Journal Gazette Co.

National Labor Relations Board - Board Decisions

Feb 9, 1961

130 N.L.R.B. 69 (N.L.R.B. 1961)

JOURNAL GAZETTE COMPANY 69
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage membership
in any labor organization: ... .
The General Counsel in his brief cites Continental Oil Company v. N.L.R.B.,
113 F. 2d 473 (C.A. 10), and Southeastern Pipe Line Company, 103 NLRB 341,
for the proposition that transfer of an employee to another job may be an act of
discrimination even though the job was better. An examination of those cases re-
veals the employees were transferred to less desirable jobs. Here David was offered
a better job. Here the evidence preponderates that in David's new job with Re-
spondent he could have remained a member of the Union and if the Union had so
desired it could have attempted to represent him in collective bargaining . Accept-
ing David 's testimony that he was the only full-time mailroom employee, I do not
find that the offer to him of a better job in any way inhibited union organization
or constituted conduct in any way proscribed by Section 8 of the Act. The fact
that Collins mistakenly was under the belief that David's transfer might tend to im-
pede union organization in the mailroom is not regarded as sufficient to establish
an unfair labor practice in the context of the facts here presented. Respondent's
action in offering a better job if anything would provide an example for encourag-
ing union membership.
CONCLUSIONS OF LAW
Respondent is engaged in commerce and in activities affecting commerce within
the meaning of the Act.
The Respondent has not engaged in unfair labor practices as alleged in the com-
plaint.
[Recommendations omitted from publication.]
Journal Gazette Company and American Newspaper Guild, AFL-
CIO. Case No. 13-CA-3469. February 9, 1961
DECISION AND ORDER
On October 27, 1960, Trial Examiner Arnold Ordman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom, as set
forth in the copy of the Intermediate Report attached hereto. The
Trial Examiner also found that the Respondent had not engaged in
other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report, together with a sup-
porting brief.
The Board has reviewed the rulings made by the Trial Examiner
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 briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and
recommendations 1 of the Trial Examiner.
1 As no exceptions were filed to the Trial Examiner' s recommendations that the Section
8(a) (3) allegations be dismissed and that the customary posting of a notice be dispensed
with, we adopt them pro forma.
130 NLRB No. 5.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 1O(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Journal Gazette
Company, Fort Wayne, Indiana, its officers, agents , successors, and
assigns, shall :
1. Cease and desist from coercive interrogation of its employees
concerning union matters.
2. Cease and desist from in any like or related manner interfering
with, restraining , or coercing its employees in the exercise of their
right to self -organization , to form labor organizations , to join or
assist American Newspaper Guild or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain
from any and all such activities.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8(a)(3) of the Act.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in Fort Wayne, Indiana, on May 10 and 1 l and June 7, 1960 The
complaint alleged, and the answer denied, that Journal Gazette Company, herein
called Journal Gazette or Respondent, violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, as amended. The issues litigated were: (1) whether Re-
spondent, through its vice president, Miller Ellingham, engaged in interrogation of,
and made certain statements to, employees which interfered with organizational
rights guaranteed them by the Act; and (2) whether Respondent discriminatorily
discharged Richard Harmeson and Jane 1. Strong and discriminatorily demoted Ruth
Joann Banko, also known as Joann Banko, because of their union membership and
activities.
Prior to the taking of evidence Respondent moved to dismiss the complaint herein
insofar as it alleged interrogation and other statements as violative of Section 8(a) (1)
of the Act. Respondent argued that these matters were disposed of by a prior
settlement agreement between itself and the Regional Director of the Board pur-
suant to which Respondent had posted appropriate notices. It appeared, however,
that the settlement agreement had on its face been subject to approval by the General
Counsel, and that General Counsel had not approved but, on the contrary, had set
aside the settlement agreement, duly notifying Respondent of its action at all relevant
stages. Accordingly, the Trial Examiner denied Respondent's motion
Respondent again moved for the dismissal of the complaint, this time in its entirety,
at the close of General Counsel's case and after presentation of evidence by the
Charging Party. That motion, too, was denied At the conclusion of the hearing
and after all parties had presented evidence, Respondent once more moved to dismiss
the complaint in its entirety. The Trial Examiner reserved ruling. That motion is
now disposed of in accordance with the findings set forth hereunder Respondent
argued orally at the end of the hearing and all parties thereafter filed briefs which
have been carefully considered.
