Northern Virgina Sun Enterprise

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 730 (N.L.R.B. 1962)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the receipt of this Intermediate Report and Recommended Order , what steps
it has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF PENOBSCOT BAY LONGSHOREMEN 'S LOCAL 1519 AND
TO ALL APPLICANTS FOR EMPLOYMENT AND EMPLOYEES OF JARKA CORPORATION
OF NEW ENGLAND
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT maintain nor sanction any practice with Jarka Corporation of
New England which gives preference in employment to union members.
WE WILL NOT approve, maintain or sanction the practice of union members
"bumping" nonunionmen performing day-to-day jobs on ships at the dock or in
the warehouse at the port in Searsport , Maine.
WE WILL NOT cause or attempt to cause Jarka Corporation of New England to
discriminate against any employee or applicant for employment in violation of
Section 8 ( a)(3) of the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights guaranteed in Section 7 of the National Labor
Relations Act.
WE WILL make whole Walter S. Hickson and Ernest Beam for any loss of
earnings they have suffered because of the discrimination against them.
PENOBSCOT BAY LONGSHOREMEN'S LOCAL 1519,
Labor Organization.
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.
ERS Corporation and Orrington -Evanston Company, a joint
venture t/a Northern Virginia Sun Enterprise 1 and Washing-
ton Newspaper Guild , Local 35, American Newspaper Guild,
AFL-CIO. Case No. 5-CA-1927. March 30, 1962
DECISION AND ORDER
On December 15, 1961, Trial Examiner Morton D. Friedman 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
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof. The Gen-
eral Counsel and the Charging Party also filed briefs in support of
the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
1 The Employer' s name appears as amended at the hearing
136 NLRB No. 64.
NORTHERN VIRGINIA SUN ENTERPRISE 731
nection with this case to a three-member panel [Members Rodgers,
Fanning, and Brown].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner .2
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 ERS Corporation
and Orrington-Evanston Company, a joint venture t/a Northern
Virginia Sun Enterprise, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Washington Newspaper Guild,
Local 35, American Newspaper Guild, AFL-CIO, or any other labor
organization of its employees, by discharging or in any other manner
discriminating against any employee in regard to 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 their right to self-organization, to form,
join, or assist Washington Newspaper Guild, Local 35, American
Newspaper Guild, AFL-CIO, 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 en-
gaging in such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Coleman Bart immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of earnings he may have suffered as a result of the discrimination
against him,.as provided in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports,
2 See Paramount Cap Manufacturing Co , 119 NLRB 785, enfd. 260 F. 2d 109 (C.A. 8),
rehearing denied November 7, 1958; Plumbers d Pipe Fitters Local Union 211 (D. L.
Bradley Plumbina and Heating Co.), 131 NLRB 942, enfd. 298 F. 2d 427 (C.A. 7).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its office and plant at Arlington, Virginia, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Fifth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by the Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places --here notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
MEMBER RODGERS concurring :
I concur in the result.
In 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 our employees that :
WE WILL NOT discourage membership in Washington News-
paper Guild, Local 35, American Newspaper Guild, AFL-CIO,
or any other labor organization by discharging or otherwise dis-
criminating in regard to hire or tenure of employment, or any
term or condition of employment of our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL offer to Coleman Bart immediate and full reinstate-
ment to his former or a substantially equivalent position, without
prejudice to any seniority or other rights and privileges pre-
NORTHERN VIRGINIA SUN ENTERPRISE 733
viously enjoyed, and make him whole for any loss of pay suffered
as a result of the discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of Washington Newspaper Guild,
Local 35, American Newspaper Guild, AFL-CIO, or any other labor
organization.
ERS CORPORATION AND ORRINGTON-EVANSTON
COMPANY, A JOINT VENTURE T/A NORTHERN
VIRGINIA SUN ENTERPRISE,
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, Sixth Floor, 707 North Calvert Street, Baltimore 2, Maryland,
Telephone Number Plaza 2-8460, Extension 2104, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Washington , D.C., on various days between September , 18 and 29,
1961, on the complaint of the General Counsel and answer by the Respondents. The
issue litigated was whether ERS Corporation and Orrington -Evanston Company, a
joint venture t/a Northern Virginia Sun Enterprise ,' herein called collectively the
Respondent , discriminatorily discharged Coleman Bart for union activity in viola-
tion of Section 8 (a) (3) and ( 1) of the Act. All parties were aff orded full oppor-
tunity to examine and cross-examine witnesses , to introduce evidence , to present oral
arguments , and thereafter to file briefs . The parties waived oral argument . Briefs
were received from the General Counsel , counsel for the Respondent , and counsel
for the Charging Union.
Upon the entire record , and from my observation of the witnesses , I make the
following: 2
i The charge and the complaint named as Respondents George W Ball , Philip M.
