The Union

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1030 (N.L.R.B. 1980)

1030() DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nevada County Publishing Co., d/b/a "The Union"
and Central Valley Typographical Union No.
46, International Typographical Union. Case
20-CA- 14406
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUIESI)ALE
On June 3, 1980, Administrative Law Judge
Frederick C. Herzog issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Nevada County Publishing Co., d/b/a "The
Union," Grass Valley, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Delete paragraph l(b) and reletter the subse-
quent paragraphs accordingly.
i Respondent has excepted to certain credibility findings made hy the
Administratis e IJaw Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the rele anl evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall I'roduc.
Inc., 91 NRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings
We agree with the Administratise L.asw Judge that Richard HIaugen is
not a supervisor and that Respondent violated Sec (a)(3) of the Act by
discharging him for his union activities In light of this finding. we find it
unnrecessary to rely on the Adninistrative as" Judge's discussion of
Hlaugen's enitlement to reinstatement should we have found him to be a
supervisor
As we have found that Responldent unlawfully discharged Ilaugen a
nonsupervisory employee, we shall modify the Administrative I.aw
Judge's recommended Order and notice to delete references ito the dis-
charge of supervisors In addition, the Administrative l aw Judge's rec-
ommended Order and notice coitain language which differs frorn that
traditionally used to remedy a violation of Sec. 8(a)(3) of the Act Ac-
cordingly, we shall modify the Order and notice to correct this inadver-
tent error. With respect to the hackpay insolsed, Member Jenkins would
compute the interest in accordance with tile formula set forth in his par-
tial dissent in Olympic 4edical Co(rporation. 250 NI. RI No II (198())
251 NLRB No. 143
2. Substitute the following for paragraph 2(a):
"(a) Offer Richard Haugen and Charles Colby
immediate and full reinstatement to their respective
former positions of employment or, if those former
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges previously enjoyed, and
make Haugen and Colby whole for any loss of pay
they may have suffered as a result of the discrimi-
nation against them, in the manner set forth in the
section herein entitled 'The Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILl. NOT threaten to fire, nor will we
actually fire, or otherwise discriminate against,
any employee for engaging in union activities
or giving aid or support to any labor organiza-
tion.
WE WILL NOT attempt to coerce or restrain
you by telling you that other employees have
been fired because they engaged in union ac-
tivity.
WE WILL NOT create the impression that
your activities on behalf of the Central Valley
Typographical Union No. 46, International
Typographical Union, or any other labor orga-
nization, have been or are under surveillance.
WE WILl. NOT interrogate you about your
own or others' union activities, sympathies, or
leanings.
WE WILL.. NOT'' in any like or related manner
interfere with your rights set forth above,
"T1 UNI()N" M31
which are among those protected by the Na-
tional Labor Relations Act, as amended.
W'I wit offer Richard Haugen and Charles
Colby immediate and full reinstatement to
their former respective positions of employ-
ment or, if those positions no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges previously enjoyed.
WF Wnt.L make Richard Haugen and
Charles Colby whole for any loss of pay they
may have suffered as a result of our discrimi-
nation against them, with interest.
NEVADA COUNTY PUBLISHING CO..
D/B/A "THE UNION"
DECISION
STAIINI O1F H. CSI-
FR I)-RICK C. HRZO(,; Administrative Law Judge:
On February 21, 1979,.' the Central Valley Typographi-
cal Union No. 46, affiliated with the International Typo-
graphical Union (hereinafter referred to as the Union),
filed a charge with the National Labor Relations Board
against an employer commonly known as "The Union,"
an employer engaged in the business of publishing print-
ed news and more accurately known as the Neveda
County Publishing Co. (hereinafter referred to as the Re-
spondent). The charge alleges that the Respondent has
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended, in its termination of the em-
ployment of Richard Haugen on or about February 6
On April 4 the Union filed its first amended charge
against the Respondent, renewing its initial charges and
adding an allegation that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by its termination of the
employment of Charles Colby on or about February 9.
On May 18 the Regional Director for Region 20 of the
National Labor Relations Board issued a complaint alleg-
ing that the Company had engaged in violations of Sec-
tion 8(a)(1) of the Act by creating the impression among
employees that it was keeping their union activities
under surveillance, by interrogating employees about
their union activities, and by discharging Charles Colby.
That portion of the charge relating to the alleged dis-
crimination against Richard Haugen was administratively
dismissed by the Regional Director. In due course the
Respondent's answer was filed denying virtually all alle-
gations of the complaint. Subsequently the Respondent
amended its answer to deny every allegation of the com-
plaint.
Pursuant to the request of the counsel for the Union,
and with the agreement of all parties, the Regional Di-
rector on June 12 rescheduled the hearing herein from
August 21 to August 28. However, on August 17 the Re-
gional Director issued an amendment to complaint,
adding the allegation that the Respondent violated Sec-
I tlInIc ,I heruise 'spcifiecd ill dale, herinafcr hall refer t the ear
1' 47
lion 8(a)( ) by telling employees that other employees
had been discharged because of their union activities.
and bi asserting that not only was Charles Colb dis-
charged because of his union activities (albeit on Febru-
ary 16), but that Richard tlaugen was also discharged
because of similar considerations on February 6. The Re-
spondent's answer thereto denied the amended portions
of the complaint and affirmatively asserted the defense
that said allegations were untimely under Section 10(b)
of the Act. The Respondent further moved for a change
in the hearing date. citing as its reason the need for time
to prepare a defense to th' additional allegations. By
telegraphic order of August 23 the Regional Director
denied such a request without prejudice to its being re-
newed before the Administrative Lawx Judge assigned to
the hearing in this case.
In this posture the hearing of this case as begun
before me in Sacramento, California, on August 28. At
that time the Respondent's motion for a change in the
hearing date was renewed. Alternatively the Respondent
sought a ruling that the hearing would not continue into
the following day, but would instead be continued to
some other date in the future. The Respondent's motion
was predicated upon its need for additional time to pre-
pare a defense to the newly added allegations of the
complaint, as well as its understanding that the hearing
herein would only require I day inasmuch as the notice
of hearing had made no reference to the hearing continu-
ing from day to day until completed. Despite the Re-
gional Director's denial of the Employer's motion for a
change of hearing date on August 23, counsel for the
General Counsel advised me on August 28 that there
would be no objection to my granting the Respondent's
motion. However, due to the intervening needs of both
the General Counsel and the Respondent to schedule
witnesses out of order, the Respondent's motion was ulti-
mately mooted by the necessity to continue the hearing.
The hearing was conducted throughout the day of
August 28 and continued until September 21. At that
time the hearing resumed and the case was heard to a
conclusion.
At the hearing the Respondent's answer was effective-
ly amended by means of stipulation. By its stipulation the
Respondent admitted the truth of paragraphs one
through four of the complaint. Further, Respondent's
previous answer having admitted only that John More-
head occupied the position of publisher, that Newt
Goodrich occupied the position of composing room fore-
man, and that Robert Thomas occupied a position of
pressroom foreman for the Respondent, at the hearing
the Respondent stipulated that each such person was a
supervisor within the meaning of the Act.
