Standard Times Publishing Co.

National Labor Relations Board - Board Decisions

Feb 29, 1968

169 N.L.R.B. 1129 (N.L.R.B. 1968)

STANDARD TIMES PUBLISHING COMPANY 1129
Ottaway Newspapers-Radio, Inc., d/b/a Standard
Times Publishing Company and Local 385,
Laborers' International Union of North America,
AFL-CIO. Case I-CA-5785
February 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND Jenkins
On August 28, 1967, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief
and the General Counsel filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record' in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith:
The Trial Examiner found that Respondent vio-
lated Section 8(a)(3) and (1) by discharging em-
ployee John M. Travers and by granting certain
benefits to its employees. We do not agree.
1. In February 1966, Respondent purchased the
Standard Times Publishing Company. Thereafter,
it continued to publish the vendor's daily
newspaper, the New Bedford Standard Times, and
retained the staff of the previous employer. Among
those retained were John Travers, a janitorial em-
ployee, and, Business Manager Robert K. O'Neill.
Travers worked for the Standard Times from
1963 until his discharge on January 6, 1967. He
performed janitorial duties on the 11 p.m. to 7 a.m.
shift. It was his particular responsibility to clean the
pressroom in the basement and the stairway
running from the basement to the fifth floor.
Travers' work was subject to frequent criticism.
Prior to, April',; 1966, oral complaints about the con-
dition of the pressroom, were lodged with O'Neill by
Pressroom Foreman Arthur Robinson. Specifically,
Robinson mentioned dirt on the windows and the
lights, and the lack of attention given to the condi-
tion of the locker and shower rooms. Written com-
plaints appeared first in April 1966, when O'Neill
received a memorandum from James H. Ottaway,
Jr., Respondent's publisher and general manager,
concerning ink smudges on the freshly painted
posts and walls of the pressroom. Ottaway, Jr., ad-
vised O'Neill to talk to the janitors about this. Since
the condition of the pressroom was Travers'
responsibility, O'Neill spoke to him on April 4
about Ottaway's observations. On June 1, Press-
room Foreman Arthur Robinson, noting that the
situation had not improved since his last complaint,
complained again to O'Neill about dirt on the win-
dows and lights and in the shower area of the press-
room. About a week later, Robinson made the same
complaints to Mechanical Superintendent Soren-
sen. On June 21, Robinson again complained about
the state of the pressroom to Sorensen and O'Neill.
The latter spoke to Travers about these complaints
on the night of June 23, going over every item men-
tioned by Robinson, and he warned Travers that he
could not tolerate that kind of work much longer. In
early August, Robinson complained still another
time about the same conditions in the pressroom.
O'Neill again spoke to Travers, noting for his own
records that Travers would have to go unless his
work improved. Robinson's complaints led to an
October meeting in O'Neill's office of O'Neill,
Robinson, and Travers. The complaints were
itemized and discussed. Travers stated that he
would try to do better, and Robinson and O'Neill
told him that his work was "very unsatisfactory"
and could not be tolerated much longer. According
to Robinson, there was some improvement in the
condition of the pressroom after this conference.
Criticism of Travers' performance was not
limited to his poor cleaning in the pressroom. In the
middle of November, O'Neill received word from
Frank Waite, Respondent's night watchman, that
the fire door in the pressroom was being wedged
open.2 Although several janitors had, over the
years, left fire doors in their areas open, O'Neill
testified that Waite's report was the first informa-
tion he had received on this subject in his 16 years
with the Standard Times. Moreover, for most of the
period during which janitors left fire doors open,
Respondent was not the owner of the Standard
Times. Consequently, its opportunity to acquire
knowledge of these violations was no greater than
the duration of its proprietorship since February
1966. It is significant that Travers was the only jani-
tor who continued to wedge open a fire door in his
area after Respondent informed the janitors in mid-
' Respondent's request for oral argument is hereby denied as the brie's 2 A regulation contained in the code of the city of New Bedford reads.
and record adequately present the issues and the positions of the parties Doors shall be kept closed and latched or arranged for automatic
closing. Blocking or wedging open of doors shall be prohibited
169 NLRB No. 156
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November that this practice had to end.3 O'Neill
learned from janitor Darcy Whyte of Travers'
failure to comply with his instructions. On
December 2 O'Neill sent Travers a note which
said:
Do not keep the north pressroom door open in
the future. It is a fire door and the weights
should not be used to hold this door open. This
is against the fire laws.
Despite this admonition, Travers failed to
comply with Respondent's orders. On Sunday,
December 18, O'Neill discovered that the fire door
in Travers' area again was wedged open while
Travers was between the second and third floors,
sweeping the stairs.
The next day O'Neill spoke to Ottaway, Jr., and
requested that Travers be discharged. He told Ot-
taway, Jr., that "[Travers] wouldn't follow orders
and wouldn't do his work properly." Ottaway, Jr.,
had to be out of town for a few days so he instructed
O'Neill to present evidence of Travers' improper
work to him when he returned. On December 22,
the day before Ottaway, Jr., returned, O'Neill
received another complaint from Pressroom
Foreman Robinson about conditions in that area.
Ottaway, Jr., and O'Neill discussed Travers on
December 23 and decided to discharge him, ac-
cording to the testimony of Ottaway, Jr.:
because of a ... series of complaints ... that
Mr. Travers was not keeping the pressroom
properly clean nor responding to repeated
requests to do so. We fired him because he was
given a specific written order on December
2nd not to leave a fire door open which leads to
one of the two main parts of the building which
is a serious fire hazard area and then because
on December 18 Robert O'Neill himself found
this door open again in the same fashion after
having given him a written order not to do this.
Putting all these things together and even about
the time we fired him we got another complaint
from Arthur Robinson ... saying that this,
that and the other thing aren't clean and taken
together it appeared to me to show that John
Travers was not doing his work. ... He
literally forced us to fire him.
Although Ottaway, Jr., accepted O'Neill's
recommendation to discharge Travers on
December 23, this decision was not conveyed to
Travers until January 6, 1967. The proximity of the
Christmas and New Year holidays caused Respond-
ent to delay informing Travers of its decision.
Travers did not receive the wage increase given to
other janitors in January because Respondent had
decided to discharge him before then and did not
wish to reward him for poor work, although he had
received regular wage increases in February and
May of 1966.
As noted earlier, Respondent took over the Stan-
dard Times in early February 1966. Shortly
thereafter it called a meeting of the janitorial em-
ployees to ascertain and discuss their complaints
concerning hours of work. This meeting set in mo-
tion a process which culminated in Respondent's
implementation of a new work schedule without
any reduction in pay4 on January 6, 1967. The
chronology set forth below reveals the dimension
and seriousness of Respondent's efforts to obtain a
revised work schedule which would both do justice
to the janitor's objection to the current timetable,
and also allow for the efficient performance of
cleaning tasks on Respondent's premises.
The search for such a solution began in earnest in
June 1966. On June 10, Ottaway, Jr., asked O'Neill
to try his hand at working out a 40-hour workweek
with a rotation for minimal Sunday duties. In
reference to the contents of the June 10 memo to
O'Neill, Ottaway, Jr.'s, father, in a late June note to
his son, suggested that giving the janitors some
holidays might satisfy them. Again, on July 26, Ot-
taway, Sr., informed his son that he would be in-
terested in seeing what kind of schedule revision
O'Neill produced. By August 4, Respondent had
developed a new schedule calling for a 40-hour
week with wage increases of 15 cents per hour. A
further revision was worked out on October 3. Ap-
parently, acceptance of this plan by janitors Whyte
and Johnson required them to take a reduction in
pay. Their refusal to assent to the plan was noted in
an October 21 memorandum from Ottaway, Sr., to
his son.
On October 27, Ottaway, Sr., was in New
Bedford. He met with his son and O'Neill and the
three agreed upon a new schedule for the janitors
with appropriate hourly wage adjustments. The
wage rate adjustments necessitated by the changes
in hours were budgeted in November 5 and
December to go into effect for the first payroll
period in calendar year 1967 which began on
Friday, January 6.6 After the October 27 meeting,
Ottaway, Jr., directed O'Neill to notify the janitors
of these changes. On November 29, O'Neill called
a meeting to explain the plan to them. He did not
mention an effective date for the new schedule.
Although the janitors were pleased with the ad-
justed wage rate and were partially satisfied by the
reduction in weekly hours from 48 to 45, there were
a few vigorous complaints about the scheduling of
their work. As a result of these complaints, O'Neill
promised to work out the details of scheduling in a
8 Occasionally , after Respondent had determined to put a stop to the
wedging of fire doors, janitors would still hold the basement door open
with a barrel as they disposed of trash . This task took only a few moments
and the janitor was never far from the door while it remained open.
4 Indeed , to make this change without a reduction in pay, Respondent
had to increase the hourly wage rates of the janitors.
5 It is Respondent 's practice to budget by department, beginning in
November of each year.
6 Respondent 's payroll period runs from Friday to Thursday. January
6 was the first Friday of that month.