Stern, and Arnold Sagalyn, a copartnership t/a Northern Virginia Sun Publishing Com-
pany & ABT Corporation and Orrington -Evanston Corporation , a joint venture t/a
Northern Virginia Sun Enterprise At the hearing , the parties jointly offered in evidence
a stipulation , which was received , wherein it was agreed that the parties named in the
caption herein were the proper parties respondent and that the complaint be dismissed
with prejudice as against George W Ball, Philip Al . Stern, and Arnold Sagalyn in-
dividually and as copartners t/a Northern Virginia Sun Publishing Company and that
the said parties be deleted as parties respondent . Accordingly , the caption is amended
to reflect the terms of the stipulation.
2 Unless specifically indicated to the contrary any credibility evaluation I make of the
testimony of any witness appearing before me is based , at least in part, upon his or
her demeanor as I observed it at the time the testimony was given Cf Bryan Bi others
Packing Company, 129 NLRB 285 . To the extent that I indicate hereafter that I reject
in part or entirely the testimony of any given witness, it is my intent thereby to indi-
cate that such part or whole of the testimony, as the case may be, is discredited by me.
Jackson Maintenance Corporation , 126 NLRB 115, 117, footnote 1.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent has its principal office and place of business at Arlington, Virginia,
where it is engaged in the publication of a newspaper known as the Northern
Virginia Sun which is distributed in the northern Virginia area daily except Sundays.
During the 12-month period immediately preceding the issuance of the complaint
herein, a representative period, the Respondent's newspaper had a gross volume of
business in excess of $200,000. During this period the newspaper subscribed to
Interstate News Services for which a substantial amount of money was paid, adver-
tised nationally sold products for which a substantial amount of money was received,
and published nationally syndicated features for which a substantial amount of
money was paid. During the period aforementioned, products and materials of
substantial value were purchased from points located outside the Commonwealth of
Virginia for use by the Respondent's newspaper.
Upon the foregoing, I find that the Respondent is engaged in commerce within
the meaning of the Act, and that it will effectuate the policies of the Act to assert
jurisdiction in this proceeding.
IL THE LABOR ORGANIZATION INVOLVED
Washington Newspaper Guild, Local 35, American Newspaper Guild, AFL-CIO,
herein called the Guild, is a labor organization within the meaning of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. The issue
The sole issue presented is whether Coleman Bart, a display advertising salesman
employed in the Respondent's advertising department, was discharged for advancing
the cause of the Guild among the Respondent's advertising department employees or
whether he was discharged because he failed to meet the standards required by the
Respondent of its advertising sales force. Subsidiary to this issue is the question of
whether consideration of certain testimony which, if credited, would tend to show
that Bart was discriminated against, is barred by Section 10(b) of the Act.
B. The facts
Bart was hired by the Respondent in March 1958 as a real estate display advertising
salesman upon the recommendation of one Davenport then the Respondent's adver-
tising manager. For approximately 10 years prior thereto, Bart had worked at sell-
ing real estate advertising for other newspapers in the metropolitan Washington, D.C.,
area. Approximately 1 year after he was hired, Bart received a $10-a-week increase
in salary. It should be noted at this point that Bart did not work on a commission
basis but on a straight salary so that earnings did not depend upon the volume of
business which he brought to the Respondent.
Bart's work evidently continued to be satisfactory and in approximately Janu-
ary 1960, when another salesman who sold general display advertising left the
Respondent's employ, Bart was given many of the accounts formerly handled by
this salesman. Bart also retained his major real estate accounts and turned over
some of the smaller real estate accounts to another salesman. At about this same
time, in addition to being given the additional job of selling general display adver-
tising, Bart was also appointed an assistant to Advertising Manager Davenport. In
this capacity, Bart acted for Davenport when Davenport was not present. Accord-
ing to Bart's uncontroverted testimony, by this time he had increased the real estate
display advertising carried by the paper to at least five and perhaps as much as eight
times the lineage which the paper had carried at the time Bart was first hired.
On March 1, 1960, Ray J. Taylor became general manager of the paper and, in
such capacity, was the superior of Davenport and the person to whom Davenport
was immediately accountable. Evidently, from the time that Taylor took over
as general manager, he and Davenport disagreed on various policies and friction
developed between them. As a result of this situation, Davenport ultimately resigned
in August 1960, and at that time Gene Eckerson, who had been hired by Taylor in
July 1960, replaced Davenport as advertising manager. This left Bart without his
chief proponent, Davenport, as his immediate supervisor.
The good record that Bart had made in his earlier years with the Respondent evi-
dently continued up through the first part of August 1960. Thus, between-January 1
and July 31, 1960, Bart led all other salesmen in the amount of display advertising
lineage sold. In fact, it is uncontroverted that Bart sold during that period $83,000
NORTHERN VIRGINIA SUN ENTERPRISE 735
worth of advertising which was $29,000 more than the amount sold by the next
highest salesman and $39,000 more than the amount sold by Blackwell Hawthorne,
who eventually replaced Bart as assistant to the advertising manager in August 1960.