All parties were afforded full opportunity to partici-
pate, to introduce relevant evidence, to examine and
cross-examine witnesses, to argue orally upon the record,
and to file briefs. Based on the entire record, including
the helpful briefs filed on behalf of the General Counsel
and the Respondent, and upon my observation of the de-
meanor of the witnesses, I make the following:
r iw UNION 0
1032 DECISIONS OF NATIONAI. LABO()R RELATIONS BI()ARI)
FINDINGS OF FACT I
I. I H.E BUSINESS OF I HE RESPONI).N I'
At all times material herein the Respondent has been a
Nevada corporation with its place of business ill Grass
Valley, California, where it has been engaged in the pub-
lication and distribution of a newspaper.
During the calendar year preceding the issuance of the
complaint the Respondent in the course and conduct of
its business operations derived gross revenues valued in
excess of $200,000. During that same period of time the
Respondent subscribed to interstate news services and
published nationally syndicated features and derived rev-
enues in excess of $5,000 from advertisements for nation-
ally sold products.
It is conceded, by virtue of a stipulation entered into
at the hearing, and I find upon the foregoing facts that at
all times material herein the Respondent has been an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOIVEI)
The Respondent concedes, and I find, that at all times
material herein the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE AI.LEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this case are whether or not
Respondent:
1. Unlawfully terminated the employment of Richard
Haugen and/or Charles Colby because either had en-
gaged in union or protected concerted activities.
2. Created the impression of surveillance among its
employees of their union activities.
3. Interrogated employees concerning their union
membership, sympathies, and support of the Union.
4. Threatened employees by telling them that other
employees had been discharged because of their union
membership, sympathies, and support of the Union.
In the course of the hearing several subsidiary issues
developed, including:
I. Whether or not Richard Haugen was a supervisor
within the meaning of the Act.
2. Whether or not Richard Haugen was in fact dis-
charged or was, instead, simply a person who quit his
position.
3. Whether or not the General Counsel was barred
from prosecuting the discharge of Richard Haugen by
operation of the limitations of Section 10(b) of the Act.
4. Whether or not, assuming arguendo that Haugen is
found to be a supervisor, Haugen was discharged in vio-
lation of Section 8(a)(l).
5. Whether or not, assuming arguendo that Haugen's
discharge was not found to be violative, it might never-
theless be found to be a violation that the Employer re-
fused to reinstate him to his old position, or to allow him
to request and secure a demotion, thereby relieving him-
self of any responsibilities other than his own work.
B. Background Facts
The Respondent publishes a newspaper at Grass
Valley, California. At that location it has a business
office where it has a circulation department, an advertis-
ing department, a news and editorial department, a com-
posing department, and a production and press depart-
ment. At pertinent times John "Jack" Morehead occu-
pied the position of publisher, giving him overall control
of the Respondent's entire operation. However, Vin
Brenner, whose office is in Napa, California, is executive
vice president of an entity known as Pioneer Newspa-
pers, as well as being general manager of five daily
newspapers, among which is "included he Union" in
Grass Valley, California. According to Brenner, Pioneer
Newspapers is an affiliation of 15 daily newspapers
spread from Alaska to West Virginia, with the 5 for
which he acts as general manager being located respec-
tively in Grass Valley, California; Logan, Utah; Klamath
Falls, Oregon; Nampa-Colwell, Idaho; and Winsted,
Connecticut. It is Brenner to whom Morehead reports.
According to Brenner, he and Morehead are in contact
by telephone on the average of 10 times a week or more,
augmenting their telephone conversations with personal
visits and by mail.
At all times pertinent to this case the foreman of the
composing room was Newt Goodrich, and the foreman
of the pressroom was Robert Thomas.
The record in this case discloses no labor relations his-
tory at the Respondent's place of business in Grass
Valley.
C. The 8(a)(l) Violations
On January 31 Rita Spraggins, a composing room em-
ployee, and Richard Haugen, assistant foreman of the
composing room, began to discuss the possibility of se-
curing union representation. Their discussion led Haugen
to determine that he wanted to participate in the Union.
However, he believed that fairness dictated that he
inform his employer of his activities. As a consequence,
on the next day, February 1, he made a point of ap-
proaching separately Goodrich and the Respondent's
office manager, Johnny Oates, to tell them what he was
doing. He also advised each of them that he no longer
wished to have the title of assistant foreman and that he
no longer wished to receive premium pay of $7.50 per
week. 2
A meeting was arranged with representatives of the
Union for February 5, at the home of Rita Spraggins.
Haugen attended that meeting.
During the morning of February 6 he told Goodrich
what he had done, and reiterated his desire to give up
the title of assistant foreman.
That same morning Goodrich approached Spraggins in
the composing room. Goodrich said that he knew there
was a union meeting held at her home the night before.
After making some statements to the effect that he
I Oates was not called to testify by the Respondent and no explanation
was given for her absence. Accordingly, Haugen's testimony that she
told him hat he Respondent did not waint to hase a union stands rebut-
led, and is accordingl credited
"TIE UNION" 1033
wished he could himself attend, he asked Spraggins if she
had seen Rich Haugen at the meeting. He went on to tell
her that he knew that Haugen had attended. Goodrich
amplified, saying that he knew the employees were
trying to organize, but he warned Spraggins that if she
repeated their conversation he would deny having said
these things to her."
Also during the morning of February 6, Goodrich ap-
proached composing room employee Susan Hagel. He
asked her about the union meeting of the previous eve-
ning, and commented briefly about unions having both
good and bad points. 4
Hagel testified that Goodrich asked her after each
union meeting how the meeting had gone. And, specifi-
cally, on the day after the February 285 meeting, she tes-
tified that Goodrich asked her to step into the storage
closet with him. When she did so, he asked her, "Now,
look, just between you and I, have you ever attended
any of these Union meetings?" After she responded affir-
matively, he said, "Okay. Well, if you ever make men-
tion of this, I will deny having ever talked to you about
it."
As discussed infra I cannot credit Goodrich's equiv-
ocal denials of matters testified to by Hagel and Sprag-
gins. To the contrary I find that Goodrich unlawfully in-
terrogated them about their own and others' union activ-
ities. I further find that his questions were couched in
terms reasonably calculated to lead employees to believe
that their union activities were already known to the
Employer, leaving them to surmise that their union ac-
tivities had been under surveillance by the Employer.
I find that such interrogation and each such creation
of the impression of surveillance was violative of Section
8(a)(l) of the Act.
Employee Sandra Street testified that, while she was
at work at her job as a pasteup artist in the composing
room of the Respondent on February 8,6 she talked to
Goodrich about Haugen's "discharge." She testified,
"Well, I asked him why Rick was fired and he said that
part of the reason was being that he was organizing a
union and him and another woman-they did not know
the other woman at that time, they did not know her
name, but they were organizing a union."
