Lowell Sun Publishing Co.

National Labor Relations Board - Board Decisions

Mar 12, 1962

136 N.L.R.B. 206 (N.L.R.B. 1962)

206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lowell Sun Publishing Company and Newspaper Guild of
Greater Boston , Local 32, American Newspaper Guild, AFL-
CIO. Case No. 1-CA-3415. March 12, 1962
DECISION AND ORDER
On December 11, 1961, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor practices
in violation of Section 8(a) (1) and (3) of the Act and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the Intermediate Report attached hereto. The Trial
Examiner further found that the Respondent had not violated Section
8(a) (4) of the Act. Thereafter the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.'
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 McCulloch and Mem-
bers Rodgers and Fanning].
The Board 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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted below.2
i The Respondent ' s request for oral argument is hereby denied as the record , including
the exceptions and briefs , adequately presents the issues and positions of the parties
3 We find merit in the exception of the Respondent to the finding of the Trial Examiner
that the wage raises granted on or about July 18 , 1961 , to a large number of editorial
employees violated the Act We reach this conclusion because the General Counsel had,
during the hearing , specifically limited this allegation concerning the granting of wage
increases in July to those granted Weisberg and Dudley . Dudley testified that he was
given no explanation of the purpose of the July 18 wage increase Weisberg , however,
testified that during the week of July 10 Managing Editor Connors asked him whether he,
Weisberg , was "on his side ," and when Weisberg said that he was, said "You 'll get a
raise next week." Clearly this wage raise to Weisberg constituted a violation of Section
8(a) (1) of the Act. The record does not establish this as to Dudley , and, as to the
others, we do not consider the question to have been fully litigated in view of the General
Counsel's concession limiting the allegation Therefore , unlike the Trial Examiner, we
shall limit the finding of an 8 ( a) (1) violation based upon the July 18 wage raises to the
raise given Weisberg. The July conversation between Connors and Weisberg , of course,
also constituted a promise of benefit , but we do not find it a violation inasmuch as the
allegation of the amended complaint concerning promise of economic benefit was identified
as occurring about March 27, 1961 . We shall modify the Recommended Order and notice
to reflect these modifications of the Intermediate Report
The Trial Examiner found that Breen's remarks on June 7 were addressed only to
Dudley and overheard only by Sargent We note from the record that Sports Writer
Iverson was also present and testified that he heard some of the conversation We agree
with the Trial Examiner that the incident was not of sufficient gravity in all the circum-
stances to deny reinstatement to Breen.
136 NLRB No. 16.
LOWELL SUN PUBLISHING COMPANY 207
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lowell Sun Pub-
lishing Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging its employees from membership in, or activities
on behalf of, Newspaper Guild of Greater Boston, Local 32, American
Newspaper Guild, AFL-CIO, or any other labor organization, by
(1) discriminatorily depriving them of extra employment in addition
to the principal duties performed by them, (2) discriminatorily dis-
charging them, and (3) discriminatorily transferring them from one
shift to another, or by discriminating against them in any other man-
ner in regard to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating its employees concerning their membership in,
or activities on behalf of, the Guild, or any other labor organization,
in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8(a) (1) of the Act.
(c) Threatening its employees with reprisals if they become mem-
bers of or maintain membership in the Guild, or any other labor
organization.
(d) Granting wage increases to its employees in order to dissuade
them from joining or supporting the Guild, or any other labor or-
ganization, provided that nothing in this Order shall be construed as
requiring Respondent to vary or abandon any economic benefit or any
term or condition of employment which it has heretofore established.
(e) In any other 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 Newspaper Guild of Greater
Boston, Local 32, American Newspaper Guild, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities except to the ex-
tent 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 Francis F. Breen, Jr., immediate and full reinstatement
to his former or substantially equivalent positions, including his as-
signment as Dracut correspondent, without prejudice to his seniority
or other rights and privileges.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Francis F. Breen, Jr., for any loss of earnings
he may have suffered by reason of the discrimination against him, in
the manner set forth in "The Remedy" section of the Intermediate
Report.
(c) Offer Fred W. Dudley immediate and full reinstatement to
his former daytime position as a member of the Sunday edition staff.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and repdrts,
and all other records necessary for the determination of the amount
of backpay due Breen and the rights of reinstatement under the terms
of this Order.
(e) Post on its bulletin boards copies of the notice attached hereto
marked "Appendix." 9 Copies of said notice, to be furnished by the
Regional Director for the First Region, shall, after being duly signed
by Respondent's authorized representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for 60
consecutive 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 said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps it has taken to
comply herewith.
The complaint herein is hereby dismissed as to the alleged violations
concerning the reprimand of Christine Hansen, the promise of eco-
nomic benefits to employees on or about March 27, 1961, if they would
cease support of the Guild, and the wage raises of July 18 except as
to Weisberg, and as to the alleged violation of Section 8(a) (4) of
the Act.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
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, as amended, we hereby notify you that :
WE WILL NOT discourage membership in Newspaper Guild of
Greater Boston, Local 32, American Newspaper Guild, AFL-
CIO, or in any other labor organization of our employees, by
discharging them, depriving them of special assignments, trans-
LOWELL SUN PUBLISHING COMPANY 209
ferring them from one shift to another, or in any other manner
discriminating in regard to hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT coercively or otherwise unlawfully interrogate
our employees concerning their union activities, or threaten them
with reprisals for engaging in union activities.
WE WILL NOT grant wage raises or other economic benefits as
inducements to influence or interfere with our employees' choice of
collective-bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in any other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or 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 by Section 8 (a) (3) of
the Act, as amended.
