Citizen-News Co., Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1950

88 N.L.R.B. 1413 (N.L.R.B. 1950)

e
In the Matter of CITIZEN-NEWS COMPANY, INC. and ORAL E. BATIS,
AN INDIVIDUAL
Case No. 921-CA-383.Decided March 27, 1950 .
DECISION
AND
ORDER
On November 8, 1949, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief; the General Counsel filed
exceptions.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modification's set forth below.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by the discharge of Batis and Servoss,
as discussed below. However, unlike the Trial Examiner, we believe
and find that the Respondent also violated Section 8 (a) (1) in other
respects.2 The record shows that the Respondent's rules, which were
posted on the bulletin board in the composing room, purported to
prohibit interference "by conversation or otherwise" with the work
of other employees. However, the purported prohibition was not
generally applied. "Horse-play," visiting, and conversations during
working hours were condoned by the Respondent and were even par-
' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 We do not agree with the Trial Examiner 's ruling at the hearing dismissing the 8 (a)
(1) allegation relating to threatening employees with discharge . , The ruling , based on
the ground that the allocation was barred by the proviso in Section 10 (b) of the Act, is
hereby reversed . See Cathey Lumber Company, 86 NLRB 157.
88 NLRB No. 246.
1413
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipated in by Foreman Phelps, the supervisor in complete charge
of the composing room night shift . Moreover , employee agents of
the PTU , with which the Respondent had a collective bargaining.
contract covering the composing room employees , openly solicited
new employees for membership , collected dues, and annually conducted.
primary and general elections , all on company time . In addition,.
the PTU posted notices on a bulletin board . assigned to it by the
Respondent , causing groups of employees to gather around and engage.
in conversations during working hours . While there is no direct
evidence that the Respondent knew about this PTU activity,3 we infer
and find such knowledge on the part of the Respondent in view of
the small size of the composing room, the small number of employees,
working therein , and the open and continued PTU activity during
working hours4 There is no evidence that the Respondent took
disciplinary action against any employee for his use of company time
on behalf of the PTU.
In contrast, Foreman Phelps, a PTU member, accused employee
Batis, an ITU member , of, trying to organize composing room em-
ployees for the ITU, and told him, "You know if you do it on com-
pany time I could fire you for it ." While an employer has the
undoubted right to prevent interference with the work of his em-
ployees and to prohibit all union or other concerted activity on com-
pany time,' he may not do so discriminatorily as between unions,
nor may he threaten to discharge the employees engaged in such
activities for one union and not discipline employees so engaged for
another union . Moreover , as the Trial Examiner found, Superin-
tendent Winn interrogated employee Servoss as.to .ITU activity. In
addition , there is undisputed testimony that Winn had also asked
employee Moranda, a PTU member , whether anyone had been "pres-
suring" him to joint the ITU. Accordingly, we find that the.
Respondent by the above -described discriminatory conduct independ-
ently violated Section 8 ( a) (1) of the Act.('
2. We agree with the Trial Examiner 's conclusion that the.Respond-
ent discharged employees Batis and Servoss because of their member-
ship in and activities on behalf. of the ITU, and not , as contended
by the Respondent , because they "stole" company time. However,,
3 Superintendent Winn in effect admitted knowledge of PTU activity at the time PTU was
organized , but asserted he had stopped it at that time.
4 There are approximately 20 to 22 employees in the composing room , the dimensions of
which are 50 ft. by 100 ft. See Kallaher and Mee, Inc ., 87 NLRB 410 ; Quest-Shop Mark-
Brassiere Co., Inc., 80 NLRB 1149 ; N. L. R. B. v . Link-Belt Co., 311 U. S. 584, 603.
5 Peyton Packing Company, 49 NLRB 828 , 843, enfd . 142 F . 2d 1009 ( C. A. 5), cert.
denied 323 U. S. 730 ; Republic Aviation Corporation v. N. L. R . B., 324 U. S. 793 ; McKinnej.
Lumber Company, Inc., 82 NLRB 38.
e See Standard - Coosa -Thatcher Company , 85 NLRB 1358 ; Macon Textiles, Inc., 80 NLR$
1525 ; Hershey Metal Products Company, 76 NLRB 695.