Another employee, Myrna Lou Howen, still employed
by the Respondent, also testified. She worked in the
composing room as a pasteup artist. She also testified
that she had a conversation with Goodrich on February
8, as follows:
I asked him where Rick was and he told me that
he wasn't coming in and I said is he coming back,
and he said no. I said why, and he said that Jack
3 This finding is based on the credited testimony of Spraggins
Goodrich also told Hagel. according to Hagel's credited testimony,
that Haugen had been fired. When she asked him how the Respondent
could treat Heugen in this fashion, he replied. "Well. ou know swhat is
going on. But I am going to try to sork things out fr him"
I deem this date, apparently March 1, to be sufficiently close in time.
and its events so related, to other events specifically pled. as to allow its
use as a basis for a finding of a iolation, even though not specifically
pled. I note that the matter sas brought to the attention of the Respond.
ent's counsel during the hearing
" Sandra Street testified that she was not directed h) Haugen in this
work
had let him go. He said Jack fired him. That was
Newt's words. So I said why, and he said that Rick
and somebody were trying to organize a union but
they didn't know who the other person was, and he
did specify that the person was a woman but they
didn't know her name.
Upon cross-examination she was asked:
Q. And was that your impression at the time that
the only reason that Mr. Haugen was terminated
was that he was involved in the union activity?
A. That's all that I was told.
Q. There were no other reasons given by Mr.
Goodrich that morning?
A. No.
And, finally, employee Colby, whose testimony is
credited over that of Goodrich of whom more will be
said infra, testified as follows:
Q. Now, directing your attention to on or about
February the 8th, that is several days after the ter-
mination of Rich Haugen, would you state whether
or not you talked to Mr. Goodrich about the
Union?
A. Yes. I was up in the composing department,
and I was talking to him about it, and I asked him,
"What happened to Rick?" And he said, "He got
fired." And I says, "Well, how come?" And he
didn't really state why to me, and he just said,
"There is a lot of shit going on in this department. I
sure would like to find out who is behind it." And
then he asked me, "Do you know who is behind
this union stuff? And I go, "No."
I find merit in the General Counsel's contention that
Goodrich's statements to these three witnesses were
themselves violative Section of 8(a)(l). I must conclude
that employees might reasonably be coerced by hearing
from a supervisor that a person who had been actively
supporting the Union had been terminated because he en-
gaged in union activities, particularly when such a state-
ment is coupled with an implicit threat, or a direct ques-
tion, to find out who else had engaged in the activity
and, presumably, to take action against that employee as
well. Accordingly, I find and conclude that Goodrich's
statements to the three employees were violative of Sec-
tion 8(a)(l) of the Act.
D. Haugen's Termination
Succinctly stated, the General Counsel claims that
Haugen was discharged from his employment with the
Respondent as a result of his union activities and sympa-
thies. In response the Respondent states that Haugen was
fired for no such reason and, indeed, was not fired at all.
Instead, so the Respondent claims, Haugen simply quit
when denied his request to be allowed to give up his po-
sition as assistant foreman. Moreover, the Respondent
claims that Haugen was a supervisory employee within
the meaning of Section 2(11) of the Act, and that his
union activities gained him no protection, even if it were
THE UNION
1034 DECISIONS OF NATIONAL LA13()OR RELATIONS O()ARD
to be found that the Respondent fired him. The General
Counsel's corollary to this "alternative" theory of the
Respondent is that, even if Haugen is found to be a su-
pervisor, his discharge was part and parcel of systematic
coercion of employees in general and, therefore, Hau-
gen's discharge itself violated Section 8(a)(1). Finally, the
Respondent claims that Haugen's case cannot be litigated
because it is barred by Section 10(b) of the Act, due to
the Regional Director's refusal to issue complaint until
shortly before the hearing date, that date being more
than 6 months following the operative facts.
1. The 10(b) issue
As demonstrated earlier, the original charge filed by
the Union included a reference to Haugen and alleged
that he had been discharged in violation of the Act. This
allegation was subsequently administratively dismissed
and the original complaint made no reference to Haugen.
Thus, with Haugen having been either discharged or
having quit on February 6, and the amendment to the
complaint having issued on August 17, the Respondent
has raised an issue concerning the application of Section
10(b) of the Act.
Section 10(b) of the Act provides that "no complaint
shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof
upon the person against whom such charge is made."
By its stipulation at the hearing, the Respondent has
admitted the truth of the allegations contained in para-
graph I of the complaint, which alleged that the original
charge was filed on February 21 and that a first amended
charge was filed on April 4, with copies of each charge
having been served on the Respondent in timely fashion.
Thus, the question presented is whether the Regional Di-
rector's administrative dismissal of that portion of the
charge having to do with Haugen (and despite the Re-
gional Director's subsequent reinstatement thereof) has
the effect of time-barring prosecution of that portion of
the charge having to do with Haugen.
In my view the question must be answered in the neg-
ative. The Board has pointed out that the provisions of
Section 10(b) of the Act noted above relate only to the
actual filing of charges. Once a charge has been timely
filed the control over, and disposition of, that charge is
vested exclusively with the General Counsel pursuant to
Section 3(d) of the Act. The General Counsel has virtu-
ally unlimited discretion to proceed on such timely filed
charges as he deems fit and, in the absence of a showing
of abuse of discretion, the Board will not interfere with
the General Counsel's exercise of this power. California
Pacific Signs, Inc., 233 NLRB 450 (1977); Central Enter-
prises, Inc., 239 NLRB 1270 (1979); Fluid Packaging Co.,
Inc., 247 NLRB No. 196 (1980).
I note that in this case all of the activities which had
the effect of delaying consideration of Haugen's dis-
charge were at the hands of the General Counsel's repre-
sentatives, and not of the Charging Party, or Haugen
himself. I further note that Haugen's charge can scarcely
be deemed "stale," since it was heard concurrently with
other allegations of unfair labor practices arising out of
the same general set of circumstances. And, finally, I
note that there could be no claim that there has been a
denial of due process toward the Respondent in proceed-
ing to hearing upon this issue without adequate opportu-
nity to prepare since:
(a) The Respondent obviously prepared to some
degree in presenting an administrative defense to the
General Counsel.
(b) The Respondent was, in fact, provided more than
ample opportunity to complete its preparations by virtue
of the hiatus in this hearing from August 28 to Septem-
ber 21.
Accordingly, I find and conclude that the General
Counsel is not barred from proceeding with the prosecu-
tion of those issues relating to the discharge of Richard
Haugen by Section 10(b) of the Act.
2. The supervisory issue
Haugen began his employment with the Respondent in
June 1965 and continued it until February 6. Since 1975
he has held the title of assistant foreman, and received
$7.50 per week premium pay. Haugen was the most
senior employee and the most experienced typesetter in
the department. No other employee was qualified to run
his machine. Both Haugen and the next most senior em-
ployee, Hagel, who was hired in early 1978, were fur-
nished keys to the composing room by the Respondent,
and each used their keys to open up when they arrived
before others. Haugen was hourly paid and devoted
almost all of his time to the work of setting type and
doing markup work. Occasionally he "filled in" for
Goodrich, such as during Goodrich's annual vacation or
on Goodrich's day off.