At no time before August 1960 was there any complaint lodged against Bart by any
of his superiors about the way he performed and, in fact, he received compliments
on his work from his various superiors and from customers of the paper.
Attendant upon the changeover of management of the advertising department from
Davenport to Eckerson and the strong hand that Taylor then took with regard to'
policy in that department, there was some confusion and consternation among the
salesmen. As a result, in July 1960, Bart became a member of the Guild and signed
an authorization card. Employees Glover and Hanna also signed cards. Thereafter
Bart attempted to induce other employees in the advertising and art departments to,
sign cards. All this activity took place in the office of the paper. Among others,
Bart talked to employees Woodward, Rose, Hitt, and Lawrence. Also, in August,
1960, Bart sought to induce attendance at a meeting to be held by the Guild in a
local restaurant in an attempt to induce employees to become members. Included
in Bart's activities on behalf of the Guild was a conversation with Philip Stern, then
one of the publishers of the paper. The meeting took place in Stern's office, at which
time Bart told Stern that if something was not done to relieve the tension and harass-
ment in the office, the Guild was going to organize the advertising department of
the Sun.
Thereafter, sometime between August 15 and 22, 1960, while Bart was absent on
vacation, a number of the advertising accounts which Bart had been handling were
taken away from him and redistributed to other employees. Also, during that
period, Bart was demoted from assistant to the advertising manager and Blackwell
Hawthorne was given Bart's position as assistant to the advertising manager All
this was accomplished without notice to Bart and the first indication that he had
regarding this action came on August 22, 1960, after Bart returned from his vacation
and called upon several of his accounts and learned from them that he was no
longer to be their salesman.3 After the accounts were transferred from him to the
other employees, Bart was given an abbreviated list of accounts upon whom he could
call and was assigned to sell advertising to chain food stores and department stores
and was also assigned to shopping center promotion. Bart continued in this work
until he was discharged.
On February 20, 1961, Taylor told Bart that the latter's figures had dropped
terrifically and that Bart did not fit in with the group that Taylor had brought in
to the paper. He informed Bart that he should look for another position because
he would be terminated as of March 31. While telling Bart this, Taylor pointed to
a chart for the week ending February 18, 1961, which chart reflected the number
of ads plus the lineage that each of the salesmen sold during that week. The chart
indicated that Bart had sold 2,350 lines in advertising and that Bart ranked fourth
among the 8 salesmen who sold lineage that week.
Thereafter, on March 6, 1961, Edward Campbell, who had become advertising
manager on February 27, 1961, informed Bart that the latter was finished as of
that day and that he needed Bart's desk. He further informed Bart that he had
studied Bart's record and that it was "not too impressive." At that time, Campbell
had been in the Respondent's employ only about 1 week, and the lineage chart for
that week showed that Bart sold 3,047 lines of display advertising and was fifth
among the 9 salesmen selling lineage for that week.4
Campbell testified that he had had a 3-day observation period prior to his being
hired as advertising manager during which he observed all of the employees in the
department, and during that time Bart had appeared to be doing nothing. Campbell
also went out to prospective advertisers to observe how the salesmen operated and
one afternoon he accompanied Bart and was sorely disappointed in Bart's per-
formance He observed that Bart had sat around most of the morning of that day
and then rather late in the afternoon, after a late return from lunch, Bart finally
took him to the establishment of one advertiser, who was not present in his place of
business, so that the call and the time were completely wasted. Campbell emphasized
that Bart had not taken the trouble to telephone first, a poor practice on the part of
an advertising employee. In this way, testified Campbell, he was able to confirm
what Taylor had already informed him, namely, that Bart had displayed a lack of
From the credited testimony of Bart, which testimony was uncontradicted to the
extent that the Respondent did not offer evidence that Bart was notified in advance of
his return from his vacation that the accounts were transferred from him to other
advertising department employees
*All of the foregoing from the credited testimony of Coleman Bart
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enthusiasm and that Bart was a dissident employee who was contributing little or
nothing to the enhancement of the advertising department. Moreover, Campbell
further testified, in the week that he observed Bart after Campbell had become the
advertising manager, his earlier convictions were confirmed with regard to Bart.
Thus he observed that, if anything, Bart was even more indifferent about his work
than he had been at the earlier period.5 Campbell also stated that Bart had not
brought in any lineage that he could notice, although Bart finally did get a small ad
from one customer, Safeway Electronics.
Aside from the fact that the chart for the week that Bart was discharged shows
that Bart did get extensive lineage from other advertisers in addition to Safeway
Electronics, I do not credit Campbell to the extent that he testified that Bart was
discharged for lack of enthusiasm and for poor work for reasons hereinafter set
forth.
