Patent Trader, Inc.

National Labor Relations Board - Board Decisions

May 31, 1977

229 N.L.R.B. 1042 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Patent Trader, Inc., Division of Morris Newspaper
Corporation and Jeffrey Brown. Case 2-CA-14138
May 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 29, 1976, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
a The General Counsel and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Drv Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3.
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 We disagree with the Administrative Law Judge's finding that
dischargee Brown's September 19. 1975, letter to Etzler, his supervisor.
constituted the only instance of concerted activity on his part prior to his
discharge. Nevertheless, we find that the Respondent had legitimate
grounds for discharging Brown apart from his concerted activities, and
dismissed him for these reasons rather than for his concerted activities. We
therefore adopt the Administrative Law Judge's recommended Order
dismissing the complaint. McDonnell Douglas Corporation. 189 NLRB 87
(1971): Continental Oil Company, 161 NLRB 1059 (1966): Norge Division,
Borg-Warner Corporation, 155 NLRB 1087. 1089(1965).
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon a
charge filed on March 3, 1976, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 2, issued a complaint on April 2, 1976, against
Patent Trader, Inc., a Division of Morris Newspaper
Corporation, herein called Respondent or the Company,
alleging that it had discharged employee Jeffrey Brown in
229 NLRB No. 159
violation of Section 8(a)(1) of the National Labor Relations
Act, as amended, herein called the Act. Respondent filed
an answer denying the allegations of unlawful conduct
alleged in the complaint.
Pursuant to notice, a hearing was held before me in New
York, New York, on June 23 and 25, 1976. Briefs were
received from the General Counsel and Respondent on
August 3, 1976, and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation maintaining its
principal office and place of business in the city of Mt.
Kisco, New York, where it is engaged in newspaper
printing and publishing and commercial printing. During
the year preceding the hearing herein, Respondent per-
formed services valued in excess of $500,000, of which
services valued in excess of $50,000 were performed for
enterprises in States other than the State of New York. I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The sole issue in this case is whether Jeffrey Brown was
terminated by Respondent in violation of Section 8(a)(1) of
the Act because he had engaged in protected concerted
activities.
A. The Facts
Respondent, among its other enterprises, publishes a
suburban newspaper called the Patent Trader. Jeffrey
Brown, the Charging Party, became employed as a
photographer for the Patent Trader in September 1974. In
January 1975, he became a staff reporter, a position which
he thereafter held until January 26, 1976, at which time he
was terminated.
Victore Salvatori, the former editor of the paper, was
terminated from this position by Respondent in the early
part of September 1975. This action was taken by David
Simonson, the publisher, apparently because he was not
satisfied with Salvatori's management of the operations. In
any event, on or about the same day of Salvatori's
termination, his position as editor was filled by the
promotion of Katherine Etzler, an assistant editor who had
been employed with Respondent since September 1967.
Word about this change in management spread among the
employees on the same day of Etzler's promotion to editor.
At some point during the day, a number of the employees
requested that she hold a meeting with the staff. The record
reflects that since Etzler was as much taken with surprise at
her promotion as were the employees, she would have
preferred to wait a day or two to prepare for any such
meeting. Nevertheless, at the continued behest of the
employees she did agree to meet with them that day. After
the preliminaries, a general discussion was held concerning
the impact of the change. Simonson, who was not initially
present, later appeared and joined in the discussion. A
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PATENT TRADER, INC.
number of the employees, including Brown, asked ques-
tions. The topics discussed included salaries, the paper's
budget, possible staff changes, the increased use of part-
time reporters (known as stringers), news coverage, the
quality of the newspaper, and the like. In short, the
discussion was of the type such as might typically be
expected under the circumstances.
During the next week or so the employees discussed
among themselves the possible impact of the change in the
editorship. They finally decided to request a meeting with
Etzler and Simonson. On September 19, 1975, Brown took
it upon himself to draft a letter which stated as follows:
Kay,
We want to meet as a group with you and Dave after
deadline Friday, September 26, to get a more thorough
explanation of the coming year's budget and how we
can expect to be affected. We hope figures will be
available.