The composing room of the Respondent is an area ap-
proximately 16 feet wide by 25 feet long where, during
the relevant January-February period, there were ap-
proximately eight employees. The foreman of the com-
posing room at that time was Newt Goodrich, who has
since been demoted to the position of assistant foreman.
While I believe the issue to be a close one, I have con-
cluded that Haugen should not be held to have been a
supervisor within the meaning of Section 2(11) of the
Act, despite the presence of certain evidence which
seems to call for a contrary conclusion.
The fact that during those years of employment he
gained the Employer's confidence, so much so that he
was given a key to open up in the morning, seems to be
no more of an indicator of supervisory status than of
trust. The same can be said for the premium pay. I note
in this connection that another employee also had a key,
Susan Hagel. No claim is advanced that Hagel was pos-
sessed of supervisory authority.
It is true that Haugen sometimes acted as foreman in
the absence of Goodrich, including filling in for him at
management meetings. It is also true that Haugen occa-
sionally authorized overtime without checking with
anyone else; nor did Haugen punch a timeclock to secure
either regular or premium pay. And, finally, he took it
upon himself to go and secure late copy from reporters. 7
= As did others, hose satua s n cplos,.c is nit questioincd by the
Rcspolldenl
"THE UNION" 1035
But these factors, taken together and considered in con-
text, do not overcome other factors in his employment
situation which point in precisely the opposite direction.
Thus, on the other side of the ledger is the paramount
fact that his activities as a supervisor appear to have
been performed on a sporadic basis. For example, he had
not attended a management meeting in the year preced-
ing his termination of employment. He never granted
time off. He was not given the authority to either hire or
fire or to recommend the same. Nor was he given the
authority to rate or evaluate employees, or to suspend
them, or even to reprimand them.
Nor does it appear that any other employee regarded
him as a boss. For example, it was Haugen with whom
Spraggins held conspiratorial talks about the possibility
of securing a union. It seems unlikely to me that Sprag-
gins would have chosen to speak of this matter with
someone whom she considered to be a member of man-
agement. And if Spraggins was mistaken, it appears also
that Hagel was laboring under the same misapprehen-
sion. Hagel testified, quite credibly, that Haugen was not
to be counted among the bosses, that he was simply an-
other ad-setter, and one with whom she had little contact
since he worked on the other side of the room. She did
not believe that Haugen was entitled to direct her work.
even in the absence of Goodrich, though she did feel
that occasionally she might ask Haugen if he wanted her
to do something. My sense of her testimony was that the
sort of questions she would consider putting to Haugen
were the sort to be raised with an experienced fellow
worker. The same can be said of the testimony of Sandra
Street.
Thus, based on the totality of these circumstances, I
conclude that Haugen was nothing more than an experi-
enced leadman, occasionally used by the Respondent to
fill in for his supervisor or to make decisions of a routine
nature.
Accordingly, I find that Hauigen occupied the status of
employee rather than that of a supervisor, at all times
material herein. Consequently, if Haugen were dis-
charged, and if he were discharged because of his union
activities or sympathies, he was discharged in violation
of Section 8(a)(3).
3. The merits of Haugen's termination
It is obvious that the Employer gained early knowl-
edge of Haugen's intentions to act on behalf of the Union
and of his subsequent fulfillment of those intentions. For,
as I have shown previously, Haugen took pains to make
sure that his employer knew of his union activities, in
which, between January 31 and the evening of February
5, he was one of the primary organizers of the Union
among the employee complement.
And, as I have found, on the morning after he attend-
ed the first union meeting, Haugen's immediate supervi-
sor questioned employees about what had occurred
there, and specifically included mention of Haugen in his
questions. Earlier that morning, Haugen had told Good-
rich that he had attended the union meeting and that he
was stepping down as assistant foreman. Goodrich, to be
sure, attempted to talk him out of it and urged him to
stay on. But around 2:30 that afternoon Haugen met with
Morehead and Goodrich in Morehead's office. During
the meeting Haugen's desire to step down as assistant
foreman was explained and, according to Haugen, was
met with Morehead's response that he was being "let
go." According to Haugen he understood these words to
mean that he was being fired. So he simply slapped his
hand on the desk and left the office. Goodrich followed
him out and asked him to stay on."
Goodrich's version of the meeting, and how it arose, is
that after Haugen approached him and explained his
desire to step down as assistant foreman, he went to
Morehead's office and explained to Morehead on Febru-
ary 6 what Haugen had in mind. The two of them then
called in Haugen and Goodrich recalled Morehead
saying, "I was informed that you want to resign as assist-
ant foreman and relinquish the seven fifty a week pay."
Haugen responded affirmatively. Goodrich recalled Mor-
ehead responding, "Well, you've been here for a length
of time in this position, since Mr. Morehead has been
there, and we do require an assistant foreman. If you do
relinquish this, we do have to have somebody to re-
place." He then recalled Haugen slapping his hand on
the desk, getting up and leaving, followed by him. When
he tried to persuade Haugen to stay, Haugen asserted
that he had been fired by Morehead.
According to Morehead, he first gained knowledge
that Haugen wanted to step down through a conversa-
tion that had been recounted to him by Johnny Oates.
Eventually Goodrich came to him and told him that
Haugen wanted to step down. Goodrich told him that
Haugen no longer wished to be the assistant foreman and
that he was desirous of being relieved of the $7.50 per
week premium pay which he had been paid. Morehead
asked Goodrich to bring Haugen in to talk it over. So
around 2:30 or 2:45 in the afternoon they called Haugen
in. Morehead repeated to Haugen what he had heard
from Goodrich and asked if it was true. Morehead re-
called that Haugen nodded his head affirmatively, so
Morehead commented that Haugen had been the assist-
ant foreman at the paper ever since he had been there,
some 3-1/2 years. Morehead evidently was attempting to
draw Haugen's attention to the fact that he had been col-
lecting premium pay for all of that time and that it was
necessary to have an assistant foreman, and that if he
chose not to be the assistant foreman, Morehead would
replace him. According to Morehead, when this was
mentioned, Haugen jumped up and said, "If that's the
way you want it, okay," or something to that effect, and
started out the door. Morehead asked him, "Are you
sure?" And Haugen replied, "Yes." Goodrich followed
Haugen out and came back in a few minutes to report
that Haugen was under the impression that he had been
fired. Morehead stated that he told Goodrich that that
was not his intention or interpretation. In any event,
Morehead paid Haugen on the next day for his accrued
vacation pay, as well as his regular pay, but made no al-
lowance for severance pay.
" Goodrich characterized himself as a very good friend of Haugcr's In
fact, he went on to point out at some length that Haugen was an e.
tremels capahle worker andl a good assialnl upervisor uho had the po-
tential to rise to the level of ftll superts, or
THE UNION"
1036 DECISIONS OF NATIONAL LABOR RELATIONS HBOARD
Thereafter, so all parties agree, there were phone con-
versations and personal conversations between Goodrich
and Haugen. And there were also phone conversations
between Haugen and Morehead, as well as between
Goodrich and Morehead. All these conversations cen-
tered around the possibility of Haugen returning. How-
ever, the kernel of disagreement proved to be that
Haugen no longer wished to be assistant foreman.