CITIZEN-NEWS COMPANY , INC. 1415
-five are not in complete agreement with the reasons given by the Trial
Examiner to support his conclusion.7
We have found that the Respondent condoned violations of its com-
posing room rules , and violated Section 8 (a) (1) of the Act, in part,
by discriminatorily applying these rules . True, in January 1949, the
'Respondent posted a notice declaring that the "honeymoon is over"
and instructing the employees to stop visiting during working hours.
As the Trial Examiner found , however, these instructions were not
complied with, and ". . . Foreman Phelps as well as others con-
tinued to visit and play pranks on one another ." Batis and Servoss
.were not reprimanded for such activity. Moreover , there is no evi-
dence
°
that the Respondent attempted to put a stop to PTU activity on
company time.
On February 11, 1949 , employee Fairweather , a PTU director,
advised Superintendent Winn of a complaint by employee Meade, a
PTU member , that Batis and Servoss had been taking up his time
talking about the ITU. The record shows that at the same time Fair-
weather reminded Winn that another employee had also registered a
.similar complaint against Batis. Winn instructed Foreman Phelps to
prohibit such ITU activity during working hours . Thereafter, on
February 18, Fairweather again advised Winn of a similar complaint
by Meade against Batis and Servoss . Winn, after questioning Meade,
reported to Manager Palmer. The gist of Winn's report to Palmer
was that Batis and Servoss had intercepted Meade and taken up 30
minutes of his time talking about the ITU and telling him to join the
ITU if he wanted to keep his job . Winn also reported , as the record
shows, that Meade had then threatened to quit. Without having in-
terviewed Batis or Servoss , Winn and Palmer agreed that they believed
'Meade's complaint . Palmer then instructed Winn to discharge Batis
and Servoss , if Meade Would confront them with the complaint.
When Meade did so, Winn "fired" Servoss despite his vigorous denials
of culpability . Winn, according to Servoss , gave as the reason for the
discharge, "Trying to get those boys to join the ITU and threatening
their jobs ." 8 Thereafter, as a result of Palmer's criticism for not
discharging Batis as well as Servoss , Winn returned to the composing
room and also discharged Batis , likewise despite his denials of culpa-
bility.
The foregoing facts convince us that the reason assigned by the
Respondent for the discharge of Batis and Servoss, to wit : "stealing
4 The record does not support the Trial Examiner's finding that the Respondent argued
that the acceptance by Batis of vacation pay in 1938 was an additional reason for the
discharge.
9 In view of the Trial Examiner 's finding that Servoss' testimony was, on the whole, more
reliable than winn's, we hereby adopt Servoss ' version of the discharge.
1416 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
company time," was merely a pretext. - - Rather, we agree with the
Trial Examiner that the Respondent was motivated by Batis' and
Servoss' interest in the ITU, as is clearly shown by the absence of. any
bona fide attempt to determine Meade's culpability in initiating the
episode. This view is supported by the Respondent's application of
its rules in a discriminatory fashion against the ITU and in favor of
the PTU; its interrogation of employees just before the discharge of
Batis and Servoss; and its earlier threat to discharge Batis for ITU
activity. Under these circumstances, we believe and find, like the
Trial Examiner, that the Respondent discriminatorily discharged
Batis and Servoss in violation of Section 8 (a) (1) and (3) of the Act.
The Remedy
We have found that the Respondent, by its illegal acts, violated
Section 8 (a) (1) and (3) of the Act. We shall, therefore, order that
the Respondent cease and desist from and remedy its past misconduct.
We are of the opinion, upon the entire record. in this case, that the
commission in the future of other unfair labor practices may be
anticipated from the Respondent's conduct in the past. Like the
Trial Examiner, we shall also require the Respondent to cease and
desist from in any other manner infringing upon the rights guaran-
teed to its employees in Section 7 of the Act.
We have found that the Respondent discriminatorily applied its
rule against interference with the work of other employees for the
purpose of discouraging membership in the ITU. We shall enjoin
the Respondent from so applying such or any other rule 10 Our Order,
however, is not to be construed to preclude the Respondent from pro-
hibiting union activity among its employees during working hours,
provided that the Respondent does not do so in a discriminatory
manner.