Upon the entire record herein, and from his observation of the witnesses, the
Trial Examiner hereby makes the following-
JOURNAL GAZETTE COMPANY
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
71
Respondent, an Indiana corporation, has its principal office and place of business
in Fort Wayne, Indiana, where it publishes a paper known as the Journal Gazette.
During the calendar year 1959, Respondent held membership in, or subscribed to,
various interstate news services, published various syndicated features, advertised
numerous nationally sold products, and derived a gross revenue from these operations
in excess of $3,000,000. Respondent admits, and I find, that Respondent is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated at the hearing , and I find, that American Newspaper Guild,
AFL-CIO,' herein called the Guild, is a labor organization within the meaning of
Section 2 (5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the summer of 1959 organizational activities began among the employees of the
Journal Gazette and among the employees of the News Sentinel, the other newspaper
in Fort Wayne. Richard C. Harmeson, a Journal Gazette employee, played a leading
role in these organizational activities. On September 13, 1959, a provisional local
of the Guild was formed with Harmeson as president and Donald Michaels, a co-
worker on the Journal Gazette, as treasurer. The offices of vice president and secre-
tary were filled by employees of the News Sentinel. Following the election Harmeson
prepared a news release for broadcast over the radio and television stations in Fort
Wayne.
The Journal Gazette openly opposed the Guild's organizational efforts. However,
the organizational efforts continued and in due course a Board-conducted election
was scheduled for January 14, 1960, to determine the employees' desires respecting
their representation for purposes of collective bargaining. The events with which
we are here concerned occurred during the months of September, October, and No-
vember, 1959, preceding the election.
B. Findings and conclusions relating to interrogation, threats, and promises of benefit
The complaint alleges and the answer denied that during the period from Septem-
ber 19 to 30, 1959, Respondent, through Miller Ellingham, its vice president, inter-
rogated employees concerning their membership in and activities on behalf of the
Guild; interrogated employees concerning the names of the officers of the Guild;
promised employees that a pension plan would be instituted if the Guild did not get
into the plant; stated to employees that the Journal Gazette was opposed to a union
and that if the employees voted for the Guild their privileges would be taken away;
and stated to employees that the Journal Gazette would not bargain with the Guild
if the employees selected that organization as their bargaining agent. The evidence
relating to these allegations is set forth hereunder.
Melvin E. Dixon, an employee of Journal Gazette, testified that in the latter part
of September 1959, he was asked by Ellingham to step into the latter's office. No
one else was present. According to Dixon-
Mr. Ellingham said that he had been informed that I was interested in the
Guild movement and this I agreed to, "Yes." and he wanted to know my rea-
sons and I told him that I had also been pro-union and I thought maybe we
could gain some benefits through the Guild and he thought that I should con-
sider my feelings and think very seriously on how I would vote in the election.
'This proceeding was Initially instituted against Journal Gazette Company and/or
Fort Wayne Newspapers. Inc. However, at the opening of the hearing in the proceeding
Fort Wayne Newspapers, Inc, moved for dismissal of the complaint against it on the
ground, inter alma, that the complaint did not charge Fort Wayne Newspapers, Inc, with
any unfair labor practices. General Counsel joined in the motion and the Charging
Party, American Newspaper Guild, AFL-CIO, stated that it had no objection thereto.
The Trial Examiner granted the motion. Accordingly, the name of Fort Wayne News-
papers, Inc., has been omitted from the caption.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Dixon, Ellingham also said on this occasion that Dixon "couldn't get
anything through the union that [he] could gain as an individual," that the Journal
Gazette did not want union men writing for it, and that there was a pension plan
in the making and it would be put into effect within the near future though he could
fix no precise date.
