Dailey News Tribune

National Labor Relations Board - Board Decisions

Nov 23, 1959

125 N.L.R.B. 260 (N.L.R.B. 1959)

260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
many of whom , like themselves , have no direct contact with guests
Their function in the operation of the hotel is not markedly different
from that of housekeeping and custodial employees Both groups are
engaged in maintaining the hotel premises and facilities in clean and
serviceable condition , to the end that the Employer may successfully
cater to the needs and desires of its guests, and both groups work
throughout the hotel In some instances the work performed by
maintenance employees and housemen is identical , and there is some
interchange between them On the basis of the foregoing , we find that
the employment interests of hotel maintenance employees are not,
normally , sufficiently distinct from those of other employees as to com-
pel their establishment in a separate bargaining unit Accordingly, as
the Employer 's repair and maintenance employees do not meet the
Board's test for grouping as a separate craft, and as there is neither a
history of bargaining in support of the requested unit, or an agree-
ment between the Employer and the unions involved as to its appro-
priateness , factors which we would consider as indicative of the prac-
ticality and feasibility of such a unit and as warranting an exception
to this general rule as to maintenance units in the hotel industry, we
find that the unit requested by the Operating Engineers is inappropri-
ate for purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act VNe shall, therefore , dismiss the petition in Case
No 12-RC-461
We find that the following employees of the Employer constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act
All employees at the Employer 's Miami Beach, Florida, hotel, in-
cluding the housekeeping department , laundry, dining room, kitchen
department , bar department ( including food checkers and cashiers),
telephone department, front service department, and repair and main-
tenance department , but excluding all office and clerical employees,
guards, and supervisors as defined in the Act
[The Board dismissed the petition in Case No 12-RC-461 ]
[Text of Direction of Election omitted from publication ]
Fullerton Publishing Company d/b/a Daily News Tribune and
Los Angeles Newspaper Guild, Local No. 69, American News-
paper Guild, AFL-CIO. Case No 21-CA.-3296 November 23,
1959
DECISION AND ORDER
On June 9, 1959, Trial Examiner Martin S Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
125 NLRB No 30
DAILY NEWS TRIBUNE 261
Respondent had engaged in certain unfair labor practices alleged in
the complaint to be in violation of Section 8 (a) (1) and (3) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and find's that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations 1 of the Trial Examiner.
Like the Trial Examiner, we find that Fuller's discharge was
discriminatorily motivated. On October 20, 1958, Fuller attended a
union meeting and signed a union card. On October 27, 1958, Man-
aging Editor Johnson of the Respondent, having heard a rumor of
union activity among the employees, questioned Fuller concerning the
union activities of himself and of other employees. Fuller admitted
he had joined the Union but refused to divulge the names and
activities of other employees. On October 27 and 28, Johnson system-
atically questioned other employees as to their -knowledge of union
activities; lie questioned employee Hardy specifically about Fullers
participation in such activities. Johnson learned from his investiga-
tion that Fuller alone had signed a union card. On October 29, in the
middle of a pay period, and just before the impending November 4
election which he was scheduled to cover, Fuller was summarily
discharged.
While the Respondent claims that the discharge was motivated by
economic considerations and points to circulation, advertising lineage,
and mechanical costs figures, the record shows that, at the time of
Fuller's discharge, both circulation and advertising lineage were on
the increase and mechanical costs were decreasing. Also, almost
simultaneously with Fuller's discharge, a substantial number of the
employees in Fuller's department were given wage increases.
A secondary reason given by Respondent for Fuller's discharge was
the quality of Fuller's work. Suffice it to note, however, that only 2
weeks before the discharge, Fuller was granted a $25 a month raise, to
be effective November 1, 1958.
In view of the nature of the unfair labor practices committed, the commission by
the Respondent of similar and other unfair labor practices may be anticipated. The
remedy which we utilize in this case should be coextensive with the threat. It will there-
fore be ordered that the Respondent cease and desist from infringing in any manner oR
the rights guaranteed in Section 7 of the Act.
535828-60-Vol. 125-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, and upon the entire record, we find that
Fuller was discharged because of his union activities and that the
Respondent thereby violated Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Fullerton
Publishing Company d/b/a Daily News Tribune, Fullerton, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Los Angeles Newspaper Guild,
Local No. 69, American Newspaper Guild. AFL-CIO, or in any other
labor organization of its employees, by discriminating in regard to
hire or tenure of employment, or any term or condition thereof, except
to the extent permitted under Section 8(a) (3) of the Act.