ORDER
.
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Citizen-News Company,
Inc., Hollywood, California, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
.(a) Discouraging membership in any labor organization of its
employees, by discharging any of its employees, or by discriminating
See Cathey Lumber Company, supra.
10 See Jaques Power Saw Company, 85 NLRB 440.
CII1ZEN-NEW8 COMPANY, INC. '1417
in any other manner with regard to hire or tenure of employment,
or any term or condition of employment;
(b) Applying or enforcing its rule against interference with the
work of other employees, or any other rule, in a manner so as to dis-
criminate as between employees because of their union affiliation,
activities, or sympathies;
(c) In any other manner interfering with, restraining, or. coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Vincent Servoss and Oral Batis immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges;
(b) Make whole Vincent Servoss and Oral Batis for any loss of
pay each may have suffered by reason of the Respondent's discrimina-
tion against him, by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the date
of the Respondent's discrimination to the date of the Respondent's
offer of reinstatement, less his net earnings, if any, during said period;
(c) Post at its plant in Hollywood, California, copies of the notice
attached hereto marked Appendix A.- Copies of such notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by the Respondent, be posted by the Respondent
immediately upon receipt. thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words : "A DECISION AND ORDER,"
the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
1418 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership. in any labor organization
of our employees, by discharging any of our employees, or by
discriminating in any other manner with regard to their hire or
tenure of employment, or any term or condition of employment.
WE WILL NOT apply or enforce our rules against interference
with the work of our employees, or any other rule, in a manner
so as to discriminate as between our employees because of their
union affiliation, activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, to
engage in concerted activities .for the purpose of collective bar-
gaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
WE WILL offer to Vincent Servoss and Oral Batis immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to any seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or
tenure of employment, or any term or condition of employment,
against any employee because of membership in or activity on behalf
of any such labor organization.
CITIZEN-NEWS COMPANY, INC.,
Employer.
By ----------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for sixty (60) consecutive days
from the date hereof, and must not be altered, defaced, or covered by
any other material.
CITIZEN-NEWS COMPANY, INC.
INTERMEDIATE REPORT
1419
Mr. Jack R. Berger, for the General Counsel.
Messrs. Latham & Watkins, by Mr. R. W. Lund, of Los Angeles, Calif., and Mr.
Harlan G. Palmer, of Hollywood, Calif., for Respondent.
STATEMENT OF THE CASE
Upon a second amended charge filed on August 2, 1949, by Oral E. Batis, an
individual, the General Counsel of the National Labor Relations Board, herein
respectively called the General Counsel' and the Board, by the Regional Direc-
tor for the Twenty-first Region (Los Angeles, California), issued a complaint
dated August 8, 1949, against Citizen-News Company, herein called Respondent,
alleging that Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61
Stat. 136), herein called the Act. Copies of the complaint as amended and notice
of hearing were duly served upon Respondent and Batis.
With respect to the unfair labor practices the complaint as amended alleged,
in substance, that Respondent: (1) since about February 8, and particularly
on or about February 18, 1949, has interfered with, restrained, and coerced its
employees by threatening them with discharge, and by the discriminatory appli-
cation of company rules, for engaging in concerted activities in exercise of their
rights to self-organization, and (2) on or about February 18, 1949, discharged
Oral E. Batis and Vincent Servoss for engaging in such concerted activities.
On August 20, 1949, Respondent filed its answer admitting certain allegations
of the complaint with respect to the nature of its business, but denied that it
had engaged in any unfair labor practices.
Pursuant to notice a hearing was held at Los Angeles, California, on September
7, 8, and 9, 1949, before Horace A. Ruckel, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel and Respondent
were represented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues, was afforded all parties. At the hearing, the Trial
Examiner granted, in part, a motion by Respondent to make the complaint more
definite and certain, but denied a similar motion by the General Counsel re-
specting Respondent's answer?
At the conclusion of the hearing the parties waived oral argument' but were
granted until September 24, 1949, to file briefs with the Trial Examiner. Sub-
sequently, this time was extended by the Chief Trial Examiner to October 10. On
this date both the General Counsel and Respondent filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
'This term included particularly counsel appearing at the hearing on behalf of the
General Counsel.