In one of these conversations, Haugen made some
statement to the effect that their differences would be
settled in court. Morehead was candid in admitting that
he ultimately told Haugen that he just did not feel they
would be comfortable working together again after
Haugen had lost his temper, gotten up and walked out of
the room, and threatened him with court action. As a
result, the parties never reached an agreement which
would have permitted Haugen's return to work.
And that is a result which is almost inconceivable to
me. According to everyone who testified in this case,
Haugen was a valued member of the staff of the Re-
spondent. No one described his work or his relationships
with others in the workplace in anything less than glow-
ing terms. He had been performing this work for over 13
years and he had been assisting Goodrich for well over 3
years. Why then, one must ask, did this Respondent
choose to let him walk out the door without talking it
over with him, knowing that he was under the impres-
sion that he had been fired? Why did this Respondent
leave itself in the position of having no assistant foreman
though it was already on notice that Newt Goodrich en-
countered difficulties in performing adequately as a su-
pervisor? 9 Such questions, left unanswered, or unpersua-
sively answered, by the Respondent lead me to infer an
unlawful motivation on the part of the Respondent.
Similarly, one must ask, why was Haugen denied the
opportunity to return only a day or two later, as he re-
quested, when the only intervening circumstance was
Morehead's "feeling" that they would not get along
since Haugen had "threatened" him with some sort of
court action, such as the instant case? Morehead's failure
to follow up alternative means of reaching the organiza-
tional goals of the Respondent may conceivably have
been innocent. But, when faced with the difficult task of
determining motivation in a case such as this, I am justi-
fied in drawing a negative inference from the circum-
stantial evidence of such a failure, or the equally damn-
ing failure to explain such efforts, if any were made,
during the course of the hearing. It is true that I must, as
I do, avoid substituting my judgment for that of the Re-
spondent. But I must also avoid blinding myself to the
Respondent's rather atypical behavior, and/or its failure
9 Morehead acknowledged that it was Haugen who had come and in-
terceded on behalf of some of "the girls" in the pressroom because of
some treatment by Goodrich which they thought to be incorrect I
should note here that I regard this evidence as insufficient to establish
that the incident of Haugen's intercession on behalf of certain female em-
ployees who wished to protest their treatment by Goodrich was any mo-
tivating factor in his discharge or in the refusal to reconsider and allow
him to step down as supervisor or assistant foreman. The incident is not
precisely dated by the record, but it does seem fair, based on the record
as a whole, to conclude that it occurred no later than the fall preceding
the termination of his employment. With no intervening references there-
to by either the Respondent or Haugen, I find no basis for concluding
that it played any part in determining Haugen's job tenure.
to explain it. For employers do not simply accept the
loss of their most seasoned and able personnel with such
equanimity, or, if they do, it may give rise to an infer-
ence of the existence of an unlawful motivation.
N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169 (Ist
Cir. 1962); N.L.R.B. v. Local 776, International Alliance
of Theatrical and Stage Employees (Film Editors)[Cascade
Pictures Co. of California], 303 F.2d 513, 519 (9th Cir.
1962), cert. denied 371 U.S. 826 (1962).
In contrast to Morehead's refusal to allow Haugen any
sort of demotion, I note that sometime since February
Goodrich has been allowed (or requested) to himself
accept a demotion from the position of supervisor or
foreman to that of assistant foreman. In the face of the
evidence of a problem, well known to management in
February, of Goodrich's difficulty in supervising "the
ladies," one is left to wonder why the Respondent's man-
agement could not accede to Haugen's request but was
able to make room for Goodrich in another capacity. In
fact, Haugen was more experienced and had consider-
ably more seniority with the Respondent than even
Goodrich, much less anyone it could consider promoting
from within the work force. Yet Haugen was simply told
that if that is what he wanted he would have to be re-
placed. Under these circumstances I find it scarcely sur-
prising that Haugen reached the conclusion that he had
been fired. Morehead himself made no effort to correct
that misapprehension, if that is, in fact, what it was. I
find such evidence sufficient to warrant an unfavorable
inference about the Respondent's motivation.
Goodrich's efforts to mediate on behalf of his friend
Haugen with Morehead. and their failure, simply rein-
force my conclusion that Morehead had something more
on his mind than the need to have an assistant foreman in
the plant. Morehead could have been assured of the
availability of an assistant foreman without either termi-
nating the services of Haugen or leaving Haugen with
the clear impression that he had been terminated. For, it
does moreover seem puzzling that Morehead would have
so quickly and with seeming ease, as portrayed in his tes-
timony, reached the conclusion that Haugen's tenure of
years could be terminated. To the contrary, it appears
suspicious that no effort was made by him to inquire into
or understand Haugen's motivation. To be sure, if
Haugen, in fact, was not a supervisor, he had no need to
step down or to give up the $7.50 premium pay. But, as
shown above, that question was not altogether crystal
clear. And surely, a valuable employee, as Haugen was
described, would not have been so summarily allowed to
leave had it not been for the certain knowledge that the
company representatives had of his very recent'union ac-
tivities. Yet, it is clear that Morehead, at the least, told
Haugen that he would have to be replaced if he chose
not to be the assistant foreman any longer.
The testimony of Haugen is at sharp variance with
that of Morehead on the issue of whether Haugen quit or
was fired. The testimony of Goodrich, in its totality,
seems never to address the question completely, though,
significantly, it does not seem to me to corroborate
Morehead's account of the meeting.
"FILE INI)N" 1037
Perhaps no resolution is necessary, or even possible;
e.g., the men simply misunderstood one another. I doubt
that, however, for it seems unlikely that Haugen would
have given up a position he evidently valued and which
he performed ably for years unless clearly told that he
was fired, or, in the vernacular, "let go."
Haugen impressed me when he testified as a steady
and careful man. He was not inclined, in my observation,
to shade the ruth in his direction. Indeed he presented
the appearance of a man not readily capable of fabrica-
tion. Goodrich appeared to he a man caught in the
middle: i.e., friendship for Haugen on the one hand and
job loyalty and/or tenure on the other. In my opinion he
equivocated and sought to evade certain questions, such
as what he said to employees Street and Bowen about
Haugen's termination, as well as what he asked Sprag-
gins or Hagel. Morehead's testimony on this point, and
others, left me with the impression that he was contriv-
ing, as with his testimony regarding Colby he seemed
only too willing and ready to enlarge and give details of
any point seemingly favorable to his position that
Haugen was a supervisor who had simply quit, while
glibly passing over areas where similar detail might rea-
sonably have been expected. As a result I credit the testi-
mony of Haugen over that of either Morehead or Good-
rich.
In sum, it seems to me that both my credibility resolu-
tions and the preponderance of the evidence point
toward the conclusion that Haugen was fired, rather
than to the conclusion that he quit.