(b) Asking employees to inform Respondent as to progress of
union organization, or interrogating employees concerning their union
activities and questioning employees as to the identity of union
adherents, in a manner constituting interference, restraint, or coercion
in violation of Section 8 (a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all of 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 in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Andrew Fuller immediate and full reinstatement to his
former or a substantially equivalent 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 discrimination against
him in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amounts of back pay due
under the terms of this Order.
DAILY NEWS TRIBUNE 263
(c) Post at its plant at Fullerton, California, copies of the notice
Copies of said notice, to beattached hereto marked "Appendix A." 2
furnished by the Regional Director for the Twenty-first Region, shall,
after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof and maintained for a
period of 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activity on behalf
of Los Angeles Newspaper Guild, Local No. 69, American News-
paper Guild, AFL-CIO, or any other labor organization of our
employees, by discriminating in any manner in regard to hire or
tenure of employment, except to the extent permitted under Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Andrew Fuller immediate and full reinstate-
md'nt to his former or a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and we
-will make him whole for any loss of pay suffered as a result of
our discrimination against him.
WE WILL NOT ask employees to inform us as to the progress of
union organization or interrogate employees concerning their
union activities and question employees as to the identity of union
adherents in a manner constituting interference, restraint, or
coercion in violation of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form, join, or assist Los Angeles Newspaper Guild,
Local No. 69, American Newspaper Guild, AFL-CIO, to bargain,
collectively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective bargain-
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or other mutual aid or protection, and to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain, or refrain from be-
coming or remaining, members of the above-named or any other labor
organization, except as provided under Section 8(a) (3) of the Act.
FULLERTON PUBLISHING COMPANY
d/b/a DAILY NEWS TRIBUNE,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard at Los Angeles, California,.
on March 23, 24, and 25, 1959, pursuant to a complaint of the General Counsel
and an answer by Respondent, Fullerton Publishing Company d/b/a Daily News-
Tribune. The issues litigated were whether Respondent engaged in certain conduct
violative of Section 8(a)(1) and (3) of the Act. The parties waived oral argument.
and have duly submitted briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Fullerton Publishing Company d/b/a Daily News Tribune is a California corpora-
tion with its principal office at Fullerton, California, where it is engaged in the
publishing of a daily newspaper. During the year 1958, Respondent's gross volume
of business was in excess of $200,000, and I find that its operations affect commerce.
Belleville Employing Printers, 122 NLRB 350.
H. THE LABOR ORGANIZATION INVOLVED
Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild, AFL-
CIO, is a labor organization admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues; interference, restraint, and coercion
In October 1958 the Guild commenced organizational activities among the previ-
ously unorganized employees of Respondent's news department. This department
is headed by Managing Editor Leif Johnson, who then had 12 employees under
his general supervision; not directly involved herein were the other departments of'
the newspaper such as the composing room, pressroom, business office, and circula-
tion and advertising departments. These other departments are headed by super-
visory officials substantially on a par with Johnson.
The 12 employees on Johnson's staff included two general assignment reporters,
a telegraph or wire editor, a feature writer, a sports editor, a reporter assigned to the
sports editor, and two women's department editors. Also included was complainant
Andrew Fuller, the county editor, and two reporters attached to him. An issue
herein is whether Fuller was a supervisory employee under the Act, specifically in,
his relationship with the two county reporters.
DAILY NEWS TRIBUNE 265
A primary issue is the discharge of Fuller by Respondent on October 29, 1958.
The General Counsel contends that the discharge resulted from his union activities,
whereas Respondent alleges that Fuller was released primarily for economic consid-
erations and secondarily for work which in part was unsatisfactory. The complaint
further alleges that Johnson engaged in unlawful interrogation of employees and
solicited information on union activities during the period from October 27 through
30, 1958.
During October, Fuller was approached by one of his coworkers, Margaret Burrell,
and was informed that the Union was interested in organizing the employees of
Respondent. He attended several meetings including one on October 20. This
last meeting was also attended by Burrell, by another employee, Sports Editor Stan
Jones, and by Sidney Meenes, an organizer for the Guild. Fuller signed a card and
paid his initiation fee on this occasion and those employees present agreed to consider
the organization of a unit at Respondent.