James Bannon, police reporter at the Gazette, testified that during this same
period, in the latter part of September, Ellingham came to Bannon's desk and asked
the latter if he would like to talk union. When Bannon agreed, the two individuals
went into Ellingham's office. According to Bannon,
Mr. Ellingham said, "I understand you are interested in the union movement
out there" and I said "Yes, I am," and he said, "Well, I can tell you one thing,"
he said, "We don't want that union in here and we are going to do all we can
to oppose it." He said "We don't want union people writing our copy." He
said, "All a union can do for you is collect dues and assessments. We don't
like to think about these things or talk about these things but these things
often do lead to strikes and I want to assure you that if this should lead to a
strike here we intend to continue to publish this paper and we can get people
to come in and do your job." Mr. Ellingham told me that they may have to
set [sic] down at a bargaining table with the union but all that the union could
get for us is what they wanted to give and he said "I can assure you that will
be very little."
Bannon testified that Ellingham asked why he, Bannon, was interested in the Guild
and that he replied that he was interested in the Guild because of the pension plan.
Ellingham retorted, according to Bannon, "Well, we may have a pension plan here
some day, but it won't be because of the union." Some further discussion ensued
about the amount of Bannon's salary. Bannon testified that Ellingham told him
that perhaps he was underpaid but that he should have come in and talked to Elling-
ham instead of going to the Guild about his pay.
The other testimony relevant here was given by Joann Banko who was one of
the three employees alleged to have been discriminated against. Joann Banko testi-
fied that about this same period-she could not fix the precise date-Ellingham
asked her into his office and said he wanted to discuss the Guild situation. Accord-
ing to Banko, Ellingham said:
He didn't know my opinions or how I felt about it but he wanted to explain
their side of it and as the discussion wore on then, of course, it became evident
that I was at that time with the Guild and he asked me, "Why would you of
all people in the word be interested in the Guild," and I said, "Well, this may
surprise you but I expect to work awhile and I am interested in a retirement
plan," and he kind of snickered about that and he said, "Well you realize that
the only thing the Guild can do for you is charge you at least $100 dues a
year and make you go out on strike," and then we discussed the strike vote,
et cetera .. . .
As in the preceding instances, no one else was present at these conversations.
Ellingham did not testify nor was his failure to testify explained. I find that he
made the statements and inquiries as set forth. The question presented, therefore,
is whether these statements and inquiries constitute interference, restraint, and coer-
cion in violation of Section 8(a)(1) of the Act. A literal reading of Ellingham's
remarks concerning the pension plan does not warrant the conclusion that he
expressly conditioned such a plan upon the employees' rejection of the Guild. Nor
did Ellingham flatly state that the Journal Gazette would not bargain collectively
with the Guild if the employees selected that union as their bargaining representa-
tive a On the other hand, Ellingham's remarks as to the probable futility of any
future bargaining reflected an attitude which was hardly compatible with the good-
faith fulfillment of the statutory bargaining obligation, and his comments as a whole
revealed an uncomprising hostility to the Guild calculated to instill in the employees
selected for interview a fear of the consequences of unionization. In such a context
Ellingham's interrogation of the employees as to their interest in the Guild had an
unmistakably coercive thrust even absent a literal threat of reprisal or force or
promise of benefit. I conclude, therefore, that Ellingham's interrogation, occurring
in the course of discussions in which hostility to unionization and collective bargain-
2 Similarly, there is no evidence that Ellingham interrogated employees concerning the
names of Guild officers or that he threatened a forfeiture of privileges if they embraced
the Guild.
JOURNAL GAZETTE COMPANY 73
ing was unmistakably conveyed, constituted interference, restraint, and coercion within
the meaning of Section 8(a)(1) of the Act. See Blue Flash Express, Inc., 109
NLRB 591, 593-594.3
C. Findings and conclusions relating to the discharge of Harmeson and Strong and
the transfer of Banko
The complaint alleges that the Journal Gazette on or about October 4, 1959,
discriminatorily discharged Richard C. Harmeson; on or about November 6, 1959,
discriminatorily discharged lane I. Strong; 4 and on or about November 9, 1959, dis-
criminatorily demoted Joann Banko, all because of their membership and activities
in the Guild. The Journal Gazette entered a general denial to these allegations.