STANDARD TIMES PUBLISHING COMPANY 1 131
more equitable fashion. He was in the process of
doing so on December 7, when Ottaway, Jr., sent
a memorandum to his father informing him that
O'Neill was in the final stages of drafting the
schedule and that the new workweek for janitors
would be going into effect in January "come hell or
high water." On December 16, O'Neill completed
the scheduling and he and Ottaway, Jr., decided to
announce the changes at a meeting of the janitors on
January 6. O'Neill told the janitors individually of
their wage adjustments on the latter date. 7
The Trial Examiner found that Travers'
discharge and the changes implemented by Re-
spondent on January 6 were "inherently destructive
of important employee rights" and that by engaging
in such conduct Respondent violated Section 8(a)(1)
and (3) of the Act.8 However, we do not appraise
the record as did the Trial Examiner, and we there-
fore are unable to accept his conclusions herein.
In concluding that Travers was unlawfully
discharged, the Trial Examiner noted that he "was
a known active participant in the janitorial unit and
was by reason of his past work record most vulnera-
ble to discharge." This led the Trial Examiner to
find that Respondent had seized upon independ-
ently valid reasons for discharging Travers as a
pretext to disguise its true motive, namely, "the
discouragement of concerted and/or union activity
by the janitors and the containment of resistance by
janitors to Respondent's predetermined work
schedule."
Since the record reveals, as the General Counsel
concedes, that Respondent had cause to discharge
Travers, the Trial Examiner's conclusion cannot
stand if the record also shows that Respondent did
not know of Travers' union or concerted activity,
and was not hostile toward unions. Such a showing
would destroy any basis for inferring an improper
motive in Travers' discharge.
Together with other employees, Travers had
shown an interest in union representation in the
spring of '1966. His name and those of janitors San-
tos, Perry, and Norcross were reported to Respond-
ent by the Newspaper Guild. Apparently, the
Guild did not sustain its initial desire to represent
Respondent's janitors because Respondent heard
nothing more from this organization after the
summer of 1966.
Apart from the interest he expressed with other
janitors in the Newspaper Guild, Travers solicited
cards for the Charging Party. On December 10, all
of the janitors signed cards. In the presence of night
watchman Waite,9 one of the janitors advised
Travers to send the cards to the Charging Party.
After Travers was discharged on January 6,
O'Neill called janitors Santos and Norcross into his
office to tell them what had happened. Upon learn-
ing of Travers' discharge, Santos said to O'Neill
that Travers would mail in the cards "to get back at
the Standard Times." Norcross expressed a fear
that he and Santos would be terminated next
because they and Travers "were really involved in
this union activity." O'Neill expressed surprise
upon hearing about the authorization cards. He also
assured both Santos and Norcross that Respondent
had no intention of firing anyone.
Travers' participation in concerted activity was
unexceptional From the date it acquired the Stand-
ard Times until Travers' discharge, Respondent
held two meetings with the janitors. The first meet-
ing, on February 10, was called by Respondent "to
get to know the janitors better" and to receive their
complaints. On November 29, Respondent held
another meeting with the janitors to discuss its
plans for changing the hours of work and adjusting
the wages of janitors. The Trial Examiner found
that in the middle of November Travers had asked
O'Neill, on behalf of the janitors, to have a meeting
concerning janitors' hours, implying that Travers
was the moving force behind this meeting. How-
ever, the undisputed testimony of Ottaway, Jr., and
O'Neill indicates that after Respondent adopted a
revised working schedule on October 27, Ottaway,
Jr., asked O'Neill to speak to the janitors. There-
fore, the request Travers made of O'Neill in mid-
November could have, at most, only reinforced a
decision previously reached by management.10 On
December 7, O'Neill received a handwritten note
containing a request for a meeting between Re-
spondent and the janitors. Travers' role, if any, in
this effort could not have been detected by Re-
spondent since the note was signed by "all the
janitors. "
The foregoing facts show that Respondent had no
knowledge of Travers' activity on behalf of the
Union, nor knowledge of any special involvement
by Travers in the affairs of the Newspaper Guild or
in the concerted activity of his fellow janitors. With
regard to Travers' activity on behalf of the Union,
Respondent's awareness of it did not precede his
7 Janitor Whyte testified that he received a new schedule that evening.
The Trial Examiner, apparently relying on O'Neill's testimony, found it
"significant " that the plan was not committed to writing until Monday,
January 9 The seeming conflict between Whyte's testimony and the
findings of the Trial Examiner is, in reality, no conflict at all. The schedule
which was committed to writing on Monday included janitor hours for the
weeks of January 6 through April 10 The schedule displayed to Whyte
on the evening of January 6 was apparently a specimen designed to con-
vey an impression of what the new schedule would look like in print.
8 In support of this finding, the Trial Examiner relied on N L.R B v.
Great Dane Trailers, Inc., 388 U.S 26. We do not think the special ra-
tionale of that case applies to the circumstances surrounding Respond-
ent's discharge of Travers and the changes it announced on January 6
Situations with factual patterns similar to this one are decided on the basis
of Respondent's motive. See, for example, discussions of the motive
requirement in the usual case of alleged discriminatory conduct in
N L.R.B. v Brown Food Store, 380 U S 278, American Ship Building
Co. v. N.L R.B., 380 U S. 300.
9 Waite died before the hearing.
10 To the extent that his views on the subject appear in the record,
Travers favored Respondent's revision of the janitors' work schedule
1132 DECISIONS OF NATIONAL
discharge. Only after Travers was terminated on
January 6 did O'Neill learn from Santos and Nor-
cross of the former's role in the Union' s organizing
efforts. Such information could not have influenced
a decision made on December 23.''
Travers' interest in the Newspaper Guild was
one which he shared with janitors Santos, Perry,
and Norcross. It was communicated to Respondent
in the spring of 1966, nearly 1 year before Travers
was terminated. Hence we conclude that Travers'
Guild activity-remote, insubstantial, and, as far as
the record shows, no greater than that of Santos,
Perry, and Norcross-played no part in Respond-
ent's decision to discharge him.
We also find that Travers' involvement in the
janitors' concerted activity did not lead Respondent
to accord him the special attention which might
devolve upon the leader of a protest. Travers did
not press O'Neill or Ottaway to call meetings. He
merely requested one meeting after Ottaway, Jr.,
had already decided that one should be held and had
instructed O'Neill to hold it. The December effort
to obtain a meeting between O'Neill and the jani-
tors could not be credited to any particular janitor
as the request was collectively signed.
Moreover, not only did Respondent have cause
to terminate Travers, and lack the requisite
knowledge of his protected activities, but the record
is also devoid of evidence of any hostility on
Respondent's part toward unions , an attitude from
which, if found, an improper motive might other-
wise be inferred.
In view of the existence of valid reasons for
Travers' discharge, Respondent's lack of
knowledge of his union activities prior to the date it
fired him, his failure to stand out as a leader of jani-
torial protest, and the absence of animus on the part
of Respondent, we conclude that his discharge was
not discriminatory.
2. The Trial Examiner found that both Travers'
discharge and the announcement of the new work
schedule with its attendant wage adjustments were
bound together by Respondent's desire to thwart
union organization among its janitorial employees.
We have already indicated that Travers was
discharged for cause. This finding breaks one im-
portant link in the Trial Examiner's chain of reason-
ing. The other link is, in our judgment, equally
without support. The evidence does not support a
finding that Respondent perceived any connection
between Travers' discharge and the implementation
of the janitors' revised schedule. Respondent had
been planning for a change in the janitors' working
hours long before the deterioration of Travers'
work became a problem. It continued thereafter to
discuss, propose, and revise such plans, and in-
cluded Travers in each revision up to the date of his
discharge. The fact that both Travers' discharge
and the new schedule were announced to the jani-
tors on the same day is of no significance, for
LABOR RELATIONS BOARD
Respondent, we find, reached final decisions with
respect to these matters at different times and on
the basis of separate and appropriate considera-
tions. That the two decisions made a week apart in
December 1966 were not put into effect until the
same day in January 1967 is adequately explained
on the basis of adherence to customary business
procedures in one instance and a desire not to
release an employee in the midst of the holiday
season in the other.
In view of the foregoing, we find that the General
Counsel has not proved by a preponderance of the
evidence that Respondent, by discharging Travers
and by announcing changes in the wages and hours
of its janitors, violated Section 8(a)(1) and (3) of the
Act. Accordingly, we shall dismiss the complaint
herein in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I I The record furnishes no basis for inferring that Respondent learned
of Travers' union activity from night watchman Waite.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: On charges filed
by Local 385, Laborers' International Union of North
America, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board,
herein called the Board, on behalf of the Board by the Re-
gional Director for Region 1, on March 1, 1967, issued a
complaint and notice of hearing in which the Standard
Times Publishing Company, was named the Respond-
ent.' It was alleged that the Respondent had engaged in
and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. The Respondent filed timely answer denying that
it had engaged in or was engaging in the unfair labor prac-
tices alleged.
This case was heard on March 29, 30, and 31 and April
25 and 26, 1967, at New Bedford, Massachusetts. Each
party was afforded full opportunity to be heard, to call, to
examine, and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and con-
clusions of law, and to file briefs. All briefs have been
reviewed and considered by the Trial Examiner.
