Capital Times Co.

National Labor Relations Board - Board Decisions

Jan 19, 1978

234 N.L.R.B. 309 (N.L.R.B. 1978)

The Capital Times Company and Newspaper Guild of
Madison, Local 64. Case 30-CA-3639
January 19, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On April 26, 1977, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Charging Party filed exceptions and support-
ing briefs.' Respondent filed cross-exceptions and an
answering brief and a brief in support of its cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein, and to adopt his recommended
Order.
We agree with the Administrative Law Judge's
Decision to dismiss the complaint herein. Contrary
to the Administrative Law Judge, however, we find
that employee David Wagner was not engaged in
protected concerted activity when he refused to cross
a picket line to perform an assignment. Accordingly,
Respondent's imposition of discipline by suspending
Wagner from work without pay did not violate the
Act.2
The essential facts are not in dispute. Respondent,
engaged in the newspaper business, employs David
Wagner, a member of the Newspaper Guild of
Madison, as an art reviewer and critic. In this
capacity, Wagner attends various cultural events in
the area and writes reviews thereof. In April 1976, 3
Wagner was assigned to cover and write a review of
an opera to be performed at the University of
Wisconsin Memorial Union on May 12, 14, and 15.
A picket line had been established at the Memorial
Union by the Memorial Union Labor Organization
(MULO). MULO represents employees who are
employed by the University and who work at the
Memorial Union. The parties stipulated that the
employees represented by MULO are not employees
I After the issuance of the Administrative Law Judge's Decision, the
Charging Party filed a motion to withdraw its charges. By telegraphic order
dated June 7, 1977, the Charging Party was informed that the Board would
not at that time rule on its motion. An extension of time was granted for the
Charging Party to file exceptions and a supporting brief However, we find it
234 NLRB No. 62
THE CAPITAL TIMES COMPANY
within the meaning of the Act as they are employed
by a political subdivision of the State of Wisconsin.
Wagner proceeded alone to the Memorial Union
on May 12, but he did not cross the MULO picket
line to cover the opera. In lieu of writing a review, he
wrote an article dealing with the MULO strike.
However, Respondent's editor did not publish this
article, as he did not consider it to be a review of the
opera. Wagner was subsequently suspended from
work for 3 days without pay for not fulfilling his
assignment.
Respondent was charged with violating Section
8(a)(1) of the Act by suspending Wagner because of
his refusal to cross the MULO picket line to
complete his assignment. The Administrative Law
Judge found that Wagner was engaged in activity
protected by the Act when he honored the picket
line, rejecting Respondent's contention that Wag-
ner's conduct was unprotected inasmuch as he had
engaged in activity with persons who are not employ-
ees within the meaning of the Act. The Administra-
tive Law Judge determined that "it is not material
that his activities were in concert with employees of
an employer outside the scope of the National Labor
Relations Act."
In its exceptions, Respondent argues that an
employee comes under the protection of Section 7 of
the Act only if that employee engages in activity with
other employees as defined in the Act. Respondent
asserts that an employee cannot engage in concerted
activities within the meaning of Section 7 with
nonemployees who themselves are not entitled to the
protection of the Act.
We find merit in Respondent's exceptions and find
that the rationale of Ursula Cervantes, et al., d/b/a
Panaderia Sucesion Alonso4 is controlling and dispos-
itive of the issue herein. In that case, an employee
intervened with his employer on behalf of an
agricultural laborer also employed by the employer.
The employee was subsequently discharged. The
complaint issued by the General Counsel alleged that
the discharge was the result of the employee's
concerted activities.
The Board initially noted that agricultural laborers
are not employees as defined in Section 2(3) of the
Act and therefore they are not entitled to the benefits
and protections of Section 7. The Board then
concluded that the activities engaged in by the
employee and the agricultural laborer were not
concerted, stating at pages 880-881:
unnecessary to pass on the motion, as the Charging Party has indicated in its
brief in support of its exceptions that it has withdrawn its motion.