WE WILL offer Francis F. Breen, Jr., immediate and full rein-
statement to his jobs as sports reporter and Dracut correspondent,
or to substantially equivalent positions, without prejudice to his
seniority or other rights and privileges.
WE WILL make whole Francis F. Breen, Jr., for any loss of pay
suffered as a result of our discrimination against him.
WE WILL offer Fred W. Dudley immediate and full reinstate-
ment to the daytime position he formerly occupied as a member
of the Sunday edition staff.
LOWELL SUN PUBLISHING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (24 School Street, Boston 8, Massachusetts; Telephone Number,
Lafayette 3-8100) if they have any question concerning this notice or
compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the Labor-Management Rela-
tions Act of 1947, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act,
was heard in Lowell, Massachusetts , on various dates between August 1 and 29,
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961, pursuant to due notice to all parties. The complaint, as amended at the hear.
ing, alleges that Respondent, Lowell Sun Publishing Company, has engaged in
unfair labor practices proscribed by Section 8(a) (1), (3), and (4) of the Act. By its
answer, duly filed, Respondent denied the commission of any unfair labor practices.
At the hearing, all parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce relevant evidence, and to present oral argu-
ment. The time to file briefs having been extended, the same were received from
the General Counsel and Respondent on or about October 16, 1961, and have been
duly considered.
Upon the entire record in the case, and from my observation of the witnesses as
they testified, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Massachusetts corporation, maintaining its principal office and
place of business at Lowell, Massachusetts, has during all times relevant herein been
continuously engaged in the publication, sale, and distribution of newspapers. Re-
spondent subscribes to various interstate news services, publishes various syndicated
features, advertises various nationally sold products, and derives gross revenue from
said publishing operations in excess of $200,000 per annum. Respondent annually
purchases and receives, directly from points outside the Commonwealth of Massa-
chusetts, materials valued in excess of $50,000. Respondent admits, and I find, that
it is, and has been at all times material herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper Guild of Greater Boston , Local 32, American Newspaper Guild, AFL-
CIO, hereinafter referred to as the Guild or the Union, is, and has been at all times
material herein, a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The amended complaint alleges that Respondent (1) interrogated its employees
concerning their union activities, and threatened them with reprisals if they became
or remained members of the Guild; (2) on or about January 23, 1961, provided
Francis F. Breen, Jr., with less employment than he normally would have received,
and discharged him on March 20, 1961, because he engaged in union activities and
gave testimony under the Act; (3) on or about February 20, 1961, transferred Fred
W. Dudley to a less desirable work shift than he formerly enjoyed and on or about
February 6, 1961, reprimanded Christine Hansen because of their union activities;
(4) on or about March 27, 1961, promised its employees economic benefits if they
would cease support of the Union; and (5) on or about July 18, 1961, granted wage
increases to various of its editorial department employees thereby coercing and re-
straining them in the exercise of rights guaranteed in Section 7 of the Act.
Background and Sequence of Events
On January 15, 1961, at a motel in Chelmsford , Massachusetts, approximately 10
miles distant from Lowell , two representatives of the Guild conducted an organization
meeting of a group of employees engaged by Respondent . During the same evening,
26 employees of the Respondent , designating themselves as "members of the com-
mittee to organize a Lowel Sun Unit of the Newspaper Guild of Greater Boston,
AFL-CIO," sent a joint telegram to Frank A. Lawlor, general manager of Respond-
ent, asking that representatives of the Guild be given an opportunity to negotiate
salary adjustments with Respondent . Among those who signed this telegram were
Francis F. Breen , Jr., and Fred W. Dudley, the subjects of alleged discrimination
as charged in the complaint herein . On January 16, 1961 , the Guild telegraphed
Lawlor that 15 other named employees , including Christine Hansen, also alleged to
have been the subject of discrimination , requested that their names be added to the
telegram of January 15 . A similar telegram was sent on January 17 adding the
names of nine additional employees to the telegraphic request of January 15.
The Guild's telegram of January 15 , or a photostatic copy thereof , was posted by
Respondent on its bulletin board together with the following memorandum bearing
the initials of Lawlor at the end thereof:
The addressee herein named is willing to meet at any time with any or all of
those purported to have signed. He has no desire , inclination, or present inten-
LOWELL SUN PUBLISHING COMPANY 211
tion to have any discussion with any others than fellow workers. For them the
door is always open.
F. A. L.
Respondent not having otherwise replied to the three telegrams above described,
the Guild, on January 25, 1961, filed its petition with the Board seeking to be certi-
fied as collective-bargaining representative of all employees in Respondent's adver-
tising, editorial, and business department, including circulation clerks, but excluding
all guards, watchmen, and all supervisors as defined in the Act. The hearing on that
petition, designated as Case No. 1-RC-6326 (132 NLRB 1168), was conducted on
various dates between February 9 and 23, 1961.1 Breen, one of the alleged dis-
criminatees herein, testified at that hearing as a witness in behalf of the Guild.
At an otherwise undisclosed date in February 1961, a notice was posted on Re-
spondent's editorial room bulletin board bearing Lawlor's signature and reading, in
pertinent part, as follows:
To Whom It May Concern: It has come to the attention of management that
a method of intimidation employed by malcontents here is an assertion to the
effect that persons not joining them will be subject to loss of employment.
Nothing could be further from the truth. To the contrary, persons acting inde-
pendently according to their own honest judgment and conscience have more
to gain by their rectitude and much to lose if they are stampeded into believing
that strangers from outside the city would do much more for them than "share"
their wages through dues and assessments.
