Northern Virginia Sun Publishing Co.

National Labor Relations Board - Board Decisions

Dec 7, 1961

134 N.L.R.B. 1007 (N.L.R.B. 1961)

NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1007
• George W. Ball , Phillip M . Stern, Arnold Sagalyn and Clayton
Fritchey t/a Northern Virginia Sun Publishing Company and
Roger W. Wheeler , Jr., et al. Case No. 5-CA-1508, et al. De-
cember 7, 1961
DECISION AND ORDER
On May 19, 1960, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondents, the General Counsel
and the Charging Parties filed exceptions to the Intermediate Report
and supporting briefs. The Respondents also filed a request for oral
argument, and a motion for leave to substitute Northern Virginia
Sun Enterprise as the Party Respondent.'
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 [Members Rodgers, Fanning, and
Brown].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and modi-
fications.
We agree with the Trial Examiner that the Respondents violated
Section 8 (a) (1) and (3) of the Act by the discharge, or layoff, of 14
of its employees on various dates in March 1959, as fully set forth in
the Intermediate Report.2 We also agree with the Trial Examiner
that a subsequent strike engaged in by the 10 remaining employees,
1 Respondents ' request for oral argument is denied , as the record and briefs adequately
present the issues and the positions of the parties . Respondents ' motion to substitute a
new party as Respondent is ruled upon infra.
2 In finding discriminatory motivation , we do not rely, as did the Trial Examiner in part,
on the fact that the Respondents broke off negotiations on February 28, 1959, the day the
contract expired , in view of the proviso to Section 4(b) of the parties ' contract This
proviso permitted either party to break off negotiations after February 28. In addition,
the Trial Examiner excluded evidence in support of Respondents ' contentions that the
parties had bargained to impasse on several subjects by February 28. Similarly , in view
of the Trial Examiner 's exclusion of evidence offered by Respondents concerning the nego-
tiations , we make no finding concerning whether , or when, the actual installation of the
equipment was revealed to the Union during the negotiations . It is, in any event, clear
that Respondents had formally ordered the new equipment and engaged 11 permanent and
6 "reserve" replacements for its employees , while actually concealing these steps, and
without notifying its employees , or their representative , of the employees ' imminent re-
placement by nonunion personnel These facts , and the other factors relied upon by the
Trial Examiner , amply support the finding of Respondents ' discriminatory motivation for
the subsequent layoffs and discharges.
134 NLRB No . 109. '
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were union members, is an unfair labor practice strike directly
caused by the discriminatory discharges. We shall therefore adopt
these findings and issue an appropriate Order.
We also agree with the Trial Examiner that the Respondents were
not proven to have engaged in additional, independent violations of
Section 8(a) (1) and (3) by deliberately provoking the strike through
the above-found discharges and other conduct; by the posting of the
March 10 notice changing work schedules and appointing a nonunion
foreman; or by the alleged discharge or refusal to hire four so-called
"extra" employees. We find no violation with respect to the four
"extras" named in the complaint because there were several nondis-
criminatory reasons for the Respondent not continuing to employ "ex=
ti•as," and we find no evidence of a discriminatory motive. Respond-
ent had employed "extras" from night to night, upon application, not
because of a need for "extras," but in conformity with the bogus work
provisions of the contract, which required the employment of "ex-
tras" who applied for work, so long as there existed unperformed bogus
work. After discontinuing the use of "extras," the Respondent made
no replacement of any kind for "extras," and three of the four "ex-
tras" alleged to have been discriminatorily refused employment never
appeared or applied for employment after the contract expired. We
shall adopt the Trial Examiner's recommendations to dismiss the al-
legations of the complaint dealing with these matters.3
THE REMEDY
We find merit in certain of Respondent's exceptions regarding the
remedy recommended by the Trial Examiner.
A. Respondents except to the Trial Examiner's ruling that the re-
fusal by 11 of the discriminatees of offers of reemployment with Re-
spondents had no effect on the discriminatees' continued entitlement
to reinstatement or backpay. The offers were made by Respondents
and refused by the discriminatees in the following circumstances. By
March 10, 1959, the Respondents had laid off, or discharged, the 14
discriminatees. The 10 remaining union members who had been re-
tained struck on March 11. This left Respondents with insufficient
manpower to continue publication of its newspaper. After making
some arrangements to compensate for the loss of the strikers' services,
Respondents still found themselves in need of at least three additional
experienced personnel. Beginning March 21,1959, Respondents there-
fore sent separate telegrams to three of the laid-off discriminatees,
asking each to return to his job. Each of these three employees replied,
by telegram, stating that he declined to return unless the Respondents
3 The Trial Examiner did not make a specific finding regarding the posting of the
March 10 notice and the appointment of a nonunion foreman. We have considered the
exceptions of the General Counsel and the Charging Parties to the failure to make findings
on these matters, and find the exceptions without merit.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1009
would reinstate all persons who had been on the payroll on March 1.
This included, among others, all of the other discriminatees. After
receiving this answer from the first three discriminatees to whom offers
were made,, the Respondents sent similar individual telegraphic re-
quests, in groups of three, to each of the discriminatees excepting
Bierly, Spilman, and Figgins 4 From each discriminatee the Re-
spondents received the same answer-a refusal to return to his, or her,
job unless Respondents also reinstated everyone laid off, discharged, or
on strike.
The Trial Examiner found that the above-described offers had no
effect on the status of any of the discriminatees, because the offers
were not made to all of the discharged employees, and were in reality
limited to three of the discriminatees. We disagree. We find, con-
trary to the Trial Examiner, that the 11 discriminatees who rejected
Respondents' offers of reemployment to their former or equivalent
jobs thereby became strikers who were withholding their services in
an attempt to compel Respondents to comply with their demands.' As
the Board said in Volney Felt Mills,' an employee who refuses rein-
statement unless a respondent reinstates discriminatees, is in no better
position than an employee who goes on strike because of his employer's
unfair labor practices. To the extent that the demands of the dis-
criminatees herein included reinstatement of the "extras," their re-
jection of Respondents' offers was based on economic demands, which
would alone be sufficient to disqualify the discriminatees for the
receipt of backpay thereafter' As their demands also related to Re-
spondents' unfair labor practices, we find that they became unfair
labor practice strikers, who are entitled to reinstatement, upon appli-
cation. However, as strikers, they are not entitled to backpay. More-
over, we would so find even if the discriminatees had limited their
conditions for accepting Respondents' offers solely to unfair labor
practices. This would not have changed the fact that they became
strikers, who are not, as such, entitled to backpay. The Act forbids
an employer to discriminate to encourage or discourage union mem
bership, but it does not require an employer to reimburse employees
who choose voluntarily to be absent from work in the exercise of
their rights under Sections 7 and 13 of the Act.
4 The text of the telegrams , which were identical except for the reporting dates specified,
appear in the Intermediate Report in section H.
6Volney Felt Mills, Inc, 70 NLRB 908, 909, enfd . 162 F . 2d 204 (C.A. 2) ; Olin Indus-
tries, Inc, et al., 86 NLRB 203, 206, enfd . 191 F. 2d 613 (C.A. 5), cert. denied 343
U.S 919; V. S. Anderson, et al., d/ b/a Pacific Moulded Products Company, 76 NLRB
1140; Englewood Lumber Company , 130 NLRB 394. See also Charles I Stafford, et al.,
doing business as Stafford Operating Company, 96 NLRB 1217, 1220, 1221 , set aside on
other grounds 206 F. 2d 19 (C.A. 7).
9 Supra, footnote 5
7 There is also evidence that the demands of the discriminatees included reinstatement
of one former employee , Squires, who had resigned voluntarily from Respondents' employ
630849-62-vol. 134-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not deem it material that there were only a total of three
jobs to be filled. At the time each of the discriminatees received an
offer, there was available for him either his former job or a compara-
ble job at a comparable wage rate. The fact that Respondents' fail-
ure to fill the vacancies is attributable, in all but the cases of the first'
three who received offers, to the prior refusals of other discriminatees,
is not justification for refusal of available reinstatement.8 The re-
jection of the offers, in these circumstances, constitutes an election to
strike. We shall, therefore, order backpay for the 11 discriminatees
who refused offers of reinstatement only from the date of the initial
discrimination against them to the date their telegrams rejecting Re-
spondents' offers were delivered to Respondents. This does not apply
to Figgins, Bierly, and Spilman, none of whom received an offer
of reemployment. The backpay of Figgins, Bierly, and Spilman shall
extend from the date of the discrimination against them until Re-
spondents offer them reinstatement in accord with the terms of this
Decision and Order.
B. The Respondents contend in their exceptions that the Order
recommended by the Trial Examiner is inequitable insofar as it ap-
pears to make possible the allocation of jobs among the persons en-
titled to reinstatement in such a manner as to exclude some of the
10 employees who went on strike on March 11, 1959, from reinstate-
ment to the jobs they held before the strike.
It is not clear that the Trial Examiner so intended, but this possi-
bility exists because the recommended order provides for reinstate-
ment of the 14 dischargees, and the 10 strikers to their former or
substantially equivalent positions. There are, however, in existence
only approximately 10 conventional type composing room jobs, i.e.,
the kind of jobs formerly held by all persons entitled to reinstatement.
The remaining jobs in existence are lesser paying jobs in connection
with operating the "Photon" and "TTS" equipment installed by Re-
spondents. As indicated by the Trial Examiner, the continued ex-
istence of those jobs must be taken into account in ordering
reinstatement.
In our opinion the most appropriate way to approach what would
have been the status quo absent Respondents' discrimination is to
order the reinstatement of Figgins and the employees who struck on
March 10 (upon the application of the strikers) to the jobs they held
at the time they went on strike, displacing, if necessary, any replace-
ments. The 13 discriminatees whose jobs have been replaced by
8 Englewood Lumber Company , supra. It is clear that Respondents were making a bona
fide offer of all of the available vacancies, and was not limiting the offers to three jobs in
furtherance of a scheme to divide the strikers This is further shown'by the fact the
vacancies were first offered to discriminatees We do not pass on whether the making of
the same offers to the strikers after the discriminatees refused them was unlawful, as
there is no such allegation in the complaint , and it appears immaterial in determining the
effect of the refusals by the discriminatees. -
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1011
"Photon" or "TTS" jobs shall be offered existing "Photon" or "TTS"
jobs, displacing, if necessary the persons now holding such jobs. The
backpay of the discriminatees shall be computed at the rates paid for
the "Photon" and "TTS" jobs, as these are the rates they would have
earned absent the discrimination against them. As Figgins is to be
reinstated to the position from which he was discharged, his backpay
shall be computed at his former rate of pay. The backpay of all
discriminatees shall be computed in accord with the formula estab-
lished in F. W. Woolivorth Company, 90 NLRB 289.
If, because of the equipment changes or reorganization, there are,
not enough conventional composing room jobs available for strikers,
those strikers of March 11, for whom their former or similar jobs are
not available, shall be grouped with the discriminatees according to
seniority, and the remaining jobs distributed among the group accord-
ing to seniority, displacing if necessary any replacements. Conversely,
if the strikers who apply for reinstatement are fewer in number than
the conventional composing room jobs available, the remaining con-
ventional composing room jobs shall be distributed among the dis-
criminatees, according to seniority and other nondiscriminatory
criteria.
As of the close of the hearing there were 24 or more jobs available.