Two issues were presented for the Trial Examiner's
consideration. The first was whether John M. Travers, a
janitor, was discharged on January 6, 1967, in violation
of Section 8(a)(1) and (3) of the Act. The second issue
was whether wage increases and adjustments of hours,
I At the hearing the name of the Respondent was corrected by amend-
ment to read Ottaway Newspapers-Radio, Inc., d/b/a Standard Times
Publishing Company.
STANDARD TIMES PUBLISHING COMPANY 1133
which were announced on January 6, 1967, shortly after
the discharge of employee Travers, were announced and
put in effect in order to discourage membership in and ac-
tivity on behalf of the Union.
Upon the whole record and upon his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
In February 1966 the Respondent acquired certain as-
sets of the Standard Times Publishing Company and con-
tinued publishing a daily newspaper captioned New
Bedford Standard Times with a daily circulation of
around 70,000. James Ottaway, Jr., became the publisher
and general manager of the newspaper. Robert K. O'Neill
remained its business manager.2
At all times material herein, the Respondent was a cor-
poration duly organized under and existing by virtue of
the laws of the Commonwealth of Massachusetts' and has
maintained a place of business at 555 Pleasant Street in
the City of New Bedford, County of Bristol , and Com-
monwealth of Massachusetts, and is now and continu-
ously has been engaged at its New Bedford plant in the
publication, sales, and distribution of daily and Sunday
newspapers. Respondent, in the course and conduct of its
business, causes and continuously has caused at all times
herein mentioned large quantities of paper used by it in
the publication of its newspapers to be purchased and
transported in interstate commerce from and through
various States of the United States other than the Com-
monwealth of Massachusetts. The Respondent derives
gross income exceeding $200,000 annually from the sale
and distribution of said newspapers. The Respondent
owns eight newspapers.
Respondent admits and the Trial Examiner finds that
the Respondent is and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 385, Laborers' International Union of North
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
First: John M. Travers was one of six janitors em-
ployed by the Respondent at its New Bedford plant. He
was hired as a janitor by the Respondent's predecessor on
October 3, 1963, and was discharged by the Respondent
on January 6, 1967. He worked the 11 p.m. to 7 a.m.
shift. Travers performed janitorial duties in the Respond-
ent's pressroom and swept the stairway running from
the basement of the Respondent's plant to the fifth floor.
Until April 1966 Travers performed his assigned janitori-
al duties in a satisfactory manner. Thereafter, his work
became subject to criticism. Complaints3 originated from
personnel in the pressroom and later concerned Travers'
tendency to wedge open a fire door which hereafter will
be referred to as the pressroom fire door. Deficiencies in
his work performance persisted in varying degrees until
the date of his discharge.4
Travers' duties brought him within the vicinity of the
pressroom fire door 5 which is located between the press-
room and a room which is adjacent to the boilerroom.
Another fire door separated this room from the boiler-
room. While working in the area of the pressroom fire
door Travers was accustomed to wedge open the door
because it was "too hot down there."
Blocking or wedging the door open was prohibited by
city ordinance. According to Ottaway, Junior, a "stand-
ing order stood" before he arrived that the fire doors were
supposed to be closed in the areas "where they should be
closed." No written rule was produced on the subject.
Employees other than Travers had wedged open the
pressroom fire door and it was not unusual for other fire
doors in the Respondent's plant to be left ajar.
Of the six janitors employed by the Respondent,
Travers was assigned to the "most responsible area in the
plant." O'Neill, who personally supervised the janitors,
continued Travers in this assignment after his work began
to deteriorate "because [he] would talk to John
[Travers] and he would improve, and then he would go
back down hill again." According to O'Neill he had given
no thought to transferring Travers to some other area or
to discharging him prior to December 18, 1966. In fact,
as late as December 16, 1966, O'Neill had no intention
of firing Travers and thought at that time he "could be
saved" and "would do his work properly." Two days
later, finding the fire door wedged, O'Neill determined to
recommend Travers' discharge which recommendation
was accepted by Ottaway, Junior, on December 22,
1966. Travers was not actually fired until 15 days later on
January 6, 1967, although on December 22 a complaint
about Travers' work was received from the pressroom
foreman, and information was received that the press-
room fire door had been wedged on December 20, 26,
and 28, 1966. Between December 19, 1966, and January
6, 1967, neither O'Neill nor Ottaway, Junior, conferred
with Travers about his objectionable work habits nor his
pending discharge. In any reprimands Travers was al-
leged to have received the word "discharge" had not been
used; "couldn't tolerate" was the severest word em-
ployed.
Other than a written note from O'Neill in which he was
informed not to keep "the north press room open in the
future," Travers had received no written communications
about his work habits from O'Neill. Prior to December
18, 1966, the last complaint had been lodged against
Travers in October.
Travers received a wage increase on May 27, 1966,
2 O'Neill had been employed with the newspaper for 16 years and had
been the business manager for 6 years
a In June 1966 O'Neill requested Pressroom Foreman Arthur Robin-
son to put any complaints against Travers in writing.
4 The Respondent was at a loss to explain the deterioration of Travers'
work performance O'Neill testified, "I'd like to know the answer, myself,
why a man would go along for two and a half years and be, you know,
doing an adequate job and all of a sudden Just not care."
5 Pressroom Foreman Arthur Robinson described the normal use of the
door as follows
People walking in and out of the press room , sometimes bringing in
a little merchandise. That is all. There is an elevator well People
travel from the fourth and fifth floor down to the basement and use
the door to enter the press room.
6 O'Neill testified, "I still felt at that time [December 16, 1966] that he
could be saved; that he would do his work properly and he-it's hard to
find good ,lamtors , and we have good janitors and we want to keep them
We felt badly he didn 't turn out."
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"when everybody got one and was in the plan to have one
in January of 67." Travers had also been scheduled for a
wage increase in October 1967.
Second: Shortly after the Respondent acquired the
Standard Times, on February 3, 1966, Ottaway, Junior,
addressed a letter to "Dear Standard-Times Associate,"
a copy of which was available to all hands. A part of the
letter read, "I invite you to come and talk to me if you
have any questions about our other newspapers and
radios, our family, or our plans here. My door is open, but
please make an appointment with Jim Besse first."
O'Neill had reported to Ottaway, Junior, that the jani-
tors were dissatisfied and were "unhappy about the forty-
eight hour week and wanted to cut it down." Upon the
suggestion of Ottaway, Junior, a meeting was arranged by
O'Neill with the janitors for February 10, 1966, at 11
p.m. It was a "to get to know the janitors better" meeting
and to air the janitors' complaints. Ottaway, Junior,
summed up the substance of the meeting in a memoran-
dum to Ottaway, Senior, his father:
We talked with six janitors Feb. 10 at 11 p.m. and
they seemed to feel strongest about:
1. working 10 holidays, although you do allow only
4 hours those days.
2. working six days a week.
3. working until 7 a.m. one morning and returning
that night.
4. medical benefits. We talked about search for
better plan.
Thereafter discussions commenced among O'Neill and
the two Ottaways concerning "some kind of scheme" that
would reduce the weekly hours to 40 "without penaliz-
ing" the janitors' "take home pay." The conferees
worked on a plan in June and July and "right through the
summer" until they "came up" with a plan in October.
In the meantime "early in the spring" (about the time
Travers' troubles commenced) the Respondent received
a notification from the Newspaper Guild that some of its
employees, including janitors Travers, Perry, Santos, and
Norcross, had signed authorization cards.' The Guild or-
ganization campaign petered out later in the summer.
During the same period O'Neill had received both oral
and written complaints about Travers' work. Written
complaints had been lodged by Press Foreman Arthur
Robinson bearing dates of June 7, June 21, and August
4, 1966. The complaints concerned generally the condi-
tions in the shower and locker room and the lights and
windows.8
In October O'Neill called Travers into his office and
told him he had been receiving complaints and that he
' From this information Ottaway, Junior, "assumed Travers was in-
terested in the Union."
8 Robert Fitzsimmons, chapel chairman of the pressroom, referred to
the complaints as "standard complaints."
" O'Neill did not specifically deny this testimony . Travers' testimony
appears plausible in view of O'Neill's testimony that as late as December
16, 1966, he thought Travers could be "saved" and is credited.
10 In a letter dated November 7, 1966, James H. Ottaway, Sr.,
described the new plan for janitors as follows:
On October 27 when I was in New Bedford, you, [Ottaway,Junior]
Bob O'Neill and I okayed a new schedule for the janitors which in-
would have to do a better job. O'Neill testified:
I told him what the complaints were, and he said,
"Well, Robbie doesn't like me", meaning Mr. Robin-
son. So, I says, "Well, I'm having Robbie come up-
stairs to meet with us," so I had Mr. Robinson come
upstairs and upon entering my office Mr. Robinson
began discussing the things that weren't being done
in the press room, and Mr. Robinson got quite ir-
ritated; and all Travers would say is that, "Robbie,
you don't like me. I can't please you."