2 The answer specifically admitted or denied each particular allegation of the complaint
but did not, as the General Counsel contended it should do, state the reasons for the
discharges. The undersigned held this to be in compliance with the Board' s Rules and
Regulations.
1420 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation having its principal office and place of
business at Hollywood, California, where it owns and prints the Hollywood Cit-
izen-News , a daily newspaper.
Respondent is also engaged within the State of California in buying, selling,
collecting, formulating, transmitting, and receiving news and intelligence. It is
a member of the Associated Press, and purchases the services of the United
Press, each one of which is a national organization engaged in the purchase, col-
lection, receipt , compilation , dissemination , and transmission of news and intelli-
gence from places within and without the continental limits of the United States.
Respondent, in addition to the news services of Associdted Press and United
Press, purchases syndicated material from various firms and syndicates main-
taining their principal offices outside the State of California, from which offices a
substantial portion of the materials, feature articles, cartoons, and photographs
purchased by the Respondent is sent and all the said materials purchased by the
Respondent from said syndicates and firms, is received from without the State of
California and is transmitted by means of interstate or foreign commerce to
Respondent's offices at Hollywood, California.
Respondent, through its newspaper, the'Hollywood Citizen-News, aids in the
Nation-wide distribution of various syndicated articles, cartoons, and news fea-
tures. Through its newspaper columns, it aids in advertising certain products
on a Nation-wide basis, which national advertising is approximately 10 percent
of the total advertising carried by said newspaper during the year 1948;
Various supplies, machines, and equipment used by Respondent in the prepara-
tion of the Hollywood Citizen-News are purchased in and shipped from States
other than the State of California, and from foreign countries, and in particular
news print is purchased by Respondent and shipped to Respondent 's plant in
Hollywood, California, from points located outside of the United States. During
the year 1948, Respondent purchased approximately $250,000 worth of news
print, all of which was shipped from points outside the United States to the
Respondent 's plant in Hollywood , California.
Respondent admits that it is engaged in interstate commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Typographical Union, and Printing Trades Union , Inc., are
labor organizations admitting employees of Respondent to membership. The
former, herein called the I. T. U., is affiliated with the American Federation
of Labor. The latter, herein called the P. T. U., is unaffiliated.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Batis and Servoss
Batis first came to work for Respondent in April 1947 , later resigning and
returning to work in July of that year. Servoss came to work in March 1947.
At the time of their discharge on February 18, 1949, Batis was employed as a
lineotype operator in Respondent 's composing room on the night shift, and
Servoss as a floorman and make-up man. Batis has been a member of I. T. U.
for approximately 28 years and . Servoss for about 2 years . Neither joined
P. T. U. with which Respondent has a contract.
CITIZEN-NEWS COMPANY, INC . . 1421
The record indicated that there has been , and is, considerable rivalry between
I. T. U. and the P . T. U. in the composing room, as well as some dissatisfaction
with the latter . Batis and Servoss testified without contradiction that they were
frequently questioned by members of the P. T. U. with regard to the advantages
of membership in the I. T. U.
On or about February 11, 1949, Meade , a fellow employee in the composing
room on the night shift , and a member of P. T . U., came to William Fairweather,
a director for that organization in the composing room, to complain that Batis
and Servoss had been talking to him about the I. T. U. Fairweather, who
was employed on the day shift, reported this conversation to Butler , his fore-
man, who suggested that Fairweather see Harold Winn, Respondent 's mechan-
ical superintendent . Fairweather did so and he and Butler proceeded to Winn's
office and laid the complaint before him . Winn replied that nothing could
be done about Batis and Servoss at that time.