As already noted, organizational activities among the Journal Gazette's employees
began in the summer of 1959. Harmeson played a very active role in the organiza-
tional campaign and on September 13, 1959, was elected president of a provisional
local of the Guild. Joann Banko was dues collector for the Guild at the Journal
Gazette and did her dues collecting for the most part either by contacting members
personally at the office or by leaving notes on their desks. Jane I. Strong, according
to her own testimony which I credit, took a very inactive part in the Guild's activi-
ties. She joined the Guild in July or August 1959 and wore a Guild pin to
work I day. She paid her Guild dues the first couple of times, once to Robert Bruno,
International representative of the Guild and once to Joann Banko when they
went out to eat. So far as appears, Jane I. Strong did not otherwise participate in
Guild activities
Harmeson's Guild sympathies were a matter of common knowledge and the fact
that he was president of the Guild local was widely publicized and admittedly known
to the Journal Gazette. Joann Banko's conversation with Vice President Ellingham,
already set forth, reveals that he knew of Banko's interest in the Guild, and Mana-
ging Editor Inskeep testified that while he was not sure whether anyone told him
Banko was or was not a member of the Guild, "we assumed that she might have
been." In view of this evidence plus the additional evidence that Banko openly
collected dues in the Journal Gazette offices, I find that the Journal Gazette did know
of her attachment to the Guild. The situation as to Jane I. Strong is much less
clear. Her activities were, on her own account, extremely limited. She did wear a
Guild pin to work 1 day but the record is devoid of any indication as to what the
pin looked like or whether anyone of management saw it. Managing Editor Inskeep
testified that he never know whether Jane Strong was or was not a member of the
Guild and that he did not known what a Guild pin looked like. Under all the cir-
cumstances, I find this evidence in and of itself insufficient to establish knowledge by
the Journal Gazette of Strong's Guild membership or activities.
General Counsel contends, however, that the discharge of Strong, no less than
the discharge of Harmeson and the demotion of Banko, all of which occurred
between October 4 and November 9, 1959, at the height of a Guild organizing drive
to which the Journal Gazette was admittedly vigorously opposed, was part of a
scheme to get rid of Guild adherents and defeat the organizational drive. The
Journal Gazette, for its part, contends that its actions were prompted solely by its
operational needs and that the Guild membership and activities of the three indi-
viduals affected, to the extent that it knew of their membership and activities, played
no role in its personnel actions.
A few preliminary facts concerning the organizational structure of the Journal
Gazette will facilitate consideration of the particular personnel actions. The Journal
Gazette is a daily and Sunday newspaper having a circulation of about 70,000.
Richard C. Inskeep is the managing editor and is in charge of personnel matters.
The functions of the paper are departmentalized, unlike the situation in smaller
papers with more limited circulation. Thus, on the editorial side of the paper, as
distinguished from its business side, there is a copy desk department which handles
wire services, mail and time copy, and syndicated columns. This unit, in which
Richard C. Harmeson was employed, consists of about six desk men, including a
State editor and a wire editor, who work under ,the direction of News Editor James
3In so concluding, I place no reliance on the fact, already noted, that Journal Gazette
had previously entered into an abortive settlement agreement wherein it undertook to re-
frain, inter alia, from interrogating its employees concerning union matters. As Journal
Gazette correctly argues, entry into that agreement does not constitute an admission that
it actually engaged in such interrogation
4 Jane Strong married sometime before the hearing and is occasionally referred to in
the transcript of hearing as Jane Straub.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lovett. There is also a reporting department which covers and reports all local
news, a sports department, and a society department which reports on local society
news and takes care of the women's page. Joann Banko and Jane I. Strong were
employed in the society department. In addition, there is a Sunday magazine depart-
ment . Each of these departments is separate and distinct with its own head who is
responsible in turn, as is James Lovett, to Inskeep, the managing editor.
The particular personnel actions are now considered.
