Phoenix Newspapers, Inc.

National Labor Relations Board - Board Decisions

May 28, 1963

142 N.L.R.B. 827 (N.L.R.B. 1963)

PHOENIX NEWSPAPERS, INC. 827
in its scope than the unit of warehousemen and drivers which was
found inappropriate for collective-bargaining purposes in 1949.3
We find no merit in the Employer's contentions. The Board, since
the Brandeis case cited by the Employer, has found that where, as here,
truckdrivers and helpers, whose principal function is to deliver and
move an Employer's merchandise, constitute a homogeneous, identifi-
able group, and there is no history of collective bargaining, and no
union request to represent them in a storewide unit, they may be
represented in a separate unit.' The record in this case shows that the
truckdrivers and helpers constitute such a homogeneous and identifi-
-able group, and that they have a close community of interest. The
evidence further shows that the other employees who drive trucks,
but only as an incident to the performance of their principal func-
tions of selling or servicing merchandise, are not appropriately part
of the unit here sought..
In view of the foregoing, and the entire record, we find that the
following employees constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act:
A]1 truckdrivers and their helpers employed in the Employer's opera-
tions at Omaha, Nebraska, including regular part-time drivers and
helpers, but excluding irregular or "on call" drivers and helpers, and
employees who drive trucks as an incident to their principal function
of selling or servicing particular merchandise, all other employees,
office clerical employees, professional employees, guards, and super-
visors as defined in the Act.
[Text of Direction of Election omitted from publication.]
3J. L. Brandeis Sons , 82 NLRB 806.
4 Sears, Roebuck Company, 118 NLRB 277, 279
Phoenix Newspapers , Inc. and Sales Drivers & Helpers Local
274, affiliated with the International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case No. 28-CA-739. May 28, 1963
DECISION AND ORDER
On April 4, 1962, Trial Examiner Herman Marx issued his Inter-
mediate 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 attached Intermedi-
142 NLRB No. 97.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
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 McCulloch and Members Rodgers and Leedom].
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds no prejudicial error. The rulings are hereby af-
firmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in this case, and finds merit
in certain of Respondent's exceptions. Accordingly it hereby adopts
the Trial Examiner's findings, conclusions, and recommendations only
insofar as they are consistent with the following.
Respondent is the publisher of a newspaper in Phoenix, Arizona.
It has 40 employees in its maintenance department. Dissatisfied with
the operation of the department, Respondent hired John McMullen
as its new superintendent to reestablish discipline among employees
in the department and improve their work performance. In an effort
to bring up the standards of the janitorial work force and fulfill this
assignment, between May and August 1961, McMullen found it neces-
sary to discharge nine employees, or almost one-fourth of his entire
work force. There is no allegation that any of these discharges were
based upon union or other concerted activity. In addition to these 9,
McMullen discharged Melvin Moore on August 19 and Othel a Walton
on August 25, 1961. The General Counsel alleged, and the Trial Ex-
aminer found,, that the Moore and Walton discharges, unlike the pre-
vious nine discharges, were for discriminatory reasons. We disagree.
In order to justify a finding that the discharges were discriminatory
in this case, the General Counsel had to prove, among other things,
either that Moore and Walton had actively engaged in union activities
and that Respondent had knowledge thereof, or that Respondent
believed they had engaged in such activity. The record shows that
the Teamsters Union began organizational activities among the
maintenance employees in July 1961 and filed a representation petition
with the Board on August 7, 1961, which was dismissed by the Board
on December 20, 1961, for the reason that the unit sought was inappro-
priate.2 Neither Moore nor Walton was a leader of, or especially
active in, organizational activities. Moore's only participation in
such activities was to distribute on July 27 typewritten announcements
of the first union meeting to be held on July 30 and attendance at this
and a few other union meetings. He also signed a union authorization
card on July 30. Walton merely attended the July 30 meeting, at
The Respondent 's request for oral argument is denied , as the record , including the
exceptions and briefs , adequately presents the issues and positions of the parties.
2In 1959, the Board had also held that a unit of maintenance department employees
was inappropriate and that only a residual unit would be appropriate.
PHOENIX NEWSPAPERS, INC. 829
which he also signed an authorization card, and two subsequent
meetings.
The only support offered by the General Counsel to prove knowledge
by Respondent of Moore's and Walton's union activity was the evi-
dence of employee Theodore Williams who testified that "about the
14th, 15th, or 16th of July [1961], somewhere along in there," Super-
intendent McMullen summoned him and asked him what he knew
"about the union." Williams truthfully replied that he knew nothing
about it. McMullen then allegedly said, "If you don't know anything
about it, you can ask ... Melvin Moore or Othela Walton or one of
these union guys." McMullen categorically denied Williams' testi-
mony. The Trial Examiner, in part, placed his own interpretation
upon this testimony and credited Williams despite McMullen 's denial
that such a conversation occurred because McMullen, as a supervisor,
allegedly was an interested witness, whereas Williams was not affirma-
tively shown to have any such interest or to have any prounion
sentiment.
There is, however, an inherent weakness in Williams' foregoing
testimony which militates against its acceptance. Williams said the
conversation with McMullen took place in the middle of July. The
evidence is undisputed that Moore and Walton did, not engage in any
kind of union activity until the end of July. Accordingly, if Wil-
lialns' own date for the conversation is accepted, it could not have
occurred since McMullen could not have had the knowledge necessary
to take part in it. To surmount this difficulty, the Trial Examiner
rejected Williams' testimony as to when the conversation occurred
and found instead that the conversation in fact took place at the end
of July because Williams appeared to him to be a "trustworthy and
stable man (an impression supported by the fact that he has worked
for the Company for many years) ...." There is no corroborating
evidence either as to the date or as to the fact of such conversation.
We do not believe that the reasons offered by the Trial Examiner
justify changing the testimony of the witness as it stands in the record.
The General Counsel did not seek to correct Williams' testimony to
show that it occurred at the end of July. In fact, on his direct exami-
nation of the witness the General Counsel himself indicated that the
disputed conversation did occur in the middle of July.'
a The Trial Examiner also found that, assuming the conversation between Williams and
McMullen took place about July 15, "the important point is that it was made and that
it signifies a belief by McMullen when made, whatever the foundation for the belief, that
Walton was an active proponent of the Union." But there is absolutely no evidence to
support such an inference of mistaken knowledge as to Walton 's activities by McMullen.
In the middle of July the Teamsters ' organizational activities had scarcely begun Walton
was not one of the active proponents of the Union at any time . He first indicated an
interest in the Union when he attended a union meeting on July 30 and signed an
authorization card . It seems to us far more reasonable to infer from all the evidence that
Williams was mistaken as to his conversation with McMullen , rather than to infer, as
the Trial Examiner did, that the conversation took place as stated by Williams , but that
McMullen then had a mistaken belief as to Walton 's activities. Accordingly, we reject this
alternative finding of the Trial Examiner.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, an affidavit furnished by Moore to a Board agent about
6 weeks after his discharge, and included in the record by stipulation
of the parties,4 creates serious doubts as to how McMullen could have
learned of Moore's membership in the Union. Moore stated :
I don't know whether or not the company knew I was for the
union on [sic] and signed the union card. . . . No foreman or
supervisors were ever present when I discussed the union. . . . I
had never talked to McMullen about the union. I had never
talked to any foreman about the union. I don't recall that any
foreman or supervisor had ever said anything to me which would
indicate that they knew I was in the union.
Upon this state of the record, the Trial Examiner was not warranted
in finding on the basis of Williams' uncorroborated testimony, which
is demonstrably contradictory on one critical point, that McMullen
was aware of the union activities of Moore and Walton at the time he
discharged them. As there is no other evidence which would prove
such knowledge, the Board has no alternative except to dismiss the
allegation in the complaint that Respondent discriminatorily dis-
charged the above-named employees. Further, as we have found
Williams' testimony not credible, we shall also dismiss the allegation
of unlawful interrogation based thereon.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : 8
Delete paragraph numbered 1(a) and renumber the subsequent
paragraphs as 1(a) and (b), respectively; delete paragraph numbered
2(a) and 2(b) and renumber the remaining paragraphs as 2(a) and
(b).
Delete the first and last paragraphs of the notice.e
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violation of the Act other than those
found herein.
' Cf. 6 Wigmore , Evidence $ 1710 ( 3d ed . 1940).
The penultimate paragraph below the signature line in the notice attached to the
Intermediate Report Is amended to read : "This notice must remain posted for 60 con-
secutive days from the date of posting . . ." Instead of "60 consecutive days from the
date hereof."
G The words "In any like or related manner" shall be substituted for the words "In
any other manner" presently appearing in paragraph numbered 1(c) of the Trial Ex-
aminer's Recommended Order and in the third paragraph of the notice.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board (also termed the Board herein), alleges that an employer,
Phoenix Newspapers , Inc. (herein also called the Respondent or Company), has
PHOENIX NEWSPAPERS, INC. 831
violated Section 8(a)(3) of the National Labor Relations Act, as amended (29
U.S.C., Sec. 151, et seq.; referred to herein as the Act), by discriminatorily dis-
charging two employees, Melvin Moore and Othela Walton, because they engaged in,
activities protected by the Act; and has by such conduct, by interrogating employees
regarding union activities, and by threatening an employee that he would be accorded
discriminatory treatment if he did not supply information concerning such activities,
abridged rights guaranteed employees by Section 7 of the Act, thereby violating Sec-
tion 8(a) (1) of the statute. The Respondent has filed an answer which, in material
substance, denies that it engaged in the unfair labor practices imputed to it.,
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto, a hearing upon the issues in this proceeding has been held before Trial
Examiner Herman Marx at Phoenix, Arizona. The General Counsel, the Respondent,
and the Union appeared through, and were represented by, respective counsel;
participated in the hearing; and were afforded a full opportunity to be heard, examine,
and cross-examine witnesses, adduce evidence, file briefs, and submit oral argu-
ment. A motion to dismiss the complaint, made by the Respondent at the closer
of the evidence, is denied on the basis of the findings and conclusions made below.
I have read and considered the respective briefs of the General Counsel and the
Respondent filed with me since the close of the hearing. The Union has not filed
a brief.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD
The Respondent is an Arizona corporation; maintains its principal office and place
of business in Phoenix, Arizona; is there engaged in the business of publshing news-
papers; and is, and has been at all material times, an employer within the meaning
of Section 2(2) of the Act.
During the year preceding the issuance of the complaint, the Company, in the
course and conduct of its business, shipped newspapers valued in excess of $50,000
from points within the State of Arizona to places in other States, and received
materials valued in excess of $50,000 in Arizona from points outside thereof. By
reason of its interstate business operations, the Respondent is, and has been at all
times material to the issues, engaged in interstate commerce within the purview
of the Act. Accordingly, the Board has jurisdiction over the subject matter of this
proceeding.