Brown was the first to sign the letter. During the day it
was passed around the office and was finally signed by
seven individuals. These included Brown, three other
employees, and two supervisors. The two supervisors were
Molly Bliss, an assistant editor who testified herein, and
the sports editor. At the end of the day the letter was
placed in an envelope and was handed to Etzler by Bliss.
Etzler opened the letter and read it in the presence of the
employees. Brown testified that upon reading the letter she
stated, "I see these people signed it but I see who signed it
first." I Etzler subsequently took the letter to Simonson and
asked what he wanted to do about it. Simonson did not
give any definite response except to indicate that he wished
to think about it. However, insofar as the employees were
concerned, no further action was ever taken with respect to
the September 19 letter. Etzler did not respond to it, no
meeting was ever held pursuant to the request in it, none of
the employees brought up the letter again, and the matter
was completely dropped.2
I pause here in the recitation of facts to again note that
the issue in this case is whether Brown was terminated for
engaging in protected, concerted activity. Insofar as Brown
was involved in the activity connected with the September
19 letter, which activity was an attempt by the employees
to meet with management concerning matters which could
affect their wages and working conditions, it is clear, and I
find, that this activity was of the type of concerted activity
protected by the Act. However, I find this to be the only
concerted activity in which Brown was engaged at any time
prior to his termination on January 26, 1976.
I turn now to certain other incidents which are relevant
to a determination of the motivation behind Brown's
termination on the latter date. Within a week or so
Bliss was among those present when Etzler opened the letter. She
testified that upon reading the letter Etzler "slammed it down on the desk"
and said, "I see whose work this is. I see whose signature is first." Further,
according to Bliss, Etzler at this time stated also that, "Jeff is being a trouble
maker and he is out to get me." I do not credit this uncorroborated
testimony of Bliss. which was not even in accord with that of Brown. Bliss.
who is no longer employed with Respondent. gave me the impression of
having a tendency to color her testimony in favor of the Charging Party.
2 Etzler testified that one reason for not discussing the subject matter in
the letter with the employees was because she knew it was Simonson's policy
following the September 19 letter, Etzler met with Brown
for a salary review. At this time Etzler apprised Brown that
his weekly salary was being increased from $140 to $155.
Brown protested strongly that the increase was inadequate.
Etzler explained that the decision was that of upper
management; namely, the owner and the publisher.3
Brown stated that nevertheless he was not satisfied with the
raise and that he would look for another job unless he
received more money.
At or about the latter part of September, Brown had
lunch with Etzler and Bliss. This occasion is noteworthy
only for the fact that at this time Etzler told Brown that she
was considering the possibility of his handling the York-
town edition of the paper, a position which would give him
additional responsibilities.
In November 1975, Brown was given another salary
increase, this time from $155 to $170. Two other employees
also received raises at this time, one of whom was a
signatory to the letter, the other of whom was not.
Before turning to the circumstances of Brown's termina-
tion, a final relevant incident is in order. This took place in
August 1975, at which time Etzler, as an assistant editor,
was acting as editor while then editor Salvatori was on
vacation. On this occasion Brown came to Etzler and
volunteered to cover a story concerning two kidnapping
suspects who were being brought to Harrison, New Jersey,
for arraignment. Pointing out that Harrison was beyond
the area usually covered by the paper and that the arrival
time was uncertain, Etzler suggested that he cover the story
by telephone. When Brown nonetheless persisted that he
make the trip, Etzler finally agreed that he do so but asked
that he also take a camera to take some pictures of the
event. Brown refused, stating, "I will not take a camera."
Etzler, who testified that she was surprised at this reaction,
asked that he reconsider. Brown thereupon replied, "I will
carry a camera if you will pay me $150.00 a day for free-
lance fee." After first pointing out that the paper could not
afford to do this, Etzler finally relented by agreeing to let
Brown make the trip, and further, that he be accompanied
by the staff photographer.