I say again, any individual or any group can talk to me at any time on any
subject and there is no need for any individual or any group to submit themselves
to enslavement by out-of-towners to bring before management any grievances
or suggestions for our common benefit that they might have. No honest man
or women needs to hide behind any field of anonymity to make known their
wants, needs or hopes when management would welcome a free discussion with
any or all on any subject. This without any dues, assessments or penalties.
"The devil you know is better ,than the devil you don't know." THINK!
F. A. L.
FRANK A. LAWLOR.
Fred W. Dudley
Dudley has been employed by Respondent since 1934. From September 1949
to February 1961 he was employed in the editorial department engaged in prepara-
tion of the Sunday paper. While so employed, his working hours were from 8 a.m.
to 4:30 p.m., 4 days a week, and on Saturday from 7 p.m. to 3 a.m. Sunday. Dudley
signed an application to join the Guild on January 4, 1961. Thereafter, he handed
out Guild cards "on the street, editorial room, wherever someone happened to ask
for one," and joined in the telegram of January 15 aforementioned.
During the week of January 23, 1961, Sunday Editor Harrington asked Dudley how
he "felt about the Guild" and was told that he "was for it 100 percent." Harrington
then informed Dudley that "a long time ago" the Guild tried to organize Respondent's
employees and "it [threw him] back five years," and suggested to Dudley that he
"take [his] name off the list." Dudley declined the suggestion and informed Harring-
to that he was "going to stick with it." During the course of the conversation, Har-
rington told him that "someone could be hurt." 2
By interrogating Dudley about his intentions with respect to the Guild, and by
threatening him with respect thereto that "someone could be hurt," Respondent vio-
lated Secti on 8(a)(1) of the Act.
On Saturday evening, February 4, without any prior notice thereof, Dudley found,
in his typewriter, the following memorandum from Harrington: "D. F. C. [David F.
Connors, managing editor] came out yesterday after you had left, so he asked me
to convey this message to you. On Monday you are to go out to Dracut and `cover'
the town, picking up story for use on Tuesday. Monday get the dope on Tuesday's
work and when your day off will be."
Dudley remained on the Dracut daytime assignment for about 2 weeks at which
time he received a telephone call from City Editor Woodies informing him that
1 At the hearing before me, the parties stipulated that the entire record in Case No.
1-RC-6326 be incorporated as a part of the record in the instant proceeding
2 The findings in this paragraph are based on Dudley's undenied testimony which I
-credit. Harrington, whose supervisory status was admitted by Respondent's answer, was
not called upon to testify.
641795-63-vol. 136-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effective the following day he was being assigned to the night shift commencing at
11:30 p.m. Dudley's only response was: "Okay, I've been expecting it," following
which both men "hung up."
Connors testified that Dudley "was transferred for two reasons: for the efficiency of
the paper, and secondly, for his own personal welfare." Though Connors was asked
what he meant by "efficiency of the paper," he merely replied vaguely: "A more
efficient production." When pressed further for an explanation, he attributed the
transfer to the fact that Dudley's "health was such that he was absent a good deal
because of sickness." 3
Respondent not only failed to establish how Dudley's transfer would improve the
"efficiency" or its operation but it also failed to offer any evidence that his work on
the Sunday edition was anything but satisfactory. Indeed, the testimony affirmatively
establishes that on January 8, 1961, about a month preceding his transfer, Dudley was
given a pay raise of $5 per week. Nor am I persuaded that Dudley was transferred
to the night shift, as Connors testified, because while working in the preparation of
the Sunday edition "he was absent a good deal because of sickness," and that there
was no one in the entire editorial department who was absent more often than Dudley.
The testimony was undisputed that during the night shift, Dudley was the only
reporter on duty at that post, that he not only watched the news wire service machines,
but it was his duty to "go out" and cover local fires, police calls, and accidents. If
Dudley's poor attendance record occasioned by his sickness and his consequent absence
from the office while on the daytime assignment was as poor and occurred as fre-
quently as portrayed by Connors, I cannot understand how his transfer to the night
shift, where he would be the only reporter on the job, would improve "the efficiency
of the paper."
In that state of the record it must be concluded that Respondent seeks to justify
Dudley's transfer only for the second reason relied upon by Connors, i.e., that it was
"for his own personal welfare," because of the condition of his health. However, if
this was the moving or even a contributing consideration for the transfer, it seems
reasonable to assume that some official or supervisor of Respondent would have dis-
cussed the matter with Dudley before putting the transfer into effect. This would
certainly be expected if the transfer was for Dudley's "personal welfare" for, insofar
as its effect on him was concerned, he considered the night work to be "more strenu-
ous" because it meant, as he subsequently told Connors, "living backwards working
nights and trying to sleep days, in which [he was having] great difficulty." 4 And, if
Dudley's health was the reason, no explanation was offered why the transfer was not
made 2 months earlier in December 1960 when, according to Connors' uncorroborated
testimony, Harrington told him that Dudley had been instructed by his doctor to "get
off" the Sunday paper.
Respondent makes much of the fact that Dudley did not expressly complain of the
transfer on or about February 20 when it was imposed. It must be conceded, how-
ever, that his curt comment to Woodies, when he was informed of the action, that he
had "been expecting it," can hardly be construed as an expression of acquiscence or
pleasure with the new assignment. His failure to be more vehement or expressive was
attributed by him to the expectation that the Guild would "handle" the matter for him,
an expectation which was realized 3 days later, on February 23, when the Guild filed
its charge herein, alleging, inter alia, that Dudley had been discriminated against be-
cause of his union activities.
