Houston Chronicle Publishing Co.

National Labor Relations Board - Board Decisions

Mar 7, 1961

130 N.L.R.B. 1237 (N.L.R.B. 1961)

HOUSTON CHRONICLE PUBLISHING' COMPANY 1237
tion for the powerhouse employees properly includes the disputed
tasks and the employees performing them.' We do not believe that
the fact that some of the employees assigned to the maintenance de-
partment occasionally perform major or emergency repair work on
the same equipment militates significantly against this findings Ac-
cordingly we shall clarify the certification issued to the IBEW in the
powerhouse unit to specifically include employees engaged in the main-
tenance and repair of the recovery boiler, the boiler feed water treat-
ment plant, and the river pumping station.,'
[The Board clarified the certification heretofore issued to the Inter-
national Brotherhood of Electrical Workers, AFL-CIO, by specifi-
cally including in the description of the appropriate unit of power-
house employees all powerhouse employees engaged in maintenance
and repair work on the recovery boiler, the boiler feed water treatment
plant, and the river pumping station.] 8
6 United States Smelting, Refining and Mining Company, 116 NLRB 661, 664; Olin
Mathieson Chemical Corporation , Olin Works , 117 NLRB 1441, 1444; Shell Chemical
Corporation, 118 NLRB 1605, 1606; and Container Corporation of America, 121 NLRB
249, 254.
See The Westchester Corporation, 124 NLRB 194, and case cited therein.
' See Mississippi Lime Company, 124 NLRB 884.
This is not to be construed as a new certification.
Houston Chronicle Publishing Company and Houston News-
paper Guild , Local 113 , American Newspaper Guild , AFL-CIO.
Case No. 23-CA-1027. March 7, 1961
DECISION AND ORDER
On January 9, 1961, Trial Examiner James T. Rasbury issued his
Intermediate Report 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and the Charging Party
filed a brief in support thereof.
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 [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record in
130 NLRB No. 124.
' 1.238 DECISIONS- OF NATIONAL LABOR RELATIONS. BOARD
the case, and hereby adopts the findings, conclusions, :and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in the 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, Houston Chron-
icle Publishing Company, its officers, agents, successors, and assigns,
shall :
. 1. Cease and desist from threatening employees in any manner cal-
culated to induce them to give up their membership in or activities
on behalf of Houston Newspaper Guild, Local 113, American News-,
paper Guild, AFL-CIO, interrogating employees concerning their
membership in or activities on behalf of Local 113 in a manner con-
stituting interference, restraint, or coercion; or in any like or related
manner interfering with, restraining, or coercing its employees in the
exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post in conspicuous places in the Respondent's Houston, Texas,
offices, including all places where notices to employees are customarily
posted, copies of the notice attached hereto marked "Appendix." 1
Copies of the notice, to be furnished by the Regional Director for the
Twenty-third Region, shall, after being duly signed by Respondent's
representative, be posted by it as aforesaid, immediately upon receipt
thereof, and maintained for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-third Region,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
' 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
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, we hereby notify our employees that :
WE WILL NOT threaten our employees in any manner calculated
to induce them to give up their membership in or activities on
behalf of Houston Newspaper Guild, Local 113, American News-
paper Guild, AFL-CIO.
HOUSTON CHRONICLE PUBLISHING COMPANY 1239
WE WILL NOT interrogate our employees concerning their union
membership or activity in a manner constituting interference,
restraint, or coercion.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed in Section 7 of the National Labor Relations Act.
HOUSTON CHRONICLE PUBLISHING COMPANY,
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
Upon a charge filed on May 9, 1960, by Houston Newspaper Guild, Local 113,
American Newspaper Guild, AFL-CIO, herein called the Union , the General
Counsel of the National Labor Relations Board issued a complaint dated June 24,
1960 , against the Houston Chronicle Publishing Company, herein called the Re-
spondent , alleging that Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) of the Labor
Management Relations Act, as amended , herein called the Act. Respondent filed
an answer admitting certain allegations of the complaint, but denied the commission
of any unfair labor practices.
Pursuant to notice a hearing was held before me on August 29, 1960, at Houston,
Texas. All parties were represented at the hearing by counsel and were given full
opportunity to be heard , to examine and cross-examine witnesses , and to introduce
evidence pertinent to the issues. At the close of the hearing a time was fixed for the
submission of briefs . Briefs were received from the Charging Party and the General
Counsel.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Texas corporation whose principal office and place of busi-
ness is located in Houston, Texas, where it is engaged in the publication of a daily
newspaper. During the past year Respondent held membership in or subscribed
to the Associated Press and the United Press, interstate news services; published
nationally syndicated features and had a gross annual volume of revenue exceeding
$200,000. Respondent's answer admits and I herewith find that Respondent is and
has been at all times material hereto engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The undenied testimony appearing in the record adequately establishes Houston
Newspaper Guild , Local 113 , American Newspaper Guild, AFL-CIO, to be a labor
organization within the meaning of 'Section 2(5) of the Act and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint alleges that during the latter part of 1959 and the first part of 1960
the Respondent through its officers and agents interrogated employees concerning
their union • activities, made threats to discharge employees because of A heir union
activities, and threatened employees with reprisal in work assignments because of
their union activities. These alleged acts by the Respondent further alleged to be
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of Section 8;(a) (1) of the Act. The case would seem to -require a resolu-
tion of the following issues:
1. A resolution of the question as to whether or not Jesse E. Gibson, the chief
photographer for Respondent, is a supervisor within the meaning of -the Act.