If, however, the number of jobs now in existence has been reduced to
less than 24 for bona fide reasons, those persons for whom no jobs
are available shall be placed on a preferential hiring list, and there--
after, they shall be offered reinstatement, as jobs for which they may
be qualified become available, with priority among them determined
by seniority and other criteria heretofore applied in Respondents'
operations.
We do not adopt the Trial Examiner's recommendation that Re-
spondents be required to retrain the persons entitled to reinstatement
at Respondents' expense, as the Respondents would have had no such
obligation absent the discrimination found.
Respondents' Motion To Substitute a New Party Respondent
Following issuance of the Intermediate Report and transfer of this
case to the Board, Respondents filed with the Board a "Motion
To Substitute Northern Virginia Sun Enterprise as the Party
Respondent."
The motion to substitute a purchaser is based on the alleged facts
that the four partners have, since the hearing and issuance of the
Intermediate Report, irrevocably withdrawn, transferred, or sold all
of their interests in the Northern Virginia Sun (except their interests
as creditors of the partnership) to a joint venture consisting of two'
corporations, called the ABT Corporation, and the Orrington-Evans-
ton Company, which joint venture now operates the paper, trading
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as Northern Virginia Sun Enterprise. There is no allegation that the
purchasing enterprise has agreed to assume any of the liabilities of
the partners, or of the partnership, which may arise out of this case.
Nor has the alleged purchaser manifest agreement with Respondents'
motion. The General Counsel and the Charging Parties oppose
the motion. The Charging Party indeed requests that, based on the
motion, the alleged successor enterprise be added as a Party
Respondent.
It appears from the motion that one of the Respondents, Ball,
owns 40 percent of one of the purchasing companies, the Orrington-
Evanston Company, which, in turn, owns approximately 25 percent
of the Northern Virginia Sun Enterprise. The mother of another Re-
spondent, Stern, owns 100 percent of the other purchasing company,
the ABT Corporation.
On the face of the motion, there appears to be no factual or legal
basis for granting the motion to remove the present Respondents from
the case. In some circumstances, a purchasing enterprise is not liable
to remedy the unfair labor practices of a predecessor.' Whether the
purchaser in this case may, under the circumstances, be required to
comply with the provisions of the Order, has no bearing on whether
the present Respondents should be completely removed from the case.
If there is any liability attaching to the purchaser, it is in addition
to, and not in lieu of, Respondents' liability for unfair labor practices
long since consummated by Respondents.
The General Counsel urges that Respondents' motion be denied,
and that the question of the liability of the purchasing enterprise,
if any, for backpay or reinstatement, be left for determination at the
compliance stages of these proceedings. We find this suggestion ac-
ceptable. We shall therefore deny Respondents' motion, and shall
leave determination of the purchasers' liability, if any, to determina-
tion in ancillary proceedings.''
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 Respondents, George W. Ball,
Phillip M. Stern, Arnold Sagalyn, and Clayton Fritchey t/a North-
ern Virginia Sun Publishing Company, Arlington, Virginia, and the
Respondents' agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Columbia Typographical Union
No. 101, International Typographical Union, AFL-CIO, or any other
Symna Grocer Co., et al., 109 NLRB 346.
10 F.G. ct W. Company, Inc., 129 NLRB 1105.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1013
labor organization of its employees, by discriminating in regard to
hire or tenure of employment of its employees.
(b) In any other manner interfering with, restraining , or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through
representatives 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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon application, offer to James D. Raines, Lawrence C.
Douglas, John J. Sprinkle, Verna E. Dore, Roscoe S. Herrick, Aubrey
R. Stream, Donald W. Tucker, Chester E. Zenger, Carroll M. Cyr,
and James Stewart immediate and full reinstatement to their former
or substantially equivalent positions, or other positions, as described
in and in the manner set forth in the section of this Decision en-
titled "The Remedy," without prejudice to their seniority or other
rights and privileges. The Respondents shall also make the foregoing
employees whole, in accord with the Board's usual remedial policies
(The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB
440; F. W. Woolworth Company, 90 NLRB 289), for any loss of
earnings which they may suffer by reason of the Respondents' refusal,
if any, to reinstate them in the manner herein prescribed, by payment
to each of them of a sum of money equal to that which he normally
would have earned as wages during the period beginning'5 days after
the date on which he applies for reemployment or reinstatement, and
terminating on the date of the Respondents' offer of employment.
(b) Upon application, offer to Roger W. Wheeler, Jr., George E.
Fisher, Julian T. Darden, Robert R. Schrimsher, Preston L. Davis,
Richard C. Craver, John K. Mall, Richard L. Voelker, Richard D.
Lewis, Lowell B. Whitaker and James R. Tyler, Jr., immediate and,
full reinstatement to their former or substantially equivalent positions,
or other positions, as described in and in the manner set forth in the
section of this Decision entitled "The Remedy," without prejudice to
their seniority or other rights and privileges. The Respondents shall
make the foregoing employees whole, in the manner set forth in the
section of this Decision entitled "The Remedy," and according to the
Board's usual remedial policies (The Chase National Bank of the City
of New York, San Juan, Puerto Rico, Branch, supra; Crossett Lumber
Company, supra; F. W. Woolworth Company, supra), for any loss of
earnings which they may have suffered as a result of their discrimi-
natory discharges. The Respondents shall also make the foregoing
employees whole, for any loss of earnings which they may suffer by
reason of the Respondents' refusal, if any, to reinstate them in the
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,manner herein prescribed, by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
during the period beginning 5 days after the date on which he applies
for reemployment or reinstatement, and terminating on the date of
Respondents' offer of employment.
(c) Offer to Phillip F. Figgins 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
in the manner set forth in the section of this Decision entitled "The
Remedy."
(d) Offer to Robert B. Bierly and Lawrence H. Spilman immedi-
ate and full reinstatement to their former or substantially equivalent
positions, or other positions, as described in and in the manner set
forth in the section of this Decision entitled "The Remedy," without
prejudice to their seniority or other rights and privileges, and make
them whole in the manner set forth in the section of this Decision en-
'titled "The Remedy."
(e) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to determine the rights to reinstatement
and the amount of backpay due under the terms of this Order.
(f) Post at its plant at Arlington, Virginia, copies of the notice at-
tached hereto marked "Appendix." 11 Copies of said notice, to be fur-
nished by the Regional Director for the Fifth Region, shall, after be-
' ing duly signed by the Respondents' authorized representative, be
posted by the Respondents 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 to insure that said notices are
-not altered, defaced, or covered by any other material.
(g) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondents
have taken to comply herewith.
IT IS FURTHER ORDERED, that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of the Act other than those found
herein.
-MEMBER BROWN, dissenting in part:
I disagree with the majority opinion insofar as it (1) tolls the back-
pay of the 11 discriminatees who rejected the Respondents' offers of
reemployment and orders them reinstated "upon application" and (2)
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."
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1015
finds that the Respondents did not violate Section 8(a) (3) by dis-
charging or refusing to hire four "extra" or "substitute" employees.
By so resolving these issues, my colleagues have, in my opinion,
reversed the Trial Examiner when they should have affirmed him and
affirmed him when they should have reversed.
The Trial Examiner found no violation of Section 8(a) (3) as to
the "extras" because he concluded they were not "employees." The
Respondents' own payroll records show clearly that these men were
regular employees, reporting each day and doing the same productive
work as any of Respondents' other employees. The Trial Examiner's
finding that the "extras" had no "right" under the contract "beyond
the single shift for which [they were] hired" is irrelevant. Nearly all
employment is at will, and an employee has no "right" to any job, ex-
cept such rights as are created by law or by a collective-bargaining
agreement . The fact is that these employees meet the Board's test of
regularity of employment.
Apparently the majority agrees as to the employee status of the
"extras. " For their affirmance of the Trial Examiner's recommended
dismissal is based solely on the conclusion that no unlawful motivation
has been shown for not continuing to employ "extras." Both the Trial
Examiner and the majority have found, and I agree, that the Re-
spondents were engaged in a course of conduct designed to rid them-
selves of their union member employees at the earliest opportunity.
It is clear from this record that all the "extras" were union member
employees and, like other employees, were the target of this unlawful
objective.
The majority appears to find that because the "extras" were hired in
conformity with the "bogus work" provision of the contract, they were
not engaged in regular work of the plant and the discontinuance of
their services was for economic reasons. This is contrary to the evi-
dence, which reveals that they, in fact, performed little or no "bogus
work" 12 and that during February 1959, the month preceding their
"termination," the Respondents were actually in need of additional
employees.
Moreover, the Act forbids discrimination with respect to hire as well
as tenure of employment. Therefore, whether these men were classi-
fied as "extras" or "situation holders" within the meaning of the con-
tract or trade parlance, or were only applicants for employment, they
were deprived of work opportunities by reason of the Respondents'
illegal program and are entitled to the benefits of any remedial order
12 During February 1959 only one ad, 9 by 3 Inches, was reproduced. As a matter of
fact, during the 6 months prior to the expiration of the contract a total of only 830 inches
of reproduction work, amounting to approximately 66 man -hours in the aggregate, was
done at the plant. Moreover , there was no showing that the "extras" performed any of
this insubstantial amount, and it is clear that there was no requirement that this work
be done by "extras "
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the same manner as any other employee.13 The failure of three
of the "extras" to reapply after the contract expired is immaterial, as
it was made clear to them that it would be futile to do so.
Accordingly, I would reverse the Trial Examiner's findings with
respect to these employees. Unlike my colleagues, I would find on this
record that the "extras" are discriminatees and order that the
Respondents remedy their unfair labor practices as to them.
Turning to the discriminatees, the Respondents had only three jobs
available, if they did not displace the replacements whom they had
hired. The Respondents therefore sent separate telegrams on March
21, 1959, to three of the discriminatees, advising that work was now
available for each of them. Each replied by telegram stating that "I
cannot return to work until I am assured that all my fellow workers
who have been unfairly discriminated against for union membership
receive offers of reinstatement." After receiving these answers from
the first 3 discriminatees, the Respondents sent individual telegraphic
requests, in groups of 3, to 8 other discriminatees and to the 10 strikers,
asking each to return to his job. The Respondents received separate
identical telegraphic responses from each containing the same answer
as that given by the first three discriminatees contacted. At no time
did the Respondents reply.
With respect to the strikers, the Respondents' offers were, in fact,
'unlawful solicitations of individuals to abandon the strike and return
to work, occurring as they did against the background of the Re-
spondents' extensive unfair labor practices. As such, they constituted
an additional violation of Section 8 (a) (1)."
It is admitted that the Respondents sought to reinstate only three
employees. With respect to the discriminatees, it Was obligated at all
times to offer reinstatement to all of them, discharging, if necessary,
any employees hired after the discriminatory discharges. Having
done that, there would have been jobs for all the discriminatees. It
is clear that the offers were rejected because they were limited to only
three persons. •
The Respondents' action in sending individual offers to different
employees at different times can only be construed as an attempt by
them to break the collective opposition of their employees to the un-
fair labor practices by dealing with them individually. Here the Re-
spondents provoke a strike by illegal discharges and seek to have the
discriminatees take the jobs of their striking supporters. Elimina-
tion of any backpay as a result of such an offer is to permit an em-
ployer to exploit his improper conduct and to profit thereby. Ac-
cordingly, I would order the Respondents to offer reinstatement to
'- State Packing Company, 128 NLRB 432.
14 Webb Wheel Division, American Steel & Pump Corp ., 121 NLRB 1410 , 1411, footnote,3
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1017
the discriminatees and to make them whole for earnings lost from
the date of their discharge to the date of a valid offer.