Though I am convinced and find that neither of the reasons assigned by Respond-
ent were in fact the motivating factors for transferring Dudley to the less desirable
night shift, the question still remains whether that transfer was imposed for the reasons
alleged in the complaint. In resolving that issue, however, the fact that Respondent
has assigned spurious reasons for the transfer is not without significance.
Consideration of the entire record has brought me to the conclusion that Dudley
was transferred to the night shift because of his union membership or activities. That
Respondent had knowledge of those activities by Dudley and the other alleged dis-
criminatees herein is conclusively established. The telegrams described earlier here-
in, in which all of the alleged discriminatees identified themselves as members of the
Guild's organizing committee, stand as mute evidence of that fact.
3 Connors further testified that "late in 1960 (Dudley] advised the Sunday editor
(Harrington) that he could no longer work on the Sunday paper Saturday night because
of his health; and he said that his doctor had so instructed him that he must get off the
Sunday paper because of the pressure of meeting the deadline early Sunday morning"
As previously indicated, Harrington was not called upon to testify
* Connors admitted "that the late night shift was [not] a much sought after position
LOWELL SUN PUBLISHING COMPANY 213
Nor is there any doubt that Respondent was opposed to the entry of the Guild into
the plant and that it sought to discourage its employees from becoming affiliated with
that organization. Lawlor's memorandum quoted earlier in this report, and his de-
meanor while testifying concerning his views on the right of Respondent's employees
to engage in collective bargaining, have, unhesitatingly, brought me to that con-
clusion . While both Lawlor and other supervisors of Respondent were within their
legal rights in expressing their views on that subject, their expressed attitude in that
respect may be considered in determining whether Respondent's conduct with respect
to any employee was motivated by the discrimination proscribed by the Act.
When consideration is also given to Harrington's query of Dudley on January 23
as to how strongly he "felt about the Guild," his undenied threat that "someone could
be hurt," and the timing of the transfer that followed so soon thereafter, the inference
must be drawn that Dudley's unsolicited transfer to the undesirable night shift was
brought about by his union activities and I so find. By that conduct, Respondent
violated Section 8(a)(3) and (1) of the Act.
Francis F. Breen, Jr.
Except for a period ending in 1954 during which he was engaged in military service,
Breen was employed in Respondent's editorial department as a sports writer from
July 1948 until March 20, 1961. In 1956, as a result of competition among members
of the staff, Breen became Respondent's television critic following which he received
two increases aggregating $15 per week. In May 1958, he was appointed Dracut
County correspondent to cover and report events of interest in that nearby com-
munity. Commencing in April 1960, he twice a week wrote the "Lookout," a byline
column of the sports page, for which he received a weekly pay raise of $10.
Breen joined the Guild on January 11, 1961, attended the meeting of January 15,
and identified himself to Respondent as a member of the Guild's organization com-
mittee by signing the telegram of the latter date. Thereafter, both while at work and
socially, he urged fellow employees to join the Guild.
On or about January 23, County Editor Killeen called Breen on the telephone and
told him that he had been instructed by Managing Editor Connors to get a new Dracut
correspondent. Upon inquiring whether Connors had given any reason for the
change, Killeen replied that Connors told him that there had been complaints about
Breen's coverage of the Dracut news. On February 21, Breen appeared as a witness
for the Guild in Case No. 1-RC-6236 and gave testimony in support of his conten-
tion that Sports Editor Sargent was a supervisor within the meaning of the Act, and
that the unit which the Guild sought to represent was an appropriate one. His testi-
mony in that proceeding was the subject of vigorous challenge and cross-examination
by counsel for Respondent.
In the publication of its daily newspaper, it was a practice of Respondent to
designate Sargent, the sports editor, McGarry, the assistant sports editor, or Breen
as "desk man" to check the first edition of the paper when it came off the presses
at noon. It was the duty of the deskman to read the sports pages of that edition
for possible corrections in the following edition. Though there was testimony that
the purpose of the check was broader, a subject hereafter further discussed, con-
sideration of all the testimony on that subject compels the conclusion that the
principal function, at least insofar as the sports pages were concerned, was to check
for typographical errors.
On Saturday, March 11, and again on Saturday, March 18, Breen was designated
as deskman for the sports department. During the morning of March 11, after per-
forming his duties in the preparation of the day's first edition, Breen told Owen
Flynn, another sports writer, that he was going to the Dracut town meeting which
had been scheduled for later that morning. Flynn testified that Breen asked him to
check the paper at noon for errors and he did so.
Breen attended the Dracut meeting of that morning and did not return to Re-
spondent's office during the remainder of the day. Respondent's issue of Tuesday,
March 14, contained a long double column report of the Dracut meeting under the
sports column byline carrying Breen's name. On Thursday, March 16, Breen went to
the office of Clem Costello, "one of the owners of the paper," to discuss a track meet
that Breen "was to run for the paper." In the course of the conversation, Breen
asked Costello about a memorandum he had received from him concerning Breen's
column of March 14 above mentioned, in which memorandum Costello asked
Breen to confine his remarks in that column to sports. After Breen called Cos-
tello's attention to the fact that well-known sports writers frequently discuss non-
sports items in their columns, Costello agreed it would be satisfactory to have Breen
do so, but not to the extent that it had been covered in his column of March 14.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's issue of Sunday, March 12, carried a news item announcing that the
Dracut town meeting of March 11 had been adjourned to Saturday, March 18, at
10 a.m.