2. A determination of exactly_ what was said by Gibson to the employees and
whether or.not these words when spoken by a supervisor amount to words of interro-
gation, threats, or reprisals that would be violative of the Act.
3. A determination of whether or not these alleged incidents warrant dismissal
because they are of an isolated nature.
B. Background
In order to understand adequately the atmosphere in which the allegations of the
instant complaint are alleged to have occurred, one must first have some background
knowledge of events which have transpired. The Trial Examiner feels justified in
taking judicial notice of certain undisputed facts available to the public from prior
Board decisions.'
On July 29, 1959, the Union filed a petition with the Board requesting certification
on behalf of the Respondent's employees in a unit composed of all employees of the
editorial department of the Respondent. On August 27, 1959, the Union and the
Respondent entered into a stipulation for certification upon consent election. On
October 15, 1959, the election was conducted. There were 111 eligible voters and
109 ballots were cast. The tally of ballots disclosed that 54 employees voted for
the Union and 50 voted against the Union. Five ballots were challenged by the
Union. On October 21, 1959, Respondent filed timely objections to the conduct
of the election and conduct affecting the results of the election. On January 6, 1960,
the Respondent filed timely exceptions to the Regional Director's report and recom-
mendations on the objections heretofore filed and requested a hearing on the ex-
ceptions. The Union also filed limited exceptions to the Regional Director's report.
On February 29, 1960, the Board issued its Decision and Direction determining the
issues raised by the exceptions filed by the parties. This resulted in certain challenged
ballots being opened and counted on March 7, 1960, and a revised tally of ballots
indicated that there were 54 votes for the Union, 52 votes against the Union, 1 void
ballot, and 1 challenged ballot which remained unopened , in accordance with the
Board's Decision and Direction. Pursuant to the revised tally of ballots the
Regional Director on March 11, 1960, certified the Union as the exclusive repre-
sentative of the employees involved.
The events with which this case is concerned occurred in the postelection period
which was highly charged with the current of uncertainty that inevitably flows from
such an election contest.
C. Status of Jesse E. Gibson
A determination of the question as to whether or not Gibson was a supervisor
within the meaning of the Act can best be resolved by a portion of Gibson's own
testimony?
Gibson testified that he has been the chief photographer for the Respondent for
approximately 35 years and that he has 12 other photographers in the department and
his duties are to "Run the internal workings of the photography department." In
that connection he makes up the work assignments with the assistance of Tike
Liljequist; he reprimands employees in his department and has frequently made
recommendations for salary increases some of which have been approved and some
of which have been rejected. Gibson apparently was of the opinion that he had the
authority to discharge otherwise he would not have given the following response
under examination by his own counsel, "I don't recall. If I had wanted to fire him,
I would, without threatening him." The record likewise establishes that Gibson
is a working photographer and does most if not all of the Respondent's color work,
but the mere fact that a supervisor performs some work similar to those employees
1Case No. 39-RC-1430 (not published in NLRB volumes).
n The definition of a supervisor is set forth in Section 2(11) of the Act and reads as
follows :
The term "supervisor" means any individual having authority, in the interest of
the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or to ad-just
their grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
HOUSTON CHRONICLE PUBLISHING COMPANY 1241
being supervised is not the test. From the testimony of Gibson, as well as other
witnesses herein, there is no doubt that be is a supervisor within the meaning of the
Act.3
D. The alleged remarks made to employees and attributed to Jesse Gibson
Gordon Adkins, who is a press photographer employed by the Respondent, testi-
fied that he was formerly the chairman of the Houston Chronicle unit ( an office
within the Guild), and at the time of the hearing was president of the Local.
Adkins testified that in February of 1960, shortly after he was elected president of
the Local, Mr. Gibson called him into the office and told him "that he wished I
hadn't run for president of the Local and had not been so active in the Guild move-
ment; that it made it pretty tough on him and Mr. Walter didn't like it." 4 Joel
Carrol, a former officeholder in .the Guild, was discharged in February 1960 and
shortly thereafter Adkins stated that Gibson said to him, "I see they fired Joel
Carrol; you had better watch your step or you may be next." Adkins further testi-
fied that in May 1960, Gibson asked him who was in the Guild. On another occasion
in May Gibson falsely or wrongly accused him of taking the new employees to coffee
and talking union to them. On this occasion Gibson asked Adkins to promise not to
go out and have coffee with any of the new employees and threatened to place him
on the night shift if he did not stop. During this conversation Adkins stated that
Gibson told him "if he had known I was a union man before he hired me he wouldn't
have hired me. If he had found out before the thing got started he would have fired
me then."