2 The Administrative Law Judge found that the suspension was warrant-
ed because of Wagner's failure to give timely notice to Respondent of his
intention not to carry out his assignment.
3 All dates are in 1976 unless otherwise indicated.
4 87 NLRB 877 (1949).
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because Section 7 grants rights exclusively to
"employees," any concerted activity must be that
of more than one "employee" in order to obtain
the protection of Section 7. We do not believe
that one "employee" and nonemployees together
may engage in protected concerted activities
within the meaning of the Act. In this case,
because all Gutierrez' [the employee] associates in
his union activities were agricultural laborers and
were not "employees," there was no concerted
activity as envisaged by Section 7 of the Act.
In the present case, Wagner's solo activities on
behalf of nonemployees do not constitute concerted
activities which are entitled to the protection of
Section 7 of the Act. Therefore, his suspension by
Respondent for engaging in such activities is not a
violation of the Act. Accordingly, we agree with the
Administrative Law Judge's dismissal of the com-
plaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Madison,
Wisconsin, on March 15, 1977, upon a complaint' issued
by the General Counsel of the National Labor Relations
Board and an answer filed by The Capital Times Compa-
ny, hereinafter sometimes called the Respondent. The
issues raised by the pleadings relate to whether or not the
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by suspending David C.
Wagner for 3 days because he refused, in the course of his
employment, to cross a picket line of a labor organization
other than that of which he is a member. Briefs have been
received from the General Counsel, the Respondent and
the Charging Union, and the briefs have been duly
considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
I The complaint in this proceeding was issued on December 17, 1976,
upon a charge filed on May 20, 1976, and duly served on the Respondent.
FINDINGS OF FACT
I. PRELIMINARY MAT-ERS (COMMERCE, JURISDICTION,
AND LABOR ORGANIZATION)
The complaint alleges, the answer admits, and I find that
(1) the Respondent is engaged at Madison, Wisconsin, in
providing editorial services for Madison Newspapers, Inc.;
(2) its annual gross revenues and purchases in interstate
commerce are sufficient to satisfy the Board's standards for
the assertion of jurisdiction; and (3) the Respondent is an
employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The complaint also alleges, the answer
admits, and I find that Newspaper Guild of Madison,
Local 64, hereinafter sometimes called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
1. THE UNFAIR LABOR PRACTICES ALLEGED
The General Counsel alleges that the Respondent violat-
ed Section 8(aX)(1) of the Act when it suspended employee
David C. Wagner because he refused to cross a picket line
maintained by the Memorial Union Labor Organization
(MULO) at the University of Wisconsin Memorial Union.
The record is clear that on May 13, 1976,2 the Respondent,
through its Executive Editor Elliott Maraniss, suspended
Wagner for 3 days because he failed to carry out an
assignment to review an opera which was conducted at the
Memorial Union on the evening of May 12. The Respon-
dent defends the suspension on grounds that (1) Wagner's
activity was not concerted because the MULO strikers are
not employees within the meaning of the National Labor
Relations Act; (2) that the MULO strike was illegal and
Wagner's rights were no greater than those whose cause he
joined; and (3) the protections of Section 7 do not extend
to an employee who performs a unique service and cannot
be replaced by a substitute. As further defenses the
Respondent contends that Wagner's dominant motive in
honoring the MULO picket line was fear, not common
cause with the strikers; that Section 7 of the Act is
unconstitutional if interpreted to prohibit a newspaper
from disciplining an employee who exhibits bias in the
performance of his newsgathering duties; and, finally, that
Wagner was suspended for failure to give notice, and not
by reason that he honored the MULO picket line.
As a part of this record all parties entered into a written
stipulation which reflects that the Memorial Union is a part
of the University of Wisconsin system, governed by the
board of regents, an agency of the State of Wisconsin. At
times material to this case there were approximately 450
employees of the Memorial Union who performed food
service and related functions, and some of whom, but not
all, were students at the University. The parties have
further stipulated that the employees of the Memorial
Union, by reason that they are employed by a political
subdivision of the State of Wisconsin, are not employees
within the meaning of Section 2(3) of the Act, and have
"limited term" appointments as defined in section 16.21 of
the Wisconsin Statutes (1975).