Even if a valid offer had been involved, I would not permit a re-
spondent who had no intention of rehiring more than 3 victims of
illegal discharges to eliminate backpay for 11 victims by rotating
offers a few at a time. Orders under this law are to be remedial rather
than punitive. Reducing the amount of gross backpay to be dis-
tributed among all of the discriminatees by the amount due the first
three might be equitable under some circumstances, whereas the pres-
ent order constitutes a windfall to the perpetrator of the illegal acts.
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 Labor Management
Relations Act, as, amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Columbia Typograph-
ical Union No. 101, International Typographical Union, AFL-
CIO, or in any other labor organization, by discharging or
refusing to reinstate any employees, or in any other manner
discriminating against employees in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT interfere with, restrain, or coerce our employees
- in the exercise of their right to self-organization, to form, *join,
or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, 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 Phillip F. Figgins, Robert B. Bierly, and
Lawrence H. Spilman immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them
whole for any loss of pay suffered by reason of the discrimination
against them, all in the manner described in the Board's Decision
and Order.
WE WILL offer to each of the below-named employees, upon
application, immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges, and we will make each of
.them whole for any loss of pay each may have suffered by reason
of the discrimination against him, all in the manner described in
the Board's Decision and Order :
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Julian T. Darden John K. Mall
Roger W. Wheeler, Jr. Preston L. Davis
Robert R. Schrimsher George E. Fisher
James R. Tyler, Jr. Richard C. Craver
Richard D. Lewis Lowell B. Whitaker
Richard L. Voelker
WE WILL, upon their application, offer to our striking employees
named below immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole
for any loss of pay suffered as a result of any refusal to reinstate
them upon application, all in the manner described in the Board's
Decision and Order. The employees are :
James Stewart
Roscoe S. Herrick
Verna E. Dore
Aubrey R. Stream
Lawrence C. Douglas
James D. Raines
Chester E. Zenger
Donald W. Tucker
John J. Sprinkle
Carroll M. Cyr
GEORGE W. BALL, PHILLIP M. STERN, ARNOLD
SAGALYN AND CLAYTON FRITCHEY T/A
NORTHERN VIRGINIA SUN PUBLISHING COM-
PANY,
Employer.
Dated---------------- By- -----------------
(Representative) (Title)
This notice must remain posted for 60 day's from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
It having been charged by Robert W. Wheeler, Jr., Clyde E. Southward, George
E. Fisher, Julian T. Darden, Robert R. Schrimsher, Aldon D. Stewart, Preston L.
Davis, Kirby L. Loveless, Harry G. Annis, Robert Bell Bierly, Richard C. Craver,
Phillip F. Figgins, John K. Mall, Lawrence H. Spilman, Richard L. Voelker,
Richard D Lewis, Lowell B Whitaker, James R. Tyler, Jr., James D. Raines,
Lawrence C. Douglas, John J. Sprinkle, Verna E. Dore, Roscoe S. Herrick, Aubrey
R. Stream, Donald W. Tucker, Chester E. Zenger, Carroll M. Cyr , and James
Stewart, individuals, that George W. Ball, Phillip M Stern, Arnold Sagalyn and
Clayton Fritchey t/a Northern Virginia Sun Publishing Company, herein called
the Respondent, have been engaging in and are engaging in unfair labor practices
affecting commerce as set forth and defined in the National Labor Relations Act,
as amended (61 Stat 136), herein called the Act, the General Counsel of the
National Labor Relations Board, herein called the Board , having deemed it necessary
in order to effectuate the purposes of the Act, and to avoid unnecessary costs and
delay and, pursuant to Section 102.33 of the Board's Rules and Regulations,
Series 8, consolidated said cases for hearing, and thereafter on November 17, 1959,
the General Counsel of the Board, by the Regional Director of the Fifth Region,
pursuant to Section 10(b) of the Act and the Board's Rules and Regulations , Series
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1019
8, Section 102.15, issued a consolidated complaint and notice of hearing, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
Act.
Copies of the consolidated complaint and a notice of hearing were duly served.'
With respect to the unfair labor practices the complaint alleged in substance that
the Respondent did discharge certain named employees and has at all times since
failed and refused to reinstate said employees to their former or substantially
equivalent positions "because of their membership in, assistance to, or activities on
behalf of the Union, or because they engaged in concerted activities with each
other and with other employees of Respondent for the purposes of collective bar-
gaining or other mutual aid or protection." 2
The complaint further alleged that the Respondent engaged in certain unfair
labor practices "with an object of provoking its employees who were members of
the Union into engaging in a strike. Respondent's further intention in the event
that it successfully provoked a strike was to replace all its employees who were
members of the Union because of their membership in and adherence to the
Union," and that by the said unfair labor practices the Respondent caused certain
named employees, who were members of the Union, to engage in a strike which
commenced on or about March 11, 1959.3
The Respondent filed separate answers in each of the consolidated cases denying
that it had engaged in any of the alleged unfair labor practices.
Pursuant to notice a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Washington, D.C., from January 25 through February 9, 1960.
The parties were all represented by counsel , herein referred to in the names of their
principals. All the parties participated in the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce evidence
bearing upon the issues, to argue orally, and to file briefs and/or proposed findings
of fact and conclusions of law with the Trial Examiner. The Respondent moved to
dismiss the complaint at the close of the General Counsel's evidence in chief and
again at the close of the hearing. The motions were denied. At the time of the
first motion to dismiss the Respondent presented a comprehensive oral argument.
The General Counsel and the Charging Parties made no oral arguments but stated
that they would We briefs.
Briefs have been received from all the parties.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
i Copies of the charges filed March 5, 1959, in Cases Nos 5-CA-1508 and 5-CA-1509
were served on the Respondent on or about March 6, 1959. Copies of the charges filed
March 6, 1959, and in Cases Nos 5-CA-1511 and 5-CA-1512 were served on Respondent
on or about March 7, 1959 Copies of the charges filed March 9, 1959, in Cases Nos.
5-CA-1513, 5-CA-1514, 5-CA-1515, and 5-CA-1516 were served on Respondent on or
about March 10, 1959. A copy of the charge filed March 12, 1959, in Case No 5-CA-1519
was served on Respondent on or about March 13, 1959 Copies of the charges filed on
March 16, 1959, in Cases Nos. 5-CA-1520, 5-CA-1521, 5-CA-1522, and 5-CA-1523 were
served on Respondent on or about March 17, 1959 Copies of the charges filed on March 17,
1959, in Cases Nos 5-CA-1525 and 5-CA-1526 were served on Respondent on or about
March 18, 1959 Copies of the charges filed on March 18, 1959, in Cases Nos. 5-CA-1527,
5-CA-1528, and 5-CA-1529 were served on Respondent on or about March 19, 1959.
Copies of the charges filed on March 24, 1959, in Cases Nos 5-CA-1530,'5-CA-1531,
5-CA-1532, 5-CA-1533, 5-CA-1534, 5-CA-1535, 5-CA-1536, 5-CA-1537, and 5-CA-1538
were "erved on Respondent on or about March 25, 1959 A copy of the charge filed on
March 30, 1959, in Case No 5-CA-1545 was served on Respondent on or about March 31,
1959
2 The employees allegedly discriminatorily discharged and the dates thereof are: Clyde
E. Southward, Kirby L Loveless, Harry G. Annis, Aldon D Stewart, Julian T Daiden,
Roger W Wheeler, Jr, and George E. Fisher, March 1, 1959; Robert B Bierly, John K.
Mall, Preston L. Davis, and Robert R. Schrimsher, March 2, 1959; Phillip F Figgins,
March 3, 1959; Richard C Craver, James R Tyler, Jr., Lowell B. Whitaker, Richard D.
Lewis, and Lawrence H Spilman, March 9, 1959; and Richard L Voelker, March 10, 1959.
3The employees involved were alleged to be: James Stewart, James D. Raines, Roscoe S.
Herrick, Chester E Zenger, Verna E. Dore, Donald W. Tucker, Aubrey It. Stream, John J.
Sprinkle, Lawrence C. Douglas , and Carroll M. Cyr.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
George W. Ball, Phillip M. Stern, Arnold Sagalyn, and Clayton Fritchey, herein
jointly called Respondent, are, and have been at all times material herein, copartners
doing business under the trade name and style of Northern Virginia Sun Publish-
ing Company. The Respondent has its principal office and place of business at
Arlington, Virginia, where it is engaged in the publication of a newspaper distributed
in the northern Virginia area daily, except Sundays.
The Respondent, in the course and conduct of its business Operations during the
calendar year 1958, did a gross volume of business amounting to $575,614.70.
During this period the Respondent subscribed to interstate news services for which
it paid $17,191, advertised nationally sold products, and published nationally syn-
dicated features. During this period the Respondent purchased products and ma-
terials valued at $117,366 from points located outside the Commonwealth of Virginia.
II. THE LABOR ORGANIZATION INVOLVED
Columbia Typographical Union No. 101, International Typographical Union,
AFL-CIO, herein called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Phillip M. Stern testified that his partners and he began publication of the news-
paper, Northern Virginia Sun, April 1, 1957, Stern becoming the editor. Shortly
after beginning publication the Respondent (Stern and his partners) entered into
a collective-bargaining contract with Columbia Typographical Union No. 101,
International Typographical Union, AFL-CIO The contract covered a 6-month
period and was then renewed for the period March 7, 1958, to February 28, 1959.
Editor Stern further testified that in 1958 it became apparent to the Respondent
that if the newspaper was to be financially successful a drastic cut in its operating
costs must be made, the obvious place to cut expenses being the composing depart-
ment as certain recent technological changes had occurred in newspaper composition,
machines and equipment having been invented not only radically different from
conventional composing room equipment generally still in use but which displaced
many of the human operators; moreover the new equipment could be operated
efficiently by individuals who needed only a few weeks training and whose wages
are approximately one-half of the wages of journeyman compositors who ordinarily
serve a 6-year apprenticeship.
One of these devices called a "photon machine" performing an operation called
"photo composition" was described by Editor Stern as follows:
it sets type by a photographic method rather than setting it in lead slugs.
It shines a light through an image of the letter to be set and that image
is reflected onto a film or piece of paper, and the ultimate product is a film or
piece of photographic paper in which the type appears.
He further testified:
Q. (By Mr. SACHS.) Could you tell us whether or not this Photon machine
does the work which ordinarily is done in the composing room by linotype op-
erators using linotype machines which are used for ad composition?
A. Yes, sir, it is.
In addition to the photon machine the Respondent also investigated a device called
-a "teletype setter" (hereinafter called TTS), regarding which Editor Stern testified:
Q. (By Mr. SACHS.) Would you explain what a teletypesetting device is?
I ask you to describe what it is?
A. Describing the whole process of teletypesetter, it consists of a perforating
machine in which holes are punched in a ribbon or tape, the holes being signals
describing each letter. That tape is then put through what might be called a
tape-reading device, which is affixed to what in laymen's term might be called a
linotype machine. And when the tape is fed through the tape reader, the tape
reader reads the signals and tells the machine what to do just in the manner
that a player piano roll tells the piano what notes to play.
And then the linotype machine performs as if somebody were sitting at it.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1021
According to Editor Stern the Respondent began considering the installation of
the labor-saving machinery during the spring of 1958-he making trips to a plant
manufacturing the equipment in Cambridge , Massachusetts , as well as to various
papers already using it in New York, Massachusetts , and Pennsylvania.
