lee and a copy was served on the Respondent on July 13. The charge in Case No.
12-CA-2680-2 was filed on July 12 by Dorus E. Norwood and a copy was served on the
Respondent on July 13. The original and amended charges in Case No . 12-CA-2680-3
were filed by the Union on July 31 and August 26, respectively , and copies were served
on the Respondent on August 1 and 26, respectively . The charge in Case No.
12-CA-2737-1 was filed on September 11 by Rosemary L. Hertel and a copy was served on
the Respondent on September 12. The charge in Case No . 12-CA-2737-2 was filed on
September 13 by William C. Strawn and a copy was served on the Respondent on Sep-
tember 16. The charge in Case No. 12-CA-2737-3 was filed on September 16 by the
Union and a copy was served on the Respondent on September 17. The charge in Case
No. 12-CA-2738-4 was filed on September 19 by Richard P. Arnold and a copy was
served on the Respondent on September 20. The charge in Case No . 12-CA-2737-5 was
filed on September 27 by Preston E. Dennington and a copy was served on the Respondent
on or about September 30. Finally, the charge in Case No . 12-CA-2737-6 was filed
October 29 by Raymond A. Glass and a copy was served on the Respondent on October 30.
At the hearing I granted the General Counsel 's motion to consolidate the Glass charge
with the instant proceeding and to amend the complaint to include an additional sub-
paragraph designated "f" in paragraph 7 of the complaint , alleging that "On or about
September 20, 1963, Respondent constructively discharged its employee , Raymond A . Glass,"
in violation of Section 8(a) (3) and ( 1) of the National Labor Relations Act, as amended.
Motion to amend the caption of the complaint to reflect the consolidation was also granted.
I also deny at this time the ill -considered motion of the attorney for the General Counsel
made in its brief submitted after the close of the hearing, requesting summary judgment on
the allegations of the amended complaint relating to discrimination against Glass. How-
ever, as later discussed , I find the violation based on the evidence produced at the hearing.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent , Gainesville Publishing Company, a Division of Cowles Magazines and
Broadcasting , Inc. The issues litigated were whether the Respondent discriminatorily
discharged six employees in violation of Section 8(a) (3) of the National Labor Rela-
tions Act, as amended , and by this and other conduct interfered with, restrained, and
coerced employees in the exercise of their statutory rights in violation of Section
8 (a)( 1 ) of the Act. At the close of the hearing the parties waived oral argument.
Thereafter, the General Counsel, the Respondent, and the Union filed briefs which
have been carefully considered.
Upon the entire record,2 and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, and a wholly owned subsidiary of Cowles
Magazines and Broadcasting, Inc., has its office and place of business in Gainesville,
Florida, where it publishes The Gainesville Sun, a daily newspaper. During the 12
months preceding the issuance of the complaint herein, the Respondent derived gross
revenue from its publishing operations in excess of $500,000. During the same period
it received materials valued in excess of $50,000, which were shipped to its Florida
plant directly from points outside that State. In the course and conduct of its opera-
tions, the Respondent subscribes to interstate newswire services.
I find that the Respondent is, and has been at all material times, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act and meets the Board's
standards for the assertion of jurisdiction in the newspaper industry.
II. THE LABOR ORGANIZATIONS INVOLVED
It is clear that International Typographical Union, AFL-CIO, and its chartered
local, Gainesville Typographical Union, No. 911, both organizations hereinafter inter-
changeably called the Union, exist for the purpose of dealing with employers concern-
ing wages, rates of pay, hours, and other conditions of employment. Accordingly, I
find that they are labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence
The Respondent is charged with pursuing an unlawful course of conduct designed
to undermine and frustrate the Union's efforts to organize the Respondent's compos-
ing room employees. Alleged in the amended complaint are numerous acts of inter-
ference, restraint, and coercion of employees, the discriminatory discharge of
employees Robert Lamar Lee, Richard P. Arnold, Rosemary L. Hertel, and Preston
E. Dennington, the involuntary termination of employees William C. Strawn and
Raymond A. Glass, and the reduction in the rate of pay of Ad Alley Foreman Dorus
E. Norwood and his subsequent demotion to a rank-and-file employee for refusing to
cooperate in the Respondent's unfair labor practices. Although there are serious
conflicts in testimony respecting certain critical matters, there is much in-the record
which is uncontradicted. In ,resolving such conflicting testimony and making the
2 After the close of the hearing the General Counsel moved to correct a number of
errors in the transcript of testimony. The Respondent filed a response, disagreeing In
only two respects. The Respondent asserts that the word "directly" on page 92, line '14,
was, correctly recorded. I find contrariwise that the correct word should be "directory"
and 'was Intended to describe the work of a particular printing shop In which the Respond-
ent had offered Lee employment (see transcript page 71, line 11). As for the other alleged
error on page 320B, line 22, I deny the General Counsel's request to change "him" to
"them" since It Is possible that the witness himself made the grammatical error. In all
other respects, I grant his motion. I also grant the Respondent's proposed corrections on
page 128, lines 18 and 19, to substitute the word "called" for "caused." Finally, the
Trial Examiner, on his own motion, orders the following corrections to be made in the
record: On page 20, lines 7 and 8, "into evidence" Instead of "in that event"; on page 20,
line 14, "his" instead of "its" ; on page 29, line 15, "or" instead of "for" ; on page 63,
line 24, "reverse side" for "copy" ; on page 316, line 13, "did" Instead of "do" ; on page 316,
line 16, delete "not"; page 649, line 23, should read "In your brief you might point
out" ; on the same page, line 24, delete "proceed"; on page 700, line 20, Insert "A. No.";
and on page 830, line 6, delete "suspicious" and substitute "not getting."
GAINESVILLE PUBLISHING COMPANY, ETC. 605
factual findings below, I have carefully considered the pattern of conduct and sequence
of events unfolded in the entire record, the proper relation of the attested facts to
each other, their inherent probability or improbability, the witness' candor or lack of
it, his interest in the case, and his demeanor on the witness stand.
1. Supervisory structure
As indicated above, the Respondent publishes The Gainesville Sun. John R. Har-
rison is its president and publisher. In charge of the composing room and pressroom
is Mechanical Superintendent and Production Director John C. Ward, Jr., also known
to the employees as Sam Ward. Under him are Foreman James Stafford Caldwell,
who supervises the entire composing room, and Foreman Clyde W. Reynolds, who
supervises the pressroom. At the time of the hearing, there were approximately 32
employees in the composing room who were the only employees the Union was
attempting to organize. Until his demotion and replacement by Ralph A. Swartz in
July 1963, Dorus E. Norwood was ad alley foreman serving under Caldwell. It was
stipulated that all the named individuals possessed authority which I find made them
supervisors within the meaning of the Act.
2. Advent of the Union; the Respondent's reaction
In March or April 1963 3 employee Lee became interested in a union to represent
the Respondent's composing room employees .4 Since Ad Alley Foreman Norwood
had been a longstanding member of International Typographical Union, AFL-CIO,
Lee requested him to arrange with a union representative to communicate with Lee
about organizing the employees. Norwood did this and Russell Waterson, an Inter-
national representative, telephoned Lee and advised him to schedule an employee
meeting at the Carpenters Labor Hall for Friday evening, April 19, which he and
another representative planned to attend. Lee, thereupon, made the necessary prep-
arations for the meeting and passed the word around among the employees. How-
ever, the meeting was later deferred to an undetermined future date because of the
inability of any union representative'to be present.
The employees' interest in a union and the scheduled meeting on April 19 did not
go unnoticed by the Respondent. In the early part of the week of the'§cheduled meet-
ing, Publisher Harrison asked Foreman Norwood whether he was going to attend it.
Norwood replied that since he was a member he intended to be there, if a meeting
was held. Harrison thereupon stated that he expected Norwood to bring information
acquired at the meeting to Mechanical Superintendent Ward, adding that he was not
going to have any union in his plant. After this conversation, Norwood complained
to Ward about Harrison's request and expressed his inclination not to comply with it.
Although Ward indicated that he did not expect him to violate his union obligation
of secrecy, volunteered that he (Ward) had other means of securing this information .5
About the same time employee Strawn overhead Harrison direct Ward to find out
who was responsible for this "uprising, or something to this effect" and "he'd fire him
on the spot." 6
On another occasion before the scheduled April 19 meeting, Ward asked Charney
J. Thomas, an apprentice machinist, whether he had heard that a union meeting was
going to be held. When Thomas stated that he had heard such rumors, Ward inquired
whether he planned to attend. Thomas answered that he was not certain. Ward
8 Unless otherwise specified hereafter, all dates refer to 1963.
4 It is not particularly necessary to resolve the conflicting testimony of Lee and Fore-
man Caldwell as to whether Caldwell, dissatisfied with working conditions at the plant,
actually instigated Lee's organizational efforts.
r The foregoing findings are based on the credited testimony of Norwood, whose union
membership was concededly known to Publisher Harrison since at least November 1962.
Harrison, who at one point in his testimony admitted he had heard some rumors or
"talk" about a union meeting but later recanted, denied having had the above conversa-
tion. Ward, on the other hand, did not contradict Norwood's testimony concerning their
discussion. -
9 Strawn credibly testified to this incident. Although Harrison and Ward contradicted
this testimony, I find, on the basis of the entire record showing an unrelenting hostility
to the Union on the Respondent's part and a determination to forestall the unionization
of its employees, that Strawn's testimony was not a figment of his imagination.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then told Thomas that he could go, that, as far as he knew, it was a good union, and
that Thomas probably could get a "card." However, Ward added, he did not think
that it would do Thomas any good because the Union would never get a contract .7
After April 16, Joday L. Browning, Jr., who was then a linotype machine operator,
overheard the Union mentioned in a conversation between Harrison and Ward in the
composing room. After Harrison's departure, Browning asked Ward whether Har-
rison indicated that employees could sign up with the Union. Ward replied that
Browning heard as well as he did what Harrison said but Browning denied it. Later
in the day, Browning had an hour-long discussion with Ward concerning employee
grievances and the reason for employees' interest in "outside representation." Ward
stated that Harrison saw no need for "outside representation" and that Harrison's door
was always open and Harrison was always available to talk to employees singly or in
groups. During this conversation Ward expressed the view that "things could get
rough on us around there," explaining that "when they had union [sic] in this shop
that most of them just got the union in here and they got traveller cards and left."
The next morning Browning and Ward continued their discussion of employee griev-
ances during the course of which Ward informed Browning that he had spoken to a
number of employees at their homes or in the shop and that he concluded that,
although some of them had legitimate gripes, most of them did not.8
On April 30, Harrison assembled the composing room employees and openly
proclaimed his inflexible opposition to the Union. Reading from a prepared text,
Harrison stated that the employees' "best interests ... are served without any outside
representation, unions of any kind." Instead, he proposed regular monthly produc-
tion meetings between the Company and rotating groups of employees 9 and a pro-
cedure for the presentation of employee problems and complaints to the Company.
Returning to the question of unions, Harrison expressed his and the Respondent's
position in no uncertain terms, although stating that he believed that most of the
employees already knew "how strongly" he felt on this subject. He then pointed out
that the "company will oppose with all determination any efforts on the part of a
union to come into the plant." Among other things, Harrison alluded to the financial
burdens of union membership; the duty of members to support a strike called by a
union, even though they might not desire it; the loss of earnings by strikers while
salaries of union officials generally continued during strikes; the obligation of union
members to serve on picket lines maintained against other companies; the provisions
in some union contracts which restrict employees' opportunity to advance on merit
and unions' opposition to overtime. Conspicuously absent from Harrison's speech
was any assurance that employees had the right to join any labor organization,
although he stressed the fact that "Union and closed shops are illegal in Florida. No
man at any time has to join a union. This is the Florida right-to-work law."
In addition to reading the text of his speech, Harrison commented on the fringe
benefits employees were enjoying and referred to improved hospitalization benefits
and a new pension plan that were then under consideration. In answer to a question
from Walter J. Gilford, a linotype operator, as to the prospects of a wage increase,
Harrison stated that, if business continued to do as well as it was doing, he believed
a pay raise in September or October would be forthcoming.ro
Employee Lee, who was off from work the day Harrison addressed the employees,
did not attend that meeting. The next day, however, Harrison briefly acquainted him
with the substance of his remarks to the employees. It seems that during the course
of the conversation Harrison stated that he heard that Lee did not have a union card.
Lee replied that he seriously doubted whether he could get one because, to his regret,
he had once crossed a picket line at a plant to which the prior owner of The Gaines-
ville Sun had sent him to work.
3. The intervening lull in union activity; its resurgence
It was not long after Publisher Harrison's speech that union activities and interest
subsided. However, in the early part of June International Representative William M.
Mitchell came to Gainesville and launched the Union's organizational drive among
7 These findings are based on Thomas ' undenied testimony. Thomas had joined `the
Union but left in August. On notifying Publisher Harrison of his decision, Harrison
remarked that he was proud to hear it.
$ This is based on the undisputed testimony of Browning who, at the time of the hearing,
had been promoted to night foreman of the composing room.
9 Such meetings were thereafter held but were discontinued after a few months.
10 As no employee corroborated the testimony of employee Naida J. Brown that Harrison
also warned employees at this meeting that they would be subject to discharge if they
engaged in union activities , I do not credit her testimony in this respect.
GAINESVILLE PUBLISHING COMPANY, ETC. 607
the composing room employees. Mitchell gave Lee a book of journeymen member-
ship applications, one of apprentice membership applications, and a few applications
for affiliated trades. Thereupon, Lee began soliciting employees to join the Union.
By June 23, he succeeded in signing up some 12 or 14 employees. During this time
interest in the Union revived and became a frequent subject of discussion among
employees both in and out of the plant.
At the invitation of employee Rosemary L. Hertel, Lee and four other employees
came to her home on Sunday, June 23, to consider whether or not to join the Union.
After much discussion, all signed membership applications and paid the required reg-
istration fee. According to Night Foreman Browning's uncontradicted testimony,
Mechanical Superintendent Ward and Foreman Caldwell told him, when he was still
a rank-and-file employee, that they were aware of the meeting at•Hertel's home and
the names of the employees who had joined the Union and that the wife of one of
these employees had given this information to Harrison 11
4. Events following the June 23 meeting at Hertel's home
On Wednesday afternoon, June 26, Ward left the plant to go on vacation. That
evening, while Ward was visiting Caldwell at his home, Publisher Harrison telephoned
there and asked them whether they had heard anything about union activities in the
composing room. After Ward and Caldwell indicated that they had not, Harrison
stated that he learned that several employees had filled out membership applications,
that an organizational meeting was planned for the following Sunday (June 30), and
that he wondered why he could secure this information before they did.12
Thereupon, that same night, Ward telephoned the plant and questioned employee
Browning whether he knew anything about the Union. Browning answered that he
had heard rumors in the afternoon that there was going to be a union meeting and
Ward thanked him and hung up. The next morning (Thursday, June 27), Caldwell,
evidently with a sense of urgency, visited Browning's home. Browning, who had
worked the night shift, was asleep and had to be awakened. They then talked about
employee grievances and the reason for employee interest in outside representation.
Caldwell also asked Browning whether it was true, as he had learned, that a union
meeting was scheduled to be held. Although Browning stated that he was not sure,
he suggested that it might all be a joke. To this suggestion Caldwell responded that,
if it were a joke, it would be a serious one. Caldwell then left Browning's home but
returned 30 or 40 minutes later with Ward. The discussion that ensued was substan-
tially of the same tenor as Caldwell's earlier conversation with Browning. Either
Ward or Caldwell on this later occasion remarked that, if the information concerning
a union meeting were a joke, they wanted to quiet it down because they feared that
many people might get hurt. Ward, moreover, estimated that only eight employees
might actually be interested in the Union. On another occasion, about the time of
the above conversations, Ward also told Browning that Harrison would not sign a
contract with the Union.
Like Browning, employee Lee received a telephone call from Ward on Wednesday
evening, June 26. Ward, obviously annoyed, told Lee that "somebody down there ...