2 All dates hereinafter are in 1976, unless specified to the contrary.
310
THE CAPITAL TIMES COMPANY
With respect to the MULO strike, the record reveals that
it began on or about April 30, was attended by picket lines
at the Memorial Union, the strike ended on May 25, and
on May 27 the board of regents and MULO entered into a
collective-bargaining agreement. The record also reveals
that no individual or agency of the State of Wisconsin
instituted legal proceedings or sought to enjoin the MULO
strike and/or the attendant picketing.
At times material to this case David C. Wagner was
employed by the Respondent as an art reviewer and critic,
and was a member of the Newspaper Guild of Madison,
Local 64. In accordance with established practice, Wagner
met with Marie Pulvermacher, the subeditor of the Re-
spondent's PM or feature section, in late April to determine
a calendar of art and cultural events which would require
coverage during the month of May. As a result, Wagner
was selected to cover and review the Puccini opera "The
Girl of the Golden West," which was scheduled at the
Memorial Union on May 12, 14, and 15. At the time the
schedule was arranged, both Wagner and Pulvermacher
made note that there was a picket line at the Memorial
Union because of a labor dispute which had not been
resolved.
Wagner testified that on May 7 he had a telephone
conversation with Pulvermacher concerning the assign-
ment calendar, and Wagner asked Pulvermacher to keep
her ears open concerning management's attitude toward
the picket line at the Memorial Union. Pulvermacher
agreed that she would, but the record reveals no further
discussion about the picket line, or Wagner's assignment
until May 12. Early on the morning of May 12, Wagner
received a call from Pulvermacher, who asked if she could
quote Wagner to the effect that he did not want to cross the
MULO picket line. Wagner replied in the affirmative, and
Pulvermacher stated that she wanted to pass the informa-
tion on directly to Editor Elliott Maraniss.
About 6 o'clock of the same day Wagner received a
second call from Pulvermacher who informed him that she
had talked with Maraniss and told him she would not order
Wagner to do what she would not do herself. Pulvermacher
also told Wagner that Maraniss had ordered him to cover
the opera, and suggested it would be wise for Wagner to get
in touch with Maraniss.
Wagner did not immediately call Maraniss, but visited
the picket line at the Memorial Union to look over the
situation. Wagner engaged in conversations with some of
the pickets, received some of their pamphlets and con-
versed with the director of the University Symphony.
About 7:45 p.m. Wagner called Maraniss, reported that the
picket line was still up, and stated that he did not want to
cross the picket line. Maraniss urged him to perform his
assignment, Wagner argued what he considered to be a
related case in Canada, and Maraniss continued to urge
him to continue his assignment. Wagner inquired what
action would be taken against him if he refused to cross the
picket line and Maraniss replied that he would be suspend-
ed for at least 3 days, or maybe a week. Wagner asked if
the discipline could be limited to a day's pay, Maraniss
replied that this would not be possible and Wagner would
be suspended for at least 3 days or longer. Wagner
terminated the conversation and returned to the picket
line.
After his return to the picket line at the Memorial Union,
Wagner had further conversations with the pickets and also
talked to John Hunter, the Respondent's associate editor.
In a give and take between the two employees, Wagner
asked Hunter if the Respondent's publisher, McMillan,
would take personel affront if Wagner refused to cross the
picket line to carry out his assignment. Hunter replied in
the negative, and at this juncture Wagner determined that
he would honor the picket line.