H. THE LABOR ORGANIZATION INVOLVED
The Union admits individuals employed by the Company and other employers
to membership; exists for the purpose of bargaining and otherwise dealing with
employers concerning wages and other terms and conditions of employment of
employees; and is, and has been at all times material to the issues, a labor organ-
ization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The issues in this proceeding center on the Company's maintenance department
which employs approximately 40 persons . These employees perform the required
janitorial work at the Company's Phoenix plant, and various other duties such as
handling and unwrapping rolls of paper from which the Company's publications are
produced . Most of the janitorial work is done at night.
The maintenance department is supervised by the Company's building super-
intendent , John A . McMullen , who has served in that capacity since the early part
of May 1961 . McMullen , in turn , is supervised by the Company's business office
manager, Forest Whitney; and for several months, including August , in 1961 was
subject to direction by a supervisor named Cleo Smith who substituted for Whitney
while the latter was on sick leave . McMullen and Whitney are vested with authority
to hire and discharge employees ; responsibly direct the work of employees ; and are,
and have been at all material times, supervisors within the meaning of Section 2 (11)
I The complaint is based on a charge filed with the Board on September 1, 1961, by
Sales Drivers & Helpers Local 274, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 274
or the Union. The name appears herein as amended at the hearing in this proceeding
Copies of the complaint and charge have been duly served upon the Respondent.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act. Smith was similarly a supervisor within the purview of Section 2(11)
throughout the period when he substituted for Whitney.
The night janitorial employees customarily are divided into crews, numbering about
five persons, each group being assigned to a given area or floor. Each such crew is
subject to some direction from an employee classified as a "leadman." Employees in
this classification are selected on the basis of length of tenure and experience, and,
as Willard Worcester, the general manager of the Company, testified, "are supposed
to tell the other people where to find this and also to show them how to clean, what
should be cleaned," and to "point . . . out" to other members of the group areas
that need cleaning, giving them instructions such as "You didn't get that corner
over there, now you go get that corner." The leadmen, however, perform work
of the same type as others in their crews, and have no authority to hire or discharge
employees or to make recommendations regarding hiring or dismissal; and their
supervisory functions are so routine and minor in nature that they are not super-
visors within purview of the Act.
Local 274 embarked upon efforts to organize the maintenance employees in July
1961 ("during the middle or early part" of the month, according to the testimony of a
representative of the Union). The organizational activities included meetings at-
tended by maintenance employees, the first of them held on July 30, 1961, at the
home of an employee. Melvin Moore, one of the dischargees named in the com-
plaint, did some preparatory work in connection with the meeting, typing its lo-
cation on slips of papers; distributing them about July 27, several days before the
meeting, to maintenance employees, including leadmen; and informing the recipients
of the scheduled meeting, and that it would be held at the address specified. Various
of the maintenance employees, including Moore, signed cards at the July 30 meeting,
authorizing the Union to represent them.
On August 7, 1961, the Company received, in the mail, a demand by Local 274
for recognition as the bargaining representative of the maintenance department em-
ployees; and on the same date, the Union filed a representation petition with the
Board, seeking certification as the representative of a unit consisting of such em-
ployees? The management of the Company was notified of the pendency of the peti-
tion on the following day. In an order dated December 20, 1961, the Board dis-
missed the petition on the ground that the unit was inappropriate because the
maintenance department is but a subdivision of one of the Company's major depart-
ments (the business office), and the maintenance personnel affected "do not comprise
all of the Employer's presently unrepresented maintenance and other mechanical em-
ployees." One may note in that connection, for reasons that will appear, that on
October 15, 1959, the Board, by order, dismissed a representation petition by a labor
organization (not involved here) on the ground that a bargaining unit of "seven
paper handlers" sought by the petition was inappropriate.'
B. The alleged threat and interrogation
The General Counsel presented evidence that McMullen interrogated several
maintenance employees regarding union activity or membership. One such employee
is Theodore Williams, who has been in the Company's employ for about 14 years.
According to Williams' testimony, one night, "about the 14th, 15th or 16th of July
t19611, somewhere in there," McMullen summoned him on the Company's premises
and asked him what he knew "about the union," and he replied that he knew nothing
about it McMullen then told him. Williams testified, that "(i)f you don't know any-
thing about it, you can ask . . . Melvin Moore or Othela Walton or one of those
union guys." According to Williams, he replied that "(t)hey haven't said anything
to me about it."
Another janitorial employee, Rayford Burton, who has worked for the Company
for about a year and a half, testified that about August 15, 1961, McMullen
informed him that some papers relating the to Company's retirement plan were
awaiting him in the building superintendent's office: and that following this, Mc-
Mullen asked him whether anyone had "appoached (him) or asked (him) anything
about the union " Burton, according to his account, replied in the negative, and
inquired "who was supposed to" (approach or ask him about "the union"). Mc-
Mullen replied, Burton testified, that he did not know, and that "someone" was
engaging in union organizational activity.
A maintenance employee named Eddie White, who has been in the Company's
employ for a little more than a year, gave the following description of a conversa-
tion he had with McMullen in the latter's office in mid-August of 1961: "I came
2 Case No. 28-RC-900.
' Phoenix Newspapers , Ino., Case No. 21-PC-5801 ( not published in NLRB volumes).
PHOENIX NEWSPAPERS, INC. 833
in to get my (pay) check and Mr. McMullen asked me, . . `Ed, what's this
I hear about the union,' and I says, `Well, I've heard rumors,' and he says, `That's
all you heard,' and I says, `That's all I heard is rumors that there is a union. I've
been trying to find out what it is all about myself."'
White also testified that about 2 weeks later, on another occasion when he came
to McMullen's office foi his paycheck, the maintenance superintendent, after some
"kidding" back and forth, told him in a "joking manner" that "you know you
are on my `S' list", that he asked McMullen "what is going on," to which the
latter replied, "You told me you didn't know anything about the union"; that he then
told McMullen that he still knew nothing "about the union," but had "heard the
rumors, that is all"; that McMullen asked him whether he was sure that that was
all; and that he replied in the affirmative. White also gave testimony to the effect
that during the course of the conversation he used the phrase, "they are trying
to organize"; that McMullen then "ask . . . what they"; and that he (White)
replied, "I don't know." 4
Describing another occasion when McMullen allegedly interrogated him about
union activity, White gave the following account: He had been reported absent
from duty without leave, and about September 15, 1961, McMullen took him to
the Company's personnel manager to discuss the allegation. During the course
of the discussion, White brought up the subject of "the union," stating that he did
not know anything about the organization "at that particular time" (meaning,
apparently, from the general sense of White's testimony, at the time of his discussions
with McMullen some weeks earlier). McMullen then said, "Well, since you
brought the subject up, Eddie (h)ave you signed a union card," and White replied
in the affirmative. At that point, the personnel manager interposed, "We are not
here to discuss union at all, let's not even talk about the union." With that, the
subject was dropped.
Stating that he did not learn until about a month before the hearing in this
proceeding (which was held in December 1961) that Moore and Walton had
any connection with the Union, McMullen gave testimony denying, in substance,
that he mentioned them to Williams or sought any information from the latter
"about the union"; that he interrogated White and Burton with respect to union
activity; and that he told White that the latter was on his " `S' list." McMullen,
like White, described a discussion in the personnel manager's office regarding a
report that White had absented himself without leave, but, according to McMullen,
he did not ask White whether he had signed a union card, and it was White who
mentioned that activity, volunteering that he had executed such a card.
The weight of the evidence persuades me that McMullen made the inquiries
and statements respectively imputed to him by White, Burton, and Williams.
McMullen, it should be borne in mind, may properly be regarded as an interested
witness, for he has a substantial supervisory status with the Respondent, and the
major subject of inquiry in this proceeding is the legality of certain of his actions.
Moreover, as will appear in detail later, the reasons he advances for the discharge
of Moore and Walton have implausible features, and this weighs against acceptance
of his relevant disclaimers.
In contrast, there is no indication that either Burton or Williams has any interest
in this proceeding. The record is barren of any evidence that they harbor any
prounion sentiment. As for White, the only suggestion of any interest by him
is that he signed a union card (as one may conclude from the conversation in the
personnel manager's office, whichever version is accepted). But White and
McMullen, it is well to bear in mind, are "close friends," as McMullen conceded,
and this enhances the likelihood that the testimony White has given contrary to
McMullen's interest is the truth. Significantly, too, White, Burton, and Williams
were in the Company's employ at the time they testified, each having been so
employed for a substantial period, one of them, Williams, for some 14 years.
Particularly taking that background into account, I find no warrant for any belief
that the three employees have invented the conversations they describe or have
willfully colored them. On the contiary, they appeared to me to be testifying
with objectivity, and without any rancor. To be sure, Williams fixes the period of
his conversation with McMullen as about mid-July, "somewhere along in there,"
whereas Moore and Walton, to whose union activity, according to Williams,
McMullens alluded, did not engage in any union activity until nearly the end of
July; but it may be borne in mind that Williams gave his testimony some 4 months
4 White does not explicitly state that it was he, rather than McMullen, who remarked
that "they are trying to organize," but the sense of White's account is that he made the
remark.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after the alleged conversation, and it appears to me that the approximation he'
gives is not so far removed from the dates of union activity by Moore and Walton
as to destroy the credibility of his testimony. Put another way, from the perspective
of Williams' testimony in the latter part of December 1'961, his estimate that the
conversation he describes took place "about the 14th, 15th, or 16th of July, somewhere
along in there" [emphasis supplied], is not an unreasonable approximation of the
time of an event that took place some 2 or 3 weeks after the middle of July.
It is a central fact that Williams appeared to me to be a trustworthy and stable
man (an impression supported by the fact that he has worked for the Company
for many years) and, in sum, giving due consideration to the factors that detract
from the plausibility of his testimony, as well as to those that support it and
those that weigh against acceptance of McMullen's denial, I am led to conclude
that McMullen made the inquiry and statements Williams imputes to him. I find,
too, that the maintenance superintendent had the conversations with White and
Burton that these two employees respectively described, as outlined above.