About 11 p . in. on February 17, Servoss was stopped in the composing room
by Meade who asked him a question concerning seniority . Batis, who was
working nearby , entered into the conversation and all three walked over to a
pillar which served as a bulletin board, on which Respondent published seniority
lists and other notices, and the P. T. U. posted union announcements, where
the conversation was continued . The substance of the discussion concerned
Meade's position under the seniority system then in effect in the shop as com-
pared with what it would be in an I . T. U. shop. Meade , who was last on the
list of extras , expressed , the opinion that, to be completely protected , one would
have to work in an I . T. U. shop, to which Servoss and Batis assented. Batis
then went on to say that Clemens, secretary -treasurer for the I. T. U. in
Los Angeles , would be at a hotel in Hollywood the following Monday when
he would be available for questions concerning membership in the I. T. U. The
conversation between the three men consumed something less than 10 minutes,
and upon its conclusion they returned to their work .' Later, however, Meade
reported this conversation to Fairweather , claiming that he was being bothered
by Servoss and Batis.
On the following day, February 12, Fairweather again went to Butler and
told him what Meade had related to him, following which Butler and Fair-
weather, without Meade, called on Winn in the latter 's office where Phelps,
night-shift foreman , was present . Winn then called on Meade in the composing
room and questioned him personally about the conversation, after which Winn,
without Meade, went to Harlan Palmer, Respondent 's president and general
manager, and laid the matter before him.
Meade's complaint , as relayed to Palmer by Winn, according to the testimony
of the latter two ; was that Servoss had intercepted Meade and that he and
Batis had engaged him in a 30-minute conversation during which they told him
that he had better join the I . T. U. if he wanted to keep his job. Winn stated
that he believed Meade's story and Palmer said that he did, too . Palmer then
arranged for a "test" of Meade which is best described by quoting the former's
own testimony :
The WITNESS . . . . I told Mr. Winn that a test of our confidence in
Mr. Meade should be determined by whether or not Mr. Meade was willing to
3 Meade was not called as a witness , although still in Respondent ' s employ, and no con-
tention was made of his unavailability as a witness . Consequently, the testimony of
Servoss and Batis as to the circumstances attending their conversation with Meade stands
uncontradicted in the record.
1422 . DECISIONS • OF NATIONAL LABOR RELATIONS BOARD
confront Mr. Batis and Mr. Servoss with the same statements that had been
made by him to Mr. Winn, that if Mr. Meade would do that, confront those
two men, then my confidence in him would be complete, that Mr. Winn was to
ask Mr. Meade if he would confront Mr. Servoss and Mr. Batis with the
charges that he had made to Mr. Winn, that if he did so, that Mr. Winn was
then to discharge the two men on the ground of neglecting their work and
causing another (employee) to neglect his work in the discussion of union
matters. [Emphasis supplied.]
Winn thereupon approached Meade and told him that he might be called upon
to relate his story in the presence of Servoss and Batis and then interviewed
Servoss and Batis, in the presence of Phelps, and told them that Meade had
accused them of engaging him in conversation about the I. T. U. and threatening
him with the loss of his job. Servoss and Batis stated that they had merely
answered questions put to them by Meade, and heatedly denied having threatened
his job over which they pointed out they had no control. Winn then, according
to Servoss, asked Servoss if he had told some employees the night before 4 that
a representative of the I. T. U. was coming to town, and that he should join the
I. T. U., to which Servoss replied that he had said that the employees were
going to have an opportunity to talk to the representative. In accordance with
plan, Winn then called over Meade who stated in the presence of Servoss and
Batis that they had kept him from his work for about 30 minutes the previous
night. Servoss denied this, stating that Meade had initiated the discussion
and that he had only answered his questions. According to Winn's testimony,
Meade did not say whether Servoss had stopped him or whether he had stopped
Servoss. It has been previously found on the uncontradicted, credible testi-
mony of both Servoss and Batis, that the latter was, in fact, the case. Nor did
Meade say, according to Winn's testimony, that Servoss and Batis had threatened
his job. The testimony of Servoss, however, which the undersigned accepts as
being more reliable on the whole than that of Winn, who exhibited some difficulty
in remembering all the conversation, is that Meade did claim that Servoss had
stopped him, which Servoss denied. Winn, according to Servoss, then said :
"Then you admit talking to him." Servoss started to reply when Winn inter-
rupted him by saying : "That is all ; you are fired." Meade then offered to
resign, to which Winn responded : "No, I am not going to let a fellow like this
run you off. You are going to stay here and Servoss is fired."