[was] trying to sabotage" him (Ward), that "there's going to be a damn union meeting
down there," and that he (Ward) was unable to take his vacation because Publisher
Harrison had called him back until this was over. Ward then questioned Lee as to
whether he knew anything about this meeting. In response to Lee's denial, Ward
asserted that three or four persons had informed him to the contrary. Apprehensive
over this turn of events, Lee communicated with International Representative Water-
son, seeking his assistance. The next day, June 27, International Representative
Mitchell telephoned Lee and advised him to schedule a meeting of all membership
applicants for Sunday, June 30. This was done with notice being passed on by word
of mouth among the employees.
On Wednesday night, June 26, Foreman Norwood returned a telephone call which
Caldwell had made to his home while he was out. Here, too, Caldwell inquired of
Norwood whether he knew anything about the resurgence of union activity. Nor-
wood stated that he did not. Caldwell then told Norwood that the wife of one of a
group of men who had applied for membership telephoned Harrison and apprised him
of the situation and expressed fear that her husband would get into trouble.
n Browning was not certain whether it was on June 28 when Ward and Caldwell had
informed him of their knowledge of the Hertel meeting because he had talked to them
"frequently from . . . the first day that all this started right on through."
12This finding is based on the uncontradicted testimony of James A. Sparks, a former
employee, that Caldwell had revealed the above information to him. Harrison did not
deny making the telephone call.
775-692-65-vol. 150-40
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Thursday, June 27, the Respondent sent to its composing room employees a
communication prepared and signed by Publisher Harrison. At the top and bottom
of this document was the legend "THINK OF YOUR FUTURE DON'T SIGN A
UNION CARD." In it, the Respondent among other things, praised the loyalty and
excellent performance of its employees which it regarded as its "most valuable asset";
referred to the various benefits the Company provided employees and the "squarer
deal" they could get from the "present management than from some union organizer";
urged them not to "be misled by strangers or union organizers who have selfish
motives"; pointed out that if they were called out on strike, they would have to be
replaced as were the employees during the Miami Herald strike; and asserted that
employees did not have to pay union dues to be on the Company's "team." The docu-
ment also stated that the Company was happy to discuss any problem with the
employees and queried them whether they did not think that they could represent
themselves "better than any outsider."
In the morning of the same day Harrison spoke to Foreman Norwood in the com-
posing room and asked him if employee Walter Gilford 13 had recently obtained a
union card. Norwood replied that he did not know. Angered by this reply, Harrison
walked away but Norwood followed him and explained that the reason for his lack
of knowledge was due to the fact that union representatives excluded him from these
matters. At this point, Harrison said "he had handled this before easy but now he
was going to handle it a different way." Later in the afternoon at the plant Caldwell
remarked to Norwood that the employees had "better go on through with it [appar-
ently meaning the union]-somebody's going to get hurt because too many people
had been fingered." 14
On Friday, June 28, Foreman Caldwell returned to work from his vacation. About
7 a.m., before Lee started working, Caldwell ushered him aside. After hesitating a
while, Caldwell prefaced the conversation with the statement that, if their friendship
survived that day, it would last for many years. He then advised Lee that, effective
immediately, his offday was changed to Friday; that on Saturdays he would work the
night shift and not on the dayside as he had been doing for many years; and that
he would no longer operate model 35 machine, which had previously been his regular
assignment, but he would run any available machine. No explanation for this change
was apparently given to Lee and Lee only asked whether this was a temporary or
permanent arrangement. Caldwell's reply was for Lee to speak to Ward. Although
Friday would normally be Lee's offday under the new schedule, Caldwell told Lee
that he could remain and was assigned a machine other than his regular one.
At night, Lee telephoned Mechanical Superintendent Ward to ascertain whether the
changes were permanent or temporary. Ward stated that it was permanent, stressing
that thenceforth seniority no longer counted. Ward further served notice on Lee that
he had three or four reliable informants who identified Lee as the man with the
applications and who accepted the initiation fees and knew all about the Union and
that Lee could just as well get another job. Lee answered that, when Ward returned
from his vacation and straightened matters up, he would leave when Ward told him
to. Lee also reminded Ward that he had a week's vacation still coming to him, and
Ward replied that he would see that he got it.15
That Friday Caldwell also informed employee Walter J. Gilford that he was assigned
to Lee's regular work schedule and machine, and accordingly would thereafter work
on the day shift Saturday instead of at night, as he had been doing.16 Because of
personal inconvenience resulting from the schedule changes Gilford spoke to Ward
at the latter's home in the evening and asked to be reassigned to his former schedule.
11 Gilford was one of the employees who attended the meeting at Hertel's home on
June 23 and signed a membership application.
14 These findings are based on the credited testimony of Norwood who impressed me as
a truthful witness. Although Harrison and Caldwell denied the statements attributed to
them, I find Norwood's testimony more probable and in accord with the facts as revealed
in the Respondent's total conduct.
15 The above findings are based on Lee's credited testimony which is consistent with,
and fits into, the Respondent's program to get rid of union adherents, particularly the
leader in the union drive. Caldwell did not contradict Lee's version of their conversa-
tion, although Ward denied Lee's testimony that Ward referred to three or four informants
and told Lee that he could just as well get another job. Lee impressed me as a trust-
worthy and reliable witness and not one disposed to fabricate testimony.
16 Gilford testified that it was his understanding that the preferred early Saturday shift
was assigned to employees with greater seniority and that the newer employees worked
the Saturday night shift.
GAINESVILLE PUBLISHING COMPANY. ETC. 609
Ward indicated that he thought it could be done and at one point in their conversation
observed that the schedule change "was just the beginning of the show and there
would be lots more rescheduling." Thereafter, Gilford brought up the subject of
the Union. Ward warned Gilford that if the Union came into the plant, he would
not work with it but "would run it out." 17
On the same day (June 28), Foreman Norwood suffered a reduction in his rate of
pay and earnings when the Respondent discontinued his 13 percent supervisory "over-
ride," which represented the amount of money paid to him in excess of the regular
journeyman's rate. Since 1953, Norwood had been receiving "overrides" in varying
amounts. About noon of that day, Norwood, who was off from work, came to the
plant to collect his weekly paycheck. Caldwell, his immediate superior, summoned
him aside and stated that he was going to tell him the same thing he told Lee, that
"if our friendship will ... continue after I get through telling you this, it will be
very good." Caldwell then informed Norwood that his "override" was being taken
away, without affecting his supervisory status, "until [he] ... had proven" himself. In
reply to Norwood's question as to how he could prove himself, Caldwell answered
that he did not know. After Norwood repeated his question, Caldwell said "the only
thing he knew what to do was to take the bull right by the horns."
Following this conversation, Norwood went to Publisher Harrison's office to discuss
his lost "override." At first, Harrison stated he was barred by the National Labor
Relations Board from discussing money matters with him because the Union was
involved. He, nevertheless, answered Norwood's inquiry whether it was his work
that caused the loss of the "override" by saying that "he thought it was something I
did to" Caldwell. Norwood, thereupon, returned to the composing room where he
again asked Caldwell for the reason he lost his "override." Caldwell admitted that
"he couldn't think of anything" but soon retracted this remark and said that he knew.
Referring to the fact that he (Caldwell) had undertaken to assign overtime the day
before, Caldwell stated that he had informed Ward about it and Ward in turn, "got
mad" because it was Norwood's responsibility and that "that might be it." Later in
the day Norwood, still shaken up by these events, spoke to Caldwell again and
charged that it must have been the Union that caused the discontinuance of the over-
ride. After hesitating a moment, Caldwell said, "I won't say it now, but you have
said it three times." 18
Other relevant incidents also occurred on Friday. In the morning Publisher Har-
rison and Pat Cowles approached Arnold, a new employee, and introduced them-
selves. Harrison then stated that he understood that Arnold had a union card.
Arnold admitted it and Harrison said that it was all right for him to have one. How-
ever, Harrison admonished Arnold that he was not to talk to any employee at any
time about the Union. In response, Arnold disavowed any intention of "cornering"
employees in the shop or begging or pleading with them to join the Union but asserted
that he would support a union vote, if it came to one, and would attend a union
meeting. At some point in the conversation Harrison also vaguely referred to some-
thing that was thrown up in his face and that he did not know what he was going to
do about it. The conversation closed with Harrison's departing remark that he was
glad to have Arnold with the firm.19
Also that Friday morning Machinist Dennington engaged Ward in a conversation
when Ward, who was on vacation, entered the composing room. Commenting that
Ward had a "mighty short vacation," Ward replied that Harrison had called him back
because of some union business. Ward then mentioned that there was a union meet-
ing scheduled for the coming Sunday (June 30) and Dennington volunteered that on
that day he planned on being with his wife who was in a hospital in Lake City. Ward
17 These findings are based on Gilford's credited testimony. Ward's denial that he told
Gilford he would run the Union out is not persuasive in view, among other things, of
his antiunlon attitude demonstrated in the many incidents attested to by other witnesses.
>e The above findings are based on 'Norwood's credited testimony. Caldwell denied
that he agreed with Norwood's charge that the Union was the reason his "override" was
taken away. On the contrary, Caldwell testified, he told Norwood that the reason for
the Respondent's action was Norwood's failure to supervise "by calling the shots."
Harrison also testified that he advised Norwood that Norwood knew perfectly well that
the "override" was taken away because he was not assuming the responsibility of an ad
alley supervisor. As will hereinafter be more fully discussed, I find Norwood's recital of
this episode more convincing than Caldwell's and Harrison's.
19 Harrison denied that he ever told Arnold he was not to talk to any employees at any
time about the Union but admitted telling Arnold it was all right for him to have a union
card. However, Harrison did not relate the actual conversation that took place. As will
appear later in this Decision concerning his discharge , I find Arnold a credible witness.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that it was the best thing to do. During the course of this conversation, Ward
also asserted that he would not "fight to keep the Union out" nor "help it in," but that
he would not be a foreman of a union shop.
5. The June 30 and July 7 union meetings; the Union's request for recognition
On Sunday morning, June 30, Lee delivered the membership application and initia-
tion fees which he had collected to International Representative Mitchell. In the after-
noon the meeting, for which Lee had made the necessary arrangements, was held.
About 12 to 14 composing room employees attended. Mitchell addressed the assem-
blage and complimented Lee on the excellent organizational job he was doing. At this
meeting, the applicants assumed their membership obligations and signed cards author-
izing the Union to represent them in bargaining negotiations with the Respondent.
On July 6, Mitchell and Nickalas DiPietro, another union representative, visited
Publisher Harrison at his office, requested recognition, and offered to prove the Union's
majority status. Harrison referred them to the Respondent's attorney whose name
he furnished. The union representatives, however, made no effort to communicate
with the attorney. Instead, as will be later discussed, the Union filed a representation
petition.
The next day (July 7), another union meeting was convened at which the local
received a charter from the International. An election of officers was then held and
Benjamin Franklin Midgette was elected president, Joday L. Browning, Jr., vice presi-
dent, Rosemary Hertel, secretary-treasurer, and Donald Reynolds, sergeant-at-arms.
6. Changes in employees' work schedules
On or about July 3 the Respondent posted new work schedules, effective July 12,
affecting a number of composing room employees. Hertel, a proofreader and union
supporter, who for years had worked the day shift on Saturday, was assigned to the
Saturday night shift previously worked by Mary J. Dampier, another proofreader
junior in service. Dampier, who did not favor the Union, replaced Hertel on the
dayside. Hertel's day off, which-she had had for "quite a while," was also changed,
although Hertel conceded that off days "change different times."
As soon as Hertel saw the posted notice she asked Ward why her work schedule
was being changed. Ward explained that it was for "production purposes." 20 Hertel
voiced her doubts because of the great amount of proofreading customarily done Satur-
day morning as compared with that done at night, asserting that she thought the reason
was the Union. Ward denied this. A few minutes later Hertel approached Caldwell
and asked the same question she had previously put to Ward. Caldwell also gave
"production purposes" as the reason. Hertel disagreed and charged that it was the
Union, and added that she was not a member. To the latter remark, Caldwell retorted,
"Well, what about the meeting at your house Sunday?" evidently alluding to the
June 23 meeting in her home when she and other employees had signed membership
applications and paid their initiation fees. Hertel replied that she did not consider
that gathering a meeting and that she had simply invited those employees to her
home.21
There is also testimony that the Saturday assignments of at least three other senior
employees in the composing room who were members of the Union were changed
from the dayside to the nightside-Percy Green, Jack Wilson, and Norwood.22 The
Respondent did not offer any evidence, undoubtedly in its possession, to controvert
this testimony or to show that nonmembers were also rescheduled from daywork to
nightwork on Saturday. in addition, it is undisputed that theretofor€ seniority virtu-
ally governed Saturday work assignments.
7. Adoption of written unsatisfactory work reports
A short time after the Union requested recognition the Respondent instituted a
system of written unsatisfactory reports assertedly to document poor work perform-
ance to replace the prior practice of giving verbal warnings or reprimands. Although
20 Ward testified that schedule changes were made to achieve maximum efficiency and
in furtherance of this end, Harrison had instructed him to disregard seniority. He denied
that the changes were prompted by antiunion considerations. As shown later, I do not
believe the Respondent's asserted reasons.
21 The foregoing findings are based on Hertel's credited testimony . I find Caldwell's
denial that he ever referred to the meeting in Hertel's house not worthy of belief.
22 Arnold, a new employee and union member, temporarily benefited from the schedule
changes.
GAINESVILLE PUBLISHING COMPANY, ETC. 611
Harrison testified that the use of written reports was designed to improve efficiency
and production, he admitted that the purpose was "to document the unsatisfactory
work and warnings of our employees in case we had to prove our reasons at later
dates." He further testified that such documentation was necessary because he had
"heard union rumors." Harrison also conceded that the production problems he
encountered were of a sporadic nature.
There is evidence in the record that these written reports were issued to at least
four union members, Norwood, Dennington, Naida J. Brown, and Robert Jernigan.
On the other hand, no evidence was adduced as to whether written reports were also
issued to nonunion employees, whether the new practice was extended to other depart-
ments, or the reason why they were not.
8. Other efforts by the Respondent to discourage union membership
On July 5, at a party given by Russell Cowles, a relative of several company offi-
cials, a group of persons, which included Foreman Reynolds, composing room employ-
ees Ferrell Taylor and Wilbur Thomas, and a former employee, Elbert J. Hoover,
discussed the Union among themselves. In the course of the discussion, Reynolds
stated that he had attended an "antiunion meeting" of department heads and Publisher
Harrison in the latter's office. Reynolds then made the prophetic comment "that
Rosemary [Hertel] had better watch out because ... she was the next on the list to
go-to be fired." 23
On July 16 Naida J. Brown, a teletype setter, returned to work after a vacation
that began June 28. The next day, while at work, Mechanical Superintendent Ward
asked her whether she knew what was going on during her absence. When she replied
that she was aware that the Union was being discussed, Ward said that "some of
them want to get the Union in and ... I can tell you right now that Mr. Harrison
is not going to sign the contract and there are going to be a lot of people hurt and ...
if you want to know any particulars about it asked Mrs. Dampier or Mrs. Lovett and
they will bring you up to date." Brown did not pursue the suggestion.24
A few days later Foreman Caldwell spoke to Brown about the Union. Caldwell
expressed the hope that she did not become too involved with the Union, noting that
the Company had been very good to her. Although Brown agreed that the Company
had been good to her, she nevertheless, on July 25, signed a union authorization card
in Lee's home. On August 2, a day after Brown spoke to employee Midgette, the
Union's president, in the Company's parking lot, Caldwell came to her machine and
said, "I see that you have decided to go along with the Union." Brown replied that
she tried to keep an open mind about "the whole thing" and Caldwell walked away.25
In August Caldwell also asked Machinist Dennington on "which side of the fence"
he was, asserting that the time had arrived for him to take a definite position. In
response, Dennington stated that Caldwell knew that in some of his previous jobs he
was required to have a union card as a condition of employment and that he intended
"going along with the union." On another occasion in August, Caldwell inquired of
Dennington whether he would consider giving up the Union to bold his job. Denning-
ton answered by asking Caldwell what his reply would be if Ward put the same
question to him. Caldwell stated that he would relinquish his union card, if he had
one, because of his feelings toward Ward and the newspaper.26
9. The Union files a representation petition; subsequent events
On July 31 the Union filed a representation petition with the Board (Case No.