Wagner did not cover his assignment to review and write
a critique on "The Girl of the Golden West," but after
returning to the Respondent's office after 8 p.m. Wagner
wrote a newspaper article in which he reported both the
MULO strike and its consequences, as well as limited
references to Puccini's opera. Wagner left the article on
Pulvermacher's desk when he departed the office, but
Maraniss and other management officials subsequently
determined not to publish the article on grounds that it was
a "hard news" story, not a review, and Wagner's references
to the conduct of the opera were sans the benefit of
personal observation. The record further reveals that
Associate Editor John Hunter attended the Puccini opera
as a guest, and later, at the request of management, wrote a
review which appeared in the Respondent's newspaper on
May 14.
While at home on the morning of May 13, Wagner
received the letter from Elliott Maraniss notifying him of
the 3-day suspension. In a later telephone conversation
Maraniss expressed regret that it was necessary to disci-
pline Wagner. In part, Maraniss' letter to Wagner of May
13, included the following statements:
The discipline I am imposing is a three-day suspension
without pay starting Friday and continuing through
your next two scheduled work days.
What was especially dismaying about your decision
was its timing. Had you advised us in advance, we
could have understood your position, even if we did not
approve of it, and could have assigned another member
of the staff. But you chose to wait to call me until the
last minute when a substitution could not be made. By
so doing you not only failed in your responsibility to
your readers but caused management also to fail in its
responsibility.
Marie Pulvermacher testified in this proceeding and
verified that Wagner was scheduled to cover and review
"The Girl of the Golden West" at the initial performance
on May 12. Pulvermacher testified that on a date she could
not recall, probably a week or 10 days before the opera was
scheduled, she told Maraniss that there was a strike at the
Memorial Union and asked what would be done about
coverage of the opera. Maraniss replied that Pulvermacher
need not concern herself with the issue, that the City Desk
would handle it. It is clear from Pulvermacher's testimony,
as it is from Maraniss' testimony, that Wagner's name was
not mentioned during the course of the conversation.
Pulvermacher further testified that on the morning of
May 12 she again approached Maraniss about the coverage
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the opera. Pulvermacher was not sure, but seemed to
recall that she mentioned Wagner's name and expressed
her reluctance to order him to cover the assignment.
Maraniss agreed that he would order Wagner to continue
with his assignment, and apparently instructed Pulver-
macher to contact Wagner. Pulvermacher, however, did
not contact Wagner until the evening of May 12. At that
time, according to Pulvermacher, Wagner was still not sure
whether he would carry out his assignment or honor the
picket line, and she instructed him to be sure to notify
Maraniss if he decided not to cover the opera.
On cross-examination Pulvermacher related that she had
two conversations with Maraniss on May 12 regarding
coverage of the opera. Her testimony is not clear in which
of these conversations Wagner's name was mentioned, if
mentioned at all. What is clear, however, is that Pulver-
macher herself was unsure whether Wagner would cover
his assignment, and, accordingly, she did not give Maraniss
any definite indication of Wagner's intentions.
It is Maraniss' testimony that he first learned that the
coverage of the opera presented a problem shortly after
noon on May 12. Pulvermacher came to his office and, in
the presence of Managing Editor Robert Meloon, stated
that there were some difficulties in covering "The Girl of
the Golden West." Pulvermacher told the management
representatives that Wagner was reluctant to go through a
picket line, and as a good union member Pulvermacher did
not want to order him to do what she would not do herself.
Maraniss asked whether the opera was an event which
should be covered, whether it was a matter the Respon-
dent's readers would expect to be covered, and Pulver-
macher replied affirmatively to both questions. Maraniss
stated that he could see no reason the event should not be
covered but, when Pulvermacher again insisted that she
could not order Wagner to cover the assignment, Maraniss
agreed that he would take responsibility for the order.
Maraniss directed that Pulvermacher inform Wagner of
this decision, and that if Wagner had any questions he was
to call Maraniss.
To the extent there are differences in the testimony
adduced from Pulvermacher and Maraniss, I credit the
latter. Much of Pulvermacher's testimony was attended by
an inability to recall any of the pertinent specifics of her
conversations with Maraniss. Moreover, an equally great
part of her testimony consisted of a recount of her own
mental deliberations concerning Wagner's dilemma over
the MULO picket line, at the expense of testimony of what
was actually said in her conversations with Maraniss and
Wagner. Accordingly, I find that the first notice to
Maraniss that Wagner had some reluctance to cross the
MULO picket line was on the afternoon of May 12. Even
at this late date no definite notice was given to Maraniss
that Wagner had decided not to carry out his assignment.