Winn reported to Palmer the result of his confrontation of Servoss and Batis
with Meade, only to be reprimanded by Palmer for not complying with his in-
structions to discharge Batis also. Palmer's further testimony, when questioned
as to whether Winn had also exceeded his instructions by not preventing Servoss
and Batis from interjecting their own explanations , was as follows:
TmAL EXAMINER. I understood you, Judge,' to say you also criticized him
for exceeding his instructions in that to some extent he asked Servoss and
Batis for their side of the story, and you told him his instructions were
4 The undersigned finds that this employee was Meade. As has been found , W inn, previous
to talking to Servoss and Batis, had examined Meade concerning the conversation. Winn,
while testifying, denied that Fairweather had told him about Clemens' visit to town and
stated that Servoss was the source of his information. The undersigned finds that Winn
had this information before interviewing Servoss and Batis on February 18, and that he
obtained it from Meade.
6 Palmer testified that he had formerly been a judge of the Justice Court of Los Angeles
Township.
CITIZF,N-NEWS, COMPANY, INC. 1423
merely that Mr. Meade was to repeat his statement; in the presence of Mr.
Batis and Mr. Servoss and that was sufficient, and that he had exceeded his
instructions by going further.
The WITNESS. No, your Honor. I didn't mean to say that he had exceeded
his instructions by going further.
TRIAL EXAMINER. Well, he did, didn't he?
The WITNESS. No, I don't think he did.
TRIAL EXAMINER. You told us on direct that all Mr. Meade had to do was
to confront Mr. Batis and Mr. Servoss and repeat what he had said, and that
was the test of his truth.
The WITNESS. That is correct.
Trial EXAMINER. And that if he repeated that, it was true, and it didn't
make any difference what Batis or Servoss said. Therefore, it was totally
unnecessary to ask them?
The WITNESS. That is right. It was unnecessary!
After this interview with Palmer, Winn returned to the composing room and
discharged Batis. Winn testified that the only reason given Servoss and Batts
for discharging them was "stealing company time."
At the hearing Respondent contended that an additional reason for discharg-
ing Batis was that in the summer of 1938, when he went on his vacation, he
accepted an overpayment in his vacation check of $125 which Respondent viewed
as a dishonest act. Respondent did not discharge him at the time'however, and
agreed to an arrangement whereby Batis reimbursed Respondent in full. Batts'
explanation is that when he received his check he called Phelps' attention to the
overpayment and was told to disregard it, that Respondent knew what it was
doing and frequently gave an employee a small bonus for unusually good work.
Batis' testimony on this point stands uncontradicted in the record inasmuch as
Phelps was not called as a witness.'` The undersigned believes and finds that this
incident played no part in Respondent's decision on January 18 to discharge Batis,
and was pure afterthought. As has been found, Winn did not see fit to discharge
Batis at the time he discharged Servoss, and did so later only after being repri-
manded by Palmer, and then gave as his reason only the events of February 17.
Nor, so far as the record reveals, was the incident mentioned by either Palmer or
Winn when the former gave the latter his instructions concerning the discharges.
Respondent adduced evidence to show that, whereas for some time past a
certain amount of "horseplay" was tolerated in the composing room, in the early
part of January it posted a notice and issued a circular declaring that the "honey-
moon (was) over" and insisting that the employees stop visiting during working
hours. The record shows, however, that these instructions were not fully com-
plied with, and that Foreman Phelps, as well as others, continued to visit and
play pranks on one another. Moreover, there is no evidence to show that either
6 Respondent, in its brief, defends its failure to ask Servoss and Batts for their side of
the story in the following words :
Nothing was to be gained by individually asking' Batts and Servoss for their side
of the story in view of the common experience that in such a situation a denial is
to be expected. As a matter of fact if Palmer had interviewed Batts and Servoss and
they gave him the same story as they related at the trial, Palmer could not have
believed them..
This method of reasoning needs no comment except to note again that Respondent, in spite
of, Meade's asserted reliability, did not see fit to call him as a witness.
7 Phelps is no longer employed by Respondent but no contention was made that he was
not available as a witness.