The same sort of conclusions seem justified when con-
sidering the questions, which were fully litigated without
objection from the Respondent, surrounding the failure
and refusal of the Respondent to allow Haugen to return
to work with the Respondent. I find it unbelievable that
the Respondent would not have allowed a worker of
Haugen's tenure, skill, and ability o return to its employ
in some capacity absent an unlawful motivation about his
having engaged or participated in union activities, or
other protected activities (such as reaching the decision
to see Morehead in "court" such as the instant case).
The factor which I find conclusive, however, was ulti-
mately supplied by the testimony of employees Street,
Bowen, and Colby, set orth supra. 10 For, surely, no one
would seriously claim that I should ignore their state-
ments about what they were told by their supervisors,
especially since I have already credited their testimony.
When it is seen how the comments of Goodrich and/or
Thomas square with other evidence on the same points,
it is not unreasonable to accept those comments as abso-
lute proof that (a) Haugen was fired, and (b) for discrim-
inatory reasons as a result of having become so involved
in the union activities.
The findings set forth above require, in my opinion, a
remedy for Haugen's discharge and/or denial of rein-
statement, whether he was a supervisor or not. If, as I
have found, he was an employee the normal remedies for
violation of Section 8(a)(3) of the Act apply. And, if
10 Evidently the testimony of Street and Bowen was the "newly dis-
covered" evidence thought to justify the General Counsel's reversal of
position on Haugen's discharge, and to arrant the issuance of the
amendment to complaint.
Haugen is a supervisor, contrary to my finding herein, he
is still entitled to reinstatement and all that normally goes
with it.
I reach this conclusion because I find that the state-
ments of Goodrich to Street and Bowen, and the state-
ments of Thomas to Colby, to the effect that (a) Haugen
mwas fired, (b) he was fired for engaging in union activi-
ties, (c) the Respondent knew that a female employee
was engaged in activity similar to Haugen's, or that there
were still other employees involved, and (d) the Re-
spondent wished to learn the identity of any other in-
volved employee, could have only one effect. That effect
was to impress employees with the Respondent's opposi-
tion to the Union and to undermine their support for the
Union, by warning employees of the adverse conse-
quences flowing to those who supported the Union.
And, further, I find that the nature of the comments by
Goodrich and Thomas was such as to virtually insure
that they would be widely disseminated and discussed
among the entire employee complement. See DR ' Cor-
poration d/b/a Brothers Three Cabinets, 248 NLRB 828
(1980), and cases cited therein. Accordingly, I find that
Haugen's discharge and the refusal of the Respondent to
reinstate him or to allow him to accept a demotion, were
part of a pattern of conduct aimed at coercing employees
in the exercise of their Section 7 rights and therefore vio-
lated Section 8(a)(1) of the Act. Brothers Three Cabinets,
supra.
E. Colbvs Termination
Charles Colby worked in the pressroom at the Re-
spondent's facility. He began working there in March
1978 and continued until he was discharged on February
16. At the time he was discharged he had more seniority
and was admittedly better qualified and more competent
than the only other pressman working in the pressroom,
Ivan Harwell. Both of these men worked under the su-
pervision of the pressroom foreman, Robert Thomas.
Colby began his employment as a part-time worker, at
his own request. According to Thomas he was an excel-
lent worker until approximately November 1978, at
which time the Respondent acquired a new press and
Colby became a full-time employee. Thomas recited that
from that time on Colby became habitually late, wan-
dered off the job, talked to other workers when he
should not have been talking to them, and missed 2 days'
work without calling in. Thomas stated that this" led
him on January 17 to go and say to Jack Morehead that
he had "had it," that something had to be done about
Colby. Morehead responded that he would see what
could be worked out. Thomas went on vacation in late
January and early February and when he returned More-
head called him into his office and told him that they
had a possible replacement for Colby. Morehead then
asked if he wanted to discharge Colby. Thomas respond-
] Thomas' estimony about he reason for Colhy's discharge is less
than clear. due to his continually altering his testimony to enlarge on the
slated reasons I draw an adverse inference from such shifting of the as-
signed rteasols for discharge
'THE UNION" 1037
1038 DECISIONS O) NATI()NAL IABH()R RELATIONS ()ARDI
ed affirmatively, saying that he had just "had it" with
Colby's attitude and capabilities.'2
Colby had begun his employment at the rate of $4.50
per hour. Around August 11, 1978, Morehead came
down to the pressroom and talked with him and
Thomas. Morehead told Thomas that he was really
pleased with his work and that he did not want to lose
him. Morehead was aware that Colby was considering
an offer of employment by another newspaper at the
time. Consequently, Morehead "donated" 5 days of vaca-
tion time to Colby and gave him a raise of $1.2 5 ':' per
hour as well as allowing him to "backdate" his starting
date so as to afford him full benefits. Morehead told him
at that time that he wanted him to become a full-time
employee but Colby balked, saying that he did not want
to stand around if there was nothing to do and that he
wanted to leave whenever his work was completed.
Morehead told him to keep the arrangement "under his
hat" and went on to explain to him that he would be al-
lowed to collect pay for a full 40-hour week even if he
worked less. Colby continued working under this ar-
rangement until he was discharged.
The Respondent introduced records in connection
with its effort to impeach Colby's account of his circum-
stances, set forth supra, indicating that Colby was raised
from $4.75 to $6 per hour effective August 5, 1978. In
this context Morehead was asked whether he recalled
talking to Colby regarding his performance, he an-
swered: "Not that I recall." And when asked whether he
ever told Colby that he could take off early he respond-
ed:
Not that I recall. There were times when, I be-
lieve, when he went full-time in October that we ar-
rived at an understanding that he would be some-
times four days a week, sometimes five, as neces-
sary, due to the work load.
As he testified previously, he had been part-time
up until the early fall of last year, and he was
gradually getting more and more hours involved
than what he preferred to work. We explained to
him that we felt that we were going to require
more and more hours, and it became necessary at
that time to change his status from part-time to full-
time.
He asked about possible benefits that accrued to a
full-time employee, and I indicated to him that I
couldn't back date it to July, as he requested, but I
would give him time off with pay.
The next year he indicated, I believe, that he
wanted to either go fishing or hunting this past
summer. I did start the countdown, I think, some-
2 Thomas admitted that both he and Morehead were aware of the
fact that Colby lived far up in the hills, making it difficult for him to
come into work during snowstorms There was a blizzard on January I6-
17.
'" Colby's recollection that the raise amounted to $1 50 per hour was
demonstrated to he erroneous by records introduced by the Respondent
The records demonstrate that Colby received the other 25-cent raise
some 2 to 3 months arher Such records also contradict Colby s recol-
lection that his convsersatioll with Thomas occurred "around November"
It seems more reasonable to conclude, based on the records, that More-
head spoke to him shortly before he actually received the ery substan-
tial raise of $1.25 per hour in early August 1978.
time in October as to his full-time status where he
would become eligible for other benefits.
Q. Again now, did you tell Mr. Colby that he
could break short of shifts''
A. Not to my knowledge. No, sir.
I find Morehead's account of this conversation unreli-
able. He was vague and seemingly uncertain and
"hedged" his answers with qualifying clauses such as "I
think," "I believe," and "Not that I recall." He did this
in such a fashion as to cause me to regard his words with
suspicion, and to conclude that he was not being forth-
right in his testimony.