Managing Editor Johnson testified that in the latter part of October, Business
Manager Long mentioned that he had heard a rumor to the effect that there was
discussion of the Union among the employees. In an attempt to verify the rumor,
Johnson proceeded to interrogate a number of the male employees of his depart-
ment during the next few days. He admittedly continued from one to the next
in this manner because, as he put it, some had heard of the Union and some had not.
Johnson testified that Fuller was the only one in the office at the time Long passed
on this information to him and as a result he spoke initially with Fuller. As this
talk with Fuller took place during the afternoon of October 27, 3 find that Johnson
learned of the union activity at that time. Johnson summoned Fuller to an area
where it was feasible to hold an undisturbed conversation. He then stated, according
to Fuller, and I find, "Andy, I want an honest answer from you. We have heard
some reports about the Guild being after you." Fuller admitted that he was a mem-
ber of the Guild. Johnson asked when this had come about and Fuller replied,
"Just recently." Johnson asked why he had joined and Fuller stated that he ad-
mired what the Guild "stands for and think it is a good thing."
Johnson asked whether someone on the staff of Respondent or an outsider was
trying to organize the staff. He also asked when Fuller had joined and who else
on the staff was involved. Fuller uniformly replied that he ought not to discuss
this matter with Johnson. Johnson then suggested that in loyalty to Respondent
Fuller should supply this information instead of displaying loyalty to the Guild.
Fuller responded that he was not disloyal to the paper but that he did not feel free
to divulge this information to Respondent. Johnson then stated that Respondent
did not "like the idea of the Guild being there" because it created dissension between
Respondent and its employees, particularly so at a time when Respondent was
planning construction of a new plant as well as the giving of pay raises to the staff.
He expressed regret that Fuller could not give him more information and thanked
him for that which he had furnished.'
Sports Editor Stan Jones then entered the office and Johnson spoke with him
,directly after his talk with Fuller. He testified that he told Jones there had been
talk about the Guild and asked if he had heard any discussion on the topic. Jones
admitted that he had heard some of the employees discussing the Guild. Johnson
originally testified that he did not ask Jones to name those who were discussing
the Guild although he did admit that several names were mentioned. He later
testified that he "may have" asked Jones who had been discussing the Union but
believed that Jones had volunteered the names. Still later, Johnson admitted that
"I asked him who had been talking of the Guild," and that Jones then submitted four
1 Johnson's briefer version of the talk was not in substantial conflict with that of
Fuller. He admitted asking Fuller if he had heard any discussion of the Guild. Fuller
allegedly admitted having a card but stated that he knew of no organizational activity
and that he had nothing against the paper. Johnson asked how he happened to join the
Guild and what was wrong. Fuller replied that lie was sympathetic to labor unions.
Some discussion followed which Johnson did not specifically recall except that he In-
quired whether Fuller was displeased with office facilities or with a pay raise he had
been promised on or about October 17, effective November 1. The conversation ended
with Johnson telling Fuller that union membership was an individual's prerogative.
Significant here, as in the other talks described below, is the fact that Johnson admittedly
was somewhat uncertain as to precisely what he said to each employee. Furthermore,
his testimony, particularly when testifying initially for the General Counsel, was marked
by vagueness and a poor recollection. He frequently prefaced his remarks by a statement
that he might have made a particular statement. Accordingly, Fuller's testimony has
been credited herein as a more reliable reflection of what was actually said.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names, namely Fuller and three others, Keller, Portley, and Burrell. I find that
Johnson did ask Jones for the names on this occasion.
Jones also told Johnson that a representative of the Guild had spoken with him.
Johnson asked Jones what the difficulty was and Jones replied that it would be
pleasant to receive "$122 a week." This was manifestly -a reference to the Guild
scale and Johnson so construed it. Jones also referred to inadequate facilities in
the office and Johnson replied that Respondent had plans for a new building. The
meeting ended and, according to Johnson, "I may have mentioned to Stan [Jones]
if the heard anything, to let me know.. .. "
On the evening of the same day, Johnson telephoned Reporter Donald Keller at
his home. He admittedly asked if Keller had heard of any Guild activities at the
office and Keller replied that he had not. Keller testified, and I find, that at the end
of the conversation Johnson asked him to advise him of any developments in this
area and that he, Keller, agreed to do so. As will appear, Keller did precisely that
several days later.