12-RC-1767), seeking an election in a unit of composing room employees. On or
23 The above finding is based on the reliable testimony of Elbert J. Hoover , a disinter-
ested witness , whose account is consistent with Hertel's subsequent discharge which is here-
inafter discussed . Reynolds ' denial of the remarks attributed to him was not convincing.
u The above recital is based on Brown's testimony. Ward only denied that he said that
a lot of people were going to be hurt . Although I have heretofore found that Brown mis-
interpreted some of Publisher Harrison's remarks when Harrison addressed the employees
on April 30, I find her testimony concerning this conversation with Ward worthy of belief.
`5 These findings are based on Brown's undisputed testimony. Two hours later, after
Caldwell left Brown, Ward handed her an unsatisfactory work report relating to certain
poor work she performed . No contention is made that Brown was thereby reprimanded
for discriminatory reasons.
?I I credit Dennington 's testimony on which the above findings are based over Caldwell's
denial that he ever made the statements attributed to him. 'I find that Caldwell's
remarks to Dennington were consistent with his other antiunion conduct.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about August 7, the Respondent issued a bulletin on its letterhead over Publisher
Harrison 's signature entitled "NOTICE TO ALL-COMPOSING ROOM EMPLOY-
EES." In it, the Respondent referred to the representation petition filed by the
Union and advised the employees that a hearing had been set for August 20.. The
employees were also told that the Company had insisted that the employees be given
the opportunity to cast their ballot at a secret election and warned them not to be
tricked by the Union into believing that a large number of the employees were sup-
porting the Union unless the Union revealed their names so that they could verify
it. The statement went on to say:
You should clearly understand something more. The Union organizers who
are trying to brain wash you are not your friends. They did not get the job for
you nor have they paid your wages. None of the many valuable benefits which
you have were obtained for you by these union outsiders. They are professional
men who are paid big salaries to drag you into a union which is out to collect
tens of thousands of dollars from you in dues, fines, penalties and assessments.
Let me say in the clearest possible way: THIS UNION CAN NEVER FORCE
ANY EMPLOYEE TO SIGN UP WITH IT. . YOU WILL NOT BE
FORCED TO JOIN ANY UNION IN ORDER TO KEEP YOUR JOB WITH
THIS NEWSPAPER. The union organizers have been engaged in a lot of cloak
and dagger tactics. It would seem that the union has indeed got to deal in
secret, because only by trying to hide the false and misleading statements which
they make to our men, and the harassing tactics which they use, can they hope
to induce our employees to sign cards.
These are not the ways of democracy, AND WE HAVE NO INTENTION
OF LETTING THIS UNION GET AWAY WITH IT. We will see that you
get the truth, and, for your sake as well as your families, YOU MUST INSIST
upon getting the truth. You can be sure of getting the facts if you will tell us
what claims and statements are made to you by the union, in order to give us
the chance to show you what the union is hiding from you.
On August 20 a hearing was held on the Union's representation petition. Under
the same date, the Respondent issued another bulletin addressed to the production
department and signed by Gardner Cowles, chairman of the Respondent's board,
which announced that a hearing was being held before the National Labor Relations
Board. This document stated that the Respondent had declined to recognize the
Union and had insisted on a hearing which was "only the first step in a long legal
process." The document further expressed doubt that the Union had even requested
recognition in a "legally proper bargaining unit ... [which is] a matter the Board and
the courts will ultimately have to determine and it could take several years." The
document also disavowed rumors being circulated by the Union that the Respondent
intended to recognize it without a secret NLRB election. Finally, the bulletin closed
with these observations:
Personally I cannot see how the Union can offer you more than the Company's
previously announced plans. It's easy to make promises when you have no
responsibility to fulfill them.
The Gainesville Sun intends to remain competitive in an area and in a State
which is largely non-union. You can rest assured that we will see that all legal
steps are taken to protect your rights and ours. Don't rely on rumors and false
promises. Get the facts and think for yourself.
On September 4 the Regional Director issued his Decision and Direction of Elec-
tion following which he scheduled the election for October 4. Thereafter, the
Respondent issued a bulletin to the composing room employees announcing the date
of the election which was to be conducted by secret ballot. It noted that:
If you vote NO against the union, this will settle the matter at once. If the
union wins the election, then the company, unless it decides to go to court to
test the bargaining unit, will begin collective bargaining with the union. This
collective bargaining could go on for some time before anything is settled.
The decision you make October 4th will be one of the most important ones
you have ever been asked to make. Think before you vote.
About a week before the date of the election, it was canceled. The Respondent,
thereupon, gave the composing room employees written notification of the cancella-
tion. It accused the Union of trying to deprive the employees of their right to vote,
because it "realizes they couldn 't hoodwink" them. It also praised the employees for
their "good work and loyalty" which made possible the "terrific gains" the Company
had made in the short period of time it owned the newspaper.
GAINESVILLE PUBLISHING COMPANY, ETC. 613
Almost immediately after learning that the election was canceled, the Respondent
granted the composing room employees a wage increase. The following announce-
ment was posted:
While the election campaign was in process in the composing room, we were
prohibited by law from making our planned pay increases. As you know the
NLRB election scheduled for next Thursday has been cancelled, therefore we
are making these increases effective immediately with this week's pay check.
Harrison testified that he granted the wage increase, as he had previously said he
would in answer to employee Gilford's question on April 30 when Harrison addressed
the employees, because business was good and warranted it. He also testified that
he did not take similar action with respect to improved hospitalization benefits and
inaugurating a pension plan, although he favored the idea, because he "wanted to
wait until this whole N.L.R.B. hearing election postponement and all this was out
of the way." On cross-examination, Harrison explained that the reason he granted
the wage increase and not the new hospitalization and pension benefits was that he
thought the wage increase "was deserved."
10. Discontinuance of Foreman Norwood's "override" and his demotion
Norwood has been in the Respondent's employ for 15 years, serving as ad alley
foreman from 1957 27 until his demotion to a nonsupervisory position in July 1963.
As a supervisor, he also regularly performed production work. He was a member of
the International Typographical Union, which the Respondent admittedly learned
shortly after it purchased The Gainesville Sun.
As already discussed, Norwood had enjoyed an "override" above the regular
journeyman's pay by reason of his supervisory functions since 1953 before it was
summarily taken away on June 28, 1963. On the latter date the "override" amounted
to •13 percent. I have found that on June 28, after some prodding by Norwood and
receiving ambiguous and devious answers from Foreman Caldwell and Publisher Har-
rison, Caldwell advised Norwood that the override was withdrawn because he failed
to "call the shots" 28 in not assigning overtime to employees the previous day.
The facts concerning this event are these: On Wednesday afternoon, June 26,
Mechanical Superintendent Ward went on vacation. Before doing so, Ward put
Norwood in complete charge of the composing room with authority to call overtime
if necessary until Caldwell returned from his vacation 2 days later. On Thursday,
June 27, Richard P. Arnold, who had previously been interviewed by Caldwell for a
job,, telephoned Caldwell before he was due to report the next day, as he had agreed
to do, but was unable to reach him. Consequently, Arnold came to the plant about
3 p.m. and was requested to wait while efforts to locate Caldwell were made. Nor-
wood succeeded in reaching Caldwell at his home by telephone and advised him that
Arnold was there. Caldwell said that he would come right down to the plant.
Norwood then asked Caldwell whether, under the circumstances, he would also assign
some overtime. Caldwell agreed to do so. After Caldwell arrived at the plant and
spoke to Arnold, Norwood again asked Caldwell whether he would "call overtime"
and Caldwell replied in the affirmative and selected the men for overtime work.29
According to Norwood, Caldwell appeared to be friendly and not annoyed by his
request. Before leaving the plant, Caldwell made the ominous comment to Norwood
that the employees "better go on through with ... [the Union]-somebody's going to
get hurt because too many people had been fingered." Caldwell denied making this
statement.
Later that evening, Caldwell returned to the plant with Ward and went upstairs
where Publisher Harrison's office was located. After a while Caldwell and Ward
came downstairs and as they were leaving Norwood remarked to Ward that he thought
Ward had already gone on vacation. Ward answered that he was leaving right away.
Nothing was mentioned about Norwood's failure to call overtime.
Caldwell testified that at the time when Norwood made the above telephone call
Ward was visiting him at his home and overheard Norwood's request to Caldwell "to
call overtime." He further testified that Ward then inquired of Caldwell how long
n Before Ward assumed his present job in 1957, the job had been offered to Norwood
who apparently had declined it.
2'This phrase "to call shots" in shop parlance means to exercise supervisory respon-
sibility and authority , among other things, in assigning overtime and issuing instructions
to employees.
2' It has been the Company's policy to keep overtime to a minimum and to call it only
when necessary. Caldwell testified that once or twice he told Norwood "to hold down
overtime" and call it only when absolutely necessary.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had the practice of Norwood asking Caldwell "to call the shots" been going on and
that he answered that Norwood had been phoning him on Saturdays "a good bit ...
to call shots" on overtime and other matters. In addition, Caldwell testified, Ward
was irritated by Norwood's conduct and stated that he was inclined to recommend
Norwood's dismissal but he (Caldwell) was not in agreement with the idea. Although
Caldwell also testified on cross-examination that he recommended to the Respondent
that Norwood be directed to perform his supervisory duties, be did not attempt to
explain his own failure to instruct Norwood "to call the overtime shots" himself, par-
ticularly since he (Caldwell) also testified that on the occasion in question he was
perturbed and reluctant to go to the plant because he preferred to socialize with Ward
at his home at that time.30 Moreover, Caldwell admitted on cross-examination that
Norwood did not insist that he come to the plant and that actually it was not much
trouble for him to go there because the plant was only a 5- to 7-minute drive from
his home.31 Finally, Caldwell testified that, although Norwood telephoned him "a
lot of times" to call shots on overtime, he conceded that he never ordered him to
stop this conduct. Evidently, Caldwell had not complained about this to Ward, his
superior, as it appears from Caldwell's testimony that Ward first learned of it during
his above-mentioned visit at Caldwell's home.
Considering all the facts and circumstances surrounding Norwood's loss of his
supervisory "override," I find Nor-wood's testimony convincing and Caldwell's version
incredible. I further find that the Respondent's asserted reasons for the discontinuance
of Norwood's "override" unsubstantiated.
On July 10, Norwood became the first recipient of written unsatisfactory work
reports. On that day Ward gave Norwood two such reports signed by him, adding
that he was unhappy with his work. One report, which was dated June 27, related
to Norwood's alleged failure to call "the overtime shots" 32 for which his "override"
had already been taken away 2 weeks before, and the other report concerned his
asserted negligence, as a supervisor, in allowing Arnold's machine to become bogged
down 33 Norwood protested that the June 27 report was "not altogether right" but
Ward disagreed, stating that he was at Caldwell's home when Norwood telephoned
and requested Caldwell "to call overtime."
Regarding the second incident, it appears that Arnold's ad machine had bogged
down while Norwood was occupied with other work. At soon as Norwood noticed
it about 11 in the morning, he promptly informed Ward who thereupon took over
the operation of the machine. A little while later, Ward asked Norwood why he
had not brought the problem to his attention earlier. Norwood answered that he
was too busy making up ads and was unaware of it. As a result of the bogging down,
the paper was late which, however, was not an unusual experience at the plant. It
is also clear that theretofore no one had ever been written up for such an occurrence.
Without any advance notice or warning to Norwood, Ralph Swartz on July 23
replaced Norwood as ad room foreman, thereby demoting Norwood to a rank-and-file
employee. According to Swartz, at the time he was interviewed by Ward when he
answered the Respondent's advertisement for composing room employees, Swartz
informed Ward that he was prejudiced against unions and would not accept a job in
a unionized shop and Ward assured him that he "didn't have to worry, that the shop
wouldn't be Union." Several months after filing his charge Norwood was offered a
night foreman's job, which he rejected. This job was later given to Joday Browning
who was then the Union's vice president.
11. Lee's separation
Except for two short interruptions, Lee had worked for The Gainesville Sun from
August 1953 until his separation on July 4, 1963. Concededly, he was a competent
30 Caldwell also injected in his testimony , as an indication of Norwood 's supervisory
deficiency, the fact that Caldwell also was required to come to the plant to speak to Arnold.
However, Caldwell did not instruct Norwood to inform Arnold to report for work the
next day. Indeed, it is difficult to understand how Norwood could have done anything
else than call Caldwell about Arnold's presence in the plant , not only because Arnold
asked for Caldwell or Ward , but also because he had absolutely nothing ' to do with
Arnold's hiring.
31 Caldwell also testified that during his vacation he made several social visits to
the plant.
33This report read : "D. E. Norwood was told to call all shots ( act as complete
supervisor) Thurs. 26 [sic]. Failed to do so-called in Stafford Caldwell to do it for him.
Copy given to Norwood of this warning."
33 This report stated: "D. E. Norwood failed to notify supervisor in time, that one of
ad machines was hopelessly bogged down with work , causing paper to go late. Told him
I was very unhappy with him for not notifying me sooner."
GAINESVILLE PUBLISHING COMPANY, ETC. 615
linotype operator . For a number of years he had regularly been assigned to operate
the model 35 machine, although he performed other duties as well. As discussed previ-
ously, on Friday, June 28, Foreman Caldwell suddenly and without explanation
changed Lee's work schedule and removed him from his regular machine. When Lee
complained to Mechanical Superintendent Ward that same evening, Ward alluded to
information he had received concerning Lee's union activities and told him that he
"could just as well get another job." Lee's response was that he would do so after
Ward returned from his vacation and ordered him to leave.
There is a serious conflict of testimony as to whether Lee was discharged or quit
on Monday, July 1. Lee testified, as follows: About 11 o'clock that morning Pub-
lisher Harrison, accompanied by Caldwell, came to his machine. Harrison opened
the conversation by stating that he understood Lee had an application in another shop
and was going to leave the Company. Lee expressed surprise that Harrison thought
he was leaving, although he had filed an application for a position with the Govern-
ment Printing Office a long time ago of which the Respondent was aware 34 Har-
rison, however, indicated that he was referring to Lee's application with a local com-
pany. Lee denied he had made such an application or was interested in that job
because the owners actually did not have enough business to keep themselves occupied.
In reply to Harrison's next question whether he was going to accept the Government
job, Lee stated that he did not know because he had no idea when an opening would
actually arise. At that point, Harrison bluntly asked Lee when it would be con-
venient for him to leave. Lee answered that Harrison was the boss and he would
leave any time he wanted him to. Harrison then ordered Lee to finish the week and
leave. Lee categorically denied that he had voluntarily quit. Lee also testified that
he was shaken up by this turn of events since he had no other job to which he could
go. Caldwell was silent during this entire conversation.
Harrison gave the following version of the circumstances surrounding Lee's separa-
tion. On July 1 Caldwell came to his office and advised him that Lee was leaving
when Ward returned from his vacation. Because it would be necessary to secure a
replacement, Harrison decided to speak to Lee to ascertain the date he was leaving.
It was common knowledge that Lee "had applied for a job elsewhere." Accompanied
by Caldwell, Harrison approached Lee and stated that he understood that Lee was
leaving when Ward returned from his vacation. Lee answered that this was his inten-
tion. Harrison then asked him when that would be so that he could secure a replace-
ment and Lee replied whenever Harrison wanted him to. After this question and
answer were repeated several times, Harrison suggested that Lee finish the week and
Lee agreed. Although Harrison testified it was necessary to have a definite date for
Lee's departure so that he could retain Arnold as his replacement, he furnished no
explanation why he did not permit Lee at least to remain until Ward returned.