1424 DECISIONS, OF' NATIONAL LABOR RELATIONS BOARD
Servoss or Batis was worse than other employees in this respect, and none to
show that either of them had ever been warned or reprimanded.
Conclusions as to the Discharges
As has been found, it was Meade who stopped Servoss in the composing room
on February 17, and not vice versa. Batis was drawn into the conversation
immediately thereafter. The discussion which followed concerned Meade's place
on the seniority roster, a question which was resolved by .consulting the seniority
lists which Respondent itself maintained on its bulletin board. It would be in-
comprehensible that Respondent did not expect and, .indeed, require its employees
to consult its posted announcements. The discussion between Meade, Servoss, and
Batis consumed not more than 10 minutes, and there is no showing in the record
that the work of any of them was neglected. These facts suggest strongly that it
was not the time taken at the bulletin, board to resolve a question of seniority
which Respondent objected to, but rather the suggestion, during the conversa-
tion, that an officer of the I. T. U. would arrive in town the following Monday to
meet employees interested in that organization. This fact, as has been found,
came to Winn's attention when he talked with Meade previous to questioning
Servoss and Batis. Meade himself, as was Phelps, was a member of the P. T. U.,
a rival labor organization, and Fairweather, who brought the entire matter to
Respondent's attention, was an officer.
That Respondent was motivated by Servoss' and Batis' interest in the I. T. U.
rather than by the actual time that they, together with Meade who was not
discharged, spent in discussing union matters, is supported by the unusual. in-
structions which Palmer gave Winn. Not only did Respondent not make any
investigation to discover for itself what had transpired on February 17 and to
fix the responsibility, but it contrived a plan whereby the real facts could not
come to light. Palmer carefully couched his instructions to Winn in such a
fashion as would fix the responsibility of Servoss and Batis beforehand. His
orders did not include a questioning of any of the three ; on the contrary, they
specifically excluded it to the extent of foreclosing and discrediting any explana-
tion which Servoss and Batis might volunteer. Meade was to relate his version
of the conversation with Servoss and Batis as he had related it to Winn. If he
did so, his account was to be credited in full, and Servoss and Batis were to be
discharged. As Palmer frankly admitted while testifying, it made no differ-
ence what they said, or if they said anything at all. This stage setting, so con-
trived, Palmer must have realized furnished 'no test of Meade's veracity. The
mere repetition of his account of his conversation with Servoss and Batis, with- .
out more, was an empty formula, as devoid of value in demonstrating his truth-
fulness as it was of determining his accuracy. Meade was guaranteed in advance
that he would be believed and Servoss and Batis disbelieved.
There are occasions, it is true, where an employer, reposing special confidence
in a supervisory employee, accepts his account of a controversy in preference to
that given by.nonsupervisory employees; and other occasions where, even though
a supervisor may be disbelieved, the employer, for the sake of plant discipline,
particularly where the supervisor has already exercised his discretion in sus-
pending or discharging an employee, may determine to support him at all costs.
These. circumstances did not exist here. Winn had no firsthand information of
the events in question, his own veracity was not at stake, and he had made no
decision to discipline. Neither the prestige of Respondent nor its plant discipline
CITIZEN-NEWS COMPANY, INC. 1425
was at stake. After receiving orders from Palmer to discharge both Servoss
and Batis, Winn complied only to the extent of discharging the former, an indi-
cation that he himself found it difficult to defend the discharge of Batis.
While the unreasonableness of an employer in discharging an employee is
never the ultimate fact to be established, where it is of such a degree' as exists
here it must be given great weight in determining his motive. Some investiga-
tion as to the facts upon which the ultimate penalty of discharge is based, is a
course of action which ordinarily commends itself to a fairminded businessman
uninfluenced by extraneous considerations, and it would be supposed that it
should commend itself no less to one who was also a former judge of the Justice
Court of Los Angeles Township.
The undersigned concludes and finds that Respondent discharged Servoss and
Batis because of their membership in the I. T. U. and their concerted activities
with other employees for their mutual aid or protection and not for the reasons
assigned by the Respondent In doing so, Respondent discouraged membership
in the I. T. U. and interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. The activities of Respondent set forth in Section III, above, occurring in con-
nection with Respondent's operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since. it has been found that Respondent has engaged in certain unfair labor
practices, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action which the undersigned finds will effectuate
the policies of the Act.