Countervailing Campbell's testimony and testimony of Taylor to the effect that
he decided to get rid of Bart because of Bart's poor performance and his failure
to bring in new accounts after August 22, 1960, the date on which a number of Bart's
accounts were transferred from him, Bart testified that within a week or so after his
accounts were transferred from him Taylor told him that he was dissatisfied with Bart
because Bart had joined the Union and also because Bart had been close to Daven-
port and he felt that Bart was not fitting in with the pattern at the advertising
department. Even at that time, Taylor told Bart that although he was not discharging
him he should look for another position.
The foregoing testimony of Bart is supported in large part by the testimony of
Gene Eckerson. Eckerson, who took over as advertising manager after Davenport
had left testified that he was told by Taylor to have somebody attend the proposed
Guild meeting and Taylor also told him that anyone who had anything to do with the
Guild "would be out of there " Eckerson further testified he removed Bart from his
position as assistant to the advertising manager and removed Bart from many of
his accounts at the insistence of Taylor. Taylor told Eckerson that Bart would have
to go because Bart was a Davenport man and also because Bart was instrumental in
Guild activity. Eckerson also testified that Bart was to be relieved of many of his
duties so as to reduce his importance to the paper and that this would make it tough
for Bart and put him on something seemingly impossible Although Taylor denied
in his testimony in broad terms that he did not make any antiunion remarks to Bart,
he did not deny Eckerson's testimony. I credit Eckerson and Bart in this respect
not only because their testimony is mutually corroborative, but also because Ecker-
son's testimony was not denied by any Respondent witness.6
In crediting Eckerson in the foregoing respect, I also credit his testimony to the
effect that he did not always condone Bart's behavior; that Bart was unable or at
least did not make a proper effort to write copy; and that Eckerson had reprimanded
Bart for this.
As heretofore briefly outlined, during Bart's vacation in August 1960, the Re-
spondent took from Bart a number of his major accounts. The Respondent's wit-
nesses, Hawthorne and Taylor, testified that these accounts were taken from Bart
as part of a redistribution of accounts on a geographic basis, which method of oper-
ation was adopted by the Respondent for the purpose of establishing an orderly
system of responsibility for the accounts and to more efficiently utilize each sales-
man's time and to save waste motion. Hawthorne testified further that other sales-
men also lost accounts. This latter testimony was corroborated to a certain extent
by Charles J. Lawrence, another salesman who was a contemporary of Bart's and
who was still working for the paper at the time of the hearing. Lawrence testified
that he lost some of his largest accounts through the redistribution, although he ad-
mittedly picked up some of Bart's accounts. Thus Lawrence testified, without con-
tradiction, that although he picked up approximately 36,000 lines of advertising
through the transfer of Bart's accounts to him that, nevertheless, he had transferred
from him accounts which in the year prior to the transfer had brought him 184,000
Dines of advertising
However, none of the Respondent's witnesses denied that Bart's accounts were
withdrawn from him without prior notice or explanation while he was on vacation.
5It should be noted here that by this time Bart had already been informed of his
discharge effective in March
e The Respondent contends that Eckerson, having been discharged from his position
as advertising manager for improper personal behavior, was a biased and prejudiced wit-
ness who cannot be believed
Although Eckerson may have been nursing a grievance
against Taylor, and perhaps against the Respondent generally because of unhappy in
cidents which occurred at the time he was discharged, his testimony relates back to the
period prior to his discharge and is confirmed by Bart's testimony.
NORTHERN VIRGINIA SUN ENTERPRISE 737
Eckerson testified that no other salesman was treated in such manner. Thus, although
Hawthorne testified that the actual geographic redistribution of accounts was done
very gradually and was not effectuated to any extent until sometime in November
1960 he did not deny that Bart alone had had his accounts taken from him in this
peremptory manner. Furthermore, Bart was not given accounts within a specific
geographic area, but rather was assigned accounts which necessitated Bart's traveling
all over the entire northern Virginia and Washington area. The fact that Bart was
not given a specific geographic territory was explained partly by the fact that Bart was
assigned accounts which were agency and food and chain store accounts which were
larger accounts and more difficult to obtain. Taylor, Hawthorne, and the General
Counsel's witness Eckerson testified that because of Bart's experience in the field it
was deemed in his case to be more efficient and more useful for Respondent's
purposes to assign Bart to these accounts which requited a superior type of salesman-
ship than to the ordinary accounts located within specific geographic areas. On the
other hand, Eckerson and Bart testified that most of these accounts had discontinued
advertising in the paper at a prior time because of the differential between the rates
charged by the Respondent and those by the larger metropolitan papers, and that
therefore these accounts were virtually impossible to regain for the paper. Although
the Respondent introduced Bart's call sheets,7 none of which showed that Bart had
been unable to make sales because the prices were out of line, these call sheets were
not complete and did not cover the entire period
The testimony with regard to the number of accounts which were transferred
from Bart to other advertising department employees is more conflicting than the
reasons why the accounts were taken away.