Thus, despite the fact that Colby has been demonstrat-
ed to have been testifying incorrectly regarding certain
details, such as the date and exact amount of the raise
Morehead gave to him, I regard his testimony as more
credible in its substance than that of Morehead. Such
"qualifiers" as those used by Morehead appear to me to
amount to little more than a form of evasiveness charac-
terized by freedom to shift one's testimony to "fallback"
positions.
Respondent's counsel did not question Thomas about
this matter upon his direct examination. However, the
General Counsel went into it on cross-examination and
secured a series of evasive answers from Thomas. As
nearly as I am able to tell from the record, Thomas' ulti-
mate testimony was that he simply did not recall one
way or another whether he was at a meeting with Colby
and Morehead in which Morehead gave Colby a substan-
tial raise. As far as whether or not Colby was permitted
to take off early during late 1978, his answer was "Possi-
bly; very possibly. That's all I can say." And on the
question of whether Colby and Morehead worked out an
agreement that Colby could leave early, Thomas simply
refused to be pinned down as to whether he knew that
occurred or did not know that it occurred.
Based on his demeanor, including his evasiveness, his
continued dissembling, his defensive answers and man-
nerisms, and his demonstrable willingness to be led into
stating unfavorable things about Colby, I discredit the
testimony of Thomas in any instance where it conflicts
with that of Colby.
My credibility finding with respect to Thomas is rein-
forced by the failure of the Respondent's counsel to ask
Thomas to supply details about Colby's account of the
meeting with Morehead. American Lumber Sales, Inc.,
229 NLRB 414, 421 (1977); Fred Stark and Jamaica 201
St. Corp., Inc. and Jamaica 202 St. Corp., Inc., 213
NLRB 209, 214 (1974); International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America (UAW) v. N.L.R.B., 459 F.2d 1329 (D.C. Cir.
1972), reversing Gyrodyne Company of America, Inc., 185
NLRB 934 (1970); International Association of Bridge,
Structural and Ornamental Ironworkers. Local 600 (Bay
City Erection Company, Inc.), 134 NLRB 301, 306, fn. 11
(1961); Amory v. Delamirie, I Strange 505 (1722). Simi-
larly, Thomas testified that Colby's helper, Ivan Harwell,
complained about Colby's habitual tardiness. Yet the Re-
spondent failed to offer the testimony of Harwell on this
point, or to explain his absence. I regard this failure to
corroborate, or to explain, as creating the inference that
"I'HE UNI()N" 1()39
Harwell's testimony, had it been offered, would not have
supported the Respondent's position.
Nor was I any more favorably impressed with the tes-
timony of Morehead regarding Colby than I was with
his testimony concerning Haugen. Morehead, for exam-
ple, dwelt upon the need he saw for openness and full
communication within the organizational structure of the
Respondent. Yet he would have me believe that he saw
no conflict between that concept and his failure to ques-
tion Thomas, failure or unwillingness to reprimand, to
discipline, to instruct or in any fashion communicate
with Colby about Thomas, alleged dissatisfaction with
Colby and Colby's work habits, punctuality, or attitude.
Throughout his testimony Morehead seemed willing to
glibly pass over such inconsistencies in order to impute
blame to Colby. Under these circumstances I have deter-
mined to credit the testimony of Colby over that of
either Thomas or Morehead.
Among my considerations in this regard is the failure
of the Respondent's counsel to even inquire into this
entire area of the alleged special arrangement and pay
schedule for hours of work which were not actually per-
formed, as testified to by Colby. Clearly such a failure
requires that an adverse inference be drawn. 1 I there-
fore conclude that Colby's account regarding the raise
he received in the fall of 1978, including his recitation of
Morehead's statements of satisfaction with his work, and
special arrangements made to allow him to come and go
pretty much as he wished are true.
Thus, I again find myself faced with substantial ques-
tions about how the Respondent could have so drastical-
ly altered its opinion of Colby and his work in such a
relatively short span of time, and yet took no steps to re-
habilitate a man who must have once, only a short while
before, seemed an exemplary employee. All of this
change, but no real communication by Thomas with
Colby, and no effort by Morehead to check the validity
of Thomas' views about Colby and his work.
The Respondent went to a great deal of trouble and
expense to prove that Colby was a bad worker, and to
prove that it had, even before the advent of the Union,
contemplated discharging Colby and replacing him with
one Mike Wright. I accept such evidence as true, so far
as it tends to show that the Respondent and Wright had
engaged in certain contacts, with the possible eventuality
of Wright's coming to work at the newspaper in Grass
Valley being understood as one possibility. However, I
cannot and do not accept such evidence as proof that
Colby would definitely have been fired.
Again, Morehead's account of the events leading to
Colby's termination was simply too facile to be credible,
and strains credulity too far. For example, Morehead as-
serts that I should find that Colby was discharged law-
fully because his work had deteriorated so drastically.
Yet, at the same time, Morehead, the man in charge of
Respondent's overall operations, testified at great length
and would have me believe that he stressed the concept
of communications to a point that it was virtually a
watchword within the organization. However, it was
.4American Lumber Sales. supra,- Fred Stark etc.. upra, LA. U : W
N. L. RB.. supra, Bay Ctl)! Erection Comipany. upra.
abundantly clear at the hearing that the man who as
responsible for that communication not only did not
engage in it but abhorred it, for, as noted earlier. Thomas
stated that he felt that employees should know their jobs
and that it was not up to him to be compelled to ride
herd on them. Also, one can only speculate as to hy
Thomas did not rebuke, instruct, or reprimand Colby
about his change in attitude and work. The same must be
said with respect to Morehead's failure to inquire into
this area when Thomas first brought the problem to his
attention. Certainly it does not seem unreasonable to
expect that Morehead would have inquired of Thomas
about some of the details of Thomas' prior efforts to cor-
rect the problem. Had he done so, it is obvious that he
would have discovered quite easily that Thomas had
made virtually no effort to correct the problem. As a
consequence, it appears to me that the testimony of Mor-
ehead and Thomas cannot be credited. Their testimony
was an incredible account of the way in which an orga-
nization treated a valued employee. By their account,
Colby is depicted as an employee whose work became
shoddy over a very short period of time subsequent to a
raise in pay which can only be described as hefty, and
was therefore fired without real effort to correct or reha-
bilitate.
I cannot credit such testimony in the light of the Re-
spondent's failure to corroborate it in certain ways which
seem obvious. For example, I conclude that the docu-
ments within Respondent's possession which would have
shown Colby's tardiness or poor attendance would not
support the testimony offered at the hearing, since such
documents were never offered into evidence. Similarly, I
must conclude that the Respondent, a newspaper pub-
lisher, purposefully failed to offer into evidence any
copies of the poor workmanship of Colby. Since Colby
was a pressman it is clear that the Respondent had copies
of its own back issues in its possession. The inference is
clear, in light of the Respondent's failure to produce any
such evidence, that those back issues would not heve
supported the claims of Colby's derelictions as testified
to by Thomas, Morehead, and Wright.
