Intersuburban Hometown Newspapers

National Labor Relations Board - Board Decisions

Mar 4, 1970

181 N.L.R.B. 462 (N.L.R.B. 1970)

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intersuburban Hometown Newspapers and Richard
A. Sherer. Case 21-CA-8297
March 4, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On September 9, 1969, Trial Examiner Louis S.
Penfield issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that the complaint be
dismissed. Thereafter, the Charging Party filed
exceptions to the Trial Examiner's Decision and a
supporting brief and the Respondent filed a brief in
support of the Trial Examiner's Decision.
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.
The Board has reviewed the rulings of the Trial
Examiner Fade at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the complaint be, and it hereby is,
dismissed.
'The Charging Party excepts to some of the Trial Examiner 's credibility
resolutions It is the Board 's established policy, however, not to overrule a
Trial Examiner 's resolutions as to credibility unless, as is not the case here,
the preponderance of all the relevant evidence convinces us that they are
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Trial Examiner: This proceeding
was heard before me in Los Angeles, California,- on
February 19, 1969, upon a complaint of the General
Counsel and answer of Intersuburban Hometown
Newspapers, herein called Respondent. Prior to the
hearing, the Regional Director granted a motion to
intervene filed by Los Angeles Newspaper Guild, Local
69, American Newspaper Guild, AFL-CIO-CLC, herein
called the Guild.' The issues litigated were whether
Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act. Upon the entire record, including consideration
of briefs filed by the General Counsel and Respondent,
and upon my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Intersuburban Hometown Newspapers is a corporation
engaged in a weekly publication of newspapers with its
offices and plant located in El Monte, California At this
location Respondent publishes the La Puente Valley
Journal, the El Monte Herald, the Rosemead Review, and
the San Gabriel Review on a weekly basis. During the
past year, in the course and conduct of its publishing
operation, Respondent/performed services valued in excess
of $500,000, and in connection therewith purchased goods
and services valued in excess of $50,000, which came to it
directly from suppliers and manufacturers located outside
the State of California. I find that Respondent is an
employer engaged in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act, and
assertion of jurisdiction in this proceeding to be
appropriate.
11. THE LABOR ORGANIZATION INVOLVED
The Guild is now, and at all times material herein has
been , a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent
unlawfully interrogated a prospective employee about his
membership in the Guild, and that thereafter Respondent
refused to hire such employee because of his Guild
membership or other activities on behalf of such union.
Respondent denies engaging in unlawful interrogation, and
asserts that its failure to hire such employee was not
unlawfully motivated.
The incidents which give rise to this proceeding took
place in October 1968 One of the four weekly papers
which Respondent publishes regularly comes out on
Tuesdays, and the other three come out on Wednesdays
Malcolm John McLean, more generally known as Jack
McLean, is the editor of each of Respondent's
publications. He exercises full editorial responsibility for
each one including the hiring and direction of all
employees in the editorial department. Richard H. Miller,
as the publisher of the four papers, supervises the entire
operation, which includes not only the editorial
department but also the mechanical and 'bookkeeping
departments. Miller is McLean's immediate superior.
McLean testified that for approximately 4 months prior to
October the editorial department had been comprised of
two full-time employees and two part-time employees in
addition to himself. McLean anticipated that by the end
of October 1968 two employees in the editorial
department would be leaving. This would leave the
department with one full-time and one part-time
employee, and it would become necessary for McLean to
The complaint issued on December 16, 1968, and is based on a charge
filed with the National Labor Relations Board, herein called the Board, on
October 22, 1968 Copies of the complaint and the charge have been duly
served upon Respondent
181 NLRB No. 65
INTERSUBURBAN HOMETOWN NEWSPAPERS 463
obtain replacements in order adequately to carry on the
work of the department Initially it was McLean's hope
that he would be able to hire two full-time employees as
replacements
From time to time persons would come to
Respondent's office seeking jobs in the editorial
department It was McLean's practice to have all such
persons fill out application forms and thereafter to
interview them Between May of 1968 and November of
the same year 10 persons had applied for work with
Respondent McLean had interviewed such applicants and
had retained their applications in a file
Employers' Clearing House Agency, Inc , herein called
the Agency, is an employment agency serving the Los
Angeles area Its function is to locate jobs for applicants
who seek its services Jeffrey Carl Johnson testified that
from June 1968 through January 1969 he had been an
employee of the Agency 2 Johnson's job with the Agency
was to interview persons seeking employment, and
thereafter to communicate with prospective employers in
an endeavor to locate appropriate jobs According to
Johnson, in some instances employers would call the
Agency directly, but more frequently the Agency would
initiate the action by telephoning employers who might
have needs Prospective employers were often chosen from
listings in the yellow pages of the telephone book If an
employer called signified that he had, or might in the
future have, a vacancy, the agency employee would obtain
all the information which he could, and use it to fill in an
agency order form This order form, among other things,
had spaces for a description of the position, the location
of the firm, the wages for the job, the experience and
education required, the permanent or temporary character
of the job, and the existence or nonexistence of a union