Travers testified that after Robinson had left he said,
"Mr. O'Neill, I said, I am trying to do the best I can and
he is all the time complaining." O'Neill responded, "Well,
I wouldn't pay too much attention, try to do the best you
can do."°
On October 27, 1966, the new plan for janitors was ap-
proved by Ottaway, Senior.10
On November 17, 1966, although the fire door had
been wedged open prior to such date, O'Neill first learned
that the fire door in Travers' area had been wedged open
when he received a note from Frank Waite, the night
watchman. O'Neill immediately inquired of William Per-
ry, a janitor, whether he had wedged the door open. Upon
Perry's affirmative answer O'Neill said, "Bill, please
don't do it again." On the same night O'Neill asked Wil-
liam D. Whyte, another janitor, to tell anyone wedging
the pressroom fire door to cease because it was against
the fire laws.
On this subject Whyte, who is also known as Darcy
Whyte, testified: 11
He [O'Neill] said, "Darcy, I am tired of getting
complaints about the wedge being between the door
in the basement." He said, "Robbie complains all the
time about it," and he said that he had seen the
wedge in the door when Travers is on and I said,
"Well, I don't think Travers alone does it. I said, I do
it and most of the janitors do it and most of the em-
ployees that go down there do it." He said to me if I
saw anybody to tell them... .
Thereafter Whyte found the door open with the wedge
and spoke to Travers about it. As related by Whyte:
... I said to Mr. Travers, "Mr. O'Neill doesn't
want the door left open with the wedge," so he said
to me, "You are a company man keep quiet. It is too
hot and I need some air." He said, "I am not going to
get a heart attack or get injured and not be able to
holler to somebody for help." That is what he said to
me and I don't blame the guy.
Whyte said that it was "usually warm" in this area.
At the time (November 17, 1966) O'Neill did not take
up the matter of the wedged fire door personally with
Travers.
Around the same time, at the suggestion of the janitors,
Travers informed O'Neill "that on behalf of all the jani-
tors they would like to have a meeting with him to discuss
change of hours from forty-eight to forty." Travers told
volves a five-day week. In order for the men to earn approximately
their same salaries, you were planning to have them work a nine-hour
day for five days.
The letter indicated that the "total janitor payroll" would be increased
from $27,988 to $28,363, an amount of $375.
The letter ended, "We hope that the janitors are happy and that they
have accepted this."
11 Whyte impressed the Trial Examiner as an honest, reliable, and
straightforward witness . His testimony is credited . He had been employed
at the Standard Times for 26 years.
STANDARD TIMES PUBLISHING COMPANY 1135
O'Neill that the "boys were tired of working forty-eight
hours and they wanted a change from forty-eight hours to
forty hours."12
On November 29, 1966, 33 days after the new plan for
janitors had been approved , the meeting between O'Neill
and the janitors occurred as requested . O'Neill advised
the janitors that he had been working on a schedule of
"hours and wages" for several months and explained a
proposed schedule for a 45-hour week , 9-hour day, 5 days
a week which provided that "[e]ach man had two days
off in a row , and teammate so called would cover for him
in this area." O'Neill indicated that if the hours were cut
from 48 to 45 and offdays were allowed it would amount
to an increase of 15 cents an hour. O'Neill observed that
the janitors "didn't want it."13
At the meeting ". . . Mr. Travers said to Mr. O'Neill,
`Mr. O'Neill have you got any complaints against me' and
Mr. O'Neill said , `No, no, if I have don't worry you will
know about it!" 14
Three days later , on December 2, 1966, O'Neill trans-
mitted a note to Travers , " on the subject of the press-
room fire door. 16
Five days later on December 7, 1966, Travers, with
the concurrence of the other janitors , delivered a letter in
his handwriting to O'Neill as follows:
Mr. O'Neil the Janitors would like call a meeting
with you to discuss the 40 Hr per wk. The last meet-
ing we had with you the Janitors felt they was a lot of
Holes in you last plan. We hope you come with much
a better plan than the last one.
YOURS
accomplish as far as scheduling janitor's hours is con-
cerned, there was no reason to respond to that note."
Between November 29, 1966, and December 16,
1966, O'Neill revised the plan 17 he had submitted to the
janitors on November 29, 1966. The plan was approved
by Ottaway, Junior, on December 16, 1966, at which
time it was determined to put the plan into effect on
January 6, 1967,18 without further discussion with the
janitors and whether the janitors liked it or not.19
According to O'Neill on December 16, 1966, it was also
decided to have a meeting with the janitors on January 6,
1967, "for primarily, sir, the wage increase plus the
reduction of hours to the forty-five hour week. '120
According to O'Neill on Sunday, December 18, 1966,
at 11 o'clock, O'Neill appeared at the Respondent's plant
at which time he heard a radio "blaring." He followed the
sound of music to the pressroom where he found the fire
door leading to the boilerroom and the fire door leading to
the north pressroom ajar. O'Neill "slammed" the doors
and "hollered" for Travers in the pressroom; he received
no answer. He again "slammed both doors because he
was so mad." Travers met him in the staircase where he
had been sweeping between the second and third floors.
O'Neill asked him whether he had received the note of
December 2. Travers answered in the affirmative.
O'Neill further detailed the incident: I says why did you
persist on keeping this door open. He says it's too hot
down there. I said why don't you open the windows.
You've got windows to open. He said it's too hot and so
I blasted him. In fact, I was so mad that after I had to
walk around the block, and he was out of his area.
Travers' version differed in some respects from that of
O'Neill. Travers said that he was approached by O'Neill
FROM ALL THE JANITORS while he was sweeping in the vicinity of the fire door.
On the same day Ottaway, Junior, addressed a letter to
O'Neill and his father:
Bob is in the final stages of making up schedule
plans, and we will have the new janitor five-day work
week going by January 1, 1967, come hell or high
water!
Three days later, December 10, 1966, all the janitors
signed authorization cards for the Union, which were ob-
tained and retained by Travers.
O'Neill testified that he brought the janitors' note of
December 7 to Ottaway, Junior's, attention. As put by
O'Neill no response was made because "I said I had no
reason to respond because I knew that what I hoped to
12 O'Neill testified that he retained no recollection of Travers' request
for a meeting of the janitors. However , he said that he did not deny that
Travers might have "stuck his head into the door" and said , "When are we
going to have a meeting. " In view of O'Neill's uncertainties , Travers is
credited on this subject
13 The janitors proposed that the janitors "work two weeks forty hours
and one Sunday off of eight hours and make it forty eight hours." O'Neill
responded that the "company couldn 't afford that because it would be Just
like giving . a raise "
14 Whyte's credited testimony which was corroborated by janitors Per-
ry, Santos, and Travers.
15 O'Neill testified that he sent the note to Travers "after Darcy Whyte
had told [him] what had transpired in that conversation," he "figured" he
ought "to get into it directly with John "
1s The note was as follows
John:
Do not keep the north press room door open in the future
It is a fire door and the weights should not be used to hold the door
open. This is against the fire laws.
O'Neill said, "John, you know you are supposed to keep
this door closed," to which Travers replied, "Mr. O'Neill
it is hot here and I am working and this place is like an
oven, but I will close the door." Travers further testified,
"He said, `John, you know I sent you a note about keep-
ing the fire door closed' and he talked nice and he says,
`Because it is kind of a fire violation' or something like
that and he told me to try and keep it closed."
According to O'Neill the fire door incident "triggered"
his request for Travers' discharge which was transmitted
to Ottaway, Junior, on the following day. O'Neill further
related that his "final decision was reached" when he
received another note from Foreman Robinson on
December 22,1966 .21
19 The revision concerned mainly the scheduling of the "forty-five
hours over the full week properly "
18 O'Neill testified that the Respondent 's action taken on December
16, 1966 , was withheld from the janitors and not published until January
6, 1967, for no reason
19 In this respect it is significant that the Respondent 's prior attitude as
expressed by O'Neill had been "I would not force them into a schedule
which they did not want. It wouldn't be democratic." The Ottaways' at-
titude was expressed by O'Neill, "They didn't want to have me put
something in that the janitors didn't want " O'Neill further testified,
" they wouldn't do that [put the plan in effect whether or not the
Janitors approved it] because they were doing this to do something for
the janitors "
20 Referring to the date of December 16, 1966, O'Neill testified that
"John Travers was at that time to have participated in that increase."
21 O'Neill testified that "it was that [fire door incident] coupled with
my having gone to Mr. Ottaway on the 19th saying that we ought to
discuss his discharge, and . on December 22nd, three days later, I got
another complaint from the press room foreman . .
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ottaway, Junior, responded to O'Neill's recommenda-
tion that it was "a serious thing to fire somebody," and
said that he would like to know the whole history of why
O'Neill thought Travers should be fired.22 O'Neill ob-
served that Ottaway, Junior , "wanted to be sure that
[O'Neill] had enough reason to discharge him."
Ottaway, Junior, who was going away for a couple of
days, instructed O'Neill to "have whatever you have to
present me ready at that time." About the same time a
letter dated December 16, 1966, was shown to the jani-
tors from Ottaway, Senior , a part of which read:
"Jim, Jr. and Bob O'Neill have told us on nu-
merous occasions how nicely you keep the Standard-
Times building, and we want to add our thanks to
theirs."
