News-Texan, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 6, 1969174 N.L.R.B. 1035 (N.L.R.B. 1969) Copy Citation NEWS-TEXAN 1035 News-Texan , Inc. and Dallas Typographical Union, Local 173. Case 16-CA-3165 March 6, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On October 18, 1968, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as elaborated below. The Respondent operates a newspaper in Arlington, Texas. It is a wholly owned subsidiary of the A. H. Belo Corporation, which operates the Dallas, Texas, Morning News. The Dallas Typographical Union represents the Dallas newspaper employees, while the Arlington employees are unrepresented. Joy Lee Kropp, a union member, was employed as a teletypesetter operator at Arlington on September 10, 1967. She soon advanced to more responsible tasks, and was awarded a pay raise on November 7, 1967. Late in October or early in November, foreman Amrein told Kropp that the Company was installing a dataphone machine at Arlington to take over some work performed at Dallas. Kropp made this known to union officials, who were engaged in negotiations at Dallas. The Union speculated that the Company might perhaps be made to pay union rates to Arlington employees who would perform the transferred work. About November 7, Kropp told her friend and coworker Blakely about her conversation with the union officials. On November 8 Blakely told plant superintendent Ozment about it. On November 9, 2 days after her pay raise, Kropp was discharged. The Respondent admits that Kropp was discharged because she told union officials about the pending work transfer, but contends' that such disclosure constituted a breach of trust, since every newspaper employee stands in a confidential relationship to his employer as to information acquired in the course of employment. We find no merit in this contention Kropp's activity was clearly protected by the Act,' and we are not persuaded that she should be silenced simply because her employer is in the newspaper business. The Respondent also admits that Kropp was discharged because she told fellow employee Blakely that wages might be raised after the transfer of work from Dallas, but contends that such statement was a spreading of false information disruptive of employee discipline. We find no merit in this contention. Kropp's statement related to wages, and there is no evidence in the record to support a finding that her remarks were either malicious or manifestly destructive of employee discipline.3 The Respondent further contends that Kropp was discharged pursuant to a plan to reduce the work force in anticipation of transferring some work away from the Arlington operation. Like the Trial Examiner, we reject the testimony of the Respondent's officials that Kropp was selected about November 2 to be in a group of three employees, one of whom would be discharged. In addition to the facts that the Respondent hired a new employee on November 6, and that little reduction in work occurred for approximately 30 days, it is inherently incredible that Kropp would have been selected for a wage increase 2 days before her discharge, if the Respondent had previously designated her for termination. Moreover, assuming that such a designation of three employees did take place, the Respondent has offered no explanation why Kropp was selected for dismissal while two employees with lesser seniority and skills were retained.4 Nor does the record contain any explanation as to why the Respondent's implementation of its decision to reduce the work force was accelerated and made applicable to Kropp immediately after it had learned that she had engaged in protected activities S We find, accordingly, that Kropp was discharged because she had engaged in protected union activities. ORDER Pursuant to Section 10(c) of' the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as 'The Trial Examiner found no merit in the Respondent ' s contention at the hearing that the information Kropp disclosed to the union officials was confidential In its exceptions the Respondent seems to have abandoned its original position that the specific information was confidential , and now contends that "all employees, and in particular employees of a newspaper are under a special obligation with respect to knowledge obtained by them in the course of their employment " 'See Root-Carlin, Inc, 92 NLRB 1313, Salt River Valley Water Users' Association , v N.L R B 206 F.2d 325 (C A 9), Pioneer Natural Gas Company, 158 NLRB 1067, 1073-75 ' Walls Manufacturing Company, Inc, 137 NLRB 1317. 'See Serv-Air, Inc, 161 NLRB 382, 418-420 'See Dunclick , Inc, 159 NLRB 10, 16. 174 NLRB No. 136 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified below, and orders that the Respondent, News-Texan, Inc., Arlington, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 2(c) of the Trial Examiner's Recommended Order. 