Plainly, there was nothing to indicate why Arnold's appointment as Lee's replacement
could not have been made effective at Lee's alleged departure date when Ward returned
from his vacation. This becomes even more difficult to comprehend since Harrison
conceded, on cross-examination, that there was a dire need for extra help during July
because employees were taking their vacations.
Concerning this July 1 episode, Caldwell testified that Harrison met him in the
composing room on the way to see Lee and told him to follow, which he did; that
Harrison asked Lee whether it was true that he told Caldwell that he was leaving
when Ward returned from vacation; that when Lee replied that it was, Harrison asked
him for the specific date, and Lee repeated when Ward came back; that, on Harrison's
insistence for a definite date, Lee said whenever Harrison wanted him to leave-then
or at any other time; and that finally, Harrison' suggested that Lee finish out the week
and Lee assented. Caldwell further testified that Lee had informed him the previous
Saturday (June 29) of his intended departure. Yet, in his pretrial affidavit, Caldwell
"In January 1963, prior to the advent of the Union, Lee had filed an application with
the United States Civil Service Commission for a printer's job with the Government
Printing Office, listing Mechanical Superintendent Ward and Foreman Caldwell as refer-
ences. On February 25, Lee received an eligibility rating and was placed on the active
register. Both Ward and Caldwell were fully aware of his application and eligibility
and, in fact, urged him to accept a job if and when offered because the conditions of em-
ployment with the Government were far superior to those available in private industry.
However, as recently as June 28 Lee had been advised by the Civil Service Commission
that there was no prospect of an opening in the Government Printing Office in the im-
mediate future . At the hearing, Lee testified that he had been in Washington and had
lost interest in working for the Government Printing Office.
Although a former employee, James A. Sparks, had also filed an application for a Gov-
ernment position , with Caldwell 's knowledge, while in the Respondent's employ, he was
never questioned by the Respondent about his departure date so that he could be replaced.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that Lee gave him that notice on Friday, June 28; that the same day he (Cald=
well) conveyed to Harrison this information and the need for Lee's replacement; and
that thereafter he (Caldwell) asked Arnold if he wanted to take Lee's job on a trial
basis. When confronted with his contrary statements in his affidavit, Caldwell testi-
fied that the date in the affidavit was wrong and that it was Saturday afternoon that
Lee gave him notice that he was leaving when Ward returned. Caldwell also testified
that it could not have been Friday that Lee had received this notice because Lee was
off Friday. However, the record clearly establishes that Lee worked Friday, although
it normally would have been his day off.
According to Lee, later that Monday, Caldwell, in a perturbed state of mind,
returned to Lee and assured him that he "didn't have anything to do with that part
of the dirty work." 35 Caldwell, however, denied making this statement.
On the following day, Caldwell told Lee that the Respondent wanted him to leave
Wednesday instead of Thursday, which was the July 4 holiday, because it was not
interested in giving him holiday pay. Lee retorted that it was not right after Harrison
told him to finish the week which ended on a Thursday. The next day Caldwell
informed Lee that he could work July 4.
July 4 was Lee's final day. Upon being paid off, Lee asked Caldwell for a separa-
tion slip so that he could draw unemployment insurance benefits. Caldwell replied
that he could not give him one because he was quitting.36 Lee took issue with him,
insisting that he was discharged, and offered to return any day Caldwell designated.
Caldwell declined the offer and asserted that Lee was through because he had an
application in another shop.
Machinist Dennington was present when Caldwell handed Lee his check and sub-
stantially corroborated Lee's testimony that he offered to report to work after Thurs-
day. Dennington also testified that about 20 or 30 minutes later, in response to his
question concerning Lee's separation, Caldwell told him that Lee was being replaced,
adding that Lee had an application with the Government Printing Office, that he had
passed the test with a high grade, and that he was going to leave anyway.
On July 8, Lee filed a charge with the Board in Case No. 12-CA-2680-1, alleging
that he was unlawfully discharged because of his union activities. A copy of this
charge was received by the Respondent on July 13. On advice of International Rep-
resentative Mitchell, Lee made several appearances at the plant on different days to
indicate his availability for work should the Respondent desire to recall him.37 On
these occasions he was seen by Ward and Caldwell. One day, however, Caldwell
telephoned Lee and advised him that, in order to avoid being accused of sabotage,
to stay away because the Respondent was having trouble with its machines.
In the latter part of July, Lee asked Ward for a job recommendation, which Ward
stated he could not give without first consulting the Company's lawyer in view of
"all these NLRB cases flying around." At a later date Ward telephoned Lee and
informed him that he was permitted to give him a recommendation, and that he also
had a job for him and invited him to the plant. Lee then went to the plant and was
offered two jobs-one with a division of the Company in Port Charlotte, Florida, and
the second with another company in Charleston, South Carolina. Lee requested time
to consider these offers, which he did, and rejected them. Lee, however, advised
Ward that he wanted his former job back together with reimbursement for lost pay.
Ward replied that he expected this answer and stated that he had already mailed out
a recommendation that day (July 26).38 A covering note went along with this rec-
ommendation which said that if he needed "any more help yell."
ss Former employee Sparks testified that as Lee was leaving at the close of his shift on
July 1, Lee remarked to him that he was fired.
ae It appears that the Respondent does not follow the practice of issuing separation slips.
sx Publisher Harrison testified that Lee's wife telephoned him about a week or 10 days
after Lee's separation ; that she inquired why Lee was fired ; that he denied it but told
her that Lee had quit; and that as far as he knew Lee was going to work at the Gov-
ernment Printing Office. However, Harrison did not testify that he was prepared to take
Lee back, even though, as the record shows, there was a need for help.
Is The recommendation was dated July 26 and read:
Lamar Lee was employed here from 1953 to 1963 in the capacity of a linotype
operator. He resigned on July 4, 1963, advising us that he had another job. He
has subsequently advised us that his other fob fell through. While Lee was in our
employ we considered him a capable employee, and he would still be in our employ
if he had not resigned. We would be willing to reemploy him in his old position if
we had not already filled his job with a replacement upon his resignation . We have
offered to Mr. Lee a job on the Port Charlotte News at $110 a week.
GAINESVILLE PUBLISHING COMPANY, ETC. 617
The record shows that, although following Lee's separation and while he was avail-
able for work, the Respondent actually made no effort to recall him. Thus, Arnold
was given a termination notice on or about July 15 ostensibly because he lacked the
ability to operate a model 32 machine. However, Lee, who was one of the few persons
competent to operate that machine, was not offered the job. When questioned con-
cerning his reason , Ward testified that when Lee applied for the job, another individual
by the name of Thompson had already been selected. Nevertheless, Ward admitted
that about a week or 10 days later Thompson had declined the job. Ward also testi-
fied that when the job reopened he did not offer it to Lee because he heard he was
traveling around the State. However, as indicated above, Thompson's rejection of
the job was about the time Ward offered Lee two other jobs away from his Gainesville
home.39 In addition, it is noted that the Respondent had advertised for composing
room employees for at least a week before July 23, when Ralph Swartz reported for
work after answering that advertisement.
On August 5, Lee went to Pepper Printing Co., one of the Respondent's operations,
to collect a check in settlement of his overtime wage-hour claim for work performed
for both The Gainesville Sun and the Pepper Printing operation. When he was
handed the check Lee remarked that this was the first money he had received since
his separation. According to Lee, J. C. Miller, the manager of the Pepper Printing
operation, thereupon observed that if Lee had left the Union alone he probably would
still be working for the Respondent. Lee also testified that Miller voiced his dis-
approval of unions and wished he had the dues and initiation fee he,had paid to the
one to which he once belonged. Although Miller admitted relating his unhappy union
experience to Lee, he denied that he indicated to Lee that his union activities prob-
ably brought about his discharge.
Realistically appraised in light of both the contradicted and uncontradicted testi-
mony, Lee's account of the facts and circumstances surrounding his separation has
the undistorted ring of truth in it. I, accordingly, credit his testimony and reject the
contrary testimony of the Respondent's witnesses. I further find that Lee was dis-
charged and that he did not resign.
12. Arnold's discharge
Arnold has been a Linotype operator and a journeyman printer since August 1962.
He applied for an operator's job with the Respondent about the middle of June 1963.
At his interview, Caldwell informed him that there was no available permanent situa-
tions at that time but that he could use him for 3 weeks to cover employees on vaca-
tion. Arnold accepted and agreed to telephone him before he reported for work on
Friday, June 28.
Because he was unable to reach Caldwell by telephone, Arnold came to the plant
about 3 p.m. on Thursday, June 27, where he met Caldwell. There is a conflict in
testimony as to the nature of their conversation. According to Arnold, Caldwell told
him that a permanent situation had opened up since Caldwell had last spoken to him
and that Ward and Caldwell had decided to give him that job. Arnold further testi-
fied that Caldwell then showed him around in the composing room and introduced
him to four or five employees as an employee who "will be with us from now on."
The next morning (Friday, June 28), Arnold reported for work and was assigned
by Caldwell to do straight matter work on a model 14 machine.40 This was the
machine regularly run by employee Jack Wilson who was on vacation.
Caldwell denied that he hired Arnold that Thursday or Friday as a permanent
employee because no permanent situation was then available. However, he testified,
he advised Arnold on Monday, July 1, that he could have Lee's job as the latter's
replacement on a trial basis. As discussed previously in this Decision, Caldwell's own
pretrial affidavit contradicts him and states that the time of the offer was Friday after-
noon, June 28.
After operating the model 14 machine for about a week, Ward asked Arnold
whether he could handle models 32 and 35 ad machines. Arnold stated that he had
never before operated big ad machines like those, but that he thought he could do it.
It is also noted that since employee Glass' separation in September , which is later
discussed , the Respondent has had difficulty trying to find an employee capable of taking
over model 35 machine , which Lee had formerly operated . In fact, it is for the reason
that Caldwell had been operating that machine himself. Although Ward indicated at the
hearing that he had a prospect for that machine, there is no evidence that he had con-
sidered Lee for that job.
w It appears that Arnold erroneously identified the machine as a model 8, although he
was correct that it occupied the fourth position in the line of machines.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward then said that he "might just give ... [him] a crack at it." About 3 days later
Caldwell put him on the model 32 machine. As indicated above, this was the machine
that bogged down on July 10 for which Arnold's supervisor, Norwood, was repri-
manded for not calling Ward's attention to that condition sooner than he did 41 It
appears that following this occurrence, Arnold continued to operate the model 32
machine without any unusual incident 42 until about July 15 when Caldwell
approached him with Norwood and gave him 2 weeks' notice of dismissal, effective
August 1. On that occasion, Caldwell told Arnold that he was being replaced because
of his inability to operate the model 32 machine. Caldwell also stated that Norwood
had complained to him about Arnold's inability to handle that machine. Norwood,
however, disputed this statement, asserting that Arnold was only unfamiliar with the
machine and needed more time to be able to keep up with the extensive work that
piled up on that machine. Caldwell also remarked that Arnold was hired specifically
to replace Lee on the models 32 and 35 machines and was put on 1 month's probation
to prove his competency on those machines. Arnold questioned the accuracy of these
statements and insisted that he was hired as a new man and not as. a replacement for
anyone on a particular machine. Arnold further denied that any probation period
was mentioned when he was given the job. Also significant to note is the fact that the
model 32 machine was employee Percy Green's regular assignment and that the
model 35 machine, which had previously been operated by Lee, had been employee
Gilford's permanent assignment since June 28.
It is clear that Arnold had some difficulty running the model 32 machine, which
was a more complicated machine than a model 14 or other machines that Arnold was
accustomed to operate.43 Norwood was of the opinion that with more time and
experience on that machine Arnold would have turned out to be a good operator on
it 44 Moreover, both Ward and Caldwell conceded that Arnold was a competent
linotype operator on straight matter and, in fact, Caldwell gave him a reference to
that effect. Yet, according to Norwood's undisputed testimony, when Caldwell gave
Arnold the 2 weeks' notice of dismissal, he unsuccessfully requested Caldwell to retain
Arnold on another machine (model 14) which was then unmanned and which Arnold
could competently run. Norwood further testified, without contradiction, that later
in the day he again asked Caldwell to give Arnold a chance on this other machine
since the Company needed someone on it. Although Caldwell said he would speak
to Ward, no action was taken on Norwood's suggestion.
Norwood also testified that the Company hired a new operator for straight matter
work before Arnold left and other operators after Arnold's separation. Ward admit-
ted to hiring two straight matter operators 45 about a month or two after Arnold's
separation. Although the Respondent's records contained the exact dates of the
employment of these individuals, the records were not produced at the hearing. It
appears that these jobs were never offered to Arnold; nor was the failure to do so
satisfactorily explained.46
41 Ward testified that he did not give Arnold a written unsatisfactory work report
because Arnold was working only on a trial basis.
42 Although Arnold admitted that he also "pied" two magazines, i e., causing magazines
to drop out of the machine, he was never reprimanded for it. Ward conceded that he had
"pied" a magazine and that it was not unusual for a new operator or one unfamiliar with
a machine to do it. Ward further conceded that "piing" a magazine does not necessarily
indicate incompetence. Caldwell also testified that he had "pied" a model 32 machine
when he was first learning to operate it. There is also testimony that experienced
operators may occasionally "pi" a magazine.
43 Arnold testified that at his new job he now operates more complicated machines than
the model 32, with apparent satisfaction to his employer.
44 Norwood testified, without contradiction, that on one occasion he asked Caldwell to
check on Arnold's work on the model 32 machine and Caldwell did so and advised him
that Arnold was not bogging down. Norwood further testified that he made this request
to protect himself "because they had been riding . . . [him] so about that particular
machine being behind." Norwood also observed that the model 32 machine "isn't the
sweetest machine to run in the house. Mr. Caldwell doesn't tackle it too much, I notice."
45 They are Nel Hayes and Owen Willis. The latter also operates the small crap
machine.
49 The only testimony relative to a possible explanation, inadequate at best, is Ward's
answer to a leading question put to him by the Respondent's counsel, as follows:
Q. Had you been advised that Arnold had taken another job at a time a month
later, when you hired a new straight matter operator?
- A. Yes, sir. There was a telephone call coming in wanting a recommendation on
Arnold in Charleston and Arnold was supposed to be sitting right there and asking
for a recommendation.
GAINESVILLE PUBLISHING COMPANY, ETC . 619
I find that Arnold's and Norwood's testimony recited above, much of which is
uncontroverted, more persuasive than the contrary testimony of Caldwell and Ward.
Moreover, I find that Arnold's asserted inability to operate models 32 and 35 machines
was not the true reason for discharging him.
13. Hertel's discharge
Rosemary Hertel had been employed as a proofreader at The Gainesville Sun for
close to 13 years when she was discharged on August 26 without any prior warning
or notice. Except for the incident considered below, her competence as a proofreader
is not questioned. Indeed, two employees attested to her ability. As previously dis-
cussed, it was at her home on June 23 that a group of employees met and signed union
membership applications and paid their initiation fees to employee Lee. This also
was the meeting to which Foreman Caldwell alluded on or about July 3 to refute
Hertel's denial of union membership when she protested the change made in her
regular Saturday working hours from dayside to nightside.
Hertel gave the following account of her discharge on Monday, August 26: As she
was leaving that afternoon at the close of her shift, she was called back by Caldwell.
He showed her the proof of a streamer headline 47 and the original copy she used in
proofreading that headline which appeared on page 1 of the Sunday newspaper of
the day before. Hertel readily acknowledged her responsibility for not detecting the
typographical error which consisted of the transposition of two letters in the word
"Girds" so as to read incorrectly "Grids." 48 After expressing his reluctance to do
this, Caldwell told her that on Publisher Harrison's instruction, he had to let her go
because it was a new policy promptly to discharge anyone who made an error in a
streamer headline. Hertel objected to this summary treatment, asserting that no one
had ever before been discharged for proofreading mistakes and referred to the erro-
neous dateline on page one of the paper that was published that very day (August 26)
which was not attributable to her. Caldwell then handed her her final check, which
included 2 weeks' severance pay, and informed her that she was not required to finish
the week. Prior to this occasion, Hertel had never been given any unsatisfactory
reports, nor was she ever warned to improve her work.