1. Richard C. Harmeson
Richard C. Harmeson was discharged on October 4, 1959. The facts relating to
his discharge are to a considerable extent undisputed. At the end of September or very
early in October 1959 the Journal Gazette hired Park Williams as city editor. Park
Williams had been an employee of the Journal Gazette for over 25 years prior to
his leaving the paper in 1952 and his last job on the paper had been that of managing
editor. He was commonly regarded as an outstanding newspaperman and when it
became known sometime in 1958 that he might be available for reemployment at
the Journal Gazette, Managing Editor Inskeep engaged in a number of discussions
with him with a view toward recruiting his services. These discussions culminated,
as already noted, in the hiring of Park Williams as city editor.
The assignment of Williams to this top job necessitated a number of personnel
shifts at the Journal Gazette. Kenneth Keller, who had held the job as city editor,
was transferred to the job of Sunday magazine editor and the then Sunday magazine
editor, Glen Keene, was assigned to the copy desk where he had worked before.
In consequence of this last shift, the copy desk was overstaffed by one man.
To meet this situation Inskeep directed James Lovett, who was news editor in
charge of the copy desk, to prepare a complete analysis of every man on the copy
desk with respect to his capabilities, experience, and attitude, in order to determine
who should be discharged Harmeson was one of the handful of men who worked
on the copy desk, a job which he had been assigned when he reported to work at
the Journal Gazette about 15 months earlier. Except for Donald Michaels, treasurer
of the newly formed Guild Local, Harmeson was lowest in seniority among the men
on the copy desk. Michaels, though young and relatively new at the job, was re-
garded both by management and by his fellow employees as extremely able.
Lovett prepared the analysis pursuant to Inskeep's direction and on the basis of
that analysis reported to Inskeep that Harmeson was in his view the least competent
man on the copy desak. Accordingly, Inskeep directed Lovett to discharge Harmeson.
About 1 a.m. on the morning of October 2 at the end of Harmeson's work shift,
Lovett called Harmeson into an inner office to tell him he had been selected for
discharge. Lovett explained to Harmeson the personnel shifts resulting from the
rehiring of Williams, the resultant overstaffing of the copy desk, his preparation of
the analysis, and the consequent decision to discharge Harmeson. Lovett also out-
lined to Harmeson the duties and qualifications of the several copy desk men in
order to let Harmeson know the reason he was selected for termination.
The discharge interview was apparently free of acrimony though, according to
Harmeson's testimony, he was not satisfied with the explanation which Lovett gave
for his selection for discharge. In any event, at the conclusion of the interview
Harmeson asked Lovett for a letter of recommendation. Lovett forthwith prepared
a letter which read:
To Whoin It May Concern:
This will serve to introduce Richard (Dick) Harmeson who has been a
member of my staff for some time.
Through circumstances beyond his control, he has been laid off for economy
reasons Being one of the newer members of the staff, he, of course, was
affected.
While here he worked a variety of jobs on our universal desk, including wire
and general. He's also done farm and general assignment work. Any con-
sideration you can give him will be appreciated.
Jim Lovn'rr, News Editor.
After the discharge interview Harmeson went to a nearby tavern regularly patron-
ized by the Journal Gazette personnel. A short time later, Lovett came in also and
another conversation ensued between the two individuals. Although the discharge
came up for discussion again, nothing of consequence occurred.5 The only other
6 Harmeson testified that during the tavern discussion he asked Lovett whether the
latter would admit that the Cuild was the real reason for the discharge and that Lovett
JOURNAL GAZETTE COMPANY 75
discussion concerning the discharge occurred 2 days later on October 6. That
evening Harmeson , Robert E . Bruner , an International Representative of the Guild,
Michaels, and another Journal Gazette employee met with Inskeep to discuss Harme-
son's discharge. Inskeep at first refused to discuss the matter but later, according
to the testimony of Bruner and Michaels which I credit, indicated that Harmeson
had not been doing good work. Inskeep was also asked why he had not put Harme-
son to work as a reporter instead of hiring an outsider for the job. Inskeep replied
that the outsider in question had extensive experience in his field and that the Journal
Gazette should not be expected to rehire a person who was low in seniority and who
was not doing good work.