2. Delete the fifth indented paragraph of the notice. TRIAL EXAMINER'S DECISION BUCHANAN, Trial Examiner The complaint herein (issued January 31, 1968; charge filed November 24, 1967), as amended, alleges that the Company has violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, 73 Stat 519, by discharging Joy Lee Kropp because of her union and other protected concerted activities, and by otherwise interfering with employees' rights by a speech and letter noted below in connection with the motion to reopen. The answer, as amended, admits Kropp's discharge but alleges that it was due to a reduction in force and further that Kropp engaged in unprotected activity which warranted discharge After opening of the trial at Fort Worth, Texas, on March 26, 1968, the General Counsel and the Company entered into a settlement agreement over the Union's objection. Because of subsequent acts by the Company, the agreement was thereafter set aside and the case proceeded to trial on July 9 through 11, 1968, inclusive Counsel were heard in oral argument at the close Pursuant to leave granted to all parties, briefs have been filed by the General Counsel, the Company, and the Union, the time to do so having been extended The Union's requested findings and conclusions are adopted to the extent that they are necessary, consistent with, and included in the findings and conclusions herein I regret that seven intervening cases have delayed issuance of this decision Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Texas corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted, I find and conclude accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act IL THE REOPENING OF THE TRIAL Beyond posting the notice called for in the settlement agreement of March 26, the Company's president on that day made a speech to all company employees;' and on April 2 he distributed to the employees a copy of that speech I base no finding of violation of the settlement agreement or of the Act on the "overall tenor or tone" of the speech, or on the speech "in conjunction with" violations otherwise found Nor do I find it necessary to attach a copy of the speech, lengthy as it was But I do find that the following portion of the speech breached and violated the settlement agreement and certainly its purpose and spirit We would not have agreed to the Board's suggestion for a settlement if the following had not occurred The settlement calls for a posting by us for 60 days of a notice which contains five paragraphs. One paragraph reads, "We will offer Joy Lee Kropp immediate and full reinstatement to her former job without prejudice to any rights and privileges previously enjoyed" We agreed to this only because it was stated to us by the NLRB and Union officials that Joy Kropp does not want her job back Otherwise we would not have agreed to do this Another paragraph reads, "We will make whole Joy Kropp for any loss of pay suffered as a result of her discharge" We have learned through the NLRB and the Union lawyer that Joy Lee Kropp did not suffer any loss of pay as a result of her discharge and that we therefore will not pay her anything. Otherwise we would not have agreed to this provision of the notice More was said here than in the Brearley2 case, where the company's letter to its employees "stated that it would have no difficulty in complying with" the posted notice Aside from the need for me to rely on the Board's decision in Bangor Plastics,' and the question as there posed whether the employer's "notice suggests to employees that the Board's notice is being posted as a mere formality" and was thus "a patent attempt to minimize the effect of the Board's notice," the speech and letter here argue that the settlement was quite meaningless inasmuch as the stated requirements were known in advance to be without meaning or effect Even if true, such advice to employees minimizes not only the effect of the notice but also the value and conceivable effect of the Board's processes If, without the need for actual reinstatement with backpay, a notice calling for those remedies in general terms was made part of the settlement agreement, the speech and its distribution violated the spirit and was in derogation of and breached the settlement agreement. The terms with respect to reinstatement and backpay were not here determined after trial They were agreed upon in the settlement and, whatever the need to reinstate or to pay, or the absence of it, the agreement was not to be questioned, modified, or impaired ° The settlement agreement might have but did not include reference to a waiver of reinstatement or to absence of backpay because there was no loss of pay. Such additions would have modified the agreement as entered into But where these were not included, the Company was without warrant to add them by a separate speech and notice to each employee As the court noted in Bangor Plastics, the settlement agreement did "not amount to a finding or admission" of guilt It was neither more nor less than what the General Counsel and the Company had agreed. The agreement to post a notice presupposes that nothing else will be added or otherwise done to minimize it - and this is no less true when the agreed-upon notice is limited and may therefore be the more easily vitiated 'Unless otherwise noted, our attention throughout is directed to the Arlington plant 'The Brearley Company, 163 NLRB No 84 'Bangor Plastics , Inc , 156 NLRB 1165, enforcement denied 392 F 2d 772 (C A 6) 'Poole Foundry and Machine Company v N L R B, 192 F 2d 740, 743 (C A 4), cert