On March 18, Breen attended to his usual morning duties and again went to the
Dracut meeting. Before leaving the office, however, he again told Flynn that "He
was going to the town meeting which had been adjourned from the week previous
and asked him to check the paper when it came out." When Flynn told him
he thought he "was sticking his neck out," Breen "just shrugged it off" with an
obscene remark.
Connors testified "he had a suspicion that Mr. Breen might be going to cover the
Dracut town meeting that Saturday morning," and about 10:30 a.m. called Flynn
and asked him whether Breen was there. Flynn replied that he was not, that he
didn't know where he was, or whether he would be back or not. Breen did not
return to the office during the remainder of the day.
Flynn testified that when the first edition came down on March 18, he checked
"for spelling errors and anything of that nature," a task which he felt competent to
perform and which he had performed "from time to time in the past [when] both
Mr. Sargent and Mr. McGarry asked [him] to check the paper at noon or to assist
them."
Early on Monday morning, March 20, Breen was called to Connors' office where,
after receiving Breen's admission that he had attended the Dracut meeting on the
previous Saturday and was not present to check the paper at noon of that day,
Connors said to him: "We are going to have to let you go. The reason, I guess,
is dereliction of duty." When Breen asked whether he could continue work that
day, Connors replied in the negative, whereupon Breen left the office.
It is the contention of the General Counsel that Breen was removed as Dracut
reporter on or about January 23, shortly after Respondent was advised of his status
as a member of the Guild's organizing committee, and that he was subsequently
discharged on March 20 because of his union activities. With respect to the first
event complained of, Respondent, both by its answer and posthearing brief, re-
stricted its defense to the contention that Breen was never deprived of that work or
the compensation therefor, because, it contends, the Dracut column was not con-
ducted by him but was written by Catherine Breen, his wife, and that "the contract"
for that column between Respondent and Mrs. Breen was terminated on January 23.
If Respondent ever had such a contract with Mrs. Breen, a fact which was not
established, it was not offered in evidence though contracts with other county cor-
respondents were. On the other hand, Breen testified, without contradiction, that
in May 1958 he was hired as Dracut reporter by County Editor Killeen; that he
wrote the column both in the office and at his home except for some social notes
that Mrs. Breen took over the telephone; that he covered the town meetings; and that
he received calls in the office concerning Dracut news and which calls were referred
to him by the county desk.
Respondent places great emphasis on the fact that the checks issued in payment
of the preparation of the Dracut column were all issued and made payable to Mrs.
Breen. Breen testified, however, and again without contradiction, that he asked
Killeen to have the checks made out to him and was told "that the Company made
the checks out to the wife so that they wouldn't have to collect social security or
income taxes." 5 It was also uncontradicted that Killeen and Harrington who, in
addition to their other editorial duties, also acted as county correspondents, "were
paid in the same manner." 6
It is also significant that if Mrs. Breen was in fact the Dracut correspondent, no
evidence was offered that she was ever notified that it was her services which were
terminated on January 23 as claimed by Respondent. On the other hand, the only
evidence on that subject establishes that it was Breen who was notified that a new
Dracut correspondent was being appointed on that day.
Inconsistent, too, with Respondent's contention that it was Mrs. Breen who wrote
and was responsible for the Dracut column is Connors' admission that following
receipt of a complaint from the Dracut superintendent of schools that a Dracut
column news item had allegedly been "slanted" against him, he called the matter
to Breen's attention and "told him [he] didn't want him to write in a slanted way
5 Respondent's Exhibits Nos. 5 and 6 establish that Respondent cast its county corre-
spondents in the role of independent contractors and made them responsible for the pay-
ment of unemployment insurance, old age retirement, and income taxes to State and
Federal Government.
0 See General Counsel's Exhibit No 12.
LOWELL SUN PUBLISHING COMPANY 215
again." 7 Indeed, Connors admitted he never made any complaint to Mrs. Breen
about the substance of any Dracut column.
If, as Respondent contends Mrs. Breen was in fact the Dracut correspondent, no
explanation was offered why Killeen, the county editor, was not called upon to
testify and refute Breen's undenied testimony that he was hired for that post by
Killeen. Its failure to call him warrants the inference that his testimony, if adduced,
would not be favorable to Respondent. Interstate Circuit v. United States, 306 U.S.
208, 225-226; N.L.R.B. v. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and
Schwalm Company, et al., 198 F. 2d 477, 483 (C.A. 3).
I am convinced and find that during all times relevant herein Breen was the Dracut
correspondent and that the reasons advanced by Respondent for the change in the
production of that column are a sham. I further find that Respondent, having no
valid reason for removing him from that post, resorted to the pretext that the column
was not his product but that of his wife, seeking thereby to hide its true motive for
terminating his services as Dracut correspondent.
"The failure to give a reason [for terminating Breen's services as such correspond-
ent] . . . may be considered by the Board . in determining the real motive
which actuated the discharge." N.L.R.B. v. C. W. Radcliffe and W. W. Mancke
d/b/a Homedale Tractor & Equipment Company, 211 F. 2d 309, 314 (C.A. 9). And,
any ,inference which may be drawn from the record that an employee had been dis-
criminated against is strengthened by the fact that the explanation offered by the
employer fails to stand under scrutiny. N.L.R.B. v. Bird Machine Company, 161
F. 2d 589, 592 (C.A. 1); N.L.R.B. v. Brezner Tanning Co., Inc., 141 F. 2d 62 (C.A.
1); N.L.R.B. v. Abbott Worsted Mills, Inc., 127 F. 2d 438, 440 (C.A. 1); N.L.R.B.
v. Thomas W. Dant, Robert E. Dant, et al., d/b/a Dant & Russell, Ltd., 207 F. 2d
165, 167 (C.A.9).