I was unfavorably impressed with witness Mike
Wright. And the adverse inference I draw from the Re-
spondent's failure to produce examples of Colby's defec-
tive workmanship supports my conclusion that he should
not be credited. He seemed to me far too ready to find
fault, in too, with Colby's work, and much too con-
cerned with self-praise to be credible.
Nor was the motivational credibility of Thomas and
Morehead enhanced by their failure to take any action
whatsoever against Colby's helper on the press, who
must, after all, be thought to have borne at least some
minimal amount of responsibility for the allegedly defec-
tive workmanship produced by him and Colby on the
press. Similarly, Thomas himself was the "working fore-
man," as he termed himself when he testified, in the
pressroom. Yet, when questioned about whether he
might himself bear some responsibility for maintaining
the press he responded:
Q. And it is actually your responsibility to see
that the press is properly maintained, correct?
THE t..JNt()N u q
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. No, it is not my responsibility.
Q. Aren't you the foreman?
A. Hold it. It is my responsibility to assign the
men. It's not my responsibility to go out and do it.
Primarily, I do it also. We have a very small crew
there. There are two other people besides myself.
Q. Were you a working foreman in the press
room?
A. Correct.
In sum, I conclude that the Respondent's assertions
that its satisfaction with Colby drastically declined over
the relatively short period of time from November 1978
to January 1979, and that the Respondent made no real
effort to correct, instruct, counsel, warn, admonish, or
otherwise attempt to change Colby's work practices back
to what they had been, i.e., excellent, are incredible. And
I find this to be strong evidence of the untruth and un-
lawfulness of the Respondent's stated reasons for dis-
charge. First National Bank of Pueblo, 240 NLRB 184
(1979); Shattuck Denn Mining Corporation v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966).
Moreover, I view the rather close timing of Colby's
discharge and his engagement in union activities as sup-
portive of a finding that the Respondent violated Section
8(a)(3) of the Act in discharging him. As we have seen,
Colby was the direct victim of the Respondent's animus
when, on February 8, he was threatened and questioned
about employees' union activities by Thomas. One may
infer, as I do, that Colby displeased Thomas by respond-
ing to the interrogation by stating that he did not know
who was behind "this union stuff." But one may also sur-
mise the anger of Thomas when Colby asked if he would
like to go to the upcoming union meeting with him on
February 12. Of course Thomas declined. But Colby
went on to tell him that he intended to attend the meet-
ing on February 15, as he did. Thomas fired Colby the
very next day for having a "bad attitude." In my view
this sort of timing supports my earlier drawn inference
that the Respondent's motivations in discharging Colby
were illegal and violative of Section 8(a)(3) of the Act.
All Brite Window Cleaning and Maintenance Service, Inc.,
235 NLRB 596, 602 (1977); The Youngstown Osteopathic
Hospital Association, 224 NLRB 574, 575 (1976).
CONCLUSIONS OF LAW
1. The Respondent herein constitutes an employer
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their own or other employees union activities, leanings,
sympathies, or support; by threatening employees with
discharge if their union activities, sympathies, leanings,
or support should be discovered; by telling employees
that a supervisor or leadman was fired because he had
engaged in activities in support of the Union; and by cre-
ating the impression of surveillance of employees' union
activities, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) of the Act.
4. By discharging Richard Haugen on or about Febru-
ary 6, and refusing to reinstate him thereafter, the Re-
spondent, Nevada County Publishing Co., d/b/a "The
Union," violated Section 8(a)(3) and (I) of the Act, and
by firing Charles Colby on or about February 16 the Re-
spondent, Nevada County Publishing Co., d/b/a "The
Union," violated Section 8(a)(3) and (I) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Nevada County Publishing Co., d/b/
a "The Union," set forth above, occurring in connection
with its operations described in section 1, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead, and have led, to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEI)Y
Having found that the Nevada County Publishing Co.,
d/b/a "The Union," has committed violations of Section
8(a)(1) and (3) of the Act, I shall recommend that it be
required to cease and desist therefrom, to post appropri-
ate notices, and that it take certain affirmative action to
effectuate the policies of the Act.
Nevada County Publishing Co., d/b/a "The Union,"
will be required to offer Richard Haugen and Charles
Colby immediate reinstatement to their respective former
positions of employment or, if such positions no longer
exist, to substantially equivalent positions, without preju-
dice to seniority or other rights and privileges, dismissing
or reassigning, if necessary, anyone who may have been
assigned or hired to perform the work that Haugen and/
or Colby had been performing, respectively, prior to
their discharges. Additionally, Nevada County Publish-
ing Co., d/b/a "The Union," shall be required to make
Haugen and Colby whole for any loss of earnings they
may have suffered by reason of their unlawful discharges
on February 6 and 16, 1979, respectively, with backpay
to be computed on a quarterly basis, making deductions
for interim earnings, and with interest to be paid on the
amounts owing and to be computed in the manner pre-
scribed in F. W Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977); see, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962), enforcement denied on different
grounds 322 F.2d 913 (9th Cir. 1963).' 5
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
a" The General Counsel's request for a remedial interest rate o 9 per-
cent on backpay is denied. See Southern Clijornia Edison Company 243
NLRB 325, fn. 1 (1979).
"THE UNION" 1041
ORDER16
The Respondent, Nevada County Publishing Co., d/b/
a "The Union," Grass Valley, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee, or otherwise discrimi-
nating against employees, with regard to hire or tenure
of employment or any term or condition of employment,
for engaging in activities on behalf of any labor organiza-
tion, or for engaging in activities protected by Section 7
of the Act.
(b) Discharging and refusing to reinstate supervisors as
a means of intimidating employees because those employ-
ees engaged in activities on behalf of a labor organization
or in activities protected by Section 7 of the Act.
(c) Threatening employees with discharge or other re-
prisals if they choose to be represented, telling employ-
ees that other persons have been discharged for engaging
in activities on behalf of a labor organization, creating
the impression that employees' union activities have been
or are under surveillance, or interrogating employees
concerning their union activities or sympathies.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Richard Haugen and Charles Colby immedi-
ate and full reinstatement to their respective former posi-
tions of employment, dismissing or reassigning, if neces-
16 In the event no eceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived for all purposes
sary, anyone who may have been hired or assigned to
perform the work that either man had been performing
prior to their respective discharges, or, if the former po-
sition no longer exists, to a substantially equivalent posi-
tion, without prejudice to seniority or other rights and
privileges, and make Haugen and Colby whole for any
loss of pay either may have suffered as a result of the
discrimination, in the manner set forth above in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Grass Valley, California, facility copies
of the attached notice marked "Appendix."' 7 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by its authorized
representative, shall be posted by Nevada County Pub-
lishing Co., d/b/a "The Union," immediately upon re-
ceipt thereof, and shall be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customariiy
posted. Reasonable steps shall be taken by Nevada
County Publishing Co., d/b/a "The Union," to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
"? In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted h
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
THE UNION" 041