General Counsel contends that the real reason for the discharge of Harmeson was
his activity and membership in the Guild. In support of this contention General
Counsel points to the fact that Respondent was bitterly opposed to the organization
of its employees, that Harmeson was known to Respondent to be in the forefront
of that activity, and that his selection for discharge occurred at the height of the
organizational campaign. In addition, General Counsel notes the fact that Harmeson
was not the lowest man in seniority on the copy desk, that he had received a $5
weekly raise in wages only a few months prior to his discharge, and that his past
experience as a newspaperman 6 warranted his retention on the staff of the Journal
Gazette as a reporter, if not on the copy desk itself.
It is undisputed, of course, that the Journal Gazette was opposed to the Guild's
organization efforts and that Harmeson's prominent role in those efforts was known
to Respondent. These circumstances, plus the circumstance that the discharge took
place when it did, are grounds for suspicion as to the motivation which prompted
the discharge. But suspicion does not substitute for proof and the evidence is clear
that the reshuffling of jobs resulting from the hiring of Williams resulted in an over-
staffing of the copy desk with the result that Harmeson was discharged To adopt
General Counsel's view, therefore, would require one to believe that Respondent
hired Williams for the very important post of city editor and reshuffled some of its
top personnel, all to the end of getting rid of Harmeson, a relatively new employee
in the lower level of its table of organization Aside from the fact that the various
personnel shifts were wholly reasonable up to and including the transfer of Glen
Keene to his former post on the copy desk, it strains credulity to believe that a
metropolitan newspaper would make such critical changes in its organization merely
to get rid of an unwanted employee.
Finding, as I do, therefore, that the hiring of Williams and the shifts in personnel
which ensued were unrelated to union considerations, the sole question remaining
is whether the selection of Harmeson for discharge was proper. As already noted,
that selection was predicated on Lovett's analysis which he prepared at the direction
of Inskeep and which revealed that Harmeson was the least competent man on the
copy desk. The record reveals that Harmeson had considerably less experience
than any man on the copy desk except Michaels who was also a known Guild ad-
herent and treasurer of that organization. But the record also establishes that
Michaels, though a new employee, did work of a very high caliber and seniority
was not the controlling consideration in the Journal Gazette's employment policy.
Accordingly, even discounting, as as I do, much of the criticism which Lovett and,
particularly, Inskeep leveled at the quality of Harmeson's work, I am satisfied that
the latter's selection for discharge was based on an unbiased evaluation of the relative
merits of the employees on the copy desk. The letter of recommendation written
by Lovett at Harmeson's request on the occasion of the discharge confirms this view
by the moderate nature of its endorsement of Harmeson. In this connection the
fact that Harmeson had received a $5 raise a few months before his discharge carries
little weight inasmuch as this raise was largely automatic after a year of service on
the copy desk, and the testimony of Lovett and Inskeep in that regard establishes
that it was given Harmeson as an incentive to better work rather than as a reward
for work already performed.
did not reply Lovett denied this interchange Assuming that Harmeson did make this
query and that Lovett heard it and did not reply, I would not regard Lovett's silence as
an affirmation inasmuch as lie had previously explained at length the reason for the dis-
charge Harmeson also testified that Lovett told hint on this occasion that Kenneth
Keller had been asked to do "missionary" work against the Guild but had refused
Lovett denied this also However, absent any evidence as to who inade the alleged re-
quest I would find no basis. nor is any claim made, for a finding of unfair labor practice
in this regard.
e Harmeson had done general reporting work on several small town newspapers before
reporting to work at the Journal Gazette
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, General Counsel's contention that Harmeson should in any event have
been retained as a reporter is without merit. That proposal was advanced for the
first time at the conference between Inskeep and the Guild representatives on
October 6, 2 days after the discharge. Inskeep credibly testified that during his
tenure as managing editor no oiie had ever been transferred from the copy desk
department to the reporting department, or vice versa. No evidence to the con-
trary was adduced. The fact that Harmeson was not transferred to a reporting job
was wholly consistent with this past practice.
On the whole record, therefore, I find that General Counsel has not sustained his
burden of proving that the discharge of Harmeson was discriminatory within the
meaning of Section 8(a)(3) and (1) of the Act. I find rather that the selection of
Harmeson for discharge was the result of operational changes unrelated to union
activities.