Bart testified on direct examination that he had been servicing 40 or 50 accounts
before he went on vacation in August 1960; that while he was on vacation his ac-
counts were taken from him; that subsequently some of the accounts, including all of
his major real estate accounts were returned to him because the advertisers demanded
that he service their accounts and because in some instances the salesmen to whom
the accounts were transferred were unable to handle them for one reason or another.
Bart further testified that at the time of his discharge he was permitted to handle
only about 14 accounts. However, on rebuttal, after having had an opportunity to
examine certain charts prepared by the Respondent Bart changed these figures and
testified that before August 1960 he was servicing approximately 98 accounts and
that after August 1960 he serviced approximately 30 accounts.
In contrast to this testimony and to show that (a) Bart's testimony as to the
number of accounts he lost or retained was unreliable and (b) Bart was not mis-
treated, the Respondent introduced a chart purporting to show the listing of each
account handled by Bart prior to August 1960, and what happened to each account
thereafter. On the face, this chart shows that only 16 accounts were transferred from
Bart. However, William I. Buckner, the Respondent's controller who made the
chart and through whom the chart was identified and introduced, admitted that in
many instances he made the determination of whether Bart lost or retained an
account by checking daily account summary sheets for December 1960 and January
1961, and that in other instances, those marked by an "X," the information was sup-
plied by Blackwell Hawthorne. However, on cross-examination Hawthorne stated
he did not assist in preparing the chart It should also be noted in connection here-
with that Hawthorne, though he could remember upon examination by Respondent's
counsel what accounts Bart retained, could not remember on cross-examination what
accounts Bart had lost. He also admitted he had nothing to do with the assignment
of accounts. In any event, it is evident from the chart that at best it reflects the
condition of accounts at or around December or January of 1960-61 and does not
reflect with any accuracy what actually occurred in August 1960. Accordingly, it
cannot be relied on to (a) refute Bart's testimony that accounts were taken from him
and then returned or (b) establish that Bart was inaccurate in his recollection of how
many of his accounts he retained, lost, later received back, or acquired as new
accounts after August 1960.
The Respondent also introduced records of other contracts signed by other em-
ployees and by Bart during the period from August 20, 1960, until Bart was dis-
charged These contracts show, on a comparative basis, that Bart produced only
three written agreements for advertising during that period. Thus during the same
period Lawrence, whose testimony is mentioned above, produced 10 written con-
tracts. Ivy, another employee, produced 13 Only two of the presently employed
sales people produced as little as Bart. On the other hand, Bart testified that much
of the advertising that was brought in was brought in on a noncontractual basis. This
7 Call sheets are daily reports of salesmen showing upon whom calls were made and
the reason why the salesmen were unable to sell advertising to a prospective advertiser
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was admitted by the Respondent's witnesses. Moreover, much of the lineage for
the last 2 weeks before Bart was discharged, in which Bart placed fourth and fifth
respectively in the amount of lines brought in, represented advertising which was not
placed pursuant to written agreement. Bart himself sold many accounts after
August 20, 1960, which brought in lineage not on a contractual basis.
Moreover, it should be noted that during this period Bart concentrated on shop-
ping center lineage for which he received little or no credit at all. It should also
be noted that the Company failed to bring in the records of the lineage sold by any
employees for the entire period from August 20, 1960, to the date of Bart's discharge
in February 1961. Accordingly, all that was introduced by the Respondent were the
number of contracts and the number of accounts and not the amount of lineage
which is the bread and butter of the newspaper business.
In connection with this problem of lineage, Taylor testified that lineage as such
was not the only test of a salesman's merit. Thus, when a salesman sold large quan-
tities of lineage at discount rates his lineage, though perhaps large in volume was
unprofitable and could actually represent a loss to the paper. He also testified that
certain lineage represented unauthorized advertising. However, Taylor did not
specifically testify that Bart was guilty of either of these practices.
The Respondent also introduced evidence to the effect that Bart did not really
believe at the time of his discharge that he was being discharged for his union
activity Employee Allan Rose, with whom Bart was friendly, testified that although
Bart was concerned that he was going to be discharged, he stated to Rose that he was
worried because he had been a "Davenport" man and that therefore his job was in
jeopardy. According to Rose, Bart did not state that he was concerned about being
discharged for union activity.