Brown admittedly was a poor speller. Such was reflected
in his copy. In addition, the record reflects that Brown was
not infrequently late in getting in his copy before deadline. 4
Etzler testified that in January 1976, she felt she had held
the position of editor long enough to assess the entire
operation and that it was time for her "to start shaping up
the newsroom." Accordingly, on this date she decided to
talk to two employees, Brown and Vicki Epstein, about
their certain deficiencies. It is undisputed that she did talk
to Epstein, a fact which I note only for the reason that it
reflects that Brown was not singled out for criticism. When
Brown was called into the conference room where the
discussion took place, Etzler first talked to him about his
that the department budget not be revealed to anyone but supervisors.
Indeed, it is undisputed that later Euler did discuss the letter with Assistant
Editor Bliss at which time she also provided Bliss with a written analysis of
her plans for the budget in the department.
:' Testimony of Brown.
This does not mean that Brown did not meet the deadline. However.
the record reflects that the reporters were generally expected to turn in their
copy at a reasonable time before the deadline It was in this respect that
Brown was deficient.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
late copy. Brown responded in kind. Etzler then turned to
the subject of his poor spelling, stating also that he had
been turning in sloppy copy, both of which created
problems in editing. After further discussion along this line,
Etzler finally brought up the subject of a camera. There is a
dispute as to just what was said in this regard. Brown
testified that "[at] the end of this conversation she said, 'in
addition to these things you will be required to take
pictures from now on.' Etzler, on the other hand,
categorically denied that she told Brown he would be
required to take routine pictures. Rather, she testified that
she asked Brown "for an indication of his willingness to
pick up a camera once in a while when I needed him to do
so." From my observation of the witnesses, I credit the
testimony of Etzler over that of Brown.5 In any event, it is
undisputed that Brown objected to Etzler's request and
that he strongly voiced his unwillingness to comply with it.
Indeed, according to the credited testimony of Etzler,
Brown stated the he should receive extra compensation in
the event he ever engaged in picturetaking. Upon Brown's
refusal, and at the end of the conversation, Etzler finally
told Brown that he would have 2 weeks to think the matter
over at which time they would talk about it again. She also
stated that he would be on probation during this period but
she did not indicate what action would be taken in the
event he did not accede to her instructions.
Brown chose not to wait out the 2 weeks, but decided to
force the issue on January 26, 1976, by taking the following
deliberate action: Thus, after lunch on this date while
Brown, Etzler, and the other employees were seated at their
desks, Brown addressed Etzler in a voice loud enough for
all to hear and stated that he did not need 2 weeks to think
it over, that he had decided not to take pictures, and that
she could fire him if she wished. Etzler simply replied,
"Well, all right," and with this Brown was terminated.
B. Additional Facts: Conclusions
Asserting that Brown was discharged for having engaged
in protected activity, the General Counsel contends that
"the discharge of Brown because he refused to carry a
camera was a pretext." I disagree and find that Brown was
terminated for cause. My reasons for so finding are several.
In the first place, it is conspicuously apparent that the
timing of Brown's termination on January 21, 1976, was far
removed from the date of his protected activity which took
place on September 19, 1975. Indeed, during the interim
Brown was the recipient of two wage increases and at one
point during the same period, during an apparently
friendly luncheon with Etzler and Bliss, was told by Etzler
that she was considering increasing his responsibilities.
Assuming that Etzler did express annoyance upon receipt
of the September 19 letter and that she indeed did note that
Brown's signature was the first to appear, it hardly appears
s Etzler impressed me as a forthright and honest witness. In instances
where her recollection of past events was hazy, she was frank to concede it.
Unlike many witnesses in these proceedings who are prone to deny the
testimony of others which may be damaging to their cause whether they
recollect it or not, Etzler did not do so in those instances where her
recollection was admittedly faulty.