contract requiring membership Copies of this so-called
order form, when filled out by the agency employee were
thereafter circulated to all branches of the Agency
On October 10, 1968, Johnson interviewed a young lady
applicant who had a degree in journalism Immediately,
Johnson, who up until then had had no dealings with
Respondent, telephoned and talked with McLean
concerning the possibility of job openings which might suit
the qualifications of this young lady Johnson testified that
McLean advised him that he would be needing two
employees in the editorial department in the near future
Johnson asked McLean a number of questions and,
although McLean made no specific request that he do so,
Johnson embodied the information that he obtained in one
of the Agency's standard work order forms This form
sets forth that McL. an had two openings for a
"writer-trainee", would accept either a male or a female,
that some experience was required, and that the applicant
must have a college degree in English or journalism The
positions were described as permanent with union
membership not required In the place for salary, Johnson
had written in "$120-$130" per week According to
Johnson he obtained such a salary figure from McLean
while talking on the telephone McLean acknowledges the
communication from the Agency, but denies placing a
specific order for any applicant, and denies telling
Johnson that he was prepared to pay the $120 to $130 per
week figure that Johnson put down '
Although it is not shown whether or not the young lady
applicant ever approached Respondent for a job, it
appears that shortly thereafter an applicant named
Richard Sherer sought agency aid in seeking employment
in the newspaper industry Sherer was a university
graduate with a degree in English He had had high-school
and college newspaper experience, and more recently had
been employed in the editorial department of the Los
Angeles Herald- Examiner , a large metropolitan area daily
newspaper While employed at the Herald- Examiner,
Sherer had become a member of the Guild, and he had
joined with other Guild members when the Guild called a
strike at the Herald-Examiner on December 15, 1967
Such strike was still in progress in October of 1968 After
the onset of the strike, Sherer had had a few part-time
jobs with other publications, but had had no full-time
employment with any newspaper Johnson deemed Sherer
to be qualified for the openings which he understood
Respondent to have, and accordingly arranged an
appointment for Sherer with McLean
Pursuant to the arrangements made by the Agency,
Sherer visited Respondent's office on October 16 and was
interviewed by McLean One other person, presumably an
employee of Respondent but not identified in the record,
was present during the course of such interview, which
consumed from 15 to 20 minutes According to Sherer
McLean asked him about the strike at the
Herald-Examiner and "why [he] was still a member of the
Guild " Sherer replied that the Guild contract with the
Herald-Examiner required membership, and that while the
strike was still in progress the Guild would not permit
withdrawals Sherer states he was then asked to fill out an
application, and he proceeded to do so on the office
typewriter In the space for "Wages Expected" Sherer
filled in $120 to $130 per week, which were the amounts
which the Agency had led him to believe that Respondent
was prepared to pay McLean reviewed Sherer's
application, a resume of his work and educational
experience, and some samples of Sherer's work
According to Sherer, McLean then told him that there
were two positions open in Respondent's editorial
department, with one to be filled immediately and the
other within the next couple of weeks McLean then asked
how soon Sherer would be available for work, to which
Sherer replied that he could come to work by October 18
At that point, Sherer states, the other person in the room
remarked, "Something to the effect, good, sign him up "
Sherer states that McLean then concluded the interview
by telling him that while as managing editor he had
"pretty much absolute authority" he was still required "to
clear salaries and hirings with the publisher because of the
salary issue and that he would have to talk with the
publisher and he would let [Sherer] know in a few days,"
There is no place on the job application at which an
applicant can signify whether he seeks part-time or
full-time employment Neither Sherer nor McLean claim
that this question was raised or discussed between them
during the the course of this interview Nor does either
contend that salary figures were discussed
McLean's testimony concerning this initial interview
differs in certain particulars McLean acknowledges that
he agreed to meet Sherer following an agency request in
'Johnson testified that during the time he was performing his duties for
the Agency he went by the name of Jeff Burns
'Johnson was less than emphatic about the source of this salary figure
although he did attribute it to McLean As we shall see below it is a
figure far higher than the top wage Respondent was then paying to any of
its editorial department employees however experienced Under the
circumstances it seems doubtful that McLean would have named such a
salary range when talking to Johnson Thus I credit McLean s denial and
find that Johnson obtained the salary figures from sources not fully
established in the record
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Agency represented that Sherer appeared to
have good editorial qualifications . According to McLean,
Sherer presented him with a resume and some samples of
his work , and was immediately asked to fill out the
application form . McLean insists that prior to reviewing
the application he made no mention of Sherer's
membership in the Guild , or of the strike at the
Herald -Examiner . McLean acknowledges , however, that
after noting that Sherer had worked for the
Herald -Examiner , at some point during the interview he
asked Sherer why he did not seek work there . McLean
states he asked this because he had been advised that the
Herald -Examiner was seeking employees in its editorial
department . Sherer replied that he could not seek
employment at the Herald -Examiner because he was still
a member of the Guild , and "that while they were on
strike he could not drop his union card or Guild card."