Shortly after the Company received the Union's recognition demand, a janitorial
employee names James Lee had occasion to go to an office of the Company
for his paycheck, and there, Smith, who was then acting business office manager,
substituting for Whitney, informed Lee that he wished to see him, and proceeded
to tell the employee that the Company had received a letter from the Union
that morning, that "somebody must be unhappy," and that "if we could get
them in and talk to them, . we could probably straighten them out." Then
Smith asked Lee whether he knew "anything about it," and, receiving a negative
reply, said, "If you find out anything, would you come in and let me know"
Lee agreed, and that ended the conversation 5 In the context of Smith' s allusion
to the Union's letter, his statement that "somebody (meaning employees, obviously)
must be unhappy," and his request that Lee report "anything" he could "find out,"
I construe Smith's query whether Lee knew "anything about it" as including a
request for information as to the identity of employees who were promoting or
supporting unionization because they were "unhappy" with their working conditions
Whitney also interrogated an employee on the subject of unionization. About
the beginning of November 1961, while the representation petition was still pending,
and after the filing of the charge in this proceeding, a janitorial employee named
Alonzo Watson came to Whitney's office to pick up his paycheck. While he
was there, Whitney informed him that he had been given a wage increase, and
during the conversation that followed, the business office manager asked Watson
whether he thought that the maintenance employees "needed protection." Watson
mentioned "the way some of the fellows had been fired," and, in reply, Whitney
stated, in substance, that some employees had been employed at the Company's
establishment for many years, that some "had been goofing off," and that "these
things had to be straightened out" I think it a reasonable inference from the
context of circumstances, and I find, that what Whitney meant by his inquiry
about "protection" was whether Watson felt that the maintenance employees
"needed" representation by Local 274.6
C. The discharge of Melvin Moore
Melvin Moore entered the Company's employ as a janitor in March 1956; left
that employment some 6 months later; resumed it in March 1958; and was dis-
charged by McMullen, under circumstances to be described later, during the early
morning hours of Sunday, August 20, 1961.
5 Findings as to the conversation between Smith and Lee are based on Lee's uneonti a-
dicted testimony.
9 Findings as to the conversation between Whitney and Watson are based on the latter's
uncontradicted testimony. At one point, asked whether he "didn't have a conversation
concerning the union ," he replied in the negative In a literal sense, the answer is correct
to the extent that the word "union" does not appear to have been mentioned in the
conversation. From his demeanor and the general context of the relevant evidence, I be-
lieve that Watson gave the negative answer he did because he was overly literal and was
thus led to misunderstand the question to which the answer was given. It may be noted
in that regard that a moment or so after his negative reply, in answer to a question
whether he had a conversation that "related to the union," he proceeded to quote Whitney
on the subject of the wage increase and the need for "protection " This reply, and the
content of the question that led to It, warrant a conclusion that Watson understood from
the conversation that the "protection" to which Whitney alluded was union representation.
PHOENIX NEWSPAPERS, INC. 835
As noted earlier, Moore circulated advance information among leadmen and
other maintenance employees regarding the union meeting of July 30, 1961;
attended that meeting; and signed a union authorization card on that occasion.
He also attended at least one additional meeting prior to his discharge, and that
was held on August 6, 1961.
During the second period of his employment, and at the time of his discharge,
Moore was assigned to a cleaning force described in the record as the "second floor
crew," consisting, on the night of the dismissal, of four janitorial employees. (Not-
withstanding the label given the crew, their work is not confined to the second floor
of the plant. They also do some janitorial work outside the building, in the base-
ment, and on the first floor.) The crew's shift hours are from 11 p.m. to 7:30
a.m., and they are allowed 30 minutes for lunch and a 15-minute rest period during
the latter half of the shift. For some period prior to Moore's discharge, the second
floor crew, by permission of the night-shift maintenance foreman, Dale Wilcox, who
supervised their work, followed the practice of combining the lunch and rest periods,
taking the 45 minutes consecutively.? The crew usually went to lunch about 4 a.m.
(There does not appear to have been any fixed requirement that they suspend work
for lunch at a specific time.)
As basic issue in Moore's case is the length of time he took for lunch on the morn-
ing of August 20, for the Respondent contends, in substance, that Moore improperly
absented himself from work that morning after 4 a.m. for a substantially longer
period than that to which he was entitled, and that such unauthorized absence
precipitated a decision by McMullen to discharge him.
The second floor crew, including Moore, left their work for lunch on the morning
in question about 4.10 a.m. (probably between that time and 4:15 a.m.), beginning
the lunch period a little later than usual because the crew was "a man short," as
Moore credibly testified.8 (The crew's leadman did not work on Saturday and
Sunday, and another crew member was on military leave. It may be noted, too,
that Wilcox was not on duty that night as maintenance foreman.) The entire crew
of four went to a cafeteria for lunch in a nearby Greyhound bus station, about 2 or
3 minutes' walk from the plant, and following completion of their meal they re-
turned to the plant together for resumption of their work. McMullen was in the
building during their absence, having come there a few minutes after 4 a.m., and
it is undisputed that McMullen discharge Moore shortly after the crew resumed
work. There is conflict in the evidence however, as to the duration of the crew's
absence, the time of the discharge, and what passed between Moore and McMullen
immediately after the dismissal.
According to both Moore and Watson (who was a member of the second-floor
crew), the group left the cafeteria some minutes before 5 a.m., Moore estimating the
time as approximately 4:55 a.m., and Watson as 4:50 a.m. Moore gave testimony
7 Moore's testimony regarding the practice of combining the lunch and rest periods is
not disputed by Wilcox who was called as a witness by the Respondent.
8 The finding concerning the time the crew left work for lunch is based on the testimony
of Moore, Watson (also a member of the crew), and Burton, a member of the third-floor
crew, who testified that he was on his rest period between 4 and 4:15 a in and saw Moore
leave the building on his way to lunch. (That Burton took his rest period during the
period he specifies is uncontradicted.) McMullen's testimony does not contradict that of
Moore, Watson, and Burton as to the time of departure for lunch. According to McMullen,
he came to the building "about two minutes after four," and the sense of his testimony
is that he proceeded to traverse much of the basement and first and second floors, spend-
ing at least a substantial part of the time searching for the second-floor crew ; and that
he saw none of them until about 5: 25 a in. He does not specify the time that he actually
began his search , although one may gather from his testimony that he did so soon after
he entered the building. From his own account, it is apparent that he did not come to
the second floor until well after he entered the building . Conceivably, he did not arrive
there or in some other part of the plant where the crew had been working until after
they left for lunch. I note, too, that I do not credit the testimony of a maintenance
employee named Alexander Moore ( no relation to Melvin Moore), who was called by the
Respondent, that the crew went to lunch at 2 . 30 a in There is conflict in the evidence
as to whether Alexander Moore was a member of the second-floor crew that night, but
putting that aside, there are to say the least, marked indications of error in his testi-
mony. For example, he testified that his shift hours while a member of the second-floor
crew were from 11 p an. to 5 30 a.m (instead of the crew's actual shift hours from 11 p m
to 7, 30 a in ) I am satisfied that all the members of the second-floor crew went to lunch
on August 20 about 5 10,,,L in , and quite likely within a few minutes after 4. 10, and have
made corresponding findings.
712-548-64-vol 142-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the effect that he and the other crew members were back at work about 45 minutes
after they left it for lunch or, in other words, by about 5 a.m.; and that "(a) about
two or three minutes past five," McMullen appeared and discharge him, telling him
to pick up his check on the following day. According to Moore, who had a broom
in his hand, McMullen's statement shocked him, and he asked the superintendent,
"Why me?" McMullen, Moore testified, replied that he had been in the building for
an hour looking for the second-floor crew and could not find them, to which Moore
responded that the crew had not been gone an hour. Then, according to Moore,
McMullen said that he had been in the building on several other occasions and
had "never caught (Moore) working," and Moore countered with a denial that such
was the case, stating that he had never had any complaints about his work, and
that "the reason" given by McMullen for the discharge was not the real one. Then,
Moore testified, the following took place: "He [McMullen] said, . . . `You are
still fired', and I says, `You just a no good S.O.B.' and he started up to me with his
fist balled, and I attempted to bat him with the broom I was sweeping with, and
slipped and fell and I dropped the broom when I slipped . Mr. McMullen walked
up over me and asked to shake my hand... and I wouldn't shake hands with him "
McMullen and Moore, the latter added, then left the scene, going their separate ways.
Watson heard part of what was said, and the material substance of his account
is that after Moore called McMullen "a no good S.O B.," the superintendent "made an
attempt to walk toward him (Moore), and . . . Melvin took a step back and grabbed
his broom," slipping as he stepped back, but not falling; that neither hit or swung
at the other; and that as Moore "grabbed his broom," McMullen "turned around and
walked away."
Stating that he had visited the building several nights earlier and had then dis-
charged three men for drinking while on duty, McMullen gave testimony to the
effect that he came to the plant about "two minutes after four" on the morning of
August 20 to make "a routine check" as on previous occasions; that he traversed areas
in the basement and on the first and second floors, searching for the second-floor
crew in the course of his inspection, making inquiry of a guard whether he had seen
the crew, and receiving a negative reply; that he also went to the Greyhound station
cafeteria in search of the crew, but did not find them there; that he returned to the
building and, while in his office there, about 5:20 a.m., he asked members of the
third-floor crew, including Burton, whether they had seen the second-floor crew,
and was told that they had not; that, resuming his walk in the building, he encountered
a janitor named Alexander Moore and asked Alexander Moore (who claims, as
does McMullen, that he was a member of the second-floor crew that night) where
he had been; that Alexander Moore replied, "I do not know"; that then he (Mc-
Mullen) saw Melvin Moore, walked over to him, asked him where he had been,
and was told "[too lunch at the Greyhound Bus Station"; that he inquired, "Since
four o'clock?" that Melvin Moore denied that such was the case, stating, "I think
that you've got other things on your mind that you are not speaking about"; that
he proceeded to discharge Melvin Moore, telling him to pick up his check on the
following day; that Melvin Moore, who was holding a broom, advanced, "scream-
ing" and "hysterical," toward him, called him "a son-of-a-bitch, and a big yellow
bastard," and hit him on the arm and chest with the broom; that he hit Moore and
the latter fell down; that he (McMullen) brought himself under control and tried
to pacify Moore who "continued to cuss and rave and scream"; and that, failing to
calm Moore, he left the area to call a guard.
Denying that he discharged Moore for union activity, McMullen also testified that
he had observed Moore's work on a number of occasions prior to August 20 and
deemed it "very, very poor"; and that he discharged Moore because the other mem-
bers of the second-floor crew "were relatively new," and he felt that Moore "was
breaking down . . . everything that (he) had tried to accomplish" to improve
maintenance efficiency and performance which be found in a low state when he as-
sumed the post of building superintendent in May 1961.
The material points of conflict in the descriptions of the discharge setting are
actually quite few, and these will be extracted from the mass of evidence that sur-
rounds them, and will be analyzed and resolved in conjunction with concluding
findings to be made at a subsequent point in this report.
D. The discharge of Othela Walton
Othela Walton entered the Company's employ as a maintenance employee in
February 1957, working in a variety of capacities, including the handling of paper
and cleaning work, until his discharge on August 25, 1961.