C. Concluding findings
As noted above, I have credited the testimony of Bart regarding Taylor's statements
to Bart in July or August of 1960 to the effect that Taylor was disappointed in Bart
because he joined the Guild. I have also credited Eckerson as to Taylor's statement
to Eckerson that those who supported the Guild would be out of the Respondent's
employ; that Taylor told Eckerson to withdraw Bart's accounts because of the latter 's
union activities and that this would make it tough for Bart and put him on something
that was seemingly impossible Moreover, none of Eckerson's testimony was specifi-
cally denied by Taylor. Instead, Respondent sought to discredit Eckerson with
regard to irrelevant matters in no way connected to the issues of this proceeding
Accordingly, I find that these statements and threats were actually made by Taylor.8
With regard to the contention that Taylor, through Eckerson, had a number of
Bart's major accounts taken away from him, the Respondent does not deny the
manner in which this was accomplished. The credited testimony of Bart and Ecker-
son establishes that while Bart was on vacation the accounts were taken away, that
he was not forewarned nor did he have any knowledge thereof and, moreover, he
was not told of the action upon his return from vacation but learned of it in the most
embarrassing manner possible, from the advertisers upon whom he customarily had
called. While the timing of these events as to Bart may have coincided with the com-
mencement of the activation of Respondent's plans to divide the advertising accounts
geographically among the salesmen, a plan which would necessarily involve the
redistribution of accounts, there is no evidence that any salesman was treated in
so peremptory a fashion as was Bart. To any reasonable person this treatment was
warning, at the least, that his position was in jeopardy. Coming as it did on the heels
of Bart's union activity and about the same time that Taylor had told Bart of the
former's disappointment in Bart for having joined the Guild, the full impact was not
lost on Bart who, for sometime thereafter, appeared to be apathetic about his work.
8 Respondent sought to show that Bart himself did not fear his discharge for union
activity, but rather for being a "Davenport" man and that even Eckerson testified that
the Respondent sought to rid itself of Bart for this reason It is true that, according
to Eckerson's testimony, Taylor's apparent desire to be rid of.L'art may have stemmed
originally from the fact that Bart was a "Davenport" man However, it is equally true,
according to the same testimony, that this became only one of the reasons for Bart's
discharge If Eckerson's testimony is credited, the Respondent utihred the lawful reason
to discharge Bart, namely that Bart was a "Davenport" man, as an opportunity to dis-
charge Bart for his union activity See Jack Lewis anti Joe Leaitan d/b/a California
Footwear Co, 114 NLRB 765, 767, enfd as modified 246 P. 2d 886 (CA 9). However,
it should be pointed out in connection with this that Respondent does not claim it
discharged Bart because he was a "Davenport", man, but rather because Bait was
incompetent.
NORTHERN VIRGINIA SUN ENTERPRISE 739
Moreover, although the accounts newly assigned to Bart after August 22, 1960,
included the large agencies, department stores, and food stores, it is apparent from
the record that these accounts were virtually impossible to sell because, among other
things, the rates Respondent charged for advertising space were considerably higher
than those charged by the large Washington, D.C., papers which circulated in the
same area covered by Respondent's papery
Additionally, Respondent's claim that Bart was apathetic and lackadaisical about
his work and tailed to perform up to the standard to be expected of one who had
such long experience and such wide knowledge of the accounts is not supported
completely by the record. Thus, Eckerson testified that a number of the accounts
which were taken away from Bart had to be returned to him because the advertisers
refused to do business with any one else but Bart. Eckerson further testified
credibly that Bart remained a valued employee despite his apparent lack of en-
thusiasm which Eckerson did not condone. Also, Bart was not given lineage credit
for having brought in advertising of a large shopping center where he induced the
owner of the center to purchase a full page banner head, but other salesmen were
given credit for the lineage placed under the banner head by individual merchants
who were tenants in the shopping center and who would not have placed the ad-
vertising had the center owner not purchased the banner head space through Bart's
efforts.
This would seem to contravene Campbell's testimony that from his observation
of Bart during the 3 days he visited the paper prior to his becoming its advertising
manager, Bart was not the type of individual whom he would want on his staff.
His recommendation to this effect to Taylor was made at a time when Campbell was
anxious to become associated with Respondent and since Taylor had already ex-
piessed his opinion that Bart should go, the recommendation is subject to at least the
suspicion that Campbell was anxious to please his prospective employer. Therefore,
I accord little weight to Campbell's testimony to this effect, especially in view of the
fact that during Bart's last 2 weeks in Respondent's employ his lineage record though
not the highest was certainly not the lowest. If Bart's performance was not up to
the expectation, this was understandable in view of all the preceding events of which
Campbell may or may not have been made aware.
Nor do the Respondent's records introduced at the hearing persuade me that Bart
was either untruthful in his testimony, short of memory, or below standard as an
employee. The list of contracts secured during the period from August 20, 1960, to
the date of Bart's discharge, I find to be inconclusive. Firstly, the record shows that
much advertising lineage is sold without written contiact. Secondly, although Bart
only had three contracts signed during that period, he brought into the paper a
number of new and valuable accounts though not on a contract basis. Finally,
cross-examination of the Respondent's witnesses Hawthorne and Buckner reveal that
many of the contracts brought in by other salespeople during the said period were
merely renewals of old expired agreements or contracts for accounts which had
already been advertising in the paper and thus did not represent new business.