Travers name was mentioned.
According to Ottaway, Junior , O'Neill asked him
whether he should show the letter to Travers. Ottaway,
Junior, replied, "My God, show it to him, Scrooge, why
be so small about it."
On December 2323 Ottaway, Junior, concurred in the
discharge of Travers. Ottaway, Junior, testified that
Travers "literally forced us to fire him." Ottaway, Junior,
further stated that "we just couldn't let this go on any
farther and that he [Travers] was insubordinate in not
following the written and verbal orders." In respect to
when Travers should be told of his discharge Ottaway,
Junior , testified:
I said to Bob, " I don 't think this is a very nice time
to fire Mr. Travers. It is the day before the Christmas
weekend" and I felt sorry for him and I didn't think
this was a very nice time to fire somebody. I said,
"Let's do it after Christmas and the New Year's
Holiday." At that point it was decided to do it some-
time after the first of the year. It was also decided
that since we knew we were putting-changing the
work schedule and putting in a wage increase in the
first working week of January that we did decide that
he be fired before the wage change was made,
because we didn 't want to reward him for this not fol-
lowing these orders and that is how he came to be
fired on the 6th of January.24
22 According to O'Neill he had in hand the complaints from the press-
room foreman and mechanical superintendent and had referred to the fire
door problem . Ottaway, Junior , was already familiar with Travers' dere-
lictions. He had written a memo to O'Neill after the pressroom had been
repainted drawing attention to smudges which the janitors were not clean-
ing off. At that time Ottaway wrote "please leave them a strong order on
this and see that the paint is kept clean ." In September , Ottaway testified,
Foreman Robinson had given him "quite a tongue lashing " about the
"poor condition of the locker room, the urinals and the whole set up in the
area where the pressmen have their locker room ." Ottaway, Junior, in-
spected the condition and said to O'Neill "let 's do something , let's clean
this up. What 's wrong here."
23 Sometime during this period Travers put a note from the janitors into
the mail slot of Ottaway, Junior, requesting a meeting . Ottaway, Junior,
denied receiving the note.
24 The following testimony of O'Neill refers to the same subject matter:
Q. However, other incidents intervened -the 26th and 27th you
say about leaving the fire door wedged open, and still you were going
to continue this Christmas leniency? You were not going to terminate
his employment earlier even after these events arose?
A. Well, we do have night watchmen and other janitors who do
follow orders , and every time they saw the fire door - particularly our
night watchman - that way, they would write it and make sure it was
corrected.
a
Although Ottaway, Senior, did not approve discharges
"in every case," Ottaway, Junior, consulted with his
father in respect to the discharge of Travers. As put by
Ottaway, Junior, "I told him I thought this was a serious
matter and I wanted to know if he had any other objec-
tions or ideas or questions."25
Ottaway, Junior, testified that he did not personally
discuss the discharge of Travers with Travers; that he
never talked to Travers personally about his work habits;
and that he did not tell O'Neill to advise Travers that if
the complaints continued he would be discharged.
Travers was not specifically threatened with discharge.26
Except for the note on the fire door Travers received
no written complaints from O'Neill. Between December
18, 1966, and January 6, 1967, neither O'Neill nor Ot-
taway, Junior, confronted Travers with the complaints
against him. Moreover, O'Neill said that he did not confer
with Travers every time Robinson complained. Indeed
about a month before Travers was discharged janitor
Whyte informed O'Neill that Travers was not keeping the
stairway landing on the second floor clean. There is no
evidence that O'Neill called this matter to Travers' atten-
tion.
As to the fire doors the record is replete with evidence
that employees other than Travers had wedged open the
pressroom fire door. No disciplinary action, warnings, or
written instructions were issued to them. Indeed even
after the written instructions to Travers were delivered,
the fire door was observed open during periods when
Travers was not present27 at the plant.
Fire doors in other areas of the plant were permitted to
remain open without reprimand from management.
On December 22, 1966, O'Neill received another note
from Robinson as follows:
Would you please have the Press Room cleaning
improved. The lights are dirty, the tubes in the lights
are black on top and have not been cleaned for some
time. Also the tile in the shower room should be
cleaner.
The windows are only cleaned occasionally.
At the time this note was not brought to Travers' atten-
tion.
Q. Christmas came and Christmas went , and on December 26th
there was another incident of dereliction of responsibility and another
one on December 27th ; yet, Mr. Travers was retained.
A. I think that shows the Christian attitude of the Standard -Times.
Q. In fact , he was retained up until the first of the year; in fact, ac-
tually until January 6th.
A. It was decided to discharge Travers on January 6th , and it was
decided at the meeting with Ottaway on December 23rd at which I
adhered to.
28 Some doubt is cast upon whether the decision to discharge Travers
was reached on December 23 since Ottaway, Junior, testified , "Well, I
asked Bob on that Monday the 19th to show me the complaints and writ-
ten reports on the case when I came back from New York and I wanted to
review that before I even proposed to my father that we should fire him.
I didn't know the facts or all of the facts at that time."
26 Travers testified that O 'Neill "said to try to do better, try to improve
or something like that but he never gave any -say that I was going to get
through or that he was going to fire me." O'Neill testified, "Not in those
words, [have to let him go] but words to that effect. Not that the
newspaper would let him go. I said it would not tolerate this much longer
and finally I said I cannot tolerate it any longer."
21 Whyte so testified . Whyte further testified , "Well, sometimes you go
in and the pressmen would be working on some special issue and you
would see the wedge there." Perry testified , "that the door was open
[w]ith a wedge stuck in between the door or sometimes they use these big
things that they put the rolls of paper on and they have them shoved up
against the door, to."
STANDARD TIMES PUBLISHING COMPANY 1137
About January 3, 1967, Ottaway, Junior, testified that
a replacement for Travers was discussed with O'Neill.
On January 5, 1967, Travers delivered the union
authorization cards to the Union.
On January 6, 1967, about 6:30 a.m., O'Neill for the
first time informed Travers of his immediate discharge.
Travers described the incident.
He took out an envelope and he presented me with
a check and he said he was discharging me and I
asked him what the reason was why he was discharg-
ing me and he said he was discharging me because he
had a lot of complaints about my work and stuff like
that and then I reminded him, I said, "Well, at the
previous meeting that we had I believe in November
I asked you and all the other fellows asked you if you
had any complaints about my work and you said
there wasn't any." I told him, "I know the reason
why you are firing me." He said, "Well, you can
think what you want." He said, "Furthermore, I
don't give a damn what you do," or something like
that.28
Five or ten minutes after Travers' discharge O'Neill
called janitors Santos and Norcross into his office and
told them that he had discharged Travers and there would
be a meeting of the janitors at 5 o'clock that afternoon.29
During the course of the conversation Santos told O'Neill
that he "wished" that O'Neill had not fired Travers
because he would mail in the union cards "to get back at
the Standard Times because he's mad at the Standard
Times. 11311
O'Neill assured Santos and Norcross that they
"weren't getting fired," and that they should not think
that they were going to be next to be fired. Norcross said,
"Well, the way things have been going right along I guess
I am going to be the next man out." O'Neill asked "Why
do you think like that?" Norcross responded that he told
him that Ray Duphilly31 threatened to fire him and all the
rest of the janitors. Norcross continued "So I figure that
John Travers has been fired and I will be next and Jimmy
Santos will be next because we were the three that were
really involved in this union activity." Norcross added, "I
don't think you love us too much knowing that we have
been in union activities.... That is the reason I think I am
going to be fired." O'Neill responded, "We have no inten-
tion of firing anybody."
O'Neill said he was surprised to learn of the union
authorization cards "because they [the janitors] knew
[he] was working on a schedule. They knew of the wage
increases they were going to get ... and [he] didn't know
how much more they could expect [him] to do for them
. [he] had been their friend...."
Pursuant to the notice given on January 6, 1967, the
meeting of all janitors except Travers was held at 5
o'clock on January 6, 1967.32 O'Neill and Ottaway, Ju-
nior, appeared at the meeting. Whyte, whose testimony
has been credited, testified that he received a telephone
call from O'Neill's secretary about 4:40 p.m. Whyte was
informed that he should appear immediately for a meet-
ing. Upon arriving at the plant Whyte remarked to the
secretary "I guess the guys are in the gas chamber."
Whyte entered the meeting room at which time Ottaway,
Junior, was talking. According to' Whyte, Ottaway, Ju-
nior, was saying, "We need you janitors and you are
doing very good work, but don't worry about Travers,
. he went against the rules of the organization and I
asked him to do his work and he didn't do his work and
we had to let him go." Whereupon Santos commented to
Ottaway, Junior, "Don't be surprised if you should get a
letter from the Labor Board telling you because the cards
were turned in yesterday." Ottaway said "The Labor
Board can't make us take back Travers." Ottaway left the
meeting, after which O'Neill commented, "Well, boys, I
will try to work on this thing as best I can." The meeting
concluded and as the employees were leaving O'Neill
said, "You fellows one after the other can come back in."