McLean specifically denies that he initiated any question
concerning Sherer ' s membership in the Guild . According
to McLean , the interview terminated after McLean told
Sherer that he "would notify him , get in contact with him
if I was to hire him." While neither one asserts that either
salary or part - time work were discussed during the course
of the interview , McLean states that from the $120 to
$130 per week figure in the application he assumed Sherer
to be seeking full-time employment.
On Friday, October 18 , Sherer testified that he
telephoned McLean to ask if a decision had been reached
as to his hiring. According to Sherer , McLean replied that
he had not as yet had an opportunity to talk to the
publisher but expected to do so later that afternoon, and
then would be able to give Sherer an answer . McLean did
not call Sherer at any later time and is unable to recall
any telephone conversation with Sherer taking place on
that day.
McLean testified that it had been his hope to replace
the two departing employees (one a part -time and one a
full-time) with two full -time employees . On Friday,
October 18 , however, when McLean for the first time
conferred with publisher Miller concerning these
replacements , Miller turned down his request for full-time
employees and directed McLean to hire two part-time
workers. Miller advised McLean that not only would the
budget not permit expenditures for full -time employees,
but that Miller did not believe that full -time employees
were essential to meet the basic work needs of the
editorial department . Miller pointed out that McLean's
major need was for assistants available to type and rewrite
on Mondays and Tuesdays in anticipation of the Tuesday
and Wednesday publishing deadlines. Part -time help
available at these times , he claimed , would suffice to meet
such needs.
Following Miller ' s directive , McLean reviewed the
applications on file. One applicant was an Ed Weil, a
recent high school graduate with high school newspaper
experience who had previously submitted stories to
Respondent of high school events . McLean had regarded
him as competent and reliable , and since Weil had
indicated that he wished part -time work while attending
school , McLean offered him one of the part -time jobs
with his hours tailored to meet the publishing deadlines.
Weil commenced work on the following Monday, October
21. At the time of the hearing Weil was still working for
Respondent at a wage rate of $1.65 an hour working
between 20 and 24 hours per week.
On the following Monday, October 21 , Sherer again
telephoned McLean . At that time , according to Sherer,
McLean told him, "That as long as [he] had a Guild card
[he] was - I think his words were - sort of out of it as
far as we, meaning the paper , were concerned."
As to Monday, October 21, McLean testified that first
he received a call from the Agency inquiring about the
hiring of Sherer. McLean told the unidentified agency
representative that he was not planning to hire Sherer
because he intended to hire only part-time personnel.
According to McLean , the Agency representative asked
him if he knew of a way in which Sherer could drop his
union card . McLean replied that he knew nothing about
the matter McLean specifically denies having a discussion
with the agency representative concerning Sherer's union
membership . No agency representative testified concerning
this telephone conversation . Later that same day, McLean
states he received a telephone call from Sherer . McLean,
however , denies making the remarks which Sherer
attributes to him . McLean insists that at this time he did
no more than advise Sherer that he could not hire him
because he "had hired part-time personnel ." McLean
states that Sherer did ask him if he "knew any way
[Sherer] could drop his union card", to which McLean
replied that he "knew nothing about the Union." McLean
unequivocally denies that during the course of this
conversation he signified in any way that he was rejecting
Sherer because of his membership in the Guild. He further
denies that he initiated any questions with respect to
Sherer ' s Guild membership. McLean insists that Sherer
was dropped from consideration solely because he
regarded Sherer as primarily interested in full -time work
opportunities and that such were foreclosed after Miller's
directive.