While considering the new type of machinery the Respondent apparently did not
forget that it was under a contract with the Union which did not expire until February
28, 1959.
Gilbert Hahn testified that at the direction of the Respondent he held certain con-
versations with Robert Taub, president of the Union. According to Hahn:
They were held on four occasions; on the end of May and early part of June
1958; December 10 of 1958 and either on January 29th or January 30th of 1959.
The conversations in May and June were "only about photon," the others were "about
teletypesetters and photon." Hahn further testified: -
On all four of these occasions Mr. Taub said that the photon equipment could
not come into our plant unless all the men who worked on it were paid the union
scale, that is, $120 . 50 days and $ 125.50 nights and $5 more on the third shift.
The occasions in December and January we were talking about both the tele-
typesetter process and photon . On those occasions he said that all of that equip-
ment could not come into the plant unless everyone who worked on it got the
union scale; that is to say, $120.50 days, $125.50 nights and $5 more on the third
shift.
On cross-examination Hahn admitted that all these four conversations were `by
telephone and all occurred at a time before the Respondent had acquired the equip-
ment. As to the first conversation he testified:
I called Mr. Taub first and I said the company has a serious economic problem
in its cost in the composing room and we want to explore ,the 'possibility of re-
ducing those costs by putting in some new equipment, particularly photon.
I wanted to inquire of Mr. Taub whether his local had any specialists trained
in this equipment.
Mr. Taub said that he did not. .. .
Later Taub called Hahn and told him he could find no photon operator in the
Washington area. Hahn further testified:
Q. (By Mr. SACHS. ) Tell me the whole conversation, please.
A. The whole conversation was that Mr. Taub reminded,me that in'addition
to the expert on the photon that we had to have other operators and paste make-
up people.
I said I understood that too and this was one of the considerations for bring-
ing in the equipment, that we would want to bring in this equipment only if we
could pay all of these people with one exception less than'the union scale.
He said he and the union would *never let us do this and I told him that under
those circumstances we would not bring the equipment in under the contract.
[Emphasis supplied.]
Hahn testified that during the four conversations referred to he did not ' disclose to
Taub the fact that the Respondent intended to install the new type equipment and
admitted that he was attempting to have the Union agree to waive certain provisions
relating to wages in the then existing contract.
Robert Taub, president of the Union, testified that he received a telephone call
from Hahn 4 or 5 months before any negotiations for a new contract between the
Union and the Respondent; that Hahn asked if the Union had men "trained for
photon"; that "a day or two after that he [Hahn] called me back, and he said,
`We are not going to get the photon "'; that at no time in any conversation with Hahn-
was there any discussion "of rates of pay in connection with the operation of the
photon and its related -products."
As to whether or not Hahn mentioned rates of pay to be applied to the operators
of the contemplated machinery is one of the few conflicts in the testimony; however,
the conflict is of 'no serious matter as it is clear from other testimony ,that • the question
of union scale wages was one of the deciding -factors of the Respondent 's decision
and conduct.
Clayton Fritchey , -the publisher of the Northern Virginia Sun, testified:
I know . by summer-July or August-I was greatly concerned at the cost that
we were encountering in the composing room . So much so that I communicated
it to our counsel and was eager to get relief and negotiations with relation
to the expiration of that contract.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fritchey further testified that in late summer or early fall of 1958 the Respondent
decided to install the photon and TTS processes; that the Respondent feared that
when the new machinery was brought in the Respondent would have difficulty with
its employees; that there might be a strike which could be disastrous for the paper;
that throughout all this time-
I was extremely aware of that fact that men used to making $150 a week
were not going to stay in a plant where many of the jobs were going to be $65
or $75 a week, and as soon as this information came to them, they could go
out and get another job. It seemed to me there would be a rapid fade-out.
Editor Stern testified that the Respondent completed final arrangements to acquire
the photon machine in October 1958; that the machine arrived in Arlington about
February 1, 1959, was stored in a warehouse and installed February 28 and March
1, 1959. Stern further testified:
TRIAL EXAMINER: Pardon me, Mr. Sachs.
When this Photon machine was brought to the plant to be installed, were
you or were you not at that time engaged in negotiations with the union?
The WITNESS: We were, sir.
TRIAL EXAMINER: Did you put the machine in operation, the Photon machine,
while you were engaged in negotiations with the Union or after the negotiations
were over?
The WITNESS: After the negotiations were over, sir.
As had been found herein the Respondent and the Union were engaged in negotia-
tions for the renewal of the old or the execution of a new contract on various dates
from February 17 to 28, the expiration date of the then effective contract.
Stern testified that the opportunity for work in connection with the photon machine
process was not offered to any of its composing room employees. These employees
were all union members. The Respondent did not inquire into the ability of any of
its composing room staff to handle any phase of the photon process; it did not in-
form such employees or the Union of its intentions regarding the new machinery;
however, during the negotiations the Union's representatives inquired about the new
machines and the Respondent's intention to try "cold composition" was disclosed.
Editor Stern testified:
I can't recall at what meeting they did. At some point they asked us and we
told them.
Q. (By Mr. SACHS.) You had not prior to that time volunteered to tell them
about what you had done in connection with the arrangements that you made
for the Photon machine, is that correct?
A. That is correct.
Publisher Fritchey testified that the Respondent informed the Union of "the new
TTS and photon equipment" about February 21 or 23, "a week before the expiration
of the contract."
Union President Taub testified that on February 28, the last day of negotiations,
the union representative first stated to the Respondent that the Union's representa-
tives had heard that the new equipment was "coming in" and that:
We asked them to discuss jurisdiction, the bargaining agent, for that equipment.
They didn't even at that time tell us that the equipment was coming in. And
they said they didn't have to discuss it... .
Taub's above-cited testimony was corroborated by E. G. Moore and Monty
Morris, members of the Union's negotiating committee.
As the Respondent does not contend that the matter of employment on the
photon and TTS machinery was ever duscussed with the Union during the contract
negotiations which ended February 28, therefore the Trial Examiner finds it pointless
to determine which of the parties has the more accurate memory as to the exact
day the Union raised the question during the negotiations.
Before the above-mentioned negotiations, the Respondent had arranged to acquire
the photon equipment, intended to radically change its composing process, and also
arranged with the manufacturer of the equipment for the training of personnel to
operate and service the machine.
In June 1958 the Respondent employed William Eldridge, who is now in charge
of its photon operation. Eldridge had not been previously employed by the Re-
spondent; he was brought from Allentown, Pennsylvania, at the Respondent's ex-
pense, at a weekly salary of $150. Eldridge did no work in the Respondent's plant
until March 1, 1959, but was paid in the interim, Editor Stem testifying:
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1023
The arrangements was that I was to pay him any difference between what his
earnings anywhere else might be and $150 a week.
Eldridge was paid his expenses and salary during this period by Stern' s personal
check, Stern being later credited by the Respondent with the amount as a capital
investment . Eldridge was sent to the photon factory's school for 6 weeks, all his
expenses being borne by the Respondent.
On behalf of the Respondent, Eldridge hired one man , not previously employed
by the Respondent, who was also sent to the photon factory's school, his expenses
and salary being paid by the Respondent, also by Editor Stern's check, as above
set out. This man did not begin work until March 1, 1959, although he attended
the school in December 1958. Eldridge also employed a man then working in the
photon factory, who was also sent to the school at the Respondent' s expense. In
addition to these men, Eldridge hired people for various classification in the photon
operation, none of them having been formerly employed by the Respondent and
none of whom began work until March 1, 1959.
In addition to the personnel necessary to operate the photo composition equip-
ment it had arranged to install, the Respondent hired "conventional" compositors,
well before any negotiations regarding the renewal or replacement of the collective-
bargaining contract in effect between the Respondent and the Union.
Editor Stern testified that at no time during the life of the contract between the
Respondent and the Union was any threat of a strike made. Moreover it is quite
clear that the Respondent was aware that no strike of the local union, or chapel,
could be called until permission to do so had been granted by the International
Union, it would therefore seem that the Respondent's anxiety with respect to a
strike, which might take place, was not caused by any conduct of the Union or
the Union's members in its employ.
Editor Stern testified:
Q. (By Mr. SACHS.) Apart from the testimony you have given in connection
with the purchase of new equipment and the hiring of employees to operate
them on March 1, did you also make efforts to engage the services of non-
union men with composing room experience from out of town to take the place
of the employees in the composing room in the event of a strike? [Emphasis
supplied.]
A. Yes sir.
Stern later "modified" the answer:
Well, I thought it unlikely that they were members of the ITU, because when
we approached them with regard to being on a stand-by status to help us pub-
lish in the event of a strike, the conditions were made quite clear to them.
And I thought it was unlikely that a member of the ITU would agree to work
in the event of an ITU strike.
But I did not ask any of them whether they were members of the ITU.
Before it recruited any "conventional" composing room operators, the Respondent,
at the suggestion of the American Newspaper Publishers Association, "contacted
other publishers to see if they knew of people who might be willing to help [us]
publish in the event of a strike" and then sent its foreman, Reginald Kane, "on one
or two" recruiting trips into various towns in Virginia, West Virginia, and Maryland.4
Before Kane made the trip he was given the title of "assistant business manager"
and entered into a signed contract with the Respondent.
Editor Stern discussed certain literature issued by the American Newspaper Pub-
lishers Association with Kane before he left on the trip. Stern testified:
Q. (By Mr. SPELMAN.) What was your purpose in going over this material
with him other than showing him scales as you say?
A. The purpose was to enable him to see where the likelihood was of finding
open shops where he might have a greater likelihood of finding people who
would be willing to work for us in the event of a strike.
Reginald Kane testified that in January 1959, "I was 'approached along the lines
of whether I would be willing to cast my lot with management"; that he understood
this to mean "if I would operate as a non-union foreman." Kane further testified
that ". . . we had a dinner, I think, a little later, where we discussed the possibility
of finding what people might be available, in case there were a strike.". That there-
after he made a trip to recruit composing room craftsmen, who came to Arlington,
Virginia, before March 1; that prior to making .the trip, on January 19, 1959, he
* Testimony of Editor Stern unless otherwise indicated.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed a contract of employment with the Respondent , and that about January 21
or 22 (also before the trip) he was given the title of "assistant business manager"
which has not been taken from him but that his duties as "assistant business man-
ager" consisted of "representing the Company on this trip I took. I also kept some
records for Mr. Bergoman, who was business manager ." Kane is now composing
room foreman.
Editor Stern testified that in addition to "conventional" compositors, and em-
ployees intended for the photon department, the Respondent hired and trained
"perforators" for the TTS machines waiting installation. He further testified that
prior to the expiration of its contract with the Union some 17 individuals, whom he
referred to as "reserves," all apparently "conventional" compositors in various cate-
gories, were brought to Arlington, Virginia, by the Respondent at its expense, and
housed in an Arlington motel and elsewhere, also at the Respondent' s expense,
where they waited the time they would become "regulars." Before March 1, 1959,
these individuals were not, however, carried on the Respondent's payroll but begin-
ning March 1 they drew regular salaries, as employees , although with two exceptions
they did not work except a few hours on March 1, as hereinafter discussed.
The Respondent employed 31 individuals in its composing room, all union mem-
bers, on February 28. The 17 "reserves" did not include any of the intended em-
ployees of the photon department, which would replace some of the "conventional
hot metal" work.