2 Joann Banko
On or about November 9, 1959, Marion Cabler Fitzgerald was hired by the
Journal Gazette as its society editor, thus displacing Joann Banko who had been
doing that job for about a year. Banko was thereupon assigned to the job of society
column writer but at no loss of pay and with no loss of fringe benefits. General
Counsel contends that this transfer constituted a discriminatory demotion for Banko
and that it was attributable to her Guild membership and activity. The Journal
Gazette takes the position, first, that no actual discrimination occurred because
Banko suffered no loss of pay or benefits and, second, that in any event the personnel
action involved was the result of the paper's operational needs and was not attrib-
utable to Guild membership or activities.
The society editor is the head of the society department.? She is primarily re-
sponsible for gathering and reporting social news, determining its relative impor-
tance, the amount of coverage and space it should get, and like considerations which
are vital to the success of the society department of a paper. Accordingly, in addi-
tion to technical competence, a thorough knowledge of local society, its prominent
families, and its social organizations is a highly desirable qualification for the job.
Joann Banko was a relative newcomer to Fort Wayne, having arrived there from
Columbus, Indiana, in September 1957. In February 1958 she went to work for the
Journal Gazette in the society department. In September 1958, the then society
editor was leaving to return to school and Joann Banko was offered the job by
Miller Ellingham Joann Banko took the job. About 3 weeks later she was given
a $5 raise and several months later got another raise. During that period Banko per-
formed the functions of society editor and was so listed in the 1959 edition of
Editor and Publisher, an authoritative publication in the newspaper field.
In the meantime Inskeep, who had taken over the job as managing editor, was
looking for a new society editor. According to Inskeep's testimony, which I credit
in this regard, he was dissatisfied with Banko's work performance as society editor,
and so, too, was Fleming, the publisher of the Journal Gazette. Although
acknowledging that he had not made any criticism of her work to Banko directly,
Inskeep was of the view that Banko was making mistakes in reporting, in the assign-
ment of space and coverage to various social events and functions, had a tendency
to report to work late, and generally was not adequately performing her job.
Banko also testified as to these matters I am satisfied that in the case of Banko, as
in the case of Harmeson, Inskeep tended to overstate the shortcomings to which he
testified. On the other hand, it is undisputed that Banko, as a relative newccmer to
Fort Wayne, lacked the kind of knowledge of that community, which, though not
indispensable, is a decided asset in the performance of a society editor's function .ft
In any event, whatever the merit or lack of merit to Inskeep's evaluation of the
quality of Banko's work, the record furnishes ample evidence and I find that Inskeep
had been looking for a new society editor for a considerable period of time before
organizational activities began at the Journal Gazette, and continued his search
thereafter. Inskeep credibly testified that during this period he answered newspaper
advertisements, inquired of various newspapers where he knew people, and in the
spring of 1959, discussed the problem with Sue Weber, society editor of the News-
7 No contention is made that a society editor exerei^es supervisory duties within the
meaning of Section 2(11) of the Act
8 Among other shortcomings to which Inskeep alluded was the fact that Banko wag un-
able to give adequate coverage to certain important social functions because she would not
attend such functions unescorted and her husband who was a newscaster on a local radio
station had conflicting working hours. Banko did not take issue with Inskeep's testimony
in this regard.
JOURNAL GAZETTE COMPANY 77
Sentinel, the other newspaper in Fort Wayne. Shortly before Fitzgerald was hired,
Inskeep found out through Cliff Milnor, a Journal Gazette columnist, that Fitzgerald
was available. Fitzgerald had worked for the Journal Gazette from 1941 to 1945
in the society department and as a general reporter, was a member of one of the
old families in Fort Wayne, and belonged to and did public relations work for a
number of prominent social organizations in the community. On the basis of this
background Inskeep hired Fitzgerald as society editor and informed Banko of her
transfer . Banko accepted her change of assignment and for some time thereafter
helped break in Fitzgerald on certain technical phases of the job of society editor.