Gibson does not deny most of the above remarks attributed to him by Adkins and
from Gibson's own equivocal answers I am of the opinion that the testimony of
Adkins must be accepted as credible. For example at page 137 of the record the
following questions and answers are a part of the direct examination of Gibson.
Q. Did you ever threaten to change Mr. Adkins with reprisals and work
assignments if he didn't quit working for the Guild and because of union
activities?
A. Not in that manner , no, sir.
Q. Did you ever say to him that, "If I had known you were a Guild man,
union, I wouldn't have hired you in the first place?"
A. Yes, sir.
At page 138:
Q. Did you ever ask-what did you say to Mr. Adkins about soliciting new
employees for the Union?
A. I said, "For Christ sake, stop doing that on Chronicle time," were my
exact words, pardon my expression.
Q. What did Mr. Adkins say?
A. He said he wasn't doing it on Chronicle time.
Q. Is that all you said?
A. I may have said a lot of other words. I was hot and bothered.
Q. What else?
A. I can't recall everything I said, I probably blistered him from one end to
the other. His work was sloppy, he was inaccurate, I had complaints from
various departments, even our own men-I shouldn't say our own men-I
would get a complaint about Gordon on his work. Now, a photographer can
be the best photographer in the world and go out and bring the wrong names in,
then he is no good . We can hire plenty of men to go out and make pictures if
they don't bring back the right names, it is not the type of man we should have.
At page 144:
Q. Have you ever threatened him [Adkins] because of union activities to
change his work assignments?
A. I might have said something that day when I was hot and bothered, due
to the fact I was jumped on by-about lousy prints. We had turned in lousy
prints. I am human just like anybody else. The guy comes along and you are
liable to crack them, the first guy that comes along.
3 See The Babcock & Wilcox Company, 65 NLRB 83; Todd-Galveston Dry Docks, Inc.,
74 NLRB 1059; Simplex Tool and Die Corporation, 107 NLRB 750; and The Bavey
Company, 115 NLRB 1779.
Mr. Walter did not testify but was Identified in the record as the editor of Respondent.
1242 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
James Morgan, another photographer employed by the Respondent, testified that
he had been hired by Gibson. Shortly - after his election as vice chairman of- the
Chronicle unit within the Guild, Gibson had called him into his office and closed
the door and with his (Morgan's) personnel file in his lap had stated to him, "You
have kind of changed from what you represented yourself to- be when I hired you
haven't you?" Morgan then went on to relate that Gibson reminded him that at
the time he had been hired that he (Morgan) had been very much opposed to the
Union. The occurrence of this event and the manner in which it occurred-is verified
by Gibson in his testimony. -
Interrogation is not per se unlawful. But it may be'unlawful when viewed in the
context in which the interrogation occurred. The test is whether, 'under all the
circumstances, the interrogation reasonably tends to restrain or interfere with the
employees in the exercise of rights guaranteed by the Act. Blue Flash Express, Inc.,
109 NLRB 591. The record as a whole clearly indicates that Gibson questioned
Adkins concerning Guild membership, threatened him with possible loss. of job
or change of shift, and questioned or threatened Morgan in a manner and at a time
that clearly interfered with, restrained, and coerced the employees in the exercise of
their rights as guaranteed in Section 7 of the Act .5
E. Isolated nature of incidents
The Respondent's counsel would seek to have the above-found remarks that were
made by Gibson to Adkins and Morgan to be isolated and not worthy -of a finding of
a violation. This Trial Examiner cannot agree with Respondent's contention. Both
Adkins and Morgan were known union leaders and thus coercive and threatening
remarks and interrogation directed to either of them could normally be expected
to have wider influence and effect on all the employees than would similar remarks
to a less active union adherent. Furthermore the remarks occurred on more than
one occasion and coming as they did in a controversial postelection period it cannot
be said that these remarks did not-reasonably tend to interfere with, restrain, and
coerce the employees of the Respondent. Under these circumstances it 'cannot be
said that such conduct was in fact isolated.6 I find, therefore, that Gibson's conduct
and remarks directed to Adkins and Morgan as set forth hereinabove did constitute
interference, restraint, and coercion of employees in the exercise of their rights as
guaranteed in Section 7 of the Act, thus violative of Section 8(a) (,1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent as set forth in section III, above, occurring in
connection with the operations of the Respondent 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 obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action which will effectuate the purposes of the Act.
Upon the basis of the above findings of fact and upon the entire record in this case,
I hereby make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Houston Newspaper Guild, Local 113, American Newspaper Guild, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act, as above found, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices effecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
6 See also Mid-South Manufacturing Company, Inc., 120 NLRB 230; California- Compress
Company, Inc., 121 NLRB 1388.
6 Cf. I.B.S. Manufacturing Company, 'et al., 96 NLRB 1263 ; The Chesapeake and
Potomac Telephone Company of Virginia, 98 NLRB 1122; and Keco Industries, Inc.,
118 NLRB 317.