As herein found after the Respondent and the Union began negotiations for the
extension of the contract between them or its replacement by a new agreement
they had seven meetings beginning February 17, 1959, and ending midnight Febru-
ary 28. At the very time the existing contract expired by its own terms, the Re-
spondent informed the Union's negotiators that it would not continue further, and
at 1 a.m., March 1 (Sunday), the Respondent dispatched the following telegram
to the Union: 5
WP004 NL PD-Washington DC Feb 28
ROBERT TAUB, Pres Local 101 ITU, Report Delivery-
26 Underwood St Northwest.
Because of the consistent refusal by Local 101 ITU to bargain in good
faith, the Northern Virginia Sun gives Local 101 ITU notice under the pro-
visions of section 4(B) of the collective bargaining agreement terminated
February 28, 1959, that negotiations are broken off effective 1:00 A.M. March
1, 1959.
PUBLISHER, NORTHERN VIRGINIA SUN.
101 ITU 4(13) 28 1959 1:00 am 1 1959-
Although the first moment of March 1, 1959, found the Respondent not bound to
the Union by any collective-bargaining contract, the Respondent had not been freed
of its obligation under the Act to continue to recognize the Union as the repre-
sentative of its composing room employees nor could it legally ignore the fact that
their employees were members of the Union.
The complaint does not allege a refusal to bargain in good faith: the Trial
Examiner took no evidence regarding the actual bargaining between the parties and
bases no findings on any such evidence which may have crept into the record; any
references to the bargaining between the parties are merely made in order to
present an understandable picture of the matters covered by the allegations in the
complaint.
With respect to matters he anticipated would occur at the expiration of its con-
tract with the Union, Editor Stern testified:
Q. (By Mr. SACHS. ) Mr. Stem , what with the new equipment which you had
purchased and the new employees to operate them and these reserve people
that you told us about who were staying at the Clarendon Motel, you were
well prepared to continue the publication of your paper in the event of a
strike, were you not?
A. We were prepared to get some sort of paper out.
Q. That was your purpose in taking the steps which you have testified to?
A. Yes, sir.
B. March 1,1959
The first shift regularly scheduled to begin work after the expiration of the con-
tract was the March 1, 1959, Sunday night shift.. Union President Robert Taub
5 General Counsel 's Exhibit No. 4.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1025
testified that before the shift was scheduled to go to work that day he came to
the plant and:
Well, the members that were scheduled to go to work met with me across
the way, and I explained the situation to them, and reminded them of our
laws and how they should behave.
They wanted to know what they should do. I told them they should re-
port to work because we negotiate beyond expiration dates. We always have
done that. And that they should continue to report as though nothing had
happened.
About five minutes of six I told the members that I would go in with them.
And we went into the Sun building.
According to Taub's undenied testimony:
.. beiore we went into the place, the police were out there. The police
were inside. I don't know whether they were County Police or private police.
But they were inside the building and outside the building, scout cars and all.
Inside the plant Taub saw that various pieces of machinery had been installed and
"strangers," not members of the Union, were at work; Foreman Kane addressed
the newly arrived union member employees but Taub did not listen to Kane for he
had met Gilbert Hahn to whom he said, "Our people are reporting for work,"
upon which Hahn left "for about five minutes" then returned and told Taub, "All
right let your men go to work." Taub then asked that "a new meeting for nego-
tiation be set up" but instead of a reply he was asked by Hahn to leave the plant
"in order to avoid disturbance." Editor Stern, also present, repeated the request.
Taub then left.
Publisher Fritchey testified that after the contract expired February 28, the TTS
machinery and the photon equipment was installed to be ready to operate March 1.
Fritchey further testified on direct examination by the Respondent's attorney:
Q. (By Mr. SuNDLUN.) Now, with regard to that day also, were the so-called
reserve force personnel that had been recruited on that day also there?
A. Yes, I believe they came in the late afternoon on Sunday, as I recall it.
TRIAL EXAMINER PLOST: What date was that?
The WITNESS: March 1st.
He further testified, that this action was in anticipation of "a strike at once." He
testified further:
Q. -(By Mr. SUNDLUN.) When the people did come to work that night, did
you or did you not have any part in the decision of the company with regard
to whether or not those men should go to work?
A. I did.
Q. What part, if any, did you have to play?
A. As publisher, I made the decision that they should go to work. [Em-
phasis supplied.]
Robert R. Schrimsher (Case No. 5-CA-1515), the Union's night-shift chapel chair-
man in the Respondent 's composing room , testified that he entered the plant with
Taub and the others; he corroborated Taub's testimony with respect to the armed
police officers present, the new machinery, and "strangers" at work; also testifying
that he saw a notice on one of the new teletype machines forbidding its operation by
any "unauthorized person,"
John K. Mall (Case No. 5-CA-1523) corroborated the testimony with respect
to the appearance of the plant when the union member employees entered on March
1, and further testified: "Mr. Kane showed us the notice that was -on the composing
room door. Then we all looked at that as we passed into the composing room."
Editor Stein testified that the notice posted, as indicated by Mall,6 read:
March 2, 1959
NOTICE
At 1:00 A.M. Sunday, March 1, 1959, the SUN and Columbia Typographical
Union broke off negotiations , thus terminating the bargaining agreement be-
tween the parties effective at that time.
General Counsel's Exhibit No. 9.
630849-62-vol. 134-66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Shop is now an open shop without a contract. The foreman will hire all
employees and make all rules until permanent rules are posted. There will be
no discrimination in hire and no loitering in the composing room by anyone
not working.
PUBLISHER.
Carroll Cyr (Case No. S-CA-1538) testified that after the employees were in the
composing room:
Mr. Kane started talking-I would say he got the floor-he took the floor.
All the noise ceased, or at least enough of it ,to where you could hear him talk-
ing. And he said that "You men can go to work if you want to work under
the conditions that I have set up here" or something to that effect.
He said, "This is an open shop without a contract. As union men, you know
you cannot work under such conditions." That is the best I can recall it. [Em-
phasis supplied.]
Various witnesses offered corroborative testimony with respect to Kane's talk.
The remarks attributed to Kane, as having been made in his talk to the employees
on March 1, were in no manner demed and the testimony with respect thereto is
credited.
1. The extras or substitutes
The first of the individuals, who found work in the Respondent's plant under the
expired contract, to be affected in their tenure of employment after its expiration
were a group designated as "extras or substitutes."
The category of "extras or substitutes" who obtained intermittent employment in
the Respondent's composing department consisted of individuals who enjoyed certain
rights under the terms of the contract between the Union and the Respondent which
had expired February 8, 1959. Although the contract is not in issue herein, except as
"background" necessary for a proper understanding of the instant matter, it should
be pointed out that there is no dispute that under certain working rules set up in
the contract if an individual (apparently a union member) who was not a regular
employee or "situation holder" presented himself at the Respondent's plant before
the start of a regular shift and asked for employment, the shift foreman (who under
the terms of the expired contract was required to be a union member) was obligated,
under certain contract terms, to hire the applicant for the shift, and the Respondent
was obligated to abide by the foreman's decision and had no choice as to whom to
accept. However, the Respondent could after such hiring designate the work to be
performed, but as stated the employment of "extras" was entirely with the foreman;
the chapel, or union organization within the plant, keeping the record of rights of
applicants for extra work and availability of work under the contract's terms. The
applicant for "extra" work was hired for one shift only, regardless of how much
work was available, but could be rehired from day to day; however, his day's em-
ployment did not give him,the exclusive right to employment on the next day or his
next application.
Four individuals who were admittedly "extras or substitutes" filed charges which
were processed as grounds for complaints and joined in the consolidated complaint
herein; to wit, Clyde Southward (Case No. 5-CA-1509), Kirby Loveless (Case No.
5-CA-1516), Harry Annis (Case No. 5-CA-1519), and Alden Stewart (Case No.
5-CA-1514). Of these only Southward testified.
Clyde Southward testified that he had no "regular situation" with the Respondent
but worked as an "extra" from February 8 until March 1, 1959. Southward testi-
fied:
Q. (By Mr. SUNDLIN.) Now, can you explain to the Examiner as to how you
would know whether there was work for you at the Sun or not?
A. Yes, sir. Well, I would go in there at the prescribed time, you know
before starting time , which was 6:00 o 'clock, and I would make myself
available.
As I said, the members of the chapel had priority on this substitute and if no
one was off that night, sick, you know , or ill or anything , the chairman, he
would ask the foreman who was acting foreman , rather, did they need any extras
that night, you know . He would look around and if he had work there, he
would say, "Hire a sub," and the office would hire me as an office.
Q. I assume that there was a full crew there?
A. Sir?
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1027
Q. Assuming there was a full crew there and nobody was off sick, do you
know whether or not you were entitled to go to work if the reproduction was
not overboard?
A. No, sir, that would be up to the chairman to find out from the foreman,
if there was work available for the substitute.
Southward further testified that he reported on March 1 for the night shift, and was
met by Foreman Kane who told him "We are not hiring." He has not applied since.
The Respondent has not hired or offered work to extras since March 1.
Conclusion
Upon the entire record herein , considered as a whole, the Trial Examiner fails to
understand on what theory an "extra" can be considered to have been an employee of
the Respondent having any rights whatever beyond the single shift for which he was
hired under the terms of the expired contract . The Trial Examiner will therefore
recommend that the cases of the extras be dismissed , namely: Clyde Southward
(Case No. 5--CA-1509), Kirby Loveless ( Case No. 5-CA-1516 ), Harry Annis
(Case No. 5-CA-1515), and Alden Stewart (Case No . 5-CA-1514).
2. George E. Fisher, Roger W. Wheeler, Jr., and Julian T. Darden
George E. Fisher (Case No. 5--CA-1511) testified that he worked during the
regular February 28, 1959, day shift. Before he was scheduled to report for the
next day shift he received a telegram from the Respondent informing him that his
job had been eliminated and that no work was available for him until further notice.
On the same day (March 1) the Respondent sent a telegram to Roger W. Wheeler,
Jr. (Case No. 5-CA-1508), and an identically worded telegram to Julian T. Darden
(Case No. 5-CA-1512). The telegram 7 read:
R WA004 RX PD-(Duplicate of Telephoned Telegram) AX
ROGER WHEELER-Alexandria Vir-1 1040 PME-
1606 Kenwood Ave. (AX) Alexandria Vir-
We are starting the use of new equipment at Sun plant Monday, March 2 (stop)
This has led to the reclassification of certain composing room jobs and the
elimination of your job (stop) We regret there will be no work available for
you March 2 and until further notice-
KANE, Foreman, Sun-
Neither Wheeler nor Darden testified. The Respondent admitted that the two men
were "laid off" March 1.
C. March 2,1959
1. Robert B. Bierly
The Respondent employed two regular "situation holder" proofreaders.
Robert B. Bierly (Case No. 5-CA-1520) testified that he had been a proofreader
for 30 years and employed as such by the Respondent since it began publication. The
other regular proofreader, Lawrence H. Spilman, worked the night shift; Bierly, the
day shift .8
Bierly testified that he reported for work March 2, the first regular day shift after
the expiration of the contract, and worked through the shift; however, his desk had
been moved into the "editorial room." That night after he had returned home he
received the following telegram 9 from the Respondent:
R AXA 445 PD-CJ Arlington Vir 2 824 PME:
-ROBERT B. BIERLY, Dlr if possible
(If unable phone AP 7-0865)-
6411 Colesville Rd University Park Md.-
Due to the reclassification of certain composing room jobs and the elimination
of your job we regret there will be no work available for you March 3 and
until further notice-
KANE, Foreman, Sun-
7 General Counsel's Exhibit No. 12.
8 Spilman continued as a proofreader until March 9. His case is discussed at a later
point herein
9 General Counsel's Exhibit No 18:
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• Editor Stern testified that after March 1 proofreading was transferred to the
editorial department and the actual proofreading split 'up among various editorial
department employees.