According to Ottaway, Junior, he said at the meeting,
"It doesn't matter whether there are cards or not we fired
John Travers because he didn't do his work." He further
told them that it wasn't "easy to hire janitors." Ottaway
said that he talked to the janitors both because he learned
of the cards and "wanted to make it clear the reason that
John was fired."
In explaining the reason for Travers' discharge, the fire
door incident was not mentioned at the meeting or other-
wise explained to the janitors as a reason for Travers'
discharge, nor was it mentioned to Travers at the time of
his discharge.
O'Neill said that in talking to the janitors individually
after the meeting on January 6, 1967, he was following
the "normal" practice. His reason was stated thusly, "I
feel and have always felt that a man is entitled to talk
about his wage in privacy; and even though there is a
scale being adhered to and presumably each one knows
what each other is making, I still felt that the janitors and
other people in my charge should be talked to personally
because they may have some questions about other mat-
ters at the same time."
At Whyte's interview O'Neill informed him that he
would receive a raise and added, "You fellows, don't tell
each other, don't let each other know. It is personal busi-
ness and don't tell anybody."
At Perry's interview O'Neill also advised him that he
would receive a raise. Perry was told that he was to
receive 15 cents and in June he would receive 10 cents.
At the interview Perry learned for the first time about a
wage increase.
At Norcross' interview O'Neill told Norcross that
since he had been employed for almost 5 years he would
"get a little bit more." Norcross was raised from $85.90
a week to $90.25.
28 Of the discharge incident O'Neill testified that he said, "John, I will
not tolerate this type of work any longer because you are not doing your
work properly and you are not following my direct orders, and I have been
talking to you about this since last June and it has been going on and on
and on and you will just not cooperate with me in any way, and I'm
discharging you effective immediately."
21 O'Neill' testified, "I didn't want them wondering what I was doing
rushing in in the dead hour of that morning, so I told them that I was
discharging John Travers for not doing his work properly, and we'd have
a meeting at five o'clock "
38 O'Neill reported the conversation to Ottaway, Junior.
3' Ray Duphilly had been the supervisor of the janitors until supervi-
sion was assigned directly to O'Neill.
32 O'Neill testified that while he had scheduled the January 6 meeting
on December 16, 1966, he "had no reason" to delay notifying the janitors
until January 6, the day of the meeting. In this respect it is significant in
evaluating whether the meeting of January 6 and the institution of the plan
was improvised in that the plan was not committed to writing until the fol-
lowing Monday. Perry, whose hours had been 4 p.m. to 12 a . m, learned
at 5 p.m. on January 6 that his hours starting that night would be 4 p in. to
1 a in. Whyte, whose hours had been 6 p.m. to 2 a .m., learned at 5 p.m. on
January 6 that his hours were going to change that night . Whyte was
called from his supper to attend the meeting , and Ottaway, Junior, was
asked that day "to come in to speak with the men."
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Santos' interview O'Neill said "Jim, we gave you
the forty-five hours and now we are going to give you an
increase in your pay. Your increase is going to start
February the 10th that is your anniversary." This was the
first knowledge that Santos had that he was to get a raise.
On the same day O'Neill said to Whyte, "Darcy, you
think that I did wrong?" Darcy responded "Well, you are
the boss and I guess you are right doing it. I don't blame
you, the guy was kind of tough all right."
Third: Section 8(a)(3) of the Act provides:
It shall be an unfair labor practice for an employer-
(3) by discriminating in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization:. . .33
In N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 223,
the Supreme Court said "Under Section 8(a)(3), it is un-
lawful for an employer by discrimination in terms of em-
ployment to discourage `membership in any labor or-
ganization ,' which includes discouraging participation in
concerted activities." [Emphasis supplied.]
Section 7 of the Act guarantees the right of employees
"to form, join, or assist labor organizations ... and to en-
gage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid and protec-
tion. .
During the period herein in question, all six janitors
were availing themselves of these rights. Their involve-
ment in protected concerted activities was open. There is
direct evidence that the Employer knew that the janitors
were resorting to group action to press their complaints
against the Employer and were hostile to its plan. There
is direct evidence that Travers and three other janitors
had authorized the Guild to act as their bargaining agent
in June 1966. Furthermore there is direct evidence that
the janitors' affiliation with a union, as well as the fact
that Travers held the executed union authorization cards
of the janitors, was brought to the Respondent's attention
on January 6, 1967, immediately after the discharge of
Travers but before the Respondent had announced the in-
stitution of its new work schedule and wage increases.
Thus, in. the context, it is germane to the assessment of
the employer's real motive34 to determine whether the
employer's designed course of action 35 carried with it
"unavoidable consequences which the employer not only
foresaw but which he must have intended."36 Reasonable
inferences drawn from the evidence reflecting upon the
employer's motive are sufficient to support a finding in
this regard37 for the Board and its Trial Examiners may,
without direct proof, infer illegal and discriminatory con-
33 In the case of Radio Officers' Union of the Commercial Teleg-
raphers Union, AFL V. N.L.R.B., 347 U.S. 17, 42, the Supreme Court
said of Section 8(a)(3): "The language of Section 8(a)(3) is not ambiguous.
The unfair labor practice is for an employer to encourage or discourage
membership by means of discrimination."
3' The court has said in N.L.R.B. v. Lipman Brothers, 355 F.2d 15, 20
(C.A. 1):
In evaluating these discharge situations the pivotal factor is motive.
N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 32 LRRM 2201
(1 st Cir. 1953).
35 Ottaway, Junior , testified that the culmination of the events of Janua-
ry 6, 1967, was "by design."
38 Cf. N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221,23 1.
39 In N.L.R.B. v. Lipman, supra, 21, the court said, quoting from "El
Impartial," Inc. v. N.L.R.B., 278 F.2d 184, 187 (C.A. 1), "Such in-
ferences, if reasonable, are not to be set aside by the court." In N.L.R.B.
v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8), the court opined:
duct by an employer.38 Under Section 8(a)(3) of the Act
discouragement of union membership may be inferred if
the inherent effect of the discrimination is discourage-
ment of union membership. Radio Officers' Union of the
Commercial Telegraphers Union, AFL v. N.L.R.B., 347
U.S. 17, 51. The employer's "real motive" is decisive.
Idem. at 43.39 The Act "permits a discharge for any
reason other than union activity or agitation for collective
bargaining with employees." Idem. at 43. "That Congress
intended the employer's purpose in discriminating to be
controlling is clear." Idem. at 44. However, "specific
evidence of intent to encourage or discourage is not an in-
dispensable element of proof of violation of § 8(a)(3)."
Idem. at 44. "[S]pecific proof of intent is unnecessary
where employer conduct inherently encourages or
discourages union membership." Idem. at 45. "Thus an
employer's protestation that he did not intend to en-
courage or discourage must be unavailing where a natural
consequence of his action was such encouragement or
discouragement. Concluding that encouragement or
discouragement will result, it is presumed that he in-
tended such consequence. In such circumstances intent
to encourage is sufficiently established." Idem. at 45. Nor
does it matter that an employer did not intend to
discourage membership since such was a "forseeable"
result. Idem. at 46. Moreover, it is permissible for the
Board and its Trial Examiners "to draw on experience in
factual inquiries." Idem. at 49. The Board is one of those
agencies presumably equipped or informed "`by ex-
perience to deal with a specialized field of knowledge,
whose findings within that field carry the authority of an
expertness. ... " Idem. at 50. "Encouragement and
discouragement are `subtle things' requiring `a high
degree of introspective perception."' Idem. at 51.
The "mere existence of valid ground for discharge is no
defense to a charge that the discharge was unlawful, un-
less the discharge was predicated solely on those
grounds, and not by a desire to discourage union activi-
ty." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7). In the case of N.L.R.B. v. Whitin
Machine Works, 204 F.2d 883, 885 (C.A. 1), it was said,
"Although the discharge of an inefficient or insubordinate
union member or organizer is lawful, it may become dis-
criminatory if other circumstances reasonably indicate
that the Union activity weighed more heavily in the deci-
sion to fire him than dissatisfaction with his performance.
Motivation is an elusive fact...."
"A justifiable ground for dismissal is no defense if it is
a pretext and not the moving cause." N.L.R.B. v. Solo
Cup Company, 237 F.2d 521, 525 (C.A. 8).
It would indeed be the unusual case in which the link between the
discharge and the union activity could be supplied exclusively by
direct evidence . Intent is subjective and in many cases the discrimina-
tion can be proven only by circumstantial evidence. Furthermore, in
analyzing the evidence, circumstantial or direct, the Board is free to
draw any reasonable inferences.
38 "Congress entrusted the Board ... with the power to draw in-
ferences from the facts." N.L.R.B. v. Link-Belt Company, 311 U.S. 584,
597.
38 The Supreme Court has said in Local 357, International Brother-
hood of Teamsters, etc. v. N.L.R.B., 365 U.S. 667, 675:
It is the "true purpose" or "real motive" in hiring or firing that cot.
stitutes the test.... Some conduct may by its very nature contain im-
plications of the required intent; the natural foreseeable con-
sequences of certain action may warrant inference.... The existence
of discrimination may at times be inferred by the Board, for "it is per-
missible to draw on experience in factual inquiries."