Turning now to Breen's discharge on March 20, it is the contention of Respondent
that "Breen was discharged for dereliction of duty in that on March 18, 1961, he
abandoned his job." Respondent argues in its brief that it was the duty of the
deskman of the sports department to check the first edition "for typographical errors,
libelous matter, to review stories that come in after the 8:45 a.m. first edition dead-
line to determine whether or not such stories are of sufficient importance to justify
a make-over of the second edition which is prepared after the first edition comes
out at noon and has been checked."
Though it is true that Breen left his post on March 18 without express authority,
the effect and seriousness of that conduct must be given consideration in determining
Respondent's true motive for discharging him. While it is well established that an
employer is free to discharge any employee for a good reason, a bad reason, or no
reason, so long as it is not, in fact, the employee's union activities, where, as here,
a reason for the discharge is ascribed, the consequences flowing from the misconduct
relied upon is an appropriate factor which should be considered in the search for
motive. The consequences of the misconduct has special significance in the case of
Breen who was employed by Respondent since July 1948, was admittedly a good
sports writer, and whose talents in other fields had been recognized and accordingly
rewarded.
Turning to a seriatim consideration of the specific duties which Respondent con-
tends were neglected on March 18, it will be recalled that both on March 11 and 18,
Breen, before leaving the office, asked Flynn to check the first edition when it came
off the press. Flynn had been one of Respondent's sports writers for 2 years and
prior thereto had, for 15 years, written a freelance column for Respondent. It is
beyond dispute that Flynn was fully competent to perform the first of the enumerated
duties of a deskman-to check for typographical errors, a task which he repeatedly
performed.
The second duty of all desk men is to check for libelous matter. Putting aside
the probability that such matter ever finds its way into a sports page, Connors ad-
mitted that he could not "recall any incident whereby the paper has been exposed
or would have been exposed to a possible libel suit because of what might have
appeared on the sports page."
With respect to the third duty of the deskman-to appraise later news items for
possible insertion in the second edition-Connors again conceded that he could not
"recall the last time the sports page was made over on a Saturday."
Respondent makes no claim that it suffered any loss or that any untoward incident
occurred because Breen left his office without personally checking the first edition
7In connection with this incident, Connors testified that he did not want "to quibble"
about the fact that he knew that Breen had written that column
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on either March 11 or 18. He had done so five or six times in the fall of 1960,
leaving Dudley in charge of that task and was never criticized or rebuked therefor
What makes Respondent's summary discharge of Breen more than suspect is the
harshness of its action and its failure to warn him against attending the Dracut meet-
ing on March 18. Connors admitted that he could not "recall the last employee of
the editorial department that was discharged . for any reason." This experience
included an incident when the neglect of a deskman "caused the paper to be exposed
to a libel suit."
Respondent knew that Breen attended the meeting of March 11 and, in his column
of March 14, had expressed great interest in the matter that had come before that
meeting and the further consideration of which had been postponed to March 18.
Indeed, on March 16, Costello, one of the owners of the paper, discussed the
contents of the March 14 column with Breen but made no mention of his necessary
absence from the office if he was to write concerning the adjourned meeting of
March 18. And, Connors testified that he was aware, "several days" before March
18, that the adjourned meeting was scheduled for that day, and that he suspected
that "Breen might be going to cover the Dracut meeting that Saturday morning."
Notwithstanding that "suspicion," he failed to warn or instruct him not to attend
that meeting.
In addition to the foregoing circumstances, there is direct evidence, which I credit,
indicating that Respondent's reliance on Breen's absence from the office on March 18
as the "only" reason for his discharge as claimed by Connors, was contrived, and
must therefore be considered a sham and subterfuge to cover its true reason.
S. G. Weisberg, employed by Respondent as a sports writer at the time of the
hearing herein, testified that 3 or 4 days after Sports Editor Sargent returned from
coverage of the Red Sox during spring training in Arizona, he gave Sargent a ride
to his home. During the course of a conversation at that time, Sargent told him
that "he had heard a report that the front office had set a trap for [Breen] up in
Dracut, the town meeting." 8 Sargent denied the statement attributed to him by
Weisberg but admitted that during the course of that conversation he agreed with
Weisberg that "it was too bad [they] lost Frank Breen," and that he "was amazed"
when he learned in an earlier telephone conversation from Palm Springs, California,
that Breen had been dismissed. I credit Weisberg's version of the conversation be-
tween the two men.
By reason of all the foregoing circumstances, coupled with its earlier discrimina-
tion by removing him as the Dracut correspondent, I find that by discharging Breen
on March 20 Respondent violated Section 8(a)(3) and 8(a)(1) of the Act.
The complaint alleges that Respondent also violated Section 8(a) (4) of the Act 9
by discharging Breen on March 20, 1961. Assuming that Respondent was not
pleased with the testimony given by Breen in the representation case contrary to
the position taken by Respondent therein, "the record is bare of any . . . evidence
tending to show that [his testimony] either prompted [his] discharge or was a
factor leading thereto. Therefore, and as [I] have already found that it was
[Breen's] engagement in activities protected by Section 7 of the Act that caused
[Respondent] to discharge him," I shall recommend dismissal of the complaint in-
sofar as it alleges that Respondent violated Section 8(a) (4) of the Act. Gibbs
Corpoi ation, 124 NLRB 1320.