denied 342 U S 954 NEWS-TEXAN The further communications by speech and letter were not justified by the fact that they were true The point is not whether the communication is a truthful or fair report, but whether there is a right to communicate beyond the express form of communication worked out, agreed upon, and approved. This is no matter of limitation on the right of free speech or communication By agreement the parties may limit or extend their right to communicate under given circumstances, they may declare the extent of communication The settlement agreement declared such communication, and the notice agreed upon defined it Aside from legal analysis, but viewed from the practical standpoint of management and the working force, the settlement was entered into to attain the desideratum of industrial peace as I had noted in suggesting the settlement Whatever the reasons, all were presumably satisfied since Kropp was employed elsewhere at a higher wage: she did not seek reinstatement and had not lost wages. But management did not rest on the practical solution thus found and the expression of it agreed upon in the settlement. The Company now sought to make capital of the situation Not content with achieving or maintaining good relations while it left behind this controversy which had now presumably been or was being closed by the settlement agreement, it continued the argument with further words. If it be asked whether one side is not as much as the other entitled to a "last word" in a practical working out of the settlement, the answer is that the agreement is the last word for all: the settlement had been entered into and the notice agreed to in haec verba The very discussion of and importance attached by all parties to the language in the notice (even to the Union's objection to the omission of certain language, which I overruled in permitting the settlement), reflects its finality. But this was disparaged by the further notice issued by the Company in its speech and letter If the Company's assent to the settlement was reluctant (there was no indication of this, and there could be none in a voluntary settlement), that assent tottered and vanished with the superimposition of the now unilateral argument, which was different in both content and tone from that which had been agreed upon For these reasons, I granted the General Counsel's motion to reopen the hearing I have elsewhere and more than once deplored failure to effect a settlement in the interest of industrial peace and to the apparent benefit of all concerned It is quite as deplorable that an agreement once entered into and reflecting an expressed meeting of the minds is violated I make no findings concerning the reference in the speech and the letter of April 2 to the "other three paragraphs of the notice' assuring against discharge or interference with employees' rights and declaring those rights with the statement that "that is the law. . The company has always obeyed the law " Beyond repetition of the references to no reinstatement or backpay, the letter declares the Company's attitude and opinion in a manner which is not itself violative and need not be considered in the findings above that the settlement agreement was breached, nor in the context of those findings do these later declarations constitute violations of the Act. The General Counsel's characterization in the amended complaint that in the speech to the employees the Company told them, "in effect, that testifying in an unfair labor practice hearing would result in jeopardy to 1037 their job security, that the Union was powerless to help them obtain better working conditions ." is incorrect and unwarranted The Company was not here questioning the employees' right to organize or otherwise restraining them ' I thus find that these statements do not constitute independent violation of Section 8(a)( 1) The remedy for the statements which breached the agreement lay in setting aside the settlement and in an order directing rescission of the Company's letter and speech, without an additional finding of violation thereby, all as in Brearley, supra With the settlement set aside, we come to consideration of the of iginal allegations III THE ALLEGED VIOLATION OF SECTION 8(A)(3) In contrast to the detailed explanation for reopening the hearing, we can omit the harrowing (because unnecessary) details submitted to show that the discharge, clearly so, was violative This is quite apparent from the facts (without the "inferences" so many times requested at the trial), which can be largely taken from company witnesses and concerning which there is little dispute despite the markedly repetitive questioning We have belated agreement by the General Counsel as he now promises but does not quite succeed in touching upon "[o]nly the major issues" in the hope that he will aid the Trial Examiner "in sifting out the most relevant evidence " It is undisputed that Kropp was hired on September 10, 1967, as a Teletypesetter operator and that during the 2 months of her employ was advanced to proofreading and correction of final copy Aside from these assignments, the quality of Kropp's performance can be judged in the light of a notice of an inciease already