The Thal Examiner=is persuaded by the entire 'record , considered as a whole, that,
although the actual proofreading was shifted both as to physical location and to
individuals not classified as proofreaders , and that the proofreading of advertising
material prepared on the photon machine is made by employees in that department,
proofreading as such is still performed , the work or rather the proofreading job was
not abolished , it was merely transferred to a department beyond the jurisdictional
claims of the Union as a pretext.
The Trial Examiner therefore finds that the reasons advanced by the Respondent
for the discharge of -Robert B. Bierly as the day-shift proofreader are not the real
reasons therefor.
2. Robert R. Schrimsher, John K . Mall, and Preston L. Davis
Robert R . Schrimsher (Case No. -5-CA-1513) testified that after the Respondent's
regular night-shift employees were permitted to go to work , as hereinbefore de-
scribed, he worked through the shift ; that on March 2 "at possibly 3:00 or 4:00
o'clock" in the afternoon he received a telegram from the Respondent informing
him that his job-had been "eliminated" and that "there will be no more work avail-
able for you"; and that as -chapel chairman he was -notified by the others on the shift
who had received similar notification.
John K . Mall (Case No . 5-CA-1523) testified that a telegram , similar to the
one received by Schrimsher, was sent to him March 2, but that he did not learn of
it as he had moved from the address the day before ; that he reported for work at
6 p.m., March 2; and that:
I went in and just stood around for a minute, and Mr. Kane came over and
asked me if my name was Mall , and said -due to installation of new equipment
they wouldn't be needing my services any more.
There is no dispute that on March 2 the Respondent also sent a telegram to
Preston -L. Davis (Case No. •S-CA-1515) telling him there would be no work
available for him "March 3 and until further notice" because his job had been
eliminated.
Davis did not testify. -
D. March 3, 1959
The Discharge of Phillip F. Figgins
Phillip F . Figgins (Case No. 5-CA-1522), employed by the Respondent as a
linotype operator until discharged on March 3 , 1959, testified that he came in to
work March 1 with the other union member employees as herein described; he
corroborated the testimony as to the appearance of the plant and the work being
performed at the 'time the union member employees entered March 1. Figgins also
testified he worked the regular night shifts March 1 , 2, and 3; and that at the be-
ginning of the March 3 night shift , Foreman Kane told him to stay at the mixer,
but, 'according to Figgins , as no work was laid out "I just sat there ." Figgins
further testified:
So Kane came in, later on , -told me to go over to No . 2 machine and make some
corrections.
Q. Did you do so?
A. So I went over there and-then when I ,got over there he followed me over
and he said "Figgins, don't make me fire you." I said "What is wrong?" He
said "I don 't like your attitude."
So then he went on telling me _how'sorry he was how things turned out; if
he,had known it was going to be this way and that way, he wouldn't have went
along with the company and everything , and I told him I didn't want to hear all
of it, "Get away."
According • to Figgins , "after 11 I was on No . 2 machine and he came over
and told me , he said, 'Figgins , I think you want me to fire you .' I told him to do
whatever he thought he had to. So he said , `All right, this is your last night.' I
told him 'All right . I will be here tomorrow to 'get my money. ' " Figgins testified
that when he called for his pay on March 4 , he asked Kane the reason for his dis-
charge and was told "Neglect; that is as good as any."
In support of its contention that union animus did not motivate Figgins' discharge,
the Respondent argues that after Figgins ' discharge he was promptly replaced by
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1029
James Stewart, one, of the Union's members discharged from his job as a day-
shift linotype operator by telegram on March 2.
Stewart testified that he reported for work on March 2, the first shift on which
he was due after the contract's expiration; that he worked as usual ; that during the
afternoon of March 2, he asked Editor Stem "if he was going to send me a tele-
gram"; and that Stern "indicated, 'No.' "
Stewart further testified that at midnight, March 2, he received a telegram from
the Respondent 10 telling him there would be no work available for him March 3,
1959; that at 4 p.m., March 3, he received a telephone call from Kane, in which
Kane told him he was "short handed" and asked "if he would come back" to work
on the night shift; that he returned to work on the night shift of March 3 and worked
until the strike.
Inasmuch as Figgins was told he would be discharged after 11 p.m. of March 3,
at which time Stewart was already at work on the shift, having been recalled by
Kane to this shift at 4 p.m., the Trial Examiner fails to grasp the idea that Stewart
was Figgins' replacement.
Stewart testified he had "no idea '-' that he was Figgins ' replacement. In oral
argument the Respondent stated:
Mr. Stewart-and I commend him for his honesty, and I believe his testimony
is absolutely accurate-testified that he did not know of his own knowledge
that he was called back to replace Figgins because Figgins had been fired.
He said, "No," he didn't know that. And I take it that he is absolutely candid
in saying this, and I believe him when he said it.
The Trial Examiner wholeheartedly joins in the Respondent's description of
Stewart as a witness.
Kane did not testify as to Figgins' discharge. Figgins', testimony being wholly
uncontradicted is credited by the Trial Examiner and as the Respondent's contention
is unsupported the Trial Examiner does not accept it as the real reason for Figgins'
discharge and finds that the reason advanced by the Respondent therefor is a mere
pretext.
On March 3, 1959, the Respondent posted the following notice:ll
6:00 P.M.
March 3, 1959.
TO ALL SUN COMPOSING ROOM PERSONNEL
As of last Sunday, March 1 , the SUN put into operation some modem pro-
duction equipment . This necessitated the reclassification of certain jobs in the
production department . As a result, we were regretfully compelled to lay off
certain composing room employees.
We want you to know that this production readjustment has now been
completed and that no more lay-offs are presently contemplated.
The Publisher.
According to Editor Stem:
The purpose of that notice was to allay what we thought might have been
apprehensions on the part of the men then working in our composing room
that their lay-offs were imminent. There had been a few layoffs. And we
wanted to assure them that no other lay-offs were imminent.
On March 4 (the day following the posting of this notice) the Respondent, repre-
sented by Editor Stern, Publisher Fritchey, and Foreman Kane, met with all the
"reserves" in a motel where some of them were quartered by the Respondent.
Editor Stern testified:
Q. (By Mr. SACHS.) Would you tell the Examiner the purpose of that
meeting?
A. The purpose of the meeting was to explain the then existing situation to
the reserve stand-by people and to ask them to remain on in a reserve or stand-by
basis.
Q. Did you have fear that they possibly might leave the community at that
time?
A. Well, I wanted to be sure that they didn't.
to General ,Counsel's Exhibit No 17.
11 General Counsel's Exhibit No. 19
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foreman Kane testified that he arranged the meeting at the request of "one of
the management"; that he attended the meeting but could recall nothing about it
except that its purpose was ". . to tell them not to leave town, that they were
getting paid for their time here."
The Trial Examiner believes he can understand Kane's inability to recall the
details of this meeting for the reason that the Trial Examiner fully recalls Kane's
testimony that he had been a union member for 20 years, that he discussed the
Respondent's plan to change its operations in such a manner which he felt would
cause the Union's members to refuse to work under the contemplated changed
conditions, that he had "cast his lot" with the forthcoming nonunion conditions,
and that he made a trip recruiting replacements for his fellow members who were
at work in the Respondent's composing room, entirely oblivious to the fact that
they were soon to be replaced. It is understandable that Kane who had so elected
to be an instrument in the displacement of his fellow unionists might find that his
mind rejected certain unpleasantness, therefore the Trial Examiner credits Kane's
testimony to the effect that he recalled little of the March 4 meeting between the
Respondent and its nonworking paid "reserves."
E. March 9, 1959
1. Lawrence H. Spilman
Lawrence H. Spilman (Case No. 5-CA-1525), hereinbefore mentioned as the
proofreader regularly employed on the night shift prior to March 1, 1959, testified
without contradiction that there was more proofreading work on the night shift
"than one man could handle ordinarily." He further testified:
Q. (By Mr. SACHS.) Mr. Spilman, were you the only one doing proofreading
on the night shift?
A. No, I had a substitute or an extra-as a matter of fact, we had two who
came in , took up four nights a week, one took two nights and the other was
working two nights.
Spilman further testified:
Q. Were there any occasions when there were no extra or substitutes who
did proof reading work?
A. Yes, one night a week. As a rule we didn't have any, unless somebody
just happened to walk in. On those nights they would have to assign some-
one from the shop to help out.
According to Spilman's undenied testimony, the first shift on which he was due to
report was Monday night, March 2; that he did report as usual and was assigned
his usual proofreading work, but did his work at a desk in the "front office" to-
gether with another man whom he did not know who also read proof; and that
about 40 minutes before the shift ended on Wednesday night, March 2, Foreman
Kane handed Spilman a letter, remarking as he did so, "I suppose you wondered
when you were going to get this." The letter 12 read:
Mr. LAWRENCE SPILMAN,
Fairfax Station, Virginia.
March 9, 1959.
DEAR MR. SPILMAN: As you know, the proofreading job on the day side has
been taken over by the editorial department. Beginning Tuesday night, March
10, 1959, the night proofreading will also be done by the editorial department.
Consequently, I regret that beginning March 10, there will be no work available
for you for the time being.
R. C. Kane,
Foreman
The Respondent contends inter alia that:
The complainant [Spilman] was discharged because he was a proofreader
and job of proofreader was eliminated for economic reasons.
Conclusion
As in the case of proofreader Bierly, the Trial Examiner is convinced that Spil-
man's proofreading job was not "eliminated for economic reasons" but merely trans-
ferred beyond the claimed jurisdiction of the Union and is therefore a spurious con-
is General Counsel's Exhibit No. 21
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1031
tention, and he is further convinced that Spilman was not discharged for the reasons
assigned by the Respondent.
2. Richard D. Lewis, Lowell B. Whitaker, James R. Tyler, Jr., and Richard Craver
Richard D. Lewis (Case No. 5-CA-1527), Lowell B. Whitaker (Case No.
5-CA-1528), James Tyler, Jr. (Case No. 5-CA-1529), and Richard Craver (Case
No. 5-CA-1521) did not testify; however, Foreman Kane admitted that he handed
the following similar letters 13 to each of them before the close of their shift on
March 9:
As you know, we are gradually modifying our operation to make the best use
of the new equipment that has been installed. This, of course, means the re-
classification of certain jobs and the elimination of others. I regret to inform
you that beginning Tuesday, March 10, 1959, there will be no work available
for you for the time being.
R. C. KANE,
Foreman.
Likewise, on March 9, the Respondent posted a notice 14 resetting the hours for
both shifts, effective for the night shift of March 10 and the day shift of March 11.
Those to be employed on the day shift were named.
Foreman Kane testified that the notice was posted Monday night, March 9; and
had been discussed by management on Saturday, March 7, at which time it was
decided to appoint one of the "reserves" then quartered in a motel by the Respond-
ent to be the night-shift foreman.
F. March 10, 1959
The Discharge of Richard L. Voelker
Richard L. Voelker (Case No. 5-CA-1526) testified that he was employed as a
linotype operator in the Respondent's plant working on the day shift; that he
remained at work until and including March 10; that about 1 p.m. of that day
Foreman Kane handed him a letter 15 addressed to him (Voelker) which stated in
substance that because of the new equipment there would be no work available for
Voelker beginning Wednesday, March 11, 1959.