On the following day, October 28, Johnson engaged Reporter Dave Roque in a
conversation. He told Roque that a rumor was prevalent of union discussions in
the shop and asked if Roque had heard anything about them. Roque replied in the
negative.
Johnson spoke in identical fashion that day with John Mihalaros, a reporter in
the newsroom. In response to Johnson's query, Mihalaros stated that he had heard
about the union activities and that there was some Guild talk. According to
Johnson, Mihalaros might have stated that he, Mihalaros, had been approached
about the Guild.
On October 27 or 28, Johnson had a conversation with Donald Hardy, wire editor
in the newsroom. According to Hardy, and I so find, Johnson stopped him in the
shop and asked him if he "had heard anything about Andy [Fuller] and the Guild."
Hardy replied that Fuller had told him he had joined the Guild and that this was
the extent of his, Hardy's, knowledge.2
On October 28, Union Organizer Meenes and Stanley Jones, the sports editor,
came to the home of Keller. Meenes explained the benefits of union organization
and Keller agreed to consider the matter. On October 30, Keller, as he testified,
and proceeding in accordance with Johnson's request of October 27 that he keep
him posted, informed Johnson of the visit by the Guild representative and said that
literature had been left at his home. Johnson made no reply on this occasion.
Jones, according to Johnson. telephoned within ia couple of days after October 29,
referred to a union meeting scheduled for that evening, and asked whether he should
attend. Johnson told him to use his own judgment. As noted, Johnson admitted
that he might have previously told Jones to let him know if he heard anything further.
Mihalaros also reported to Johnson at about this time that he had attended a meet-
ing with union representatives but further that he was not interested in joining.
B. The discharge of Andrew Fuller
1. The facts
Andrew Fuller entered the employ of Respondent in October 1957 as county editor,
a position he held until his discharge on October 29, 1958. About 2 weeks before
his discharge he requested a pay raise from Managing Editor Johnson. The latter
replied that he would think it over and 2 or 3 days later informed Fuller that he
was granted a $25 a month raise effective on November 1, 1958. As set forth,
Fuller signed a union card and paid an initiation fee on or about October 20. He,
as well as other employees, was questioned by Johnson concerning this topic, as
detailed above.
Respondent normally holds a staff meeting of department heads on Friday morn-
ings. The meeting during the week commencing Monday, October 27, was held on
Wednesday morning, October 29, 1958, because, according to Johnson, Editor and
Publisher Edgar Elfstrom was scheduled to be out of town on that Friday. At this
2 Johnson claimed that this was a telephone conversation , that he asked Hardy if he
had heard anything of union activities in the plant , and that Hardy volunteered that
Fuller had told him several weeks earlier he had a card . This being after his talk with
Fuller , Johnson conceded that he might have mentioned to Hardy that Fuller had previ-
ously told him, Johnson , that he had a card and that he might have had other talks with
Hardy. The testimony of Hardy, who is still in Respondent ' s employ , impresses me as
the more reliable , in view of considerations previously expressed herein , and has therefore
been credited.
DAILY NEWS TRIBUNE 267
meeting, inter alia, Elfstrom allegedly instructed Johnson to reduce the staff of the
news department by two persons because the news department payroll was too high.
No names were used and it does not appear that Johnson was instructed to reduce
the payroll by any specific figure in terms of dollars. Elfstrom left the choice of
the two employees to Johnson who decided shortly after the meeting that Fuller and
Margaret Burrell, a feature writer who originally introduced Fuller to the Union,
could best be spared. Johnson then conveyed his decision to Fuller and Burrell
separately. According to Johnson, the two employees knew of their selection for
discharge before Elfstrom did.
Fuller and Johnson are in substantial agreement that Johnson told Fuller that
the paper's economic position was bad because of a drop in advertising revenue and
that the payrolls were higher than ever. This was set forth as the primary reason
for the reduction in force. He also told Fuller that although his performance was
good in most respects, it had not been up to par in some. However he stressed
the fact then, as does Respondent herein, that this was not the primary reason for
the termination of Fuller.
It is clear and I find, that according to Respondent, Fuller was terminated
primarily for economic reasons. Hence it becomes unnecessary to consider in detail
the purported secondary reason for his termination because it is clear, on Respon-
dent's theory of the case, that but for the economic crisis Fuller would not have been
terminated.