The Respondent's list of accounts retained by Bart, offered to show that Bart did
not lose a disproportionate number of accounts upon the initiation of the geographic
redistribution plan, failed in the purpose for which it was introduced. As heretofore
set forth, I have credited Bart's testimony that these accounts were not initially re-
tained by him of August 22, 1960, but were returned to him after being transferred
to other employees who, as matters turned out, could not service the accounts to the
satisfaction of the advertiseis. Thus, the list, at best, reflects orders for 'advertising
and billings made during the period of December 1960 and January 1961, and does
not necessarily show that the Respondent did not take these accounts away from
Bart in August 1960. Moreover, that these accounts were first taken away and then
returned to Bart was reflected also in the corroborating testimony of Eckerson.
Taylor testified that almost all of Bart's accounts prior to August 20, 1960, were
given to him either by Davenport, who originally obtained them, or were trans-
ferred to Bart upon other salesmen leaving the Respondent's employ implying that,
therefore, Bart really was not very much of a salesman even though his lineage ex-
ceeded that of any other salesman However, this testimony directly contradicts the
testimony of Taylor, Hawthorne, and Eckerson to the effect that because Bart had
handled so many accounts and, therefore, had so much experience he was the one
salesman who, when the reorganization commenced, was assigned to difficult and
monetarily important food chain and agency accounts. On the one hand, the
Y In this connection, I do not consider Bart's call sheets persuasive because they
were incomplete
641795-63-vol. 136-48
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent characterizes Bart as a salesman who never really accomplished much by
way of bringing new business to the paper and on the other hand admits that it
thought Bart the best salesman on the staff to handle the formidable task of selling
the most difficult accounts of all.
Therefore, although it may be that Bart did not always comport himself as the
Respondent might have desired after August 22, 1960, it is apparent from all of the
foregoing that Bart was at worst a discouraged employee whose work was rewarded
by assignment to a most difficult task bordering on the impossible, which assignment
he had every reason to believe was given him because of his activity on behalf of
the Guild.
While I do not doubt that Bart had some shortcomings and am aware of Ecker-
son's credited testimony that he had to reprimand Bart upon occasion, and while I
doubt that Bart was, in fact, an altogether satisfactory employee, I am convinced on
the record as a whole that it was not Bart's shortcomings which caused the Respond-
ent to discharge him. Rather, I find that Bart was discharged as a result of what
appeared on the surface to be a less than excellent paper record that did not estab-
lish him as a particularly competent salesman, but which was in fact the direct re-
sult of a determination by the Respondent to bring about such a record and there-
fore to afford the Respondent an opportunity to discharge Bart for inefficiency when
the actual motive was to discharge him in retaliation for his active and open support
of the Guild.
Lastly, the Respondent contends that because the charge herein was filed and
served June 6, 1961, the events which occurred before December 6, 1960, cannot be
utilized as evidence of the Respondent's motivation because their use is barred by
the 6-month proviso to Section 10(b) of the Act 10 Respondent argues that the
discharge of Bart on February 20, 1961, was an otherwise innocent act or at least an
ambiguous one and that since the events which the General Counsel relies on to
explain this act occurred before December 6, 1961, the complaint must be dismissed.
I do not find merit in the Respondent's contention.
In support of its contention, the Respondent relies on the holding of the Supreme
Court in the Bryan Manufacturing case,il in which the Court held, in substance,
that the Board may look to events outside the limitation period to prove an unfair
labor practice only when occurrences within the limitation period, as a substantive
matter, may constitute an unfair labor practice 12 However, this is not all the
Supreme Court held. A reading of the Bryan decision shows that the Supreme
Court stated in full: 13
It is doubtless true that §10(b) does not prevent all use of evidence relating
to events transpiring more than six months before the filing and service of an
unfair labor practice charge. However, in applying rules of evidence as to
the admissibility of past events, due regard for the purposes of § 10(b) requires
that two different kinds of situations be distinguished. The first is one where
occurrences within the six-month limitations period in and of themselves may
constitute, as a substantive matter, unfair labor practices There, earlier events
may be utilized to shed light on the true character of matters occurring within
the limitations period; and for that purpose § 10(b) ordinarily does not bar
such evidentiary use of anterior events. The second situation is that where
conduct occurring within the limitations period can be charged to be an unfair
labor practice only through reliance on an earlier unfair labor practice. There
the use of the earlier unfair labor practice is not merely "evidentiary," since it
does not simply lay bare a putative current unfair labor practice. Rather, it
serves to cloak with illegality that which was otherwise lawful. And where a
complaint based upon that earlier event is time-barred, to permit the event itself
to be so used in effect results in reviving a legally defunct unfair labor practice.