Walton's last classification was that of leadman of the third- floor crew. He was
-appointed to that post by McMullen in the latter part of July, about a month prior
PHOENIX NEWSPAPERS, INC. 837
to his dismissal. In making the appointment, McMullen told Walton, as the latter
credibly testified, that he wanted a dependable man, that he "was trying to place his
more dependable men in leadman positions," and that after that was done he would
try to secure a "considerable raise" for Walton.9
Walton attended the union meeting of July 30, and signed an authorization card
on or about that date. He also subsequently attended other meetings (probably two,
but whether these were before his discharge does not appear). There is no evidence
that he engaged in any other union activity.
He began a scheduled 2-week vacation on or about August 6, 1961, about a week
or so after his appointment as leadman, and was absent from his duties until August
21, 1961, when he returned to work.
On Friday night, August 25, 1961, as Walton was beginning work on his shift,
Wilcox, the night maintenance foreman, informed him that he was discharged, telling
him, also, to see McMullen on the following Monday. Walton did so, asking Mc-
Mullen why he had been discharged, and the latter replied, in substance, that his
performance was unsatisfactory.
Both McMullen and Wilcox gave testimony to the effect that Walton's work had
once been "very good," but that it deteriorated when he was assigned to the second
floor, and continued to do so after he was made leadman of the third-floor crew;
and that Wilcox discharged Walton upon McMullen's instructions. Denying that
union activity was the cause of the dismissal, McMullen asserted that "the reasons
[were] unsatisfactory work and not staying on his [Walton's] floor where he is
assigned, going all over the building, going away from the building and stopping
other men from working." According to McMullen, the precipitating cause of the
discharge decision was a complaint to him "the week before the discharge, or two
weeks in that vicinity," by "a relatively new member" of Walton's crew named
Colquitt Fears that Walton would assign "the heavier work" to him; "leave him
and go out and come back"; and sometimes would be away for hours; and that
it appeared to him (Fears) that Walton "Would try to return . . . in time for the
foreman to come around and check them."
E. Discussion of the issues; concluding findings
As support for its disclaimer of unfair labor practices, the Respondent stresses
.evidence it adduced to the effect that it has had collective-bargaining agreements
with various printing trades unions in Phoenix for a substantial number of years,
the contract relations with two of the unions dating from the time the present man-
agement assumed publication of the newspapers there in 1946; that an affiliated
Phoenix firm, of which the Respondent's general manager is president, has such a
contract with an engraver's union; and that another affiliated corporation, also under
common management with the Respondent, has a contract in Indianapolis, Indiana,
where it publishes newspapers, with the "Teamsters Union," and an agreement affect-
ing editorial employees and janitors with another labor organization. Thus, the
Respondent maintains, in effect, the collective-bargaining relations in Phoenix and
Indianapolis establish that the management of the Company is not hostile to union-
ization; and negate the claim that it engaged in the unfair labor practices imputed
to it.
° McMullen testified that he appointed Walton a leadman because the latter's work per-
formance had "started going downhill"; and that he thought that if he gave Walton "a
little authority, ... he would come back up and be the employee that he had been in the
past." This explanation for the appointment strikes me as facile rather than plausible,
and I do not credit it for a number of reasons. For one thing, the explanation is not quite
in accord with General Manager Worcester 's testimony that leadmen are selected for the
classification on the basis of their length of tenure and experience. Walton's account of
McMullen's remarks in making the appointment is more consistent with these criteria
than the reason McMullen gives for the selection. For another matter, the appointment
-was obviously a promotion, albeit it was not accompanied by a salary increase, and that
very fact warrants a belief that Walton's selection as leadman was made on the basis of
dependability, or, in other words, supports Walton's account of his conversation with
McMullen. The superintendent , moreover, has given a substantial amount of implausible
testimony in this proceeding on other subjects, and this, although not disproving his
claim as to the reason for making Walton a leadman, is a factor to be taken into account
in weighing its credibility. It appears to me, in sum, that the claim is an afterthought
designed to explain away the hard fact of Walton's promotion but a few weeks before his
dismissal-a fact that militates against the Respondent's contention that he was dis-
charged for poor work performance.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreeing, as I do, that the evidence of the Respondent's collective-bargaining
relations should be taken into account as background for an assessment of the merit
of the General Counsel's allegations of unfair labor practices, and according to
such evidence the weight to which it is entitled, it appears to me that the Respondent
would have one read into it more than its due in the light of the total record. It is
not difficult to think of situations where an employer may have good collective-
bargaining arrangements with some groups of employees but be hostile or otherwise
opposed to the unionization of others.10 Experience tells us that collective-bargaining
relations may derive from necessity as well as good intentions, and may be rooted
in, or affected by, any one or more of a large number of variables, including the
number and organizational strength of the employees involved; the relative economic
advantages or disadvantages of unionization to the employer; his reliance upon union
apprenticeship training programs as a means of developing a skilled labor pool; his
need (quite compelling in some industries) to rely upon union hiring halls as a
source of labor supply; and the economic consequences to him of a work stoppage
if he resists or rejects the collective-bargaining principle. From what has been said,
it is evident that to jump from the fact that an employer has collective-bargaining
relations with various groups of employees to a conclusion that he would not be
hostile to organization of other employees is a hazardous leap indeed. (In that
connection, it may be noted, in passing, that although the Respondent stresses the
collective-bargaining relations with various types of employees in Phoenix and Indi-
anapolis, the record is silent as to the state of organization among, or collective-
bargaining relations with, the Respondent's editorial and other white collar employees
in Phoenix; its Indiana affiliate's printing trades employees in Indianapolis; and the
affiliate's employees in various other Indiana cities where it publishes newspapers.)
The nub of the matter is that one must look to the total record for an evaluation
of the Respondent's motivation for the discharges; and, as will appear, the context
of events in which the discharges occurred, and the plausibility of the reasons assigned
by McMullen to justify them, are a more compelling guide to decision than the
somewhat peripheral evidence of the Respondent's collective-bargaining relations,
or those of its affiliates, with groups of employees in no way involved in this case.
Nor, in the perspective of the whole record, am I able to accord any operative
weight to the fact that in 1959 the Board dismissed a representation petition on
the ground that a bargaining unit of "seven paper handlers" sought by the petition
was not appropriate Because of this prior experience, the Respondent, so its argu-
ment runs, "had every basis for confidence" that the Board would reach a similar
result with the petition filed on August 7, 1961; that, therefore, the Company had
no reason to expect an election; and that having no such expectation, it had no reason
to discharge anyone "to influence the attitude of the employees or the outcome of
that election." This reasoning, too, it seems to me, dwells at the periphery of the
issues. For one thing, the interrogation of janitorial employees regarding their
knowledge of union activity reasonably suggests that the Respondent was not as
detached from the progress of unionization among these employees as one would
be led to believe by the claim of confidence in the outcome of the 1961 representa-
tion proceeding. For another matter, assuming, arguendo, that the Respondent had
good reason to believe that the 1961 petition, which sought a unit of all maintenance
department employees (about 40 in number) would be rejected like the prior one,
which sought a unit consisting only of paper handlers, then numbering only about 7
employees, that assumption does not inevitably march one to a conclusion that the
Respondent was not hostile to union activity among its janitors. The books contain
a legion of cases in which no representation petition had even been filed, but in which
employees had nevertheless been discharged for union activity. It is by no means
inconceivable that the Respondent, whatever its anticipation regarding an election,
would be hostile to unionization of its maintenance department employees-an
organizational development that could spread to other unorganized employees of
the Company, and lead to the establishment, and a requirement of recognition, of
an appropriate unit that would include the janitors. In any case, there is no need to
scan the possible reasons for hostility by the Respondent to unionization of its mainte-
nance employees; it is enough if the evidence, taken as a whole, fairly establishes that
10 See, for example, United Biscuit Company of America, Union Biscuit Division, 101
NLRB 1552, enfd. 208 F. 2d 52 (C.A. 8), cert. denied 347 U S. 934, where the employer
had collective-bargaining relations with unions affecting all of Its complement of approxi-
mately 500 employees, except a group of some 20 route salesmen, but nevertheless resisted
efforts to organize the route salesmen , and resorted to unlawful coercive conduct to Imple-
inent its resistance.
PHOENIX NEWSPAPERS, INC. 839
the Respondent believed that Moore and Walton were active in the organizational
movement among its maintenance employees and discharged them for that reason.
There are, as will presently appear, more accurate guides to an assessment of the
motivation for the discharges than the Respondent's claim that it was confident that
there would be no election."
Turning to that assessment, the Respondent would have one view the two dis-
missals as but part of a series designed to eliminate deficiences in the maintenance
department. No doubt, as the Respondent points out, some nine employees of the
department were dismissed between the time in May 1961 when McMullen took
charge of the department and the dismissal of Moore and Walton in August, nor
is there any reason to doubt that McMullen, as he testified in effect, was dedicated
to achieving efficiency in his department, but the existence of this aim, and the fact
that a number of employees were discharged over a period of some months in pursuit
of that objective, do not resolve the question whether the reasons assigned by the
Respondent for the two dismissals in issue here are but pretexts to cloak an unlawful
motive, and as to that issue there is substantial warrant for a conclusion that the
,reasons are not what the Respondent claims.
The pretext is clearly visible in Walton's case. Here we have an employee who
worked in the maintenance department for some 4i years; was admittedly "very,
very good," to quote McMullen, at least for some period after the latter became
'superintendent; was promoted to leadman with a promise by McMullen that he
would make an effort to secure a wage increase for Walton; worked in the position
of authority to which he had been promoted only about a week before he left on
'vacation, and but a few days after he returned; and was informed of his discharge
at the beginning of a shift and without any previous warning of dismissal. Tested
by the hard fact of Walton's promotion, not to speak of his long tenure, the subjective
,claims by McMullen and Wilcox that his work had been unsatisfactory for some time
'before the promotion is unconvincing. Thus one is confronted with the important
question of what there was about Walton's work during the brief period that he
-was a leadman that precipitated the decision to discharge him.