2. Alleged supervisory status
Respondent has contended that Fuller was a supervisor and therefore not pro-
tected under Section 8(a) (3) of the Act. A preponderance of the evidence discloses
that Fuller did not possess the attributes of a supervisor within the meaning of Sec-
tion 2 (11) of the Act.
Respondent's news department headed by Johnson consisted of 12 persons. Those
designated as editors included a wire or telegraph editor, a sports editor, two women's
editors, one of whom was also known as the club editor, and the county editor,
Fuller. With the exception of the women's editors, all members of the news de-
partment operated from desks located within a few feet of each other and of Johnson.
As county editor, Fuller's duties included the reporting of news, in the same man-
ner as the other reporters; the writing of a column; preparation of a women's feature;
editing; and processing the news copy of two suburban reporters in the department.
He also coordinated coverage by these two reporters and himself of local news in
surrounding towns. His responsibility as county editor was primarily to prepare
news stories for use on the county page, an interior page devoted to local rather than
State, National, or World news. Almost all of these stories were considered
routine by Respondent. When a local story appeared to be of particular interest,
Fuller would notify Johnson and the latter would then decide whether it merited
treatment on the front page. If he so decided, Johnson proceeded to edit the story
and would then submit it to the wire editor who handled the front page for headline
writing and for position on the page.
At the time material herein, two suburban reporters were assigned to Fuller.
They had certain routine beats to cover, such as police records and city council
meetings. When special events or activities came up in their geographic territory,
Fuller was responsible for insuring that a reporter covered the event. Fuller ad-
mitted herein .that if one of the two reporters fell down on an assignment he, Fuller,
would point out the error of his ways to the offender; on occasions Johnson would
also instruct Fuller to do so.
It is uncontroverted that Fuller never hired, laid off, discharged, or disciplined
any employees, nor did he recommend such action. In fact, during Fuller's tenure
on the paper Respondent on three occasions hired suburban reporters to work with
Fuller. These employees were interviewed and hired by Johnson and in no case
was Fuller even consulted. His first knowledge of the hiring came when Johnson
introduced him to the newly hired employee. A similar pattern was followed
when Respondent terminated a suburban reporter who worked with Fuller. Fuller
was not consulted prior to the termination and he learned of the fact from the
reporter as well as from Johnson at about the time that the reporter was leaving.
While there is evidence that on one occasion Fuller gave an employee some time
off, the facts are that a suburban reporter informed Fuller one afternoon that he
was ill; that Johnson was not in the office at the time; and that Fuller told him he
might as well go home. This involved approximately I hour's absence. Fuller
uncontrovertedly testified that had Johnson been present he, Fuller, would have
referred the employee to Johnson. As is apparent, this is at best an isolated and
minor incident. See The Daily Review, Inc., 111 NLRB 763.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum, slightly over one-half of Fuller's duties or time involved the gathering of
news just like any other reporter . The remainder of the time was spent at his
desk reading copy and rewriting it. His duties as county editor involved the
handling of routine country news and anything potentially other than routine was
referred to Johnson who decided whether it was routine or not and then handled
it personally if he decided the story so warranted.3
Fuller's alleged direction of the two suburban reporters involved responsibility for
seeing that stories were covered and at the most may be likened to the duties of a
leadman. See The Peoria Journal Star, Inc., 117 NLRB 708, 709-712, and Greens-
boro News Company, Inc., 85 NLRB 54, 55. This department of 12 was divided
between 6 who had the title of editor and 6 who did not. While the respective editors
were not all paid in the same manner , there is evidence that the sports editor, Jones,
received more money than Fuller and that a reporter , included among the 12, was
assigned to Jones. The wire editor , Hardy, received more than Fuller did and the
feature writer , Burrell, received the same pay as Fuller.
Respondent makes no contention as to the supervisory status of these other
editors, but if Fuller was a supervisor it would logically follow that the other editors
also were , in view of the pay scales . This would leave the department with two
groups of employees , six supervisors and six rank-and-file employees , hardly a ten-
able result with one supervisor for every rank-and-file employee, and a departure
from the customary supervisor -employee numerical ratio. See Westinghouse Air
Brake Company, Union Switch & Signal Division (Supplemental Decision), 123
NLRB 859; Pennsylvania Power & Light Company, 122 NLRB 293; American
Radiator & Standard Sanitary Corporation , 119 NLRB 1715, 1718; Saginaw Furniture
Shops, Inc., 118 NLRB 421; United States Gypsum Company, 116 NLRB 1140,
1144; and Girdler Co., et al., 115 NLRB 726, 729. I find in view of all the fore-
going considerations that Andrew Fuller was an employee and not a supervisor
within the meaning of the Act . N.L.R.B. v. Swift & Company, 240 F. 2d 65 (C.A.