Caldwell denied Hertel's testimony that he told her it was a new policy to dis-
charge a proofreader for a streamer error but testified that he did say it was the Com-
pany's policy to do so. However, no evidence was adduced as to when such a policy
was adopted or announced to the employees, if it ever was. Although the only reason
given by Caldwell for Hertel's dismissal was the streamer headline error, he testified
that he detected that Hertel had deliberately engaged in a slowdown in the morning
of the day of her discharge which he had inferred from the accumulation of proofs
to be read. However, not only was the other proofreader, Dampier, absent from
work that day,49 but Caldwell could not even remember whether or not he had men-
tioned the alleged slowdown to Publisher Harrison and the other management officials
when they decided to dismiss Hertel for the streamer error. Moreover, although
Caldwell, on cross-examination, first testified that when he saw the accumulation of
work to be read, he asked Hertel "was this a slowdown, and she slurred and didn't
say nothing," later in his testimony he conceded he was not positive that she heard
his remark. Hertel categorically denied that Caldwell accused her of any slowdown
in the morning or that it was mentioned later in the day when she was terminated.
Following her discharge, Hertel personally checked the Respondent's newspaper on
various days and found numerous spelling and other errors in headlines, news
columns, and advertisements. On one day, she found a streamer headline error where
the word 'Tomorrow" was misspelled "Tommorrow." There is no evidence that
47 A streamer headline is one that runs across the top of the page.
48 The streamer headline, as it appeared in the Sunday paper, read: "Washington Grids
for Massive 'Social Protest' March." Hertel was, at first, under the mistaken impression
that the word "Girds" was correctly written over another word on the original copy
which was scratched out, although other corrections were made on that copy.
Hertel also testified, without contradiction, that it is customary for a newsroom em-
ployee who finishes his work early on Saturday to pull a proof of page 1 of the Sunday
paper before it goes to press to check for errors, but that she did not know whether this
was done with respect to the Sunday paper in question
41 Caldwell also testified that he had to furnish Hertel with assistance the day of her
discharge in order to get the paper out on time. However, Caldwell admitted it was
not unusual to call other employees to help out in proofreading. Especially would it
seem to be justified where, as was the case on the occasion in question, one of two
regular proofreaders was absent.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyone was discharged or disciplined for this error. On the contrary, Caldwell testi-
fied that since Hertel's dismissal he had not warned anyone for proofing errors and, as
far as he knew, Ward had not done so either.
Hertel impressed me very favorably and I credit her version of the events which I
find more reliable than Caldwell's. Furthermore, as "discussed in my concluding
findings, I do not believe Caldwell that Hertel was actually discharged because of the
streamer error.
14. Strawn's separation
William C. Strawn, Foreman Norwood's son-in-law, was employed at The Gaines-
ville Sun from August 1960 until his separation on September 7, 1963, with the excep-
tion of a 7- or 8-month period between the fall of 1961 and spring of 1962. During his
employment Strawn attended the University of Florida, located in Gainesville 50 At
the time of his separation, Strawn was a compositor who performed a variety of jobs
such as ad and makeup work. During school terms he averaged 30 to 35 hours a week
and in the summertime 40 or more hours. There is no question that until Septem-
ber 1963 Ward was very cooperative in arranging work schedules to fit in with Strawn's
school program and convenience, even though the hours did not conform with estab-
lished shifts fit Early in July Mechanical Superintendent Ward advised Strawn that
his, as well as other employees', schedule was being revised and that he was required
to go on the 4 p.m. to 12:45 a.m. night shift. Because Strawn stated that those
hours would conflict with his other activities, Ward suggested 11 a.m. to 7 p.m., 4.days
a week, and 8 hours on Saturday night. Strawn, in turn, proposed 11 a.m. to 6 p.m.,
5 days a week, and 8 hours on Saturday night. This proposal was acceptable to Ward
and Strawn pursued that schedule until September. About the middle of July, Ward,
in response to Strawn's question, assured him that the existence of union activities
would not affect his job in the fall when he returned to school.52
During the first week in August, Strawn commented to Foreman Caldwell that
Publisher Harrison's attitude toward him had become unfriendly and that he attributed
this change to Harrison's mistaken belief that he was a member of the Union. Cald-
well disagreed that such was the case as Harrison knew that Strawn really was not
interested in the Union since printing was not his life's profession. Caldwell, however,
added that Strawn would have to decide how to vote when the NLRB election was
held. Strawn's answer was that he would have to be on the side of his father-in-law
(Norwood) because his father-in-law's job was not worth a cent if the Union did not
succeed.53
At a time before August 9 Caldwell informed Strawn that the Company had
adopted a new policy that it would no longer use part-time help 54 and that he and
Raymond Glass, another employed, university student, would be required to work a
full'40-hour week. Strawn answered that, as much as he preferred a shorter week, he
would put in that number of hours if required and if a suitable schedule could be
arranged when school started. Caldwell stated that a 40-hour schedule would be
arranged.
60 Strawn testified that he expected to graduate in April 1964, at which time he intended
to leave the Respondent's employ.
5' From November 1962, after the Respondent purchased The Gainesville Sun, until
the middle of April 1963, Strawn worked 6 days a week, averaging 30 to 35 hours, al-
though some weeks he worked longer hours. During that period, he,reported for work
on Monday through Thursday between 11 a.m. and 1 p.m, depending on what time he
was released from his classes on a particular day and left the plant 5, 6, or 7 p in. He
also worked 8 hours each on Friday and Saturday nights. When the second trimester
at the university ended in April 1963, Ward granted Strawn's request to be changed to
the day shift (7 a.m. to 3:45 p.m.), which he worked until July on a regular 40-hour
basis. On the latter date his hours were changed again to suit his convenience to a
schedule from 11 a.m. to 6 p.m., 5 days a week, with 8 hours on Saturday night
52 Strawn testified that initially he was uncertain about supporting the Union but on
July 7 decided to support it and attended the union meeting held on that day. How-
ever, he testified, after consulting with International Representative Mitchell, he saw no
necessity for joining that organization since he was not going to pursue the printing trade
after his graduation in April 1964.
es The above conversation between Strawn and Caldwell is based on Strawn's credible
testimony. Caldwell only recalled a conversation he once had with Strawn wherein
Strawn asked him whether an election would be held and he (Caldwell) replied that he
did not know but that when it was held Strawn would have to decide which way to
vote. Caldwell denied that Strawn indicated how he would vote. -
54A university professor, who proofread Saturday nights, was not affected by this
new policy.
GAINESVILLE PUBLISHING COMPANY, ETC. 621
On September 2 or 3, Strawn discussed with Ward the type of schedule the Respond-
ent was considering for him. Ward stated that he had not yet prepared one but
indicated that it would include some morning hours. Strawn explained that it would
be impossible for him to work mornings unless it was before 8:30 because his school
courses were offered in the morning. Before registering on September 4, Strawn again
spoke to Ward who suggested that he take his classes after 3:45 in the afternoon.
Strawn retorted that Ward knew, as well as he did, that, at the most, one or two
courses were given at that time. Ward then remarked that, under the circumstances,
things "looked kind of slim" for Strawn.
The next day Strawn advised Ward of his school program 55 under which he could
begin work everyday except Thursday at 12:15 p.m. and on Thursday at 1:15 p.m.
As an alternative, Strawn stated that he could take a regular night shift. Ward, how-
ever, indicated that a job was available for him only if he worked morning hours.
Strawn then asked whether anyone on the night shift would trade with him as there
were interchangeable jobs on both shifts and Ward answered in the negative.56 How-
ever, there is no evidence that Ward questioned any employee along those lines.
Surprisingly, although the Respondent asserts that business was continuously increas-
ing and with it the need for production help, the Respondent was unable to accom-'
modate Strawn (or Glass) with a work schedule to fit in with his school program.57
The conversation ended with Strawn voicing the view that he guessed he had no job
and Ward agreed.
In a conversation with Foreman Swartz the next morning (September 6), Strawn
told Swartz he was "getting a dirty deal." Swartz, in reply, stated that he hated to
lose him, that his work was good, and added that both of them "knew why .
[Strawn] was leaving but he couldn't say it." 58 Strawn observed that it was the
Union. Thereafter, Strawn proceeded to Harrison's office and complained to Harrison
about "the dirty deal" he received in spite of his good work record and cooperative
attitude. Harrison asserted that he, Ward, and Caldwell had labored hard to arrange
schedules so that everybody was placed where he was most needed and that Strawn's
place was from 7 a.m. to 3:45 p.m. and if he wanted those hours he could keep his job.
When Strawn disagreed with Harrison's views that the schedules were prepared with
efficiency in mind, Harrison remarked, "If you came up here to talk about the union,
I don't want to talk to you." Referring to the work schedules Strawn previously had,
Harrison observed that Strawn should be happy that he had such a good deal for so
long a time. Finally, Harrison stated that he regretted they were parting on unfriendly
terms. With this, their conversation came to a close. School started on September 9
and Strawn's last day at the plant was September 7.59
15. Glass' separation
Like Strawn, Glass was a university student in^the Respondent's employ. He wasa
linotype operator who ran a model 35 machine on the night-side. He worked for The
Gainesville Sun from 1959 until his separation on September 20. During this time
ss Strawn's fall school program required him to attend classes everyday except Thurs-
day until 11:55 a.m. and on Thursday until 1:05 p in.
ce Strawn testified that from conversations with two individuals on the night shift,
Wayne Land and Warren Bowden, he surmised they disliked working nights. However,
Strawn conceded that he neither mentioned these employees to Ward, nor did he ask
them whether they would exchange shifts with him.
69 Ward testified that the main reason for the paper being late was insufficient page
makeup in the morning This apparently was the reason he needed Strawn on the early
shift. Strawn , however denied that the shortage of makeup men was the major reason
for a late paper, and testified, without contradiction, that almost all ad men in the com-
posing room could do makeup too. Moreover, apart from the fact that the Respondent
theretofore had never seen the necessity for Strawn's assignment to a day shift (see for
example, Ward's proposed change in early July to a night shift ), it is clear that there
were many other reasons for a late paper.
sH Although Swartz denied he indicated he knew why Strawn was leaving, I credit
Strawn's testimony upon which the above finding is based.
sB Testimony was adduced at the hearing as to whether Strawn was also denied certain
sports assignments in another department after his separation for the same reasons that
the Respondent refused to arrange a composing room work schedule for him. Although
I find it unnecessary to decide this question , it is noted that Assistant Sports Editor Benny
Cason testified that Publisher Harrison had told him not to assign Strawn as a reporter
to cover any high school football games. It is also noted that Vice President and Advertis-
ing Director William G . Ebersole testified that he had asked Harrison whether he had
any objection if he ( Ebersole ) gave Strawn an assignment.
0
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward accommodated Glass' work schedule to his school program and Glass accord-
ingly averaged between 25 to 30 hours per week, probably closer to 30 hours. His
hours varied daily, depending on what time his classes ended on a particular day.60
From the very inception of his employment, Glass made it clear to Ward that he would
be forced to quit his job if he were required to work a 40-hour week. In January
1963 Ward indicated to Glass that it would be necessary for him to work 40 hours a
week the following fall. At Ward's request, Glass tried to work a 40-hour week during
the spring term. After 2 or 3 weeks, Glass informed Ward that he was unable to con-
tinue to work the longer hours. As a result, Ward permitted him to revert to his
former schedule of 25 to 30 hours, without indicating that he would be required to
resume a 40-hour week in the fall. The foregoing occurred before the advent of the
Union.
On September 5, Glass inquired of Caldwell whether he could continue working on
a part-time schedule as before when the new school term began. Caldwell told him
to speak to Ward. The next day Glass registered at school 61 and at night discussed
his schedule with Ward. In response to Ward's adamant position that Glass was
required to work a full 40-hour week, Glass stated that he would be compelled to quit.
Thereafter, Glass spoke to Harrison about retaining him until April 1964, when he
was due to graduate and leave the printing trade. Harrison informed Glass that he
had no control over the situation as the New York office set the policy and he (Har-
rison ) had no choice but to insist on a 40-hour week. Harrison, however, stated that
he would call Glass if he needed him.
On September 9, when school resumed, Glass gave Caldwell and Ward 2 weeks'
notice that he was leaving. During this 2-week period, Glass worked as many hours
as he was able to but less than 40. On September 20 his employment terminated.
At the hearing, Caldwell testified that Glass had not yet been replaced. Employee
Gilford, who had operated on the day shift the same model 35 machine as Glass did at
night, was transferred to the night shift to run that machine. Caldwell, at the expense
of his supervisory duties, undertook to operate the machine on the dayside until a
replacement was located. It is noted that, although Harrison told Glass he would
recall him if needed, he did not do so despite the fact that as of the time of the hearing
no replacement had yet been hired.
16. Dennington's discharge
Dennington has been a composing room machinist since 1947 after serving a 41/2-
year apprenticeship. As a result of his experience at various newspaper shops,
Dennington had acquired a familiarity with all types of composing room machines,
including teletype machines, herein described as TTS machines, although he had
never received the formal specialized training in the repair of the latter equipment
furnished by the TTS school. He was hired by Mechanical Superintendent Ward in
the latter part of January 1963 and continued in the Respondent's employ until Sep-
tember 13 when Ward discharged him. This was the only job from which he had ever
been dismissed. At the time of his hiring, according to Dennington's uncontradicted
testimony, Ward inquired into his ability to repair ITS machines and that he candidly
told Ward that, although he did not have technical TTS school training, he worked
on such machines with varying degrees of success. He further informed Ward that
it would usually take him longer to repair a TTS machine than it would take an
experienced TTS man. Ward was satisfied with Dennington's qualifications and
remarked that he thought "we can make it, we'll get by with it, and maybe both of us
will learn something."
While there is conflicting testimony as to how well Dennington performed his duties,
a matter to be discussed below, it is clear that it was not until Thursday, August 29,
that he was threatened with loss of his job vecause of his asserted shortcomings. On
that day, Foremen Caldwell and Swartz questioned Dennington concerning his failure
on August 27 62 to keep an Elrod machine supplied with material and his failure to
repair a TTS perforator before leaving the plant, although an operator had requested
him to fix it. Dennington explained that he was too busy to attend to the Elrod
60 During his last regular school term , Glass had reported for work at different hours
between 4 to 7 p.m. every day. On Friday, he had worked a full 8-hour day, and less
the other weekdays . During a 6 -week period immediately preceding September 6, when
he did not attend classes, he had worked a 40-hour week.
EI Glass' fall program called for classes from 9:50 a.m . to 7 p.m. on Monday and Wednes-
day ; from 2:30 p.m. to 7 p .m. on Tuesday ; 9:50 a.m. to 1:10 p in. on Friday ; and no
classes on Thursday . Glass testified with this schedule he would be able to work 25 to 30
hours as he had done before.
w Dennington was off on Wednesday , August 28.
0
GAINESVILLE PUBLISHING COMPANY, ETC. 623
machine because he was working on a proof press with an electrician . Although Cald-
well told Dennington that he was to let the electrician do his own work, Dennington
testified that at that time it was not known whether the breakdown was due to mechani-
cal trouble , which was his responsibility to correct , or to electrical failure, which was
the electrician 's job to rectify . As events developed , the repair required the services
of both . With respect to the TTS perforator , the reason given by Dennington to
Caldwell for not repairing it was that it had to be done on overtime and Caldwell was
not around to authorize him to work beyond his regular hours. However, Dennington
conceded that he did not seek permission from Foreman Swartz who was available.
As a result of Dennington 's neglect to make the timely repair, the machine was
inoperative for 12 hours until it was fixed by the night machinist. To avoid such
problems in the future , Caldwell authorized Dennington to work overtime whenever
it was necessary to have repairs done. In addition , he was warned to keep the Elrod
and TTS perforator units running with an ample supply of material and that his
failure to comply with these orders would result in his discharge.