On the basis of the foregoing evidence, and on the whole record, I find that the
General Counsel has not established that the demotion of Banko from her job as
society editor was discriminatorily motivated.. In this connection I reject the defense
that no discrimination was involved because there was no loss of pay or benefits
involved. The job of society editor patently carries more professional prestige than
that of society columnist and the transfer of Banko constituted a demotion in a
very real sense. On the other hand, it is clear that Inskeep, whether his appraisal of
Banko's work was sound or unsound, was dissatisfied with her work and had been
looking for a new society editor long before organizational activities began. Fitz-
gerald's experience and other qualifications were such as not only to appeal to
Inskeep but also to Cliff Milnor who recommended her to Inskeep in the first in-
stance. These considerations refute any contention that the Journal Gazette's ac-
tions were prompted by its antipathy to the Guild or to Banko's activities in the
Guild 's behalf . I find that the allegations of the complaint relating to the dis-
criminatory demotion of Banko have not been sustained.
3. Jane I. Strong
The complaint alleges; and the answer denies, -that Respondent . discharged Jane I.
Strong on or about November 6, 1959, because of her membership and activities in
the Guild.
The evidence afforded by the record on this issue is minimal . Jane I. Strong
began her employment with The Journal Gazette on October 1, 1958. Apart from
high school journalism , she had had no prior experience in newspaper work. How-
ever, she was assigned to the society department and worked on the women's
page. Arrangements were made for Banko to give her the necessary training for her
job. As already noted, Strong joined the Guild in July or August 1959, wore a
Guil¢-pin to work 1 day, and paid duesra- couple of times, but not at the Journal
Gazette office. So far as appears , this was the limit of her Guild activity. The
Journal Gazette denied knowledge of her membership or activity and any inference
that it did know of such membership or activity would have to be based on sheer
conjecture . Jane I. Strong was apparently discharged on or about November 6,
1959, although the record is virtually silent as to her termination. On this showing
and without more, the allegation that Jane I. Strong was discriminatorily discharged
is without foundation.
It seems hardly necessary , therefore , to deal with the- ancillary contention, ad-
vanced by General Counsel in its brief and-likewise advanced in the brief of the
Charging Party, that Strong's discharge was an unfair labor practice because it flowed
from the discriminatory demotion of Banko and a consequent need to reduce the
complement in the . society department . - Quite apart from other considerations, this
contention is inapposite inasmuch as the premise - that Banko 's demotion was dis-
criminatory is, for reasons already stated , without merit.
Accordingly, I find that Respondent did not unlawfully discriminate against Jane
1. Strong in violation of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above,
occurring in connection with the operations of Respondent 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 affecting commerce and
the free flow of commerce.
V. THE REMEDY
I have found that Respondent violated Section 8(a)(1) of the Act by its coercive
interrogation of its employees concerning union matters . Pursuant to the mandate
of Section 10 of the Act, I shall, therefore , recommend that Respondent cease and
desist from such conduct. I have found the remaining unfair labor practice allega-
tions of the complaint to be without merit. Accordingly , I shall recommend that
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such allegations be dismissed . As to affirmative relief , I shall not direct that the
customary notice to employees be posted. It is undisputed that pursuant to the abor-
tive settlement agreement heretofore described , Respondent has already posted a
notice to its employees stating, inter alia, that it would not interfere with the organiza-
tional rights of its employees and that it would not interrogate its employees concern-
ing the Guild . Under these circumstances , it would be an idle gesture to require a
second posting of a virtually identical notice. See N.L.R.B. v. National Biscuit
Company, 18 5 F. 2d 123 (C.A. 3). The remedial purposes of the Act will be
sufficiently served in the instant case by the entry of a cease -and-desist provision.
Upon the foregoing findings of fact , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Journal Gazette 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. American Newspaper Guild , AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees , the Journal Gazette has interfered
with, restrained , and coerced its employees within the meaning of Section 8 (a)( I)
of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in other unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
International Hod Carriers , Building and Common Laborers'
Union of America , Local No. 41 , AFL-CIO and Calumet Con-
tractors Association and George DeJong . Case No. 13-CC-202.
February 10, 1961
DECISION AND ORDER
On June 14, 1960, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not- engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
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 finds merit in the General Counsel's exception and adopts
the findings of the Trial Examiner only to the extent consistent
herewith.
130 NLRB No. 17.