Maraniss instructed Pulvermacher to notify Wagner that it
was his order to cover the opera, and that Wagner was to
contact him if there was any problem. Pulvermacher,
however, chose to wait until 6 p.m. before she relayed the
3 The Cooper Thermometer Company, 154 NLRB 502, 504 (1965).
4 Virginia Stage Lines, Inc., 182 NLRB 717, 719-720 (1970).
Overnrte Transportation Company, 212 NLRB 515. 521 (1974), and cases
cited therein.
information to Wagner, and Wagner made no contact with
Maraniss until shortly before curtain call.
Maraniss confirmed in his testimony that he received a
call from Wagner about 7:30 p.m. on May 12. Wagner
explained that there was a picket line at the Memorial
Union and he was reluctant to cross the picket line to carry
out his assignment. A lengthy conversation ensued about
the picket line and Wagner's reluctance to cross. Wagner
suggested that it was a free press issue, not a labor issue
and Maraniss agreed. Wagner expressed that his reluctance
to go through the picket line was a matter of conscience,
but also expressed concern that reporters from the Daily
Cardinal would crucify him if he did cross. Wagner finally
asked what would happen if he didn't cross the picket line.
Maraniss replied that if Wagner did not complete his
assignment some discipline would be imposed, such as a
suspension for 3 days to a week. Wagner, however, did not
notify Maraniss with any definitiveness of what he intend-
ed to do, and Maraniss was not aware until the following
morning that Wagner had not completed his assignment.
Upon the whole of the record, I find no merit in the
Respondent's defense that Wagner's conduct was unpro-
tected by Section 7 of the Act by reason that he acted out
of fear of repercussions from fellow reporters if he failed to
honor the MULO picket line. I credit Maraniss' testimony
that in the conversation on the evening of May 12, Wagner
did express some concern that he would be criticized by
other reporters if he failed to honor the MULO picket line.
There is, however, ample evidence in the record to support
the conclusion that Wagner acted out of conscience and
made common cause with the MULO strikers in support of
their labor dispute with the University of Wisconsin. The
focal point of the inquiry as to whether Wagner's conduct
was protected, is the nature of the activity itself, not
Wagner's motive.3 Even if, contrary to the facts, Wagner
had acted totally out of concern that he would incur the
criticism of his peers, that evidence would not support the
Respondent's contention that his activities were unprotect-
ed or unconcerted.4 Wagner was making common cause
with the MULO strikers, plighting his troth with other
employees for mutual aid and protection, and his conduct
was protected and concerted under Section 7 of the Act.5
Nor do I find merit in the Respondent's defense that
Wagner's conduct was unprotected by reason that he
honored the picket line of strikers who are not employees
within the meaning of Section 2(3) of the Act, who were
engaged in an illegal strike under the law of the State of
Wisconsin. The record will not, in the first instance,
support the Respondent's contention that the MULO
strike was illegal. It was stipulated by all parties that the
employees of the Memorial Union are "limited term"
employees, thus exempt from the provision of the Wiscon-
sin statute concerning collective bargaining for state
employees. 6 The Respondent contends, nevertheless, that
the MULO strike was illegal under the common law of
Wisconsin, and in support of this contention cites a 1970
6 111.80, wis. Stats. (1975)
312
THE CAPITAL TIMES COMPANY
decision of the Circuit Court of Dane County, State of
Wisconsin.7 It is clear that the board of regents of the
University of Wisconsin never sought to enjoin the MULO
strike, undertook no legal action to determine its supposed
illegality, but did subsequently recognize and bargain
collectively with the employees represented by MULO.