McMullen's testimony attempts to answer, and it is that in "[tihe week before
'the discharge, or two weeks in that vicinity," Fears, "a relatively new employee,"
came to him and complained that Walton made a practice of giving him "the heavier
work," and of leaving him, sometimes for hours, instead of "working side by side"
with him. One may pertinently inquire whether it was not Walton's duty to work
"side by side" with other members of his crew as well, thus making it necessary for
him to leave Fears, but putting that aside, the claim has a feeble and tenuous quality
that only strengthens the view that the justification put forward for Walton's dismissal
is a pretext. It seems to me quite implausible that the Company would discharge
an employee of long tenure, only recently promoted to the position of a strawboss,
upon the type of complaint attributed to his recently hired subordinate, Fears (who,
it may be noted, was not called as a witness, although still in the Respondent's
employ), without even so much as a prior discussion of the alleged complaint with
the leadman whose duty it was to assign work to Fears. And the implausible nature
of the claim becomes even more apparent if it be borne in mind that according to the
sense of McMullen's testimony, the alleged complaint was made by Fears while
Walton was on vacation, and thus at a time when he had worked little more than a
few days in the post of leadman. One would think it only natural, had such a com-
plaint been made, that McMullen would discuss it with the newly promoted leadman
to get his view of the matter, and the fact that McMullen admittedly did not do so
militates against acceptance of his claim that the alleged complaint precipitated the
discharge decision.
Significantly, too, McMullen does not credibly explain the timing of the discharge,
and on this aspect of the record, the Respondent's case founders badly. Wilcox
would have it in his testimony that on the morning of August 23 he complained to
McMullen that Walton had failed to follow his (Wilcox's) instructions to clean in
various places, and that he thereupon recommended to McMullen that Walton be
discharged. This could serve as a plausible explanation of the reason why Walton
was discharged on August 25, except that the testimony of McMullen himself makes
it unworthy of belief. If the incident Wilcox describes had occurred on August 23,
it would appear to be natural for McMullen to say that it was the precipitating cause
u For much the same reasons , I similarly accord no operative weight to the fact that
in 1957 the Board 's Regional Director for the area in which Phoenix is located ad-
ministratively dismissed a representation petition seeking a unit (then numbering about
six employees, according to the petition) consisting of "warehousemen, paper handlers
.and strippers and clean-up men."
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Walton's discharge 2 days later; yet McMullen not only does not do so, advancing,-
instead, his claim that Fears ' alleged complaint crystallized his decision , but after
giving evasive testimony as to the period of the alleged complaint (a matter to be
discussed presently ), the superintendent conceded that apart from the claimed criti-
cism by Fears , nothing occurred between August 21 and 25 that entered into the
discharge decision.
The pattern of evasiveness in McMullen 's testimony on the subject of Fears'-
alleged criticism in relation to the timing of the discharge is pronounced . Initially,
McMullen testified that Fears voiced his complaint "the week before the discharge,
or two weeks in that vicinity "; and at two subsequent places the superintendent gave
testimony to much the same effect , stating at one point that the alleged complaint
was made about a week before the dismissal , and at another that it was about a week
or 10 days . Later, in a context where interrogation tried to pin down the date of
the alleged complaint in relation to Walton's return and his dismissal , McMullen
turned manifestly vague, replying to an effort to have him establish the date from a
calendar and various time sheets of the third -floor crew with testimony that he
"couldn 't," and that he "would say it (the alleged complaint ) was the first of the
week, early morning," and then, when asked to specify the week , stating, "I don't
know. He [Walton] could have been on his vacation . I wouldn't say he wasn't
I don't know." Subsequently , in a context where it was evident that he was being
asked to explain why it was that Walton was permitted to work several days after his
return, McMullen took the course of stating that Fears "could have" talked to him
"just a day or two ahead [of Walton 's discharge ], I couldn 't tell you. I don't
remember." I am persuaded , upon my observation of McMullen , that this substan-
tial shift away from his earlier testimony that Fears ' complaint was made "the week
before the discharge , or two weeks in that vicinity " was the product of a realization
by the superintendent that such testimony would not hold water as an explanation
of Walton's discharge 4 days after his return. The evasive and shifting pattern in
McMullen's testimony on the subject of Fears' alleged complaint and its relation to,
the date of Walton's discharge does much to lead me to the conclusion that the-
alleged criticism by Fears as a reason for the dismissal is an afterthought. The
alleged complaint , I find , had no connection with the discharge.
Moreover , there is a serious question , to say the least , that it was McMullen who,
made the discharge decision ; and, indeed , there is warrant in the record for concluding
that it was not he who did so . Walton testified that when Wilcox informed him of
the dismissal on August 25, the foreman , expressing regret, told him that General
Manager Worcester "had said to get rid " of Walton , and that he (Wilcox) "was
supposed to tell" Walton of the dismissal on the preceding Monday, August 21. This
testimony strikes a credible note, for unlike McMullen's account of the discharge-
decision , it explains why Walton was not discharged on the day of his return from
his vacation , namely, because Wilcox had omitted (perhaps neglected ) to do what
he had been "supposed" to do.
In any case , whether the discharge decision originated with McMullen or else-
where in the management , and whether Walton was "supposed" to have been dis-
charged on August 21 (which , by the way , was I day after Moore's dismissal)
or some days later, it is a basic and important fact that the justification put forward
by the Respondent does not survive examination . The real reason for Walton's dis-
missal , I am persuaded , was a belief by the Respondent that Walton was an active
figure in the effort to unionize the maintenance department employees . That con-
clusion is not negated by the fact that Walton 's union activity consisted only of sign-
ing an authorization card for Local 274, and attending the July 30 meeting (and
possibly one or more, in addition , before his discharge ). It is well established that a
discharge based upon a belief or suspicion that an employee engaged in union activity
is unlawful , whether or not the activity actually occurred ,12 and thus the focus of in-
quiry is what the Respondent believed regarding union activity by Walton. The
belief appears in the credited testimony of Williams , an employee who has worked for
the Company for many years , almost since it began its publishing operations in
Phoenix in 1946. As Williams testified , after be denied having any knowledge of
"the union ," in reply to an inquiry by McMullen . the latter remarked that he could
get his information from Moore or Walton "or one of those union guys." I think
that one would be overly literal to the point of folly to assume that what McMullen
meant was to direct Williams to Moore and Walton for information about Local 274.
The statement appears to me to have been an intimation by McMullen , in a somewhat
'3 N.L.R B v Fredrtca Clausen, d/b/a Lucerne Hided Tallow, 188 F. 2d 439, 443
(C.A. 3) ; NL.RB. v. Clay M. Bishop and Robert B. White, d/b/a New Hyden Coal Co,
228 F. 2d 68, 70 (C.A. 6).
PHOENIX NEWSPAPERS, INC. 841
argumentative or rhetorical vein, in reply to Williams' disclaimer of knowledge about
unionization, that the management did have some information about "union guys";
but, in any case, the fact that the superintendent singled out Moore and Walton by
name, in the context of his allusion to "union guys," implies a belief by McMullen
that those he named were active proponents of unionization of the maintenance depart-
ment employees. Viewing Williams' approximation that this conversation took place
"about the 14th, 15th, or 16th of July, somewhere in there," in the light of the total
record, one may reasonably conclude that it occurred at some point between the
July 30 meeting, the occasion of Walton's first union activity, and the day of his dis-
charge, but whether it was made during that period or earlier in the period of the
organizational campaign (which began in the early or middle part of July), the im-
portant point is that it was made and that it signifies a belief by McMullen when
made, whatever the foundation for the belief, that Walton was an active proponent of
the Union.i3
The fact that the reason given by McMullen for the Walton discharge does not
stand up under inspection contributes important weight to the General Counsel's
claim that the motivation for the discharge was unlawful. To say this is not to
shift the burden of proving this claim from the General Counsel and to place the
burden of disproving it upon the Respondent. Under conventional and well-estab-
lished doctrine, upon the presentation by the General Counsel of a prima facie case,
a duty of going forward with the evidence to present a credible explanation for the
discharge devolves upon the Respondent, and when it fails to meet this duty, as it has,
offering, instead, a justification which does not survive scrutiny, thus justifying an
inference that the real reason has been concealed, the very fact of failure and
concealment adds weight to the claim that the motive was one forbidden by the
Act.
In sum, with respect to Walton's dismissal, I am impelled to the conclusion, and
find, that the reasons given by McMullen for the discharge are pretexts; that Walton
was dismissed because the Respondent believed him to be an active proponent of the
Union; that by thus discharging Walton, the Respondent discriminated against him,
thereby violating Section 8(a)(3) of the Act; and interfered with, restrained, and
coerced employees in the exercise of rights guaranteed them by Section 7 of the
Act, thus violating Section 8 (a) (1) of the statute.
In Melvin Moore's case, as in that of Walton, McMullen's statement to Williams
warrants an inference, and I find, that the Respondent believed Moore to be an
active proponent of the Union. Thus the basic question presented is whether Moore's
discharge was rooted in that belief.
In deciding that issue, one must put aside the words or anything else that passed
between Moore and McMullen on the morning of August 20 after the super-
intendent informed Moore of his dismissal. The fact that Moore called McMullen
one or more vulgar names, and the question whether Moore made a threatening
gesture or struck the superintendent, after the words of discharge were uttered,
are wholly ungermane to the issue whether an unlawful motivation underlay the dis-
charge, although relevant to the question whether the Respondent should be required
to offer Moore reinstatement if it be found that his discharge was unlawful.
At the heart of the issue of the legality of Moore's discharge lies the question
whether Moore and the other second-floor crew members were absent from their
work on the morning of August 20 for a permissible period of about 45 minutes,
as Moore, Watson, and Burton claim, in substance, or for almost an hour and a half,
as McMullen maintains in effect.
It is a noteworthy fact that although McMullen claims that in the course of his
search for the second-floor crew on the morning in question, a guard went looking
for the crew, and that he ingl,ired of three members of the third-floor crew, including
Burton, about 5:20 a.m. whether they had seen the second-floor crew, the Respondent
called not one of these to support McMullen's account of his alleged search for the
crew. It was the General Counsel who called Burton, and the latter asserts, in
19 The fact that the evidence does not describe how McMullen arrived at the belief does
not preclude a finding, based on Williams' testimony, that the belief was there (In that
connection, see NL.RB v. Minnotte Manufacturing Corp., 299 F. 2d 690 (C.A. 3).
I think it evident, too, that to require, as a predicate to a finding that Walton's dis-
missal was discriminatory, that the record trace the route by which McMullen arrived
at the belief would not only frustrate the ends of rational decision on the evidence, but
would put a premium on the lack of candor reflected in the reason McMullen gives for the
discharge, and his denials that he made inquiries of White, Burton, and Williams regard-
ing union matters.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substance, that although the third-floor crew's hours are now from 9 p.m. to
5:30 a.m., the crew's shift formerly, and at the time of Moore's discharge, was from
9 p.m. to 5 a.m., and that on the morning in question, as he and the other third-floor
crew members were preparing to leave, he saw Moore at "around . . . 4:58" walking
toward the mailroom.14 In other words, Burton does not support McMullen,
but, on the contrary, substantially corroborates Melvin Moore and Watson as to
the time the second-floor crew returned to the building after their lunch and rest
periods.