The question, therefore, is whether this case falls in the first or second situation
discussed by the Court. I find that the case falls within the first classification. Here
10 Section 10(b) of the Act provides in part as follows:
Provided, That no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such charge is made . . .
"Local Lodge No 1424, 1AM, et at (Bryan Mfg Co) v N L R B, 362 U S 411.
12Id at 416 See also Plumbers & Pipe Fitters Local 214 [D L. Bradley Plumbing
and Heating Co 1, 131 NLRB 942, 944
13 Local Lodge No. 1424, 1AM v. NL.R.B., 362 U.S. 411, 416-417.
NORTHERN VIRGINIA SUN ENTERPRISE 741
the event occurring within the 6-month period preceding the filing of the charge was
the discharge of Bart. Thus there is presented an occurrence which may, as a sub-
stantive matter, be in and of itself an unfair labor practice. Therefore, earlier
events, in this case the statements of Taylor to Bart and Eckerson and the taking
away of Bart's accounts and the assigning to him of accounts which were under the
circumstances almost impossible to sell, may be utilized to shed light on the true
character of the discharge and the proviso to Section 10(b) does not bar the use
of such anterior events. Moreover, this is not a situation where the discharge may
become an unfair labor practice only through reliance upon an earlier unfair labor
practice where such earlier unfair labor practice could have been charged if brought
in a timely fashion.
Moreover, there is other evidence within the 6-month period which does shed
some light upon Bart's discharge. I refer to the reasons assigned to Bart for his
discharge, namely that he did not perform up to the standards of the other em-
ployees. This reason given to Bart for his discharge has some doubt cast upon it
by the fact that during the period immediately in the time of the discharge Bart was,
although not the leading salesman in terms of amount of lineage secured, certainly
not the lowest Accordingly, this constitutes some evidence within the 6-month
period tending to prove that Bart was unlawfully discharged.14
Accordingly, I find upon the entire record and upon a preponderance of the
evidence that the Respondent discharged Coleman Bart for his union activity in viola-
tion of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operation of the 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 burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
I shall recommend that it cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act.
Having found that Coleman Bart was discriminated against in respect to his
hire and tenure of employment, I shall recommend that the Respondent be ordered
to offer him immediate and full reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority and other rights and privileges, and
make him whole for any loss of earnings he may have suffered because of the dis-
crimination against him, by payment of a sum of money equal to the amount he
normally would have earned as wages from the date of his discharge to the date
of the offer of reinstatement, less his net earnings during said period, with backpay
computed on a quarterly basis in the manner established by the Board in F. W. Wool-
uworth Company, 90 NLRB 289, 291-294 I shall also recommend that the Respond-
ent make available to the Board upon request, payroll and other records to facilitate
the determination of the amounts due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated I shall there-
fore recommend that the Respondent be ordered to cease and desist from in any man-
ner infringing upon rights guaranteed to its employees by Section 7 of the Act.
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. Washington Newspaper Guild, Local 35, American Newspaper Guild, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act
2. By discriminating in regard to the hire and tenure of employment of Coleman
Bart, thereby discouraging membership in the Washington Newspaper Guild, Local
35, American Newspaper Guild, AFL-CIO, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act
3. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act and
14 Plunibers R Pipe Fitters Local 21/, [D L Bradley Plumbing and Heating Co 1,
131 NLRB 942
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
[Recommendations omitted from publication.]
F. McKenzie Davison , W. J. Hardy, Sr . and W. J. Hardy, Jr.,
d/b/a Arlington Asphalt Company and District 50, United
Mine Workers of America . Case No. 5-CA-1900. March 30,
1962
DECISION AND ORDER
On October 6, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Union filed exceptions to
the Intermediate Report and supporting briefs. The Respondent
filed exceptions to the Intermediate Report and briefs in support of
the exceptions, and in support of the Intermediate Report.
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, the briefs, and the entire record in
this case and, finding merit in the exceptions, rejects the Trial Ex-
aminer's recommendation and adopts his findings and only such of
his conclusions as are consistent with this Decision and Order.
The facts were stipulated by the parties and, as supplemented by
additional testimony taken at the hearing, essentially are as follows:
On May 16,1960, the Union, District 50, United Mine Workers, was
certified as the collective-bargaining representative for a unit of all
truckdrivers and laborers employed at Respondent's plants in and
around Arlington, Virginia.' The certification contained the usual
statutory exclusions as well as that of machine operators and plant
engineers who were covered by a contract between Respondent and
Local 77 of the International Union of Operating Engineers, herein-
after referred to as IUOE.
On May 28, 1960, the Respondent and the Union held their first
meeting for the purpose of negotiating a contract. Various contract
proposals were considered and the parties discussed the possibility of
retaliation or pressure by the Building and Construction Trades
Unions (herein called BCTU) against contractors, such as Respond-
1 Case No. 5-RC-2903 ( not published in NLRB volumes).
136 NLRB No. 67.