6 Aside from the fact that Brown was the first signatory to the letter,
there is absolutely no evidence to indicate that Etzler was aware that Brown
from the foregoing that she continued to harbor any
particular animosity toward him for this reason.6 It is also
true that, after her salary review with Brown in October,
Etzler did refer to Brown as "insolent and abusive" and a
"brat." The record, however, does not relate this to the
September 18 activity. Rather, the evidence reflects that
Brown did not hesitate to talk back to Etzler whenever he
chose to disagree. Aside from the incident in August when
Brown refused to carry a camera and expressed himself, as
the record reveals, in no uncertain terms, Etzler gave
another example of Brown's insolent attitude when she
testified, without contradiction, that during one of his
salary reviews with her he told her that she was an
"ineffective person," a "weak person," and that he did not
trust her.7
Secondly, in urging that Brown's termination was
pretextual, the General Counsel makes much over the fact,
as indeed the record reflects, that Respondent's reporters
were rarely called upon to take pictures when they went
out to cover news stories. However, and apart from the fact
that it is an employer's prerogative to assign employees
such duties as it deems fit, Etzler gave a credible
explanation for requesting Brown, during the January 21
discussion, to indicate a willingness to take pictures when
the occasion demanded. Etzler's testimony in this regard
was as follows:
JUDGE VON ROHR: I understand you called him in to
discuss his work and what you felt were his shortcom-
ings and you went into this but what prompted you at
this particular time to bring up the subject of the
camera?
THE WITNESS: It had been bothering me ever since
the August incident and I feel having to run a paper by
confrontation is a difficult way to run a paper
particularly since some things have to be done
instantaneously and I was trying to avoid a situation
like the August one.
I simply was trying to work towards more finished
work of the paper. I decided in January by then I had
had time to assess the overall situation and I saw some
things were not working.
I waited for a while so I could see how things were
going under my direction and I wasn't satisfied.
Incidentally I called in another reporter that same
day.
Under all the circumstances of this case, including my
observation of the witnesses, I credit the above testimony
as a logical and reasonable explanation for Etzler's having
chosen this time to request the assignment in kind.
Finally, but without relying on this as the sole basis for
this decision, the facts in this case reflect that Brown's
separation from Respondent's employment was indeed
authored the document or that he was any more active than the others in its
preparation or circulation. Indeed, the letter was handed to her by Bliss.
7 Further reflecting Brown's attitude toward Mrs. Etzler is an incident
that occurred in November 1975. On this particular occasion Etzler posted a
notice on the bulletin board reflecting that certain reporters were handing in
late copy. Brown countered by posting a note next to it in which he stated,
"Kay: It might be a good idea to add a few columns so the reporters can
evaluate editors. Jeff." Notwithstanding the disrespectful tone of the
message, which was open for all to see. Etzler let the matter stand.
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PATENT TRADER, INC.
largely self-imposed. As previously noted, Etzler told
Brown to take 2 weeks to think the matter over and that he
would be on probation during this period. She did not say
that he would necessarily be discharged if he refused to
comply with the assignment. Under the circumstances, I
hardly think it can be assumed that the matter could not
have been resolved by some action or agreement short of
final termination. From the facts heretofore related, it is
clear that Brown acted prematurely and with deliberate
provocation. Etzler testified that Brown's conduct in thus
bringing the matter to a head in the presence of the other
employees left her with little choice. As she said:
Well, I said it because in the first place I felt that he was
challenging my authority. I think that by doing it in
front of a large group of people and I had every reason
to think everybody was listening because he had gotten
my attention from another job. I felt - I really felt I
had been forced into taking that kind of action.
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
In sum, and for all the reasons above, I find and
conclude that Respondent did not violate Section 8(a)( ) of
the Act by its termination of Brown. Accordingly, it is
recommended that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has not engaged in unfair labor practic-
es within the meaning of Section 8(a)(I) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERs
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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