The only witness called by the Respondent to support any aspect of McMullen's
testimony regarding his activities that night was Alexander Moore, claimed by the
Respondent to have been a member of the second-floor crew on the night involved-
a claim disputed by Melvin Moore But the support is not substantial Alexander
Moore does not specify the time McMullen spoke to him, and, in fact, his testimony
sheds no real light on the crucial question of the length of time the crew was
absent, for, although claiming that he left for, and returned from, lunch with the
group, he testified that he took no note of the length of the absence. Substantially,
the sum of the support is Alexander Moore's testimony that he was a member of
the second floor crew, and that McMullen asked him that morning in the mailroom
where he had been.
But the credibility of even that limited support is not free of substantial doubt, for
there are a number of factors, some involving the Respondent's own records, that
add corroborative weight to Melvin Moore's claim that Alexander Moore was not a
member of the second-floor crew on the occasion under discussion. The Respondent
maintains a weekly time record for each floor crew, identifying the crew by its floor
designation, specifying the workweek, and containing entries by each crewman as to
his daily hours. According to Alexander Moore, he worked as a second-floor crew
member for about 6 weeks preceding the night in question; yet the only time record
in evidence for that crew (produced by the Respondent in connection with a matter
pertaining to Othela Walton), purporting to list the members of the crew and the
hours they worked for the week beginning July 23 and ending July 29, 1951, does
not contain Alexander Moore's name. Significantly, too, although the Respondent
went to some pains to introduce time records relating to Walton, it produced none
to counter Melvin Moore's claim that Alexander Moore was not a member of the
second-floor crew on August 20 or to support its own claim that he was; nor did the
Respondent offer any evidence explaining its failure to produce such records.15
Moreover, Alexander Moore gave substantial inaccurate testimony to the effect that
the second-floor crew's shift hours were from 11 p.m. to 5:30 a.m. (instead of 11
14 The fact that Burton regarded his workday from 9 p in. to 5 a in , including a half-
hour lunch period, as an 8-hour shift, and that he entered it as such in the time record
forms the Company provided, does not lead me to disbelieve his testimony that he saw
Moore as the third-floor crew was preparing to leave shortly before 5 a.m , and, con-
versely, to accept Mcbfullen's claim that the crew worked an 8-hour shift (excluding the
lunch period) which ended at 5 30 a ni , and that he spoke to Burton at 5 20 am
McMullen's testimony as to the third-floor crew's hours at 'the time of Moore's discharge
stands alone. This is not true of Burton's version of the crew's hours, for testimony by
Walton, who was the group's leadman in August 1961, supports Burton in that regard
Moreover, McMullen's claim that "all (his) people work eight hours," apart from lunch
periods, is credibly contradicted by James Lee who, in a context unrelated to Moore's
'discharge, testified that his (Lee's) shift is from 6 p m to 1:30 a m White, also testify-
ing in a context unconnected with the Moore dismissal , stated that he works a 9-hour
shift, excluding lunch, once or twice a week, and an 8-hour shift, not including lunch, the
balance of the week Bearing in mind that the maintenance crewmen were required to
make their own timekeeping entries, and that their work is that of janitors and not
accountants or bookkeepers, it is not unlikely that the 8-hour entries of Burton and other
third-floor crewmen, in August 1961, stemmed from a belief that a work period from
9 p m. to 5 a. m , including 30 minutes for lunch, constituted an 8-hour shift This may
prove that the timekeeping practices weir' loose, but it does not prove that Burton's testi-
mony regarding the time the second-floor crew returned is untrue Taken as a whole,
the evidence persuades me that in August 1961, at least, the maintenance department
employees did not uniformly work 8-hour shifts, that the number of hours worked varied
from one crew and particular operation to another . and that the third-floor crew's regular
shift was, as Burton and Walton testified, from 9 p.m to 5 a in.
16 " . . where the party on whom rests the burden of evidence as to a particular fact
has the evidence within his control and withholds it, the presumption is that such evi-
dence is against his interest and insistence " N.L R B. v. Ohio Calcium Company, 133
F. 2d 721 (CA 6).
PHOENIX NEWSPAPERS, INC. 843
p.m. to 7:30 a.m., the correct hours), and compounded this error with another to-
the effect that the crew went to lunch at 2:30 a.m. on August 20. Perhaps these
inaccuracies arose because he was "sleepy" when he testified, having completed a
night shift as a member of the third-floor crew several hours before he gave his
testimony, but he testified that he "understood the questions" put to him, and it was
manifest to me that he did; and particularly bearing in mind the Respondent's failure
to produce its time records relating to Alexander Moore, there is reason to believe
that his errors derived from unfamiliarity with the second-floor crew's shift hours.
In short, the inaccuracies tend to support Melvin Moore's claim that Alexander Moore
was not a member of the second-floor crew at the time in question.
Furthermore, McMullen's account of his conversation with Alexander Moore
sounds an implausible note. According to McMullen, when he asked Alexander
Moore where he had been, the latter replied, "I do not know." This alleged re-
sponse has an evasive cast, if not an impertinent one; yet the record leaves no room
for doubt that Alexander Moore was not even reprimanded, let alone discharged,
either for an excessive absence or the tenor of his reply. It imposes a large burden
on one's credulity to believe that a supervisor, having good reason to suspect that an
employee had been absent from work for a substantial period without leave, and,
upon inquiry, receiving a reply from the employee that he did not know where he
had been, would not even rebuke the employee.16
In sum, as regards Alexander Moore, neither his testimony nor that of McMul-
len regarding their alleged conversion appears to me to give persuasive support
to the superintendent's claim that Melvin Moore and the other second-floor crew-
men absented themselves from their work for an excessive period on August 20.
In contrast, Melvin Moore's claim regarding the period of absence has substantial
corroborative support from Watson and Burton. As noted earlier, both Watson
and Burton are currently in the Company's employ, Watson having received a wage
increase less than 2 months before the hearing in this case; and there is no evidence
that they are supporters or adherents of the Union, or that they have any interest in
the outcome of this proceeding.
Moreover, their testimony is given corroborative support by some objective facts.
These are that although all the members of the second-floor crew were absent for
the same period of time on the morning of August 20, McMullen admittedly dis-
charged none but Melvin Moore, and so far as appears, did not even say anything
about an excessive absence to any of the other crew members. He conceded that he
has never said anything to Watson about the matter; it is evident from the testimony
of both McMullen and Alexander Moore that although both claim that Alexander
Moore was a member of the crew that night, the superintendent has never rebuked
him for an excessive absence on the occasion in question, and there is no indication
in the record that he even discussed the alleged absence with any of the crew mem-
bers, except Melvin Moore, let alone reprimanded such other employees.
McMullen offers the explanation that he singled out Melvin Moore for discharge
because the other crew members were "new employees," and Melvin Moore was
"leading my younger men . away from their job." There is no evidence that
Moore was "leading" anyone but himself that night, whether the absence was ex-
cessive or not, but putting that aside, the fact that all but Moore on the crew were
"new" or "younger" men does not suffice to explain why, so far as appears, Mc-
Mullen did not even mention the allegedly excessive absence to any but Melvin
Moore. This is a singular circumstance, it seems to me, particularly in view of the
stress the Respondent places upon McMullen's avowed aim of building up the
efficiency of the janitorial crews.
The omission to mention the matter to Watson is noteworthy of itself, but it takes
on particular significance in the light of evidence that Watson was acting as tem-
porary leadman that night, as a substitute for the regular leadman, Jimmy Cherry,
who was absent. According to Watson, who entered the Company's employ about
2 weeks before Melvin Moore's discharge, Cherry suggested to Wilcox one day,,
and the foreman agreed, that when both Cherry and another janitorial employee
named Bennie Hooks, "the next oldest fellow" on the crew at the time, were absent,
Watson as "the next oldest man" after Hooks would serve as substitute leadman.
Wilcox entered a denial that Cherry had "any power to make Alonzo Watson a
lead man." If this denial is intended to mean that Wilcox did not concur in Cherry's,
suggestion, I do not credit it.
The fact that Watson had been an employee of the maintenance department
only a short time, and that leadmen were appointed on the basis of tenure and'
"Alexander Moore testified that his reply was that he had been to lunch This does
little for McMullen's credibility, for it conflicts with his account of the response, and does
not alter the fact that McMullen quotes Alexander Moore as replying, "I do not know."
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience, does not necessarily negate the evidence that Watson was acting as lead-
man on the night in question under a prior arrangement approved by Wilcox. For
one thing, Watson had not been given the classification of leadman, the arrangement
merely contemplating that he would act only temporarily when both Cherry and
Hooks were absent. For another matter, although only recently employed at the
time of the arrangement, Watson, as he testified, without contradiction, was next in
seniority on the second-floor crew to Cherry and Hooks. (As Watson also testified,
without dispute, Melvin Moore, who had a much longer tenure with the Company
than Watson, was not a member of the second-floor crew at the time of the arrange-
ment )17 Against that background, Watson's testimony regarding the arrangement
is quite plausible, and its plausibility is enhanced by the fact that Wilcox was not
on duty as foreman on the night of Melvin Moore's discharge, that both Cherry
and Hooks were off, and that Wilcox' denial, if accepted, would lead to the some-
what implausible result that the second-floor crew, contrary to the management
policy of designating leadmen, was left to function without supervision or any other
leadership at all on the night in question. The evidence leaves me in doubt that
Watson was acting leadman of the second-floor crew on August 20, serving under
the arrangement approved by Wilcox; and the fact that Watson, who, as acting lead-
man, had the duty of seeing that his crew's tasks were done, has never been so
much as admonished for an allegedly excessive absence by the second-floor crew
on the night in question, supports an inference that the crew was not remiss in the
time they took from their work, and that Melvin Moore was singled out for discharge
for a reason dissociated from the absence.
On the basis of what has been said above, it would be a mistake to reject the
'testimony of Watson and Burton, who substantially corroborate Melvin Moore as to
the length of time the second-floor crew was absent on its combined lunch and rest
periods, and to accept the materially different claim of McMullen who has given
much implausible testimony in this proceeding. The weight of the evidence, in other
words, establishes, and I find, that Moore and the other members of the second-
floor crew were absent from their work on the occasion in question for approximately
45 minutes, and that they were thus absent for the customary and permissible purpose
of taking their combined lunch and rest periods.
Particularly in the light of that finding, I am convinced. too, that the reason for
Moore's dismissal, namely, that the crew had been absent for an excessive period,
given Moore by McMullen in reply to the former's query, "Why me?" was a pre-
text.18 The use of a pretext in Moore's case, as in Walton's, contributes material
weight to an inference, and I find that the motivation for the discharge was rooted in
The Respondent's belief that Moore was an active proponent of the Union.