On the same day, Dennington was handed two written unsatisfactory work reports
covering the above incidents . According to'Dennington , he had never before or
thereafter received any unsatisfactory work reports. He also testified that he had
never been warned before that his job was in jeopardy because of poor performance
but admitted that there were occasions when he was directed to redo certain repair
jobs. In addition , Dennington testified , Ward had complained to him in the summer
of 1963 that the machines were in poorer shape than they had ever been since he
(Ward ) had been employed at The Gainesville Sun, that they had too much downtime,
and that it was Dennington 's responsibility to keep them running at all times.
Apparently , this deficiency did not warrant a written unsatisfactory work report since
it is not claimed that he had been given one , although the written report practice was
in effect at that time. Dennington further testified that on one occasion Ward called
his attention to the fact that all four TTS machines were not running but this condi-
tion, which was caused by a shortage of tape, was not his responsibility . According
to employee Lee, on at least two instances he heard Ward state to unidentified
individuals that Dennington was the best machinist he ever had.
On Friday , September 13, about 8 a.m., Ward approached Dennington and asked
him whether he had worked on a TTS perforator the previous night . Upon receiving
an affirmative reply, Ward told Dennington that it was not running and that, in his
opinion, Dennington did not know what he was doing. Ward then ordered him to
collect his things and leave the plant as he was fired.
The same day, Ward assigned Thomas , the night apprentice machinist, to try to
repair the TTS perforator in question . It appears that the counting mechanism did
not uniformly count correctly and require adjustment . According to Thomas, after
Dennington 's repair , the machine counted correctly only when operated at a relatively
slow speed but since operators normally punch the keys at a faster rate, the adjust-
ments made by Dennington were off. Thomas , who followed the manufacturer's
manual, as Dennington always did, made the proper adjustments which an operator
tested for him . It appears that Dennington did not have the benefit of an operator's
assistance to test his adjustments because none worked at night when he undertook the
repairs.
Ward 's appraisal of Dennington 's ability as a machinist is not too complimentary.
He testified principally in generalities that Dennington was not a thorough machinist;
that he would start on a repair job , do some of it , but never finish; that after apparently
repairing a machine it would not run and he ( Ward ) would be obliged to ask Denning-
ton to repair it again ; and that , depending on the machine , he would sometimes have
to ask Dennington to redo a job "at least two , maybe even three days a week." Ward
also testified to Dennington 's inability to fix TTS machines asserting that after Den-
nington completed his repairs the machine would be in the same condition as before
"or in a worse shape" than when he started on it . Specifically , Ward referred to the
above-recited episode where Thomas adjusted a perforator previously worked on by
Dennington . Ward also testified that on September 12 he gave Dennington a
written unsatisfactory report for failing to adjust properly the counting mechanism
of two TTS perforators on September 10, for which he was warned "not to let it
happen again ." 63 On cross-examination , Ward testified to a minor breakdown of a
TTS perforator in February or the beginning of March for which Dennington was
responsible . However, he admitted that he had not reprimanded Dennington for it.
61 As indicated above , Dennington denied receiving any written unsatisfactory work
reports after the August 29 episode . It is also not clear whether the September 12
report referred to a machine that Thomas adjusted on September 13.
775-692-65-vol. 150--41
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ward also testified that of the total number of machines Dennington was under the
duty to keep in good condition and repair , 15 to 20 percent represented TTS per-
forators which Dennington was unable to repair.
During his cross-examination , Ward further recalled that early in April he had
some trouble on a straight-matter Linotype machine which Dennington was unable to
fix and told Dennington he was unhappy about it. However , Ward conceded there
were "some things" Dennington did well in repairing machines other than TTS per-
forators . On redirect examination by the Respondent 's attorney , Ward gave addi-
tional testimony that in August he had received from the manufacturer 's representa-
tives of the Intertype and Linotype machines 84 .verbal reports on which he replied, in
part , in determining to discharge Dennington . According to Ward , these individuals
advised him that the machines were neglected and did not receive proper daily and
weekly maintenance care. On re-cross -examination , Ward testified that he discussed
the matter with Dennington who insisted that the machines were receiving the required
routine maintenance care. Ward conceded that Thomas , the apprentice -machinist,
was also responsible for maintenance and repair but added that Thomas worked under
Dennington 's supervision . However, it is clear that Dennington was not a supervisor
and worked the day shift while Thomas worked at night . If Dennington were so
neglectful in his care and maintenance of the machines , it is curious that Dennington
was not given a written unsatisfactory report which the Respondent thought was
necessary during the Union 's organizational campaign in order to document an
employee's shortcomings should it become necessary for the Respondent to prove the
shortcomings at some future time. It is also interesting to observe that Thomas
testified that routine machine maintenance is better done at night during his shift
when machines are normally not in operation than in the daytime when the machinist
is primarily concerned with needed repairs to keep the machines running. Moreover,
he testified that he always adhered to a maintenance routine which had been estab-
lished before Dennington entered the Respondent's employ; that he was familiar with
maintenance requirements ; and that he performed such work without special instruc-
tions from anyone. '
As of the time of the hearing , Dennington had not been replaced . Ward testified
that he would take over Dennington 's job as soon as someone was located to assume
his position as mechanical superintendent and production director . He further testi-
fied that the Respondent contemplated sending him and Thomas to TTS school for
specialized training in repairing TTS machines . According to Dennington 's uncon-
tradicted testimony , he had made a similar suggestion to Publisher Harrison in late
August , and on an earlier occasion to Ward, that he or Thomas or both be sent to
such a school . Nothing came of this suggestion at least insofar as Dennington was
concerned.
Dennington impressed me as a candid , reliable witness and I credit his testimony.
I also find that Thomas also gave credible testimony. On the other hand, Ward's
testimonial appraisal of Dennington's ability as a,machinist had a distinct exaggerated
flavor designed to conceal the real reason for Dennington 's discharge . Indeed, one
may well wonder why, if Dennington were as incompetent as Ward tried to picture
him to be, he was retained as long as he was. In sum, I find that , while Dennington
undoubtedly encountered difficulties in repairing TTS perforating units, he generally
demonstrated competence in the repair of the other machines which comprised the
bulk of the machinery in the composing room.
B. Concluding findings
1. With respect to interference , restraint, and coercion
The Respondent's newspaper plant is not unionized ., Publisher Harrison admittedly
preferred to keep it that way. Undoubtedly, such an attitude or even the vigorous
expression of opposition to a union is well within an employer 's rights. It is only
when this opposition takes the form of coercive or discriminatory action to deprive
employees of their basic organizational rights that permissible statutory bounds are
overstepped.
As found above , the record is replete with evidence revealing not simply an aversion
to the Union , but a deliberate pattern of unlawful conduct by the Respondent designed
to frustrate and undermine the Union 's organizational campaign and to inhibit
employees in the exercise of their statutory rights. Specifically , I have heretofore
found the following:, (a) At the inception of the union movement, Publisher Harrison,
within the hearing of employee Strawn , directed Mechanical Superintendent Ward to
find out who was responsible for the organizational activities , stating that he would
64 These individuals were not produced as witnesses at the hearing.
GAINESVILLE PUBLISHING COMPANY, ETC. 625
"fire him on the spot' (b) at a. time before the'scheduled April 19 union meeting,
Ward questioned Thomas, the apprentice machinist, whether he heard about, and
planned to attend, that meeting and asserted that it would do him no good because the
Union would never secure a contract from the Company; (c) at a time after April 16,
Ward told Browning, who was then an employee, that Harrison saw no'•need for
"outside representation, adding that "things could get rough onus"; (d) on April 30,
after delivering his antiunion speech to'employees, Harrison announced that better
hospitalization benefits and a pension plan were under consideration; 65 (e) after a
group of employees met in employee Hertel's home to discuss' whether they should
join the Union, Ward and Foreman Caldwell informed employee Browning that they
and Harrison were well aware of that meeting and the names of the employees who
had joined; (f) at a time during the first 2 weeks in July, Caldwell told employee
Sparks that in the latter part of June' Harrison had acquired information that employees
had signed membership applications and'that a union meeting had then been scheduled
for Sunday, June 30; 66 (g) on June 26; Ward questioned Browning over the telephone
whether he had heard anything about a' union, and Browning replied that he heard
rumors that a union meeting was going to be held; (h) the following morning Caldwell
made an urgent visit to Browning's home, awakened him, and discussed with him the
employees', interest in outside representation and their grievances., Caldwell also asked
Browning whether it was true that a union meeting was going to be held. To Brown-
ing's suggestion that the ' umored meeting might be a joke, Caldwell responded that
it would be a serious one.' Substantially the same conversation ensued after Caldwell
returned a second time with Ward 30 to 40 minutes later. At this time, Ward or
Caldwell said that, if information concerning a union meeting were a joke, they
wanted to silence it because they feared that many people might get hurt; (i) on
another occasion about that time, Ward told Browning that Harrison would not sign a
contract with the Union; (j) on June 26 Ward, in a telephone conversation with
employee Lee, stated with obvious annoyance that someone was "trying to sabotage"
him and that there was going to be a "damn union meeting." Ward then questioned
Lee whether he knew anything about this meeting. In response to Lee's denial, Ward
asserted that three or four employees had informed him to the contrary; 67 (k) on
June 28 Ward told Lee over the telephone that he had three or four reliable informants
who had identified him'as the man with the applications and who collected the initia-
tion fees and knew all about the Union. Ward concluded with the ominous observa-
tion that Lee might just as well get another job; (1) on the same day, Harrison advised
employee, Arnold that he was aware that he had a union card. Although Harrison
stated that Arnold could retain it, Harrison warned him not to talk to any employee
at any time about the Union; 68 (m) also on June 28, Ward assured employee Gilford
that if the Union came into the plant he would not work with it but "would run it
out;" (n) on July 5, Pressroom Foreman Reynolds indicated to a group of-persons,
which included two employees, that employee Hertel •"had better watch, out" as she
was the next one on the list marked for discharge because of her union sympathies;
(o) on July 16, after employee Brown returned from her.vacation, Ward asked her
whether she was aware of what was going on, obviously referring to union activities,
and stated that Harrison would not sign any contract with'the Union and that a lot of
people were going to be hurt and referred Brown to two named nonunion employees
for particulars; (p) a few days later, Caldwell expressed his hope to Brown that she
would not become too involved with the Union, noting that the Company had been
very good to her; (q) on August 2, a day after Brown spoke to Union President
Midgette in the parking lot, Caldwell remarked to her that he noticed that she had
decided to go along, with the Union; (r) -in August Caldwell asked Machinist Denning-
ton on "which side of the fence" he was; (s) on another'occasion, Caldwell` questioned
him whether he would give up the Union to keep his job; and (t) in a document
directed to composing room employees after the Board's Regional Director scheduled
the representation election for October 4, the Respondent urged the employees to vote
"5 In view of the context in which this announcement was made, it appears reasonably
clear to me that the announcement carried the implication that employees would more
likely obtain these benefits if they rejected outside representation
16 This statement necessarily conveyed the idea that the Respondent was in a good- posi-
tion to learn about the employees' union activities and sympathies.
"r While it is not necessary to a finding of unlawful coercion that there be evidence
that the employee involved was actually put in fear of reprisals for his union activity,
Lee's immediate reaction was to turn to one of the Union's International representatives
for assistance.
Plainly, such- a warning, without limitation to an employee's actual' working time con-
stitutes an unlawful impediment to an employees, exercise of his self-organizational rights.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union and it would "settle the matter at once." On the other hand, the
Respondent there pointed out, a union victory would be futile because, unless it
decided to go to court to test the bargaining unit, it would begin collective bargaining
with the Union which "could goon for sometime before anything is settled."
In addition to the foregoing, I have found that the Respondent, by notice posted on
or about July 3 and effective July 12, changed the Saturday dayside assignments of
several senior employees who supported the Union to the night shift. I find that such
changes were made in reprisal for their union sympathies and not for production
reasons as urged by the Respondent. This is indicated by the Respondent's past prac-
tice of honoring seniority in making Saturday assignments; the timing of the changes;
Foreman Caldwell's reference to the meeting in employee Hertel's home when she
charged that union considerations prompted the shift changes and she denied that she
was a union member; and the Respondent's failure to produce any records which
no would be in its possession to show that nonunion employees were also reas-
signed to the Saturday night shift, if such were actually the case.69 Indeed, no such
contention is even advanced by the Respondent.
I further find that on or about September 27 the Respondent granted the composing
room employees a wage increase for the purpose of dissuading them from joining or
maintaining their membership in the Union or otherwise supporting that organization.
As discussed earlier in this Decision, the Respondent had no announced intention of
conferring a general wage increase on these employees before Publisher Harrison's
April 30 address to the employees. It was only at this meeting that Harrison, in reply-
ing to an employee's question as to the prospects of a wage increase, stated that he
believed an increase would be forthcoming in September or October if business con-
tinued to do as well as it was then doing. On August 20, the day the Board held a
hearing on the Union's representation petition, the Respondent issued a bulletin to the
composing room employees stating, among other things, that it could not "see how
the Union ... [could] offer you more than the Company's previously announced plans
"and observed that" [i]t's easy to make promises when you have no responsibility to
fulfill them." Thereafter, on or about September 27, upon learning that the scheduled
election was canceled because of the pending unfair labor charges herein, the Respond-
ent announced it was granting increases, effective immediately, which it was pro-
hibited from doing before while the election campaign was in progress. It is certainly
clear, however, that the Union had not then, nor has it at present, abandoned its
organizational drive while its charges were being litigated. Regarding the reason for
granting the increase on September 27, Harrison testified that he was only fulfilling
his April 30 promise because business was good and warranted it. Oddly enough,
Harrison testified that be did not take similar action with respect to inaugurating
new hospitalization and pension plans, although he wanted to, because he "wanted to
wait until this whole NLRB hearing election postponement and all this was out of
the way."
In these circumstances and viewing the increase in the light of the Respondent's total
conduct, I am convinced that the granting and timing of the increase was a deliberate,
effective demonstration that the employees had no need for "outside representation;
but that the Respondent could offer them more than the Union promises which the
Union had "no responsibility to fulfill." 70
In sum, I find that, by engaging in the foregoing acts, which were made even more
meaningful by its contemporaneous discrimination against employees as found
below, the Respondent interfered with, restrained, and coerced employees in violation
of Section 8 (a)( I) of the Act.71
2. With respect to the discontinuance of Ad Alley Foreman Norwood's
"override" and subsequent demotion
The General Counsel contends that the Respondent discontinued Foreman Nor-
wood's supervisory "override," thereby reducing his rate of pay, and subsequently
demoted him to a rank-and-file employee because of his refusal to participate in the
Respondent's unfair labor practices. It is his theory that such conduct amounts to
interference, restraint, and coercion of employees prohibited by Section 8(a) (1) of
69Interstate Circuit v. United States, 306 U.S. 208, 225-226; N.L.R.B. v. Sam Wallick
and Sam K. Schwalm, d/b/a Wallick and Schwalm Company, et at., 198 F. 2d 477,
483 (C.A. 3
70 Cf. NL
).
.R B. v. Exchange Parts Company, 375 U.S. 405.
711 find it unnecessary to decide whether, under the circumstances of this case, the
institution of written unsatisfactory work reports constituted an independent violation
of Section 8(a) (1) of, the Act. However, such reports themselves have relevance in
determining the allegations of discrimination.
GAINESVILLE PUBLISHING COMPANY, ETC. 627
the Act. On the other hand, the Respondent, although recognizing the validity of the
principle, argues that it is not applicable here because the withdrawal of the "override"
was due to Norwood's failure to exercise his supervisory responsibilities and his
subsequent demotion was prompted by his inattention to the bottleneck that developed
on employee Arnold's machine. In any event, the Respondent urges, the record does
not establish that employees were aware of the alleged reason for its disciplinary action
and hence its conduct could not interfere with employee rights within the meaning of
Section 8 (a) (1) of the Act.