On October 28, following the departure of the second
editorial department employee, McLean hired Ron
Lander, also as a part-time employee . Like Weil, Lander
was also a high school graduate with no experience except
on school papers also seeking part -time work. Lander was
also paid $1 .65 per hour and continued to work on a
part-time basis , also averaging from 20 to 24 hours per
week . Since October , Respondent's editorial department
has consisted of three part -time employees , Ron Lander,
Ed Weil, and Judy Hammond. Hammond , an employee of
some years ' standing , receives $1.75 per hour. The one
full-time employee in the editorial department is Pat
Rand . Pat Rand has been in Respondent 's employ for
over 7 years, and receives slightly over $100 per week. It
does not appear that at any time Respondent has ever
paid anyone in the editorial department a salary as high
as $120 to $130 per week
A. Discussion of the Issues and Conclusions
The General Counsel 's case rests upon his claim that on
October 16, McLean unlawfully interrogated Sherer
concerning his membership in the Guild , and thereafter
used such knowledge discriminatorily to refuse Sherer
employment and to hire nonunion employees. The General
Counsel can prevail only if the testimony of Sherer be
credited as to the intitial interview and more particularly
as to the October 21 telephone conversation with McLean.
As we have seen , McLean contradicts Sherer 's testimony,
not only denying any unlawful interrogation on October
16, but also denying Sherer ' s Guild membership to be a
factor in Respondent ' s refusal to hire him. Instead
Respondent insists its failure to hire Sherer to have been
motivated solely by economic considerations.
The October incidents relating to Sherer do not arise in
a context of widespread openly expressed hostility on
Respondent's part either toward unions generally or
INTERSUBURBAN HOMETOWN NEWSPAPERS 465
toward the Guild in particular Even if we assume that
Respondent , like many employers, would have preferred
to remain unorganized , nothing in this record signifies
that it had undertaken to express general opposition to
organization of its employees even on a lawful basis Nor
did the incident with respect to Sherer come in the face of
an integrated organizational drive where union recognition
seemed an imminent prospect if not headed off
The Sherer incidents arose at a time when Respondent
was considering qualified applicants to fill two prospective
vacancies It was reviewing applications it had on file and
taking new applications from whatever sources they might
come By happenstance at that time, Sherer was referred
as a qualified applicant by the Agency, a source that had
no union connection whatsoever McLean's first
knowledge of Sherer's Guild affiliation came in his initial
interview with Sherer on October 16 While some dispute
exists as to the precise sequence of events, clearly at some
point in the interview McLean was given, and reviewed, a
resume of Sherer's working experience showing Sherer's
last full-time job to have been in the editorial department
at the Herald-Examiner McLean, as a newspaperman
knowledgeable of the Los Angeles area, was undoubtedly
aware not only of the 10-month old strike at the
Herald-Examiner but also that prior to this strike Guild
membership had been a condition of employment Under
the circumstances, McLean's questions as to Sherer's
present relationship with the Guild, and his current
interest in presently available editorial positions at the
Herald-Examiner do not seem out of line, or to take place
in a setting calculated to be coercive Sherer's testimony
does not signify that McLean made threats or expressed
concern as to affiliation at any point in the interview On
the contrary, a fair appraisal of the testimony of both
Sherer and McLean suggests that McLean viewed Sherer,
regardless of union affiliation, as a qualified applicant for
a full-time job who would be fully considered for such job
if and when McLean obtained a clearance from the
publisher Significantly at this time McLean made it quite
clear to Sherer that such clearance was a condition
precedent to his hiring anyone It must be remembered
that at the time of the interview, McLean was still hoping
to hire full-time replacements It is understandable that
McLean would prefer full-time replacements since a
maximum staff of full-time employees would inevitably
lighten the editorial load that was McLean's ultimate
responsibility The two might well have discussed both
part-time and salary issues at that time, but I do not
regard their failure to do so as evoking an inference of
unlawful motivation upon Respondent's part
The part-time issue was still to be resolved, hopefully,
as far as McLean was concerned, in favor of full-time
employees The salary rate noted in Sherer's application
was obviously higher than McLean had been paying
others, but this was a matter that could have been
reserved for discussion if and when a job offer was to be
made Under all the circumstances I find, contrary to the
claim of the General Counsel, that on October 16,
Respondent did not unlawfully interrogate Sherer in
regard to his Guild membership in violation of Section
8(a)(1) of the Act
On October 18, McLean, as he had earlier told Sherer