9); and Precision Fabricators v. N.L.R.B., 204 F. 2d 567 (C.A. 2).
C. Analysis and conclusions
As set forth, Fuller signed a union card and attended a meeting of union sympa-
thizers on or about October 20, 1958. On October 27, Managing Editor Johnson
asked Fuller if reports that he was involved with the Guild were true, and Fuller ad-
mitted that he had recently joined. Fuller then refused to comply with Johnson's
request that he advise him who on the staff of the paper was involved.
Johnson immediately thereafter queried Sports Editor Jones as to who on the
paper was interested in the Guild. Jones furnished him with four names, including
that of Fuller. Johnson also proceeded on October 27 and 28 to question employees
Keller, Roque, and Mihalaros of the news department concerning Guild discussions
among employees of the paper. Finally Johnson specifically asked Wire Editor
Donald Hardy if he had heard anything about Fuller and the Guild, and Hardy
replied that he had heard Fuller had joined. All of these discussions took place on
October 27 and 28, and on the following day, October 29, Fuller was discharged.
Respondent has introduced considerable evidence in support of its claim that Fuller
was discharged on October 29 as the result of a decision to reduce salary costs in
the news department. This testimony may be summarized as follows. According to
Publisher Edgar Elfstrom, the rate of growth of Respondent's circulation had slowed
down considerably in 1958. The record supports this claim as well as the claim that
circulation had slumped during the summer months as it customarily did. It is to
be noted, however, that the September 1958 circulation increased slightly over that
of the previous month and that the October 1958 circulation increased, in turn,
over that of September. It is further to be noted that September and October 1958
circulation figures were substantially in excess of the figures for the corresponding
months of the previous year.
Elfstrom also testified that advertising lineage in 1958 was decreasing. He claimed
that the figures for the first 9 months in 1958 were less than the figures for the corre-
sponding period in 1957, and that this indicated the need for action on his part to
either increase lineage or reduce costs. This resulted from a drop in advertising
starting approximately in February 1958 caused by several reasons, including mergers
of retail food stores, less advertising, and either the discontinuance or reduction
of advertisements by accounts. While the figures introduced in evidence support
3In one statement given prior to the hearing Fuller stated that an employee was under
his "supervision." Not only was this Fuller's conclusion, but the pertinent facts with
respect thereto, as set forth herein, are consistent with the conclusions reached below.
DAILY NEWS TRIBUNE 269
this claim by Elfstrom, it is to be noted that the figures on advertising lineage are
available to Respondent at the end of each month and that the September 1958 line-
age increased over the August figures in contrast to those months in 1957.
In June and July 1958 Respondent took steps to reduce its mechanical costs.
This economy was accomplished by reducing the hours worked by part-time employ-
ees in the mechanical department; no full-time employees were eliminated, however.
Paradoxically, as will appear below, it was during this same summer period that
Elfstrom discussed with Johnson and approved a plan to give wage increases to
the news department employees later that year.
The record discloses that all policy decisions are made by Elfstrom who testified
that the matter concerning economy in the news department came to a head on
Wednesday, October 29. Normally staff meetings of department heads are held
by Elfstrom on Fridays. Because he was scheduled to be absent on Friday, October
31, and, after considering the matter over the previous weekend, Elfstrom decided
to set up the next meeting for Wednesday, October 29. He referred to the rising cost
situation and directed Managing Editor Johnson to eliminate two employees from
his department. Elfstrom did not specify anyone by name; nor did he make reference
to any salary figure that was to be saved. He merely referred to two jobs and left
the selection of personnel to Johnson. He also directed that the advertising depart-
ment be reduced by two employees; here as well he did not name anyone. Elfstrom
conceded that during previous months he and Johnson had regularly discussed
personnel by name,and the record warrants an inference that he was substantially
familiar with the personnel of this small newspaper.
After the conclusion of this meeting, Johnson promptly spoke separately with
Fuller and feature writer, Margaret Burrell. He testified that he told Fuller certain
economies were necessary and the news staff was to be reduced by two people.