There is nothing in this record, accordingly, to support a
finding that the MULO strike was illegal under Wisconsin
statutory or common law, and certainly no evidence to
suggest that Wagner knew, or had reason to believe he was
engaging in unlawful conduct when he made common
cause with the MULO strikers. As to the 1970 decision of
the Circuit Court for Dane County, it was an adjudication
of a completely different strike by a court of general
jurisdiction, and in my view is not depositive of the issues
here in question. The essential issue in this proceeding is
Wagner's right to exercise the rights guaranteed him by
Section 7 of the Act, not the legality or illegality of the
strike by MULO members against an agency of the State of
Wisconsin. Wagner is an employee under Section 2(3) of
the Act, employed by an employer defined in Section 2(2)
of the Act, and it is not material that his activities were in
concert with employees of an employer outside the scope of
the National Labor Relations Act.8
I have also considered the Respondent's defenses that
Wagner's conduct was unprotected because he performed a
unique service for the Respondent, and that Section 7 of
the Act is unconstitutional if interpreted to prohibit a
newspaper from disciplining an employee who fails to
carry out a newsgathering assignment. As a point of
departure, it has always been the Board's position, and
certainly binding on me, that the constitutionality of the
Act is assumed in the absence of a binding court decision
to the contrary. 9 There is no court determination with
which I am familiar which precludes employees of a
newspaper from exercising the rights guaranteed them by
Section 7 of the Act, and it was long since established that
the right of newspaper employees to bargain collectively
and to engage in other activities protected by Section 7 of
the Act is not an invalid invasion of the freedom of the
press guaranteed by the first amendment.' 0 Nor does the
fact that Wagner performs a unique service for the
Respondent provide a ground for negating his Section 7
rights. To be sure, Wagner is an expert critic, more capable
than any of the Respondent's other employees to perform
the editorial function to which he was assigned on the
evening of May 12. This fact does not, however, support
the Respondent's contention that Section 7 of the Act does
not extend to Wagner's activities. In a series of recent
decisions the Board has held that editorial writers, notwith-
standing the functions they perform in presenting an
unbiased account of the news in their employer's publica-
tion, are eligible to participate in the process of collective
bargaining." If newspaper employees, whether editorialists
or critics, have the right to bargain collectively, a fortiori,
I The Regents of the University of Wisconsin v. The Teaching Assistants
Association, etc., No. 130-095.
8 General Electric Company, 169 NLRB 1101, 1103 (1968), citing
N.LR.B. v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130 F.2d
503 (C.A. 2, 1942).
9 Amalgamated Lithographers ofAmerica, etc. (Employing Lithographers of
Greater Miami). 130 NLRB 968, 991 (1961).
they have the same right to exercise all of the guarantees
which are specified conjunctively in Section 7 of the Act.
Nor can greater merit be found in the Respondent's
argument, similarly based on the first amendment, that the
extension of Section 7 rights to Wagner would prohibit the
newspaper from disciplining an employee who exhibits a
bias in gathering and presenting the news. It is agreed that
there is nothing in the scope of the National Labor
Relations Act to deprive the Respondent of its right to
discipline Wagner for a display of bias in his newsgathering
and reporting activities, but bias has not been proved here
because Wagner chose to exercise the rights accorded to
him by the statute. 2 The Fourth Estate enjoys no immuni-
ty from the application of the law, and the constitutional
guarantee of freedom of the press creates no special
privilege to invade the rights of others as established by
law.13
There remains for consideration the Respondent's de-
fense that Wagner was suspended for 3 days because he
failed to give notice of his intent not to cover the
assignment given him for May 12, and not for the reason
that he engaged in protected concerted activity. In this
defense I find merit.
Wagner was fully aware, when the tentative calendar of
events was arranged at the end of April or the beginning of
May, that a picket line existed at the Memorial Union.