he must consulted the publisher, Richard Miller, for the
first time with regard to the replacements that he needed
It stands undisputed that Miller directed that both
replacements be part-time employees As we have seen,
the reasons advanced by Miller were both budgetary and
based on Miller's conviction that the work in the editorial
department could be satisfactorily performed without
undergoing the expense of full-time employees The
position does not seem unreasonable and is one to which
Respondent has adhered ever since Presumably the news
that he could not have even one full -time replacement
came to McLean as a disappointment McLean accepted
Miller's decision, however, and from the applications then
on file selected Ed Weil Weil was 19 years of age, known
to McLean to be reliable, had no college degree or prior
newspaper experience, and sought only part-time work
When a second vacancy arose a short time later, McLean
filled it with Ron Lander who was the same age as Weil
and similarly situated and qualified Both these new
employees were paid $1 65 per hour for approximately
half-time regular work A full 40-hour week on such a
basis would amount to only $64 per week, about half of
what Sherer had indicated he was seeking Both Weil and
Lander were still working at the same rate and on the
same basis in February 1969, and no new full-time
employees had been hired
As we have seen, McLean advances as the sole reason
for rejecting Sherer his belief that Sherer sought only
full-time employment Admittedly, however, McLean
never tested the issue by making an offer of part-time
work to Sherer This raises a suspicion that unlawful
motivation may have been a factor in his failure to do so
I am not convinced, however, that such suspicion has
sufficient substance to support an inference, unless we are
to credit Sherer's version of his telephone conversation
with McLean on October 21, the substance of which
Sherer emphatically denies I regard it as most doubtful
that McLean actually made the statements that Sherer
attributes to him
Sherer was a dedicated union adherent who had been
having problems obtaining satisfactory employment ever
since he Herald-Examiner strike The strike and the
Guild admittedly had been the subject of discussion
between Sherer and McLean Sherer was subsequently
rejected for employment by McLean It would be
understandable for one in Sherer's position to convince
himself that somehow his union affiliation played a role in
his being denied the job I regard this, however, as more
in the line of wishful thinking than as likely to represent
what happened Absent a background of anti-union
animus, McLean's version of the October 21 telephone
conversation and his reasons for rejecting Sherer seemed
the more credible It was not unreasonable for McLean to
conclude that Sherer only sought full-time work, and it
was equally reasonable that he might conclude that an
applicant who had completed his education, had had and
now needed full-time work might regard a part-time job
as no more than a stop gap Unable to fulfill the hopes he
had held to hire full-time employees, it was thus logical
that McLean should turn to those applicants whose
situation made them available only for the part-time jobs
he could offer With such a reasonable explanation for his
refusal to hire Sherer available, I find it difficult to believe
that a person of McLean's long experience in the
publishing industry would, as Sherer claims, expressly rest
such refusal to hire on Sherer's Guild membership I deem
it to be the more likely, and accordingly I credit
McLean's version of the October 21 telephone
conversation Therefore, I find that during the course of
such conversation McLean did no more than tell Sherer
that he was hiring part-time personnel exclusively and thus
was turning down Sherer for the job I further find that
any references in such conversation to the Guild were
brought up by Sherer himself and that McLean's replies
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereto were noncommittal . Under the circumstances,
Respondent 's reasons for refusing employment to Sherer
appear to have been based upon economic considerations,
and not to have been unlawfully motivated.
Upon the basis of the foregoing , I find that the General
Counsel has not established by a preponderance of the
evidence that Respondent engaged in conduct interfering
with employee rights 'in violation of Section 8(a)(1) of the
Act, or that Respondent discriminatorily refused
employment to Sherer in violation of Section 8(a)(3) of
the Act, and I shall recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding , I make the
following conclusions of law:
1. Respondent , Intersuburban Hometown Newspapers,
is, and has been at all times an employer within the
meaning of Section 2(2) of the Act engaged in a business
affecting commerce within the meaning of the Act.
2. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by
unlawful interrogation of Sherer, or by any other conduct
3 Respondent, has not unlawfully refused to hire
Richard A. Sherer on October 18, 1968, or thereafter
because of his membership or activities in the Guild in
violation of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law , and upon the entire record in this case,
it is recommended that the complaint be dismissed in its
entirety