Because Johnson had handled the county editor's job in the past, he, Johnson, felt
that this post could be eliminated without any great impact on the paper. While
referring to certain deficiencies in Fuller's work, he stressed that the principal reason
was the economy move and offered to help Fuller relocate with another paper.
Burrell was discharged for substantially the same reasons relating to economy.
Johnson testified that the Fuller position had not been filled, that the vacancy still
exists, and that he still fills the job.
There are a number of factors which support the position of the General Counsel
herein, that this discharge of Fuller was discriminatorily motivated:
(1) Despite the alleged economy drive Elfstrom and Johnson made plans during:
the summer to grant wage increases to a substantial number of news department
employees.
(2) Fuller had requested a wage increase about 2 weeks before his discharge and
was told several days later, on or about October 17, that he would be given a wage
increase on November 1. Johnson, at the time of the request, had told Fuller he
wanted several days to think it over and then after this interval announced the
favorable result to Fuller. Presumably this was given due consideration by Johnson
if not by Elfstrom, and further, this was hardly a move consistent with an economy
drive.
(3) Even more significant is the fact that Respondent proceeded almost simul-
taneously with the discharge of Fuller and the others, to grant wage increases to 7
of the 12 members of the news department. Fuller and one other employee were
promised raises about 2 weeks prior to the Fuller discharge, and five others were
given raises at the time of Fuller's discharge or within several days thereafter. Obvi-
ously this is a rather large percentage for a department of 12 which had been
designated for some months for a reduction in payroll costs. This is highlighted by
the fact that there is no evidence that the five recipients requested these raises.
(4) Discharged along with Fuller was feature writer Burrell who received ap-
proximately $400 monthly. A portion of her duties included the writing of an
advice column. Johnson proceeded to handle the column for 2 or 3 weeks and then
hired a former employee who had previously handled this column to handle it at
$100 a month, apparently on a part-time basis. Again, this is hardly consistent with
an economy drive, and more particularly there is no evidence that the part-time work
was offered to Burrell.
(5) Respondent conceded that Fuller was an excellent reporter but claimed that
it did not offer him work as a reporter because this would involve an appreciable
reduction in pay and would have created a morale problem for him and possibly
for other staff members. I fail to see the possible morale problem for other staff
members, but the fact is that Fuller was not given the opportunity to accept or
reject the other work. Moreover one of the suburban reporters junior to Fuller
received $375 a month just $25 less than Fuller's salary, hardly an appreciable differ-
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence. And there is no evidence that Respondent hesitated because of morale con-
sideration to reduce the hours and pay of several mechanical department employees
in the summer of 1958 when its economy drive allegedly started.
(6) It is deemed unnecessary to dwell on the second reason for Fuller's selection,
his alleged inefficiency in certain respects, because the fact is that he was promised a
raise effective November 1. More significantly, on the very day before the discharge,
Johnson held a meeting of the news department staff and discussed coverage of the
impending November 4 election. This election, as Johnson conceded, required use
of the entire male news staff, and they discussed the work to be performed by Fuller
and the others. Again, this is hardly an indication that Fuller's discharge was under
consideration for unsatisfactory performance.
(7) The impending election and the heavy burden imposed upon the staff thereby,
presumably with the knowledge of the editor and publisher, only serves to highlight
the haste with which the discharge was undertaken. Economy moves had allegedly
been underway and partly carried out for many months. Yet at this critical time a
key employee, in fact one claimed by Respondent to have held a key supervisorial
post, was terminated without notice, although he was given 2 weeks' vacation pay.
This also is marked by the curious fact that, according to Johnson, two employees of
the news department were discharged and were notified thereof by Johnson before
Elfstrom even knew their identities. And although Elfstrom never rejected Johnson's
personnel recommendations, according to Johnson, the record is silent as to John-
son's taking up with Elfstrom the problem that Fuller's termination posed with re-
spect to the imminent election.
(8) As for the two employees allegedly eliminated from the advertising depart-
ment, one of the two, Hood, was discharged for cause earlier on the morning of
October 29, specifically for reporting to work late on the previous day. According
to Elfstrom, he did not know this on October 29 when he announced his decision
to his staff of supervisors. The other, a Mrs. Coombs, was kept for several days to
wind up some work and then released. No claim is made that Coombs' work was of
a more serious nature than the contemplated election coverage on November 4 by
Fuller. Moreover, Coombs was later rehired in another post to replace an employee
who had resigned. There is no evidence that this created any morale considerations
as that envisaged had Fuller been transferred to the post of reporter.