Conclusion
The conduct of the Respondent in seeking, hiring, maintaining, and paying wages
to nonunion individual craftsmen, not to work but only to act as "reserves" and be
the eventual replacements of its union member employees who at the time were rep-
resented by the Union with which the Respondent was engaged in negotiation for the
renewal of an expiring collective-bargaining contract; some of the "reserves" being
hired to operate new type machinery which the Respondent acquired while negotiat-
ing with the Union and had kept in a warehouse without so informing the Union until
its contract had expired, then breaking off the negotiations at the very moment the
contract expired on midnight of February 28, 1959, and then had this new equipment
immediately installed in its plant, not only without any notice to the Union, but with-
out any notice to its union member employees or giving them the opportunity to ac-
quire the jobs of operating the new machinery, clearly shows, together with all the
evidence considered as a whole, that the Respondent had no intention of renewing its
contract with the Union or entering another under conditions acceptable to the
Union and also shows equally just as clearly that the Respondent, together with
the union contract, intended to rid itself of its union member employees.
The "no contract-no work" slogan so dear to a labor union was here to be
applied by the employer.
Although the contract between the Respondent and the Union, as well as the
negotiations surrounding it, are not properly within the purview of this report; as
"background" the contract negotiations are germane to the issues.
It is clear that the Respondent intended to rid itself of its union member employees
at the earliest opportunity, else why was the first shift which reported after the
expiration date of the contract met by armed guards and a crew of "strangers" work-
ing.in their places. True the regular employees were finally permitted to work the
13 General Counsel's Exhibit No. 20
14 General Counsel's Exhibit No 23.
is General Counsel's Exhibit No 22
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift, thus saving the Respondent from having engaged in a lockout of employees
who were clearly entitled to all the rights of employees represented by a union of
their choice. Surely the Respondent must have known (in fact the testimony of Pub-
lisher Fritchey and Editor Stern shows) that the Respondent was obsessed by the
idea that the Union would strike its plant rather than permit its members to work
under the new conditions contemplated by the Respondent; the Respondent also knew
the Union's rules governing the calling of strikes and knew that its union member
employees were bound by union rules A strike, as admitted by the Respondent,
could be very detrimental to its operation and it is fair to infer that the Respondent
thought that its sure defense against a strike lay in ridding itself of its union member
employees and replacing them with nonunion "reserves" before a strike could be
called.
In the opinion of the Trial Examiner the record as a whole is not amenable to
any other interpretation; therefore the Trial Examiner finds on the entire record
that George E. Fisher (Case No. 5-CA-1511), Roger W. Wheeler, Jr. (Case No.
5-CA-1508), Julian T. Darden (Case No. 5-CA-1512), Robert B. Bierly (Case No.
5-CA-1520), Robert L. Schrimsher (Case No. 5-CA-1513), John K. Mall (Case
No. 5-CA-1523), Preston L. Davis (Case No 5-CA-1515), Phillip F. Figgins (Case
No. 5-CA-1522), Lawrence H. Spilman (Case No. 5-CA-1525) Richard D. Lewis
(Case No. 5-CA-1527), Lowell B. Whitaker (Case No. 5-CA-1528), James Tyler,
Jr. (Case No. 5-CA-1529), Richard Craver (Case No. 5-CA-1521) and Richard L.
Voelker (Case No. 5-CA-1526) were each discriminatorily discharged in violation
of the Act, by the Respondent, on the dates as herein before set out, because of
their membership in and activities on behalf of the Union.
G. March 11 and 12, 1959
1. The strike
Exclusive of "extras," found herein not to have been employees of the Respondent
on February 28, and also exclusive of supervisors, the Respondent's composing de-
partment (including proofreaders) on February 28 consisted of 30 individuals divided
into 2 shifts. Twenty-eight of the thirty employees are the Charging Parties, two
others having voluntarily quit after March 1. All 30, the entire composing room
rank and file, were union members.
After Voelker's discharge on March 10, only 10 union members were working in
the plant. These 10 employees, by the posted notice of March 9,16 were not only
named but assigned to a single-day shift beginning March 11, and were ordered to
report at unaccustomed times.
The 10 employees-
James D. Raines--------------------------------- Case No. 5-CA-1530
Lawrence C. Douglas ----------------------------- Case No. S-CA-1531
John J. Sprinkle--------------------------------- Case No. 5-CA-1532
Miss Verna E. Dore------------------------------ Case No. 5-CA-1533
Roscoe S. Herrick-------------------------------- Case No. 5-CA-1534
Aubrey R. Stream-------------------------------- Case No. 5-CA-1535
Donald W. Tucker------------------------------- Case No. 5-CA-1536
Chester E. Zenger-------------------------------- Case No. 5-CA-1537
Carroll M. Cyr---------------------------------- Case No. 5-CA-1538
James Stewart ----------------------------------- Case No. 5-CA-1545
met at the Union's hall on March 10. Their mutually corroborative testimony (how-
ever, Zenger, Sprinkle, and Douglas did not testify) discloses that all of the 28 em-
ployees filing charges in this matter were present; that the meeting meticulously ob-
served the Union's rules with respect to the calling of a strike; and that they notified
their International Union, obtained permission to "go out," and only then put up, a
picket line.
Robert Schrimsher, not 1 of the 10 still employed on March 10, testified that he
attended the meeting in the Union's hall and further:
Well, they said they didn't want to go back to work due to the fact that they
had told them in a notice posted early in the week, or the previous week possi-
bly, that there would be no more layoffs. Then they had turned around and
laid off five more men. And they had changed their starting hours to 4:00
10 General Counsel's Exhibit No. 23.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1033
o'clock in the morning and had put a man who was very well known in as
foreman. They just didn't want to go back in under those conditions.
Carroll M. Cyr, who was 1 of the 10 working on March 10, testified with respect
to the meeting and strike vote:
Well, we all met up ,there at three o'clock in the office of the union. And there
was a general discussion of everything that had -taken place in the Sun since the
expiration of the contract.
We finally decided to check to see whether it was appropriate to make a move
to go on strike. Several of our people-and I don't recall exactly who-left the
room to get some legal advice, or to get some information from somewhere.
And they returned.
It was a very unanimous thing that we were in favor of going out.
TRIAL EXAMINER: All right.
The WITNESS: As I recall, I believe they had to wire the International and
get their okay on it or something. But, before we left that night, we realized
that we were out on strike.
As herein found the complaint alleges in effect that the Respondent sought to
provoke a strike by its union member employees and that:
Respondent's further intention in the event that it successfully provoked a
strike was to.replace all its employees who were members of the Union because
of their membership in and adherence to the Union.
The Trial Examiner is not persuaded ,by the evidence that he may infer that
the Respondent improved on the lessons Macchiavelli taught his Prince and there-
fore rejects the contention that the strike was deliberately provoked; however,
the Trial Examiner is convinced that the strike was "an unfair labor practice strike."
It was voted by all the Respondent's union member employees; it was authorized
by the International Union; all the Union's rules with respect to the calling of
strikes were observed; clearly it was not just a "walkout" by 10 employees acting
"on their own." The International authorized the strike, not for trivial grievances but
because of the conduct found herein to constitute unfair labor practices by the
Respondent.
The argument was advanced by the Respondent that the conduct of "the last
ten" in remaining at work, under a nonunion foreman, and in not vigorously pro-
testing at once when their fellow union members were "laid off" clearly shows the
contention that the strike was caused by the Respondent's unfair labor practices
to be mere "window dressing." The Trial Examiner views the 11-day "waiting period"
as a delayed action fuse. Such delayed action is not at all uncommon in the
record of American conflict, for example, schoolboys are taught that one of the
"proximate causes" of our Revolutionary War was the Boston Massacre. The
Boston Massacre occurred March 5, 1770; the first armed conflict which opened
the War for Independence was at Concord and Lexington where the "shot heard
around the world" was fired at "the rude bridge that spanned the flood" on April 19,
1775.
Likewise the sinking of the Lusitania is given as our breaking point with the
Kaiser in the First World War. The Lusitahia was sunk May 7, 1915. We entered
World WarI on April 6, 1917.
CONCLUSION
On all the evidence considered as a whole the Trial Examiner finds that on
March 11, 1959, the Respondent's employees: James Stewart, James D Raines,
Roscoe S. Herrick, Chester E. Zenger, Verna E. Dore, Donald W. Tucker, Aubrey R.
Stream, John J. Sprinkle, Lawrence C. Douglas, and Carroll M. Cyr struck the
Respondent's plant, and,were joined in the strike by the employees of the Respondent
who had been unlawfully discharged between March 1 and 10, 1959, inclusive, as
hereinbefore found. The strike was still in progress at the time of the hearing. The
Trial Examiner further finds that the above-mentioned strike was caused by the
Respondent's unfair labor practices.
2. Carroll M. Cyr
As to Carroll M. Cyr, one of the above-mentioned strikers, the Respondent
contends that Cyr "is a supervisor within the meaning of the Act."
Cyr testified without any contradiction and credibly that in mid-1957 he was
made assistant foreman on the day shift; that as assistant foreman he neither possessed
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor exercised the authority to hire or fire and did the usual work of a "floor man"
on the shift ; that when Kane was made "assistant business manager," before leaving
on his "recruiting trip," he asked Cyr to take the job of foreman "on a trial basis";
that on Kane's return he told Cyr the real purpose of the trip, spoke of the
possibility of Cyr's obtaining a contract with the Respondent as a nonunion foreman,
and stated that "all union men would be out."
Cyr continued to work after March 1, was told by Kane he was still assitant
foreman, and on March 5 asked to -be relieved of his job as assistant foreman.
Editor Fritchey testified that after Cyr's request to be relieved:
Q. (By Mr. SUNDLUN.) What did you do with regard to Mr. Cerr [Cyr]?
A. We did everything we could. I talked with him. My partners talked
with him. We went into it at the greatest length. We offered him permanent
employment without regard to circumstances , without regard to whether a
strike developed later . He felt he could not do it.
TRIAL, EXAMINER PLOST: Mr. Cerr [Cyr] was at the time day foreman?
The WITNESS: He was Assistant Foreman, yes, sir. We thought well of
him. He had always worked with us contentedly, and we wanted him to con-
tinue. He felt for union reasons and others which we enumerated that he could
not do this-they were particularly union reasons. We discussed this over a
period of two or three days, and at the conclusion of this when he felt he
simply could not, I believe I asked him for recommendations-whether he knew
anyone else.
His statements was he felt sure all the other men would feel the same way.
At that point, we had to make other arrangements.
The "other arrangements" are fully disclosed by the notice posted March 9 17 which
lists Cyr as a "rank and file" employee.
The Trial Examiner finds no merit in the Respondent 's contention that Cyr was
a foreman not protected by the Act.
H. The Respondent 's telegrams to the strikers
On March 11, 1959, the Respondent sent the following telegram to Preston Davis
(Case No. 5-CA-1515), George Fisher ( Case No. 5-CA-1511 ), and Roger W.
Wheeler, Jr. (Case No. 5-CA-1508) :
Work now available for you at Northern Virginia Sun. Please phone me
between 9 a.m. and noon Thursday , March 12.
Signed Kane.18
Similar telegrams were sent on the following day to Julian T . Darden (Case No.