One further matter remains for consideration in connection with Breen's dis-
charge-whether the usual reinstatement order should be recommended as part of
the remedy for -thatdischarge.
About 1 a.m. on June 7, 1961, Breen appeared at the editorial office of Respondent
and, in the presence of Sargent, engaged in a conversation with Dudley. Sargent
testified that Breen "had been drinking and [he] detected an odor of liquor." Dur-
ing the conversation with Dudley, Breen made some remark about a journalistic
venture in which he expected to engage and which would "print real juicy items,
exposes, etc., etc., including one on the travelling Mr. Costello and why he didn't
live with his wife."
Respondent contends that the foregoing incident is of such a serious nature as to
bar Breen's statement Without condoning Breen's conduct, it must be remembered
that Breen's remarks were addressed only to Dudley, and though apparently over-
6I find Sargent to be a supervisor within the meaning of the Act His testimony
warrants the inference that be had authority to hire, or to effectively recommend the
hiring of, a replacement for Breen
O That section makes it unlawful to discriminate against an employee because be has
"given testimony under this Act."
LOWELL SUN PUBLISHING COMPANY 217
heard by Sargent , were not, insofar as the record discloses , heard by any of the
other employees then in the department . The record also fails to disclose that the
remarks were reported to Costello or Connors, or that either of them were aware
of the incident prior to the hearing herein. It is, therefore , reasonable to assume
that it is only because of the interjection of that issue into instant proceeding that
the rumor has been further publicized.
Having found that Breen was discharged because of his union activities , effective
administration of the Act dictates that a remedial order should not be lightly denied.
Consideration of all the circumstances detailed immediately above, coupled with
the fact that Breen's remarks "might well have been the result of irritation caused
by losing [his ] job" 10 have brought me to the conclusion that his conduct on June 7,
while under the influence of liquor, is not of sufficient gravity to deny him the relief
uniformly granted to employees that have been discriminatorily discharged. N.L.R.B.
v. Reed & Prince Manufacturing Company, 118 F. 2d 874, 888 (C.A. 1); N.L.R.B.
v. Gonzalez Padin Company, 161 F. 2d 353, 358 (C.A. 1); N.L.R.B. v. Efco Manu-
facturing, Inc., 227 F. 2d 675 (C.A. 1).
Christine R. Hansen
Hansen has been employed by Respondent since November 1957 as a clerk typist
in the business office. She joined the Guild on January 12, 1961, attended three
Guild meetings thereafter , and was identified to Respondent as a member of its
organization committee by the telegram of January 16 aforementioned.
On January 20, 1961, there was a severe snowstorm in and about the city of
Lowell. Due to that storm, and the illness of her sister, Hansen called Respondent's
office and informed the telephone operator that she would be late in reporting.
Though scheduled to be at work daily by 8:30 a.m., Hansen did not report until
about 9:30 a in. and about,15 minutes later was summond to the office of Managing
Editor Lawlor.
Lawlor inquired why she was late for work and was told it was "because of condi-
tions at home." Lawlor asked which she considered more important, her family
or her job, and she replied, her family. Lawlor asked if she had ever had any
complaints about her work and, when she replied in the negative, Lawlor said:
"Well, you 're getting one now. If it happens again , that's it."
On February 6, 1961, when there was less than an inch of snowfall, Hansen
reported for work about 9:15 a.m. which she testified was occasioned by a breakdown
of the taxi she engaged to take her to work." Shortly after reporting , she was
handed a memorandum , bearing Lawlor's initials , and reading as follows: "You
reported for work 45 minutes late today; the 2nd instance of tardiness within 10
days. You are warned any further recurrence may result in termination."
Hansen admitted that in addition to the two incidents aforementioned, she had
been tardy and absent from work "a great deal," and had been told by her supervisor
in 1959 or 1960 that she would be paid only "for the time [she was] there because
of continued and repeated tardiness and absence."
The complaint alleges that Lawlor's reprimand of February 6 constituted a viola-
tion of Section 8(a)(1) and (3) of the Act, a contention which I cannot sustain.
While it is true that Respondent had knowledge of Hansen 's status as a member of
the Guild 's organizing committee , that status did not immunize her against threat-
ened disciplinary action if she repeated her tardiness. Though the timing of the
warning may be considered as a suspicious circumstance, on the entire record I find
that the General Counsel has not established by a preponderance of the evidence that
the reprimand was imposed for the reasons alleged in,the complaint. It will there-
fore be recommended that these allegations be dismissed.
The Wage Increases
Paragraph numbered 7(A) of the amended complaint alleges that during the
week of March 27, 1961, Respondent promised its employees economic benefits if
they would cease support of the Union. The only evidence in support thereof
pertains to a conversation between Dudley and Connors during the week of March
27, 1961. During the course of that conversation, Connors asked Dudley whether
this "Guild business" was not mainly concerned with "money." When Dudley
agreed that it was, Connors told him Respondent had "been thinking of something
along that line for quite sometime."
io N L R B v. Vermont American Furniture Corporation , 182 F 2d 842 (C A 2).
When Hansen walked to work, it took her 20 to 25 minutes.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though I have considered the entire conversation between the two men at that
time , and have viewed it against the existing background, I cannot conclude that
the challenged statement constitutes a "cogent offer or promise of benefits made
for the purpose of inducing employees to cease their support of the Union" as con-
tended in the General Counsel's brief. It will therefore be recommended that the
allegations of the complaint under consideration be dismissed.
There remains for consideration the allegations of paragraph numbered 7(B) of
the amended complaint charging that "in or about the week of July 18, 1961,
Respondent granted wage increases to various of its editorial department employees."