effected, of which her foreman, Amrein, informed her on November 7 The reasons now assigned by the Company for her discharge on November 9 are (1) Kropp's unauthorized disclosure of confidential information, (2) reduction in force compelled by economic conditions, and (3) unauthorized disclosure of false information to another employee About 2 days before her discharge, Kropp told Blakely, a fellow employee and friend, to whom she had spoken several times of her union sympathies, about a conversation which she placed a week or a week and a half before November 9, in which Amrein told Kropp that the Company was setting up a Dataphone machine She further told Blakely that the machine would be used to run tape with material from the Dallas Morning News, where employees are represented by the Union, that she had told this to two union officials, who told her to report further developments, and that they were excited about this, not only because of its effect on Dallas employees, but because of what they might accomplish here, they would compel the Company to pay union wages to employees who performed work previously done at Dallas. Torn between dual loyalties but finally persuaded by her sense of propriety and comparative right, Blakely on November 86 informed her former supervisor and, at the latter's instance, Ozment (misspelled as Azment in the transcript), the plant superintendent. In the meantime, concerned with costs and the expected return to another plant of work which a few months before had been transferred to this plant, Johnson, the 'Cf N L R B v M E Blatt Company, 143 F 2d 268, 273, 275 (C A 3), where an organizing drive was in esse 'Various dates were not fixed with exactitude 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's president, had about a week before November 9 discussed with Ozment the need to reduce the force Three employees were named as possibilities in this respect, Kropp, Cook, and Lock Now with knowledge of Kropp's talk with Blakely and her visit to the Union, Ozment selected her for discharge, received Johnson's approval, and directed Amrein to effect the discharge at once. This the latter did While Kropp testified that Amrein said that he had been told to let her go, but could not tell her why, Ozment told us that he had instructed Amrem to say that she was being discharged because of a reduction in force Not only were the other reasons now offered, unauthorized disclosure of confidential and of false information, not given to Kropp, but the Company's personnel form lists as the sole reason for her discharge- Reduction in work force. I deem it unnecessary in this case to expand on the element of shifting or addition of reasons . This has not been emphasized by the General Counsel, who does refer to "defense . raised for the first time" and a shift from the original defense Were reduction in force and selection of Kropp otherwise warranted, any need to reduce was certainly not the reason for discharging Kropp approximately a month earlier than otherwise indicated. Work was returned to the other plant a month or more later, the process having begun earlier, and to that extent the reduction in force was admittedly effected earlier than planned or than allegedly required under the Company's plan. If return of work to the other plant was in fact based on economic considerations' and one employee had to be terminated (aside from any question of transfer or temporary layoff as others were soon thereafter hired), there is no credible explanation for the allegedly tentative selection of Kropp and two employees junior to her, one of the three to be discharged, from among some half dozen operators in the Teletype department on the night shift No precedent for naming three was suggested. Nor was any explanation offered, even when the question was directly put, for not extending the group under consideration to four since, as Johnson told us, efficiency was considered in connection with the discharge, so as to make comparison with at least one who was senior to Kropp, or limiting it to two, Cook and Lock, who had been hired on October 10 and November 6,8 respectively Beyond this, the latter hiring only 3 days before Kropp was discharged belies the alleged need and discussion' about a week before for a reduction in force, and although they testified that Lock was considered for discharge a week or so before Kropp's termination, Johnson and Ozment could hardly have contemplated Lock's discharge before her employment commenced Nor, even if it be unkind to dwell on this further, was seniority the sole distinguishing l actor Admittedly Kropp could do and had performed the jobs done by the other two (several senior employees had not performed some of her work), and during her last 3 weeks on the job she had been given more overtime work than anyone else in the group Conversely, neither Cook nor Lock could do some of the work performed by Kropp The alleged and unexplained naming of the three would be pretextual were 'The Company' s business judgment is not here questioned The issue is of credibility and pretext 'In fact, a third employee , Davis , hired on October 31 , was also junior to Kropp 'It was evidently after this discussion that