5-CA-4512), Clyde E. Southward ( Case No. 5-CA- 1509 ), and Robert R. Schrimsher
(Case No. 5-CA-15'13) .
Schrimsher testified that at the time he received the telegram he was the picket
captain on the picket line already established at the Respondent 's plant ; that he did
not answer the telegram or go to work because:
I would have to go back to the text of the first telegram which said my job
had been eliminated . I didn't think it was a bona fide offer of re-employment,
-because my job had not been eliminated.
Publisher Fritchey testified, regarding ,its "hot metal" force , that after March 11,
1959, "immediately after the walkout";
they were inexperienced . My rough recollection is we had seven journey-
men and four apprentices . We were missing , I know, -at least three experienced
journeymen.
Thereafter the telegrams above referred to were sent and again beginning on March
21, and ending April 1, telegrams in groups of three were sent to all the employees
(except the proofreaders ). They read: 19
You are requested to return to your job at the Northern Virginia Sun by reporting
to work at 9 a.m. on March 24, 1959. You will be employed upon the'same
17 General Counsel 's Exhibit No. 23.
18 Respondent ' s Exhibit No 3
11 Respondent 's Exhibits Nos 1, 7, 10, and 27.
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1035
terms and conditions and with the same rights and privileges which you had
after the termination of the collective bargaining agreement at 1 a.m. March 1,
1959 and immediately prior to your layoff. If you desire to return to work,
please notify Mr. Stern or Mr. Sagalyn by telephone JA 4-3000 no later than
4 p.m. March 23, 1959.
Fritchey further testified:
TRIAL EXAMINER PLOST: And those three men, as I understand the former
testimony, did not come back to work?
The WITNESS: That is correct.
TRIAL EXAMINER PLOST: And after you learned that these three original
recipients of your telegrams weren't coming back, you sent out three more?
The WITNESS: That is right. We continued to make efforts for several more
days.
I think we sent them out in the next few days to all that had been laid off.
On March 25, Union President Taub telegraphed the Respondent asking if the
telegrams sent to the discriminatees were intended to be an offer of reinstatement
to all the group.
Taub received no reply.
Conclusion
The Trial Examiner finds, on the entire record herein, that the telegrams above
referred to, as sent by the Respondent, had no effect on the status of the employees
herein found to have been discharged, to wit: Darden, Wheeler, Jr., Fisher, Mall,
Davis, Schrimshei, Figgins, Craver, Tyler, Whitaker, and Lewis for the reason
(as very early established in Board law) that the offer was not made to all of
the discharged employees.20 It is clear that the offer was in reality limited to at
most three of these employees.
As to James Stewart, James D Raines, Roscoe S. Herrick, Chester E. Zenger,
Verna E. Dore, Donald W. Tucker, Aubrey R. Stream, John J. Sprinkle, Lawrence
C. Douglas, and Carroll M. Cyr, who have been found herein to be engaged in
an unfair labor practice strike, the -same rule will apply, the Respondent's offer
must have included all else the Respondent was engaging in an unfair practice.
As stated by the Board in Porto Rico Container Corporation 21 citing its former
decision in The Good Coal Company: 22
We have heretofore held that "an offer of reinstatement to some of a number
of employees who have been discriminated against as a result of concerted
activity . . . together with a clear manifestation that the other employees who
have been so discriminated against will not be allowed to return to work,
does not constitute any real offer of reinstatement within the purview of the
Act.
Obiter
The Trial Examiner has received very extensive briefs from all the parties but
has been unable to fully agree with any of them, yet it will be observed that he has
not found it necessary to cite a plethora of authority to sustain his findings herein
for the reason that in his considered opinion, when viewed,in their entirety, the
facts disclosed by the record show a plain violation of the Act in a manner long
since decided to constitute the most simple form of unfair labor practice. To
cite authority therefore would merely be piling Osso on Pelion. There is no real
dispute as to the facts. The Respondent's sole defense seems to be that fearing
economic reverses it had the right to disregard any rights which the Act guaranteed
to its employees by reason of their membership in the Union. True, in a time of
technological change an enterprise must change with the times if it is to prosper
but within the ambit of the Act the rights which it guarantees cannot be unilaterally
pushed aside.
The Trial Examiner feels that he must commend all the parties for the well-
nigh amazing candor and the regard for each other displayed while testifying.
20 National Motor Rebuilding Corp., 19 NLRB 503.
89 NLRB 1570
2212 NLRB 130.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a year's strike there was no sign of rancor or bitterness. All the parties
appeared eager to adhere strictly to their oaths to tell "the whole truth." The
adversaries clearly understood each other's positions. - The temper of the parties was
perhaps created by the attitude of their advocates who all "fought the good fight."
The General Counsel impersonally fulfilled completely his duty to protect the public
interest , the Respondent's attorneys and the attorney for the Charging Parties
were true advocates for their respective clients in the best tradition of the legal
profession.
Final Conclusions
Upon the entire record and from his observation of the witnesses , the Trial Ex-
aminer finds that by the discharge of the following employees on or about the
dates set after their names: Robert B. Bierly, March 2; John K. Mall, March 2;
Julian T. Darden, March 1; Preston L. Davis, March 2; Roger W. Wheeler, Jr.,
March 1; George E. Fisher, March 1; Robert R. Schrimsher, March 2; Phillip
F. Figgins, March 3; Richard C. Craver, March 9; James R. Tyler, Jr., March 9;
Lowell B. Whitaker, March 9; Richard D. Lewis, March 9; Lawrence H. Spilman,
March 9; and Richard L. Voelker, March 10, 1959, the Respondent did discourage
and is discouraging membership in a labor organization by discrimination in regard
to hire and tenure of employment and terms and conditions of employment, and
by said acts and conduct, did engage in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act, and that by said acts and con-
duct did interfere with, restrain, and coerce and is interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act, and did thereby engage in and is thereby engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
The Trial Examiner further finds that on and after March 11, 1959, James D
Raines, (Case No. 5-CA-1530); Lawrence C. Douglas, (Case No. 5-CA-1531);
John J. Sprinkle, (Case No. 5-CA-1532); Miss Verna E. Dore, (Case No.
5-CA-1533), Roscoe S Herrick, (Case No. 5-CA-1534); Aubrey R. Stream, (Case
No. 5-CA-1535); Donald W. Tucker, (Case No. 5-CA-1536); Chester E. Zenger,
(Case No. 5-CA-1537); Carroll M Cyr, (Case No. 5-CA-1538); and James
Stewart, (Case No. 5-CA-1545), engaged in an unfair labor practice strike called
by the Union because of the unfair labor practices of the Respondent and that the
above-named employees of the Respondent are entitled to all the rights of strikers
engaged in a strike caused by the unfair labor practices of their employer including
the right of reinstatement on certain conditions.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The Respondent's activities set forth in section III, above, occurring in connection
with the Respondent's operations 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
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recoinmended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In recommending a remedy the Trial Examiner does not believe he should dis-
regard the technological change which played such a large part in coloring the Re-
spondent's thinking regarding its contractual and statutory obligations to its union
member employees. The Trial Examiner must and does remember that the Respond-
ent's plant is not as it was on February 28, 1959, and in recommending a remedy,
which is not in any sense punitive but only reestablishes the status quo, the Trial
Examiner will take due consideration of this fact, taking due notice that the jobs
created by the, technological change were not offered to the Charging Parties herein
to whom the first offer, if not the jobs themselves, belonged. The Trial Examiner
is also fully aware that the Board will not order the Respondent to turn back the
clock and scrap its new equipment in the search for the status quo 23
Having found that the Respondent discriminated in regard to the hire and tenure
of employment of Roger W. Wheeler, Jr., George E. Fisher, Julian T. Darden, Robert
23 See NLRB v. Transamerican Freight Lines , Inc , 275 F 2d 311 (CA. 7).
NORTHERN VIRGINIA SUN PUBLISHING COMPANY 1037
R. Schrimsher, Preston L. Davis, Robert Bell Bierly, Richard C. Craver, Phillip F.
Figgins, John K. Mall, Lawrence H. Spilman, Richard L. Voelker, Richard D.
Lewis, Lowell B. Whitaker, and James R. Tyler, Jr., because of their membership
in and activities on behalf of the Union, it will therefore be recommended that the
Respondent offer them immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights and
privileges, and that they be made whole for any loss of pay they may have suffered
by reason of the discrimination against them, by payment to each of them of a sum
of money equal to that which each would normally have earned as wages from the
date of the discrimination to the date of the Respondent's offer of reinstatement,
less their net earnings during such period.24 The backpay shall be computed in the
manner established by the Board,25 and the Respondent shall make available to the
Board its payroll and other records to facilitate the checking of amounts due.
Having found that James D. Raines, Lawrence C. Douglas, John J. Sprinkle,
Verna E. Dore, Roscoe S. Herrick, Aubrey R. Stream, Donald W. Tucker, Chester
E. Zenger, Carroll M. Cyr, and James Stewart have engaged in and are engaging
in a strike caused by the unfair labor practices of the Respondent, the strike being
still current, the Trial Examiner will recommend that upon request made by any of
the above-named employees, the Respondent will offer such employees immediate
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dismissing , if necessary, any replace-
ments hired; those strikers for whom no employment is available because of the
change in the Respondent's operations shall be placed on a preferential hiring list for
all jobs for which they are qualified with priority among them as heretofore applied
in the conduct of the Respondent's operations, and thereafter shall be offered rein-
statement as jobs become available, except that, first, before the said preferential
list is established, the strikers for whom no jobs are available, and all those hereto-
fore found herein discriminatorily discharged for whom no jobs are available.
shall be offered jobs in the "cold composition" department and the "TTS" department
for which they are qualified or may be trained within the Respondent's plant and at
its expense within a reasonable time; present employees on said jobs hired since
February 28, 1959, to be discharged if necessary. The Respondent shall also make
whole any striking employee applying for reinstatement, if said employee is not
reinstated within 5 days after such application, and work is available as above indi-
cated, for any loss of pay after said 5-day period. Computations of backpay shall
follow the customary Board rules.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. George W. Ball, Phillip M. Stern, Arnold Sagalyn, and Clayton Fritchey are,
and have been at all times material herein, copartners doing business under the trade
name and style of Northern Virginia Sun Publishing Company and are engaged in
commerce within the meaning of the Act.
2. Columbia Typographical Union No. 101, International Typographical Union,
AFL-CIO, is a labor organization within the meaning of Section 2(5), of the Act.
3. By discrimination in the hire and tenure of employment of Roger W. Wheeler,
Jr. (Case No. 5-CA-1508), George E. Fisher (Case No. 5-CA-1511), Julian T.
Darden (Case No. 5-CA-1512), Robert R. Schrimsher (Case No. 5-CA-1513),
Preston L. Collins (Case No. 5-CA-1515), Robert B. Bierly (Case No. 5-CA-
1520), Richard C. Craver (Case No. 5-CA-1521), Phillip F. Figgins (Case No.
5-CA-1522), John K. Mall (Case No. S-CA-1523), Lawrence H. Spilman (Case
No. 5-CA-1525), Richard L. Voelker (Case No. 5-CA-1526), Richard D. Lewis
(Case No. 5-CA-1527), Lowell B. Whitaker (Case No. 5-CA-1528), and James R.
Tyler, Jr. (Case No. S-CA-1529), the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By such discrimination the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
u Cr088ett Lumber Company, 8 NLRB 440.
15 F. W. Woolworth Company, 90 NLRB 289.