The sum of the matter is that by discharging Moore the Respondent discriminated
against him in violation of Section 8(a) (3) of the Act; and interfered with, restrained,
and coerced employees in the exercise of rights guaranteed them by Section 7 of
the Act, thereby violating Section 8(a)(1) of the statute.
The evidence of what took place on the morning of August 20 after Moore's dis-
missal raises a question whether he engaged in such conduct as to warrant a denial
to him of reinstatement and backpay. The versions of McMullen and Moore are
not in material conflict as to much of what occurred. Informed of his discharge,
Moore, I find, asked, "Why me'?" denied allegations by McMullen, in reply, to the
effect that the crew had been absent for an excessive period and that he (Moore)
had previously neglected his work; and stated that he had not been given the real
reason for his discharge. The record leaves no room for doubt that by this point
in the discussion Moore was angry, and that he then expressed his anger by leveling
at least one vulgar epithet at McMullen.
There is, however, marked conflict in the evidence of what followed; each of the
three witnesses who described the incident differing in substantial measure from the
other two. As is so often the case with differing accounts of heated conflict among
humans, the complete truth, in my judgment, does not rest with any of the three;
nor is it possible to determine from the record how much of this is due to the heat
and excitement of emotion-laden conflict, how much to the fallibility of memory, and
"Watson testified that the arrangement was made "about a week or two before Melvin
came downstairs " or. In other words, before his last assignment to the second-floor crew
It may be noted, in that connection, that McMullen frequently transfers men from one
crew to another.
le McMullen does not, in terms, deny that Moore asked, "Why me?" after the words of
dismissal. The superintendent testified that he could not remember whether Moore put
that question to him Moore's testimony that he did so is credible, especially if one bears
in mind that Moore was the only one of the crew singled out for discharge on the occa-
sion in question.
PHOENIX NE`V SPAPERS, INC. 845
how much to deliberate coloration or distortion of the facts.19 In the nature of
things, the best the factfinder can do is to locate the probable among the conflicting
versions, taking into due account his impressions of the witnesses involved.
At one point in his testimony, in the course of describing alleged shortcomings in
Moore's work, McMullen portrayed him as a man given to silence who "never
expresses himself." This does not quite jibe with the superintendent's later por-
trayal of Moore as "screaming" and "hysterical" after learning that he was dis-
charged. That is not to say that a normally quiet man may not become a "screaming"
and "hysterical" one under stress, but my appraisal of Moore and of all the circum-
stances leads me to believe that McMullen's portrayal of Moore as "screaming" and
"hysterical" is colorful rather than accurate. In other words, I believe that Moore,
as his use of one or more epithets in the context of events attests, was angry, but not
to the extreme that McMullen's account depicts; nor do I find convincing McMul-
len's claim to the effect that Moore came at him with the broom, without provocation.
Without in any way condoning anything either Moore or McMullen said or did
on the occasion in question , it appears to me that Moore was provoked by the
injustice of his discharge into calling the superintendent one or more opprobrious
names; and I think it likely, in the light of my appraisal of McMullen, that the
name calling provoked him, in turn, to advance aggressively toward Moore, as the
latter testified, with "his fist balled." I do not credit Watson's testimony to the
effect that when McMullen advanced toward Moore, the latter merely "took a step
back and grabbed his broom," and "didn't swing" at McMullen. On the contrary,
I am convinced that Moore, as, in fact, he testified, did swing his broom at McMul-
len, and I believe it likely that he did so in the belief that the superintendent was
advancing toward him to strike him with his fist.
Whether the broom actually struck McMullen, as he claims, or whether Moore
missed , as the latter asserts, is not , in my view, decisive of the question whether
Moore should be denied reinstatement, for I think there is no greater logic in with-
holding the remedy if the broom found its mark than if it failed to do so. Be that
as it may, McMullen's claim that the broom struck him is given some support by a
photograph of his arm, taken, according to McMullen, in the Respondent's newspaper
photography department within an hour after the altercation. The photograph
shows an area of the arm as somewhat darker than a surrounding portion, and this
suggests some discoloration. Apart from the evidence he presented that the broom
did not land, the General Counsel offered no testimony impeaching the authenticity
of the photograph or explaining the difference in coloration reflected in it. In the
absence of such impeaching evidence , the photograph, in my judgment, tips the
scale in favor of McMullen's claim that he was struck by the broom bristles, and
that they reddened his skin.
In summary, then, I find that the discharge provoked Moore into calling McMullen
at least one opprobrious name ; that this in turn provoked the superintendent into
advancing on Moore in a threatening manner; and that Moore, believing that Mc-
Mullen was advancing toward him to attack him, struck the superintendent with
the bristle end of the broom.20
In the light of the foregoing findings (and, indeed, whichever of the three
versions one accepts), it was Moore who took the first step that converted a
discussion about his discharge and the purported reason therefor into a climate
of verbal abuse, threat, and violence, doing so by calling McMullen an "5.O.B."
This resort to opprobrious name calling is insufficient of itself, it is true, to warrant
.a denial of the remedy of reinstaternent,21 but it had the reasonably foreseeable
consequence of provoking McMullen to advance on Moore with his "fist balled"-a
-threatening posture that, in turn, led Moore to assault McMullen with the broom.
' The fact that I have credited Watson and Moore on some matters where they are
in conflict with McMullen, and have not been able to accept the testimony of the super-
intendent on various other subjects, is not an unerring guide to a resolution of what
passed between McMullen and Moore, particularly taking into account the obvious fact
that the witnesses formed their impressions of what was said and done in an atmosphere
,of conflict and heated expression. It is not rare in cases of this type for a witness to give
,credible evidence on one subject , and implausible testimony on another
20 Watson testified, much like Moore, that the latter "slipped," but stated that he did
-not see Moore fall down. McMullen and Moore are in accord that the latter fell after
swinging with the broom. It 1.4 unnecessary to decide whether Moore did, in fact, go
down, and , if he did , whether he fell because he slipped, as he claims, or because
McMullen hit him, as the latter states, for the weight of the evidence persuades 'me that
if each struck the other, the first actual blow was struck by Moore.
21 See Vermont American Furniture Corporation , 82 NLRB 408.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In other words, whether or not one believes that "a thirty-six inch broom with,
[an] approximately five and a half foot handle," as McMullen described Moore's
weapon, without dispute, was a reasonable instrument of self-defense against a
threatening gesture by McMullen, the underlying fact is that Moore, by his verbal
abuse of McMullen, provoked the superintendent into taking the threatening posture.
To be sure, in the final analysis, it was McMullen's unlawful act of discharging
Moore that set in motion the train of actions and reactions that followed, but this,
in my judgment, does not alter the fact that it was Moore who, by a particularly
provocative choice of epithet, launched the climate of violence that developed
between him and his supervisor. Thus, although I have doubt, in view of the
provocation given Moore by his unlawful discharge, that it serves the policies
of the Act to deny him reinstatement and backpay, decisional authority I deem
applicable leads me to omit, from the remedial recommendations made below, any
provision for reinstatement of Moore or for reimbursement of wages he lost as
a result of his discharge.22
The Respondent takes the position in its brief to the effect that it is not estab-
lished that the interrogation of Burton, Lee, Williams, Watson, and White
was coercive in nature , and that therefore the acts of interrogation did not violate
the Act. This view of the matter overlooks the fact that Section 8(a)(1) of the
Act not only forbids restraint and coercion of employees in the exercise of their
statutory guarantees, but also prohibits interference with such rights; and that the
applicable test, under well-established principle, is not whether the conduct in question
has an observable impact upon employees, but, as the Court of Appeals for the
Seventh Circuit has put it, "whether the employer engaged in conduct, which it
may reasonably be said tends to interfere with the free exercise of employee rights
under the act." [Emphasis supplied.] N.L.R.B. v. Illinois Tool Works, 153 F. 2d
811, 814.23
Measured by that test, in the light of the whole record, I am unable to view
the acts of interrogation as merely "passing friendly references," as the Respondent
puts it in its brief; and it would be a mistake, in my judgment, to evaluate the
interrogation in isolation from the discharges. Against the background of the dis-
missal of Moore and Walton, it seems to me that there is ample warrant for a
conclusion that McMullen's inquiry of Williams as to what the latter knew "about
the union," coupled as it was with a pointed intimation that McMullen knew that
Moore and Walton were active proponents of "the union," would reasonably tend,
at least after the discharge of Moore and Walton, to interfere with the right of-
self-organization of employees in the Respondent's maintenance department. The
same is true, in my judgment, of the inquiry by McMullens superior, Whitney,
of Watson, whether the latter thought that the maintenance employees "needed
protection" (meaning, plainly, representation by the Union). It should be borne
in mind that Watson was present when Moore was discharged and heard the latter
protest that he had not been given the real reason for his dismissal, thus intimating
that he believed he was being discharged for union activity. I think it evident, too,
that the interfering tendency of Whitney's inquiry is given emphasis by the fact
that it followed a statement by Whitney that Watson's wages were being increased,
and occurred in the same discussion in which Watson was told of the increase.
Moreover, unlike the Respondent, I am unable to dismiss any of the acts of
interrogation as mere "kidding" It is true that the second conversation between
McMullen and White included a "kidding" vein, and that McMullen' s statement
that White was on his " `S' list" was said in a jesting manner, and for that reason
I do not agree with the General Counsel's claim that McMullen's allusion to the
" `S' list" was an unlawful threat that White would be accorded "discriminatory
treatment," as the complaint puts it, "if he would not supply information concerning
union activities." But I take another view of the interrogation, for notwithstanding
the fact that White and McMullen are friends, and that the second of the three
22 See Carthage Fabrics Corporation, 101 NLRB 541, 555 To the extent that Moore
believed that McMullen was about to attack him and reacted with an assault on the
superintendent, this case differs from Carthage Fabrics, where the employee involved
clearly did not act in self-defense what brings Moore's case within the range of
Carthage Fabrtics, in my judgment, is the underlying fact, as noted earlier, that it was
Moore who took the initial step that converted the discussion from one about the dis-
charge into a climate of physical threat and hostility
22 See, also, for example, N L.R B v TValbur H Ford, d/b/a Ford Brothers, 170 F. 2d
735 (CA. 6) ; and Time-O-Matic, Inc. v. NLRB , 264 F. 2d 96 (C.A. 7).
PHOENIX NEWSPAPERS, INC. 847
,conversations included some jesting, the credited evidence of these discussions
i effects persistent and repetitive attempts by McMullen to pump White for informa-
tion about union activities. In fact, this is particularly true of the second conversa-
tion , in which, notwithstanding some "kidding" back and forth, it is apparent that
McMullen closely questoned White, alluding to the fact that White had previously
said that he knew nothing "about the union" except "rumors," asking White whether
he was sure that that was all, and inquiring, quite pointedly, in my judgment, who
were the "they" who were endeavoring to organize the employees when White
made the comment that "they were trying to organize." This last question, particu-
larly, can hardly be labeled "kidding" or mere friendly chitchat, for it has the
earmarks of an effort by McMullen to have White inform on the union activities
of fellow employees.