STANDARD TIMES PUBLISHING COMPANY
Lately the Supreme Court has said in N.L.R.B. v.
Great Dane Trailers, Inc., 388 U.S. 26:
From this review of our recent decisions, several
principles of controlling importance here can be
distilled. First, if it can be reasonably concluded that
the employer's discriminatory conduct was "in-
herently destructive" of important employee rights,
no proof of an antiunion motivation is needed and the
Board can find an unfair labor practice even if the
employer introduces evidence that the conduct was
motivated by business considerations. Second, if the
adverse effect of the discriminatory conduct on em-
ployee rights is "comparatively slight," an antiunion
motivation must be proved to sustain the charge if
the employer has come forward with evidence of
legitimate and substantial business justifications for
the conduct. Thus, in either situation, once it has
been proved that the employer engaged in dis-
criminatory conduct which could have adversely af-
fected employee rights to some extent, the burden is
upon the employer to establish that it was motivated
by legitimate objectives since proof of motivation is
most accessible to him.
In reaching a decision the trier of the facts is not bound
to accept uncontradicted evidence, for questions of credi-
bility are not foreclosed by the absence of contradictory
testimony. N.L.R.B. v. Howell Chevrolet Company, 204
F.2d 79, 86 (C.A. 9). Nor is the trier of facts required to
accept a Respondent's alleged lawful justification for a
discharge merely because it has been put forward with
supporting evidence. N.L.R.B. v. Texas Bolt Company,
313 F.2d 761, 763 (C.A. 5). But rejection of a defense,
without more, is insufficient to sustain the General Coun-
sel's burden of proof; he must establish his case'by affirm-
ative evidence. Portable Electric Tools, Inc. v,
N.L.R.B., 309 F.2d 423, 426 (C.A. 7). But "[n]o proof
of coercive intent or effect is necessary under Section
8(a)(1) of the Act, the test being, 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." Melville Confections, Inc. v.
N.L.R.B., 327 F.2d 689, 692 (C.A. 7). Accord N.L.R.B.
v. Burnup and Sims, Inc., 379 U.S. 21.
The Supreme Court in Great Dane Trailers Inc.,
supra, teaches that the first question to be considered is
90 In N.L.R.B. v. Local 50, American Bakery & Confectionery Workers
Union, AFL-CIO, 339 F.2d 324,327 (C.A. 2), the court said:
Stated concisely, we believe that an employee is unlawfully "dis-
criminated" against when a distinction is made arbitrarily or without
sound basis and to his detriment
"Discrimination" is defined as the "act of treating differently; treating one
differently from another." 27 C J S. Discrimination 301.
The Respondent's conduct came within these concepts if for no other
reason than that it treated Travers differently than other employees in
respect to fire door incidents.
41 The Trial Examiner is not unmindful of Section 10(c) of the Act
which in part provides:
No order of the Board shall require the reinstatement of any in-
dividual as an employee who has been ... discharged, or the payment
to him of any back pay, if such individual was ... discharged for
cause
and that the court has said in N.L.R.B. v. United Parcel Service, Inc., 317
F.2d 912, 914 (C.A. 1):
It is elemental that a company may discharge an employee for a
good reason, a bad reason or indeed for no reason at all. And it is not
for the courts to interfere with the unfettered right of companies to
exercise these personnel judgments. There is only one instance when
a court may validly move into this area and reverse the action of the
1139
whether it can reasonably be concluded that the Re-
spondent's discriminatory conduct 40 was inherently
destructive of important employee rights.
In framing an answer to this question the Trial Ex-
aminer has considered41 the guiding principles set out
above and concludes that the natural and foreseeable con-
sequences of the Respondent's discharge of Travers cou-
pled with the announcement and the effectuation of its
new work schedule and wage increases, designed to occur
on the same day, as thus administered by the Respondent,
in the light of the entire record, was inherently destructive
of important employee rights embodied in Section 7 of the
Act. The discharge of Travers as manipulated by the
Respondent had an inherent tendency to discourage
membership in a labor organization and employee par-
ticipation in concerted activities. The discharge of
Travers occurred at a time when it presented a powerful
dissuasion against further concerted expression of
dissatisfaction with the Employer's final work and wage
schedules as published on January 6, 1967. Such
discharge inherently contributed to removing open
hostility to the Employer's work and wage schedules. In
the light of the janitors' efforts to collectively pursue de-
mands for benefits, the discharge of Travers, an impor-
tant participant, was imbued with the inherent tendency
to chill concerted activities. Not only was the message
clear but it was made manifest by the Employer's choice
of the time for Travers' discharge which occurred while
the janitors were pressing for collective recognition and
as a group were expressing strong dissatisfaction with the
Employer's proposed work and wage schedules.
Moreover, at the same time, in the face of a collective
request and knowledge of the janitors' union affiliation,
the Employer unilaterally and by direct dealing42 granted
increased benefits to the janitors which inherently carried
with it danger of the suggestion of "the fist inside the vel-
vet glove."43 Hence it appears patent that such conduct
carried with it "unavoidable consequences which the em-
ployer not only foresaw but which it must have intend-
ed" 44 and was "`inherently destructive' of important em-
ployee rights."45 Moreover, it is unreasonable, to assume
that what the Respondent did "by design" was not known
by it to be susceptible of causing the discouragement of
concerted activities. It follows therefore that the Respond-
ent's defenses planted upon business considerations
employer and that instance is when the discharge is motivated-ex-
clusively or substantially-by anti-union animus.
42 The Board has said in Family Bargaining Centers, Inc., 160 NLRB
816, "However, where such direct dealing is undertaken for the purpose
of encouraging employees to reject union representation and involves the
promising and granting of benefits, as herein, we agree with the Trial Ex-
aminer that it restrains, coerces and interferes with employees' exercise of
Section 7 rights and therefore violates Section 8(a)(1) of the Act." Ac-
cording to the Board in such case, "the Trial Examiner found that Re-
spondent, by the conduct of Michaelson on or about the middle of April-
or April 19, 1965, bargained directly with employees and requested and
encouraged them to deal directly with it rather than seek representation
through the Union...."
43 "The danger inherent in well timed increases in benefits is the sug-
gestion of the fist inside the velvet glove " N.L.R.B. V. Exchange Parts
Co, 375 U.S. 405, 409. [Emphasis supplied.]
44 In this regard it is significant that the Respondent advanced no
reason for its long delay in announcing the institution of its new work
schedules and wage rates until January 6, 1967
41 There need be no speculation on this score since the record reveals
that the janitors' reaction to Travers' discharge was that it resulted from
the concerted activities of the janitors and that the remaining janitors were
in line for the same treatment,
350-212 0-70-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must fail for it can be reasonably concluded that the
Respondent's conduct was "inherently destructive" of
important employee rights. Thus no proof of antiunion
motivation was needed and an unfair labor practice
stands committed even though the Employer presents
evidence that its conduct was motivated by business con-
siderations . See N.L.R.B. v. Great Dane Trailers, Inc.,
supra.
Since the conduct of the Respondent detailed above is
inherently destructive of important employee rights, the
Trial Examiner finds that the Respondent has violated
Section 8(a)(1) and (3) of the Act.
Fourth: Other considerations warrant the same finding.
The Trial Examiner is convinced that the Respondent's
defenses are in the nature of pretexts and were belatedly
tailored to cloak the real reason for the discharge of
Travers and the announcement and institution of the new
work schedules and wage increases on January 6, 1967.
The Trial Examiner discredits the Respondent's claim
that its motive was other than to discourage employee
participation in concerted activities and to discourage
membership in and activity on behalf of a labor organiza-
tion.
On and after December 16, 1966, the Respondent
determined to deal no further with the janitors as a group
and turned its back on its prior disposition to solicit group
response to its proposed plans. Thus the Respondent dis-
closed an opposition to and rejection of the group aspira-
tions of its janitors, and registered dissatisfaction with
their collective action. It is clear that the employer did not
intend to cotton the janitors' hostility to its proposed plan
or to acquiesce in their demands for a 40-hour week or to
discuss "a lot of Holes" in its plan. The janitors' rejection
of the Respondent's open door policy and its solicitude
for their welfare46 was not to be condoned even by so
much as acknowledging the janitors' request for a meet-
ing. The Respondent resolved to foreclose obstruction47
and put its plan into effect whether the janitors liked it or,
not ("come hell or high water") and without further
discussion with them. Indeed the Employer climaxed its
rejection of its janitors' aspirations for concerted activi-
ties by dealing individually with the janitors contem-
poraneously with its unilateral institution of the plan.
In this context the inviability of Travers as an em-
ployee seems apparent for Travers was a known active
participant in the janitorial unit and was by reason of his
past work record most vulnerable to discharge. Thus the
discharge of Travers is reasonably subject to the in-
ference as contended by the General Counsel, "the
Respondent , although it may have had independently
valid reasons for discharging Travers, belatedly seized
upon these reasons as a pretext in order to mask its real
motivation, the discouragement of concerted and/or
union activity by the janitors and the containment of re-
sistance by janitors to respondent's predetermined work
schedule."