Though the General Counsel announced at the time leave was granted to add the
foregoing allegations that his proof with respect to that amendment was limited to
testimony already in the record and pertaining only to increases granted at that time
to employees Weisberg and Dudley, Respondent's own subsequent testimony estab-
lishes, and its brief admits, that increases were granted "to 37 other employees of
the editorial department at the same time." Respondent contends that all these
wage increases were "granted in the normal course of business and in accordance
with past custom."
Though Respondent requested, and was granted, an adjournment of the hearing
herein from August 4 to August 28, 1961, "to prepare a schedule showing [similarl
increases . over a period of 5 years," it failed to prepare or offer such a
schedule. The only witness called by Respondent who gave testimony concerning
the 39 wage increases was General Manager Lawlor. His direct testimony, on
August 29, 1961, concerning Respondent's "past custom" and practice was limited
to approximately 2 or 3 pages of the transcript of testimony, and was extremely
vague and in broad generalities.
On redirect examination, Lawlor sought to bolster his testimony by referring to
notes copiesd from his desk diaries for the past 10 years, but "not from the payroll
records." Again his testimony was, for the most part, in general terms 12 and with-
out specifying the number of employees involved with any degree of certainty or
accuracy. The failure of Lawlor to be more specific takes on additional signifi-
cance in view of the fact that Respondent was granted an adjournment of approxi-
mately 4 weeks to accurately supply this information. "The production of weak
evidence, when strong is available, can lead only to the conclusion that the strong
would have been adverse. Silence then becomes evidence of the most convincing
character." Interstate Circuit v. United States, 306 U.S. 208, 226.
Though Lawlor's testimony seems to indicate that some wage increases were
granted during the preceding 10 years in a helter-skelter fashion, Connors testified
that these wage increases were pursuant to a general change in the wage structure
that had been under study and consideration since 1958. Furthermore, Lawlor's
demeanor while testifying gave me the distinct impression that he had no desire to
supply the information which I had expected would be supplied in support of Re-
spondent's defense to the allegations under consideration.
The pay increases of July 1961 were granted while the Union's petition to be
certified as collective-bargaining representative was pending before the Board and
at a time when the call for an election, in which the benefited employees would
participate, was imminent. This, coupled with the unsatisfactory manner in which
Respondent sought but failed to convince me that these wage increases were granted
"in the normal course of business and in accordance with past custom," compel
the conclusion that they were granted in an attempt to dissuade the employees
involved from joining or supporting the Guild and thereby violated Section 8(a)(1)
of the Act. Willard's Shop Rite Markets, Inc., 132 NLRB 1146; Lancaster Garment
Company, 78 NLRB 935; Hudson Hosiery Company, 72 NLRB 1434.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, 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.
"E g, when asked to give the number of pay increases in a particular year, Lawlor re-
peatedly answered in the following manner: "probably 15 In maintenance and probably
15 in office and circulation. . I don't have the record in front of me . probably 60
people . . . probably 45 or 50 people . . probably somewhere in the vicinity of 60
people," etc.
BOSTON GAS COMPANY 219
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
I have found that Respondent discriminatorily removed Breen as Dracut corre-
spondent on or about January 23, 1961, and discharged him from all employment
on March 20, 1961. I therefore recommend that Respondent immediately offer
him reinstatement to both of his former positions, without prejudice to his seniority
or other rights and privileges. It is further recommended that Respondent make
Breen whole for any loss of earnings he may have suffered as the result of the
discrimination against him since March 23, 1961. All loss of earnings shall be
computed in accordance with the formula and method prescribed in F. W. Wool-
worth Company, 90 NLRB 289.
Having also found that Dudley was discriminatorily transferred to the night
shift, it is recommended that Respondent immediately offer him reinstatement to his
former daytime position on the Sunday edition, without prejudice to his seniority or
other rights and privileges.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) of
the Act.
2. Newspaper Guild of Greater Boston, Local 32, American Newspaper Guild,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily removing Breen as Dracut correspondent on January 23,
19.61, and by discharging him on March 20, 1961, Respondent violated Section 8(a)
(3) and (1) of the Act.
4. By discriminatorily transferring Dudley to the night shift, Respondent violated
Section 8 (a) (3) of the Act.
5. By interrogating its employees concerning their membership in or activities on
behalf of the Guild, and by threatening them with reprisals if they continued
their membership or activities therein, Respondent violated Section 8(a)(1) of the
Act.
6. By the grant of the wage increases on July 18, 1961, to dissuade its employees
from joining or supporting the Guild, Respondent violated Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. Respondent did not violate the Act by reprimanding Christine Hansen for her
tardiness.
9. Respondent did not violate the Act on or about March 27, 1961, or promise
its employees economic benefits if they would cease support of the Guild.
10. Respondent did not violate Section 8(a) (4) of the Act.
[Recommendations omitted from publication.]
Boston Gas Company and Utility Workers Union of America,
AFL-CIO, Petitioner and Local Union No. 12003 and Local
Union No. 12118, District 50, United Mine Workers of America.
Case No. 1-RC.-5691. March 12, 1962
SECOND SUPPLEMENTAL DECISION AND ORDER
CLARIFYING
CERTIFICATION OF REPRESENTATIVES
On November 4, 1960, after an election conducted pursuant to a
Decision and Direction of Election,' the Regional Director for the
a Boston Gas Company, 129 NLRB 369 . This Decision and Direction of Election was
subsequently modified by the Board in a Supplemental Decision, 130 NLRB 1230.
136 NLRB No. -14.