It is clear from what I have heretofore found that the Respondent's asserted reason
for the withdrawal of the "override," without any prior notice or warning to Norwood
of his alleged supervisory shortcomings, was purely a pretext. Serving to underscore
this was Foreman Caldwell's tacit agreement with Norwood's accusation that the
Union was the true cause. Moreover, I can hardly believe that Norwood's inadvertent
failure to notice sooner than he did that Arnold's machine had bogged down really
dictated, under the circumstances, his summary demotion, especially in view of
Norwood's long service as a supervisor with an apparent satisfactory record of per-
formance.72 On the contrary, the record persuasively establishes that it was Nor-
wood's refusal to cooperate in the Respondent's program of interference, restraint, and
coercion of employees to defeat the Union's organizational drive that motivated the
Respondent's punitive action. Thus, Norwood declined to obey Publisher Harrison's
instruction that he report to Mechanical Superintendent Ward what transpired at the
then scheduled April 19 union meeting he had planned to attend. On June 26, when
questioned by Caldwell, he disavowed knowledge of the resurgence of the union move-
ment which had been dormant for about 2 months. The next day Norwood similarly
told Harrison, in answer to the latter's question, that he did not know whether
employee Gilford had recently obtained a union card. When Harrison abruptly
walked away angered by this reply, Norwood pursued him and explained that his lack
of information respecting union activities was due to the fact that he had been excluded
from the Union's confidence. At this point, Harrison made the ominous remark that
"he had handled this easy before but now he was going to handle it a different way."
The following day, Norwood lost his "override" until he could "prove" himself.
I have no doubt that the true reason for the Respondent's punitive action against
Norwood did not escape the rank-and-file employees. Apart from the fact that the
composing room employees worked in close contact with each other in a small shop,
Norwood was conspicuously aloof from the Respondent's vigorous antiunion campaign
in which the only other two supervisors in the composing room, Ward and Caldwell,
participated. Moreover, Norwood's longstanding membership in the International
Typographical was not a secret. In fact, it was Norwood who, at employee Lee's
request, made the initial contact with the Union's International representative to
organize the composing room employees. Moreover, the Respondent included Nor-
wood in the group of employees it rescheduled on or about July 3 for Saturday night
work in reprisal for their union sympathies.
In view of the foregoing, I find that the Respondent's withdrawal of Norwood's
override and his subsequent demotion clearly demonstrated to the employees the extent
to which it would go in order to thwart the execise of their self-organizational rights.
Inevitably, such conduct would impress upon the employees that they, too, risked
reprisals if they supported the Union. Accordingly, I find that the Respondent, by
taking the punitive action it did against Norwood, interfered with, restrained, and
coerced employees within the meaning of Section 8 (a)( I) of the Act.73
3. With respect to Lee's separation
There is no question that Lee was the leader in the union movement and that, among
other things, he extensively solicited employees to join the Union and arranged for
union meetings. His activities were well known to the Respondent. Indeed, on June
26, Mechanical Superintendent Ward, relying on information he received from three
or four individuals, impugned Lee's veracity when Lee, in answer to Ward's question,
denied he knew anything about a scheduled union meeting. On June 28, without any
explanation, Lee's work schedule was suddenly changed and he was removed from his
regularly assigned machine. When Lee spoke to Ward that evening about these
changes, Ward advised Lee that three or four informants had identified him as the man
73 About 2 months after his demotion the Respondent offered Norwood a night fore-
man's job.
73 Talladega Cotton Factory , Inc., 106 NLRB 295, enfd. 213 F. 2d 208 (C.A. 5) ;
cf. Miams Coca Cola Bottlsng Company doing business as Key West Coca Cola Bottling
Company, 140 NLRB 1359.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had the membership applications, received the initiation fees, and knew all about
the Union and suggested that he might just as well get another job. Thereafter, on
July 4 Lee was separated.
It is the General Counsel's position that Lee was discharged because of his union
activities. The Respondent insists that Lee resigned.
fhave heretofore found, contrary to the Respondent's contention, that Lee was
discharged. On the basis of my evaluation of the evidence detailed earlier in this
Decision, I further find that the only plausible explanation for Lee's termination was
the Respondent's displeasure with the prominent role he played in the Union's organi-
zational drive. Significantly, this was the observation, in retrospect, of John C.
Miller, the manager of the Respondent's Pepper Printing operation, when he told Lee
that had he left the Union alone, he probably would still be working for the Company.
Accordingly, I find that the Respondent discriminatorily discharged Lee to dis-'
courage membership in, and activities on behalf of, the Union and thereby violated
Section 8 (a) (3) and (1) of the Act.
4. With respect to Arnold's discharge
The Respondent maintains that it terminated Arnold's employment because of his
inability to operate the model 32 machine and not, as the General Counsel urges, for
union reasons. .
As previously discussed, Arnold was originally hired as a straight matter linotype
operator for 3 weeks to replace employees on vacation. However, on June 27, the
day before Arnold reported for work, Foreman Caldwell 'offered him a permanent
position which had opened up since his earlier interview. Arnold accepted. The next
day, he was assigned to straight matter work on a model 14 machine which he satis-
factorily performed until about July 5 when he was put on a model 32 ad machine, a
more complicated machine than the ones he was accustomed to operate. A few days
before, in response to Mechanical Superintendent Ward's inquiry whether he could
handle that machine and a model 35, Arnold stated that, although he had never
operated such large ad machines, he would try. It is undisputed that Arnold experi-
enced difficulties with the model 32, resulting in the July 10 episode when it bogged
down and ostensibly brought about the demotion of his supervisor, Norwood.
It is clear that, if the Respondent discharged Arnold solely because of his inability
to run the model 32 machine, it would not be a violation of the Act, no matter how
arbitrary this action would be. It is axiomatic that an employer may terminate an
employee for a good, bad, or no reason at all, provided he does not do it because of
union membership, sympathies, or activities. However, while it is not for the Board
to determine the sufficiency of an employer's nondiscriminatory reason for a discharge,
nevertheless it is equally well settled that where an employer's explanation for a dis-
charge "fails to stand under scrutiny," such failure renders his motives suspect and
strengthens the inference of discrimination.74
In the present case, there are many circumstances which reflect on the Respondent's
motivation. It appears from Norwood's credited testimony that Arnold had not been
given sufficient time to familiarize himself with that machine to be able to cope with
the extensive work that normally piled up on that machine. Moreover, the model 32
machine was actually the regularly assigned machine of Percy Green who was then
on vacation. Additionally, the model 35, which had previously been operated by,Lee,
was employee Gilford's permanent assignment . Also revealing is the fact that the
Respondent arbitrarily disregarded Norwood' s suggestion that Arnold be transferred
to another machine, which was then unmanned, for straight matter work. Ward and
Caldwell conceded Arnold's competence to perform such work and, in fact, later gave
him a reference to that effect.75 However, it appears- that shortly before Arnold
left the Respondent's employ and thereafter the Respondent hired straight matter
operators rather than retain or offer Arnold these jobs.
In the final analysis, I am led to the conclusion that it was the Respondent's demon-
strated hostility to the Union revealed in its other unfair labor practices and determina-
tionito stem the tide of unionization in its plant that prompted Arnold's discharge. The
very first day of Arnold's employment, Publisher Harrison made it clear to Arnold that
he was aware that Arnold possessed a union card. Although Harrison stated it was all
right for Arnold to have one, he admonished him to refrain from talking to employees
about the Union at anytime. Thereafter, on July 7, Arnold attended a union meeting
where he signed the charter of the local union which was then being organized.
44 N.L.R B. v. Thomas W. Dant, Robert N. Dent, et al , d/b/a Dant if Russell, Ltd.,
.207 F. 2d 165, 167. (C.A. 9).
76 The Respondent 's reference in its brief to Arnold's incompetency on machines other
than the ad machines mentioned above is obviously without record support.
GAINESVILLE PUBLISHING COMPANY, ETC. 629
Plainly, with the sources of information available to the Respondent, as the record
indicates, the Respondent was undoubtely aware 'of Arnold's active interest in the
Union. • ' • -
In view of the foregoing, I find that Arnold was a victim of the Respondent's anti-
union policy and accordingly find that his discharge was in violation of Section 8(a)
(3) and (1) of the Act. -
5. With respect to Hertel's discharge
The Respondent urges that, pursuant to its policy, it discharged Hertel because she
made a proofreading error in a streamer headline in which appeared the word "Grids"
instead of "Girds " The discharge was effected without any prior warning or notice
to Hertel, an employee with 13 years of faithful and competent service with the news-
paper. As one court so aptly observed: 76
Such action on the part of an employer is not natural. If the employer had
really ... no other circumstance in mind [than the assigned reasons], some word
of admonition, some caution that the offending lapse be not repeated, or some
opportunity for correction of the objectionable practice, would be almost inevi-
table. The summariness of the discharges of these employees, admittedly there-
tofore satisfactory, gives rise to a doubt as to the good faith of the assigned
reasons.
In my opinion, the asserted policy, in accordance with which the Respondent pur-
portedly acted, was nothing more than a temporary expedient to justify the discharge.
Indeed, there is no evidence that the employee responsible for a streamer headline
error,(the misspelled word "TOMORROW") appearing in the Respondent' s news-
paper published about 21/2 weeks after Hertel's discharge was similarly treated. More-
over, Foreman Caldwell's attempt to-buttress the utterly unpersuasive reason for
Hertel's discharge with a very serious accusation that she had engaged in a deliberate
slowdown on the same morning of the day of-her discharge also proved to lack convic-
tion. Not only did Caldwell testify that he was uncertain whether Hertel had heard
his accusation, but he also testified that he could not remember whether he mentioned
the slowdown to Publisher Harrison and other management officials when they made
the decision to dismiss her. -
I have no doubt that the actual reason for Hertel's discharge was her union mem-
bership and activities. It was in her home that a group of employees met and decided
to join the Union. When she protested to, Caldwell that she was not a union member
and therefore her Saturday working hours should not have been changed from the
day shift which, as a senior employee she had long enjoyed, to the nightside, Caldwell
was alert to allude to the June 23 organizational meeting which was held in her home.
Moreover, on July 7, Hertel was elected secretary-treasurer of the newly chartered
local union. It is not unreasonable to assume that the Respondent was aware of this,
as it was of her other activities. ,
Considering the Respondent's hostility to the Union and its unremitting campaign
to defeat it, the inescapable conclusion follows that the Respondent seized upon
Hertel's inadvertent proofreading error to get rid of a union adherent. Indeed, Press-
room Foreman Clyde Reynolds' prophetic, comment on July 5 after he had attended
a so-called antiunion meeting that Hertel-"had, better watch out because ... she was
the next one on the list to go" came true. ' Accordingly, I find that the Respondent
discriminated against Hertel in violation of Section 8(a),(3) and (1) of the Act.
6. With respect to Strawn's separation
The General Counsel's theory for finding unlawful discrimination against employee'
Strawn is-that, as part of its plan to eliminate supporters of the Union, the Respondent,
forced Strawn to quit his job by refusing to arrange a work schedule accommodated,
to his school program for the fall term at the University of Florida as it had custom-
arily done in the past. Denying that it was so motivated, the Respondent insists that it
assigned the 7 a.m. to_ 3:45 , p.m. shift to •Strawn because he was essentially a page
makeup man whose services were required during those hours in order to meet the
press deadline which had too often been missed. , -
I have great difficulty accepting the Respondent's explanation for refusing to arrange
a suitable work schedule for Strawn, who performed other duties as well as page
makeup. It is quite clear that in the. past the 'Respondent encountered no problem
76E. Anthony & Sons„Inc. v. N.L.R.B., 163 F. 2d 22, 26-2,7 (CA.DC. ), cert. denied
332 U S. 773. - ,+ . , , ,
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in accommodating his working hours to his school program, even though the hours
did not conform with established shifts. Certainly, there is no reason to assume that
such arrangements were not for the mutual benefit of the Company and Strawn. The
need for Strawn 's services during the fall school term was at least as great as before,
if not greater, in view of increased production requirements . It would, indeed , strain
one's credulity to believe for one moment that there was any possibility that Strawn
would accept the conditions of employment offered him and thereby preclude himself
from graduating in April 1964 . Yet, the Respondent was willing to forgo his serv-
ices, despite the fact that at that time it was advertising for printers to do various jobs
in the composing room. Moreover, casting further doubt on the Respondent's motive
is the fact that, although it argues that Strawn's services were most needed from 8:30
a.m. until press time when the production load was greatest to meet press deadline, it,
nevertheless, in July had initially proposed to revise Strawn's hours from his early
morning schedule to the 4 p.m. to 12:45 a.m. shift. Also not adequately explained
is the absence of any evidence that the Respondent gave serious consideration to the
idea of transferring an individual assigned to the night shift who was capable of per-
forming page makeup work to the day shift. Such a transfer would have afforded
Strawn an opportunity to continue to work while attending the University.
In my opinion , the only plausible answer for the Respondent 's disinclination to
provide Strawn with a realistic schedule under which he could work lay in Strawn's
union sympathies. Although at first the Union was a matter of indifference to him,
Strawn later decided to support the Union and attended the July 7 meeting at which
Local 911 was chartered. Following this meeting, Publisher Harrison's attitude
toward him changed and became visibly unfriendly. In the first week of August,
shortly after the Union had filed a petition for a representation election, Strawn told
Caldwell about Harrison 's coolness toward him . In the same conversation , the sub-
ject of an NLRB election was brought up with Caldwell impressing upon Strawn that
he would have to decided which way to vote. This elicited Strawn's unequivocal
reply that he would have to be on the side of his father-in-law, Dorus Norwood,
because his father-in-law's job was not worth a cent if the Union did not succeed. As
related above, Norwood's rate of pay had previously been reduced and he was later
demoted because of his reluctance to cooperate in the Respondent 's opposition to
the Union.
That it was Strawn 's union sympathies rather than production requirements that
brought about his separation is further cogently indicated by the fact that when he
applied for part -time sports assignments in another department Harrison directed
Assistant Sports Editor Cason not to hire Strawn. It is also significant that President
and Advertising Director Ebersole also thought it advisable first to check with Harri-
son whether he had any objection if Ebersole gave Strawn an assignment . Finally,
"very revealing" of the Respondent's motivation underlying Strawn 's separation is
Foreman Swartz' comment to Strawn after expressing his regrets to lose him that both
of them "knew why ... [Strawn] was leaving but he couldn't say it."
In light of the Respondent's announced hostility to the Union and all the facts and
circumstances surrounding Strawn 's termination , I find that the Respondent 's refusal
to arrange a satisfactory work schedule for Strawn was a convenient means for elim-
inating a union supporter and a prospective union vote in the anticipated Board repre-
sentation election . Such conduct was plainly tantamount to a constructive discharge
and a form of discrimination prohibited by Section 8 (a) (3) and (1) of the Act.
7. With respect to Glass' separation
Glass' case is comparable to Strawn's. Both were university students due to grad-
uate in April 1964, who worked for the Respondent part time under a schedule accom-
modated to their school program. However, while Strawn was willing to work during
the fall term a full 40-hour week but not the specific hours demanded by the Respond-
ent, Glass' school program would permit him to work on the required night shift but
not more than 25 to 30 hours a week which he had averaged during school terms in
the 4 years of his employment.
The Respondent contends that Glass voluntarily resigned because of his inability
to work a full 40-hour week which the Respondent imposed for production reasons.
I find, however, in agreement with the General Counsel , that actually Glass fell an
innocent victim to the Respondent 's discriminatory determination to eleminate Strawn,
a union supporter , from the plant by refusing to arrange a suitable work schedule for
him. Had the Respondent allowed Glass to continue to work under the prior condi-
tions of employment which were denied to Strawn, it would manifestly disclose the
Respondent 's hand. However, by imposing the same conditions on Glass, as it did
on Strawn , it can reasonably be assumed that the Respondent thereby expected "to
GAINESVILLE PUBLISHING COMPANY, ETC . 631
lend an air of legitimacy" 77 to Strawn's termination. If this were not the reason,
one may seriously question what production needs the Respondent intended to serve
by refusing to retain Glass. Neither at the time of the separation nor even at the time
of the hearing was the Respondent able to secure replacement for Glass. To meet this
deficiency, the Respondent was actually obliged to transfer the day operator to Glass'
night job.and, to put Foreman Caldwell on the machine in the daytime at the expense
of Caldwell's supervisory duties. In these circumstances, the fact that Glass was
indifferent to the Union can have no controlling significance.