Comparably, Smith's inquiry of Lee whether he knew "anything about it"
was, in the context in which it was put, an effort to secure information as to
the identity of those who were so "unhappy" with their working conditions as
to support the Union. This inquiry, it may be borne in mind, was not an effort
to ascertain whether the organization had a majority, as a factual predicate for
a reply to its recognition request, for from the tenor of Smith's remarks about
"unhappy" employees and talking to them to "straighten things out," it is reasonable
to conclude that he wanted the information in order to deal directly with dissatisfied
employees irrespective of the claim of representation.
As regards the third conversation between White and McMullen, described previ-
ously, the Respondent may not, in my view, be absolved of responsibility for
McMullen's query whether White had "signed a union card," simply because
White brought up the subject of "the union" with a statement to the effect that
he had not known anything about the organization at the time of the prior con-
versations. McMullen had repeatedly plied White with questions relating to union-
ization, and one may fairly infer that in the setting of the personnel manager's
office, where White was explaining an absence from work, the employee felt it
desirable, if not under some constraint, to resume a dialogue about unionization
McMullen had initiated on the prior occasions, with a view of freeing himself from
suspicion, implied in McMullen's prior questioning, that he had withheld union
information McMullen was seeking. In other words, I think it fair to say that
it was McMullen's prior interrogations that were responsible for White's reference,
in the personnel manager's office, to the subject of his previous lack of knowledge
of "the union," and his allusion to the subject should properly be viewed as a
continuation of discussions of subjects McMullen had begun on prior occasions.
Certainly, in the circumstances presented, the mere fact that White alluded to
his lack of knowledge of "the union" on the occasions when McMullen had
interrogated him does not justify an attempt by McMullen to find out whether
White had "signed a union card." And the comment of the personnel manager
that they were not in the office "to discuss union" matters does not alter the
fact that McMullen had put a question he had no lawful right to ask in the first
place.
The nub of the matter is that the discharge of Moore and Walton points to an
underlying purpose by the Respondent to discourage organization among the main-
tenance department employees; and that the acts of interrogation were a projection
,of that policy. Thus, the Respondent's reliance upon such cases as Blue Flash
Express, Inc., 109 NLRB 591, is misplaced 24
In sum, as regards the allegations of interrogation, I find that the Respondent
interfered with the exercise of Section 7 rights of employees, and thereby violated
Section 8(a)(1) of the Act, a result of: (1) McMullen's inquiry of Burton as
to whether anyone had approached or asked him "anything about the union"; (2)
Whitney's interrogation of Watson whether he thought that the maintenance em-
ployees "needed protection"; (3) McMullen's query of Williams as to what he
knew "about the union"; (4) McMullen's interrogation of White, in the first of
their conversations described above, as to what White had heard about "the union";
(5) the building superintendent's inquiries of White, in their second conversation,
as to whether White was sure that all he had heard "about the union" were
u In Blue Flash, the employer , having received a bargaining request from a union,
sought to find out from the employees , as a basis for replying to the request , whether
the organization was authorized to represent them, assuring them, in the process of
interrogation , that they would not be subjected to reprisals . Clearly, the holding in Blue
Flash is inapposite here
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"rumors," and who were the individuals who were "trying to organize " the em-
ployees; ( 6) McMullen 's question , in the last of his three conversations with White,
whether the latter had "signed a union card" ; and (7 ) Smith 's inquiry of Lee
whether he knew "anything about it," a question , as previously indicated , that sought
information as to the identity of dissatisfied employees who were supporting the
Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent 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 burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative actions designed to effectuate the policies of
the Act.
As it has been found that the Company discharged Othela Walton on August 25,
1961, in violation of Section 8(a)(1) and (3) of the Act, i shall recommend that
the Company offer him immediate and full reinstatement to his former or a substan-
tially equivalent position,25 without prejudice to his seniority and other rights and
privileges, and make him whole for any loss of pay he may have suffered by reason
of his discharge by payment to him of a sum of money equal to the amount of
wages he would have earned, but for the said discharge, between the date of his
dismissal and the date of a proper offer of reinstatement to him as aforesaid, to-
gether with interest thereon, as provided below; that the loss of pay be computed in
accordance with the formula and method prescribed by the Board in F.W Woohlorth
Company, 90 NLRB 289, to which the parties to this proceeding are expressly re-
ferred; and that the interest payable, as stated above, shall be computed at the
rate of 6 percent per annum on the amount found due for each calendar quarter,
under the Woolworth formula, beginning with the end of such calendar quarter and
continuing until payment of such amount is properly made to Walton.26
25 In accordance with the Board ' s past interpretation, the expression "former or a sub-
stantially equivalent position" is intended to mean "former position wherever possible, but
if such position is no longer in existence , then to a substantially equivalent position "
The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
65 NLRB 827.
26 The interest requirement is, in my judgment , within the Board 's authority, under
Section 10(c) of the Act, to require any person found to have engaged in unfair labor
practices "to take such affirmative action including the reinstatement of employees with
or without back pay, as will effectuate the policies of the Act." The discrimination
against Walton deprived him of a job with the Company and use of the money he would
have received as wages for his work; and the Company , correlatively , has had the use'of
that money for any purpose to which it chose to devote it. Thus it appears to me that
the payment of interest at the moderate rate of 6 percent ( which is less than the 8 per-
cent permitted by Arizona law for obligations under A R S , Sec 44-1202) would be but
an equitable reimbursement to Walton for the use of money denied him as a result of the
discrimination . This is in keeping with conventional conceptions , reflected in the statute
law of many jurisdictions , that he who owes another money should be required to pay
interest 'thereon at a given rate ( customarily provided by statute ) where the parties have
no other interest arrangement . The fact that the amount of backpay is as yet unliquidated
is no barrier to the Interest requirement , for the Respondent can readily compute the
interest in the process of backpay computations it is required to make under the Wool-
worth formula . The interest requirement . It may be noted . too, finds support in decisional
authority in proceedings brought under the Universal Military Training and Service Act
(50 U.S C. App. 451, 459 ) to recover damages for a wrongful refusal to reinstate a veteran
to a former employment. Judicial computation of damages in these cases has not only
determined the wages the veteran would have earned but for the wrongful denial of em-
ployment, but has included interest on wages thus found to be due. Travis v. Schwartz,
216 F. 2d 448, 456 (C .A. 7) ; and Carmalt v. General Motors Acceptance Corp , 48 LRRM
2825 ( D!C.W.D. Pa.).
PHOENIX NEWW,%SPAPERS, INC. 849
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding. I make the following:
CONCLUSIONS OF LAW
1. Phoenix Newspapers, Inc., is, and has been at all times material to this proceed-
ing, an employer within the meaning of Section 2(2) of the Act.
2. Sales Drivers & Helpers Local 274, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been
at all times material to this proceeding, a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminatorily discharging Melvin Moore and Othela Walton, as found
above, the said Company has engaged in and is engaging 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
rights guaranteed by Section 7 of the Act, as found above, the said Company has
engaged in and is engaging in unfair labor practices 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 basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Phoenix Newspapers, Inc ,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Sales Drivers & Helpers
Local 274, affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other labor organization, by
discharging any employee, or in any other manner discriminating against any em-
ployee in regard to his hire, tenure of employment, or any term or condition of
employment, except as authorized by Section 8(a)(3) of the Act.
(b) Interrogating any of its employees with respect to the activity, membership,
or interest of any of its employees in any labor organization 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 employees in
the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain 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 or 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 in Section 8(a)(3)
of the Act.27
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Offer to Othela Walton immediate and full reinstatement to his former or a
substantially equivalent position, without prejudice to his seniority and other rights
and privileges, and make him whole in a manner and according to the method set
forth in section V, above, entitled "The Remedy "
(b) Preserve until compliance with any order for reinstatement or backpay made
by the National Labor Relations Board is effectuated, and, upon request, make
available to the Board and its agents, for examination and copying, all payroll records,
social security payment records, timecards, personnel records and reports, and all
other records, relevant to a determination of the amount of backpay due, and to
the reinstatement and related rights provided under the terms of any such order.
(c) Post at its place of business in Phoenix, Arizona, copies of the attached notice
marked "Appendix A." 28 Copies of said notice, to be furnished by the Regional
27 The scope of the restraints set forth above Is justified, in my judgment, by the nature
of the violations found. See N L R.B v Entwistle Mfg. Co , 120 F 2d 532 (C.A 4) ;
May Department Store v. N.L.R.B , 326 U.S. 376 ; and Bethlehem Steel Co v. N L R.B
120 F. 2d 641 (C.A D.C.).
"e In the event that this Recommended Order Is 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 case the Board's order is enforced by a decree of a
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director of the Twenty-eighth Region of the National Labor Relations Board, shall,
.after being signed by a duly authorized representative of the Company, be posted by
it immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the said Company to
insure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the said Company
has taken to comply therewith 29
It is further recommended that, unless on or before 20 days from the date of this
Intermediate Report and Recommended Order, the Respondent notify the said
Regional Director that it will comply with the foregoing Recommended Order, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to
a Decision and Order."
In the event that this Recommended Order be adopted by the Board, paragraph 2(d)
thereof shall be modified to read: "Notify said Regional Director, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
therewith."
APPENDIX A
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 by any of our employees in Sales
Drivers & Helpers Local 274, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehouse and Helpers of America, or in any other
labor organization, by discharging any employee, or in any other manner
discriminating against any employee in regard to his hire, tenure of employment,
,or any term or condition of employment, except as authorized by Section 8(a) (3)
of the said Act.
WE WILL NOT interrogate any of our employees with respect to the activity,
membership, or interest of any of our employees in any labor organization in a
manner constituting interference , restraint, or coercion in violation of Section
8 (a) (1) of the said Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization, to form, join, or assist
any labor organization, to bargain 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 or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
,as authorized in Section 8(a) (3) of the said Act.
WE WILL offer Othela Walton immediate and full reinstatement to his former
,or a substantially equivalent position, without prejudice to his seniority and
,other rights and privileges, and make him whole for any loss of pay he may have
suffered by reason of the fact that we discriminated against him.
PHOENIX NEWSPAPERS, INC.,
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.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Twenty-eighth Region, National Labor Relations Board,
Federal Building, 230 North First Avenue, Phoenix, Arizona, 87101. The telephone
number there is 261-3717.