The discharge of Travers and the announcement of the
new work schedule and wage increases caused to occur
on the same day were an unmistakable signal to the jani-
4e O'Neill testified that he had been the janitors ' "friend" and he "didn't
know how much more they could expect [him] to do for them."
4' The Respondent 's resolution to foreclose obstruction to its proposed
plan is patent in Ottaway , Junior's, communication to his father that "we
will have the new janitor 5-day work week going by January 1, 1967,
come hell or high water."
48 The Respondent 's explanation for withholding Travers' discharge
does not have a convincing ring. A "Christian attitude" implies forgive-
tors of the consequences of their continued advocacy of
concerted action. Significantly, Travers, although an of-
fender of long standing and an alleged hazard to the safety
of the employer's premises, was continued in employ-
ment to the very day when the employer, "rushing in the
dead hour of that morning," discharged him without prior
notice, and unilaterally put into effect simultaneously the
new work schedule and wage rates of which the janitors
had sought group consideration. Travers and the other
janitors were kept deliberately incognizant of Travers'
discharge and remained so until such time as Travers'
discharge would enmesh and become an inextricable part
of the employer's efforts to discourage the exercise by its
employees of protected rights. The Respondent's scheme
was administered with the objective of killing any con=
certed movement on the part of the janitors. Travers'
discharge, admittedly geared to the wage increase an-
nouncement, was calculated to chill union collective ac-
tivity and aspired to achieve its object of removing what
the Respondent knew to be open hostility to the Respond-
ent's proposed plan. Travers' discharge without prior
notice, although the Respondent maintains it was decided
upon 15 days previously, buttresses these conclusions.48
It is clear that Travers' discharge and the wage in-
creases and adjustments in hours which were announced
and put into effect on January 6, 1967, were administered
as they were in order to discourage membership and ac-
tivity on behalf of a union and to discourage concerted ac-
tivities. Among the controlling factors in this regard are:
(1) The Respondent was aware of Travers' union activity
which was clearly demonstrated by his authorization of
the Guild and his demand for a meeting for the janitors
with management. (2) The Respondent was antagonistic
toward the concerted activities of its janitors as was de-
picted by its open door policy, its refusal to meet with the
janitors as a group, upon request, and its individual deal-
ing with the janitors on January 6, 1967. (3) Although, ac-
cording to O'Neill, he told Travers in June that he
"couldn't tolerate it much longer probably;" in August,
that he "couldn't tolerate this much longer;" and in the
middle of October, he would have to "do a better job,"
Travers' recidivous characteristics were excused and his
work became intolerable to the point of discharge only
after the employer had decided to depart from its prior
policy of not forcing the janitors "into a schedule which
they did not want," and had resolved to refuse to meet
with the janitors at their behest in a group to discuss their
demands and the "lot of holes" in the Respondent's
proposed plan, and had resolved to put its plan into effect
whether the janitors liked it or not. Cf. N.L.R.B. v. Elias
Bros. Big Boy, Inc., 325 F.2d 360 (C.A. 6). (4) The
Respondent's concatenation of the events which oc-
curred on January 6, 1967, caused an association of
Travers' discharge with the deterrent to concerted activi-
ties patent in the employer's announcement and institu-
tion of employee benefits. (5) Travers' discharge was ad-
ministered and abruptly timed so as to be inextricably
connected with the rejection of the group demands of the
janitors.49 (6) Travers' discharge was timed to coincide
ness, an attribute which obtained to the Respondent in its prior relation-
ship toward Travers but was abandoned when the Respondent embarked
upon a course of conduct bent on discouraging its janitors ' concerted ac-
tivities.
49 "The abruptness of a discharge and its timing are persuasive
evidence of its motivation " N.L.R.B. v. Montgomery Ward & Co., Inc.,
242 F.2d 497, 502 (C. A. 2).
STANDARD TIMES PUBLISHING COMPANY
with the rebuff of the concerted aspirations of the jani-
tors. (7) The Respondent incongruously claimed cause
for Travers' discharge although he had been retained in
the "most responsible area in the plant" and was
scheduled for a wage raise in January and October 1967.
(8) The Respondent's belated emphasis and reliance on
the fire door incident as cause for discharge50 is irrecon-
cilable with its failure to mention the fire door incidents
as a cause for discharge either to Travers at the time of
his discharge or to the other janitors when the reasons for
his discharge were explained, its failure to take disciplina-
ry action against other like offenders, and its retention of
Travers in its employment even though he continued to
leave the fire door ajar. (9) The Respondent's discharge
of Travers, timed as it was, discouraged any concerted
expression of dissatisfaction with the new work schedule
and wage rates and chilled any effective opposition to the
Respondent's proposed plan. (10) Ottaway, Junior, ad-
mitted that it was designed51 to time Travers' discharge
to occur on the same day as the wage and schedule
changes. (11) The record is barren of any credible ex-
planation of why announcement of the wage and schedule
changes determined on December 16, 1966, should have
been withheld until January 6, 1967, the day of Travers'
discharge. (12) The record presents no credible explana-
tion as to why, prior to Travers' discharge, Travers' in-
fractions were not reviewed with him, especially in view
of the fact that there had been no complaints lodged
against him since October, some of the past complaints
were not even brought to Travers' attention, on
November 29, 1966, O'Neill had acknowledged no comL
plaints against Travers and as late as November 16,
1966, O'Neill felt Travers "could be saved."52 (13) Ac-
cording to O'Neill while the fire door incident "triggered"
his recommendations for Travers' discharge, the
discharge was actually clinched by a complaint thereafter
received on December 22, 1966, which complaint
O'Neill did not bother to discuss with Travers or verify
Cf. A. C. Rochat Company, 150 NLRB 1402, 1409. (14)
High policy considerations were involved in the
discharge of Travers, the reasons for which are not
credibly explained in the record unless they be attributed
to discriminatory motivations or premeditated conduct
for January 6, 1967.53 (15) Other employees who were
known by the Respondent to have committed fire door
violations were not subjected to the same disciplinary
considerations as Travers. Cf. Beiser Aviation Corpora-
tion, 135 NLRB 399, 407. (16) O'Neill's purposeful and
unjustified explanation to janitors Santos and Norcross
on January 6, 1967, "in the dead hour of the morning,"
and his assurances that they "weren't getting fired" en-
meshed with the Respondent's refusal to meet with the
janitors, and its uniliteral announcement and institution
of the schedule and wage changes, was calculated to con-
firm and did confirm the employees' expressed belief that
Travers' discharge was for union activities.
11 The Trial Examiner discredits O'Neill's testimony that on December
18, 1966, he became "so mad" when he found the fire door open that he
had "to walk around the block " Having observed O'Neill's demeanor the
Trial Examiner is convinced that had O'Neill so reacted he would have
fired Travers on the spot It may be more plausible to believe that O'Neill
appeared at the plant on Sunday morning to catch Travers with his fire
door ajar.
51 Ottaway, Junior, testified that it was "decided sometime in advance
of January 6th that there was going to be a dual action on January 6th."
Ottaway, Junior, further testified.
The decision about the announcement of the wage increase was
1141
These factors as well as others apparent in the record
as a whole, all of which the Trial Examiner has con-
sidered, clearly establish that the "real motive" for the
Respondent's conduct detailed above was to discourage
employee concerted activity and membership in and ac-
tivity on behalf of a labor organization.
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 its operations set
forth in section 1, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
V. THE RECOMMENDED REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It
having been found that the Respondent unlawfully
discharged John M. Travers and thereby violated Section
8(a)(3) and (1) of the Act, it is recommended that the
Respondent remedy such unlawful conduct. It is recom-
mended in accordance with Board policy54 that the
Respondent offer John M. Travers immediate and full
reinstatement to his former and substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings he may have suffered as a result of the dis-
crimination against him by payment to him of a sum of
money equal to the amount he would have earned from
the date of his discriminatory discharge to the date of an
offer of reinstatement, less net earnings during said
period, to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289, and including interest at the rate of 6 per-
cent per annum, to be computed the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will ef-
fectuate the purposes of the Act for jurisdiction to be ex-
ercised herein.
3. By unlawfully discharging John M. Travers on
January 6, 1967, the Respondent has engaged in unfair
labor practices within the meaning of Section of 8(a)(1)
and (3) of the Act.
December 16th back in December and the decision to actually fire
him that day and before hand was made between the decision to fire
him on December 23rd and sometime earlier in that week ofJanuary
6th.
52 This seems strange behavior for an employer who claimed that it was
treating Travers with altruistic consideration by retaining him on its
payroll during the Christmas holidays
53 While Ottaway, Senior, did not approve discharges "in every case,"
Ottaway, Junior, conferred with Ottaway, Senior, as to whether he had
"any other objections, ideas, or questions."
11 See Rushton Company, 158 NLRB 1730, fn. 2.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By interfering with, restraining, and coercing its em - 5. The aforsaid unfair labor practices are unfair labor
ployees in the exercise of rights guaranteed them by Sec- practices within the meaning of Section 2(6) and (7) of the
tion 7 of the Act, the Respondent has engaged in unfair Act.
labor practices within the meaning of Section 8(a)(1) of
the Act . [Recommended Order omitted from publication.]