Both Wagner and Pulvermacher took note of this fact
when the assignments were made, and Pulvermacher
subsequently brought this fact to Maraniss' attention,
albeit without notice that Wagner was suffering conscience
problems over the possibility that he would have to cross
the MULO picket line to review the Puccini opera. On May
7, Wagner had a subsequent conversation with Pulver-
macher, which was followed by a further conversation on
the morning of May 12. In these conversations Wagner
continued to express his reservations about crossing the
MULO picket line, but it is clear from Wagner's testimony,
as it is from Pulvermacher's, that Wagner had not then
made up his mind which course of action he would follow.
Wagner again talked to Pulvermacher about 6 p.m. on May
12, and the testimony of both conversants reflects that
Wagner was still undecided. Instructed by Pulvermacher to
call Maraniss if he decided he had a problem about
carrying out his assignment, Wagner stalled until shortly
before the opera was to begin. When Wagner finally called
Maraniss, he engaged in a long harangue but returned to
the Memorial Union without giving Maraniss any definite
indication as to whether he would review the opera or
honor the MULO picket line. Wagner's testimony is, in
fact, that he made no definite decision to honor the picket
line until after he had discussed the matter with John
Hunter, and was assured by Hunter that Publisher McMil-
lan would not take it as a personal matter if he complied
with the dictates of his conscience. On the basis of all this
evidence it is patently clear that Wagner never gave notice
to the Respondent of his intent to honor the MULO picket
io Associated Press v. N.LR.B., 301 U.S. 103 (1937).
II The Express News Corp., 223 NLRB 627 (1976).
12 Associated Press v. N. L R.B., supra at 132.
13 Associated Press v. N. L R.B., supra, 132-133.
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
line, and the Respondent had no opportunity to select a
substitute to cover the May 12 performance of "'The Girl of
the Golden West."
Wagner had the right to engage in protected activity by
not crossing the MULO picket line, but Wagner's exercise
of that right must be balanced against the Respondent's
right to conduct its business despite Wagner's sympathetic
activities.14 Put otherwise, Wagner's right to engage in
protected activity did not absolve him from the obligation
to give his Employer timely notice of his intentions, and the
Respondent's obligation to recognize Wagner's protected
rights did not entail the obligation to condone his breach of
the employment relationship.' 5 In determining an employ-
er's claim of "business necessity" in cases where discipline
is imposed on an employee who has engaged in similar
protected activities, the Board customarily considers the
availability of other employees who can cover the assign-
ment.'6 There is some evidence here that the Respondent
had other employees who were capable of carrying out
Wagner's assignment, but the Respondent cannot be
charged with the failure to utilize one of these employees
where the evidence is clear that Wagner chose to exercise
his Section 7 rights at the last possible moment.
Upon all of the relevant and material evidence in this
record, including the contents of the suspension letter given
to Wagner on May 13, I find that Wagner was disciplined
for failure to give his Employer timely notice that he would
not carry out his assignment to review and write a critique
of "The Girl of the Golden West." Nor do I consider the
evidence that John Hunter attended the opera and wrote a
review as a reason to negate this finding. Hunter is an
associate editor, not an art reviewer and critic, and he was
14 Redwing Carriers, Inc., et al, 137 NLRB 1545, 1547 (1962).
'5 N.L.R.B. v. Winn-Dixie Stores, Inc., 410 F.2d 1119(C.A. 5, 1969).
"6 Braswell Motor Freight Line, 189 NLRB 503 (1971).
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
not assigned to cover the Puccini opera. Insofar as the
record reflects, Hunter's attendance at the opera on the
evening of May 12 was pure happenstance, and there is no
evidence that his attendance or ability to write a review
was known to the Respondent when the suspension was
meted out to Wagner on the morning of May 13. Accord-
ingly, I find and conclude that, contrary to the allegation of
the complaint, Wagner was not disciplined by the Respon-
dent because he engaged in concerted protected activities.
CONCLUSIONS OF LAW
1. The Respondent, The Capital Times Company, is an
employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union, Newspaper Guild of Madison, Local 64,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent violated
Section 8(aX)(l) of the National Labor Relations Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER ' 7
The complaint herein should be, and it hereby is,
dismissed in its entirety.
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.
314