it was decided to give Kropp a wage increase it not false, and I do not credit that testimony In fact, all of this reflects on the Company's good faith and the credibility of its witnesses in connection with the other alleged reasons. With respect to disclosure of confidential information, it is true that an employer may prefer to make its own disclosure of operational plans even if, as Johnson told us, such plans are not confidential" and disclosure by an employee is not harmful But such preference, unsupported by necessity, cannot limit the rights of employees to engage in concerted activities as Kropp did here when she took to the Union information which could affect the work and therefore the employees at News-Texan or at the Dallas Morning News, another" employer, which has a bargaining relationship with the Union As for the third reason alleged, Kropp's statement to Blakely concerning transfer of work from Dallas Morning News employees to employees of this Company with the possibility of a marked increase in pay, even if erroneous, also constituted protected concerted activity since at the least it related to wages and encouraged support of the Union Certainly there is no suggestion, much less evidence, that Kropp was prompted by malice '= 1 find and conclude that Kropp was discharged because of her union support and activities An employee may engage in protected concerted activities before a union has entered the picture or begun an organizing campaign Unlike cases cited by the Company, the activities which the Company here found objectionable directly involved the Union The Clearwater Finishing case ' 3 is distinguishable since Kropp was under no special obligation or trust with respect to the information which she submitted Were she limited in that connection, she and other employees would be barred from disclosing any information in the course of concerted activities It is unnecessary to detail here the negotiations and problems facing the Union and the Company's parent corporation. The latter is not before us even if it "[nlever notified the charging union " of a change which it was making RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that the Company, News-Texan, Inc , Arlington, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from: (a) Discouraging membership in Dallas Typographical Union, Local 173, or in any other labor organization by discriminatorily discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act "We recall that one reason given was that Kropp had disclosed confidential information Not only did Johnson deny any confidential aspect , but his earlier testimony that the Dataphone was installed " toward the end of October" and that employees were not told that it was confidential suggests the pretextual nature , whatever its sufficiency under any circumstances , of this reason for Kropp's discharge "Pioneer Natural Gas Company. 158 NLRB 1067, 1068, 1073 "Cf Wails Manufacturing Company , Inc, 137 NLRB 1317, 1319 "Clearwater Finishing Company , 100 NLRB 1473 NEWS-TEXAN 2. Take the following affirmative action which is necessary to effectuate the policies of the Act- (a) Offer to Joy Lee Kropp immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay sustained by reason of the discrimination against her, with interest to be computed in the customary manner, 14 and notify her, if she is presently serving in the Armed Forces of the United States, of her right to full reinstatement upon proper application after discharge from the Armed Forces (b) 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 reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommened Order. (c) Distribute a letter to its employees which rescinds the speech and letter of April 2, 1968 (d) Post at its place of business in Arlington, Texas, copies of the attached notice marked "Appendix "' Copies of said notice, on forms provided by the Regional Director for Region 16, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.16 "The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch , 65 NLRB 827, Crossett Lumber Company, 8 NLRB 440, Republic Steel Corporation v N L R B . 311 US 7, F W Woolworth Company, 90 NLRB 289, 291-294 , Isis Plumbing & Heating Co, 138 NLRB 716 "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in 1039 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Dallas Typographical Union, Local 173, or any other labor organization by discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self -organization, to form labor organizations, to join or assist Dallas Typographical Union, Local 173, 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 collective bargaining or other mutual aid or protection, or to refrain from any or all such activities WE WILL offer to Joy Lee Kropp immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay suffered as a result of the discrimination against her. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL distribute a letter to our employees which rescinds the speech and letter of April 2, 1968 All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization Dated By NEWS TEXAN, INC (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921 Copy with citationCopy as parenthetical citation