(9) One notes the haste with which Fuller was terminated in midweek and paid off
the same day. Payday was customarily every other Friday for the pay period ending
the previous Wednesday. The only nondiscriminatory reason readily apparent for
such haste would appear to be an economic one and this is belied by the many
contemporaneous raises as well as the fact that Coombs was kept on for several days
to finish some work, not claimed to be more vital than coverage of the election. Also
noted is the fact that page costs, a factor relied upon by Respondent, dropped sub-
stantially in October from September and September costs were lower than those of
the previous month.
In view of all the foregoing considerations and the lack of substance to
Respondent's reasons for the discharge, I am persuaded that a preponderance of the
evidence supports the position of General Counsel herein, that the alleged economy
motive for the discharge of Fuller was a pretext and was not the true reason for his
discharge.
As for the true motive, one is immediately struck by the fact that Fuller's discharge
occurred but 2 days after Respondent's managing editor had systematically interro-
gated most of the employees of his department to ascertain the extent of Guild
organization and the names of those discussing the Guild and had heard that Fuller
alone had signed a card, although the names of several were given as interested in
union organization. Indeed Johnson singled out Fuller for special attention by
asking him about his Guild activities and by questioning Hardy as to whether he
had heard anything about Fuller and the Guild.
This is not to say that it was not Respondent's prerogative to eliminate the position
of county editor for nondiscriminatory reasons. It is to say that on this record the
evidence preponderates that Fuller was discharged as county editor because of his
union activities. I find that by discharging Andrew Fuller on October 29, 1958,
Respondent has discriminated with respect to the hire and tenure of employees within
the meaning of Section 8(a)(3) of the Act and that by such conduct Respondent
has interfered with, restrained, and coerced its employees within the meaning of
Section 8 (a) (1) of the Act.
I further find that in the context of this case Johnson's statements to his employees
would logically tend to coerce them in their union activities, particularly where they
were promptly followed by the discharge of an employee whose name was divulged
in these incidents. I find that by questioning employees as to whether they were
F. C. HUYCK & SONS 271
interested in the Guild, asking employees who was interested in or discussing the
Guild, asking employees if they had joined the Guild and by asking employees to
keep Respondent posted on the progress of union organization, Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act within the meaning of Section 8(a) (1) thereof.
N.L.R.B. v. Midwestern Instruments, Inc., 264 F. 2d 829 (C.A. 10), decided
March 6, 1959; N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596 (C.A. 2), cert.
-denied 347 U.S. 966; Edmont Manufacturing Company, 120 NLRB 525; California
Textile Mills, 120 NLRB 1245; and Emma Gilbert, et al., d/b/a A. L. Gilbert
Company, 110 NLRB 2067, 2071.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section 1, 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 the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Andrew Fuller. I shall , therefore , recommend that
Respondent offer Fuller immediate and full reinstatement to his former position
without prejudice to seniority or other rights and privileges. See The Chase Na-
tional Bank of the City of New York, San Juan , Puerto Rico, Branch , 65 NLRB
827.4 I shall further recommend that Respondent make him whole for any loss
of pay suffered by reason of the discrimination against him. Said loss of pay, based
upon earnings which he normally would have earned from the date of the discrimina-
tion to the date of the offer of reinstatement , less net earnings , shall be computed in
the manner established by the Board in F. W. Woolworth Company , 90 NLRB 289.
See N.L.R.B. v. Seven - Up Bottling Company of Miami, Inc., 344 U.S. 344.
On the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild,
AFL-CIO, is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. Fullerton Publishing Company d/b/a Daily News Tribune, is an employer
within the meaning of Section 2(2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Andrew
Fuller, thereby discouraging membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
4. By interfering with , restraining, and coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act , Respondent has engaged in unfair labor
practices within the meaning of Section 8 ( a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
I The sense of this order is that Fuller be offered his job as county editor , if it still
exists , and, if not , a substantially equivalent position.
F. C. Huyck & Sons and United Textile `Yorkers of America,
AFL-CIO . Case No. 10-CA-3746. November 23, 1959
DECISION AND ORDER
On June 25,1959, Trial Examiner W. Gerard Ryan issued his Inter-
mediate Report in the above-entitled proceeding, finding that F. C.
Huyck & Sons, herein referred to as Respondent, had engaged in and
125 NLRB No. 34.