It has been found that Respondent discharged and discriminated in regard
to the hire. and tenure of employment of Vincent Servoss and Oral Batis. He-
will, therefore, recommend that Respondent offer them immediate and full
reinstatement to their former or substantially equivalent positions 8 without
prejudice to their seniority or other rights and privileges, and make them whole-
for any loss of pay they may have suffered by reason of Respondent's discrimina-
tion against them by payment to each of them of a sum of money equal to that
which he normally would have earned as wages from the date of his discharge
to the date of Respondent's offer of reinstatement, less his net earnings during.
said period.9
CONCLUSIONs OF LAW
1. International Typographical Union, affiliated with the.American Federa-
tion of Labor, and Printing Trades Union, Inc., unaffiliated, are labor organi-'
zations within the meaning of Section 2 (5) of the Act.
8In accordance with the Board's consistent interpretation of the term, the expression,
"former or substantially equivalent employment" Is intended to mean "former position
whenever possible and if such position is no longer in existence, then to a substantially
equivalent position." See The Chase National Bank of the City of New York, San Juan,._
Puerto Rico, Branch, 65 NLRB 827.
D Crossett Lumber Co., 8 NLRB 440, 497-498.
1426 DECISIONS OF.: NATIONAL; LABOR RELATIONS BOARD
.
2. By discriminating, in regard to the hire, and. tenure of employment of
Vincent Servoss and Oral Batis, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law,
the undersigned recommends that Respondent, Citizen-News Company, Inc.,
Hollywood, California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization by discharging or
refusing to reinstate any of its employees or in any manner interfering with,
restraining , or. coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining' or other.
mutual aid or protection, and to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Vincent Servoss and Oral Batis immediate and full reinstate-,
ment to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges ;
(b) Make whole Vincent Servoss and Oral Batis for any loss of pay they may
have suffered by reason of Respondent's discrimination against them by pay-
ment to each of them of a sum of money as set forth in the section of this
Report entitled "The remedy" ;
(c) Post in its plant at Hollywood, California, copies of the notice attached
hereto as Appendix A. Copies of said notice, to be furnished by the Regional
Director of the Twenty-first Region, shall, after being duly signed by an official
representative, be posted by Respondent immediately upon receipt thereof and
maintained by it for a period of sixty (60) days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that such notices are
not altered, defaced, or covered by other material ; and
(d) Notify the Regional Director for the Twenty- first Region in writing,
within twenty (20) days from the date of the receipt of this Intermediate Re-
port, what steps it has taken to comply therewith.
It is further recommended that, unless Respondent shall, within twenty (20)
days from the date of the receipt of this Intermediate Report, notify said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring Respond-
ent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
CITIZEN-NEWS COMPANY, INC . 1427
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original. and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate by
precise citation the portions of the record relied upon and shall be legibly printed
or mimeographed , and if mimeographed shall be double spaced . Proof of service
on the other parties of all papers filed with the Board shall be promptly made
as required by Section 203.85. As further provided in said Section 203.46 should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, conclu-
sions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 8th day of November 1949.
HORACE A. Ruci xr,
Trial Examiner.
APPENDIX A
NOTICE To ALL .EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
]Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the
exercise of the right to self-organization, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all of such
activities except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7
thereof, by discharging or refusing to reinstate any of our employees, or in
any other manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of their employment, because of their partici-
pation in concerted activities for their mutual aid or protection, or by any
like or related conduct.
WE WILL OFFER to Vincent Servoss and Oral Batis immediate and full re-
instatement to their former or substantially equivalent positions, without
prejudice to any seniority or other rights and privileges previously enjoyed.
WE WILL MAKE Vincent Servoss and Oral Batis whole for any loss of pay
suffered as a result of the discrimination against them.
882191-51-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain, and free from becoming
members of any labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended Act..
CITIZEN-NEW s COMPANY, INC.,
Employer.
By ----------------------------------
(Representative) (Title)
Dated ---------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.