It is true, as the Respondent urges, that in January 1963, before the advent of the
Union, Mechanical Superintendent Ward told Glass that it would be necessary to
work a 40-hour week the following fall. However, when Glass, at Ward's request,
attempted to work such hours during the spring term but was unable to continue
to do so because it interfered with his studies, Ward permitted him to revert to his
former 25- to 30-hour schedule, without indicating to Glass that he would be required
to resume a 40-hour week during the fall school term.
In view of the foregoing, I find that the Respondent discriminated against Glass,
as it did against Strawn, within the meaning of Section 8 (a) (3) and (1) of the Act.
8. With respect to Dennington's discharge
The Respondent contends that Dennington was discharged because of incompetence
and not because of his union membership or sympathies. However, as indicated
above, Dennington was not the incompetent machinist the Respondent vainly tried to
picture him to be. While he admittedly had his difficulties in repairing TTS per-
forating units, they were not substantially different from those experienced during the
earlier period of his employment. Indeed, at the time when he was hired, Dennington
informed Mechanical Superintendent Ward of his limitations due to the fact he had
never had formal, specialized training in the repair of TTS machines. It is also undis-
puted that in order to meet this problem Dennington suggested to Ward and Publisher
Harrison during the summer that he or Thomas, the apprentice machinist, or both,
be sent to a TTS school to develop these special skills. Although these suggestions
were disregarded at least insofar as Dennington was concerned, Ward, who intends
to replace Dennington as the machinist, testified that the Respondent planned to
send him and Thomas to TTS school.
From my careful examination of the evidence in this case, I am persuaded that,
whatever shortcomings Dennington might have had in the Respondent's eyes, they
were not the moving cause of the discharge. Significantly, the first warning Denning-
ton ever received that he risked losing his job was on August 29 when he was given
two written unsatisfactory work reports. This was after a Board hearing had already
been had on the Union's representation petition and after Foreman Caldwell had told
Dennington that the time had arrived for him to declare on "which side of the fence"
he was. Dennington's response was that he was "going along with the union." On
another occasion in August, Caldwell asked Dennington whether he would consider
abandoning the Union to hold this job.
In view of the foregoing and the Respondent's inflexible hostility to the Union, I
find that the Respondent's asserted reason for Dennington's discharge was merely a
pretext to cloak its determination to defeat the Union's efforts to represent its com-
posing room employees. This clearly violated Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and its free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and
desist from engaging in the unfair labor practices found herein and that it take certain
affirmative action designed to effectuate the policies of the Act.
Since the Respondent discriminatorily discharged employees Lee,78 Arnold, Hertel,
and Dennington, the Respondent shall offer them immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their senior-
71 N.L.R.B. v. L. J. Williams, d/b/a Williams Lumber Company , et at., 195 F. 2d 669,
772 (C.A. 4), cert. denied 344 U. S. 834 ; Wonder State Manufacturing Company v . N.L.R.B.,
331 F. 2d 737 (C.A. 6).
78 The offer heretofore made to Lee is manifestly not sufficient to remedy a discriminatory
discharge.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ity or other rights and privileges. The same reinstatement offer shall be made to
employees Strawn and Glass whose separation the Respondent also caused for-dis-
criminatory reasons. However, Strawn and Glass indicated at the hearing that they
had no intention of pursuing the printing trade upon their graduation from the' Uni-
versity of Florida. For this reason, the Respondent shall not be required to make
such reinstatement offer after their graduation. In addition to the foregoing, the
Respondent shall make all six employees whole for any loss of earnings they may
have suffered by reason of the Respondent's discrimination against them by the pay-
ment to each of them of a sum of money equal to that which he or she normally would
have earned from the date of the discrimination against him or her to the date of the
Respondent's offer of reinstatment less his or her net 'earnings during the said period.
With respect to Strawn and Glass, however, the Respondent's liability for backpay
shall be for a period not extending beyond their graduation from the university. Back-
pay shall be computed with interest on a quarterly basis in the manner prescribed' by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing
& Heating Co., 138 NLRB 716. '
I have also found that the Respondent, as part of its program of interference,
restraint, and coercion of employees, discontinued the supervisory "override" of
Norwood, thereby reducing his weekly earnings, and subsequently demoted him to
a rank-and-file employee because he refused to assist the Respondent in its unlawful
conduct.' To remedy this violation and to vindicate employees' self-organizational
rights guaranteed in Section 7 of the Act, I find that it will best effectuate the policies
of the Act if the status quo as it affects Norwood is reestablished.79 Accordingly, I
recommend` that the Respondent reinstate Norwood to his former supervisory or a
substantially equivalent supervisory position, without prejudice to his seniority or
other rights and privileges, and restore to him his previously' withdrawn supervisory
"override." Furthermore, I recommend that the Respondent reimburse Norwood
for all moneys lost by him from the time his "override" was discontinued until it is
restored, with interest at 6 percent.
'I have also found that the Respondent,changed employees' Saturday work schedules
for discriminatory reasons. To remedy this unfair labor practice, I recommend that
the Respondent reestablish the situation as it existed on or about July 3, 1963. This,
of course, does not mean that the Respondent may not in the future change work
schedules for legitimate business reasons.
The Union urges that an order issue directing the Respondent to bargain with it
as'the exclusive representative of the Respondent's composing room employees. Rely-
ing' on the Board's decision in Western Aluminum,80 the Union contends that such
an order is,necessary to cure the Section 8(a) (1) and (3) violations. The Respondent
,vigorously'resists this request, while the General Counsel maintains a neutral'position.
In my opinion, the Western Aluminum principle is inapplicable to the facts of the
present case. There, the complaint contained specific allegations that-the employer
'unlawfully' refused to bargain with the employees' exclusive representative, which
were thoroughly litigated at the hearing. Although'the, Board dismissed those-
allega-tions on the ground that the representative failed to make a bargaining request, the
Board concluded that since the Union had clearly established its majority status before
the employer 'committed unfair labor 'practices which were aimed at destroying this
majority, a bargaining order was appropriate under the circumstances. In contrast,
however,' the complaint in the present case did not allege an unlawful refusal to
bargain or even,a request for such relief.81 Indeed, the General Counsel scrupulously
avoided taking any position on this matter. While it is true that the Respondent's
unfair labor practices were designed to prevent the Union from securing majority
support, the, Union's majority in an appropriate unit at any particular time was not
'clearly established at the hearing.82 For this reason, a bargaining order might well
be in derogation of employees' guaranteed rights under Section 7 of the Act. Accord-
ingly, I deny the Union's request.
79 Talladega Cotton Factory, Inc., 106 NLRB 295, 299, enfd. 213 F. 2d 109 (CA., 5).
Clearly, the Respondent's offer to Norwood of a night foreman's job is not a substantially
equivalent supervisory position.
80 Western Aluminum of Oregon Incorporated, et al , 144 NLRB 1191.
81 Cf. Bannon Mills, Inc., 146 NLRB 611, where the General Counsel specifically indicated
in his complaint and in another document that he was seeking a remedial bargaining
order, although no Section 8(a) (5) violation was alleged. In that case the Board also
'found a`clear majority established at the time of the Union's second bargaining demand
and granted the requested relief.
88 At the hearing, the Union offered in evidence Charging Party's' Exhibits 'Nos.' 2, 3, 4,
'4 (a)',' 5, '5 (a), and 6 for identification. I reserved ruling on this offer., 'As ' these ex-
hibits are relevant on the question of remedy, I now receive them in evidence.
GAINESVILLE PUBLISHING COMPANY, ETC.c 633
'1 In view of the nature and' extent of the unfair . labor practices committed by the
Respondent , including discrimination which, as the Fourth Circuit Court of, Appeals
observed, "goes 'to the very heart of the Act," 83 I find ,a disposition on the Respond-
ent's part to engage in other unfair labor practices proscribed -by the Act-and,; unless
restrained , the Respondent , in all likelihood ; will.persist in, such conduct. . 1, accord-
ingly, recommend that the' Respondent cease and desist from in any other manner
infringing upon the rights guaranteed employees in Section 7.of the Act.84,
Upon the basis of the foregoing findings of fact and upon the , entire record in these
cases, I make the following:
CONCLUSIONS OF LAW
L The ' Respondent ' is engaged in commerce within the meaning , of Section 2(6)
and (7) of the Act. ' - ' . , ;
2. The Unions are labor organizations within the meaning of Section 2(5)-of
'the Act. • ' • .
3. By discriminating in regard to the hire and tenure of employment by Robert
Lamar Lee, Richard P. Arnold, Rosemary L. Hertel, William C. Strawn, Raymond
A. Glass, and Preston E . Dennington , as to discourage membership in, or activities
on behalf of, the Union, the Respondent has engaged in and is engaging in, unfair
labor -practices within the meaning of Section 8 (a) (3) of the Act.
4. By reason of the foregoing conduct and by reducing the earnings of Ad'Alley
Foreman Dorus ' E. Norwood and subsequently demoting him to a rank-and-file
employee because of his refusal to cooperate in the ' Respondent 's unfair labor prac-
tices, and by engaging in the pattern of conduct described in section III, C, 1, of this
Decision , the Respondent has interfered with, restrained , and coerced employees in
the exercise of their statutory rights within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
'RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law ai d' upon the entire
record in the case , and pursuant to Section 10(c) of the National Labor Relations Act,
as amended , it is ordered that the Respondent , Gainesville Publishing Company, a
Division of Cowles Magazines and Broadcasting , Inc., Gainesville , Florida, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from: , -
(a) Discouraging membership in Gainesville Typographical Union , No. 911 , Inter-
national Typographical Union , AFL-CIO, or in any other labor organization, by
discharging employees or discriminating against them in any other manner in regard
to their hire or tenure of 'employment or any term , or condition , of employment,
•except'to the extent that their rights in that regard may,be affected by an agreement
requiring membership in a labor organization as a condition of employment , as author-
ized by Section 8(a)(3) of the Act.
(b) Coercively interrogating employees concering ,,their union membership, sym-
pathies, activities , and meetings ; questioning employees as to whether they would
abandon the above-named Union in order . to retain their jobs ; warning employees
directly or indirectly not to get involved in the Union and that their ,,participation or
interest in union activities will adversely affect their.jobs and conditions of employ-
ment; advising employees to seek other jobs because their union activities were known
to the Company; telling employees that another employee was marked for discharge
because of his or her union sympathies; threatening to run the Union out of the plant;
informing employees that it knew the employees who had joined the Union, attended
union meetings , and engaged in other union activities ; impressing upon employees that
the selection of the Union to represent them was a futile act since the Respondent
would never enter into a ' contract with it but would engage in dilatory bargaining
tactics: announcing during the Union's organizational campaign that improved hospi-
talization benefits and a new pension plan were under consideration , and thereafter
,actually granting a wage increase , for the purpose of discouraging employees from
supporting the Union; changing work schedules in reprisal for employees' union
sympathies and activities ; warning employees not to talk to other employees about
the Union at any time; and penalizing supervisory employees , by demoting them,
reducing their rate of pay, or discriminating against them 'in any other manner
because of their , refusal to participate in the Company's unfair labor practices.
81 N L.R B. v Entwistle Mfg. Co. , 120 F. 2d 532, 536 (C.4. 4).
81 N.L R B. v. Empress Publishing Co., 312 U.S 426, 433.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining,.or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist the above-named Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Offer Robert Lamar Lee, Richard P. Arnold, Rosemary L. Hertel, William
C. Strawn, Raymond A. Glass, and Preston E. Dennington immediate and full rein-
statement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each of them whole for any
loss of earnings suffered by reason of the discrimination against him, as provided in
"The Remedy" section of the Trial Examiner's Decision.
(b) Offer Dorus E. Norwood immediate and full reinstatement to his former, or a
substantially equivalent supervisory position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of earnings suffered by
reason of the Respondent's unlawful conduct, as provided in the section of the.Trial
Examiner's Decision entitled "The Remedy."
(c) Reestablish the Saturday work schedule as it existed on or about July 3, 1963,
before the Respondent changed it for discriminatory reasons.
(d) Preserve and, upon request make available to the Board or its agents, for exam-
ination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other reports necessary to analyze the amount
of backpay due and the right to reinstatement undeFthe terms of this Recommended
Order. '
(e) Post at its place of business in Gainesville, Florida, copies of the attached
notice marked "Appendix." 85 Copies of said notice, to be furnished by the Regional
Director for Region 12, shall, after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 12, in writing, within 20 days from
the receipt of the Trial Examiner's Decision and Recommended Order, what steps the
Respondent has taken to comply herewith.88
85 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
88 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director for Region 12, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Gainesville Typographical Union,
No. 911 , International Typographical Union , AFL-CIO, or in any other labor
organization , by discharging employees or discriminating against them in any
other manner in regard to their hire or tenure of employment or any term or
condition of employment, except to the extent that their rights in that regard
may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorization by Section 8 (a) (3) of the Act.
WE WILL NOT coercively interrogate our employees concerning their union
membership , sympathies , activities , and meetings ; question employees whether
GAINESVILLE PUBLISHING COMPANY, ETC., 635
they would abandon the above -named Union in order to retain their jobs; warn
our employees directly or indirectly not to get involved in the Union and that
their participation or interest in union activities will adversely affect their jobs
and conditions of employment ; advise employees to seek other jobs because their
union activities were known to the Company; tell employees that another
employee was marked for discharge because of his or her union sympathies;
threaten to run the Union out of our plant; inform employees that we know the
employees who had joined the Union , attended union meetings , and engaged
in other union activities ; impress upon employees that the selection of the Union
to represent them was a futile act since the Company would never enter into
a contract with it but would engage in dilatory bargaining tactics; announce dur-
ing the Union 's organizational campaign that improved hospitalization benefits
and a new pension plan were under consideration , or actually grant a wage
increase , for the purpose of discouraging employees from supporting the Union;
change work schedules in reprisal for employees ' union sympathies and activities;
warn employees not to talk to other employees about the Union at any time;
or penalize supervisory employees by demoting them , reducing their rate of pay,
or discriminating against them in any other manner because of their refusal to
participate in the Respondent's unfair labor practices.
WE WILL NOT in any other manner interfere with , restrain , or coerce employ-
ees in the exercise of their right to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other labor organization, to bar-
gain collectively through representatives of their own choosing , to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized by Section 8(a)
(3) of the Act.
WE WILL offer to our employees listed below immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges , and make them whole for any loss of
earnings suffered by reason of the discrimination against them , as provided in
the section of the Trial Examiner 's Decision entitled "The Remedy."
Robert Lamar Lee Rosemary L. Hertel Raymond A. Glass
Richard P . Arnold William C. Strawn Preston E. Dennington
WE WILL offer Dorus E. Norwood immediate and full reinstatement to his
former or a substantially equivalent supervisory position , without prejudice to
his seniority or other rights and privileges , and make him whole for any loss of
earnings suffered by reason of the Respondent 's unlawful conduct , as provided
in the section of the Trial Examiner's Decision entitled "The Remedy."'
WE WILL reestablish the Saturday work schedule as it existed on or about
July 3, 1963 before the Respondent changed it for discriminatory reasons.
All our employees are free to become , remain , or refrain from becoming or remain-
ing, members of Gainsville Typographical Union, No. 911, International Typograph-
ical Union, AFL-CIO, except to the. extent that such right may be affected by an
agreement , requiring membership in a labor organization as a condition of employ-
ment , as authorized by Section 8(a)(3) of the Act.
GAINESVILLE PUBLISHING COMPANY, A DIVISION OF COWLES
MAGAZINES AND BROADCASTING, INC.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the-date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office,' Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they
have any questions concerning this notice of compliance with its provisions.